Sikander Jehan Begum and Another v. Andhra Pradesh State Government

Judgment

IHI ~20. SIKANDER JEHAN BEGUM AND ANOTHER (ANDHRA PRADESH STATE GOVl·:~RMENT) B. P. SINHA. c. J., P. B. GAJENDRAGADKAR, K. N. WA:scuoo. M. HmAYATt"LLAH and J, C. SrrAn, JJ.) Suuunon-Jagir-Enactment providing for firtality of order-Dtnial of juri&dktion to civil court-.ConatitutV.ma/ validity-Hy<krGbad Ati#at Enquirie• Act 1952 (10 of 1952) a.13(2)-Co'IU!ti!ution of India, Aris. 14, 19/l)(f). This writ petition on abo the appeal raised :he common question as to the constitutional validity of s. 13(2) of the Hyderabad Atiyat Enquiries Act, 1952. The petitioners who wore also the appellants claimed succession to the properties, including Atiyat jagirs of their brother, a Nawah of Hydcabad, who died in 194!. By a Firman of the Nizam his estate v.·as taken over by the Government into its supervision till his successors could be declared.

In 1948, after the Police action had taken place, the Nizam on the aJvicc of the Mi.litary Governor issuecl a Firman appointing a tribunal to enquire into the question of succcs•ion. The Tribunal reported naming the successors, but the petitioners were not amongst them. There' after the Ni7.am clelegatcd all his authority If>· the Military Governor and in due course· the Ciiief Minister took the place of the Military Governor and in 19>0 the Constitution came into force. The Chief Minister confirmed the report of the Tribunal on April 3, 1950. Two of the widows of the Nawab challenged the validity of the Chi,,f Minister's order by a writ pctiti,,n in ihe High Court but to no effect. In the mcartimc the impugned Act had come into force on March 14 1952 ands. 13[2) provided as follows,- (2)

The 0<den passed in cases rcl .. ting to A tiyat Grants including Jagirs on or after the 19th September, 1948 and befO<c the commencement of this Act by the Military Governor, the Chief Civil AC!ministrator. or the Chief Ministo" of Hyderabad or by the ~iivenuc Minister by virtue of powers given or purportini: to be given to him by the Chief Minister shall he deemed to be the final orders validly pasJCd bv a competent authority under the law in force at the time when the order was passed and shall not be questioned in any court of law." T.he petitioners move(! this court under Art. 32 of the Constitution and aho preferred an appeal by special leave 2 S.O.R. against the order of the High Court. Reliance was placed on the decision nf this Court ih A1nmeerunn1:s.sa Begum v. Mahbouu Begum, [1953] S. C. R. 404, and it was urged on their behalf that the impugned provision denied the petitioners the right to convass questions relating.to succe_ssioa in a civil court and thus infringed Art. 14 of the Constitution.

Htld, that .the contention must be negatived. The object of the Legislature in enacting the impugned proVision·clear1y was to validate orders passed .between the commencement of the Police action and the date when the .Act came into force and forbid their reopening either before the Atiyat courts or the Civil courts. Duringthat period historical events took place in. the State of Hyderab•d and if the Legislature treated the orders passed during that period as constituting a class by themselves; no objection could be taken under Art. 14 of the Constitution on the ground of discrimination, and the decision relied on could not apply. Further, s. 13(2) did not validate merely the orders passed in the present case, buf validated all . orders passed during that specified period and applied only to Atiyat Jagir property to which the personal law of the parties could have no.application.

There could be no doubt that in Hyderabad a Jagir was not heritable. on the death of the jagirdar and in theory its dtvolution wa~ ·a1ways a case of resuriiption and re-grant by th~ Government a.nd cons._cquently, rio person claiming snccession ·to_a jagir had the.right to.sue in a civil court and whoevef got the es.tate as a result of the decision of the Choif Mitiister got it by way of re-grarit made by the state. Ammeerunnissa Begum v, Mahboob, Begum-( 1953) So C.R. 404. distinguished and held inapplicable. Regard being had to the special character of the property in question it could not also be said that the impugned provision c.ontravc11ed Art. 19(l)(f) of the Constitution. CrvrL APPELLATE ,JumsnroTION: Civil Appeal No. 279 of 1960. Appeal by special fon.v& from th{• judgµient and ord~r <1ated the June 30, 195:!, of the former Hyderabad High Court in Writ Applieation No. 13 of 1950. WITH PETITION N0.197of1956 •.

