P. Jaganmohan Reddy, C.J.
1. The petitioner, daughter of the late General His Exalted Highness Nawab Sir Mir Osman Ali Khan, the erstwhile Ruler of the Hyderabad State (hereinafter referred to as 'the late Nizam) filed this petition challenging the certificate issued by the Government of India on 27th February 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. The impugned certificate is given below: - 'Certificate.
This is to certify that His Exalted Highness Nawab Mir Barkat Ali Khan Bahadur has been recognised by the President of India under Art. 366(22) of the Constitution as the Ruler of Hyderabad in succession as the Ruler of Hyderabad in succession to his grandfather, General His Exalted Highness Nawab Sir Mir Osman Ali Khan Bahadur, with effect from the 24th February, 1967 and accordingly the said His Exalted Highness Nawab Mir Barkat Ali Khan Bahadur, as such Ruler, is the sole successor to all private properties, movable and immovable, held by the said General His Exalted Highness Nawab Sir Mir Osman Ali Khan Bahadur in the capacity of the Ruler of Hyderabad and that the Government of India have no objection to such properties being transferred to the said properties being transferred to the said His Exalted Highness Nawab Mir Barkat Ali Khan Behadur.'
2. The petitioner stated that the late Nizam as the Ruler of the Hyderabad State, who having recognised on 23-11-1949 that the Constitution of India adopted by the Constituent Assembly of India shall be the Constitution for the State of Hyderabad as for the other parts of India and shall be enforced as such in accordance with the tenor of its provisions, entered into an agreement with the Government of India on the 25th January 1950, determining and guaranteeing the amount of the privy purse and the personal rights, privileges and dignities, including the dynastic succession. After the conclusion of that agreement, as and from 26th January 1950, except for the fact that he was appointed as the Raj Pramukh of Hyderabad as from that date, the late Nizam became a private citizen like any other person except for certain rights and privileges guaranteed to him under the aforesaid agreement with the Government of India. The agreement, according to the petitioner, guaranteed full ownership to his private properties.
The late Nizam was therefore, till the date of his death on the 24th February, 1967, was the owner and was in possession of the said properties, which included several immovable and extensive moveable properties, cash. Government securities, gold and silver bullion, ornaments and utensils, jewellery, antiques and pieces of art and loans and debentures etc. In view of this, it was averred that inasmuch as the late Nizam was a Muslim of Sunni sect, succession to his private properties, namely, the said moveable and immovable properties, should be governed by the Hanafi school of Muslim law: that as the late Nizam died intestate on 24-2-1967, leaving as his heirs two widows, two sons and the petitioner, they would, according to the said Muslim law, be entitled to certain shares, namely the widows 1/16th each, the two sons 2/5ths each in the remainder of 14/16th and the petitioner to 1/5th of that reminder, and that the Nizam (the 2nd respondent) not being an heir under that law, was not entitled to succeed to any part of the said estate.
According to the petitioner, the impugned certificate purports to vary the normal rules of succession to the properties of a Muslim and deprives the petitioner and the other heirs of the late Nizam of their right to succeed to his estate. The petitioner further stated 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. While his action of the Government of India, according to the petitioner, as has already been stated, is contrary to law, arbitrary, discriminatory and violative of the fundamental rights under Arts. 14, 19(1)(f) and 31(1) of the Constitution of India, she further alleges that it also infringed the principles of natural justice, because before depriving her of her rights as an heir to succeed to the private properties of her late father, it was incumbent upon the Government of India to have given notice to her and afforded an opportunity of being heard before issuing the certificate.
3. The 1st respondent, Union of India, contended that under Art. II of the agreement entered into between the late Nizam and the Government of India on 25th January, 1950, full ownership, use and enjoyment of all the private properties both immovable and moveable, including jewellery, securities, etc., were guaranteed and in accordance with the terms of that article, an inventory of the properties which the late Nizam claimed to be his private properties was submitted by him, and after the same was considered by the 1st respondent and the Government of Hyderabad, they were declared to be his (late Nizam's) private properties. The settlement of private properties of the Ruler, it is contended, was an act of State, and as such is not justiciable. After the death of the late Nizam on 24-2-1967, pursuant to Art. IV of the said agreement, the Nizam (the 2nd respondent) was declared to be his successor under Art. 366(22) of the Constitution.
It is further contended that consequent upon his succession to the Rulership of Hyderabad, the Nizam became the sole successor to all the personal rights and properties and assets of the late Nizam, which were recognised as the private properties of the Ruler of Hyderabad, and under the terms of the agreement aforesaid, he was entitled to full ownership, use and enjoyment of all such properties. Consequently, the certificate setting out the factual position was issued to the Nizam on the 27th of February, 1967. The full ownership, use and enjoyment of private properties by a Ruler having been guaranteed by the Government of India in pursuance of the said agreement, neither the agreement nor any dispute or obligation arising therefrom is justiciable by virtue of Art. 363(1) of the Constitution. The allegations in respect of the heirs or the shares of each of them, or the parties being governed by the Hanafi school of Muslim law were denied for want of knowledge, and in any event were said to be irrelevant.
4. The Nizam, the 2nd respondent, challenged the jurisdiction of this Court to entertain the writ petition, as it was barred under Art. 363(1) of the Constitution, inasmuch as the guarantee given by the Government of India under Articles II (1) and IV of the agreement related not only to the succession to the gaddi but also to the personal rights, privileges, dignities and titles of the late Nizam in which term 'personal rights' is included the personal or private properties of the late Nizam, and hence what the petitioner is raising in her petition is a dispute in respect of that agreement, which cannot be entertained either by the Supreme Court or by any other Court. It is contended that Central Government has plenary power to determine and in effect declare the successor's rights to the properties owned and possessed by the deceased Ruler at the time of his demise, and it is not open to any one to challenge the decision and declaration of the Government of India in that regard.
