Ameerunnissa Begum & Ors Vs.
Mahboob Begum & Ors [1952] INSC 70 (9 December 1952)
MUKHERJEA, B.K.
HASAN, GHULAM SASTRI, M. PATANJALI (CJ)
AIYAR, N. CHANDRASEKHARA BOSE, VIVIAN
CITATION: 1953 AIR 91 1953 SCR 404
CITATOR INFO :
R 1953 SC 215 (19) E 1955 SC 352 (9) RF 1956
SC 60 (13) F 1958 SC 538 (12) D 1962 SC1100 (17) R 1963 SC 222 (51) R 1974
SC1044 (14) R 1975 SC1069 (23) RF 1992 SC 1 (132) D 1992 SC1277 (85,91,96)
ACT:
Waliuddowla Succession Act, 1950-Act
providing for settlement of disputes as to succession between private persons
and prohibiting recourse to courts of law-Validity-Equality of the law
Discrimination-Reasonableness-Constitution of India, 1950, Art. 14 (1).
HEADNOTE:
The continuance of a dispute even for a long
period of time between two sets of rival claimants to the property of a private
person is not a circumstance of such unusual nature as Would invest a case with
special or exceptional features and make it a class by itself justifying its
differentiation from all other cases of succession disputes, and the fact that
a non-judicial authority had made a report against one set of the claimants is
not a reasonable ground for depriving them by legislation of their ordinary
rights under the law and prohibiting them from having resort to courts of law
for establishing their rights.
A nobleman of Hyderabad died in 1936 when it
was under the rule of the Nizam, and disputes as to succession arose between
his legally married wife and two ladies, Mahboob Begum and Kadiran Begum, who
claimed to be his wives. After protracted proceedings before several
non-judicial bodies a report adverse to the latter was made in January, 1950,
but before the Nizam could issue a firman in accordance with it, Hyderabad
became a part of the Indian Union and the Constitution of India came into
force. An enactment called the Waliuddowla Succession Act, 1950, was therefore
passed by the Hyderabad Legislature which provided that " the claims of
Mahboob Begum and Kadiran Begum and of their respective children to participate
in the distribution of the matrooka of the late Nawab are hereby
dismissed" and that the above decision "cannot be called in question
in any court of law Held, that in singling out two groups of persons consisting
of two ladies and their children out of those who claimed to be related to the
late Nawab and preventing them from establishing their rights under the
personal law which governed the community, in Courts of law, the Act was
discriminatory ; that there was no rational or reasonable basis for the
discrimination, and the Act contravened the provisions of article 14 of the
Constitution and was therefore void. The analogy of private Acts of the British
405 Parliament is not helpful as the British Parliament enjoys legislative
omnipotence and there are no constitutional limitations on its authority or
power.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 63 of 1952.
Appeal from the Judgment and Order dated 7th
November, 1950, of the High Court of Judicature at Hyderabad (Siddique, Rao and
Deshpande JJ.) in Civil Case No. 9-A-5-1 of 1950.
M. C. Setalvad, Attorney-General for India,
and C. K. Daphtary, Solicitor-General for India (G. N. Joshi and Ghulam Ahmad
Khan, with them) for the appellants.
B. Somayya and Akbar Ali Khan (B. V.
Subharayudu, with them) for the respondents.
1952. December 9. The Judgment of the Court
was delivered by MUKHERJEA J.-This appeal which has come before us on a
certificate granted by the High Court of Hyderabad under article 132 (1) of the
Constitution is directed against a judgment of a Full Bench of that Court dated
November 7, 1950, passed on a petition under article 226 of , the Constitution.
By this judgment the learned Judges of the High Court declared an Act, known as
the Waliuddowla Succession Act of 1950, void under article 13(2) of the
Constitution to the extent that it affected the 'rights of the present,
respondents 1 to 12 who were thepetitioners 'in the article 226 proceeding. The
object of the impugned Act, which received the assent of H.E.H. the Nizam as
Rajpramukh of Hyderabad on April 24, 1950, was to put an end to the disputes
that existed at the time regarding succession to the matrooka or personal
estate of Nawab Waliuddowla', 'a wealthy nobleman and a high dignitary of
Hyderabad, and what, in substance, the Act provided was to dismiss the claims
of succession to the said properties put forward by two of the alleged wives of
the late Nawab, named Mahboob Begum and Kadiran Begum, and their children.
