Appeal No 63 of 1952
Appeal from the Judgment and Order dated 7th November 1950 of the High Court of Judicature at Hyderabad Siddique Rao and Deshpande JJ in Civil Case No 9 A 5 1 of 1950
M C Setalvad Attorney General for India and C K Daphtary Solicitor General for India G N Joshi and Ghulam Ahmad Khan with them for the appellants
B Somayya and Akbar Ali Khan B V Subharayudu with them for the respondents
December 9
The Judgment of the Court was delivered by MUKHERJEA J
This appeal which has come before us on a certificate granted by the High Court of Hyderabad under article 132 1 of the Constitution is directed against a judgment of a Full Bench of that Court dated November 7 1950 passed on a petition under article 226 of  the Constitution
By this judgment the learned Judges of the High Court declared an Act known as the Waliuddowla Succession Act of 1950 void under article 132 of the Constitution to the extent that it affected the rights of the present respondents 1 to 12 who were the petitioners in the article 226 proceeding
The object of the impugned Act which received the assent of HEH the Nizam as Rajpramukh of Hyderabad on April 24 1950 was to put an end to the disputes that existed at the time regarding succession to the matrooka or personal estate of Nawab Waliuddowla  a wealthy nobleman and a high dignitary of Hyderabad and what in substance the Act provided was to dismiss the claims of succession to the said properties put forward by two of the alleged wives of the late Nawab named Mahboob Begum and Kadiran Begum and their children
These two ladies as Well as their 406 children filed a petition before the Hyderabad High Court under article 226 of the Constitution challenging the validity of the Act mentioned aforesaid inter alia on the grounds that it conflicted with the petitioners  fundamental rights guaranteed under articles 141911 and 311 of the Constitution and praying for appropriate reliefs by way of declaration and writs of certiorari and prohibition
The claim was resisted by Ameerunnissa Begum an admitted wife of the late Nawab and her children and they are the persons who would primarily be benefited by the provisions of the impugned Act
The High Court substantially accepted the contentions of the petitioners and declared the Act to be void so far as it affected them
Against this decision the present appeal has been taken to this court by Ameerunnissa Begum and her children
To appreciate the contentions that have been raised by the parties a brief resume of the antecedent events leading up to the passing of the disputed legislation would be necessary
Nawab Waliuddowla who was one of the Paigah noblemen of Hyderabad and was at one time the President of the Executive Council of the State died at Medina on February 22 1935 while on a pilgrimage to Hedjaz
Besides extensive jagir properties appertaining to the Paigah which fetched him an annual income of nearly Rs 136000 he left behind him matrooka or personal estate of considerable value
As regards the surviving relations of the Nawab who could claim rights by inheritance to his estate it is not disputed that Ameerunnissa Begum was one of the legaly wedded wives of the Nawab and that she and the five children which the Nawab had by her are entitled to their legitimate shares in the properties left by the deceased There is also no dispute that the Nawab went through a legal marriage with a lady named Fatima Begum who is still alive
It appears however that she left her husband soon after marriage and did not return to him any time thereafter
During the period which is material for our present purpose the 407 only claim which she put forward against the estate of the Nawab was one for recovery of her dower debt mounting to one lakh of rupees
The whole dispute between the parties to this litigation really centered round the point as to whether the other two ladies namely Mahoob Begum and Kadiran Begumwho are respectively respondents I and 5 in this appeal were the lawfully married wives of the late Nawab or were they merely in his keeping as
kavases or permanent concubines If there was no legal marriage between them and the Nawab it is not disputed that their children though admittedly begotten on them by the Nawab would not be entitled to any share in the matrooka or personal estate left by the deceased
 This dispute first arose before the Paigah Trust Committee whose duty it was to distribute the income of the Paigah estate amongst the heirs of the late Nawab
In April 1935 shortly after Ameerunnissa Begum who had accompanied her husband to Mecca returned to Hyderabad after the death of the latter the Committee addressed letters to Ameerunnissa Begum Fatima Begum and also to Mahboob Begum enquiring about the wives and children left by the Nawab
No letter it seems was sent to Kadiran Bi
On a consideration of the replies given by the several addressees and also of the statements made on their behalf at the hearings before the Committee the latter submitted a report to the Executive Council of the Nizam
The Paigah Committee proceeded on the footing that the Nawab s marriage with Ameerunnissa Begum was beyond dispute but as Mahboob Begum did not produce her marriage certificate even after repeated demands by the Committee she as well as Kadiran Bi were treated as concubines
The Committee recommended that the annual income of the Paigah should be divided in the proportion of 60 to 40 amongst the legitimate and illegitimate relations of the Nawab 60 of the income was to go to Ameerunnissa Begum and her issues and the remaining 40 was to be paid to Mahboob and Kadiran as well as to 53 408 their children