Even assuming that it is open to the petitioner or any one else to challenge the correctness and validity of the declaration by the Government of India, the petition raises a dispute as to the interpretation of the respective rights and obligation of the late Nizam and the Government of India under the articles of agreement dated the 25th January 1950 which itself is dispute. he submits 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. Alternatively it is contended that the private properties of the late Nizam did not belong to him as a mere citizen but belonged to him as the Ruler, and the rule of succession to the properties belonging to the late Nizamis entirely different to that applicable to an ordinary Muslim citizen, because private properties of the Ruler as distinguished from State properties, always devolved by custom on the successor Nizam and the properties were never divided between the heirs under the ordinary law applicable to a Muslim citizen.
The petitioner, it is contended, has to establish and prove that from the time when the dynasty of Nizam began, both moveable and immovable properties of each Nizam on his demise were actually divided between the heirs then existing on the date of the demise, according to the ordinary law of inheritance applicable to a Muslim citizen. In the absence of any such allegation or proof, it is not open to the petitioner to assume that the properties, moveable and immovable, belonging to the late Nizam at the time of his demise and constituting his private properties, would not pass to the successor Nizam but would devolve upon the heir under the ordinary law.
The counter then referred to a letter dated 22-7-1954 written by the late Nizam to the Government of India, adverting therein to the custom of the family of the late Nizam under which private properties remaining undisposed of at the time of demise would go to the successor Nizam, and that it was for this reason that the late Nizam created several trusts by deeds providing inter alia for those who would under the ordinary Muslim law of inheritance would have been heirs to his estate. The question that there is no law or custom applicable for succession to the private properties of the late Nizam is a question of fact which this Court cannot go into. The averments relating to infringement of Arts. 14, 19(1)(f) and 31(1) were traversed. It was again denied that the late Nizam like any other citizen is subject to the ordinary Muslim law of succession and since the Government of India was competent to determine this matter, there is no question of affording an opportunity to the petitioner or infringement of natural justice.
5. In the reply of the petitioner the averments in the counter were traversed and it was contended that Art. IV of the agreement does not deal with private properties and the attempt to make it applicable to private properties is only for the purpose of submission that a dispute arises out of the agreement as such, the jurisdiction of this Court is barred under Art. 363 of the Constitution.
6. Shri Chagla, learned advocate appearing for the petitioner at the very outset stated that he is not challenging the agreement of 25-1-1950: nor is he raising a dispute thereunder, inasmuch as his whole case it that private properties of the late Nizam were not covered by the term 'personal rights, privileges and dignities' specified in Art. IV of the agreement which dealt with the recognition by the President of India, of the successor to the gaddi of the deceased Ruler. It is his case that the President was fully competent to recognise a successor to the Ruler under C1. (22) of Art. 366, and the recognition of the Nizam, the second respondent is not being challenged by him. So there can be no question of any dispute under the agreement.
If , as he contends, personal rights which are referred to in Art. IV of the covenant do not and were never intended to cover private properties as distinguished from State properties, a term which both the parties to the agreement were aware when they dealt with it in Art. II and which they could very well have used in Art. IV if succession to private properties were also intended to the declared by the President of India, then the question of applicability of custom as affecting devolution of property of the late Nizam who was a Muslim, could not arise. In any case, it is contended, custom, unlike under the Hindu law, as abrogating, modifying or in any manner affecting the Quranic injunctions governing the personal rights of a Muslim under the Muslim law, cannot be allowed to be pleaded, proved or established, after the application of the Shariat Act. 1937 to Hyderabad in 1959.
7. Mr. Narasaraju, on the other hand submits that if on the 26th January 1950 there existed a custom relating to devolution of private property, under which the property devolves along with the gaddi, that custom would be rendered ineffective and inoperative only by a specific legislation to the contrary affecting the family of the Ruler. A mere genera extension of the Shariat Act to Muslims, it is argued, does not by itself have the effect to the family of the late Nizam relating to the succession of the private property of the Ruler qua Ruler.
8. The main argument of Sri Narasaraju as also of Sri Ramachandra Rao however, was based on the applicability of Art. 363 of the Constitution in ousting the jurisdiction of the Court to entertain this Writ petition. Mr. Narasaraju contended, as was averred in the counter of the Nizam, that private properties are included in the term 'personal rights' under Art. IV of the agreement and, at any rate, whether it is so or not, is a question relating to the interpretation of the covenant, and therefore Art. 363 bars the jurisdiction of the Court. In other words, he contends that this Court has no jurisdiction even to interpret the meaning of the expression 'personal rights.' It is further contended that the Nizam cannot be described as a mere citizen. The learned advocate says that the late Nizam was a privileged citizen, and one of the privileges he had was to have the right of succession both in respect of the gaddi as well as his private properties governed by the agreement which is political in nature, entered into between the two independent States. There is, therefore, no question of any application of Articles 14, 19(1)(f) or 31(1) of the Constitution.
9. Mr. Ramachandra Rao for the Central Government, 1st dependent, similarly elaborated the point taken up by Shri Narasaraju, by pointing out that both the petitioner as well as the 2nd respondent having relied upon and referred to the agreement for their respective contentions, it must be deemed that there is dispute arising out of the agreement. Merely by framing the relief for quashing the certificate, it does not mean that it is not a dispute arising out of the agreement. The whole writ, according to him, is directed against the grant of the certificate, which was issued under the terms of the agreement, and the denial of the right to grant the certificate would be to raise a dispute under the agreement, and consequently the writ petition is barred under Art. 363.
10. We may, keeping in mind the several contentions, formulate the real controversy in the writ petition under the following main heads, namely.
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.
11. A great deal has been state before us as to the nature of the agreement of merger, that it is a political agreement entered into between two independent States, namely, the Ruler on the one side and the Central Government on the other, that those covenants acquire the status of treaties and engagements entered into between two international persons, and that the framers of the Constitution, in order to give effect to the principles of international law, viz., that the municipal Courts can have no jurisdiction to entertain disputes relating to such covenants, have incorporated certain provisions in the Constitution relating to those covenants. While we do not think that ultimately anything will turn on the political aspect of the matter or the justiciability or otherwise of these covenants, because Mr. Chagla at the very outset, has quite frankly and, in our view, quite properly, did not even attempt to contest the proposition that if any dispute does arise out of the covenant of merger or of privy purse, entered into between the Ruler and Government of India, the jurisdiction of the Courts would be barred, nonetheless, it might assist to some extent if we are to briefly sketch the historical background in which these agreements came to the executed.
