TALAT FATIMA HASAN THROUGH HER CONSTITUTED ATTORNEY SH. SYED MEHDI HUSAIN versus NAWAB SYED MURTAZA ALI KHAN (D) BY LRS. & ORS. on 31 July 2019

[2019] 10 S.C.R. 811

TALAT FATIMA HASAN THROUGH HER CONSTITUTEDATTORNEY SH. SYED MEHDI HUSAIN

v.

NAWAB SYED MURTAZA ALI KHAN (D) BY LRS. & ORS.

(Civil Appeal No. 1773 of 2002)

JULY 31, 2019

[RANJAN GOGOI, CJI, DEEPAK GUPTA ANDANIRUDDHA BOSE, JJ.]

Muslim Personal Law (Shariat) Application Act, 1937 – In1947, on the formation of India and Pakistan, the State of Rampurmerged into the Union of India – Ruler of Rampur signed the MergerAgreement on 15.05.49 under which he was entitled to fullownership, use and enjoyment of all private properties (asdistinguished from State properties) belonging to him – Constitutionof India came into force on 26.01.50 – Ruler died intestate –Certificate issued inter alia certifying the eldest son of the Ruler,defendant no.1(since deceased) as the sole successor to his privateproperties – Certificate quashed– Plaintiff-granddaughter of theRuler filed suit inter alia for partition of the suit properties on theground that the properties being his private properties, all legalheirs were entitled to share in the property as per personal law –Contested by the defendants on the ground that the property wasnot the personal property of the Ruler but, was attached to the‘Gaddi’ of the State of Rampur and thus, governed by law ofsuccession being rule of male priomogeniture i.e. senior most maleheir taking everything to the exclusion of all other heirs – Suitdismissed by the High Court – On appeal, held: Definition of rulerin Cl.(22) of Art.366 itself shows that the person who is defined asruler is a former prince, chief or other person, who was, on orafter 26.01.50 recognised as a ruler having signed the covenant ofaccession – Such person, though defined as a ‘Ruler’, had noterritory and exercised no sovereignty over any subjects – Theyhad no land other than the private properties – Since, they wererulers only as a matter of courtesy, to protect their erstwhile titles,the properties which were declared to be their personal propertieshad to be treated as their personal properties and could not be

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812SUPREME COURT REPORTS

Atreated as properties attached to the Gaddi – A Gaddi or rulershipand private property have two different connotations even in themerger agreement– Rulers enjoyed right to privy purses, privateproperties and privileges only because of the Constitution and inother respects they were ordinary citizens – Thus, on the death ofthe Ruler in 1966, succession to his private properties was governedBby personal laws – Undisputedly, if personal law is to apply thenthe 1937 Act will apply and since the Ruler was a Shia, his estatewill devolve under the Muslim personal law, as applicable to Shias– During the pendency of the suit, the plaint was amended fromtime to time because of the death of some of the defendants – AfterCthe amendment, the shares of all the legal heirs were worked out inpara 9-F of the plaint – These shares have not been disputed byany one and hence, are accepted to be correct – Parties entitled tothe property as per the shares set out in para 9-F of the plaintwhich shall form part of the decree – Judgments of Single Judgeand Division Bench of the High Court, set aside – Decree passed –DNo order in the Contempt Petition in view of the directions issued –Succession –Constitution of India– Art.366(2), 363(A), 291 –Government of India Act, 1935 – s.6.

Words & Expressions –’Gaddi’ – Meaning of – Discussed.

EAllowing the appeals, the Court

Conclusion

HELD : 1.1 The facts are not in dispute. It is also notdisputed that the Muslim Personal Law (Shariat) Application Act,1937 was applicable to the State of Rampur. The issue is whetherthe rulers continued to be rulers after executing the instrumentsFof merger. They had agreed to merge their States with the IndianUnion because they were to be paid privy purses and would enjoycertain privileges. They were also entitled to declare someproperties to be their private properties. In case of disputeswhether the property is private or State property, the Union couldrefer the dispute for decision to a committee headed by a judicialGofficer. The rulers were no longer sovereign. There was noparamountcy vested in the rulers. They had no land other thanthe private properties. They had no subjects. They were rulersonly in name, left only with the recognition of their original title,a privy purse, some privileges, etc. The rulers were rulers only H

in name. They held no land except the personal properties. Therewere no subjects. They were Maharajas or Rajas without aPraja; without any sovereignty; and without any territory.[Paras 12, 32, 33] [822-B-C; 833-B-C; F]

1.2 The definition of ruler in clause (22) of Article 366 ofthe Constitution itself shows that the person who is defined asruler is a former prince, chief or other person, who was, on orafter 26.01.1950 recognised as a ruler having signed the covenantof accession. Necessarily, the ruler was a person who wasrecognised before independence by the British Crown and wasthe sovereign of his State. Such person, though defined as a‘Ruler’, has no territory and exercises no sovereignty over anysubjects. He has no attributes of a potentate nor does he enjoyall the powers and privileges which are normally exercised by apotentate. The President while exercising his powers underArticle 366 (22) could not notify a ruler at his whims and fancy.Examples were also given where in cases of disputes, the samewere referred to committees comprising of the Chief Justices ofthe States and erstwhile rulers. However, the declaration underclause (22) of Article 366 relates only to the Gaddi or the rulershipand not to the properties which were declared to be privateproperties by the ruler. [Paras 34-36] [833-G-H; 834-A-E]

1.3 These were rulers without any subjects. These wererulers without any territory. These were so called rulers enjoyingcertain privileges and privy purses. They had been given thechoice of declaring certain properties to be their privateproperties and these private properties could not be said to beattached to the Gaddi. When they were actual sovereigns, theirentire State was attached to the Gaddi and not any particularproperty. There are no specific properties which can be attachedto the Gaddi. It has to be the entire ‘State’ or nothing. Since, it isheld that they were rulers only as a matter of courtesy, to protecttheir erstwhile titles, the properties which were declared to betheir personal properties had to be treated as their personalproperties and could not be treated as properties attached to theGaddi. In Rajpal Hindi Shabdkosh, Gaddi has been given variousmeanings including small mattress, seat of an exalted person, A

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Atitle of a ruler. In the Oxford Hindi-English Dictionary, themeanings given are cushion, throne, royal seat, etc. Property isnot mentioned as one of the attributes of a Gaddi. A Gaddi orrulership and private property have two different connotationseven in the merger agreement/instrument of accession. In Article2 of the agreement, it is clearly mentioned that Nawab wouldBcontinue to enjoy the same personal rights, privileges, immunitiesand dignities and other titles which he would have enjoyed priorto the agreement. Conspicuously, the word ‘property’ or‘personal property’ is missing. Article 2 deals only with personalrights, privileges, dignities, etc. Article 3 deals with privy purseCwhich would also be a part of the rulership or Gaddi. Article 6which deals with succession, guarantees the succession accordingto law and custom to the Gaddi of the State and to the Nawab’spersonal rights, privileges, immunities, dignities and title. Gaddiwould be the ‘throne’ or ‘title’ of Nawab in the context in which ithas been used and the personal rights, privileges, immunities,Ddignities and titles will be those referred to in Article 2. Theword ‘property’ is also conspicuously absent in Article 6.[Paras 37-39] [834-E-H; 835-A-D]

