Case: TALAT FATIMA HASAN THROUGH HER  CONSTITUTED ATTORNEY SH. SYED  MEHDI HUSAIN Vs. NAWAB SYED MURTAZA ALI KHAN (D) BY LRS. &amp; ORS

with the Government of India were simple documents relating to the accession and the integration and the assurances and guarantees given under those documents were only for the fixation of the privy purses and the recognition of the privileges. The guarantees and the assurances given under the Constitution were independent of those documents. After the advent of the Constitution, the Rulers enjoyed their right to privy purses, private properties and privileges only by the force of the Constitution and in other respects they were only ordinary citizens of India like any other citizen; of course, this is an accident of history and with the concurrence of the Indian people in their Constituent Assembly. 75. Therefore, there cannot be any justification in saying that the guarantees and assurances given to the Rulers were sacrosanct and that Articles 291 and 362 reflected only the terms of the agreements and covenants. In fact as soon as the Constitution came into force, the Memoranda of Agreements executed and ratified by the States and Union of States were embodied in formal agreements under the relevant articles of the Constitution and no obligation flowed from those Agreements and Covenants but only from the Constitutional provisions. To say differently, after the introduction of Articles 291 and 362 in the Constitution, the Agreements and Covenants have no existence at all. The reference to Covenants and Agreements was casual and subsidiary and the source of obligation flowed only from the Constitution. Therefore, the contention urged on the use of the words guaranteed or assured is without any force and absolutely untenable. 42. We are not stricto sensu dealing with this issue because the succession to the estate of Nawab Raza Ali Khan opened in the year 1966, prior to the 26 th Amendment Act. However, one thing which is clear is that the rulers enjoyed right to privy purses, private properties and privileges only because of the Constitution and in other respects they were ordinary citizens. It was urged that since the rights were guaranteed under the Constitution, the rule of primogeniture would apply. We find no force in this contention because, as already discussed above, in Article 362 reference is made only to the personal rights, privileges and dignities of the ruler of an Indian State and, in our view, rights would not include succession to personal properties. 43. Another argument raised on behalf of the contesting defendants is that Nawab Raza Ali Khan, knowing that his succession was governed by the rule of primogeniture, had created a trust named The Raza Trust for the welfare of his family members other than defendant no. 1. He had also made various other grants and gifts in favour of his children whereas the elder son was deprived of such benefits. It is contended that the plaintiff and the other defendants supporting the plaintiff had taken benefit of the said Trust and gifts and, therefore, cannot challenge the entitlement of defendant no. 1. This argument cannot be accepted. We have only to decide what was the legal entitlement of the legal heirs and in what manner the succession to the estate of late Nawab Raza Ali Khan was to be governed. We may also mention that the Trust, which has been referred to by the contesting defendants, was created in the year 1944, much before the Nawab ceded his property to the Dominion of India. At that time, there was no doubt that succession to the properties of the State of Rampur would be governed by the rule of primogeniture. Even after Nawab ceased to be the ruler, he gifted a number of extensive properties to the defendant no. 1 during his lifetime including a property known as Rafat Club in Rampur, which the defendant no. 1 sold to the State of U.P. in 1961. The erstwhile Nawab also gifted a property known as Kothi Bareilly and a house in Delhi to defendant no. 1. Both the Division Bench and the learned Single Judge held that these properties gifted by the erstwhile Nawab to the defendant no. 1 were given to him only to maintain his status as the ruler and, therefore, could not be taken into consideration while deciding the issue of succession of the erstwhile Nawab of Rampur. 44. We find a contradiction in the findings of the High Court in this regard. On the one hand, it is said that the plaintiff and the other family members cannot urge that the estate of the Nawab should be governed by personal law because they have derived benefits from the Raza Trust and gifts in their life time and, on the other hand, when it comes to the defendant no. 1, it is said that the gifts were made only with a view that defendant no. 1 should be able to maintain his status as the prospective heir. If he was to get all the properties of the Nawab, then why gifts would have to be made in his favour in his life time. Therefore, this contention is rejected. 45. There is no dispute between the parties that if personal law is to apply then the Muslim Personal Law (Shariat) Application Act, 1937 will apply and since Nawab Raza Ali Khan was a Shia, his estate will devolve upon his heirs under the Muslim personal law, as applicable to Shias. 46. During the pendency of the suit the plaint was amended from time to time because of the death of defendant no. 1, defendant no.1/1 and defendant no.3. After the amendment, the shares of all the legal heirs were worked out in para 9-F of the plaint. These shares have not been disputed by any one nor there is any dispute with regard to the manner in which the shares have been worked out. Therefore, these shares are accepted to be correct. The parties shall be entitled to the property as per the shares set out in para 9-F of the plaint which shall form a part of the decree.