These recommendations were approved by the Nizam in a Firman dated 9th July 1936
Previous to this express intimations were given to the surviving relations of Waliuddowla under orders of the Nizam that whatever disputes might exist among them regarding the matrooka or personal estate of the Nawab should be decided by proper proceedings in a court of law and pending such decision the estate might be kept  under the supervision of the Paigah Committee
On the 8th February 1938 Mahboob Begum and her children filed a suit in the Dar ul Quaza which was a court established under the law for deciding rights of succession marriage divorce etc
of the Muslims in the Hyderabad State praying for a declaration that Mahboob Begum was the legally married wife of the Nawab and the children were his legitimate children and for other consequential reliefs in the shape of participation in the matrooka and recovery of the dower debt payable to Mahboob Begum
Both Ameerunnissa Begum and Kadiran Bibi as well as their children were among the defendants impleaded in the suit
During the pendency of the suit and before it came on for actual hearing there was a Firman issued by the Nizara on the 9th February 1937 on the application of Ameerunnissa Begum directing the withdrawal of the suit from the Dar ul Quaza court and the appointment of a Special Commission consisting of Nawab Jiwan Yar Jung the then Chief Justice of Hyderabad and the Judge of Dar ul Quaza before whom the suit was pending to investigate the matter and submit a report to the Nizam through the Executive Council
Proceedings before the Special Commission commenced on 27th March1939
Kadiran Bibi filed a plaint before the Commission claiming on behalf of herself and her children the identical reliefs which were claimed by Mahboob Begum and her children and though this plaint was at first rejected by the Commission it was subsequently entertained under specific orders of the Executive Council
It appears that Fatima Bibi also lodged a plaint in respect of 409 her Mahar against the estate of the Nawab and this matter was also directed to be investigated by the Commission
The enquiry before the commission was a long affair in which a large volume of evidence both oral and documentary was adduced
The Commission submitted the report on October 16 1944 and their findings in substance were that both Mahboob Begum and Kadiran Begum were legally married wives of Waliuddowla and hence they as well as their children were entitled to have their legitimate shares in the matrooka
Fatima Begum was also held to be a legally wedded wife of the Nawab and as such entitled to the dower claimed by her
When the report came up for consideration by the Executive Council the Members of the Council were divided in their opinion
A minority was in favour of accepting the findings of the Commission but the majority view was that further expert opinion should be taken in the matter
Eventually on the advice of the Council the Nizam directed by his Firman dated 27th August 1945 that the report of the Special Commission should be scrutinised by an Advisory Committee consisting of three persons namely two Judges of the High Court and the Legal Adviser of the State
This Committee was directed to examine fully the bulky report of the Special Commission and submit their opinion with a view to assist the Executive Council in coming to their decision
They were not to take any fresh evidence or hear any further arguments from the parties
The Advisory Committee submitted their report on 24th November 1945 and the Committee held differing from the view taken by the Special Commission that neither Mahboob Begum nor Kadiran Begum was the legally wedded wife of Nawab Waliuddowla
Despite this report the majority of the Executive Council recommended that the findings of the Special Commission should be accepted
The Nizam accepted this recommendation and by his Firman dated 26th June 1947 directed that the findings of the Special Commission should be implemented at an early date
410 There was a proposal at the beginning that the members of the Special Commission themselves should be asked to implement their findings but eventually it was decided by a resolution of the Executive Council dated 22nd September 1947 that the task of en forcing the recommendations of the Commission should be entrusted to the Chief Justice of the Hyderabad High Court
It appears that in subsequent communications to the Executive Council the Nizam expressed doubt regarding the status of Mahboob Begum and Kadiran Begum and suggested the replacement of the Firman of 26th June 1947 by now orders in the nature of a compromise
The Executive Council however stuck to their decision and on 17th June 1948 the findings of the Special Commission were transferred to the Chief Justice for executing the same as early as possible
On 2nd July 1948 another Firman was issued by the Nizam directing that the Chief Justice before making the final distribution of the matrooka should submit his report through the Executive Council to His Exalted Highness for his sanction
This direction was embodied in a resolution of the Executive Council dated 2nd September 1948
The police action in Hyderabad commenced soon after that and it was on 25th September 1948 after the police action had terminated and a Military Governor was placed in charge of the Hyderabad State that a formal communication of the resolution mentioned above was made to the Chief Justice
Soon afterwards on the application of Ameerunnissa Begum made to the Military Governor the execution proceedings before the Chief Justice were stayed by an order dated 16th October 1948
This stay order was again cancelled on 5th November 1948 and the execution proceedings were allowed to continue
