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Telangana Panchayat Raj (Authority and Manner to dispose election petitions in respect of Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads) Rules, 2018

GOVERNMENT OF TELANGANA
ABSTRACT

RULES- Telangana Panchayat Raj (Authority and Manner to dispose election petitions in respect of Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads) Rules, 2018-Issued.

PANCHAYAT RAJ AND RURAL DEVELOPMENT (PTS.III) DEPARTMENT

G.O.Ms.No. 4

Dated:29.01.2019

Read:

1. The Telangana Panchayat Raj Act, 2018
2. From the Secretary, Telangana State Election Commission, Hyd., Lr.No.147/TSEC-L/2018, Dt:04.04.2018.

ORDER:

The appended notification shall be published in the extraordinary issue of the Telangana Gazette, Dated 30.01.2019.

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF TELANGANA)

VIKAS RAJ

PRINCIPAL SECRETARY TO GOVERNMENT (FAC)

To
The Commissioner, Printing Stationery & Stores Purchase (Printing wing), Chanchalguda,
Hyderabad for publication in the Telangana Gazette and he is requested to send 100 copies of the notification to Government. Copy to:
The Commissioner of Panchayat Raj and Rural Employment, Hyderabad.
All Heads of Departments.
All District Collectors.
The Director, Information & Public Relations, Hyderabad.
The Spl.Chief Secretary to Governor, Raj Bhavan, Hyderabad. P.S to Prl.Secretary to Hon’ble Chief Minister.
P.S to Hon’ble Minister (PR& RD) P.S to Chief Secretary to Government.
P.S to Prl.Secretary to Government (PR& RD) Law(A)Dept.,
SC/SF.

//FORWARDED::BY ORDER//


SECTION OFFICER

Contd.Page.No. 2

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NOTIFICATION

In exercise of the powers conferred by section 242 read with sub section (1)286 of the Telangana Panchayat Raj Act, 2018 (Act No.5 of 2018), the Government of Telangana hereby make the following rules, relating to Authority and manner to dispose election petition in respect of Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads) namely

PART I
Preliminary

1.

1. These rules may be called Telangana Panchayat Raj (Authority to dispose petitions in respect of Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads) Rules, 2018.
2. These rules shall apply to all Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads in the State.
3. In these rules, unless the context otherwise requires:
   1. "Act" means the Telangana Panchayat Raj Act, 2018 (Act 5 of 2018).
   2. "Election Authority" means such authority not being a member or office bearer of any local authority as may by notification be appointed by the State Election Commission.
   3. “Junior Civil Judge”means the Junior Civil Judge appointed under the Telangana Civil Courts Act, 1972.
   4. The words and expressions used but not defined in these rules shall have the respective meaning assigned to them in the Act.

Contd.Page.No. 3

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PART – II

2.

1. Save as otherwise provided no election held under the Act, whether of a member, Sarpanch or Upa-Sarpanch of Gram Panchayat, President, [and VicePresident] of Mandal Praja Parishad and Member of Mandal Praja Parishad Territorial Constituencies and Chairman, [Vice-Chairman] of Zilla Praja Parishad and Member of Zilla Praja Parishad Territorial Constituency thereof, shall be called in question except by an election petition presented in accordance with these Rules to the Election Tribunal as defined in rule (2) of the act by any candidate or elector against the candidate who has been declared to have been duly elected (hereinafter called the returned candidate) or if there are two or more returned candidates against all or any such candidates.
2. The Election Tribunal shall be, -
   1. except in cases following under clause (ii),
      1. the Junior Civil Judge, if there is more than one Junior Civil Judge, the Principal Junior Civil Judge having Territorial Jurisdiction over the place in which the office of Gram Panchayat is located, in respect of the election of members, Sarpanchas and Upa-Sarpanchas of Gram Panchayat.
      2. the Senior Civil Judge or if there is more than one Senior Civil Judge at the Head Quarters, having Territorial Jurisdiction over the place in which the office of Mandal Praja Parishad or Zilla Praja Parishad as the case may be, is located, in respect of the election disputes and matters pertaining to the election of President, Vice-President and members of Mandal Praja Parishad Territorial Constituencies of Mandal Praja Parishad and Chairman, ViceChairman and Members of Zilla Praja Parishad Territorial Constituencies of Zilla Praja Parishad.

      Explanation:- For purposes of these Rules, the expressions "Senior Civil Judge" and "Junior Civil Judge" shall in relation to the Scheduled Areas mean the Agency Divisional Officer.

   2. Where the Government so directs, whether in respect of Gram Panchayats generally or in respect of any class of Gram Panchayats, Mandal Praja Parishads and Zilla Praja Parishads such officer or officers of the Government as may be designated by the Government in this behalf by name or by virtue of Office:

      Provided that an election petition may, on application, be transferred:

      1. If presented to a Senior Civil Judge or the Junior Civil Judge as the case may be, under clause (i) by the District Judge concerned to another Senior Civil Judge or Junior Civil Judge cum Magistrate as the case may be within his jurisdiction;
      2. If presented to an officer of the Government under clause (ii) by the Government to another officer of the Government.

   Where an election petition is so transferred, the authority to which it is transferred shall be deemed to be the Election Tribunal.

3. An election Tribunal exercising jurisdiction under these Rules shall be deemed to exercise such jurisdiction as a person designate and not in his capacity as a Judge or other Officer of the Government, as the case may be.

Contd.Page.No. 4

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3.

1. The election petition shall be presented within thirty days from the date of the declaration of the result of the election.

   Explanation:- If the Court of the Senior Civil Judge or the Junior Civil Judge as the case may be, or the Office of the Officer of the Government who is the Election Tribunal is closed on the last day of the thirty days aforesaid, the petition may be presented to the Election Tribunal on the next day afterwards on which such Court or Tribunal is open.

2. The petition shall contain a statement in concise form, the material facts on which the petitioner relies and the particulars of any corrupt practices which he alleges and shall, where necessary, be divided into paragraphs numbered consecutively. It shall be signed by the petitioner and verified in the manner prescribed for the verification of pleadings in the Code of Civil Procedure, 1908.

4.

1. If the irregularities alleged in the petition are likely to affect the validity of the election of more than one returned candidate, the petitioner shall join as respondents to his petition all such returned candidates.
2. The petitioner may, if he so desires, in addition to calling in question the election of the returned candidates or of all or any of the returned candidates, as the case may be, claim a declaration that he himself or any other candidate has been duly elected, in which case he shall join as respondents to his petition all other candidates who were nominated for the election but who had not withdrawn before the polling.

5.

1. At the time of presentation of the petition, the petitioner shall deposit with it in cash Rs.1000/- (Rupees one thousand only) as security for the costs of the same.

   Explanation:- Where the election of more than one returned candidate is called in question a separate deposit shall be made in respect of each such returned candidate.

2. If the provisions of these rules are not complied with, the Election Tribunal shall dismiss the petition.
3. Upon compliance with the provisions of sub rule (1), the Election Tribunal shall proceed to enquire into the petition.

Contd.Page.No. 5

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6. The Election Tribunal shall, as soon as may be, cause a copy of the petition to be served on each respondent and on the Executive Authority of the Gram Panchayat, Mandal Praja Parishad or Zilla Praja Parishad concerned and the Election Authority. Copies shall also be affixed to the notice board of the Court of Tribunal as the case may be, of the Election Tribunal and of the Office of the Gram Panchayat, Mandal Praja Parishad or Zilla Praja Parishad concerned. The Election Tribunal may also call on the petitioner to execute a bond for such amount and with such sureties as he may require for the payment of any further costs. At any time within fourteen days after such publication, any other candidate shall be entitled to be joined as a respondent on furnishing such similar security as may be demanded by the Election Tribunal.

Explanation :- For the purpose of these Rules the expression "Election Authority" shall mean, in respect of the election of the Sarpanch and Upa-Sarpanch, President of Mandal Praja Parishad and Chairman of Zilla Praja Parishad the person presiding over the meeting convened for the election of Sarpanch and Upa-Sarpanch of the Gram Panchayat, President of Mandal Praja Parishad and Chairman of Zilla Praja Parishad shall mean the Commissioner or any other officer nominated by the State Election Commissioner to exercise the powers and discharge the functions of the Election Authority.

7.

1. Every election petition shall be enquired into by the Election Tribunal, as early as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act V of 1908) for the trial of suits: Provided that it shall only be necessary for the Election Tribunal to make a memorandum of the substance of evidence of any witness examined by him.
2. The Election Tribunal shall have the powers which are vested in a Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters :
   1. discovery and inspection;
   2. enforcing the attendance of witness and requiring the deposit of their expenses;
   3. compelling the production of documents;
   4. examining witnesses on;
   5. reception of evidence taken on affidavit; and
   6. issuing commissions for examination of witnesses, and may summon and examine sue motu any person whose evidence appears to him to be material.
3. Notwithstanding anything in any enactment to the contrary no document shall be inadmissible in evidence at the trial of an election petition on the ground that it is not duly stamped or registered.
4. No witness or other person shall be required to state for whom he has voted at an election.
5. 1. (1) No witness shall be excused from answering any question as to any matter relevant to a matter in issue in the trial of an election petition upon the ground that the answer to such question may criminate or may tend to criminate him, or that it may expose or may tend to expose him to any penalty or forfeiture:

      Provided that, –

      1. a witness who answers truly all questions which he is required to answer shall be entitled to receive a certificate of indemnity from the Tribunal.
      2. an answer given by a witness to a question put by or before the Tribunal shall not, except in the case of any criminal proceeding for perjury in respect of the evidence, be admissible in evidence against him in any civil or criminal proceedings.
   2. When a certificate of indemnity has been granted to any witness it may be pleaded by him in any Court and shall be a full and complete defence to or upon any charge under Chapter IX-A of the Indian Penal Code (Act 45 of 1860) or under section 211 to 228 (both inclusive) and 233 and 234 of the Act arising out of the matter to which such certificate relates but it shall not be deemed to relieve him from any disqualification in connection with an election imposed by the Act or any other law.

Contd.Page.No. 6

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8.

1. No election petition shall be withdrawn without the leave of the Election Tribunal.
2. If there are more petitioners than one, no application to withdraw a petition shall be made except with the consent of all the petitioners.
3. When an application for withdrawal is made, notice thereof fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the manner specified in Rule 5.
4. No application for withdrawal shall be granted if the Election Tribunal is of the opinion that such application has been induced by any bargain or consideration which, they consider, ought not to be allowed.
5. If the application is granted.
   1. the petitioner shall be ordered to pay the costs of the respondents therefore incurred or such portion thereof as the Election Tribunal may think fit; and
   2. Such withdrawal shall be communicated to the Executive Authority of the Gram Panchayat, Mandal Praja Parishad and Zilla Praja Parishad concerned and the Election Authority by the Election Tribunal.

9.Any order made by the Election Tribunal as to the costs of the enquiry may be executed in the same manner as if it was land revenue due and be recovered as per the provisions of the Telangana Revenue Recovery Act, 1864 and be remitted to the party in whose favour it is ordered by the Election Tribunal.