These two ladies as Well as their 406 children filed a petition before the
Hyderabad High Court under article 226 of the Constitution challenging the
validity of the Act mentioned aforesaid inter alia on-the grounds that it
conflicted with the petitioners' fundamental rights guaranteed under articles
1419(1)(1) and 31(1) of the Constitution and praying for appropriate reliefs by
way of declaration and writs of certiorari and prohibition. The claim was
resisted by Ameerunnissa Begum, an admitted wife of the late Nawab, and her children,
and they are the persons who would primarily be benefited by the provisions of
the impugned Act. The High Court ,substantially accepted the contentions of the
petitioners and declared the Act to be void so far as it affected them. Against
this decision the present appeal has been taken to this court by Ameerunnissa
Begum and her children.
To appreciate the contentions that have been
raised by the parties, a brief resume of the antecedent events leading up to
the passing of the disputed legislation would be necessary.
Nawab Waliuddowla, who was one of the Paigah
noblemen of Hyderabad and was at one time, the President of the Executive
Council of the State, died at Medina on February 22, 1935, while on a
pilgrimage to Hedjaz. Besides extensive jagir properties appertaining to the
Paigah which fetched him an annual income of nearly Rs. 1,36,000 he left behind
him matrooka or personal estate of considerable value. As regards the surviving
relations of the Nawab, who could claim rights by inheritance to his estate, it
is not disputed that Ameerunnissa Begum was one of the legaly wedded wives of
the Nawab and that she and the five children which the Nawab had by her are
entitled to their legitimate shares in the properties left by the deceased,
There is also no dispute that the Nawab went through a legal marriage with a
lady named Fatima Begum who is still alive. It appears, however, that she left
her husband soon after marriage and did not return to him any time thereafter.
During the period, which is material for our present purpose, the 407 only
claim which she put forward against the estate of the Nawab was one for
recovery of her dower debt &mounting to one lakh of rupees. The whole
dispute between the parties to this litigation really centered round the point
as to whether the other two ladies, namely Mahoob Begum and Kadiran Begum,who
are respectively respondents I and 5 in this appeal, were, the lawfully married
wives of the late Nawab or were they merely in his keeping as.
kavases or permanent concubines? If there was
no legal marriage between them and the Nawab, it is not disputed that their
children, though admittedly begotten on them by the Nawab, would not be
entitled to any share in the matrooka or personal estate left by the deceased.,
This dispute first arose before the Paigah Trust Committee whose duty it was to
distribute the income of the Paigah estate amongst the heirs of the late Nawab.
In April, 1935, shortly after Ameerunnissa Begum, who had accompanied her
husband to Mecca, returned to Hyderabad after the death of the latter, the
Committee addressed letters to Ameerunnissa Begum, Fatima Begum and also to
Mahboob Begum enquiring about the wives and children left, by the Nawab. No
letter, it seems, was sent to Kadiran Bi. On a consideration of the replies
given by the several addressees and also of the statements made on their behalf
at the hearings before the Committee, the latter submitted a report to the
Executive Council of the Nizam. The Paigah Committee proceeded on the footing
that the Nawab's marriage with Ameerunnissa Begum was beyond dispute, but as
Mahboob Begum did not produce her marriage certificate even after repeated
demands by the Committee, she as well as Kadiran Bi were treated as concubines.
The Committee recommended that the annual income of the Paigah should be
divided in the proportion of 60 to 40 amongst the legitimate and illegitimate
relations of the Nawab 60% of the income was to go to Ameerunnissa Begum and
her issues and the remaining 40% was to be paid to Mahboob and Kadiran as well
as to 53 408 their children. These recommendations were approved by the Nizam
in a Firman dated 9th July, 1936.