On 5th December 1948 the Chief Justice submitted his report regarding the distribution of the matrooka to the Executive Council
Strangely however by a Firman dated 24th February 1949 the Nizam purporting to set under the advice of the Military 411 Governor directed that the findings of the three men Advisory Committee who differed from the views taken by the Special Commission should be given effect to
In other words the claims of Mahboob Begum and Kadiran Begum were dismissed and Ameerunissa Begum was directed to pay one lakh of rupees to Fatima Begum as the dower due to the latter
Protest was lodged against the decision by Mahboob Begum and Kadiran Begum and again a Firman was issued by the Nizam under the advice of the Military Governor on 7th of September 1949
By this Firman the earlier order of 24th February 1949 was revoked and the whole case was referred for opinion and report to Sir George Spence the Legal Adviser to the Military Governor who was directed to hear the parties and take such further evidence as he considered necessary
The enquiry then began before the Legal Adviser but neither party adduced any evidence
Sir George Spence submitted his report on 7th January 1950
The material findings and recommendations in his report were as follows  76
My finding on the case is that neither Mahboob Begum nor Kadiran Begum was married to the Nawab with the result that these ladies and their children are not entitled to participate in the distribution of the matrooka
77If this finding is accepted the order required for its implementation would be an order dismissing the claims of Mahboob Begum and Kadiran Begum on the matrooka and directing Ameerunnissa Begum to pay one lakh of rupees out of the matrooka to Fatima Begum on account of Haq Mahar
 The Constitution of India came into force on 26th January 1960
As Hyderabad was integrated with the Indian Union and the Nizam lost the absolute power which he could exercise previously it was no longer within his competence to issue a Firman on the terms of the report of Sir George Spence and make it legally binding on the parties
Recourse was 412 therefore had to legislation and on April 24 1950 this impugned Act was passed which purported to give a legislative sanction to the findings in the report of Sir George Spence
The material provision of the Act is contained in section 2 clause 1 which lays down that  the claims of Mahboob Begum and Kadiran Begum and of their respective children to participate in the distribution of the matrooka of the late Nawab Waliuddowla are hereby dismissed
The second clause of this section provides that a sum of one lakh of rupees shalt be paid to Fatima Begum on account of her Haq Mahar
Under section 3 the decisions affirmed in section 2 cannot be called in question in any court of law and finally section 4 provides that the High Court of Hyderabad shall on the application of any person interested in the decision affirmed in section 2 execute the said decision as if it were a decree passed by itself and such person was a decree holder
It is this Act which has been pronounced to be invalid by the High Court of Hyderabad to the extent that it dismisses the claims of Mahboob Begum and Kadiran Begum as well as of their children to the personal estate of Nawab Waliuddowla
It may be conceded that before the coming in of the Constitution the Nizam of Hyderabad practically enjoyed unfettered sovereign authority and however much the various Firmans which were issued by him in connection with the present dispute may appear to be capricious and arbitrary strictly speaking they were not unconstitutional in the sense that they were beyond his competence as the supreme legislature in the State
After the Constitution came into force and prior to the setting up of a duly constituted legislature in the Hyderabad State the legislative authority undoubtedly vested in the Nizam as the Rajpramukh of the State under the provision of article 385 of the Constitution read with article 212 A 2 inserted by the President s Removal of Difficulties Order No II dated 26th January 1950 but the legislative power exercisable by the Nizam was a strictly limited power
The Rajpramukh 413 was not only to act in conformity with the provision of article 246 of the Constitution and keep within the bounds of the legislative sphere laid down with reference to the entries in the different legislative lists but the legislation must not be in conflict with any of the fundamental rights guaranteed under Part III of the Constitution
The impugned Act as its title and preamble show was passed with the avowed object of terminating the disputes relating to succession to the estate of the late Nawab Waliuddowala
Although in the report of Sir George Spence it was held that Mahboob Begum and Kadiran Begum were not the legally wedded wives of the Nawab and their children were not legitimate there was no express declaration to that effect in the operative portion of the Act which merely lays down that the claims of these two ladies as well as of their children to participate in the distribution of the matrooka of the late Nawab are dismissed
The legislation may be said to relate to succession and indirectly to marriage also and as such may come within the purview of entry 5 List III of the Seventh Schedule to the Constitution
It has not been argued by Mr Somayya who appeared for the respondents that a legislation on these topics must be a general legislation but it has not been disputed by either side that no valid legislation could be passed under these heads which is discriminatory in its character and offends against the equal protection clause embodied in article 14 of the Constitution