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]25. We are of the view that the observations made above run counter to what was held in the earlier part of the judgment where in the same judgment it was held that no distinction could be drawn between the public and private properties of the ruler. If no such distinction could be drawn, the question of any properties being recognised as the private properties of the ruler prior to the State ceding to the Dominion of India does not arise26. This Court held that both the properties at Shimla and Delhi were State properties and not the personal properties of Maharaja Ripudaman Singh and, therefore, governed by the rule of primogeniture27. At the outset, we may note that both in the Travancore case and the Nabha case, the suits had been filed in the lifetime of the rulers, who had ceded the State to the Indian Union. The collaterals of the rulers filed suits trying to establish their right on the property contending that the property had become a partible estate in the hands of the ruler. As far as the Travancore case is concerned, we find that the contesting defendants can get no benefit from this decision. It, in fact, supports the case of the appellants inasmuch as it held that the property in question was the personal property of the Maharaja of Travancore and, therefore, not subject to partition. As far as the Nabha case is concerned, we have given the facts of that case in detail to show that the main dispute was whether the properties were purchased by Maharaja Ripudaman Singh out of his own personal funds or from the funds of Nabha State. This Court held that there could be no distinction between the private or personal properties when the Maharaja was the sole sovereign. As Maharaja Ripudaman Singh was the Sovereign till his powers were taken away in 1923, and before he was finally deposed in 1928, both the properties at Shimla and Delhi were purchased when he was the Maharaja and it was a finding of fact that these properties were purchased out of the State funds. These properties also found mention in the list of properties declared to be the private properties of Maharaja Pratap Singh in the instrument of merger. The disputes arose when Maharaja Pratap Singh was still the ruler and was alive. The question of succession had not opened. The court held that the properties being the personal properties of the Maharaja, could not be subjected to partition. We may, however, observe that there is a fleeting remark that the property formed part of an impartible estate and therefore, would be governed by the rule of primogeniture. In our view, this question did not arise for consideration and this Court did not decide the question as to whether the impartible estate continued to exist after the ruler ceased to be a ruler31. In our view, the judgment in the Dholpur case cannot be said to have been set aside or upset in the Princes Privy Purses case. What was held was that use of the expression political power in the Dholpur case was inappropriate and the appropriate words should have been executive power. In fact, in the Dholpur case, the very next part of the sentence reads and is thus an instance of purely executive jurisdiction of the President. This clearly shows that the observations in the Princes Privy Purses case would have no impact on the ratio of the judgment in the Dholpur case32. The issue is whether the rulers continued to be rulers after executing the instruments of merger. They had agreed to merge their States with the Indian Union because they were to be paid privy purses and would enjoy certain privileges. They were also entitled to declare some properties to be their private properties. In case of disputes whether the property is private or State property, the Union could refer the dispute for decision to a committee headed by a judicial officer. The rulers were no longer sovereign. There was no paramountcy vested in the rulers. They had no land other than the private properties. They had no subjects. They were rulers only in name, left only with the recognition of their original title, a privy purse, some privileges, etc33. It is apparent that the rulers were rulers only in name. They held no land except the personal properties. There were no subjects. They were Maharajas or Rajas without a Praja; without any sovereignty; and without any territory34. The definition of ruler in clause (22) of Article 366 of the Constitution itself shows that the person who is defined as ruler is a former prince, chief or other person, who was, on or after 26.01.1950 recognised as a ruler having signed the covenant of accession. Necessarily, the ruler was a person who was recognised before independence by the British Crown and was the sovereign of his State. Such person, though defined as a Ruler, has no territory and exercises no sovereignty over any subjects. He has no attributes of a potentate nor does he enjoy all the powers and privileges which are normally exercised by a potentate. As Justice Shah in the Princes Privy Purses case judgment held, he is a citizen of India with certain privileges accorded to him because he or his predecessor had surrendered his territory, his powers and his sovereignty35. The President while exercising his powers under Article 366 (22) could not notify a ruler at his whims and fancy36. Examples were also given where in cases of disputes, the same were referred to committees comprising of the Chief Justices of the States and erstwhile rulers. However, it is clear that the declaration under clause (22) of Article 366 relates only to the Gaddi or the rulership and not to the properties which were declared to be private properties by the ruler37. It was contended by Mr. Ganguli that there could be no Gaddi without a property and the properties which were declared to be the private properties were, in fact, attached to the Gaddi and the properties would be of the ruler so declared. We find no force in this submission. These were rulers without any subjects. These were rulers without any territory. These were so called rulers enjoying certain privileges and privy purses. They had been given the choice of declaring certain properties to be their private properties and these private properties could not be said to be attached to the Gaddi. When they were actual sovereigns, their entire State was attached to the Gaddi and not any particular property. There are no specific properties which can be attached to the Gaddi. It has to be the entire State or nothing. Since, we have held that they were rulers only as a matter of courtesy, to protect their erstwhile titles, the properties which were declared to be their personal properties had to be treated