1.4 Article 4 states that the Nawab shall be entitled to fullownership, use and enjoyment of all private properties as distinctEfrom State properties. Such properties must belong to him as onthe date of agreement. Article 6 does not relate to the propertiesmentioned in Article 4 and the private properties would remainthe private properties of the Nawab as a common citizen of thecountry. On the death of the ruler, Nawab RAK in the year 1966,Fsuccession to his private properties was governed by personallaws. The succession to the estate of Nawab ‘RAK’ opened inthe year 1966, prior to the 26[th] Amendment Act. However, onething which is clear is that the rulers enjoyed right to privy purses,private properties and privileges only because of the Constitutionand in other respects they were ordinary citizens. It was urgedGthat since the rights were guaranteed under the Constitution,the rule of primogeniture would apply. No force in this contentionbecause in Article 362 reference is made only to the personalrights, privileges and dignities of the ruler of an Indian State and H

rights would not include succession to personal properties.[Paras 40, 41 and 42] [835-E-H; 836-A-B; H; 837-A-B]

1.5 The Trust, which has been referred to by the contestingdefendants, was created in the year 1944, much before the Nawabceded his property to the Dominion of India. At that time, therewas no doubt that succession to the properties of the State ofRampur would be governed by the rule of primogeniture. Evenafter Nawab ceased to be the ruler, he gifted a number of extensiveproperties to the defendant no.1 during his lifetime including aproperty known as Rafat Club in Rampur, which the defendantno.1 sold to the State of U.P. in 1961. The erstwhile Nawab alsogifted a property known as Kothi Bareilly and a house in Delhi todefendant no.1. Both the Division Bench and the Single Judgeheld that these properties gifted by the erstwhile Nawab to thedefendant no.1 were given to him only to maintain his status asthe ruler and, therefore, could not be taken into considerationwhile deciding the issue of succession of the erstwhile Nawab ofRampur. A contradiction is found in the findings of the High Courtin this regard. On the one hand, it is said that the plaintiff and theother family members cannot urge that the estate of the Nawabshould be governed by personal law because they have derivedbenefits from the Raza Trust and gifts in their life time and, onthe other hand, when it comes to the defendant no.1, it is saidthat the gifts were made only with a view that defendant no. 1should be able to maintain his status as the prospective heir. Ifhe was to get all the properties of the Nawab, then why gifts wouldhave to be made in his favour in his life time. Therefore, thiscontention is rejected. There is no dispute between the partiesthat if personal law is to apply then the Muslim Personal Law(Shariat) Application Act, 1937 will apply and since Nawab ‘RAK’was a Shia, his estate will devolve upon his heirs under theMuslim personal law, as applicable to Shias. [Paras 43, 44 and45] [837-C-H; 838-A-C]

1.6 During the pendency of the suit, the plaint was amendedfrom time to time because of the death of defendant no.1,defendant no.1/1 and defendant no.3. After the amendment, theshares of all the legal heirs were worked out in para 9-F of the ABC

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Aplaint. These shares have not been disputed by any one northere is any dispute with regard to the manner in which the shareshave been worked out. Therefore, these shares are accepted tobe correct. The parties shall be entitled to the property as perthe shares set out in para 9-F of the plaint which shall form a partof the decree. The judgments of Single Judge and Division BenchBof the High Court of Judicature at Allahabad are set aside, andthe shares of the properties are determined in terms of Para 9-Fof the plaint. A decree is passed. I.A. No. 3 of 2014 is dismissed.The applicants shall, however, be at liberty to file a Civil Suit toestablish their rights. [Paras 46-49] [838-D-F; 839-A-H;C840-A-B]

Visweshwar Rao v. The State of Madhya Pradesh[1952] SCR 1020 ; Sudhansu Shekhar Singh Deo v.State of Orissa [1961] 1 SCR 779 – relied on.

K. S. V. R. Singh v. Union of India & Ors. (1969) 3DSCC 150 : [1970] 2 SCR 631 ; Revathinnal B. Varmav. H. H. Padmanabha Dasa (1993) Supp. 1 SCC 233 :[1991] 3 Suppl. SCR 30 ; Pratap Singh v. Sarojini Devi(1994) Supp. 1 SCC 734 : [1993] 1 Suppl. SCR 607;Madhav Rao Scindia, Etc. v. Union of India (1971) 1ESCC 85 : [1971] 3 SCR 9; Raghunathrao Ganpatraov. Union of India (1994) Supp. (1) SCC 191 : [1993] 1SCR 480 – referred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1773of 2002.

From the Judgment and Order dated 22.01.2002 of the High Courtof Judicature at Allahabad in Special Appeal No. 976 of 1997.

With

C.A. No. 4012/2002, CONMT.PET.(C) No. 1079/2018 inC.A. No. 1773/2002.

Sudhir Chandra, Kailash Vasdev, Huzefa Ahmadi, A.K. Ganguli,Raju Ramachandran, Ms. Tehmina Punwani, Sr. Advs., Parijat Sinha,Ms. Shahrukh Alam, Gaurav Ghosh, Zulnoor Ali Ahemd, Rudra Dutta,Satish Vig, Ranbir Singh Yadav Praveen Agrawal, Ranbir Singh Yadav,Puran Mal Saini, Ms. Anzu K. Varkey, B. Rajesh, P. Kakra, Saurabh S.Sinha, Shankar N., Aditya Dev Triguna, Ranbir Singh Yadav, D. L.Chidananda, Ms. Rukhmini Bobde, Ms. Anil Katiyar, B.V. Balaram Das,Yatish Mohan, Ms. Vinita Y. Mohan, E.C. Vidya Sagar, Subhash ChandraSagar, Ms. Reshmi Rea Sinha, Devesh Mishra, Samar Ali Khan, AbhishekSingh, Satish Vig, Rameshwar Prasad Goyal, Deba Prasad Mukherjee,D.N. Goburdhan, Tarun Gupta, Imran Ali, Ms. Puja Sharma, Advs. forthe appearing parties.

The Judgment of the Court was delivered by DEEPAK GUPTA, J.

1. “Whether succession to the properties declared by an erstwhileruler to be his private properties in the agreement of accession with theDominion of India will be governed by the rule of succession applicableto the “Gaddi” (rulership) or by the personal law applicable to the ruler”,is the question for consideration in the present appeals.

2. The British Government decided to withdraw from the Indiansub-continent and the plan in this regard was published on 03.06.1947which envisaged the formation of two countries, India and Pakistan. Asper the Indian Independence Act, 1947 two independent Dominions –India and Pakistan were created. The ruling princes had the right todecide to which Dominion, India or Pakistan, they were to cede to.Section 6 of the Government of India Act, 1935 provided that aninstrument of accession was to be executed by the ruler of the State.Various rulers signed instruments of accession on various dates. Some A

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Aimmediately on 15.08.1947 and some much later. Some rulers voluntarilyceded their territories to the Indian Union and some had to be cajoled todo so. In the various talks held by the Indian Government and the princelyStates it was decided to give some privileges and perquisites to the rulers.The privileges which were to be granted to the rulers included exemptionfrom the operation of certain laws, the enjoyment of Jagirs and personalBproperties of the rulers, and members of their families, the payment bythe States of the marriage expenses of the brothers and sisters of therulers, immunity from some processes of courts of law, distinctive numberplates, gun salutes, etc.