10.An election petition shall abate on the death of a sole petitioner or of the survivor of several petitioners, and such abatement shall be communicated to the Executive Authority of Gram Panchayat, Mandal Praja Parishad and Zilla Praja Parishad, as the case may be, and the Election Authority by the Election Tribunal.

Contd.Page.No. 7

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11.Where at, an enquiry into an election petition any candidate, other than a returned candidate, claims the seat for himself, the returned candidate or candidates or any other party to the proceedings may give evidence to prove that the election of such candidate would have been void if he had been a returned candidate and a petition had been presented complaining of his election.

12. If in the opinion to the

1. that on the date of his election, a Returned Candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Act, or
2. that any corrupt practice as laid down under Section 211 of the Act has been committed by a Returned Candidate or his election agent or by any other person with consent of the Returned Candidate or his election agent, or
3. that any nomination has been improperly rejected, or
4. that the result of the election, in so far as it concerns a Returned Candidate has been materially affected.
   1. by the improper acceptance of any nomination, or
   2. by any corrupt practice, committed in the interest of the Returned Candidate by an Agent other that his election agent, with the connivance of the Returned Candidate, or
   3. by the improper reception, refusal or rejection of any vote, or the reception of any vote which is void,
   4. by any non compliance with the provisions of the Act, or any Rules or Orders made under the Act.
      1. The Election Tribunal shall declare the election of the Returned Candidate to be void.
      2. If the Election Tribunal holds the Returned Candidate guilty under Clause (b) and Clause (d) (ii) of this rule, the Election Tribunal shall in addition to declare the election of the Returned Candidate as void, shall also declare that the returned candidate shall be disqualified to contest in any elections under this Act, for a period of six years from the date of the order.

13. If any person who has lodged a petition, as in addition to calling in question, the election of the Returned Candidate claimed a declaration that he himself, or any other candidate, has been duly elected and the tribunal is of the opinion.

1. that in fact, the petitioner or such other candidate, received the majority of the valid votes, or
2. that, but for the votes obtained by the Returned Candidate, by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes, the election tribunal shall after declaring the elections of the Returned Candidate to be void, declare the petitioner or such other candidate, as the case may be to have been duly elected.

Contd.Page.No. 8

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14. Any person disqualified by decision of the Election Tribunal under Rule 12(B) for any period shall be disqualified for the same period for voting at any elections under the Act.

15.

1. At the conclusion of the inquiry, the Election Tribunal shall declare whether the election of the Returned Candidate or Candidates is void under Rule 12 and 13.
2. if he declares the election of the Returned Candidate or Candidates void, he shall further pass an order either;
   1. declaring that any other party to the petition who has under these Rules claimed the seat has been duly elected; or
   2. order a fresh election
3. The order of the Election Tribunal under sub-rules (i) and (ii) shall be final.
4. A copy of every order under sub-rule (i), or sub-rule (ii) shall be communicated to the Executive Authority of the Gram Panchayat, Mandal Praja Parishad and Zilla Praja Parishad, as the case may be, and the Election Authority.

(BY ORDER AND IN THE NAME OF THE GOVERNOR OF TELANGANA)

VIKAS RAJ

PRINCIPAL SECRETARY TO GOVERNMENT (FAC)

//FORWARDED::BY ORDER//


SECTION OFFICER

Pages: 1 2 3 4 5 6 7 8

amp; Rural Development Dept., A.P., Hyderabad.

Panchayat Election Law in telugu states

Mutation is not a proof of Title Court Judgement

conten

Miss. Talat Fatima Hasan vs His Highness Nawab Syed Murtaza ... on 31 July, 1996

Equivalent citations: AIR 1997 All 122

Bench: A Srivastava

JUDGMENT

1. This suit for partition of moveable and immoveable properties left by late Syed Raza Ali Khan, Nawab of Rampur, rendition of accounts of income, profits, usufructs and benefits from the said property, and decree for pendente lite and future mesne profits, was filed by the plaintiff in the Court of District Judge, Rampur in the year 1972. As the proceedings in the suit could not make progress for over twenty years in the court of the District Judge, and thereafter Civil Judge, Rampur, the Hon'ble Inspecting Judge for Rampur Sessions Division, during the course of his inspection of the Judge-ship, directed the Registrar to place the matter before Hon'ble the Chief Justice to withdraw the suit for trial before the High Court. The Hon'ble the Chief Justice by his order dated 2-1-1995 assigned the suit to this bench for hearing and disposal.

2. In short the pleadings of the plaintiff are, that late His Highness, Maj. Gen. Sir Syed Raza Ali Khan Sahib Bahadur hereinafter referred to as 'the late Nawab' was the ruler of erslwhile Rampur State in U. P. By an agreement dated 15-5-1949, the late Nawab transferred the entire administration of the Rampur State to the Government of India, w.e.f. 1-7-1949 and granted to the latter, full authority, jurisdiction and power in relation to the territories of the said State. The said agreement also provided in Art. IV that the Nawab shall be entitled to the full ownership use. occupation and enjoyment of all private properties belonging to him on the date of the agreement. An inventory of all moveable properties and immoveable properties, securities and cash balance held by him as private property was prepared. Nawab Syed Raza Ali Khan died intestate on 6th March. 1966. He owned and possessed at the time of his death, properties detailed in the schedule attached to the plaint, besides other properties.

The late Nawab was a muslim of the Shia Sect and the personal law applicable was the Muslim Shia Law. The inheritance of his private properties thus would be governed by the Muslim Personal Law (Shariat) Application Act1937. According to the said law the estate of the late Nawab comprising of 55.296 Sihams devolved upon his heirs as follows :--

1. Her Highness Rafat Zamani Begum (Widow) Sihams 1/2.
   Smt. Qaisar Zumani Begum (widow) ,, 1/3.
   smt. Talat Zamani Begum (widow> ,,
2. Nawabzada Syed Abil Ali Khan (son) ,,
3. His Highness Nawab Syed Murtaza Ali Khan Sahib (son) ,,
4. Nawabzada Syed Zulfiqar Ali Khan (son) ,,
5. Nawabzadi Sycda Khurshid Laqa (daughter) ,,
6. Nawabzadi Syeda Birjees Laqa Begum (daughter) ,,
7. Nawabzadi Syeda Kamar Laqa Begum (daughter) ,,
8. Nawabzadi Syeda Akhtar Laqa Begum (daughter) ,,
9. Nawabzadi Syeda Naheeda Laqa Begum (daughter) ,,
10. Nawabzadi Sycda Mehrunnisa Begum (daughter) ,,

Contd. Page.2

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3. Consequent to the death from time to time of various persons from amongst me aforesaid heirs of the late Nawab, the share of the partiks as on 4-2-1994, when necessary amendment in the plaint was incorporated, is stated to be as follows :--

1. Plaintiff-Talal Fatima Hasan Sihams
2. Defendant No. 1/2 Syed Mohd. Ali Khan ,,
3. Defendant No. 1/3 Smt. Nighal Ali Khan ,,
4. Dcfendant No. 3/1 Begum Mehtab Ali Khan alias Begum Noor Bano ,,
5. Defendant No. 3/2 Mrs. Saman Khan ,,
6. Defendant No. 3/3 Mrs. Durrez Ahmed ,,
7. Defendant No, 3/4 Mr. Kazim Ali Khan ,,
8. Mrs. Gisela Maria Ali Khan ,,
9. Master Raza Andrews Ali Khan ,,
10. Master Nadeem Ali Khan ,,
11. Syed Sirajul Hasan ,,
12. Syeda Birjees Laqa Begum ,,
13. Syeda Akhlar Laqa Begum ,,
14. Syeda Nahecda Laqa Begum ,,
15. Syeda Kamar Laqa Begum ,,
16. Syeda Mehrun Nisa Begum ,,
17. Smt. Qaisar Zamani Begum ,,
18. Smt. Talal Zamani Begum ,,  

TOTAL 55296 Sihams

4. It is further pleaded by the plaintiff that certain rights, privileges and title which were guaranteed to the late Nawab when Constitution of India came into effect, were to continue even after his death and were to be enjoyed by his successor who according to the definition as given in Art. 363(22) of the Constitution was to be recognised by the President us Ruler. The defendant No. 1 Syed Murtaza Ali Khan being the eldest son of the late Nawab approached the President of India who recognised him as ruler for the purpose of Art. 366(22) of the Constitution. A certificate dated 1-4-1966 was also issued by the Government of india to the following effect:--

"that His Highness Nawab Syed Murtaza Ali Khan Bahadur has been recognised by the President of India underArt. 366(22) of the Constitution of India as the Ruler of Rampur in succession to his father, His Highness Nawab Sir Syed Raza Ali Khan Bahadur, Mustaid-i-Jang, with effect from 7th March, 1966 and accordingly the said His Highness Nawab Syed Murtaza Ali Khan Bahadur, as such Ruler, is the sole successor to all private properties, moveable and immoveable, held by the said His Highness Nawab Sir Syed Raza Ali Khan Bahadur, Mustaid-i-Jang in the capacity of the Ruler of Rampur and that the Government of India have no objection to such property being transferred to the said His Highness Nawab Syed Murtaza Ali Khan Bahadur."

5. The said certificate of the Government of India was challenged by the defendant No. 10, before Delhi High Court, which by judgment and order dated 18-12-1969 quashed the said certificate. The same was affirmed by the Supreme Court.

6. On abolition of the Privy Purses by an Executive Order, the President of India withdrew the recognition granted to the defendant No. 1 for the purpose of Article 366(22). The said defendant thus lost all his personal rights, privileges, immunities, dignities and title to which he was entitled as a ruler. The plaintiff thereupon filed suit No. 22 of 1970 about the properties in suit in the Court of the District Judge, Rampur. During the pendency of the said suit, however, the derecognition order was declared null and void by the Supreme Court, hence the said suit was withdrawn with liberty to file fresh suit with permission of the Government of India. After obtaining the permission on 22nd April, 1971 under sub-section (1) of Section 86, read with Section 87(b) of the Civil Procedure Code, the present suit has been filed for partition of the plaintiff's 784 Sihams out of 55276 Sihams share, accounting and recovery of mesne profits, because defendant No. I who was in possession over the properties left by late Nawab and was enjoying its usufrucy, declined to partition her share, to render accounis and pay her share in the income and mesne profits.

