Case: Director of Endowments, Government of Hyderabad &amp; Others Vs. Akaram Ali

His will, as expressed in his Firman, was the law of the land. Therefore, even if it be assumed that the respondent was in possession, his rights to immediate possession, whatever they may have been, were taken away and held in abeyance till he could establish them in the civil Courts.The question now arises whether this enured after the Constitution and whether the respondents right to possession assuming he had any, revived when the Constitution came into being. We are clear that the Constitution effected no. change.12. It was conceded that the Nizam had power to confiscate the property and to take it away from the respondent in toto and it was conceded that if he had done so the rights so destroyed would not have revived because the Constitution only guarantees to a citizen such rights as he had at the date it came into force; it does not alter them or add to them : all it guarantees is that he shall not be deprived of such rights as he has except in such ways as the Constitution allows. But if the Nizam could take away every vestige of right by a Firman he could equally take away a part of them and at the date of the passing of the Constitution the respondent would only have the balance of the rights left to him and not the whole, for what applies to the whole applies equally to the part.Therefore, even if we accept all the respondents facts, the position would still be that at the date the Constitution came into force he had no. right to immediate possession; the utmost he had was right to be restored to possession if and when he established his rights in a Court a law.13. The High Court has relied on a decision of this Court in - Ameerunnissa Begum v. Mahboob Begum, AIR 1953 SC 91 (B), and has held that the Firmans of the Nazim that conflict with the Constitution are ultra vires. But the learned Judges have failed to observe that in that case the Firman was issued after the Constitution and not before. But it was argued that even if that decision does not apply there are others that do and they hold that a law which would have been bad if it had been passed after the Constitution ceases to have effect after that date.The decisions referred to were considered in - Syed Qasim Razi v. State of Hyderabad, AIR 1953 SC 156 (C) and the law laid down by the majority was this (page 161)."The effect of Art. 13(1) of the Constitution is not to obliterate the entire operation of the inconsistent laws of to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions and for enforcing rights and liabilities accrued before the advern of the Constitution."That, in our opinion concludes the matter.14. The only question that remains is whether the respondent has obtained a decision in the civil Courts confirming his right to get possession of the Dargah plus whatever else of Eccelsiatical Department took- over under the Firman. As we have already indicated, the matter was agitated in the civil Courts. We need not trace the history of this litigation nor need we examine its fortunes from stage to stage. All we are concerned with is the final judgment which was given by the High Court.15. The suit was filed by Azam Ali who had been entrusted with the supervision of the Dargah by the Ecclesiastical Department in 1914 and who was removed in 1920. The present respondent Akram Ali was one of the defendants. When the matter reached the High Court the learned Judges found as follows :"The fact of the plaintiff" (Azam Ali) "or his ancestors or any of the descendants of the saint of the Dargah being a Sajjada is not established by the evidence. It is also not proved that there has been any other Sajjada in respect of this Dargah and that the office of Sajjadagi has been found or continued there ...... in our opinion the Sajjadagi of none of the defendants is proved.In fact, for the very reasons as given by us above none of the defendants is proved to be entitled to the office of Sajadagi. In the result, it is not proved that any one of the parties is entitled to the Sajjadagi. The objections to the evidence of the plaintiff apply equally to the evidence of the defandants and when the very existence of Sajjadagi in the Dargah Sharif is not proved, no. question remains as to who is the Sajjada.....It cannot be gainsaid that the evidence of the plaintiff is stronger and more weighty than the evidence of the defendants....If we were obliged to hold any one of the parties as Sajjada on the evidence produced, our judgement would have been in plaintiffs favour".The decisions of the lower Courts dismissing the plaintiffs suit were accordingly upheld.16. The learned counsel for the defendant-respondent argued that this judgment does not come in the way of this client because, even if he is not the Sajjada, that would make no. difference. He insists that his client was in possession at all relevant times, that is to say, he equates the brothers possession to that of his client and contends that now that the civil litigation has ended unfavourably to his oponent Azam Ali, the respondent must be restored to possession.But that is no. what the Firman says. The respondents rights, if any, at the date of the Constitution, and now, are that he must establish his right to possession in a civil Court before he can ask to be put in possession. There is no. decision of a civil Court declaring the respondents right to possession, therefore, on that short ground he cannot get the writ he seeks.

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

Explanation:
1[ds]6. We do not intend to say anything about the facts of title and possession lest it prejudice further litigation, should there be any. We will assume, without deciding, that all that the respondent says about his hereditary rights and his possession is true. But whether he was in possession or not whatever rights to possession he may have had were held in abeyance by the Firman ofand there is no. subsequent order of the Civil Courts removing the bar.Therefore, as he has no. present right to possession, no. mandamus can be issued. We do not mean to imply that writ would be the appropriate remedy if and when the respondent can establish a right to possession : that is a question that does not arise because in fact he has no. present right toare clear that the Constitution effected no.even if we accept all the respondents facts, the position would still be that at the date the Constitution came into force he had no. right to immediate possession; the utmost he had was right to be restored to possession if and when he established his rights in a Court a law.13. The High Court has relied on a decision of this Court inAmeerunnissa Begum v. Mahboob Begum, AIR 1953 SC 91  (B), and has held that the Firmans of the Nazim that conflict with the Constitution are ultra vires. But the learned Judges have failed to observe that in that case the Firman was issued after the Constitution and not before. But it was argued that even if that decision does not apply there are others that do and they hold that a law which would have been bad if it had been passed after the Constitution ceases to have effect after that date.The decisions referred to were considered inSyed Qasim Razi v. State of Hyderabad, AIR 1953 SC 156  (C) and the law laid down by the majority was this (page 161)."The effect of Art. 13(1) of the Constitution is not to obliterate the entire operation of the inconsistent laws of to wipe them out altogether from the statute book; for to do so will be to give them retrospective effect which they do not possess. Such laws must be held to be valid for all past transactions and for enforcing rights and liabilities accrued before the advern of the Constitution."That, in our opinion concludes thethat is no. what the Firman says. The respondents rights, if any, at the date of the Constitution, and now, are that he must establish his right to possession in a civil Court before he can ask to be put in possession. There is no. decision of a civil Court declaring the respondents right to possession, therefore, on that short ground he cannot get the writ he seeks.