3. Nawab Raza Ali Khan was the ruler of Rampur. The State ofCRampur merged into the Union of India. Merger Agreement was signedby 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 privateproperties (as distinguished from State properties) belonging to him andhe was required to furnish to the Dominion Government an inventory ofDsuch immovable properties etc. The Nawab vide orders (robkars) dated31.05.1949 and 27.06.1949 declared a number of properties to be hispersonal properties. In terms of the merger agreement, Rampur cededto the Dominion of India on 01.07.1949 and became a centrallyadministered Chief Commissioner’s Province. Nawab Raza Ali Khanwas declared to be a ruler in terms of clause (22) of Article 366 of theEConstitution of India, 1950. He expired on 06.03.1966. It is not disputedthat Nawab Raza Ali Khan died intestate.

4. The relevant provisions of the instrument of accession executedon 15.05.1949 between the Governor General of India and the Nawabof Rampur read as follows:F

“ARTICLE 2

The Nawab shall continue to enjoy the same personalrights, privileges, immunities, dignities and titles which he wouldhave enjoyed had this agreement not been made.

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ARTICLE 4

The Nawab shall be entitled to the full ownership, useand enjoyment of all private properties (as distinct from Stateproperties) belonging to him on the date of this agreement.

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The Nawab will furnish to the Dominion Governmentbefore the 30[th] June 1949 an inventory of all the immovableproperty, securities and cash balances held by him as such privateproperty.

If any dispute arises as to whether any item of propertyis the private property of the Nawab or State property, it shall bereferred to a judicial officer nominated by the Government ofIndia and the decision of that officer shall be final and binding onboth parties.

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ARTICLE 6

The Dominion Government guarantees the successionaccording to law and custom to the gaddi of the State and toNawab’s personal rights, privileges, immunities, dignities and titles.”

5. It may also be pertinent to mention that as per Article 1, theNawab ceded full executive authority, jurisdiction and powers for and inrelation to the governance of the State of Rampur and transferred all hispowers to the Dominion Government with effect from 01.07.1949. Article3 entitled the Nawab to receive a privy purse of Rs.7,00,000/- free fromtaxes. Under Article 5 all members of the Nawab’s family were entitledto privileges, dignities and titles as they enjoyed before 15.08.1947.Articles 8 and 9 are not relevant for the purpose of deciding this case.

6. It would also be pertinent to mention that after the instrumentof merger was executed, the Constitution of India was adopted on26.11.1949 and came into force on 26.01.1950. Article 291 of theConstitution of India, as it stood at the relevant time, provided that theruler of an Indian State would be entitled to privy purse sums as assuredby the Government of the Dominion of India. Article 362 provided thatwhenever Parliament or Legislature in exercise of their power makelaws or where the Union or States exercise the executive power, dueregard would be had to the guarantees or assurances given under anysuch covenant or agreement, which the ruler had entered into withDominion of India in respect to the personal rights, privileges and dignitiesof the ruler of an Indian State. Article 363 barred the jurisdiction of theCourts to entertain disputes arising out of such treaties, agreements,covenants, etc. entered into or executed before the commencement of A

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Athe Constitution by any ruler of an Indian State to which the Governmentof the Dominion of India or any of its predecessor government was aparty. In clause (22) of Article 366, Ruler was defined as follows:- “366. Definitions.- In this Constitution, unless the contextotherwise requires, the following expressions have the meaningsBhereby respectively assigned to them, that is to say- C

C(22) “Ruler” in relation to an Indian State means the Prince, Chiefor other person by whom any such covenant or agreement as isreferred to in clause (1) of Article 291 was entered into and whofor the time being is recognised by the President as the Ruler ofthe State, and includes any person who for the time being isDrecognised by the President as the successor of such Ruler;”

7. After the death of Nawab Raza Ali Khan, the President ofIndia in terms of clause (22) of Article 366 recognised his eldest sonNawab Syed Murtaza Ali Khan, defendant no. 1 (since deceased) to bethe ruler. None of the other parties challenged this declaration recognisingdefendant no.1 to be the ruler. On 01.04.1966 a certificate was issuedEin which defendant no. 1 was not only recognised as ruler of Rampurbut it was also certified that he was the sole successor to all privateproperties – movable and immovable – held by Late Nawab Raza AliKhan. The certificate was challenged by Syed Zulfiquar Ali Khan,defendant no. 3 (since deceased), the second son of Nawab Raza AliFKhan, by filing a writ petition before the High Court of Delhi. Threeother similar petitions were filed by the daughters of Nawab Raza AliKhan. The High Court of Delhi quashed the certificate vide judgmentdated 18.12.1969. The defendant no. 1 challenged the said judgment inthis Court.

G8. After the decision of the Delhi High Court dated 18.12.1969,the plaintiff who is the granddaughter of Nawab Raza Ali Khan filed asuit for partition, accounts, mesne profits in respect to the suit propertiesleft by Nawab Raza Ali Khan. On 28.12.1971, by the 26[th] Constitutionamendment, the Constitution of India was amended. Articles 291 and362 were repealed. Article 363A was added and the definition of rulerH

in clause (22) of Article 366 was amended. In view of the amendmentsso made, the plaintiff on 07.01.1972 withdrew the suit filed in the year1970 with liberty to file a fresh suit and, in fact, filed a fresh suit on thesame date. This suit was filed before the District Judge, Rampur andthe present proceedings arise out of the said suit. It would also bepertinent to mention that both in the suit filed in the year 1970 and in thesuit filed in the year 1972, the District Judge, Rampur had ordered thatthe defendant no. 1 would not transfer or otherwise dispose of theproperties till further orders of the court.

9. This Court, in the appeal filed by the defendant No. 1 againstthe judgment of the Delhi High Court, declined to interfere with theorder quashing the certificate due to the pendency of civil litigationbetween the parties for the same property. It further directed that thecertificate which had been quashed would not be set up by either partyin support of the claim of the plaintiff or the defendants in the suit whichhad been filed in the meantime. Therefore, this certificate cannot betaken into consideration while deciding these proceedings.

10. In January 1995, the said suit being O.S. No. 4 of 1972 waswithdrawn by the High Court of Allahabad and tried by itself. The learnedSingle Judge dismissed the suit on 31.07.1996. An appeal therefromwas heard by a Division Bench of the Allahabad High Court which videtwo separate concurring judgments dismissed the appeal. Hence, thepresent appeals.