12. On the eve of the attainment of independence by India, as is well known, there were over 500 States comprising nearly 2/5ths of the area of the country, These States, or as they were called Native States, had treaties, sanads and engagements with the then ruling power in India, namely, the British Crown, which apart from the obligation arising out of these treaties, engagements and sanads, asserted what is known as paramount or suzerainty, over the Rulers. By virtue of Section 7 of the Indian Independence Act. 1947 the relationship between the British Crown and the States came to an end, and the rights surrendered by the Native States to the paramount power reverted to the Native States, with the result, that the political arrangement between the States on the one side and the British Crown on the other, were brought to an end: vide Sec. 7 (1) (b). In State of Gujarat v. Vora Fiddali, : 6SCR461 a Bench of 7 Judges of the Supreme Court held that with the declaration of independence on the 15th August, 1947, the former Indian States attained independence and sovereignty.
Rajagopala Ayyangar J., speaking for himself and Sinha, C. J. said at p. 1053:
'The native Indian ruler were undoubtedly sovereign in the territories under their jurisdiction and they parted with their sovereignty in States, firstly on accession, then on integration and finally by what has been felicitously termed in the White Paper on Indian States as `unionization,' i.e., by State territory becoming Union of India which meant the complete extinction of their separate existence and individual sovereignty and of their States as separate Political units.' Subba Rao, J. (as he then was) said at p. 1066: 'Under Section 7 of the Indian Independence Act, 1947, the suzerainty of the British Crown over the Indian States lapsed, with the result that Sant State became a full sovereign State.' Similarly: Hidayatullah, J., at page 1072 said: 'Santrampur was an Indian State and the Ruler attained independence and sovereignty on August 15, 1947 on the ceasing of the paramount of the British Crown'. Shah, J., said at p. 1082, pursuant to the agreement dated March 19, 1948 as from agreement dated March 19, 1948 as from June 1, 1948, the State of Sant merged with the Dominion of India. The sovereignty of the Ruler was thereby extinguished and the subjects of the Sant State became citizens of the Dominion of India'. Mudholkar, J., likewise observed at page 1091: 'This State (Sant State) along with other ruling States in India, became an independent sovereign State in the year 1947, when the Dominions of India and Pakistan were constituted'.
13. The nature of the independent status after the lapse of paramount on 15-8-1947 appears to have been dealt with and limited subsequently in another Judgment of a Bench of 3 Judges of the Supreme Court consisting of Subba Rao, J. (as he then was), Shah and Sikri, JJ., in Commissioner of Income-tax Andh. Pra. v. Mir Osman Ali, : 59ITR666(SC) . It may be observed that no reference has been made to the Judgment of the seven Judges, viz., : 6SCR461 even though two of the learned Judges, Subba Rao, J., and Shah. J., were parties to it. In : 59ITR666(SC) it was contended by the learned advocate for the late Nizam that prior to January 26, 1950 the Nizam was a sovereign independent Ruler and under international law as a foreign sovereign, he was exempt from taxation. This contention was negatived on the ground that after 1858 when the British Crown took over from the East India Company the administration of the entire territory of India, the Indian States remained under the personal rule of their Chiefs under the Suzerainty of the Crown, and though after the Indian Independence Act, the paramount of the Crown lapsed in regard to Hyderabad and other States, the pre-existing agreements with those States continued in respect of specified matters, and the lapse of suzerainty or the breaking of ties with the British Crown did not ipso facto raise their status to that of international personality.
At page 1265, it was observed:
'It created a void and the position of the States was in a fluid state.' Particularly in respect of the Nizam it was further observed: '..........After protracted negotiations, the Nizam issued a proclamation on November 23, 1949, accepting the Constitution of India, shortly to be adopted, subject to ratification by the Constituent Assembly of the Hyderabad State. The said constituent assembly ratified it and thereafter the Hyderabad State was included in Part B of the First Schedule to the Constitution.' After referring to the White Paper on Indian States, at page 369 the learned Judge went on to say: 'It will be seen from the said history that Hyderabad was under the suzerainty of the British Crown till the Indian Independence Act of 1947 was passed and that thereafter, after negotiations with the India Dominion, it finally acceded to it. It was never recognised as an international personality by the family of nations. It was all through a vassal of the British Crown.................It is, therefore, clear that Hyderabad State did not acquire international personality under the international law and so its ruler could not rely upon international law for claiming immunity from taxation of his personal properties.'
14. The above history would show that whether the Native States were treated as independent sovereign States, recognised by international law, or not, the Government of India entered into agreement with the Rulers as independent sovereigns in lieu of their having surrendered the territories over which they ruled, providing for certain matters like privy purses, determination of what constituted his private property and which is the property belonging to the State, and the guarantee of their personal rights, privileges and dignities and succession to the gaddi. These merger agreements entered into by the Ruler were more or less similar, and in view of the solemn obligations entered into by the Government of India, the Constituent Assembly incorporated certain provisions in the Constitution to ensure that guarantees given by it in respect of privy purses and other obligations were fully implemented. The 5 articles of the Constitution which deal with these agreements are the proviso to Art. 131, Arts. 291, 362, and 363 and C1. (22) read with C1. (16) of Art. 366.
15. Before examining these provisions, it is necessary to note the terms of the agreement entered into between the late Nizam and the Government of India on the 25th of January, 1950. It reads: '..................... Whereas it has been decided that the Constitution of India adopted by the Constituent Assembly of India shall be Constitution for the State of Hyderabad as for the other parts of India and shall be enforced as such in accordance with the tenor of its provisions;
And whereas it is expedient that the rights, privileges and dignities, including the dynastic succession and the privy purse, of His Exalted Highness the Nizam of Hyderabad shall be determined by agreement between him and the Government of India:
It is hereby agreed as follows:
(1) His Exalted Highness the Nizam of Hyderabad shall, with effect from the first day of April, 1950 be entitled to receive annually for his privy purse the sum of Rs. 50,00,000 (Rupees fifty lakhs) free of all taxes:
Provided that the sum specified above shall be payable only to present Nizam of Hyderabad for his life-time, and not to his successors, for whom provision will be made subsequently by the Government of India, (2) The said amount is intended to cover all the expenses of His Exalted Highness the Nizam of Hyderabad and his family including expenses on account of his personal staff, maintenance of his residences, marriages and other ceremonies etc., and will neither be increased nor reduced for any reason whatsoever. (3)........................