The contention of the learned Attorney General is that the legislation in the present case does not violate the principles of the equality clause and he has attempted to combat with much force the decision of the High Court on this point
This is the main question in the case which requires to be examined carefully
The nature and scope of the guarantee that is implied in the equal protection clause of the Constitution have been explained and discussed in more than one decision of this court and do not require repetition
It is well settled that a legislature which 414 has to deal with diverse problems arising out of an infinite variety of human relations must of necessity have the power of making special laws to attain particular objects  and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate
Mere differentiation or inequality of treatment does not per so amount to discrimination within the inhibition of the equal protection clause
To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary that it does not rest on any rational basis having regard to the object which the legislature has in view
The learned Attorney General in the course of his argument laid considerable stress upon the decision of this court in Chiranjit Lal vs The Union of India1 and he attempted to call in his aid the two propositions recognised and relied upon in that decision namely 1 that the presumption is always in favour of the constitutionality of an enactment and 2 a law may be constitutional even though it relates to a single individual family or corporation
The pro positions themselves may be well founded but whether or not they would apply to a particular case would depend upon the facts and circumstances of that case
In Chiranjit Lal s case 1 it is to be noted the circumstances were somewhat exceptional
The legislation in that case related to a company which was engaged in production of a commodity vitally essential to the community and in judging the reasonableness of the classification in such cases the court has undoubtedly to look to the social political and economic interest of the community as a whole
In doing so as Prof Willis observed the court will assume the existence of any state of facts which can reasonably be conceived of as existing at the time of legislation and capable of sustaining the classification made by it
In the case before us what the legislature has done is to single out two groups of persons consisting of two 1   2 Willis on constitutional Law p 580 415 ladies and their respective children out of those who claim to be related to the late Nawab Waliuddowla and prevent them from getting any share in the personal property of the latter to which they might be entitled under the general law of the land
They  claim to be wives and children of the deceased and as such entitled to have shares in his personal estate and no competent court of law has as yet negatived their claims in this respect
On what principle then it may be asked was the disability imposed upon these persons alone while the claim of the other claimants was accepted  Nay the legislation goes further than this and denies to these specified individuals a right to enforce their claim in a court of law in accordance with the personal law that governs the community to which they belong
They in fact have been discriminated against from the rest of the community in respect of a valuable right which the law secures to them all and the question is on what basis this apparently hostile and discriminatory legislation can be supported
It is not suggested that it was for serving a public purpose or securing some advantage to the community as a whole that the legislature chose in this case to interfere with private rights
The only purpose of the legislation as appears from the preamble was to end certain private disputes
It is true that the quarrel between the two rival parties regarding succession to the estate of the deceased Nawab was going on since 1938 and after several vicissitudes for which the Nizam himself or his Legal Advisers were prima rily responsible there was a report prepared by the Legal Adviser to the State in a particular way which contrary to the opinion given by an earlier  Special Commission negatived the claims of these two ladies and their children
It is also true that because of the introduction of the Constitution it was no longer possible for the Nizam to issue a Firman embodying this report
That may be the reason for passing this legislation but it would not furnish any rational basis 54 416 for the discrimination that it made
The continuance of a dispute even for a long period of time between two sets of rival claimants tot he property of a private person is not a circumstance of such unusual nature as would invest a case with special or exceptional features and make it a class by itself justifying its differentiation from all other cases of succession disputes
As appears from the preamble to the Act the only ground for depriving the two ladies and their children of the benefits of the ordinary law is the fact that there was an adverse report against them made by the State Legal Adviser
This ground is itself arbitrary and unreasonable
The dispute regarding succession to the estate of the Nawab was a legal dispute pure and simple and without determination of the points in issue by a properly constituted judicial tribunal a legislation based upon the report of a nonjudicial authority and made applicable to specific individuals who are deprived thereby of valuable rights which are enjoyed by all other persons occupying the same position as themselves does in our opinion plainly come within the constitutional inhibition of Article 14
