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Andhra Pradesh High Court
Judges : S.MADHUSUDAN RAO, S.OBUL REDDY
Nawab Mir Barkat Ali Khan - Appellant
Versus
Nawab Zulfiquar Jah Bahadur - Respondent
Decided On : 11-20-74
INJUNCTION - TEMPORARY INJUNCTION - PRINCIPLES - PRIMA FACIE CASE - BALANCE OF CONVENIENCE - IRREPARABLE INJURY - SUIT FOR PARTITION OF PROPERTIES - CLAIM OF LEGITIMACY - GIFT DEEDS - NOMINALITY - DELAY - EQUITABLE RELIEF - DISCRETION OF COURT.
Fact of the Case:
Plaintiffs, Nawab Imdad Jah Bahadur, Nawab Nawazish Jah Bahadur, and Nawab Fazal Jah Bahadur, instituted O. S. 8/72 against the 1st defendant and 34 others for partition of the Schedules B to D properties, for allotment of their shares (which would come to 42/376), and for mesne profits. It was alleged that the properties are the matruka of the late Nizam of Hyderabad and that the plaintiffs and defendants are entitled to specific shares in the properties as per Mohammadan Law. The 1st defendant filed a written statement raising various contentions and pleading that the suit is merely speculative and calculated to harass him. He also contended that the properties in question are not the matruka of the late Nizam and that he took possession of all the properties of the late Nizam not by inheritance but in his own right, in accordance with the law and custom governing succession in the Asif Jahi dynasty.
Finding of the Court:
The court held that the plaintiffs have not made out a prima facie case in their favor and that the balance of convenience is not in their favor. The court also held that the plaintiffs are guilty of laches and that their application for injunction is an abuse of the process of the court.
Issues: 1. Whether the plaintiffs have made out a prima facie case in their favor? 2. Whether the balance of convenience is in favor of the plaintiffs? 3. Whether the plaintiffs are guilty of laches? 4. Whether the plaintiffs' application for injunction is an abuse of the process of the court?
Ratio Decidendi: 1. The court held that the plaintiffs have not made out a prima facie case in their favor because there is no evidence to show that they are the legitimate sons of the late Nizam. The court also held that the gift deeds executed by the late Nizam in favor of the 1st defendant are valid and that there is no evidence to show that they are nominal. 2. The court held that the balance of convenience is not in favor of the plaintiffs because the 1st defendant has been in possession of the properties for many years and has made substantial improvements to them. The court also held that the plaintiffs have not shown that they would suffer irreparable injury if the injunction is not granted. 3. The court held that the plaintiffs are guilty of laches because they waited for more than five years after the death of the late Nizam to file suit. The court also held that the plaintiffs have not satisfactorily explained their delay. 4. The court held that the plaintiffs' application for injunction is an abuse of the process of the court because they have already filed a similar application which was dismissed by the court.
Final Decision: The court dismissed the plaintiffs' appeal and upheld the trial court's order denying the injunction.
( 1 ) THIS is an appeal against an order of injunction pendente lite passed by the learned Additional Chief Judge-cum-Special Judge for SPE cases. City Civil Court, Hyderabad in I. A. 41/73 in O. S. 8/72. The appellant is the first respondent in the Interlocutory Application and the first defendant in the suit. The respondents 1, 2 and 3 are the petitioners before the lower Court and they are the defendants 5, 6 and 9 in the suit. The other respondents 4 to 6 are the three plaintiffs who instituted the Suit O. S. 8/72. For the purpose of convenience the parties will be referred to in this judgment by their positions in the suit.
( 2 ) THE facts which led up to this appeal are as follows: The late Nizam of Hyderabad nominated his grandson, the 1st defendant, before his death as successor-Ruler of the State of Hyderabad and sought the necessary recognition of the Government of India. A certificate of Recognition in favour of the 1st defendant as the Ruler of the State of Hyderabad was issued by the Government of India with effect from the 24/02/1967 -- the date on which the Nizam died. Soon after the death of the Nizam, the first defendant came into possession of all the moveable and immovable properties of the Nizam.
( 3 ) SHORTLY after the death of the late Nizam, his legitimate daughter Ahmedunnisa Begum, the 4th defendant filed Writ Petition No. 863 of 1967 in this Court challenging the Certificate of Recognition issued in favour of the 1st defendant. The Writ Petition was allowed under an order dated 29-1-1968. The 1st defendant preferred an appeal against the order before the Supreme Court of India. While the matter was pending in the Supreme Court the parties entered into a compromise and the 1st defendants appeal was allowed by the Supreme Court in view of the compromise. In the year 1968 the 1st defendants father Mir Himayat Ali Khan Azam Jah Bahadur filed O. S. 105/68 in the court of the Chief Judge, City Civil Court, Hyderabad for administration of the estate of the late Nizam and for separate possession of 7/20 share. While the suit was pending he filed W. P. 966/69 in the High Court challenging the Certificate of Recognition issued in favour of the 1st defendant. Later he filed I. A. 1258/69 withdrawing O. S. 105/68. By its order dated 22-8- 1969 the Court dismissed the suit as withdrawn. He had also filed a Memo before the High Court withdrawing W. P. 966/69 and the High Court dismissed the writ petition by an order dated 18-8-1969 in view of the withdrawal memo.
( 4 ) AFTER the demise of the late Nizam, the 1st defendant filed Estate Duty Returns disclosing all the assets of the late Nizam. On the basis of the Returns, a provisional demand of Rs. 1. 36 crores was made and the 1st defendant paid the Duty after selling the personal jewellery of the late Nizam valued at about Rs. 20 lakhs and other assets such as gold bonds, shares, securities etc. He has further disposed of many items of the estate in the years 1968, 1969, 1970 and 1971.
( 5 ) WHILE so, Nawab Imdad Jah Bahadur, Nawab Nawazish Jah Bahadur and Nawab Fazal Jah Bahadur (the three plaintiffs) instituted O. S. 8/72 on 31-1-1972 against the 1st defendant and 34 others for partition of the Schedules B to D properties, for allotment of their shares (which would come to 42/376) and for mesne profits. It is alleged that the properties are the matruka of the late Nizam of Hyderabad and that the plaintiffs and defendants are entitled to specific shares in the properties as per Mohammadan Law. It is further alleged that the 1st plaintiff is the son of the late Nizam through his wife Jani Begum and that the second and third plaintiffs are the sons of the late Nizam through his wife Laila Begum. It is also alleged that the properties of the late Nizam devolved on his heirs in accordance with the Muslim Law and that the Nizam was survived by two widows, 15 sons including the three plaintiffs and 17 daughters all of whom have specified shares.
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