Contd. Page.3

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7. The suit was contested by the late defendant No. 1, which defence has also been adopted by his legal representatives. In the written statement of defence it is not disputed that the late Nawab entered into an agreement dated 15-5-1949 with Government of India and thus ceded his state to the Union of India w.e.f. July 1, 1949. It has been stated in the written statement that the reference to the phrase 'Private Properties' has been made in Art. IV of the Agreement of Merger in Contradistinction to the State properties i.e. the property of the Union of India. Prior to Ihe merger there was no distinction between the private and State properties of the State of Rampur, and everything vested in the ruler. The merger agreement provided that the dominion Government guarantees succession according to law and custom to the Gaddi of the State, and to Nawab's personal rights, privileges, immunities etc. The late Nawab who was a Shia Muslim died on March 6, 1966. The inheritance to his Gaddi, including his private properties, however, was not governed by Muslim Personal Law or Shariat Act, rather by the rule of succession known as rule of primogeniture. On the death of the late Nawab, the defendant No. 1 who was the sole heir and successor under the law of male lineal primogeniture entitled to succession to Gaddi, was recognised by the President of India as the ruler under Art. 366(22) of the Constitution. The defendant No. 1 alone; thus, inherited the properties left by the late Nawab as his sole successor. The said right to succession was not conferred by the certificate issued by the Government of India rather, was in accordance with rule of succession prevalent in the matter of succession to the Gaddi and the private properties of Rampur State, which in its very nature has an impartible character. The plaintiff, or for that matter none of the defendant Nos. 2 to 15, have inherited any share or right to the properties left by the late Nawab, the plaintiff is not entitled to seek partition, rendition of accounts of any mesne profits. It is further stated that late Nawab had according to law of Rampur made ample provision by creating trust including the one named Raza Trust, giving Jagirs and Pensions etc. to the junior members of the family including the plaintiff and other defendants, who were not to get anything under the law of succession applicable to the rulers of Rampur. The plaintiff smother as also the other defendants had been receiving allowance apart from the other properties given to them, by the late Nawab. The late Nawab had given a sum of Rs. 25.00 lacs to the Raza Trust, which was for the benefit of his children other than the defendant No. 1. The beneficiaries were the defendants Nos. 3, 9 to 12 the husband of the defendant No. 4, father of defendant Nos. 5 and 6, wife of defendant No. 7 and mother of plaintiff and defendant No. 8.

8. The defendant No. 13 was provided immoveable property at Madras. The defendant No. 2 was given properties at Nainital and Bombay, worth Rs. 50.00 lacs, besides immoveable property worth Rs. 1.00 crore at Friends Colony, New Delhi, Mussorie and Madras. The plaintiff and other defendants thus are barred and estopped from claiming any share right and title in the properties held by the defendant No. 1 or his legal representatives by virtue of succession.

9. The provisions of Shariat Act, it is further contended do not have the effect of overriding the provisions of Arts. 362, 363, 366(22) of the Constitution. The plaintiff, her mother, father, as well as other defendants having acquiesced, accepted and acknowledged the right and title of the answering defendant No. 1 as heir apparent and thereafter as the Ruler of Rampur, are estopped from denying the right and title of the contesting defendants. The plaintiff and other defendants also having not contested the mutation proceedings in respect of the landed properties inherited by the contesting defendant, their claim of title in respect of the same is now not maintainable. The two palaces named Khas Bagh Palace and the Sahbad Castle have been recognised by the Government of India by notification No. 32-11 dated 14 May, 1954 as the official residence of the ruler of Rampur. These palaces along with their furniture, fixtures, equipments, picture, motor garage, water works plant, Dhobi-ghat, land and gardens are adjuncts of the ruler and cannot be subject matter of suit. The suit in respect of partition of moveable properties is barred by limitation, it is bad for partial partition, the suit for partition is also not maintainable due to the pendency of another partition suit, namely Civil Suit No. 219 of 1972 Syed Sirajul v. Syed Murtaza All and others pending in the original side of the High Court of Judicature at Delhi. It is further pleaded that share, if any of the defendant No. 13 in the property in question stands vesled in the custodian of enemy property of the India.

10. The defendant Nos. 2 to 12 have filed applications supporting the claim of the plaintiff and reserving their own right to relief at appropriate stage.

11. The defendants Nos. 14 and 15 in their written statement supported the claim of defendant No. 1.

Contd. Page.4

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12. On behalf of the plaintiff three replications were filed controverting the contentions raised by the contesting defendant, re-iterating the averments in the plaint, and further stating that after merger the ruler for all practical purposes ceased to exist, its existence being only for certain purposes specified in the Constitution, i.e. privileges, immunities, dignities and privy purse, the late Nawab did not own the properties in suit as ruler, rather held it as an individual muslim citizen of India. It is wrong to say that defendant No. 1 came to possess those properties as ruler, it was only a conventional affair that the eldest son used to succeed to the Gaddi of the Rampur State as an heir apparent, which also ceased after merger of the State. The right to succeed to Gaddi was different and distinct from the right to inherit personal property. The purported rule of succession was also not uniform and was open to exceptions. The provision of maintenance, support, status and dignity of the junior members of the family by way of grant of pensions, allowances, property and Jagirs was a premerger affair and has no bearing on the question of inheritances. The benefits of the trust could not be mingled with the right of inheritance. It is a benefit from an Atiya and it has not been left as private property by late Nawab and as such cannot be questioned and re-agitated. The property in Friends Colony is self acquired of the defendant No. 2.

13. Upon the pleadings of the parties, the following issues, as recast from time to time, have been framed in this suit for determination.

ISSUES

1.  Whether the suit has not been properly valued and whether the Court fee paid is insufficient as alleged in para. 59oflhe Written Statement of Defendant No. 1?

2.  Whether the succession of the property in suit left on his death by late Nawab Raza Ali Khan after the merger of former State of Rampur with the dominion of India, was governed by personal law applicable to shia muslims to the exclusion of any custom including that of primogeniture?

3.  What is the effect of mutation in favour of the defendant No. 1 in respect of the private properties in suit left by late Nawab Raza Ali Khan?

3A.  Whether the non-filing of objection to the mutation proceedings by the plaintiff was on account of the fact that she had no knowledge of the said proceedings?

4.  Is the present suit for partition haired by limitation as far as it relates to the moveable properties left by late Nawab Raza Ali Khan?

5.  Is the suit not maintainable due to the creation of the Raza trust and other grants and gifts made by the late Nawab Syed Raza Ali Khan in favour of his children as enumerated in sub-paras (iii) and (iv) of para. 3 of the written statement of defendant No. 1/2 and the acceptance of the same by the plaintiff and defendant Nos. 2 to 15?

6.  Are the properties in suit left by late Nawab Syed Raza Ali Khan impartible, as alleged in para.3 of written statement of defendant No. 1/2?

7.  Whether the suit is bad for partial partition for the reasons mentioned in paras 11 and 13 of the written statement?

8.  Is the present suit for partition not maintainable due to the pendency of another suit for partition of the properties left by late Nawab Syed Raza Ali Khan, namely Civil Suit No. 219 of l972 Syed Sirajul Husan v. Syed Murtaza Ali Khan and others pending on the original side of the High Court of Delhi at New Delhi as stated in para. 14 of the written statement of defendant No. 1/27.

9.  Whether the suit for partition of Khas Bagh palace and Shahbad castle, which are subject matter of suit is not maintainable, as alleged in para. No. 49 of the written statement of defendant No. 1?

10.  Whether the written statement of defendant No. 1/2 is not properly verified? If so, its effect?

11.  Whether the Nawab Raza AH Khan left any list of movtable propcities which has been given in the schedule attached with the plaint?

12.  To what relict, if any is the plaintiff entitled?

13.  Whether the defendant No. 1/2and 1/3 are liable to render account of the income, profits, usufruct and benefits arising out of the properties in suit?

14.  Whether the plaintiff was born on 29th February, 1952 as alleged in paragraph No. 22 of the plaint. If so, its effect?

15.  Whether the share, if any of the defendant No. 13 in the property in question stands vested in the custodian of enemy property of India, Bombay. If so, its effect?

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14. This issue relating to valuation and court fee was decided as preliminary issue by the District Judge, Rampur on 17-1-1974 and it was held that except for the relief (b) relating to accounting, the suit has been correctly valued. The plaintiff accordingly applied for amendment of the plaint which was allowed on 7-8-1974, and the amendment was incorporated. The said finding dated 17-7-1974 shall form part of this judgment.

Issues Nos.3 and 3A

15. It is undisputed mat after the death of late Nawab Raza Ali Khan, the name of his eldest son, late defendant No. 1 Syed Murtaza Ali Khan was mutated in the revenue records in respect of land property left by the late Nawab. Although the contesting defendant has pleaded in his written statement, that the plaintiffs claim of title in respect of the same is not maintainable, it has fairly been conceded during arguments by the learned counsel for the contesting defendant, Shri B. D. Sharma that mutation being only for fiscal purposes and the guiding factor in recording mutation being possession, the same is not a proof of title. Such being the state, the plaintiff's suit based on claim of title is not adversely hit by mutation of the late defendant Murtaza Ali Khan. The contention of the plaintiff in this regard further is that she had no knowledge of the said proceedings, as such she cannot be deemed to have acquiesced to the claim of mutation by the late defendant No. 1. This aspect however, also loses significance in view of the above staled legal position that mutation may be a proof of possession, but not a proof of title. In the instant case, possession of the late defendant No. 1 and after him his legal representatives is undisputed. Accordingly for the above reasons, it is held that the mutation in favour of late defendant No. 1 Syed Murtaza Ali Khan in respect of the landed properties in suit, left by the late Nawab Raza Ali Khan does not on its own go to militate against the claim of title to these properties by the plaintiff. The non-filing of any objection to the mutation proceedings by the plaintiff is also of no consequence in these circumstances.

16. There is now no dispute between the parties that the plaintiff Talat Fatima Hasan. was born on 29th February, 1952. The limitation for the present suit for partition of the movcable properties left by the late Nawab would thus in ordinary course start from 6th March, 1966 on which date the late Nawab died. The plaintiff on the said date was admittedly a minor. The three years period of limitation prescribed under Art. 113 of the Limitation Act will thus start from the date when the right to sue accrued to the plaintiff i.e. on 1-3-1970, when the plaintiff became major. Within the prescribed period of limitation irrespective of the period of pendency of an earlier suit (O. S. No. 22 of 1970) filed by the plaintiff which she later withdrew with liberty to file a fresh suit. The present suit is thus well within limitation. The issue is accordingly answered in negative.

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17. This issue was not pressed during argument by the learned counsel for the contesting defendant and is accordingly answered in negative.

18. Although the defendant No. 1/2 in his additional written statement has pleaded that the present suit for partition of the properties left by the late Nawab is not maintainable because of another suit, being suit No. 219 of 1972, filed by the defendant No. 3 and pending on the original side of the High Court of Delhi, the plea has not been seriously pressed. The subject matter of the said suit is if jwellery and thus, is entirely different from that in the present suit. Undisputedly the present suit is prior in time. For all these reasons, therefore, this issue is also answered in negative.

19. At the close of argument it was conceded on behalf of the contesting defendant by his learned counsel that the declaration of Khas Bagh and Shahbad Castle as official residence of the ruler of Rampur was for the purpose of exemption from the liability regarding taxes. The same as such will mil affect the title, if any, of the plaintiff. Consequently, this issue is also answered in negative.