Previous to this, express intimations were
given to the surviving relations of Waliuddowla under orders of the Nizam that
whatever disputes might exist among them regarding the matrooka or personal
estate of the Nawab, should be decided by proper proceedings in a court of law
and pending such decision the estate might be kept ' under the supervision of
the Paigah Committee. On the 8th February, 1938, Mahboob Begum and her children
filed a suit in the Dar-ul-Quaza, which was a court established under the law
for deciding rights of succession, marriage, divorce etc. of the Muslims in the
Hyderabad State, praying for a declaration that Mahboob Begum was the legally
married wife of the Nawab and the children were his legitimate children and for
other consequential reliefs in the shape of participation in the matrooka and
recovery of the dower debt payable to Mahboob Begum. Both Ameerunnissa Begum
and Kadiran Bibi as well as their children were among the defendants impleaded
in the suit. During the pendency of the suit and before it came on for actual
hearing, there was a Firman issued by the Nizara on the 9th February, 1937, on
the application of Ameerunnissa Begum, directing the withdrawal of the suit
from the Dar-ul-Quaza court and the appointment of a Special Commission
consisting of Nawab Jiwan Yar Jung, the then Chief Justice of Hyderabad and the
Judge of Dar-ul-Quaza before whom the suit was pending, to investigate the
matter and submit a report to the Nizam through the Executive Council.
Proceedings before the Special Commission
commenced on 27th March,1939. Kadiran Bibi filed a plaint before the Commission
claiming on behalf of herself and her children the identical reliefs which were
claimed by Mahboob Begum and her children, and though this plaint was at first
rejected by the Commission it was subsequently entertained under specific
orders of the Executive Council. It appears that Fatima Bibi also lodged a
plaint in respect of 409 her Mahar against the estate of the Nawab and ,this
matter was also directed to be investigated by the Commission. The enquiry
before the commission was a long affair in which a large volume of evidence,
both oral and documentary, was adduced. The Commission submitted the report on
October 16, 1944, and their findings, in substance, were that both Mahboob
Begum and Kadiran Begum were legally married wives of Waliuddowla and hence
they as well as their children were entitled to have their legitimate shares in
the matrooka.
Fatima Begum was also held to be a legally
wedded wife of the Nawab, and as such entitled to the dower claimed by her.
When the report came up for consideration by
the Executive Council the Members of the Council were divided in their opinion.
A minority was in favour of accepting the findings of the Commission but the
majority view was that further expert opinion should be taken in the matter.
Eventually on the advice of the Council the Nizam directed by his Firman dated
27th August, 1945, that the report of the Special Commission should be
scrutinised by an Advisory Committee consisting of three persons, namely, two
Judges of the High Court and the Legal Adviser of the State. This Committee was
directed to examine fully the bulky report of the Special Commission and submit
their opinion with a view to assist the Executive Council in coming to their
decision.
They were not to take any fresh evidence or
hear any further arguments from the parties. The Advisory Committee submitted
their report on 24th November, 1945, and the Committee held differing from the
view taken by the Special Commission that neither Mahboob Begum nor Kadiran
Begum was the legally wedded wife of Nawab Waliuddowla. Despite this report,
the majority of the Executive Council recommended that the findings of the
Special Commission should be accepted. The Nizam accepted this recommendation
and by his Firman dated 26th June, 1947, directed that the findings of the Special
Commission should be implemented at an early date.
410 There was a proposal at the beginning
that the members of the Special Commission themselves should be asked to
implement their findings, but eventually it was decided by a resolution of the
Executive Council dated 22nd September, 1947, that the task of en forcing the
recommendations of the Commission should be entrusted to the Chief Justice of
the Hyderabad High Court. It appears that in subsequent communications to the
Executive Council the Nizam expressed doubt regarding the status of Mahboob
Begum and Kadiran Begum and suggested the replacement of the Firman of 26th
June, 1947, by now orders in the nature of a compromise.
The Executive Council, however, stuck to
their decision and on 17th June, 1948, the findings of the Special Commission
were transferred to the Chief Justice for executing the same as early as
possible. On 2nd July, 1948, another Firman was issued by the Nizam directing
that the Chief Justice before making the final distribution of the matrooka
should submit his report through the Executive Council to His Exalted Highness
for his sanction. This direction was embodied in a resolution of the Executive
Council dated 2nd September, 1948.