(4) The payment of the said amount as herein provided is guaranteed by the Government of India.
(1) His Exalted Highness the Nizam of Hyderabad shall be entitled to the full ownership, use and enjoyment of all the jewels, jewellery, ornaments, shares, securities and other private properties, moveable as well as immovable (as distinct from State properties) belonging to him on the date of this Agreement.
(2) His Exalted Highness the Nizam of Hyderabad has furnished to the Government of India lists of all the moveable and immovable properties held by him as such private properties.
(3) If any question arises as to whether any item of property is the private property of His Exalted Highness the Nizam of Hyderabad or State property, it shall be referred to such independent person as the Government may nominate and the decision of that person shall be final and binding on all concerned.
His Exalted Highness the Nizam of Hyderabad and the members of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territories of the State immediately before the fifteenth day of August 1947.
The Government of India guarantees the succession according to law and custom to the gaddi of the State and to the personal rights, privileges and dignities and titles of His Exalted Highness the Nizam of Hyderabad.In confirmation whereof .........................'
A reading of the above terms would show that in consideration of the late Nizam agreeing to make the Constitution of India applicable to the State of Hyderabad as for the other parts of India in accordance with the tenor thereof, the Government of India guaranteed to the late Nizam (a) payment of an amount of privy purse fixed, free of all taxes, which privy purse shall not be increased or deceased on any account whatsoever; (b) full ownership, use and enjoyment of private property, moveable and immovable, jewellery, securities etc. and (c) succession according to law and custom to the gaddi of the state and to the personal rights, privileges, dignities and titles of the late Nizam. Apart from this, it declared that the late Nizam and the members of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them, whether within or outside the territories of the State immediately before 15-8-1947.
16. It may be stated that prior to the integration in most of the States, there was no distinction between expenditure on the administration and the Ruler's privy purse. Even where the Ruler's privy purse had been fixed no effective steps had been taken to ensure that the expenditure expected to cover by the privy had been taken to ensure that the expenditure expected to cover to cover by the privy purse was not directly or indirectly charged on the revenues of the State, which amounts, therefore, were spent on the Rulers and on the members of the ruling families. Accordingly at the time of negotiations between the Rulers and the Government of India, the revenues of each State was taken as a criterion for fixing the privy purse. Only in the case of some of the viable States like Hyderabad, Mysore etc., a sum above Rs. 10,00,000 was fixed. Apart from this, the Nizam of Hyderabad had a jagir, known as Sarf-e-khas, whose revenues furnished the privy purse. This Sarf-e-khas was surrendered by him to the State in lieu of which the privy purse of Rs. 50,00,000 was fixed. In order to keep distinct the property which the late Nizam had given up and merged in the Hyderabad State, and his private properties including jewels, jewellery, ornaments, securities etc., Art. II of the agreement declared the full ownership of such properties belonging to him, lists of which properties were furnished to the Government of India.
17. We may now consider how far the guarantees and assurance given in this and other similar agreements entered into with the Rulers have been incorporated in the Constitution. Some of these provisions are contained in Arts. 291, 362 and Cls. (15) and (22) of Art. 366, which are as under: -
'Art. 291: Where under any covenant or agreement entered into by the Ruler of any Indian State before the commencement of this Constitution, the payment of any sums, free of tax, has been guaranteed or assured by the Government of the Dominion of India to any Ruler of such State as privy purse -
(a) such sums shall be charged on, and paid out of, the Consolidated Fund of India: and
(b) the sums so paid to any Ruler shall be exempt from all taxes on income.'
Art. 362: In the exercise of the power of Parliament or of the Legislature of a State to make laws or in the exercise of the executive power of Union or of a State, due regard shall be had to the guarantee or assurance given under any such covenant or agreement as is referred to in Art. 291 with respect to the personal rights, privileges and dignities of the Ruler of an Indian State.'
Art 366: In this Constitution, unless the context otherwise requires the following expressions have the meanings hereby respectively assigned to them, that is to say -
(15) `Indian State' means any territory which the Government of the Dominion of India recognised as such a State:
(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 C1. (1) of Art. 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.'
These articles, as has already been state, gave effect to the guarantees contained in the agreement entered into between the Government of India and the Ruler, of the obligation existing prior to the date of the Constitution, firstly in respect of the privy purse and secondly, by requiring that in the exercise of the power of the Parliament or the Legislature of a State to make laws or in the exercise of the executive power of the Union or of a State, due regard must be had to the guarantee or assurance given under any covenant, agreement etc, which is mentioned in Art. 291, with respect to personal rights, privileges and dignities of the Ruler of the Indian States. Arts. 291, 361 and C1. (22) of Art. 366 deal specifically with what is contained in Arts. I and IV of the covenant. In so far as Art. II is concerned, it merely declares that the Ruler will be entitled to full ownership, use and enjoyment of private properties which have been settled in accordance with the list furnished by him and that any dispute in respect of it, which can only be whether any particular item of property is a State property or the Ruler's private property, will be decided by arbitration.
No constitutional guarantee is necessary, nor was any guarantee necessary in respect of the declaration that the Ruler and his family would be entitled to the personal rights, privileges and dignities and titles enjoyed by them, whether within or outside the territories of the State, immediately before 15-8-1947. These however, would be governed by the covenant. In so far as private property is concerned, once it is declared to be private property of the Ruler, it will only be dealt with and is subject to the law of the land. In any case, any dispute in respect of these matters dealt with by the agreement is not justiciable. Under the proviso to Art. 131, the original jurisdiction of the Supreme Court shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed behaving been entered into or executed before the commencement of the Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute. Article 363 bars the jurisdiction of Courts in respect of these agreements. Since great reliance has been placed on this Article by the respondents, we give below the terms of that Article.
Art. 363: (1) Notwithstanding anything in the Constitution but subject to the provision of Art. 143, neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, sanad or other similar instrument.