20. This issue has hot been seriously pressed on behalf of the plaintiff during arguments. There is also no such defect pointed in verification of the written statement, which may render it inadmissible. This plea of the-plaintiff is thus, negatived.

21. These three issues amongst them encompass the main controversy in suit, relating to inheritance of the private properties left by the Nawab Sayed Raza Ali Khan, Ex-Ruler of the Rampur State. Accordingly, it will be proper to deal with these together. Before entering into the merits of the rival claim and contentions of the twosides, it will be useful to keep in mind the facts and situations which are not in dispute.

22. Admittedly, the State of Rampur, ruled by late Nawab Syed Raza Ali Khan, was a sovereign State under the suzerainty of the British Government, till transfer of power on 15-8-1947 by the British to the people of India by means of the Indian Independence Act, 1947. The suzerainty of the British lapsed w.e.f. the said date. By means of an instrument of merger dated 15-5-1949, Exhibit 4 quoted below the late Nawab merged the State of Rampur with the dominion of India with effect from 1-7-1949.

"Agreement made this fifteenth day of May, between the Governor General of India and the Nawab of Rampur.

Whereas in the best interests of the State of Rampur as well as of the Dominion of India it is desirable to provide for the administration of the said State by or under the authority of the Dominion Government :

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AND WHEREAS the Nawab has accepted the advice given to him by the Dominion Government, in this, IT IS HEREBY AGREED AS FOLLOWS :--

ARTICLE 1 The Nawab of Rampur hereby cedes to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agrees to transfer the administration of the State to the Dominion Government on the 1st day of July, 1949 (hereinafter ret erred to as 'the said day').

As from the said day the Dominion Government will be competent to exercise the said powers, authority and jurisdiction in such manner and through such agency as it may think fit.

ARTICLE 2 The Nawab shall continue to enjoy the same personal rights, privileges, immunities, dignities and titles which he would have enjoyed had this agreement not been made.

ARTICLE 3 The Nawab shall with effect from the said day be entitled to receive for his lifetime from the revenues of the State annually for his privy purse the sum of rupees seven lacs free of all taxes. After him the privy purse will be fixed at rupees six lacs and sixty thousand. This amount is intended to cover all the expenses of the Ruler 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.

The Government of India undertakes that the said sum of rupees seven lacs shall be paid to the Nawab in four equal instalments in advance at the beginning of each quarter from the State treasury or at such other treasury as may be specified by the Government of India.

ARTICLE 4 The Nawab shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of this agreement.

The Nawab will furnish to the Dominion Government before the 30th June, 1949 an inventory of all the immovable property, securities and cash balances held by him as such private property.

If any dispute arises as to whether any item of property is the private property of the Nawab or State property, it shall be referred to a judicial officer nominated by the Government of India and the decision of that officer shall be final and binding on both parties.

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ARTICLE 5 All the members of the Nawab's family including his consorts and children 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 15th day of August, 1947.

ARTICLE 6 The Dominion Government guarantees the succession according to law and custom to the gaddi of the State and to Nawab' s personal rights, privileges, immunities, dignities and titles.

ARTICLE 7 No enquiry shall be made by or under the authority of the Government of India, and no proceedings shall lie in any Court, against the Nawab. whether in a personal capacity or otherwise, in respect of any thing done or omitted to he done by him or under his authority during the period o!" his administration of that Slate.

ARTICLE 8 (1) The Government of India hereby guarantees either the continuance in service of the permanent members of the Public Services of Rampur on conditions which will be not less advantageous than those on which they were serving on the 1st of May, 1949, or the payment of reasonable compensation.

(2) The Government of India further guarantees the Continuance of pensions and leave salaries sanctioned by the Nawab to members of the Public Services of the State and of the Rampur State Forces who have retired or proceeded on leave preparatory to retirement and also guarantees the grant of pensions, gratuities and leave earned by and due to the members of the aforesaid Public Services of the State and of the Rampur State Forces.

ARTICLE 9 Except with the previous sanction of the Government of India, no proceedings, civil or criminal, shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duties as a servant of the State before the day on which the administration is made over to the Government of India.

In confirmation whereof Mr. Vapal Pangunni Menon, Adviser to the Government of India in the Ministry of States, appends his signature on behalf and with the authority of the Governor-General of India and Nawab Sir Syed Raza Ali Khan has appended his signature on behalf of himself, his heirs and successors.

NAWAB OF RAMPUR Adviser to the Government of India Ministry of States.

Dated, New Delhi, the 15th May, 1949."

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23. In terms of the agreement aforesaid Nawab Raza Ali Khan continued to hold the Gaddi of Nawab of Rampur and became entitled to the personal rights, privileges, immunities, dignities and titles attached to the said Gaddi. including the annual privi purse as guaranteed in Art. 3 of the Agreement. The late Nawab also became entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of Agreement. The immovable properties, subject matter of this suit, detailed and described at the foot of the plaint, as well as a good lot of moveable properties, were admittedly retained as his private property by the late Nawab in terms of Art. 4 of the Agreement. There of course is a dispute between the parties on the correctness of the list of the moveable properties attached to the plaint.

24. The above said position obtaining on the eve of the enforcement of the Constitution of India, continued to be operative under the Constitution by virtue of the provisions of Arts. 362 and 366(22).

25. The late Nawab Raza Ali Khan who was a Shiya Muslim died intestate on 6-3-1966. After his death, the late defendant No. 1 Syed Murtuza Ali Khan, the eldest son of the late Nawab, succeeded to the Gaddi of Rampur State and came to be in exclusive possession of the private properties left by the late Nawab.

26. The dispute between the parties arises from this stage, in so far as it is the contention of the plaintiff that, the entire property (moveable and immoveable) left by the late Nawab devolved upon all his heirs according to the Muslim personal law, including the plaintiff, and not exclusively on his eldest son Nawab Syed Murtuza Ali Khan (late defendant No. 1).

27. The contention on the other hand of the contesting defendant is that the properties in suit, which were owned and possessed by the late Nawab in his capacity as holder of the Gaddi of the State of Rampur, were succeeded by late defendant No. 1 Nawab Murtuza Ali Khan being successor to the Gaddi. which succession was governed by the rule of succession called the rule of male lineal primogeniture, and not by the Personal Law, as envisaged in Muslim Personal Law (Shariat) Application Act, 1937. Yet another contention of the contesting defendant is that being properly hold by. and inherited under the rule of male lineal primogeniture from, a sovereign ruler, the principle of impartibility will also he attracted, and thus also, no other heir or de-scendent of the late Nawab could claim any right by sueccssion to, or partition of, the property in question. Further contention of the defence is that as a corollary to the rule of single heir succession, to Gaddi of the State of Rampur which term included the properties also, under the custom of male lineal primogeniture, another ancillary custom prevalent was, to provide Jagirs, pensions and other properties to the junior members of the family who were not to get anything under the rule of succession, what came to be known as private property in the post merger period, it is alleged, is for all purposes, a part of the Gaddi. In keeping with the abovesuid principle the plaintiff, her mother, as also the other defendants, have received immoveable properties besides allowances and a trust named 'Raza Trust' was also created, the beneficiaries of which were the defendants Nos. 3 to 12 and the mother of the plaintiff,

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28. It has been contended, in support of the propositions advanced on behalf of the plaintiff, that once the State of Rampur was merged to the Dominion of India, and all rights to administer the territories and the subjects of the said State, were ceded to the union government, there remained neither a kingdom nor a ruler, and Nawab Raza AH Khan like all other rulers became an ordinary citizen, with only title of Nawab. The nomenclature holder of Gaddi in the instrument of merger and 'ruler' in Art. 366(22) of the Constitution was relevant only to the personal rights, privileges, immunity and for no other purpose. Being relegated to the position of an ordinary citizen of India w.e.f. 1-7-1949, Nawab Raza Ali Khan ceased to own and possess the properties in suit as part of his Gaddi, or as a ruler. It is argued firstly, that the rule of succession applicable to the Gaddi, also was not the rule of male lineal primogeniture, and secondly even if it was so, the same ceased to apply w.e.f. the date of merger, and on the death intestate, of Nawab Raza Ali Khan on 6-3-1966, the succession to the properties in suit would be in accordance with the Muslim Personal Law, as mandated in the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter referred to as the Shariat Act). The said Act, it is contended, was made applicable to the State of Rampur w.e.f. 1 January, 1950 in accordance with the Merged Slates Laws Act No. 49 of 1949. According to S. 2 of the Shariat Act, it is pleaded, notwithstanding any custom etc. to the contrary, the law applicable to intestate succession shall be the Muslim Personal Law. The plaintiff being one of the heirs according to Personal Law. thus succeeded to the share claimed, and is entitled to claim partition and possession over the same, besides the other reliefs claimed. Yet another plea advanced on behalf of the plaintiff is that the provisions of the Bengal, Agra, Assam Civil Courts Act, 1887, in S. 37 provide fora civil court to decide the question regarding succession, inheritance etc. in accordance with the Mohammedan Law in cases where the parties are Muslim, except in so far as such law has been altered or abolished by legislative enactment. Custom as such cannot be set up to claim succession.

29. On the question of the properties in suit being impartible in nature, the contention of the plaintiff is that there is no concept of any impartible estate in the Muslim Law, and even if such a concept was there, with the abolition of the kingdom and the ruler, the property succession to which is governed by the Muslim Personal Law, will also be liable to partition.

30. On behalf of the contesting defendant on the other hand, it has been contended by their learned counsel that true it is that late Nawab became an Indian Citizen with the merger of his Stale, but the Muslim Personal Lav (Shariat) Application Act, 1939 does not apnly. as the properties of such rulers, whether State or private, retained the character of impartiality, the rulers obtained a solemn assurance and a firm guarantee while entering into a merger agreement that they will not be subject to Personal Law rather to custom, as per Art. 6 of the instrument of merger, succession in this case opened in 1966 that is before the abolition of rulership by the 26th Amendment. Gaddi in reference to context included even the private property of the ruler. The right of Nawab Murtuza Ali Khan to succeed to the Gaddi of Rampur, being the eldest son of the late Nawab and the presidential order of recognition dated 1-4-1966 was never challenged rather was accepted and acquiesced to by all other heirs of the late Nawab. The rule of male lineal primogeniture stands admitted in the statement under O. 10. R. 2, C. P. C. of the plaintiff's counsel which is binding as pleading, the principle of impartibility of a State is very much in vogue in Muslims. The rule of impartiality, it is further contended, is a custom qua property and not qua succession, hence also the non-obstinate clause in S. 2 of the Shariat Act will not apply.

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31. The contesting parties before this Court have led some oral and documentary evidence on certain aspects of the case. They have also referred to a plethora of case law, some to the point and some besides.

32. In witness box there have been examined one witness each Syed Mehandi Hasan (P. W. 1) on behalf of the plaintiff Abdul Zamil Khan (D. W. 1) on behalf of the contesting defendant. The defendant No. 9 Birjees Laqa Begum examined herself as D. W. 3.