The police action in Hyderabad commenced soon
after that and it was on 25th September, 1948, after the police action had
terminated and a Military Governor was placed in charge of the Hyderabad State
that a formal communication of the resolution mentioned above was made to the
Chief Justice.
Soon afterwards on the application of
Ameerunnissa Begum made to the Military Governor the execution proceedings
before the Chief Justice were stayed by an order dated 16th October, 1948. This
stay order was again cancelled on 5th November, 1948, and the execution
proceedings were allowed to continue. On 5th December, 1948, the Chief Justice
submitted his report regarding the distribution of the matrooka to the
Executive Council. Strangely, however, by a Firman dated 24th February, 1949,
the Nizam purporting to set under the advice of the Military 411 Governor
directed that the findings of the three-men Advisory Committee, who differed
from the views taken by the Special Commission, should be given effect to. In
other words, the claims of Mahboob Begum and Kadiran Begum were dismissed and
Ameerunissa Begum was directed to pay one lakh of rupees to Fatima, Begum as
the dower due to the latter.
Protest was lodged against the decision by
Mahboob Begum and Kadiran Begum and again a Firman was issued by the Nizam
under the advice of the Military Governor on 7th of September, 1949. By this
Firman the earlier order of 24th February, 1949, was revoked and the whole case
was referred for opinion and report to Sir George Spence, the Legal Adviser to
the Military Governor, who was directed to hear the parties and take such
further evidence as he considered necessary. The enquiry then began before the
Legal Adviser but neither party adduced any evidence. Sir George Spence
submitted his report on 7th January, 1950. The material findings and
recommendations in his report were as follows:" 76. My finding on the case
is that neither Mahboob Begum nor Kadiran Begum was married to the Nawab with
the result that these ladies and their children are not entitled to participate
in the distribution of the matrooka.
77.If this finding is accepted, the order
required for its implementation would be an order dismissing the claims of
Mahboob Begum and Kadiran Begum on the matrooka and directing Ameerunnissa
Begum to pay one lakh of rupees out of the matrooka to Fatima Begum on account
of Haq Mahar." The Constitution of India came into force on 26th January,
1960. As Hyderabad was integrated with the Indian Union and the Nizam lost the
absolute power which he could exercise previously, it was no longer within his
competence to issue a Firman on the terms of the report of Sir George Spence
and make it legally binding on the parties. Recourse was 412 therefore had to
legislation and on April 24, 1950, this impugned Act was passed which purported
to give a legislative sanction to the findings in the report of Sir George
Spence. The material provision of the Act is contained in section 2, clause
(1), which *lays down that " the claims of Mahboob Begum and Kadiran Begum
and of their respective children to participate in the distribution of the
matrooka of the late Nawab Waliuddowla are hereby dismissed". The second
clause of this section provides that a sum of one lakh of rupees shalt be paid
to Fatima Begum on account of her Haq Mahar. Under section 3, the decisions
affirmed in section 2 cannot be called in question in any court of law and
finally section 4 provides that the High Court of Hyderabad shall, on the
application of any person interested in the decision affirmed in section 2,
execute the said decision as if it were a decree passed by itself and such
person was a decree-holder. It is this Act which has been pronounced to be
invalid by the High Court of Hyderabad to the extent that it dismisses the
claims of Mahboob Begum and Kadiran Begum as well as of their children to the
personal estate of Nawab Waliuddowla.
It may be conceded that before the coming in
of the Constitution, the Nizam of Hyderabad practically enjoyed unfettered
sovereign authority and however much the various Firmans, which were issued by
him in connection with the present dispute, may appear to be capricious and
arbitrary, strictly speaking they were not 'unconstitutional in the sense that
they were beyond his competence as the supreme legislature in the State. After
the Constitution came into force and prior to the setting up of a duly
constituted legislature in the Hyderabad State, the legislative authority
undoubtedly vested in the Nizam as the Rajpramukh of the State under the
provision of article 385 of the Constitution read with article 212-A (2)
inserted by the President's (Removal of Difficulties) Order No. II dated 26th
January, 1950; but the legislative power exercisable by the Nizam was a
strictly limited power. The Rajpramukh 413 was not only to act in conformity with
the provision of article 246 of the Constitution and keep within the bounds of
the legislative sphere laid down with reference to the entries in the different
legislative lists, but the legislation must not be in conflict with any of the
fundamental rights guaranteed under Part&, III of the Constitution.