(2) In this article.
(a) `Indian State' means any territory recognised before the commencement of this Constitution by His Majesty or the Government of the Dominion of India as being such a State: and
(b) `Ruler includes the Prince, Chief or other person recognised before such commencement by His Majesty or the Government of the Dominion of India as the Ruler of any Indian State.'
The first limb of this article bars interference by Courts in disputes arising out of a treaty, agreement, covenant etc. entered into before the commencement of the Constitution by any Ruler of an Indian State to which the Governments was a party, and which has or has been continued in operation after such commencement. The second limb bars the jurisdiction of Courts in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of the Constitution relating to any such treaty, agreement, covenant, etc.,
18. Whether the jurisdiction of Courts is barred even apart from these provisions, by virtue of the political nature of the agreements themselves, is a matter with which we need not concern ourselves in the present case, inasmuch as the provisions of the Constitution provide fully and amply in respect of matters arising out of treaties, engagements, sanads, agreements, etc., entered into by the Rulers of the erstwhile States with the Government of India prior to the coming into force of the Constitution and which have or have continued in operation after such commencement.
19. The question therefore, is whether inheritance to the private property of a Ruler is governed by the agreement or covenant entered into between the Ruler and the Government of the Dominion of India. This would require a consideration of the terms of the agreement or covenant. But the contention of Sri Narasaraju that this Court has no jurisdiction to interpret what is the meaning of the term `personal rights' as that would itself amount to a dispute arising out of the agreement appears to be farfetched, because after all, in order to know whether any dispute arises out of the agreement or not, the Court has first to ascertain prima facie whether the subject-matter of the dispute falls within the scope and ambit of the agreement. If this is not so, it will be difficult to say whether in fact any dispute arises out of such an agreement.
In every one of the cases cited by Sri Narasaraju, viz. State of Bihar v. Kameshwar Singh, : 1SCR889 , Bhagwat Singh v. State of Rajasthan, : (1964)ILLJ33SC ; Umeg Singh v. State of Bombay, : 2SCR164 and Usmanali Khan v. Sagar Mal, : 3SCR201 and the other cases to which we will refer presently, the Supreme Court looked into the covenant and examined its terms. Apart from these cases, in : 59ITR666(SC) the agreement, particularly Art, IV itself was construed. In all the above cases it may be observed, where the jurisdiction of the Courts is sought to be barred, the claims were made under the agreement but where the claim falls outside the agreement, there can be no question of jurisdiction of the Courts being ousted. In this vie, we have necessarily to look into the terms of the agreement to ascertain whether succession to personal or private property was also made the subject-matter of the guarantee or assurance.
20. It is recognised by both the parties that this is not a dispute arising out of Art. Ii, inasmuch as there is no question involved in this petition as to which of the properties of the late Nizam are his private properties. The parties proceed on the footing that the late Nizam died possessed of and was the full owner of his private properties and had dealt with them as such during his life time. Of course if there was any dispute as to which item of the property is the private property of the Ruler, machinery has been provided in Art. II of the agreement, and more particularly Art. IV purports to deal with succession to the private property of the late Nizam.
As we have already seen, neither Articles I, II or III deal with this aspect of the matter. Art. III merely declares that the late Nizam and the members of his family would be entitled to certain personal privileges, dignities and titles. In so far as Art. IV is concerned, which deals with succession, there is no specific reference to succession to private properties as such. The only reference is of a recognition of succession according to law and custom to the gaddi of the State and to the personal rights, privileges and dignities and titles of the late Nizam. The successor, therefore, would be entitled not only to succeed to the gaddi but also to the personal rights, privileges and dignities of the late Nizam. The matter for consideration is whether 'personal rights' referred to in this article are intended to include, and in fact included, rights in private property and whether the Government of India has the power to recognise a successor thereto.
21. '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. Apart from the fact that such a power was never intended to be conferred on the Government of India, the use of the words 'personal rights' qua the Ruler as we have said earlier, has nothing to do with rights over private properties. In our view 'personal rights' must be construed ejusdem generis with the privileges, dignities and titles which a Ruler qua the Ruler has, namely, immunity from jurisdiction of the Courts except with the permission of the Govt. of India, exemption from customs duties, the privileges to carry fire-arms without licence, and various other rights and privileges which a Ruler had prior to the inauguration of the Constitution of India and which under Art. IV of the agreement, the Government of India has recognised as being enjoyed by the successor.
22. The white paper on Indian States in Paragraph 240 at pages 125, 126 sets out the nature of the guarantees regarding these rights and privileges. It says, 'Guarantees have been given to the Rulers under the various agreements and Covenants for the continuance of their rights, dignities and privileges. The rights, dignities and privileges. The rights enjoyed by the rulers vary from State to State and are exercisable both within and without the States. They cover a variety of matters ranging from the use of red plates on cars to immunity from Civil and Criminal jurisdiction and exemption from customs duties etc. Even in the past it was neither considered desirable nor practicable to draw up an exhaustive list of all these rights. During the negotiations following the introduction of the scheme embodied in the Government of India Act, 1935, the Department had taken the position that no more could be done in respect of the rights and privileges enjoyed by the Rulers than a general assurance of the intention of the Government of India to continue them. Obviously, it would have been a source of perpetual regret if all these matters had been treated as justiciable. Article 363 has, therefore, been embodied in the Constitution which excludes specifically the Agreements of Merger and the Covenants from the jurisdiction of Courts except in cases which may be referred to the Supreme Court by the President. At the same time, the Government of India considered it necessary that constitutional recognition should be given to the guarantees and assurance which the Government of India have given in respect of the rights and privileges of Rulers. This is contained in Art. 362, which provides that in the exercise of their legislative and executive authority, the legislative and executive organs of the Union and States will have due regard to the guarantees given to the Rulers with respect to their personal rights, privileges and dignities.'
23. What is set out in this passage clearly accords with our view and is in consonance with the terms and tenor of Art. IV of the agreement.