33. The P. W. 1 Syed Mehandi Hasan who is also the general power attorney holder of the plaintiff, stated that he worked as a clerk in the office of Nawab Raza Ali Khan and till the death of the late Nawab resided in the room in Khas Bag Palace. After the death of the late Nawab, the defendant No. 1 Murtuza Ali Khan got prepared a list of moveable and immoveable properties left by his father, the same was kept in the custody of Captain Sajid Ali. The witness had received a copy of the same which is attached as a schedule to the plaint, the list was prepared on physical checking of the properties. He was removed from service after the death of the late Nawab and became the employee of the maternal grandmother of the plaintiff. He identified the signature of Nawab Raza Ali Khan on the bottom of letter dated 26-8-1954 of the late Nawab to Shri C. S. Venkaiehar, Secretary to the Ministry of State Government of India/Paper No. 402/15C).Cross-examined he denied that the list of properties annexed to the plaint is fictitious and has been prepared on imagination. He denied that after the death of late Nawab, Smt. Rafat Zamani Begum took away moveables in 18 trucks from Khas Bag Palace.

34. The D. W. 1 Abdul Zamil Khan a resident of the State of Rampur stated that he was a frequent visitor to the Khas Bag Palace in the life-lime of Nawab Raza Ali Khan, Mehandi Hasan (P. W. 1) was never in employment of Raza Ali Khan. While shifting to Raza Villa from Khas Bagh Palace in December, 1966 or January, 1967 Rafat Zamani Begum took with her valuable furniture, carpets, utensils and other moveables in 18 trucks.

35. The defendant No. 9 Smt. Birjees Laqa Begum (D. W. 2) the daughter of late Nawab Raza Ali Khan stated that the late Nawab had left a lot of moveable property in addition to the articles mentioned in the list annexed to the plaint. She further stated that on the death of the lale Nawab all his heirs got share in the properties left by him according to the Shariat law. The defendant No. 13 is not a Pakistani citizen, rather is an American citizen - cross-examined by the contesting defendant she admitted that she is a beneficiary of the Raza Trust, has a share of Rupees there lacs in it, and Nawab Raza Ali Khan gave her Rs. 1,17,000/- worth share, Rupees five lacs worth ornaments and a house named Birjees Manzil which she sold for Rs. 35,000/-.

36. Amongst the documents filed, the most discussed, and relied on by the parties for cross-purposes, is Exhibit 4 the instrument of merger dated 15-5-1949, already reproduced above and Exhibit A-7 the Gazette Notification dated 1 April, 1966 of the Ministry of Home Affairs, Government of India regarding recognition to late defendant No. 1 Nawab Murtaza Ali Khan as ruler of Rampur, by succession, in place of late Syed Raza Ali Khan Bahadur. The other set of documents are mutation orders regarding landed property, some sale and gift deeds, issued during the pre merger period, pleadings of an earlier Suit No. 22 of 1970 which was subsequently withdrawn, judgments rendered by the High Court and other Courts of Rampur State, administration reports, documenis relating to the Raza Trust and so on, reference to which, if necessary, shall be made in the course of discussions to follow.

37. It will be necessary to mention here itself, that as far as the oral evidence led in the case is concerned, these do not touch upon the main question in issue regarding the right to succession, whether by male lineal primogeniture of the common Muslim Personal Law, and the impartible character or otherwise, of the property in suit, which admittedly was the State property during subsistence of the State of Rampur, and was carved out as personal property of the late Nawab at the time of merger, in terms of the Aft.

4 of the instrument of merger. The controversy thus has to be decided on the basis of the pleadings, the statements, and admissions if any under O. 10, R. 2, C. P. C. of the parties, the impact if any, of the instrument of merger, the presidential order of recognition and the legal positron as applicable on the facts of the case.

38. Taking up first the question of the mode of inheritance to the rulership of the State of Rampur, which before merger was admittedly a sovereign State, it would be found that it is not so hotly debated a question in pleadings, as has been sought to be made in the course of arguments. The plaint was silent about any such controversy. Even while referring to the recognition of late defendant No. 1 Murtuza Ali Khan as Nawab in succession to the late Nawab (Syed Raza Ali Khan) under Art. 363(22) of the Constitution by the President of India, the only thing stated was that Syed Murtuza Ali Khan being the eldest son of the late Nawab approached the President to recognise him as ruler. No issue on this question thus was created in the pleadings as contained in the plaint.

39. In the written statement of defence filed by the contesting defendant however, it was specifically and categorically pleaded that the Gaddi of Rampur State was from the very beginning inherited by the eldest son of the deceased ruler, on the principle of male lineal primogeniture and it was on this principle that Syed Raza Ali Khan and after him, Syed Murtaza Ali Khan, became the ruler of Rampur. In her replication, for the first time the plaintiff made a feeble attempt to deny the defendant's contention in this regard by saying that it was only a conventional affair that the eldest son used to succeed to the Gaddi of Rampur as an heir apparent.

40. Under law of pleadings, where a fact alleged or pleaded by a party is not specifically controverted, with its own version in that regard clearly and categorically pleaded, no issue can arise. In the state of facts relating to pleadings herein, as stated above, in the eyes of law there was no denial of the defendant's contention, regarding inheritance to the Gaddi of Rampur State being governed by the law of male lineal primogeniture. This fact is further confirmed when we look into the evidence led by the plaintiff wherein also nothing was staled in derogation of the contention of the defence in this regard.

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41. On the other hand, we have on record the statement under O. 10, R. 2, C. P. C. of Zulfekar Ali Khan in his capacity as the General Attorney of the plaintiff made on 7-12-1974 in the Court of the District Judge, where the suit was then pending, to the effect that "in the ex-Rampur State there was no written law but there was only a custom that the eldest son would succeed as the Nawab of Rampur, the eldest son was also recognised as heir apparent from the time of his birth:..."

42. There being no dearth of law on the point that a statement of a party, its counsel or agent under O. 10. R. 2, C. P. C. is for alt practical purposes a pan of pleading, and is binding on the parly, who makes it or on whose behalf it is made, the plaintiff thus is bound by these admissions going to clearly establish the rule of inheritance to the Gaddi of Rampur State by the eldest son of the ruler, on whose death the succession opened.

43. An attempt has been made during arguments on behalf of the plaintiff to wriggle out of the binding nature of these admissions, and lack of specific denial of the defendant's pleas-in this regard, by saying that firstly it was not necessary to say so, the burden being on the defendant to establish succession by the rule of male lineal primogeniture, and secondly by suggesting that the statement under O. 10, R. 2, C. P. C. may be erroneous. No evidence or circumstance how-ever, has been cited to indicate that it was an erroneous statement either in the replication or under O, 10, R. 2, C. P. C. The burden no doubt was on the defendant to establish his plea of succession by eldest son, but the same stood discharged when his contention was not challenged in accordance with law, as contained in the relevant rules of O. 8 of the C. P. C.

44. Even if we look to the history of succession to the throne of the Stale of Rampur right from its inception about 200 years ago, as contained in the administration report of Rampur State of 1937-38, Exhibit 30. it would go to strengthen the plea with regard to the inheritance to the Gaddi being based on male lineal primogeniture. The one or two stray incidents of the succession going to a person other than the eldest son of the deceased ruler, appear more to be outcome of the force of circumstances, and not because of any deviation from the principle of male lineal primogeniture.

45. There thus, could be no two opinions on the point that succession to the Gaddi of Rampur Stale has all along been governed by the rule of succession, known as male lineal primogenilure, and the late Nawab Raza Ali Khan who succeeded to the said Gaddi during the suzerainty of the British over India, and the late defendant No. 1 Syed Murtuza Ali Khan who succeeded to the Gaddi after merger of the State in the dominion of Indiu, and was recognised as such by the Government of India, became ruler of Rampur State under the said rule of succession.

46. This brings us to the next and the main part of the controversy in this suit with regard to the rights in, and succession to, the properties in suit which on the merger of the State were carved out as the private property of the ruler as indicated in Art. 4 of the instrument of merger. The relevant part of the said Article, to recapitulate, is to the following effect:--

"The Nawab shall be entitled to the full ownership, use and enjoyment of all private properties (as distincl from State properties) belonging to him on the date of this agreement.

The Nawab will furnish to the Dominion Government before the 30th June, 1949 and inventory of all the immoveable property, securities and cash balances held by him as such private property."

47. The crux of the contentions of the plaintiff in this regard is that once the State of Rampur ceased to exist on account of the merger of its territories with the Dominion of India, and the pre. merger concept of the rulership stood abolished, the late Nawab became an ordinary citizen of India for all purposes whatsoever, and the nomenclature 'ruler' in Article 366(12) of the Constitution is relaiable only to the personal privileges, dignities, titles and privi purse and not to any property. The properties, it is further contended, for all purposes including inheritance, are to be governed by the Muslim Personal Law. The succession to property, it is contended, was at no point of time governed by the custom of male lineal primogeniture; even if it was so governed, the same ceased to operate on the enforcement of the Muslim Personal Law (Shariat) Application Act, 1937, and in any case on the happening of the event of merger of the State with dominion of India w.e.f. 1-7-1949, since the late Nawabowncd and possessed the properties in suit, as an ordinary citizen of India, on his death intestate on 6 March, 1966 the properties devolved upon all his heirs under the Personal Law, including the plainliff. and the defendant No. 1 though exclusively in possession over the same, his possession would be deemed on behalf of the rest of the heirs. The plaintiff who is one of the heirs is thus entitled to seek partition of her share in these properties. For these same reasons, it is contended, the properties in suit do not constitute an impartible estate attached to any Gaddi as claimed by the contesting defendants.

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48. The submissions in reply on behalf of the contesting defendants on the other hand, are that Rampur being a sovereign State. there is a presumption of impartiality of the properties held by its ruler, merger of the State with the dominion of India did not alter this situation. The private properties also being part of the Gaddi, succession to the same will still be governed by the rule of male lineal primogeniture. The abolition of the State, and to that extent the change in the status of the Nawab as a ruler of the territories ceded, would in no way effect his status as holder of the Gaddi and the properties which are part of the same. The rule of primogeniture and the impartiality of the estate was not dependent upon any act of grant, of recognition by the President or the Government of India rather, had its effect on its own force. The relevant Article of the instrument of merger simply recognises this factual and legal position and does not create the same, for the simple reason that it existed and was in vogue, prior to the covenant of merger. The defendant has also repudiated the plaintiff's plea that the principle of impartiality is not applicable to the Mohammedans, or the custom of primogeniture, could not be set up in view of Section 37 of the Bengal Agra Assam Civil Courts Act. 1887. The rule of male lineal primogenilure and impartiality of property being a rule of law and not merely a custom, and impartiality being an antecedent of property, and not of succession, these could neither be abrogated by any provision of the Bengal Agra Assam Civil Courts Act. 1887. nor the Muslim Personal Law (Shariat) Application Act, 1937. The late Nawab though became a citizen of India as a consequence of merger, he continued to be a ruler (holder of Gaddi) qua the properties in question, and his status in that regard did not undergo any change. On his death, therefore, these properties were succeeded by the late Nawab Murtuza Ali Khan, his eldest son on the principle of single heir succession, with no right or share to any other descendant of the late Nawab.