The impugned Act, as its title and preamble
show, was passed with the avowed object of terminating the disputes relating to
succession to the estate of the late Nawab Waliuddowala.
Although in the report of Sir George Spence
it was held that Mahboob Begum and Kadiran Begum were not the legally wedded
wives of the Nawab and their children were not legitimate, there was no express
declaration to that effect in the operative portion of the Act which merely
lays down that the claims of these two ladies as well as of their children to
participate in the distribution of the matrooka of the late Nawab are
dismissed. The legislation may be said to relate to succession and indirectly
to marriage also and as such may come within the purview of entry 5, List III
of the Seventh Schedule to the Constitution. It has not been argued by Mr.
Somayya, who appeared for the respondents, that a legislation on these topics
must be a general legislation; but it has not been disputed by either side that
no valid legislation could be passed under these heads which is discriminatory
in its character and offends against the equal protection clause embodied in
article 14 of the Constitution. The contention of the learned Attorney General
is that the legislation in the present case does not violate the principles of
the equality clause and he has attempted to combat with much force the decision
of the High Court on this point. This is the main question in the case which
requires to be examined carefully.
The nature and scope of the guarantee that is
implied in the equal protection clause of the Constitution have been explained
and discussed in more than one decision of this court and do not require
repetition. It is well settled that a legislature which 414 has to deal with
diverse problems arising out of an infinite variety of human relations must, of
necessity, have the power of making special laws to attain particular objects ;
and for that purpose it must have large
powers of selection or classification of persons and ,*things upon which such
laws are to operate. Mere differentiation or inequality of treatment does not
per so amount to discrimination within the inhibition of the equal protection
clause. To attract the operation of the clause it is necessary to show that the
selection or differentiation is unreasonable or arbitrary;
that it does not rest on any rational basis
having regard to the object which the legislature has in view.
The learned Attorney-General in the course of
his argument laid considerable stress upon the decision of this court in
Chiranjit Lal v. The Union of India(1) and he attempted to call in his aid the
two propositions recognised and relied upon in that decision, namely, (1) that
the presumption is always in favour of the constitutionality of an enactment,
and (2) a law may be constitutional even though it relates to a single
individual, family or corporation. The propositions themselves may be well
founded but whether or not they would apply to a particular case would depend
upon the facts and circumstances of that case. In Chiranjit Lal's case (1), it
is to be noted, the circumstances were somewhat exceptional. The legislation in
that case related to a company which was engaged in production of a commodity
vitally essential to the community, and in judging the reasonableness of the
classification in such cases the court has undoubtedly to look to the social,
political and economic interest of the community as a whole. In doing so, as
Prof Willis observed, the court will assume the existence of any state of facts
which can reasonably be conceived of as existing at the time of legislation and
capable of sustaining the classification made by it(").
In the case before us what the legislature
has done is to single out two groups of persons consisting of two (1) [1950]
S.C.R. 869, (2) Willis on constitutional Law, p. 580, 415 ladies and their
respective children out of those who claim to be related to the late Nawab
Waliuddowla and prevent them from getting any share in the personal property of
the latter to which they might be entitled under the general law of the land.
They' claim to be wives and children of the deceased and, as such entitled to
have shares in his personal -estate, and no competent court of law has as yet
negatived their claims in this respect. On what principle then, it may be
asked, was the disability imposed upon these persons alone while the claim of
the other claimants was, accepted ? Nay, the legislation goes further than this
and denies to these specified individuals a right to enforce their claim in a
court of law, in accordance with the personal law that governs the community to
which they belong. They, in fact, have been discriminated against from the rest
of the community, in respect of a valuable right which the law secures to them
all and the question is, on what basis this apparently hostile and
discriminatory legislation can be supported.