as their personal properties and could not be treated as properties attached to the Gaddi37. It was contended by Mr. Ganguli that there could be no Gaddi without a property and the properties which were declared to be the private properties were, in fact, attached to the Gaddi and the properties would be of the ruler so declared. We find no force in this submission. These were rulers without any subjects. These were rulers without any territory. These were so called rulers enjoying certain privileges and privy purses. They had been given the choice of declaring certain properties to be their private properties and these private properties could not be said to be attached to the Gaddi. When they were actual sovereigns, their entire State was attached to the Gaddi and not any particular property. There are no specific properties which can be attached to the Gaddi. It has to be the entire State or nothing. Since, we have held that they were rulers only as a matter of courtesy, to protect their erstwhile titles, the properties which were declared to be their personal properties had to be treated as their personal properties and could not be treated as properties attached to the Gaddi39. A Gaddi or rulership and private property have two different connotations even in the merger agreement/instrument of accession. In Article 2 of the agreement, it is clearly mentioned that Nawab would continue to enjoy the same personal rights, privileges, immunities and dignities and other titles which he would have enjoyed prior to the agreement. Conspicuously, the word property or personal property is missing. Article 2 deals only with personal rights, privileges, dignities, etc. Article 3 deals with privy purse which would also be a part of the rulership or Gaddi. Article 6 which deals with succession, guarantees the succession according to law and custom to the Gaddi of the State and to the Nawabs personal rights, privileges, immunities, dignities and title.  Gaddi would be the throne or title of Nawab in the context in which it has been used and the personal rights, privileges, immunities, dignities and titles will be those referred to in Article 2. The word property is also conspicuously absent in Article 642. We are not stricto sensu dealing with this issue because the succession to the estate of Nawab Raza Ali Khan opened in the year 1966, prior to the 26 th Amendment Act. However, one thing which is clear is that the rulers enjoyed right to privy purses, private properties and privileges only because of the Constitution and in other respects they were ordinary citizens. It was urged that since the rights were guaranteed under the Constitution, the rule of primogeniture would apply. We find no force in this contention because, as already discussed above, in Article 362 reference is made only to the personal rights, privileges and dignities of the ruler of an Indian State and, in our view, rights would not include succession to personal properties43. Another argument raised on behalf of the contesting defendants is that Nawab Raza Ali Khan, knowing that his succession was governed by the rule of primogeniture, had created a trust named The Raza Trust for the welfare of his family members other than defendant no. 1. He had also made various other grants and gifts in favour of his children whereas the elder son was deprived of such benefits. It is contended that the plaintiff and the other defendants supporting the plaintiff had taken benefit of the said Trust and gifts and, therefore, cannot challenge the entitlement of defendant no. 1. This argument cannot be accepted. We have only to decide what was the legal entitlement of the legal heirs and in what manner the succession to the estate of late Nawab Raza Ali Khan was to be governed. We may also mention that the Trust, which has been referred to by the contesting defendants, was created in the year 1944, much before the Nawab ceded his property to the Dominion of India. At that time, there was no doubt that succession to the properties of the State of Rampur would be governed by the rule of primogeniture. Even after Nawab ceased to be the ruler, he gifted a number of extensive properties to the defendant no. 1 during his lifetime including a property known as Rafat Club in Rampur, which the defendant no. 1 sold to the State of U.P. in 1961. The erstwhile Nawab also gifted a property known as Kothi Bareilly and a house in Delhi to defendant no. 1. Both the Division Bench and the learned Single Judge held that these properties gifted by the erstwhile Nawab to the defendant no. 1 were given to him only to maintain his status as the ruler and, therefore, could not be taken into consideration while deciding the issue of succession of the erstwhile Nawab of Rampur44. We find a contradiction in the findings of the High Court in this regard. On the one hand, it is said that the plaintiff and the other family members cannot urge that the estate of the Nawab should be governed by personal law because they have derived benefits from the Raza Trust and gifts in their life time and, on the other hand, when it comes to the defendant no. 1, it is said that the gifts were made only with a view that defendant no. 1 should be able to maintain his status as the prospective heir. If he was to get all the properties of the Nawab, then why gifts would have to be made in his favour in his life time. Therefore, this contention is rejected45. There is no dispute between the parties that if personal law is to apply then the Muslim Personal Law (Shariat) Application Act, 1937 will apply and since Nawab Raza Ali Khan was a Shia, his estate will devolve upon his heirs under the Muslim personal law, as applicable to Shias46. During the pendency of the suit the plaint was amended from time to time because of the death of defendant no. 1, defendant no.1/1 and defendant no.3. After the amendment, the shares of all the legal heirs were worked out in para 9-F of the plaint. These shares have not been disputed by any one nor there is any dispute with regard to the manner in which the shares have been worked out. Therefore, these shares are accepted to be correct. The parties shall be entitled to the property as per the shares set out in para 9-F of the plaint which shall form a part of the decree.