49. On a careful consideration of the various aspects of the matter, in the light of the submissions of the two sides, the facts admitted as well as established, coupled with legal position, in the opinion of this Court, there is ample force on the defence version regarding the properties in question being part of the Gaddi of Rampur State, irrespective of the merger, and consequently being inherited by the late defendant No. 1 Nawab Murtuza Ali Khan, under the rule of male lineal primogeniture, and also being impartible in nature.

50. It is common ground amongst the parties, as far as the pre-merger period is concerned, that there was no distinction between the State properties and the private properties of the ruler. It being so, merely because the governance of the State was transferred to the dominion of India, it cannot be said that the Gaddi of the ruler for whatever worth it was, also became altogether extinct. The effect of merger could not go beyond what as contemplated in the instrument of merger. There was nothing in the said instrument of merger which may indicate that the Gaddi or rulership became non-existent for any purpose whatsoever. The only effect of merger was that the territories constituting the State of Rampur for the purposes of exercising sovereignty, stood merged in the dominion of India, and the ruler lost the power to govern. Further the properties held by the ruler, were divided in two pans, first the State property which stood transferred to the Union Government, and second, the private properties which continued to be owned, possessed, and enjoyed by the ruler as before.

51. It cannot be said on the strength of the recitals in Article 4 of the merger agreement that a new right for the first time was created in the ruler qua the properties which were earmarked by him as his private properties; rather, the property continued to be possessed with the same antecedents, as attached to it prior to the merger. The abolition of State thus did not affect the nature, title and succession of these properties, which continued to be part of the Gaddi, which still existed for the purposes other than those which were ceded to the Union Government by means of the agreement of merger. The plaintiff thus, cannot repudiate the claim of the contesting defendant, and set up her own, in respect of the property in suit, on the premise of the right to the same being claimed by the said defendant as a product of the merger agreement.

52. An attempt has been made by the plaintiff to substantiate her claim of succession to share in' the property in suit, and repudiate that of the defendant, by referring to Articles 291, 362, 363 and 366(22) of the Constitution as it existed prior to the 26th Amendment in 1971. Relying on these provisions of the Constitution it has been contended that the use of the expression 'ruler' in these provisions, the definition thereof, and the recognition of the incumbent concerned as ruler by the President of India, in effect was, recognition as ex-ruler, for the purposes only of privi purse, personal privileges, dignities and titles, which also ended w.e.f. 28-12-1971 when the 26th Amendment came into force. In these constitutional provisions, it is submitted, there was no mention of any. property and as such also the claim of the defendant of single heir succession on the death of Nawab Raw Ali Khan in 1966, and impartibility of State is not sustainable.

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53. What how far, appears to have been lost sight of while advancing these submissions is. that, Articles 291, 362, 363 or for that mailer 366(22) of the Constitution were not provisions relating to confirment or extinction of right to property. The scope of these was entirely different. To substitute the covenants by constitutional provisions and thus render the merger agreements and covenants non-existent (See AIR 1993 SC 1267). The defendant No. 1 on his part at no stage claimed his title to the property in suit to flow from these constitutional provisions. His claim in this regard has all along been based on title flowing from the Gaddi, the rule of inheritance relating thereto, and the principle of impartibilily. The answer to these has to be found elsewhere than the Constitution, and as already stated above, there is ample material to show that the property in suit, as also the other properties belonging to the ruler of the State of Rampur, have all along been suceedded by a single heir of the deceased ruler, on the principle of male lineal primogeniture, which neither is the creation of the instrument of merger or any constitutional provision, nor was at any stage abrogated by any other means.

54. The plaintiff has also failed to substantiate her plea that the rule of succession by male lineal primogeniture, and the custom of impartiality, are against the tenets of the Muslim Law or that these as a custom, firstly could not be pleaded in view of Section 37 of the Bengal Agra Assam Civil Courts Act, 1887 and secondly stand repealed by Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. There is no dearth of authority on the subject that rule of primogeniture, and impartibility, is as much applicable to the Muslims as the Hindus. Secondly, the custom of these nature, have all along been treated as law and not merely a practice. Consequently, there neither could be a bar to plead the same, in view of Section 37 of the Bengal Agra Assam Civil Courts Act. nor would it be treated as abrogated because of Section 2 of the Shariat Act. None of the observations or principles laid down in Revathinnal Balagopala Verma v. His Highness Shri Padmanabha Dasa, 1993 Supp (1) SCC 233, relied on by the plaintiff lead to any such conclusion. For the reasons aforesaid the plaintiff also does not derive any support from the decision of the Supreme Court in C. Mohd. Yunus v. Syedunissa, AIR 1961 SC 808.

55. In Nawab Ibrahim Ali Khan v. Nawab Muhammad Ahsanullah Khan, (1912) 39 Ind App. 85 (PC), the Privy Council while dealing with the case of a Muslim ruler of Kunjpura State in Punjab, upheld the contention that the estate of Kunjpura has all along descended to a single heir, who has been recognised as the chief of an impartible Riyasal, and also held the said rule of succession to be applicable even to the properties acquired by the Nawab after he ceased to be a ruler because of withdrawal of his civil and criminal powers. In Murtza Husain Khan v. Mohd. Yasin Ali Khan. AIR 1916 PC 89, Ejas Ali Qidwai v. Special Manager, Court of Wards, AIR 1935 PC 53, and Ara Begum v. Dy. Commr. Gonda, AIR 1938 PC 252, relating to Muslim Talukedars in Awadh, the rule of primogeniture was held applicable.

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56. In view of the above legal position, therefore there is no force in the plaintiff's contention regarding the rule of male lineal primogeniture and impartibility of an estate being inapplicable to the Muslim rulers, and the contention of the defence regarding the same being applicable in respect of succession to the Gaddi and properties of all the sovereign rulers, irrespective of their religious denomination, is fully established.

57. In the Privi Purses cases, AIR 1971 SC 530, the Supreme Court while considering the nature and scope of the President's power of recognition of a ruler, laid down that the power exercised by the President in this regard was an executive power. There thus was a departure from the observations in this regard in Dholpur case, AIR 1970 SC 1946. Thus, the successor to the Gaddi of a deceased ruler was to be appointed by the President in accordance with the laws and custom and not at his will.

58. The Supreme Court in Privi Purses case, (AIR 1971 SC 530) (supra) while dealing with effect of merger, on the rulers, observed at page 551 (Para 3?) as follows:--

"The rulers had lost their territories and their right to rule and administer. They were left only with the recognition of their original title, a Privi Purse, their private properties, and a few privileges. These rights were the only indicia of the former sovereignly but they enjoyed them by the force of the Constitution. Although in every respect they were ordinary citizen's and not potentates."

59. According to the above declaration by the Supreme Court, therefore, apart from the fact of the properties retained by the rulers as their private property at the time of merger, being held and enjoyed by them by virtue of their rights as existed during the subsistence of their State, these properties, like other rights and privileges, continued to be enjoyed also by the force of the Constitution. Those thus would not become nonexistent merely because the recognition ceased to be effective by virtue of Article 363A inserted by the 26th amendment. The effect of withdrawal of the recognition could only be in regard to the title, privileges and privi purses. Had the intention, been to alter the status of these rulers qua private properties which as said above were an indicia of their former sovereignty, and were being enjoyed by the force of the Constitution as it originally stood. Article 363A would have specifically said so. That it is not, goes to support the contention that the enjoyment of private properties and succession thereto, remained unaffected by the 26th amendment, and merely on account of the title, and recognition of rulership having ceased to exist, the rights in and succession to, the private properties would not become extinct.

60. It may be noted here that the succession in this case is claimed by the plaintiffs to have accrued on 6-3-1966, the date of death of Nawab Raza Ali Khan, by which date the Constitution 26th amendment had not been brought into existence. Consequently as far as this case is concerned there is no scope for the plaintiff to derive any assistance from the subsequent event of abolition of Title and Privi Purses occurring in 1971, to support her claim to share in the property in suit, and contest the claim of right thereto of the defendant; for when the succession opened and the right claimed by the defendant No. I accrued to him in 1966 the legal sanction for his ownership of the properly in suit, as traceable in customary taw, and also as enunciated by the Supreme Court in Privi Purses Case, (AIR 1971 SC 530) (supra), was very much in existence, and could not be subsequently lost to the defendant, or accrue to the plaintiff in any manner.

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61. As recently as in 1993. in the case of His Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojini Devi, reported in 1993 Supp Judgment Today, (SC) 288, the Supreme Court in the matter of the princely State of Nabha, reiter-ated the time honoured legal position and principle, that, though impanibilily and primogeniture in relation to Zamindari estates or other impartible estates are to be established by custom, in the case of asoverign ruler they are presumed to exist, and further held that the rule of primogeniture applied nol only to the rulership (Gaddi) but also to the entire property owned by the ruler, and it did not come to an end with the lapse of paramountcy and the integration of the princely States.

62. In the Nawab case (supra) Maharaja Ripudaman Singh was the ruling chief of the State in the early twenties of this century, whose ruling powers were withdrawn by the British in 1923 and was deposed from the Gaddi in 1928. He had three sons, out of them the eldest, Pratap Singh was recognised as ruler under the rule of primogeniture and became the ruler on attaining the majority in 1945. On 20-8-1948 in terms of merger agreement the Nabha State along with a few other States, merged and funned a State named Pepsu being part of the Union of India, In terms of the Article 12 of the Agreement (similar to Article 4 of the agreement Exhibit 4), the ruler of Nabha like other covenanting States, was entitled to the full owner ship, used and enjoyment of all private properties (as district from State properties) belonging to him on the date of his making over the administration of that State to the RAJ Pramukh. A building known as Sterling Castle situate in Simla was purchased by Ripudaman Singh benami in the name of Dr. Tehal Singh in 1921. In 1952 Tehal Singh relinquished hislille in favour of the three sons and the widow of Ripudaman Singh. In 1957 a dispute arose, Pratap Singh claimed absolute right over this property, denying the title of other heirs of Ripudaman Singh, and on this basis muyayion of the other heirs was refused by the municipal committee. Those heirs thus filed a suit for partition which was decreed by aleatqed single Judge of the Himachal Pradesh High Court, but the judgment was reversed and suit dismissed, on appeal by a Division Bench, holding that the benami nature of the transaction was not proved.

63. Another litigation related to a house in Civil Lines, Delhi, which was purchased in 1922 by Ripudaman Singh in the name of one Guru Narain Singh Gill who released it in favour of Nabha State in 19/37. Maharaja Pratap Singh filed a suit in 1966 for possession of the said house against his mother, brothers and sisters who con-tested the claim on the plea that the property in question was private property of Ripudaman Singh. A learned Single Judge decreed the suit holding that it was the properly of Nawab State and not personal property of Ripudaman Singh, On appeal, a Division Bench reversing the said finding, dismissed the suit. These two appellate judgments were challenged before the Supreme Court by means of two appeals.