11. From a perusal of the pleadings before the Trial Court, it isapparent that the case of the plaintiff was that the properties declaredby Nawab Raza Ali Khan to be his private properties in terms of themerger agreement were his private properties and all legal heirs wereentitled to a share in the property as per personal law. The plaintiff alsoasserted that the Muslim Personal Law (Shariat) Application Act, 1937was extended to the State of Rampur on 01.01.1950 and after cedingthe property to the Dominion of India and especially after the enforcementof the Constitution of India, Nawab Raza Ali Khan was a ruler only forthe purposes of enjoying the privy purse and some personal rights,privileges, immunities, dignities and titles, but for all other purposesincluding succession, he was an ordinary citizen of the country. On theother hand, the case of the defendants was that the property was not,strictly speaking, the personal property of the Nawab. According to thecontesting defendants, the property was attached to the ‘Gaddi’ of the AB

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AState of Rampur and, therefore, it was governed by the law of successionwhich was admittedly applicable to the rulership of Rampur which wasthe rule of male lineal primogeniture which basically means that thesenior most male heir takes everything to the exclusion of all other heirs.It was also urged that the property was an impartible estate and,therefore, the rule of primogeniture would govern the same.B

12. The facts are not in dispute. It is also not disputed that theMuslim Personal Law (Shariat) Application Act, 1937 was applicable tothe State of Rampur. The only issue to be decided is whether theproperties held by Nawab Raza Ali Khan would devolve on his eldestson by applying the rule of primogeniture or would be governed by MuslimCPersonal Law (Shariat) Application Act, 1937 and devolve on all hislegal heirs.

13. Mr. Sudhir Chandra, learned senior counsel appearing on behalfof the original plaintiff submits that the High Court erred in coming to theconclusion that the personal law was not applicable and the property ofDthe Nawab had to be governed by the rule of primogeniture, in view ofthe fact that he was a ruler recognised by the Constitution. In support ofhis contention, Mr. Chandra relied upon various judgments, on theinterpretation of the merger agreement and also on the various provisionsof the Constitution.E

14. The first Constitution Bench judgment relied upon by Mr.Chandra is Visweshwar Rao v. The State of Madhya Pradesh[1]. Inthat case, some portion of the properties belonging to the ruler and declaredas private properties in the covenant of merger were sought to be takenover by the State under the Central Provinces & Berar Abolition ofFProprietary Rights (Estates, Mahals, Alienated Lands) Bill, 1949. O n eof the challenges was that the property of the Maharaja declared to behis private property could not be taken over by the State as it contravenedthe provision of Article 362 of the Constitution. Justice M.C. Mahajan,dealing with the said contention held as follows:

G“It is true that by the covenant of merger the properties of thepetitioner became his private properties as distinguished fromproperties of the State but in respect of them he is in no betterposition than any other owner possessing private property. Article

362 does not prohibit the acquisition of properties declared asprivate properties by the covenant of merger and does notguarantee their perpetual existence. The guarantee contained inthe article is of a limited extent only. It assures that the Rulers’properties declared as their private properties will not be claimedas State properties. The guarantee has no greater scope thanthis. That guarantee has been fully respected by the impugnedstatue, as it treats those properties as their private properties andseeks to acquire them on that assumption……….”

Justice Das in his concurring judgment held as follows:- “The guarantee or assurance to which due regard is to be had islimited to personal rights, privileges and dignities of the Ruler quaa Ruler. It does not extend to personal property which is differentfrom personal rights.”

15. The next judgment relied upon is Sudhansu Shekhar SinghDeo v. State of Orissa[2]. The facts of this case were that the ruler ofthe erstwhile State of Sonepur, executed a merger agreement with theDominion of India, the terms of which were identical to the Rampurmerger agreement. Agricultural income in the State of Orissa wassubjected to taxation under the provisions of the Orissa AgriculturalIncome Tax Act, 1947. The ruler of Sonepur filed a petition and contendedthat as ruler of the State, before merger of the State, he was immunefrom liability of taxation in respect of his private properties both withinhis territory and outside. It was claimed that as far as the propertieswithin his State were concerned, he being the Sovereign was not liableto pay any tax and as far as the properties outside the State wereconcerned, he was not liable to pay tax in view of the provisions of theInternational Law. According to him, since his privileges and immunitieswere protected by the merger agreement, he could not be asked to paytax. Repelling his contention, the Constitution Bench of this Court heldas follows:

“…..The privileges guaranteed by Arts. 4 and 5 are personalprivileges of the appellant as an ex-Ruler and those privileges donot extend to his personal property……”

2 (1961) 1 SCR 779

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A16. Mr. Sudhir Chandra, learned senior counsel for the appellantplaced strong reliance on the judgment of this Court in K. S. V. R. Singhv. Union of India & Ors.[3], hereinafter referred to as ‘the Dholpurcase’. The facts were that when the Dholpur State merged in the Unionof India, Maharaja Udaibhan Singh was the recognised ruler of the State.He executed the covenant of merger and there was a provision in theBcovenant permitting him to declare his private properties and to enjoythem as his private properties. Raja Udaibhan Singh died on 22.10.1954.He did not leave behind him any direct male heir. He left behind awidow and a daughter who was married to the Maharaja of Nabha. Hiswidow adopted his grandson i.e. daughter’s son who was declared to beCthe successor of the Maharaja. On the other hand, the petitioners claimedthat they were the sons of the younger brother of the Maharaja and,thus, entitled to inherit his property by applying the rule of male linealprimogeniture. The dispute, as to who should be declared to be the rulerof Dholpur, was referred to a Committee headed by the then Chief Justiceof the Rajasthan High Court (Hon’ble Mr. Justice K. N. Wanchoo).DThis Committee recommended that the adopted son of the widow oflate ruler, Maharaja Rana Shri Hemant Singh be declared as the ruler ofDholpur. This recommendation was accepted by the Union Governmentand the President of India, in terms of clause (22) of Article 366, declaredMaharaja Rana Shri Hemant Singh as the ruler of Dholpur.E17. Thereafter, the nephews of the late ruler filed a petition inwhich it was urged that the estate left behind by Rana Udaibhan Singh,the ruler of Dholpur was an impartible estate and was to be governed bythe rule of male lineal primogeniture. It was contended that as per theterms of the merger agreement, the Dominion Government hadFguaranteed succession according to the law of succession of the ‘Gaddi’of the State and, therefore, the petitioners were entitled to be declaredrulers and also entitled to the property. The Constitution Bench held asfollows:

“6.…..It is manifest that the right to private properties of the lastGRuler depends upon the personal law of succession to the saidprivate properties. The recognition of the Ruler is a right to succeedto the gaddi of the Ruler. This recognition of Rulership by thePresident is an exercise of political power vested in the President and is thus an instance of purely executive jurisdiction of thePresident. The act of recognition of Rulership is not, as far as thePresident is concerned, associated with any act of recognition ofright to private properties……”

The Court also held as follows:

“9. The recognition of Rulership is one of personal status. It cannotbe said that claim to recognition of Rulership is either purely amatter of inheritance or a matter of descent by devolution. Norcan claim to recognition of Rulership be based only on covenantsand treaties. That is why Article 363 of the Constitution constitutesa bar to interference by Courts in a dispute arising out of treatiesand agreements. No claim to recognition of Rulership by virtue ofa Covenant is justiciable in a Court of law. The Constitution,therefore, provided for the act of recognition of the Rulership bythe President as a political power.