The analogy of private Acts of the British Parliament to which reference was made by the learned Attorney General in the course of his arguments is not at all helpful
The British Parliament enjoys legislative omnipotence and there are no constitutional limitations upon its authority or power
There were indeed a few statutes passed by the Provincial Legislature in India during British days which regulated succession to the estates of certain princely families
The Bijni Succession Act Act
II of 1931 passed by the Assam Legislature is an enactment of this type and it did shut out the rights of certain persons who claimed the Bijni estate under the law of inheritance
But at that time the Governor General of India had express authority under the provisions of the Government of India Act 1915 to authorize the Provincial Legislatures to make laws regarding subjects of a private nature
Quite apart from this no 417 question of infraction of the equal protection rule could arise in pre Constitution days
We are not unmindful of the fact that the presumption is in favour of the constitutionality of an enactment  but when on the  face of it a piece of legislation is palpably unreasonable and discriminatory and the selection or classification made by it cannot be justified on any conceivable or rational ground the court has got to invalidate the enactment on the ground of its violating the equal protection clause
The learned Attorney General contended before us that the High Court was wrong in holding that there was a concluded decree in the present case in favour of respondents 1 to 12 on the basis of the recommendations of the Special Commission and that this decree was a property within the meaning of law of which these respondents have been deprived by the impugned legislation
The point is not free from doubt and much could be said on both sides
We think therefore that it would not be proper on our part to expressany opinion upon it in the present appeal
We understand that the respondents have filed an execution application in the City Civil Court of Hyderabad which has ordered that execution should proceed and that objections have been taken to this application by the present appellants who have raised inter alia the point that there is no final and effective decree which is capable of execution
As the point is still pending hearing by the Civil Court of Hyderabad we do not desire to influence their decision in any way by expressing any opinion on this matter
We only desire to state that notwithstanding the observations made by the High Court referred to above the question shall be treated as an open one
The applicability of article 14 of the Constitution in the present case is however not at all dependent upon the fact as to whether or not the respondents have already acquired property in the shape of a decree
Their claim to the estate of the late Nawab which they wanted to assert under the general law of the land is itself a valuable right and 418 the deprivation of that right by a piece of discriminatory legislation would be sufficient to bring the case within the purview of article 14 of the Constitution
Having regard to the view that we have taken it as unnecessary to consider whether the impugned Legislation violates the provisions of article 311 or article 191 f of the Constitution
The result is that the appeal is dismissed with costs
Appeal dismissed
Agent for respondents Nos
1 to 12 M section H Sastri


Summary:
The continuance of a dispute even for a long period of time between two sets of rival claimants to the property of a private person is not a circumstance of such unusual nature as Would invest a case with special or exceptional features and make it a class by itself justifying its differentiation from all other cases of succession disputes and the fact that a non judicial authority had made a report against one set of the claimants is not a reasonable ground for depriving them by legislation of their ordinary rights under the law and prohibiting them from having resort to courts of law for establishing their rights
A nobleman of Hyderabad died in 1936 when it was under the rule of the Nizam and disputes as to succession arose between his legally married wife and two ladies Mahboob Begum and Kadiran Begum who claimed to be his wives
After protracted proceedings before several non judicial bodies a report adverse to the latter was made in January 1950 but before the Nizam could issue a firman in accordance with it Hyderabad became a part of the Indian Union and the Constitution of India came into force
An enactment called the Waliuddowla Succession Act 1950 was therefore passed by the Hyderabad Legislature which provided that  the claims of Mahboob Begum and Kadiran Begum and of their respective children to participate in the distribution of the matrooka of the late Nawab are hereby dismissed and that the above decision cannot be called in question in any court of law Held that in singling out two groups of persons consisting of two ladies and their children out of those who claimed to be related to the late Nawab and preventing them from establishing their rights under the personal law which governed the community in Courts of law the Act was discriminatory  that there was no rational or reasonable basis for the discrimination and the Act contravened the provisions of article 14 of the Constitution and was therefore void
The analogy of private Acts of the British 405 Parliament is not helpful as the British Parliament enjoys legislative omnipotence and there are no constitutional limitations on its authority or power