24. If may be observed in this connection that under Section 86 of the Code of Civil Procedure, prior to the Constitution, immunity from civil jurisdiction and arrest of the Rulers of the Native States was the same as that granted to foreign Rulers, Ambassadors, Envoys, High Commissioners etc. But after the Constitution, inasmuch as the Ruler of the Native States became ordinary citizens, immunity was given to them in terms of Section 87-B of the Code of Civil Procedure by reason of the Covenants and the Constitutional provisions guaranteeing the personal rights.
25. There is authority for the proposition that 'personal rights' in Art. IV of the agreement do not include private properties of the Rulers. The Supreme Court had an occasion to consider the question whether an interference with the rights of possession and enjoyment of the private property of a ruler was not an interference with guarantee given in Article II of the Merger Agreement. The consistent view of the Supreme Court was that it did not interfere with the rights in the said property, and that any law which dealt with the private properties of a Ruler dealt with them only in recognition of that right. In : 1SCR889 , S. R. Das, J. observed at p. 306:
'The guarantee or assurance to which due regard is to be had is limited to personal rights, privileges and dignities of the Ruler qua a Ruler it does not extend to the personal property which is different from personal rights. Further, this Article does not import any legal obligation but is an assurance only. All that the covenant does is to recognise the title of the Ruler as owner of certain properties. To say that the Ruler is the owner of certain properties is not to say that those properties shall in no circumstances be acquired by the State. The fact that his personal properties are ought to be acquired on payment of compensation clearly recognises his title just as the titles of other properties are recognised. Finally, the jurisdiction of the Court to decide any dispute arising out of the covenant is barred by Art. 363.'
26. In Sudhansusekhar v. State of Orissa, AIR 1961 SC 196 a similar view was expressed. In that case, by Art. IV of the Merger Agreement executed by the Ruler of Sonepur on 15-12-1947, the Ruler after the merger was entitled to all personal privileges enjoyed by him, whether within or outside the territories of the State, immediately before the 15th day of August 1947. By Art. V the Dominion Government guaranteed the succession according to law and custom, to the gaddi of the State and to the personal rights, privileges, dignities and titles of the Ruler. By Art. III, he remained entitled to full ownership, use and enjoyment of all private properties (but not of the State properties) belonging to him on the date of the merger. On December 30, 1949, the Governor of Orissa Promulgated Ordinance No. 4 of 1949 providing inter alia that the Orissa Agricultural Income-tax Act 1947, be applied to the merged Orissa States.
The Agricultural Income-tax Officer assessed the ex-Ruler to pay tax for the years 1950-51 to 1953 to 54. He disputed his liability to pay the tax by virtue of the merger agreement. Various contentions were raised. It will be seen that the several terms of the Merger Agreement were similar to those contained in Arts. II, III and IV of the Merger Agreement in this case. Shah J. who delivered the Judgment of the Bench consisting of S. K. Das, Hidayathullah, Das Gupta and Rajagopala Ayyangar, JJ., relying upon the observations of S. r. Das, J. in Visweshwar Rao v. State of M. P. (Same as State of Bihar v. Kameshwar Singh), : 1SCR1020 already cited by us, said at page 198:
'In our view, there is no force in the contentions raised by the appellant. The privileges guaranteed by Arts. 4 and 5 are personal privileges of the Appellant as an ex-Ruler and those privileges do not extend to his personal properties.' This case was again referred to and relied upon by Subba Rao, J. in : 59ITR666(SC) .
27. In Vir Rajindra Singh v. Union of India, D. K. Mahajan, J., sitting singly had to consider an attack against an order of the President recognising His Highness Maharaj Rana Shri Hemant Singh as the Ruler of Dholpur State. After setting out the history of the dispute, he referred to the contention advanced by Mr. Daphtary that the power of recognition enjoyed by the President under Art. 366(22) of the Constitution is purely an executive and political power and that it has nothing to do with the right in or to property which the petitioner may have as the successor to the deceased Ruler. It was stated that Mr. Daphtary referred to the Covenant and pointed out that the property was divided into two categories in the Covenant - (1) the private property of the Ruler, of which, under the Covenant, he has been made the full owner, and (2) the public property of the Ruler. In so far as the succession to the Ruler's private property is concerned, it is stated that it was not governed by any provisions in the Constitution of India, and that recognition of a Ruler under Art. 366(22) is merely for the purposes of the Constitution.
It was further stated that there is no provision in the Constitution as to how the President is to exercise the power of recognition under Art. 366(22) that it is the recognition that makes the Ruler and that the words 'for the time being' in Art. 366(2) clearly show that the recognition may be withdrawn or varied. At page 464, D. K. Mahahan, J., said. 'Recognition, the counsel contends, in this context is really the power of selection. Therefore, the act of the President recognising a Ruler does not affect any property to which the petitioner has a right to succeed as the next heir of the Ruler.' In the end of page 468 the learned Judge concluded:
'The sum total of the aforesaid discussion is that the private property of a Ruler after his death is not governed by any of the provisions in the Constitutions. This has been fairly and frankly conceded by Mr. Daphtary. The recognition of his successor as Ruler only confers on him the privileges guaranteed by the Covenant and will not necessarily make him the heir to the deceased Ruler's private property.'
28. Mr. Narasaraju tried to distinguish the observations of Das H. and Mahajan, J., in : 1SCR889 and the observations in the other cases referred to above on the ground that the decisions were really based on the non-justiciability of the claim. No doubt in : 1SCR889 Mahajan, J. and Das J., did refer in the end to the claim being also barred by Art. 363. It may be observed that in that case several grounds were raised which were being dealt with. It is apparent from the observations of Mahajan, J., at page 302 that non-justiciability of the issue under Art. 363 was one of the grounds for dismissing the petition. He stated: 'the guarantee contained in the article (Art. 362) is of a limited extent only. It assures that the Rulers' properties declared as their private properties will not be claimed as State Properties. The guarantee has no greater scope than this. That guarantee has been fully respected by the impugned statute, as it treats those properties as their private properties and seeks to acquire them on that assumption. Moreover, it seems to me that in view of the comprehensive language of Article 363 this issue is not justiciable.' Das, J., at page 306, prefaced his observations: there occur to me several answers to this contention' and then proceeded to make the observation which have been referred to above, after which he stated: 'Finally the jurisdiction of the Court to decide any dispute arising out of the covenant is barred by Article 363.' Where several grounds have been given, it does not mean that the ground of non-justiciability alone should be considered as the ratio of the decision.