10. It has to be recognised that the right to private properties ofthe Ruler is not embraced within clause (22) of Article 366 of theConstitution which speaks of recognition of a Ruler by thePresident.

11. Counsel on behalf of the petitioner contended that therecognition of a Ruler itself instantaneously invested the Rulerwith property and that Rulership and property were blendedtogether. An illustration of combination of office and property inthe case of Mathadhapati was cited as an analogy. The propertyis an appendage to the office in the case of Maths. The exampleof the office of a trustee furnishes the answer where office andproperties are vested in the trustee. It cannot be said thatrecognition of Rulership is bound up with recognition of privateproperties of the Ruler because the former is within the politicalpower of the President and the latter is governed by the personallaw of succession. Recognition of Rulership by the President isnot recognising any right to private properties of the Ruler becauserecognition of Rulership is an exercise of the political power ofthe President. The distinction between recognition of Rulershipand succession to private properties of the Ruler has to be kept inthe forefront. The rights to private properties of Rulers are notthe matters of recognition of Rulership. The recognition of A

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ARulership is not an indicia of property but it entitles the Ruler tothe enjoyment of the Privy Purse contemplated in Article 291 andthe personal rights, privileges and dignities of the Ruler of an IndianState mentioned in Article 362 of the Constitution. Therefore,recognition of Rulership is not a deprivation of right to property. Ifthe petitioner has any claim to any private property said to belongBto the last Ruler, the petitioner has not established any such claimin any court of law. It was said on behalf of the petitioner that theRuler after recognition by the President came to possess privateproperties said to belong to the last Ruler. If the petitioner has anycompeting rights with the Ruler in relation to such private propertiesCsuch a claim is neither a fundamental right nor is it comprised inthe act of recognition of a Ruler by the President.”

18. A decision of three-Judge Bench of this Court in the case ofRevathinnal B. Varma v. H. H. Padmanabha Dasa[4], hereinafterreferred to as ‘the Travancore case’, has been relied upon by both theDsides. The facts of this case are that Shri Padmanabha Dasa BalaRama Verma was the Maharaja of Travancore and the sovereign rulerthereof. The State of Travancore merged with the erstwhile CochinState and became a part of the territory of the Dominion of India w.e.f.01.07.1949. A covenant was entered into by the Maharaja with theUnion of India, the terms of which are similar and the properties whichEwere subject matter of the dispute were declared to be the privateproperties of the Maharaja. A suit was filed by Revathinnal BalagopalaVarma, one of the family members of the Maharaja in which it wasclaimed that the Maharaja was not the sole owner of these propertieseven though they were declared to be the private properties of the ruler.FIt was urged that the ruler held these properties as Karnavan of anundivided marumakkathayam tarwad or a sthanee of an impartibleestate. The argument raised was that the properties comprised animpartible estate. Though succession to the estate was earlier governedby the rule of primogeniture, in view of the fact that the Maharaja had ceased to be the ruler on 01.07.1949, the properties became propertiesGof the family or tarwad to which the ruler belonged and, therefore, theimpartible estate became a partible estate when the Hindu SuccessionAct, 1956 came into force on 17.06.1956.

19. It was not disputed that as far as the position before accessionwas concerned the properties devolved from ruler to ruler by applyingthe rule of primogeniture. This Court negated the argument holding thatafter signing of the merger agreement, the properties became the privateproperties of the Maharaja and did not belong to an undivided family. Itwas held that when the Maharaja was the sovereign of the State ofTravancore, he could exercise his sovereign rights of ownership on allthe properties and there was no distinction between private propertiesand properties of the State. No distinction could be drawn betweenprivate properties and properties of the State on the principle that asovereign never dies and the succession to the next ruler takes placewithout there being a hiatus. However, keeping in view the fact that theMaharaja had declared the properties in dispute to be his privateproperties, the claim of the plaintiffs that the suit property was jointfamily property, was rejected. It was held that the properties were theprivate properties of Maharaja, as asserted by him.

20. On this issue, Mr. A. K. Ganguli, learned senior counselappearing for the legal heirs of contesting defendant no. 1, has placedstrong reliance on the judgment of this Court in Pratap Singh v. SarojiniDevi[5], hereinafter referred to as ‘the Nabha case’. In this case, thisCourt was dealing with two different proceedings though decided by thesame judgment. Nabha was a princely State and Maharaja RipudamanSingh was the ruling chief of Nabha State in the early 20s of the 20[th]century. The British Government withdrew his powers as ruler in theyear, 1923. In 1928, the Maharaja was formally deposed from the Gaddiand exiled. He, thereafter, resided in Kodaikanal in Tamil Nadu till hisdeath in 1942. He left behind his wife Sarojini Devi, three sons - PratapSingh, Kharagh Singh, Gurbaksh Singh and two daughters Kamla Deviand Vimla Devi. The eldest son Pratap Singh was recognised by theBritish Government as the ruler of Nabha and he later entered into anagreement of merger with the Dominion of India. Sterling Castle wasmentioned in the list of his private properties.

21. It would be pertinent to mention here that the BritishGovernment had placed restrictions on the rulers with regard to thepurchase of properties outside their own State. A property known as‘Sterling Castle’ situated in Shimla was purchased by Maharaja 5 (1994) Supp. 1 SCC 734

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ARipudaman Singh in the name of his friend Dr. Tehl Singh on 21.12.1921when he was still the Maharaja. On 30.04.1952, Dr. Tehl Singh executeda relinquishment deed and conferred title of the property upon the threesons and widow of Maharaja Ripudaman Singh. Pratap Singh as therecognised ruler claimed absolute rights on the property and denied thetitle of the other heirs of Maharaja Ripudaman Singh. It was allegedBthat this property was purchased out of the funds of Nabha State andthe properties were the properties of Maharaja Ripudaman Singh and,therefore, governed by the rule of primogeniture. Sarojini Devi, KharaghSingh and minor children of Gurbaksh Singh filed a suit for partition, etc.with regard to the property. The suit was tried on the original side of theCHigh Court of Himachal Pradesh. It was held that the property waspurchased benami by Maharaja Ripudaman Singh. The learned SingleJudge held that the rule of primogeniture would not be applicable to thepersonal property of the Maharaja and would only be applicable to theproperty of the State. In appeal filed by Pratap Singh, the DivisionBench of the High Court held that it had not been established that theDproperty was purchased out of the personal funds of Maharaja RipudamanSingh and, therefore, was not the personal property and hence, the suitwas dismissed and the appeal was allowed.

22. The other appeal decided by the same judgment relates to aproperty situate in Civil Lines, Delhi. A suit was filed by Pratap SinghEagainst his mother, two brothers and two sisters. This property waspurchased in 1922 in the name of one Gurnarain Singh Gill, but wasmanaged by the officials of Nabha State. This property was declared tobe the personal property of Pratap Singh, when he signed the instrumentof accession and on the basis, that this was his private property, suit forFpossession was filed. The learned Single Judge held that the propertywas of Nabha State and was not the personal property of MaharajaRipudaman Singh and the suit was decreed. The Division Bench setaside the judgment of the learned Single Judge holding that the propertywas the personal property of Maharaja Ripudaman Singh and on hisdeath, devolved as per personal law, upon his sons. The widow wasGheld entitled to some share under the Hindu Women’s Right to PropertyAct, 1937. The suit was accordingly dismissed.