64. Holding that the two transactions were benami, the Supreme Court ruled that both the properties in question were property of Nabha State and not personal property of Ripudaman Singh and consequently Maharaja Pratap Singh inherited the same under the rule of primogeniture. Relying on the proposition laid down in 1993 Supp (1) SCC 233 (supra), that priorto 1947 the rulers of Indian States, although subject to British-paramountcy, were absolute monarch within their own territories, the Hon'ble Court further observed that, being an absolute monarch or sovereign, the ruler was owner of all the property in the State. Referring to a series of decisions, and treatise on the subject, it was further observed that the distinction drawn between the public and private properly (of the ruler) seems to be not correct, in so far as such a concept runs counter to the basic attribute of sovereignly.

65. Dealing with the contention of the respondents that Maharaja Pratap Singh ceased to be governed by primogeniture on 15 August, 1947, in any case on 20-8-1948 when he ceased to be a sovereign, the Supreme Court, said that, it is true that there was no rulership after India became republic on 26 January, 1950, but if the estate is impartible in nature it would continue to be governed by the rule of primogeniture (Para 68). The Supreme Court further made a categorical observation to the effect that, it can be said with certainty that this rule continued even after 1947-48. Under Article 372, the law of succession relating to primogeniture continued until it is repealed. This is the position of law relating to succession (Para 72).

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66. On behalf of the plaintiff it has been argued with some vehemence that the observations of the Supreme Court in Maharaja Pratap Singh's case, (1993 Supp JT (SC) 288),(supra)are in the nature obiter, and does not lay down any binding legal proposition. It is also argued that the observations in Para 72 appear to have been casually made. This contention, to say the least, is not borne out on a plain reading of the judgment. The question relating to the subsistence or otherwise, of the property in suit as part of Gaddi, and the question of application or otherwise of the rule primogeniture and impartiality, were directly in issue in the said case and were specifically dealt with and opinion rendered by the Supreme Court. The same with have binding force under Article 141 of the Constitution.

67. Yet another contention advanced on behalf of the plaintiff in support of her plea regarding inapplicability of the law laid down in Maharaja Pratap Singh's case is that it though later in lime, cannot be relied as laying down correct law, being a decision rendered by a Bench of two Hon'ble Judges, as against the earlier decisions to the contrary in Rajendra Singh's case and the Tranvancore case being by a three Judge Bench.

There is, however nothing in the Revathinnal case, 1993 Supp (1) SCC 233 (supra) and Kunwar Shrivir Rajendra Singh v. Union of India, AIR 1970 SC 1946 (supra) which may be laying down law contrary to what has been laid down in Maharaja Pratap Singh's case, (1993 Supp JT (SC) 288) (supra). What was observed in Kunwar Shrivir Rajendra Singh's case (supra) relating to Dholpur was to the effect that recognition as ruler is neither recognition to property nor deprivation of it, the same is to be based on personal law of Succession. In making the further observation to the effect that recognition to Gaddi is not as far as President is concerned, associated with recognition of right to private property, the Supreme Court was not considering the question regarding devolution, or otherwise, of personal property as part of Gaddi.

68. In the Revathinnal case, 1993 Supp (1) SCC 233 (supra), the suit was for partition of private property of ex-ruler in his lifetime. Before the Supreme Court the contention advanced by the ex-ruler was that before he surrendered his sovereignly, there was no distinction between the properties of the ruler and that of the State and that before surrendering his sovereignty he had entered into a covenant whereby he was given an option to furnish a list of such properties which he wanted to retain as personal properties, and that he having furnished such a list which included the properties in suit and the same having been approved by the Government of India, the properties in suit continued to be held by him as his personal properties in the capacity of being their absolute owner. The Supreme Court found substance in both these contentions (Para 72).

69. For these aforesaid reasons, therefore, in the opinion of this Court, there is no basis to accept the plaintiff's contention regarding the propositions laid down in Maharaja Pratap Singh's case, (1993 Supp JT (SC) 288) (supra) being contrary to the law laid down by any earlier larger Bench on the subject'.

70. This Court thus finds that the properties in suit which were retained by the late Nawab on the eve of merger of his State with the dominion of India, as his personal property, like in the past, continued to be a pen of the Gaddi of Rampur State, governed by the rule of male lineal primogeniture in the matter of succession, retaining the character of impartiality, even after merger of the State by means of the instrument of merger dated 15-5-1949, Exhibit 4 w.e.f. 1-7-1949. The same remained uneffected by abolition of the privi purses and consequent cessation of recognition, pursuant to the 26th Amendment to the Constitution of India.

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71. An alternative contention on behalf of the plaintiff is that, the rule of inhertiance by male lineal primogeniture, and impartibility, even if these were in vogue during the pre-merger period, the same would cease to operate in view of the provisions of the Shariat Act of 1937. What the Shariat Act, however, prohibits or repeals, is the custom in respect of the matters enunierated in Section 2 of the said Act and not anything beyond it. It only excludes a custom contrary to the Muslim Law of succession etc. but there is nothing in it to indicate that it also has the effect of overriding any law to the contrary. In this context as already stated above the rule of impartiality and primogeniture are law within the meaning of Section 292 of the Government of India Act, 1935. and Article 372 of the Constitution of India. Consequently, this can be negated only by a specific legislation repealing the same.

72. IT has been laid down in, AIR 1941 Federal Court 16, that Section 292 applied not only to statutory enactments then in force, but to all laws including Personal Laws, customary laws and common laws.

73. In, AIR 1956 Calcutta 222 it has been observed:--

"As is evident from a comparison of the terms of Article 366(10) and Article 372(1), while "existing laws as defined in Article 366(10) is limited to Statute Law... al the laws in force" in Article 372(1) is not so limited and extends even to customary law, Personal,Law, like the Hindu and Mohammedan Law....." (Para 8).

74. In AIR 1959 Madh Pra 212, it has been held that, under Article 372 the taw in force would include any well established custom having the force of law. In that view the rule of primogeniture would continue to be in force until abrogated by an Act of Parliament (Para 16).

75. It was held by the Supreme Court in, Chinnathaya vi Kulshreshta Pandiya, AIR 1952 SC 29 and Thakur Vinay Singh Ji v. Kumar Shri Nalwar Singh Ji. AIR 1988 8C 247, that impartible property in law is not capable of division even by the consent of the parties. Thus it is difficult to perceive how Section 2 of the Shariat Act has the effect of abolishing the above concept as to impartiality and primogeniture. There is force in the contention advanced on behalf of the contesting defendant that Muslim Personal Law (Shariat) Application Act, 1937 is a law providing for succession to properties, and not to Gaddi. Gaddi as already stated above, in reference to context includes the personal properties of the ruler. In this regard the position becomes further clear if we compare the provisions ofSection 4(1) of the Hindu Succession Act, 1956 with the provisions of the Shariat Act. While the expression used in Section 4 of the Hindu Succession Act is that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law shall cease to have effect in any manner for which provision is made in the Act, Section 2 of the Shariat Act of 1937 has a limited scope as is clear from its phraseology:--

"2. Application of Personal Law to Muslims Notwithstanding any custom or usage to the contrary, in all questions (save quotations 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 tafaq ila, zihar lian, khuta and mubarrat, maintenance, dower, guardianship, gifts, trusts and 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)."

The said section thus abrogates such customs relating to succession which are inconsistent with the Muslim Personal Law.

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76. In Puihiya Purayal Abdurrahiman Karnan v. Thayath Kancheentavida Avoonima, AIR 1956 Madras 244 a Division Bench of the Madras High Court dealing with the question regarding the effect of Section 2 of the Shariat Act has observed in our opinion the Shariat Act (including the Madras Amendment) did not purport to nor did it, abolish the rights and incidence of a Moplah Marumakattayam Tarvad. The Shariat Act 1937, by itself did not confer the rights of partition on. the individual members of the Tarvad when the Tarvad consisted of Muslims.

77. In Lakshmanun v. Kamal. AIR 1959 Kerala 67, relying on the aforesaid decision of the Madras High Court, a Full Bench of the Kerala High Court also held that, the Shariat Act did not abolish or purport to abolish the rights and incidents of a Moplah Marumakallayam Tarvad. Whal applies in regard to a Tarvad, is applicable equally in respect of the property of a ruler. These thus go to belie the plaintiff's contention that the 1937 Shariat Act has the effect of repealing of abrogating the Rule of primogeniture, and impartiality qua the properties in suit, these properties being for all purposes including succession, part of Gaddi.

78. Contention of the plaintiff that the defendants, are barred from selling up the custom of impartibilily, and inheritance by rule of primogeniture, by the provisions of Section 37 of the Bengal Agra Assam Civil Courts Act, 1887, may be examined at this stage. The plea of the plaintiff in this regard is that Section 37 aforesaid prohibits any party to litigation before the Civil Court to plead custom as a source of title. Section 37 of Bengal Agra Assam Civil Courts Act 1887 runs as follows:--

"37. Certain decisions to be according to native law:--

(1) Where in any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession inheritance, marriage or caste or any religious usage or institution, the Muhammadan Law in cases where the parties are Muhammadans and the Hindu Law in cases where the parties are Hindus shall form the rule of decision except in so far as such law, has, by legislative enactment, been altered or abolished.

(2) In cases not provided for by sub-section (1) or by any other law for the time being in force the Court shall act according to justice, equity and good conscience."

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79. On behalf of the defendant, the plaintiff's plea in this regard is repudiated and it has been submitted that, neither the rule of impartiality nor primogeniture came within the mischief of Section 37 in so far as impartibilily is not a rule of succession, rather is an antecedent of property. As far as primogeniture is concerned, the same as stated above is law, and not a mere custom.

80. In Nisar Ali Khan v. Mt. Fatima Sultan, AIR 1941 PC 62 relating to a case from Punjab, it was observed that a custom regarding succession, at variance with Muhammadan Law could be allowed to be pleaded in the Courts in India where the parties to the case were Muhammad ans.

81. In Mohd. Ismail Khan v. Sheomukh Rai, (1913) 18 Ind Cas 571, the Privy Council disagreeing the view of Allahabad High Court in Ismail Khan v. Imtiazlinnissa (1907) 4 All LJ 792, remanded the case to enable the parties to produce evidence with regard to the issue as to whether the defendants could plead that the family in the. matter of inheritance was subject to a custom which was in supersession of the Muhammadan Law. In Ali Asgar v. Collector of Bulandshahr, ILR 39 All 574 : (AIR 1917 All 381), it was held that evidence was admissible to prove the custom notwithstanding the fact that the same was contrary to the Muhammadan Law. In M1. Jaffo. v. China, reported in 163 Ind Cas 650 : (AIR 1936 All 443), it was held by the Allahabad High Court that in view of the pronouncement of the Privy Council, it must be held that the family custom which alters the Personal Law of the parties even though not in accordance with the strict Muhammadan Law, can be allowed to be proved.