Sikander J thlln Bitvm Andhra Pradesh Sta-te Governm,n·1 Sil. ander J ahan Btgum Andhra Prr desk J State Govnnmenl 228 SUIREME COURT REPORTS (1962] SUPP. Petition under Art. 32 of the Constitution of India for enfo~rcement of fund'amental rights. M. G. Setafoad, Attorney-General of India, J. B. Dadaclwnji, S. N. .4ruiley, R1tmeshwar Nath and P. L. Vohra for the appellants and petitioners. A. v, Viswanatha Sastri, T. V. R. Tiitachari and T. M. Sen, for respondents Nos. l to 4. Daniel A. Latifi and Sar,dar Babadur, for respondents Nos. 8 to 13 (in the appeal) and 6 to 11 (in the petition). 1961. December. 20-The Judgment of the Court was delivered by Oajendragadkar J. GAJENDRAGADKAR, J.-Writ Petition No. 197 of 1956 and Civii Appeal by Special Leave No. 279 of l 960 arise between the same parties and they raise a short question about the validity of section 13, sub-section 2 of· the Hyderab>td Atiyat Enquiries Act., 1915'.! (l\o. X of 1952) (hereinafter ca,I!ed the Act).

The rlccision of this question lies within a uarrow compass but the facts leaping up to the C!i.vil Appeal and the Writ Petition >tre somewhat complicated ·and they must be stated at the.outset in order that the background of the dispute mn.y be properly appreciateq. • Sikander Jehan Begum and Khurshi<l Johan Tefoyawar Begum are the petitioners in the.Writ Petition and the appellants in the Civil Appeal · they are the legitimate sisters of Nawab Kamal Yar .Jung who died on January 26, ID44. Accor<)ing to the petition, the said Nawab left behind him three legitimate wives and two legitimate sisters but no legitimate children. He had, however, a number of KhawaHes '(concubines) an cl three illegitimate sons !rnd ·ah illegitimi>te daughter. These are respondents Nos .. 6-9 in the Writ Petition. The said illegitimate children were the issues of respondent Xos. 10 & 11 who were the concubines of the X<twab. l{espondent Nos. 6-11, however, claimed to be the legitimate heirs of the said Nawab because according to them, respondent Nos. IO & l l were the legitimate wives of the Nawab.

A dispute a.s to succession to the estate of the said Nawab has given rise to the present controversy. The said.Nawab belonged to a leading family of Nobles in the Hyderabad State and was possessed of large Jacrir and non-Jagir properties. Soon after his death, the Nizam appointed a Commission of Enquiry to hold a regular enquiry into the Virasat of the late Nawab Kamal Yar .Jung on February 8, 1944. By the Firman issued by the Nizam in that behalf a direction was given that the Government should take the estate of the late Nawab under its supervision so that after the decbration of the successor, arrangements may be made about its delivery to the proper person. It appears that the Government accordingly took possession of the properties of the Nawab .and continued in possession thereafter. On September 17, 1948, Police action commenced and it ended on the 26th September on which date the Military Governor took charge of the administration of the Hyderabad State.

On N:ovember 9, 1948, the Commission of Enquiry which had been appointed by the Nizam ma.de its report. The report showed that according to the Commission, Husain Khan, Taha.war Husain Knan, Sadiq Husain, Khatija Begum were the legitimate and lawful sons and daughter of the late Nawab, with the 1·esult that except for Riyasatunnisa Begum, Lal Bee and Azizunnisa Begum who were the wives of the late Nawab, none else could be held entitled to succeed to his estate. It appears that the report thus submitted by the Enquiry Commision did not receive the sanction or approval of the Nizam. Subsequently, on November 22, 1948, the Nizam issued a E'irman wherebJ- a new ~pecia.l Tribunal Sikander J ehan Begu!.11. Andhrq Pradeih State Gcwer11ment Gajendragadkar J. 8l4a11dtr ,fth'Jn BttU'll J.ndhr•J Pta:ft1l• Stolt (ioL'e nmtnl was eom;tituted according to the opinion of the Military Governor an<l it was asked to h"ar the Virasat 1·11quiry of the late Nawab.