23. Dealing with the issue as to who was the original owner of theproperties, this Court held that when Maharaja Ripudaman Singh wasthe ruler, he was the sovereign and exercised paramount power over theH

entire State of Nabha. All properties vested in him and there was nodistinction between State and personal properties. Reliance was placedupon Para 157 of the White Paper on Indian States which reads asfollows:

“57.….In the past the Rulers made no distinction between privateand State property; they could freely use for personal purposesany property owned by their respective States. With the integrationof States it became necessary to define and demarcate clearlythe private property of the Ruler. The settlement was a difficultand delicate task calling for detailed and patient examination ofeach case. As conditions and customs differed from State to State,there were no precedents to guide and no clear principles to follow.Each case, therefore, had to be decided on its merits.”

This Court further held that the rule of impartibility andprimogeniture in relation to the zamindari or other impartible estates mustbe established by proving the custom, but in the case of a sovereignruler, they are presumed to exist. It was also observed that no distinctioncould be drawn between the public and private property of the ruler.This Court further went on to hold that there was no rulership in Indiaafter India became a Republic on 26.01.1950 “but if the estate isimpartible in nature it would continue to be governed by the rule ofprimogeniture”.

24. Article 12 of the instrument of merger of Nabha State isvirtually identical to Article 4 of Exhibit 4. This Court in the Nabhacase held as follows:

“78. A careful reading of Article XII shows that there is a cleardistinction between the private properties and the State properties.Such private properties must be belonging to the Ruler and mustbe in his use and enjoyment even earlier. Therefore, propertieswhich were recognised even earlier as such private propertiesalone were to be left out and submitted for the recognition assuch. As stated in White Paper (para 157, page 23 supra), thedemarcation and the settlement of the list was carried out for thepurposes of Integration. If this be the correct position of law, thecontrary observations of the learned Single Judge are not correct.”

25. We are of the view that the observations made above runcounter to what was held in the earlier part of the judgment where in the A

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Asame judgment it was held that no distinction could be drawn betweenthe public and private properties of the ruler. If no such distinction couldbe drawn, the question of any properties being recognised as the privateproperties of the ruler prior to the State ceding to the Dominion of Indiadoes not arise.B26. This Court held that both the properties at Shimla and Delhiwere State properties and not the personal properties of MaharajaRipudaman Singh and, therefore, governed by the rule of primogeniture.

27. At the outset, we may note that both in the Travancore caseand the Nabha case, the suits had been filed in the lifetime of the rulers,Cwho had ceded the State to the Indian Union. The collaterals of therulers filed suits trying to establish their right on the property contendingthat 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 contestingdefendants can get no benefit from this decision. It, in fact, supports thecase of the appellants inasmuch as it held that the property in questionDwas the personal property of the Maharaja of Travancore and, therefore,not subject to partition. As far as the Nabha case is concerned, wehave given the facts of that case in detail to show that the main disputewas whether the properties were purchased by Maharaja RipudamanSingh out of his own personal funds or from the funds of Nabha State.EThis Court held that there could be no distinction between the private orpersonal properties when the Maharaja was the sole sovereign. AsMaharaja Ripudaman Singh was the Sovereign till his powers were takenaway in 1923, and before he was finally deposed in 1928, both theproperties at Shimla and Delhi were purchased when he was the Maharajaand it was a finding of fact that these properties were purchased out ofFthe State funds. These properties also found mention in the list ofproperties declared to be the private properties of Maharaja Pratap Singhin the instrument of merger. The disputes arose when Maharaja PratapSingh was still the ruler and was alive. The question of succession hadnot opened. The court held that the properties being the personalGproperties of the Maharaja, could not be subjected to partition. We may,however, observe that there is a fleeting remark that the property formedpart of an impartible estate and therefore, would be governed by the ruleof primogeniture. In our view, this question did not arise for considerationand this Court did not decide the question as to whether the impartibleestate continued to exist after the ruler ceased to be a ruler.H

28. The other two judgments relate to issues not of succession,but in both the judgments it was held that after 1950 ‘ruler’ for all purposeswould own these properties like any other common citizen. InVisweshwar Rao case (supra) it was clearly held that the guaranteesor assurances were limited to the personal rights, privileges and dignitiesof the ruler qua a ruler and do not extend to his personal property.Similar observations were made in the case of Sudhansu Shekhar SinghDeo (supra).

29. The High Court relied on certain observations in the case ofMadhav Rao Scindia, Etc. v. Union of India[6], which is commonlyreferred to as ‘the Princes Privy Purses case’. This case mainly dealtwith the issue as to what are the executive powers of the State andwhether the Union by executive directions could withdraw the privypurses and other privileges which had been guaranteed to the rulers.The Court held that the executive had no power to flout the mandate ofthe Constitution and since the guarantees given by the agreements hadbeen recognised in the Constitution, they could not be taken away by theexecutive orders.

30. The High Court held that the judgment in the Dholpur casehad been reversed in the Princes Privy Purses case. We are unable toagree with this finding of the High Court. In the Dholpur case, thisCourt held that recognition of rulership by the President is an exercise of“political” power vested in the President. It was urged in the PrincesPrivy Purses case that even the notification issued withdrawing theprivy purses was in exercise of the “political” power and, therefore, thecourt could not interfere in the same. What was held in the PrincesPrivy Purses case with regard to these observations was that in theDholpur case, the Court had improperly used the words “politicalpower”. Justice J.C. Shah in the Princes Privy Purses case, dealingwith the Dholpur case held as follows:

“98..….In Kunvar Shri Vir Rajendra Singh v. Union of Indiaand Others, 1969 (3) SCC 150, this Court negatived the claimof an applicant that his right to property was violated because thePresident accepted another claimant to the Gaddi of Dholpur asRuler, observing that the recognition of Rulership by the President,in exercise of his political power, did not amount to recognition of AB

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any right to private properties of the Ruler. The Court did notattempt to classify the exercise of the Presidential function underArticle 366(22) as distinct from executive functions; that is clearfrom the dictum that the exercise of the President’s power was“an instance of purely executive function”

BJustice Shah, dealing with this argument held as follows:

“141….It is difficult to regard a word or a clause occurring in ajudgment of this Court, divorced from its context, as containing afull exposition of the law on a question when the question did notfall to be answered in that judgment.”

