1968 Supreme(AP) 8

Andhra Pradesh High Court
Judges : C.KONDAIAH, P.JAGMOHAN REDDY
Ahmadunnisa Begum - Appellant
Versus
Union of India - Respondent
Decided On : 01-29-68

The term "personal rights" in Art. IV of the agreement does not include private properties of the Rulers.

Headnote:

CONSTITUTION OF INDIA, 1950 - ARTICLES 14, 19(1)(F), 31(1), 131, 291, 362, 363, 366(15), 366(22) - AGREEMENT BETWEEN THE LATE NIZAM AND THE GOVERNMENT OF INDIA ON 25/01/1950 - SUCCESSION TO THE PRIVATE PROPERTIES OF THE LATE NIZAM - JURISDICTION OF COURTS - INTERPRETATION OF THE AGREEMENT - WHETHER THE GOVERNMENT OF INDIA HAS THE POWER TO RECOGNISE A SUCCESSOR TO THE PRIVATE PROPERTIES OF THE LATE NIZAM - WHETHER THE CUSTOM OF THE FAMILY OF THE LATE NIZAM APPLIES IN GOVERNING THE SUCCESSION TO HIS PRIVATE PROPERTIES.

Fact of the Case:

The petitioner, daughter of the late General His Exalted Highness Nawab Sir Mir Osman Ali Khan, the erstwhile Ruler of the Hyderabad State, filed this petition challenging the certificate issued by the Government of India on 27/02/1967 under Art. 366 (22) of the Constitution of India to the 2nd respondent, His Exalted Highness Nawab Mir Barkat Ali Khan Bhadur (hereinafter referred to as "the Nizam") the grandson of the late Nizam, as being issued without the authority of law, is arbitrary, discriminatory and violate of the fundamental rights of the petitioner under Article 14, 19 (1) (f) and 31 (1) of the Constitution.

Finding of the Court:

The Court held that the impugned certificate issued by the Government of India on 27/02/1967 under Art. 366 (22) of the Constitution of India to the 2nd respondent, His Exalted Highness Nawab Mir Barkat Ali Khan Bhadur (hereinafter referred to as "the Nizam") the grandson of the late Nizam, as being issued without the authority of law, is arbitrary, discriminatory and violate of the fundamental rights of the petitioner under Article 14, 19 (1) (f) and 31 (1) of the Constitution.

Issues: 1. Whether the parties under Art. IV intended to and the covenant in fact did, provide for succession to the private property of the Ruler? 2. Has the Government of India executive power to issue the impugned certificate, declaring the Nizam, the 2nd respondent, as the successor to the private property of the late Nizam, and whether this Court cannot call in question such a certificate having regard to the provisions of Art. 363? 3. Does the custom of the family of the late Nizam, even assuming that it is established, apply in governing the succession to his private properties.

Ratio Decidendi: 1. The Court held that the term "personal rights" in Art. IV of the agreement does not include private properties of the Rulers. The Court observed that "personal rights" referred to in Article IV undoubtedly are personal rights qua the Ruler. But rights to private property have nothing to do with succession to the gaddi. One person may as heir succeed to the private property and another person may be recognised as an heir to the gaddi. with the former the Government of India has no concern, while it has the power to recognise the latter. It cannot be denied that by the very nature of the rights which the late Nizam had, to the full ownership, use, enjoyment and possession of his private property, to deal with it as he liked, to gift it, to create a trust or charity, to bequeath it by will to the extent he could under his personal law, are such that the Government of India could not have been invited to exercise any power or control over them. Nor could the members of his family have any right to prevent him from exercising his full ownership thereon. In these circumstances, the parties could not in our view have intended to deal with succession to have intended to deal with succession to property with which the Government of India was not concerned. Nor could the Nizam voluntarily or willingly confer a right on the Government of India over such property, even if it be after his lifetime. A conferment of a right on the Government of India to recognise any person it chooses as the successor to the gaddi also as a successor to his private property might tantamount to a derogation of the recognition and declaration of the right of the late Nizam to the full ownership, enjoyment and possession of that property mentioned in Art. II or to bequeath the same by will. 2. The Court held that the Government of India does not have the executive power to issue the impugned certificate, declaring the Nizam, the 2nd respondent, as the successor to the private property of the late Nizam. The Court observed that the Government of India was not competent in law to issue the impugned certificate, interfering with, or depriving the petitioner and the other heirs of, their rights to succeed to the late Nizam under the personal law applicable to them. 3. The Court held that the custom of the family of the late Nizam does not apply in governing the succession to his private properties. The Court observed that the contention of the petitioner that the private properties of the late Nizam should devolve in accordance with the Muslim law applicable to him. ignores the provisions of the agreement and the power of the Central Government thereunder, and challenges the competence of the Government of India in respect of the interpretation placed by it on the articles of the said agreement, which itself will amount to a dispute not justiciable under Article 363 of the Constitution.

Final Decision: The Court allowed the petition and quashed the impugned certificate issued by the Government of India on 27/02/1967 under Art. 366 (22) of the Constitution of India to the 2nd respondent, His Exalted Highness Nawab Mir Barkat Ali Khan Bhadur (hereinafter referred to as "the Nizam") the grandson of the late Nizam.