29. Sri Narasaraju again contends that the agreement being a political agreement and considered in international law as an act of State, the general principles applicable to interpretation of Statutes ought not to be applied but recourse should be had to rules of international law in interpreting treaties. In support of this contention, he refers to certain passages in Oppenheim's International Law, (8th Edn) pages 953 and 957: namely 'the whole of the treaty must be taken into consideration, if the meaning of any one of its provisions is doubtful and not only the wording of the treaty but also its purpose, the motive which led to its conclusion, and the conditions prevailing at the time.' The conduct of the parties subsequent to the conclusion of the treaty may in some cases be resorted as a means of interpretation, especially with regard to the obligations of the party as acknowledged by its conduct.' Accordingly, Mr. Narasaraju refers us to the correspondence that ensued between the late Nizam and the late Prime Minister and Mr. Kailash Nath Katju, the then Home Minister, from which it is stated that it can be clearly ascertained as to how the parties understood the terms. The contention is that when the Govt. of India guaranteed the succession according to law and custom to succession not only to the gaddi but to the private property as well, which according to the custom of the family of the late Nizam was part of the gaddi. There is in our view no force in this contention. No doubt, as pointed out by us earlier, in many instances prior to the merger there was title or no distinction between State property and private property and in some cases even though the privy purses were fixed, the Rulers were not making any great distinction between the two but were enjoying the State property also. It was for this reason that the State property and the private property was sought to be distinguished and Art. II guaranteed full rights to the ownership, possession and enjoyment of the private property which the Government of India recognised as such private property of the Ruler.
This was not a special agreement entered into with the late Nizam alone, but an agreement entered into with almost all the Rulers and contained similar and identical terms. The scheme of it, as we have said was to separate the State property and the private, the State property being merged in the territory of India in lieu of which a privy purse was granted to the Ruler who was enjoy during his life time and which he may use for the maintenance of himself and the members of his family for performance of marriages, and maintenance of Palaces etc. This amount was under no circumstances to be increased or decreased. This was paid to the Ruler in recognition of the merger of the territory over which he ruled. Recognition of succession to the gaddi is only a recognition as a Ruler for the purpose of getting the privy purse which may be fixed and to the personal rights, privileges etc. which he would have enjoyed as a Ruler. Where, therefore, the Ruler by the covenant definitely agree to keep these two different properties, namely privy purse and the private property apart from one another, recognition referred to in Art. IV has nothing to do with private properly which must devolve in accordance with the personal law governing the Ruler.
30. A letter of the late Nizam to the late Prime Minister dated 14-6-1954 throws a good ideal of light on what was in fact done. In paragraph 2 of the letter the late Nizam said: 'When the sarf-e-khan Administration was handed over to Diwani early in February 1949, it was suggested by the Government of India that with a view to safeguard the interest of the members of my family, I should make suitable provision for them, during my lifetime. With that object in view I have created separate Trusts for all the members of my family which will enable 'them to maintain themselves in accordance with and befitting the station of life in which Providence has placed them' and I am satisfied that I have thus fulfilled my duty 'towards them as the head of the family.' It was with respect to the success of the entire scheme and the way in which these trusts will work that the late Nizam was concerned with in that letter, and he thought that that would depend upon the care and interest which his successor as the head of the family and the president of almost all the Trusts would show for their comfort and happiness. Then he proceeded to inform the late prime Minister how he was disappointed in this two sons and how his grandson, the present Nizam was the person who was most fitted to succeed him. There is nothing in this letter which will assist the 2nd respondent.
31. On 22-7-1954 along with a letter to Dr. Kailash Nath Katju, Minister for States, the late Nizam handed over a Note, in which he stated: 'In the Asaf Jani family succession was not according to Mahomedan Law, but according to tradition and custom. There were no hard and fast rules, and much depended on the wish of the Ruler and the circumstances prevailing at the time of succession. The successor was not only proclaimed the Ruler, but he also inherited the Sarf-e-Khas and all other properties and assets of the former Ruler, and was the Head of the Family, he was responsible for the maintenance of all other members of the family.' It was in this note that the late Nizam made out a case for disinheriting both his sons. The letter of Kailash Nath Katju, though agreeing with the late Nizam's view in respect of the unsuitability of his sons to succeed to him, nonetheless did not commit the Government of India but assured the late Nizam that when occasion does arise, the Government of India will give the utmost weight to the wishes mentioned by him.
In this letter nothing is stated about private property. Nor was any mention made with regard to private property when the Secretary to Government in the Ministry of Home Affairs. Mr. Viswanathan communicated the decision of the Government of India but Prince Mukaram Jah is recognised as an heir to succeed the late Nizam as the ruler of Hyderabad. This was communicated to late Nizam in strict confidence. In letter dated April 14, 1964, it was stated that the Government of India decided to publish the notification recognising the present Nizam as the Ruler Hyderabad, that day itself. Except, as we have said in the Note, where the late Nizam had stated that the successor in his family would also inherit the Sarf-e-Khas property and all other properties and assets of the former Ruler, in none of the letters there was mention about the private properties, nor did the Government of India refer to this aspect of the matter.
32. On the other hand the letter of the Home Secretary dated 30-11-1953 makes the intention of what sought to be included in the agreement clear. When the private properties of the late Nizam were acknowledged as per the lists furnished by him, the Home Secretary stated: '1. x x x x x x
2. The effect of the declaration of these properties as the private property of Your Exalted Highness is that the Hyderabad State will have no claim on them. The declaration will not, however, prejudice third party rights in such properties.
3. Your Exalted Highness' rights in regard to the pasture lands measuring approximately 23,000 acres will be subject to the operation of and governed by the Hyderabad State tenancy and revenue laws.'