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Justice K.S. Hegde, who was also a Member of the Bench whichdecided the Dholpur case, dealing with this contention, held as follows:

“178. What is said in that case is that the President while actingunder Article 366(22) is exercising his executive jurisdiction andthat jurisdiction was described as “political power”. That expressionDmay be inappropriate but that is not the ratio of the decision. Itwas a casual observation. There is nothing like political powerunder our Constitution in the matter of relationship between theexecutive and the citizens. Our Constitution recognises only threepowers, viz. the legislative power, the judicial power and theEexecutive power. It does not recognise any other power. In ourcountry the executive cannot exercise any sovereignty over thecitizens. The legal sovereignty in this country vests with theConstitution and the political sovereignty is with the people of thiscountry. The executive possesses no sovereignty……”

Justice G.K. Mitter, dealing with the same contention, held thatFthough some observations support the contention of the Attorney General,but they must be limited to the facts of that case. The appellant in theDholpur case did not claim any right to the Gaddi but only to the privateproperties of the deceased ruler and the notification issued under clause(22) of Article 366 of the Constitution did not deal with the privateGproperties.

31. In our view, the judgment in the Dholpur case cannot be saidto have been set aside or upset in the Princes Privy Purses case. Whatwas held was that use of the expression ‘political power’ in the Dholpurcase was inappropriate and the appropriate words should have been H

‘executive power’. In fact, in the Dholpur case, the very next part ofthe sentence reads “and is thus an instance of purely executivejurisdiction of the President”. This clearly shows that the observationsin the Princes Privy Purses case would have no impact on the ratio ofthe judgment in the Dholpur case.

32. The issue is whether the rulers continued to be rulers afterexecuting the instruments of merger. They had agreed to merge theirStates with the Indian Union because they were to be paid privy pursesand would enjoy certain privileges. They were also entitled to declaresome properties to be their private properties. In case of disputes whetherthe property is private or State property, the Union could refer the disputefor decision to a committee headed by a judicial officer. The rulerswere no longer sovereign. There was no paramountcy vested in therulers. They had no land other than the private properties. They had nosubjects. They were rulers only in name, left only with the recognitionof their original title, a privy purse, some privileges, etc.

Chief Justice M. Hidayatullah (as he then was) in his inimitableway in the Princes Privy Purses case pithily held as follows:- “40…….Paramountcy as such was no more as there was noparamount power and no vassal. The Rulers had lost theirterritories and their right to rule and administer them. They wereleft only a recognition of their original title, a Privy Purse, theirprivate properties and a few privileges. These rights were theonly indicia of their former sovereignty but they enjoyed them bythe force of the Constitution although in every respect they wereordinary citizens and not potentates…….”

33. It is apparent that the rulers were rulers only in name. Theyheld no land except the personal properties. There were no subjects.They were Maharajas or Rajas without a Praja; without any sovereignty;and without any territory.

34. The definition of ruler in clause (22) of Article 366 of theConstitution itself shows that the person who is defined as ruler is aformer prince, chief or other person, who was, on or after 26.01.1950recognised as a ruler having signed the covenant of accession.Necessarily, the ruler was a person who was recognised beforeindependence by the British Crown and was the sovereign of his State.Such person, though defined as a ‘Ruler’, has no territory and exercises A

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Ano sovereignty over any subjects. He has no attributes of a potentatenor does he enjoy all the powers and privileges which are normallyexercised by a potentate. As Justice Shah in the Princes Privy Pursescase judgment held, “he is a citizen of India with certain privilegesaccorded to him because he or his predecessor had surrendered histerritory, his powers and his sovereignty”.B

35. The President while exercising his powers under Article 366(22) could not notify a ruler at his whims and fancy. As held in thePrinces Privy Purses case:- “288…..The choice of a person as a Ruler to succeed anotherCon his death was certainly not left to the mere caprice of thePresident. He had to find out the successor and this he could donot by applying the ordinary rules of Hindu Law or MohamadanLaw but by the law and custom attaching to the Gaddi of aparticular State…..”

D36. Examples were also given where in cases of disputes, thesame were referred to committees comprising of the Chief Justices ofthe States and erstwhile rulers. However, it is clear that the declarationunder clause (22) of Article 366 relates only to the Gaddi or the rulershipand not to the properties which were declared to be private propertiesby the ruler.E

37. It was contended by Mr. Ganguli that there could be no Gaddiwithout a property and the properties which were declared to be theprivate properties were, in fact, attached to the Gaddi and the propertieswould be of the ruler so declared. We find no force in this submission.These were rulers without any subjects. These were rulers without anyFterritory. These were so called rulers enjoying certain privileges andprivy purses. They had been given the choice of declaring certainproperties to be their private properties and these private properties couldnot be said to be attached to the Gaddi. When they were actualsovereigns, their entire State was attached to the Gaddi and not anyGparticular property. There are no specific properties which can beattached 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, toprotect their erstwhile titles, the properties which were declared to betheir personal properties had to be treated as their personal propertiesand could not be treated as properties attached to the Gaddi.

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38. Mr. Chandra has drawn our attention to the Rajpal HindiShabdkosh[7] in which Gaddi has been given various meanings includingsmall mattress, seat of an exalted person, title of a ruler. In the OxfordHindi-English Dictionary[8], the meanings given are cushion, throne, royalseat, etc. Property is not mentioned as one of the attributes of a Gaddi.

39. A Gaddi or rulership and private property have two differentconnotations even in the merger agreement/instrument of accession. InArticle 2 of the agreement, it is clearly mentioned that Nawab wouldcontinue to enjoy the same personal rights, privileges, immunities anddignities and other titles which he would have enjoyed prior to theagreement. 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 therulership or Gaddi. Article 6 which deals with succession, guaranteesthe succession according to law and custom to the Gaddi of the Stateand to the Nawab’s personal rights, privileges, immunities, dignities andtitle. Gaddi would be the ‘throne’ or ‘title’ of Nawab in the context inwhich 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 6.

40. Article 4 states that the Nawab shall be entitled to full ownership,use and enjoyment of all private properties as distinct from Stateproperties. Such properties must belong to him as on the date ofagreement. In our view, Article 6 does not relate to the propertiesmentioned in Article 4 and the private properties would remain the privateproperties of the Nawab as a common citizen of the country as held invarious authorities referred to above. We have, therefore, no hesitationin holding that on the death of the ruler, Nawab Raza Ali Khan in theyear 1966, succession to his private properties was governed by personallaws.

41. Mr. A.K. Ganguli, placed reliance upon the observations inthe case of Raghunathrao Ganpatrao v. Union of India[9], hereinafterreferred to as ‘the second privy purses case’. In this case, the erstwhilerulers challenged the 26[th] Amendment, 1971 of the Constitution whereby 7 Rajpal Hindi Shabdkosh, Dr. Hardev Bahri, Rajpal & Sons, Pg.206 (2018)8 Oxford Hindi-English Dictionary, Edited by R.S. McGregor, Oxford University Press,Pg.254 (2018)9 1994 Supp. (1) SCC 191

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Athe benefits given to the rulers, as enshrined in the Constitution in Articles291 and 362 mentioned hereinabove, were taken away. This was doneafter the judgment in the first Princes Privy Purses case wherein itwas held that the guarantees, given to the erstwhile rulers having beenembodied in the Constitution, could not be taken away by executive fiat.Thereafter, the Parliament amended the Constitution and it was in thisBcontext that the following observations were made:

“74. The agreements entered into by the Rulers of the Stateswith the Government of India were simple documents relating tothe accession and the integration and the “assurances andguarantees” given under those documents were only for theCfixation of the privy purses and the recognition of the privileges.The guarantees and the assurances given under the Constitutionwere independent of those documents. After the advent of theConstitution, the Rulers enjoyed their right to privy purses, privateproperties and privileges only by the force of the Constitution andDin other respects they were only ordinary citizens of India like anyother citizen; of course, this is an accident of history and with theconcurrence of the Indian people in their Constituent Assembly.

