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

2. The British Government decided to withdraw from the Indian sub-continent and the plan in this regard was published on 03.06.1947 which envisaged the formation of two countries, India and Pakistan. As per the Indian Independence Act, 1947 two independent Dominions – India and Pakistan were created. The ruling princes had the right to decide to which Dominion, India or Pakistan, they were to cede to. Section 6 of the Government of India Act, 1935 provided that an instrument of accession was to be executed by the ruler of the State. Various rulers signed instruments of accession on various dates. Some immediately on 15.08.1947 and some much later. Some rulers voluntarily ceded their territories to the Indian Union and some had to be cajoled to do so. In the various talks held by the Indian Government and the princely States it was decided to give some privileges and perquisites to the rulers. The privileges which were to be granted to the rulers included exemption from the operation of certain laws, the enjoyment of Jagirs and personal properties of the rulers, and members of their families, the payment by the States of the marriage expenses of the brothers and sisters of the rulers, immunity from some processes of courts of law, distinctive number plates, gun salutes, etc3. Nawab Raza Ali Khan was the ruler of Rampur. The State of Rampur merged into the Union of India. Merger Agreement was signed by the Nawab on 15.05.1949. As per the terms of merger agreement, the Nawab was entitled to full ownership, use and enjoyment of all private properties (as distinguished from State properties) belonging to him and he was required to furnish to the Dominion Government an inventory of such immovable properties etc. The Nawab vide orders (robkars) dated 31.05.1949 and 27.06.1949 declared a number of properties to be his personal properties. In terms of the merger agreement, Rampur ceded to the Dominion of India on 01.07.1949 and became a centrally administered Chief Commissioners Province. Nawab Raza Ali Khan was declared to be a ruler in terms of clause (22) of Article 366 of the Constitution of India, 1950. He expired on 06.03.1966. It is not disputed that Nawab Raza Ali Khan died intestate4. The relevant provisions of the instrument of accession executed on 15.05.1949 between the Governor General of India and the Nawab of Rampur read as follows:The Nawab shall continue to enjoy the same personal rights, privileges, immunities, dignities and titles which he would have enjoyed had this agreement not been madeThe Nawab shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of this agreementThe Nawab will furnish to the Dominion Government before the 30th June 1949 an inventory of all the immovable property, securities and cash balances held by him as such private propertyIf any dispute arises as to whether any item of property is the private property of the Nawab or State property, it shall be referred to a judicial officer nominated by the Government of India and the decision of that officer shall be final and binding on both partiesThe Dominion Government guarantees the succession according to law and custom to the gaddi of the State and to Nawabs personal rights, privileges, immunities, dignities and titles5. It may also be pertinent to mention that as per Article 1, the Nawab ceded full executive authority, jurisdiction and powers for and in relation to the governance of the State of Rampur and transferred all his powers to the Dominion Government with effect from 01.07.1949. Article 3 entitled the Nawab to receive a privy purse of Rs.7,00,000/- free from taxes. Under Article 5 all members of the Nawabs family were entitled to privileges, dignities and titles as they enjoyed before 15.08.1947. Articles 8 and 9 are not relevant for the purpose of deciding this case6. It would also be pertinent to mention that after the instrument of merger was executed, the Constitution of India was adopted on 26.11.1949 and came into force on 26.01.1950. Article 291 of the Constitution of India, as it stood at the relevant time, provided that the ruler of an Indian State would be entitled to privy purse sums as assured by the Government of the Dominion of India. Article 362provided that whenever Parliament or Legislature in exercise of their power make laws or where the Union or States exercise the executive power, due regard would be had to the guarantees or assurances given under any such covenant or agreement, which the ruler had entered into with Dominion of India in respect to the personal rights, privileges and dignities of the ruler of an Indian State. Article 363barred the jurisdiction of the Courts to entertain disputes arising out of such treaties, agreements, covenants, etc. entered into or executed before the commencement of the Constitution by any ruler of an Indian State to which the Government of the Dominion of India or any of its predecessor government was a party. In clause (22) of Article 366, Ruler was defined as follows:-366. Definitions.- In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say-(22) Ruler in relation to an Indian State means the Prince, Chief or other person by whom any such covenant or agreement as is referred to in clause (1) of Article 291 was entered into and who for the time being is recognised by the President as the Ruler of the State, and includes any person who for the time being is recognised by the President as the successor of such Ruler;7. After the death of Nawab Raza Ali Khan, the President of India in terms of clause (22) of Article 366 recognised his eldest son Nawab Syed Murtaza Ali Khan, defendant no. 1 (since deceased) to be the ruler. None of the other parties challenged this declaration recognising defendant no.1 to be the ruler. On 01.04.1966 a certificate was issued in which defendant no. 1 was not only recognised as ruler of Rampur but it was also certified that he was the sole successor to all private properties – movable and immovable – held by Late Nawab Raza Ali Khan. The certificate was challenged by Syed Zulfiquar Ali Khan, defendant no. 3 (since deceased), the second son of Nawab Raza Ali Khan, by filing a writ petition before the High Court of Delhi. Three other similar petitions were filed by the daughters of Nawab Raza Ali Khan. The High Court of Delhi quashed the certificate vide judgment dated 18.12.1969. The defendant no. 1 challenged the said judgment in this Court8. After the decision of the Delhi High Court dated 18.12.1969, the plaintiff who is the granddaughter of Nawab Raza Ali Khan filed a suit for partition, accounts, mesne profits in respect to the suit properties left by Nawab Raza Ali Khan. On 28.12.1971, by the 26 th Constitution amendment, the Constitution of India was amended. Articles 291 and 362 were repealed. Article 363A was added and the definition of ruler in clause (22) of Article 366 was amended. In view of the amendments so made, the plaintiff on 07.01.1972 withdrew the suit filed in the year 1970 with liberty to file a fresh suit and, in fact, filed a fresh suit on the same date. This suit was filed before the District Judge, Rampur and the present proceedings arise out of the said suit. It would also be pertinent to mention that both in the suit filed in the year 1970 and in the suit filed in the year 1972, the District Judge, Rampur had ordered that the defendant no. 1 would not transfer or otherwise dispose of the properties till further orders of the court9. This Court, in the appeal filed by the defendant No. 1 against the judgment of the Delhi High Court, declined to interfere with the order quashing the certificate due to the pendency of civil litigation between the parties for the same property. It further directed that the certificate which had been quashed would not be set up by either party in support of the claim of the plaintiff or the defendants in the suit which had been filed in the meantime. Therefore, this certificate cannot be taken into consideration while deciding these proceedings10. In January 1995, the said suit being O.S. No. 4 of 1972 was withdrawn by the High Court of Allahabad and tried by itself. The learned Single Judge dismissed the suit on 31.07.1996. An appeal therefrom was heard by a Division Bench of the Allahabad High Court which vide two separate concurring judgments dismissed the appeal. Hence, the present appeals.

Reasoning: 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.