The above extract would indicate beyond doubt that the Govt. of India was not concerned with the rights in any private property particularly the rights of third party therein. It may be noticed further that even tenancy rights of ryots, were preserved and the Nizam's rights were made subject to the tenancy law. It this was the stand taken at the very out-set immediately after the inauguration of the Constitution, it cannot be said that the Government of India were intending to affect the private property or deal with it in any manner much less recognising the succession after the death of the late Nizam. Thus the rights in respect of private property would, therefore, be governed by the ordinary law of the land including the law inheritance. We do not think that the reference to private properties in the Note of the late Nizam can in any way introduce into the covenant something which was not in the contemplation of the parties and which was not dealt with in the agreement. Nor by the terms and tenor thereof could it be included as part of the convent, so that if can be said that a dispute arose out of the covenant or in respect of any term thereof, as to oust the jurisdiction of this Court by virtue of Art. 363.
33. Recognition of the successor has nothing to do with the custom of the family. It was act of State and a political decision, depending much upon the paramount power in the past and now by the President under the covenant and the Constitution. There is no question of any strict adherence to the Muslim law that successor should only be the heir to the deceased Ruler. In the past, recognition of the successor meant that he became the Ruler of the State and by virtue of that position, his right to the properties of the erstwhile Ruler whom he succeeded was undoubted and could not be challenged by anyone. He or the members of his family could not be sued in his Courts and his will was the law. Even the disputes relating to grants made by him were not cognisable by ordinary Courts of that State, and here again succession to jagirs granted by him were at his sweet will and pleasure, in that every grant was considered to be a fresh grant. It was so held in Ahmad-un-Nissa Begum v. State of Hyderabad. ILR (1952) Hyd 595 = (AIR 1952 Hyd 163) (FB) and by this Court in Raja Gajasimha Rao v. Board of Revenue, W. P. No. 416 of 1958, D/- 15-12-1966 (AP). But that position would no longer prevail after the Constitution when the Ruler has no such powers, but was only a citizen, no doubt privileged citizen by virtue of the provisions in the Covenant and the articles of the Constitution.
In : (1964)ILLJ33SC Shah, J., stated: 'The appellant has also since the Constitution been a citizen of India, and his recognition as Ruler under Art. 366(22) of the Constitution has not altered his status, but as a citizen he is undoubtedly assured a privileged position'. Even in the case of the late Nizam in : 59ITR666(SC) Subba Rao, J., repelling the contention that the late Nizam was immune from taxation, observed at p. 1266: 'It is not and it cannot be, disputed that on April 1, 1950 the assessee was not a ruling chief but an ordinary citizen of India, residing, within the meaning of Section 4 of the Act, in that part of India which was a part of Hyderabad State...........' Even after the Constitution, recognition of the successor by the Government of India would be nothing more than a recognition of the successor to the gaddi. But, as we have, said that power and authority, by and under which the Ruler enjoyed all other properties belonging to the erstwhile ruler can no longer be availed of to acquire and enjoy properties belonging to the erstwhile Ruler.
34. It is no doubt contended by Sri Narasaraju that the custom of the gaddi was that private property was part of the gaddi and that that custom has been recognised in Art. IV. Sri Chagla, however, states that no custom could be recognised after the application of the Shariat Act, 1937 to Andhra Pradesh. If, as we have said earlier, recognition of succession to the gaddi is only a political act and has nothing to do with private property, then whether private property follows the succession to the gaddi is a matter de hors the covenant and does not prevent either party to set up a claim thereto. Nor is the jurisdiction of the Courts barred under Art. 363 to agitate that matter, subject no doubt to Section 87-B of the Civil Procedure Code. In the view we have taken, it is unnecessary for us to go into that question, though it was argued by Sri Chagla, that even in a case where there was a custom under which Khojas were, governed by some of the principles of Hindu Law, when they migrated to Hyderabad they were governed only by Muslim law, vide Jahandarunnissa Begum v. Mohd. Moinuddin AIR 1953 Hyd 117, which was approved by their Lordships of the Supreme Court in Noorbanu v. Deputy Custodian General of Evacuee Property, : AIR1965SC1937 was applied to the State of Andhra Pradesh in 1959, any family custom at variance with Mahomedan Law cannot be pleaded, by virtue of Section 2 of that Act, which reads: 'Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and Mubaraq, maintenance, dower, guardianship, gifts, trust ant trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).'
Nor is it necessary for us to express any view on the proposition advanced by Sri Narasaraju, though ex facie we find it difficult to appreciate, that if on the 25th January 1950 a custom relating to devolution of private property was that it should devolve along with the gaddi, that custom will be rendered ineffective and inoperative only by a specific legislation relating to that person a mere general extension of the Shariat Act to a Muslim does not have the effect of applying the provisions to him. Nor is it necessary to consider whether the certificate offends Arts. 14, 19(1)(f) and 31(1) of the Constitution, because this would presuppose that the Government of India has power to issue such a certificate and that the same is in violation of the fundamental rights guaranteed to a citizen.
35. It now remains to be considered under what provision the certificate was issued by the Government of India. The certificate itself does not specify under what provision it has been issued, except to say that as a consequence of Nawab Mir Barkat Ali Khan, the 2nd respondent, being recognised as the Ruler of Hyderabad in succession to the late Nizam under C1. (22) of Art. 366, he is entitled to succeed to the private properties of the late Nizam. We, however, asked Sri Narasaraju and Sri Ramachandra Rao to tell us the provision under which the certificate was issued. The only answer that was given was that the Government of India would have power to issue such a certificate in exercise of the executive power of the Union, under Art. 362. If the covenant specified in Art. 291 dealt with succession to personal lights, which as they contend, include private property, then the Government of India would have power to issue the certificate under that Article, notwithstanding the fact that the certificate did not specify that the Government of India purported to act under that Article. We have already given reasons why 'personal rights' either in Art. IV of the agreement or as specified in Art. 362 of the Constitution do not include private property.
36. In the result, we hold that the Government of India has no power or jurisdiction whether under Art. 362 or otherwise to issue the certificate recognising the 2nd respondent as the sole successor to all the private properties, moveable and immovable, held by the late Nizam, or to authorise transfer of the private properties to the 2nd respondent. Accordingly, we allow the writ petition 27-2-1967 issued to the Nizam, the 2nd respondent, relating to the succession to private properties of the late Nizam. Advocate fee Rs. 100.
37. Petition allowed.