82. The following observation of their Lordships of the Privy Council in Mahomed Ibrahim v.Shaiklbrahim,49lnclApp. 119 : (AIR 1922 PC 59), in this regard, though made in reference to a case which arose in the Madras Province, with regard to the role of custom in modifying the ordinary law, may also be usefully quoted.

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"In India however custom plays a large part in modifying an ordinary law and it is now established that there may be a custom at variance even with the rule of Muhammadan Law governing succession in a particular community of Muham madans."

83. In view of the above state of law prevailing throughout the territories of India and the observations of the various Courts, including the Privy Council and the Allahabad High Court, in the matter of cases arising within the jurisdiction of the areas governed, the Bengal Agra Assam Civil Courts Act, 1887, even if the rule of primogeniture and impartibility be taken to be mere custom, the plea of the plaintiff that the same could not be pleade or proved, is not tenable.

84. There is yet another aspect touching upon the correctness or otherwise of the rival pleas of the parties to the present suit, in relation to the claim of succession which cannot be lost sight of. The same is that, compatible with the rule of primogeniture and impartibitily, which has from times immemorial been an important trait of sovereignly, and without which the rulership could not survive the onslaughts of fragmentation; there is alleged lobe in vogue practice which ensured a fair deal also to the other junior members of the family who, in the nature of the prevalent rule of inheritance by primogeniture, could not succeed to any property left by the deceased ruler; by making suitable provisions for maintenance of such heirs/members, by providing Jagirs, Inams, creating Trusts and even providing cash payments.

85. This plea has been advanced on behalf of the contesting defendant, to counteract the plaintiff's contention" that accepting the rule of primogeniture and impartiality as a valid basis of succession, would amount to illegally and unjustly depriving the other heirs of their due share, and thus virtually depriving them of even the bare means of sustenance. That such acts as grant of Jagirs, cash payments and creating trusts has no nexus to the rule of succession and has to be looked upon as isolated acts of the land holder of the property, unconnected with devolution of property amongst various heirs. Before entering into the merits of these contentions and the interferences, if any, deducible therefrom, it would be appropriate to take a factual view of the subject.

86. While the subject of these grants etc. was not touched in the pleadings contained in the plaint, in the written statement of defence filed by the contesting defendant it was stated that, the late Nawab (Raza Ali Khan) had according to the law of Rampur State made ample provisions by creating trust, giving Jagirs and pensions etc. to the junior members of the family, including the plaintiff and other defendants who were not to get anything under the law of succession applicable to the rulers of Rampur. One such dispensation was the creation of a trust named Raza Trust.

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87. It was specifically stated in the pleadings of the contesting defendanl No. 1/2 that the Raza Trust was created in the sum of rupees twenty five lacs, with the concurrence of the Government of India at the time of merger, for the benefit of the two sons and five daughters'b'f the late Nawab, except the late defendant No. 1 Syed Murtuza Ali Khan. Shri V.P. Menon, the Adviser to Government of India by his letter dated 15 May, 1949 accepted the said trust stating that the trust shall be for the ruler's children, which notwithstanding anything to the contrary in the deed of trust, become the absolute property of the beneficiaries. The beneficiaries who are Syed Zulfiquar Ali the defendant No. 3, Syed Abid AH the father of the defendants Nos. 5 and 6 and husband of defendant No. 4 Syed Khurshid Laqua Begum Wife of defendant No. 7 and mother of the plaintiff and defendant No. 8, and Brijees Laqua Begum, Akhtar Laqua Begum, Naheed Laqua Begum and Zamar Laqua Begum, the defendants Nos. 9 to 12. Out of the trust each son was to get the income derived from rupees five lacs, while each daughter the income from rupees three lacs. An allowance of rupees five lacs, it is alleged was made for marriage of the five daughters. The defendant No. 3 Zulfikar Ali Khan the Younger brother of the defendanl No. 1 was further given shares and cash amounting to Rs.72,276/-, two insurance policies for Rs. 1,00,000/- and Rs. 50,000/- respectively jewellery worth rupees len lacs, 250 acres of land and a house called Zulfiquar Mansion. A property known as Summer House in Bombay, another in Gorakhal, House No. 19 Friends Colony, New Delhi, another called Pursottam Building in Madras, Chaman Estate in Mussoorie, a house called Gulzara Rafat in Rampur, farm, Jewellery and other moveables as well as joint account with the late Nawab were given to the defendant No. 2, the wife of the late Nawab.

88. In the replications filed on behalf of the plaintiff, on this point it is stated that the provisions for maintenance, support, status and dignity of the junior members of the family by way of grant of pensions, allowances, properties and Jagirs, was a matter of premerger affair having no nexus to the questions in issue, benefits to the members also cannot be mingled with the rights of inheritance, as the same are a benefit from an Atiya which has not been left as private property on his death by the late Nawab. Further the matter at best relates to dispute between defendants inter se and does not affect the claim of the plaintiff.

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89. The plaintiff thus did not challenge the factual averments of the contesting defendants with regard to the grants, Jagirs, pensions, jewellery and cash etc, rather contested only the defendants' plea regarding the effect thereof, as a proof of existence and continuance of the rule of single heir succession.

90. In the statement made under Order 10 Rule 2 CPC at the stage of framing of issues, Zulfiquar Ali Khan, holder of the General power of Attorney of the plaintiff, stated that late Syed Raza Ali Khan made provision before merger about the maintenance of other members of the family other than sons, daughters and wives. The late Raza Ali Khan also gave allowances to his eldest son the defendant No. 1. when he was A.D.C, to the Commandant-in-Chief, he also gave allowances to his mother, second mother and third mother. The interest from the capital of the trust was divided between the two sons and five daughters excluding the eldest son. The defendant No. 13 (Mehrunnisa Begum) was separately provided the property worth rupees three lacs. The share of each daughter in the capital of the Trust was rupees three lacs and that of each son other than the defendant No. 1 was rupees five lacs. The property at Gorakhal District Nainital was given to the defendant No. 2. The house known as Friends Colony was purchased by defendant No. 2, whereas that in Mussoorie was purchased in her name. Further it was stated that the late Nawab also gave property worth rupees twenty five lacs in Bareilly, rupees one lac in Rampur and rupees six lacs in Delhi to the defendant No. 1, He further stated that the persons entitled to the benefit of the Raza Trust continue to get the benefits therefrom.

91. These above facts, which go to prove the factum of ample provisions to have been made in the past, as well as on the eve of merger of the State with the dominion of India, for the maintenance and toensure proper living conditions even to the family members, other than the one entitled to the Gaddi and the properties attached to it, also go to lend support and credibility to the continuance of theory of single heir succession qua the private properties held by the late Nawab, as set up by the contesting defendant. Simply because provision for allowances, jewellery and some other properties was also made for the defendant No. I in the lifetime of late Nawab. it does noi in any way go to militate against the theory of single heir succession. Being the heir apparent he certainly had to be provided for. with a living commensurate to his status and dignity as the future heir to the Gaddi.

92. The plea of the plaintiff that the properties aforesaid having been gifted to various members, in the lifetime of left, Nawab, and thus not being available for inheritance on his death in l966. the same could not be taken into consideration while deciding the controversy in hand, is also tenable. What has been sought by the defendant is not to consider these items of property for the purposes of determining succession or share, rather it has been relied on, and justifiably so as a circumstance in support of the theory of the rule of single heir succession being applicable to the properties in question left by the late Nawab as holder of the Gaddi of Rampur, and also to show that such rule of succession is not unconscionable.

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93. To sum up therefore, as a result of all the above stated facts, circumstance and the legal position, this Court has arrived at a conclusion that the rule of succession in respect of the Gaddi of Rampur State as well as the properties pertaining thereto, has all along been the rule of male lineal primogeniture, according to which the eldest male heir of the late ruler inherited both the Gaddi and the properties, and the properties had an impartible character. On the merger of the State with the dominion of India by means of the instrument of merger dated 15-5-1949 Exhibit 4. the said position remained uncffected and the late Nawab (Raza Ali Khan) who declared the properties in suit as his private property in terms of Clause 4 of the said instrument, continued to hold these properties as part of the Gaddi of Rampur State, despite the territories of the said State having been cedea to the Government of India, This thus was the position on March 6, 1966 when the succession to the Gaddi and the properties in question opened on the death, intestate, of the hue Nawab Raza Ali Khan. Both the Gaddi of Rampur State as well as the properties owned by the said ruler, thus continued to be governed by the rule of primogeniture and the principle of impartiality, which did not come to an end with the lapse of paramountcy and the integration of the State with the dominion of India. The late defendant No. 1 Nawab Murtuza Ali Khan, thus, in accordance with the above soid rule of inheritance, succeeded to the Gaddi of Rampur us well as the entire property then owned by the late ruler. The said properly in the matter of succession was not governed by the Muslim personal Law and the plaintiff, or for that matter no other descendant of the late Nawab, had any right to inherit the same or any share therein. The position in this regard also did not change on the abolition of privi purses and cessation of recognition, as ruler for the purposes of the Constitution the late Nawab, by the President of India on account of the 26lh Amendment to the Constitution in the year 1971.

94. The plaintiff thus has failed to establish that she has inherited any share in the properties in suit, moveable or immoveable, as claimed in the plaint, on the demise of the late Nawab Raza Ali Khan. The creation of the trust named Raza Trust by the late Nawab, and for that matter the grant of Jagirs. pensions and making other provisions for such members of the family who are not to inherit any share in the properties does provide a circumstance lending support to the theory of succession by the rule of male lineal primogeniture, though it does not render the suit non-maintainable at the threshold on that count alone.

95. The issues Nos. 1 and 6 are accordingly answered in the affirmative, while issue No. 5 partly in the affirmative and partly in the negative.

Issue No. 11.

96. While it is the contention of the plaintiff that the late Nawab Raza Ali Khan left a list of moveable properties which has been attached as a schedule to the plaint, the contesting defendant has denied the same. It however, is undisputed that movcables in sizeable quantity were left by the late Nawab. The dispute between the parties with regard to the exact quantum of the moveables would probably have necessitated appointment of an Accounting Commissioner, had the plaintiffs claim of inheritance to a share by succession been established. The plaintiff having failed to establish such claim, in these proceedings now no further step is required in this regard. This issue thus is treated as redundant.

97. It having been held above that the defendant No. 1 alone inherited the properties in question from the late Nawab, the question of vesting of any alleged share of the defendant No. 13 in the said properties. In the custodian of enemy property of India, does not arise. The issue thus is answered in the negative.

98. In view of the findings above, on the issues Nos. 2, 5 and 6 the plaintiff had failed to prove any right to the relief of partition, accounting and mesne profits in the suit and the same is liable to be dismissed.

ORDER

99. The plaintiff's suit is hereby dismissed with costs to the contesting defendant.

100. Suit dismissed.

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