It is not suggested that it was for serving a
public purpose or securing some advantage to the community as a whole that the
legislature chose in this case to interfere with private rights. The only
purpose of the legislation, as appears from the preamble, was to end certain
private disputes. It is true that the quarrel between the two rival parties
regarding succession to the estate of the deceased Nawab was going on since,
1938; and after several vicissitudes, for which the Nizam himself or his Legal
Advisers -were primarily responsible, there was a report prepared by the Legal
Adviser to the State in a particular way, which, contrary to the opinion given
by an 'earlier' Special Commission, negatived the claims of these two ladies
and their children.
It is also true that because of the
introduction of the Constitution it was no longer possible for the Nizam to
issue a Firman embodying this report. That may be the reason for passing this
legislation but it would not furnish any rational basis 54 416 for the
discrimination that it made. The continuance of a dispute even for a long
period of time between two sets of rival claimants tot he property of a private
person is not a circumstance of such unusual nature as would invest a case with
special or exceptional features and make it a class by itself justifying its
differentiation from all other cases of succession disputes. As appears from
the preamble to the Act, the only ground for depriving the two ladies and their
children of the benefits of the ordinary law is the fact that there was an
adverse report against them made by the State Legal Adviser. This ground is
itself arbitrary and unreasonable. The dispute regarding succession to the
estate of the Nawab was a legal dispute pure and simple and without,
determination of the points in issue by a properly constituted judicial
tribunal a legislation based upon the report of a nonjudicial authority and
made applicable to specific individuals, who are deprived thereby of valuable
rights which are enjoyed by all other persons occupying the same position as
themselves, does, in our opinion, plainly come within the constitutional
inhibition of Article 14.
The analogy of private Acts of the British
Parliament, to which reference was made by the learned Attorney-General in the
course of his arguments, is not at all helpful. The British Parliament enjoys legislative
omnipotence and there are no constitutional limitations upon its authority or
power. There were indeed a few statutes passed by the Provincial Legislature-in
India during British days which regulated succession to the estates of certain
princely families. The Bijni Succession Act (Act.II of 1931) passed by the
'Assam Legislature is an enactment of this type and it did shut out the rights
of certain persons who claimed the Bijni estate under the law of inheritance.
But at that time the Governor-General of India had express authority under the
provisions of the Government of India Act, 1915, to authorize the Provincial
Legislatures to make laws regarding subjects of a private nature. Quite apart
from this, no 417 question of infraction of the equal protection rule could
arise in pre-Constitution days. We are not unmindful of the fact that the
presumption is in favour of the constitutionality of an enactment ; but when on
the' face of it a piece of legislation is palpably unreasonable and discriminatory
and the selection or classification made by it cannot be justified on any
conceivable or rational ground, the court has got to invalidate the enactment
on the ground of its violating the equal protection clause.
The learned Attorney-General contended before
us that the High Court was wrong in holding that there was a concluded decree
in the present case in favour of respondents 1 to 12 on the basis of the
recommendations of the Special Commission, and that this decree was a property
within the meaning of law of which these respondents have been deprived by the
impugned legislation. The point is not free from doubt, and much could be said
on both sides. We think, therefore, that it would not be proper on our part to
express,any opinion upon it in the present appeal. We understand that the
respondents have filed an execution application in the City Civil Court of
Hyderabad which has ordered that execution should proceed and that objections
have been taken to this application by the present appellants who have raised
inter alia the point that there is no final and effective decree which is
capable of execution. As the point is still pending hearing by the Civil Court
of Hyderabad, we do not desire to influence their decision in any way by
expressing any opinion on this matter. We only desire to state that
notwithstanding the observations made by the High Court referred to above, the
question shall be treated as an open one. The applicability of article 14 of
the Constitution in the present case is, however, not at all dependent upon the
fact as to whether or not the respondents have already acquired property in the
shape of a decree. Their claim to the estate of the late Nawab which they
wanted to assert under the general law of the land is itself a valuable right,
and 418 the deprivation of that right by a piece of discriminatory legislation
would be sufficient to bring the case within the purview of article 14 of the
Constitution.
Having regard to the view that we have taken,
it as unnecessary to consider whether the impugned Legislation violates the
provisions of article 31(1) or article 19(1) (f) of the Constitution. The
result is that the appeal is dismissed with costs.
Appeal dismissed.
Agent for the appellants: Bajinder Narain.
Agent for respondents Nos. 1to 12 M. S. H. Sastri.
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