75. Therefore, there cannot be any justification in saying that theguarantees and assurances given to the Rulers were sacrosanctEand that Articles 291 and 362 reflected only the terms of theagreements and covenants. In fact as soon as the Constitutioncame into force, the Memoranda of Agreements executed andratified by the States and Union of States were embodied in formalagreements under the relevant articles of the Constitution and noobligation flowed from those Agreements and Covenants but onlyFfrom the Constitutional provisions. To say differently, after theintroduction of Articles 291 and 362 in the Constitution, theAgreements and Covenants have no existence at all. Thereference to Covenants and Agreements was casual andsubsidiary and the source of obligation flowed only from theGConstitution. Therefore, the contention urged on the use of thewords ‘guaranteed’ or ‘assured’ is without any force and absolutelyuntenable.”

42. We are not stricto sensu dealing with this issue because thesuccession to the estate of Nawab Raza Ali Khan opened in the year H

1966, prior to the 26[th] Amendment Act. However, one thing which isclear is that the rulers enjoyed right to privy purses, private propertiesand privileges only because of the Constitution and in other respectsthey were ordinary citizens. It was urged that since the rights wereguaranteed 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, privilegesand dignities of the ruler of an Indian State and, in our view, rights wouldnot include succession to personal properties.

43. Another argument raised on behalf of the contesting defendantsis that Nawab Raza Ali Khan, knowing that his succession was governedby the rule of primogeniture, had created a trust named ‘The Raza Trust’for the welfare of his family members other than defendant no. 1. Hehad also made various other grants and gifts in favour of his childrenwhereas the elder son was deprived of such benefits. It is contendedthat the plaintiff and the other defendants supporting the plaintiff hadtaken benefit of the said Trust and gifts and, therefore, cannot challengethe entitlement of defendant no. 1. This argument cannot be accepted.We have only to decide what was the legal entitlement of the legal heirsand in what manner the succession to the estate of late Nawab Raza AliKhan was to be governed. We may also mention that the Trust, whichhas been referred to by the contesting defendants, was created in theyear 1944, much before the Nawab ceded his property to the Dominionof India. At that time, there was no doubt that succession to the propertiesof 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 extensiveproperties to the defendant no. 1 during his lifetime including a propertyknown as Rafat Club in Rampur, which the defendant no. 1 sold to theState of U.P. in 1961. The erstwhile Nawab also gifted a propertyknown as Kothi Bareilly and a house in Delhi to defendant no. 1.Both the Division Bench and the learned Single Judge held that theseproperties gifted by the erstwhile Nawab to the defendant no. 1 weregiven to him only to maintain his status as the ruler and, therefore, couldnot be taken into consideration while deciding the issue of succession ofthe erstwhile Nawab of Rampur.

44. We find a contradiction in the findings of the High Court inthis regard. On the one hand, it is said that the plaintiff and the other AB

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Afamily members cannot urge that the estate of the Nawab should begoverned by personal law because they have derived benefits from theRaza Trust and gifts in their life time and, on the other hand, when itcomes to the defendant no. 1, it is said that the gifts were made onlywith a view that defendant no. 1 should be able to maintain his status asthe prospective heir. If he was to get all the properties of the Nawab,Bthen 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 isto apply then the Muslim Personal Law (Shariat) Application Act, 1937will apply and since Nawab Raza Ali Khan was a Shia, his estate willCdevolve upon his heirs under the Muslim personal law, as applicable toShias.

46. During the pendency of the suit the plaint was amended fromtime to time because of the death of defendant no. 1, defendant no.1/1and defendant no.3. After the amendment, the shares of all the legalDheirs were worked out in para 9-F of the plaint. These shares have notbeen disputed by any one nor there is any dispute with regard to themanner in which the shares have been worked out. Therefore, theseshares are accepted to be correct. The parties shall be entitled to theproperty as per the shares set out in para 9-F of the plaint which shallEform a part of the decree.

47. In view of the above discussions, we allow the appeals, setaside the judgments of learned Single Judge and Division Bench of theHigh Court of Judicature at Allahabad, and determine the shares of theproperties in terms of Para 9-F of the plaint. The appeals are acceptedFand a decree is passed in the following terms:-

(1) The parties shall be entitled to succeed to the properties oflate Nawab Raza Ali Khan, set out in Schedules A and B to theplaint, as per personal law and in the shares set out in para 9-F ofthe amended plaint.

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(2) The first effort shall be to divide the immovable properties(set out in Schedule A to the plaint) as per the respective shares,by metes and bounds and for this purpose the Trial Court mayappoint a Commissioner to assist it.

(3) In case the division of the immovable properties (set out inSchedule A to the plaint) is not feasible by metes and bounds theTrial Court shall fix the owelty money and follow the procedureprescribed by law so that at the first instance efforts are made tokeep the properties within the family.

(4) To evaluate the value of moveable properties left behind byNawab Raza Ali Khan (set out in Schedule B to the plaint), wedirect the Trial Court to appoint a Commissioner. Propertiesshall also be divided as per the shares and if that is not feasibleowelty money will be fixed.

(5) Prayer for decree of mesne profits is rejected since no evidencehas been led in this regard.

(6) The defendant no.1/2 and defendant no. 1/3 shall renderaccounts in respect of the incomes, profits, usufructs and benefitsinherited by them or enjoyed by deceased defendant no.1 anddeceased defendant no. 1/1. These shall be adjusted whiledetermining the value of the properties falling to their shares andalso the owelty money.

(7) The Trial Court shall also determine whether the defendantno.1 (since deceased), defendant no.1/1 (since deceased),defendant no.1/2 or defendant no.1/3 have sold or transferredany movable property or immovable property during the pendencyof these proceedings. The value of such immovable property ormovable property sold or transferred shall obviously be deductedfrom the shares of defendant no.1 /2 and defendant no.1/3.

(8) We direct all the parties to appear before the District Judge,Rampur on 02.09.2019 and request the District Judge, Rampur tokeep the case on his docket and proceed further. The DistrictJudge may first try to impress upon the parties to make the actualdivision of the properties by settlement by mutual agreement sincethe main dispute with regard to the rule of succession and theshares has been determined.

(9) As the suit has been pending for almost half a century and theparties have been litigating for more than 5 decades and some ofthe parties are at an advanced age, we direct the trial court todispose of the matter in terms of our directions above at the earliestbut, in any case, not later than 31.12.2020.

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A48. I.A. No. 3 of 2014 is dismissed. The applicants shall, however,be at liberty to file a Civil Suit to establish their rights.

49. No order in the Contempt Petition in view of the directionsissued.

50. All other applications are disposed of. No order as to costs.B

Divya Pandey

Appeals allowed.

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