The Tribunal was given authority t.o record fresh evidence, if neces.'lary. Thi~ Tribunal made its report on April a, I !14!1, The majority of this Tribunal took ti.ta view that the thn'e widows of the lat-0 Nawab were his legitimate wives and ought. to get together As.-/~/· ~hare. Tht:y also expressed the opinion that Sheerin Bua and Paric:hehra Bua were the .\fotha wi\·cs 11nd th~ir sc•nH Sye<l Mohd., HuBMin Khan, Syed Taha.war Hutisain Khan and ;,.yed Sadiq Hu~sain Khan Wt're the legitimate eoll8 of the late N'a\\ ab and so they should all togeth('J' g~t ,\s.-/12/· "har<'. The remaining As.-/:2/· sharo should ·~o to Khrdja Begum who, in the opinion "f the majority, 11aM th11 legitimate daughter of. the late Nawab. It ap1><'1rn that after tho Military Governor '\I.as put in charge of the administration of the State of .Hyderabad, the Nizam iaaued a Firman on September 19, 1948, delegating to the Military Governor all the authority for the administration of the State.

Subsequently, by another Firman he made it elt-ar that th" authority delegated to the Military Go\·eruor inclu'd1·u and shall alwap be deemed to have includl'd authority to mak<· Hegulations. This latt.(>r .Firman was isrn<'U on Au!(USt 7, 1949. fn due course, the Cl.icf Mitii•ter took the place of the Military Governor anu the Nizam issued a Firman on Deceml1t:r l, ltl49, whereby a.II the powers ,,f administration del<"gated by him to the )Jilitary Governor w~re a.a from the <law of the notificatio11 terminated and the said powern were delegated to tho Chief Ministe~. That is how the Chief .\Iinioter was v1·ste<l with all the powers of adminiotration which tho Nizam pol!Sessed. When the lllilitary Governor was in charge of the a.dministratiou of Hyderabad State, he eliierciscd his delega.ttd powers of J,.gMilation and SUPHEME COURT REPORTS 2.31 promulgated several ltegul11tions. One of these was the Hyderabad ( Abolition of J agirs ) Regulation, 1358 F. This Regulation came into force on August l5, 1949.

Broadly stated, the effect of this Rrgulation was that all J11gir lands were incorporated into State lands as from the appointed day and 'their administration stood trans: ferred to the .Tagir Administ.rator who was to be appointed by the Government. The Regulation made necesaary provisions for making cash payments out of the net income of the Jagirs to the Jagirdar or Hissedars or maintenance holders. This arrangement was intended to serve as an ink rim arrangement pending . the final disposal of the question about the commutation to be paid for the Jagirs. This Regulation was followed a few months later by the Hyder!ibad Jagirs (Commutation) Re. gulation, 1359 F which came into force on January 20, 1950. By this R~gulation, provision was made for the payment of compens&-tion by way of the commuted value of the. Jagir which. had to be deter· mined by the Jagir Administrator in. accordance with t~e relevant previsions of the Regulation.

On January 26, 1050, the Constitution oame into force ~d on April a, HJ50, the report,submitted by the seoond Commission 1\-'as co~firn:ied by .the Chief Minister. As a result nf this Confirmation, the sharrs of three sons and daughter as well as the three \vidows of the late Nawab were declared. Ea.ch son was re<:oJµlised to be entitled to As. -/4/- share, the daughte.r to As. -/2/. share and the three widows 1.iet'\Ve>in the:m to As. -/2/- share. It was also declared that Sheereen Bua, Parichehra Buil. as the Mamtua wi.v1m of the late Nawab were entitled to · Guzara, (maint.enance) only. Ia bubstance, it is the order thus passed by the Chief ,\iinister which has . given rise to the present litigation between the partfoj!. 'rhe. wi:,J o ws of.the late Nawab -Ah urndunnisa Begum. atld Azjzunnisa .Begum-challenged• the Siko.nd~r JehG1J Begum Andhra Prad,.sh Sl'lfe 1}.,.~ernmet1t su •• .a.r J 1han Begima Vo .-f.JUihra Prodtlh Stau Go11nn~Jtl GaJtndrogad!ar J. 232 SUI'REME COURT REPOR'fS [1962]

SUPP. validity uf the Government dedsion ree-0rded in the confirmatory order paosed by the Chief Minister by a Writ Petition hefor(' the High Court of Judica· turn at Hyderabad on Jum' 20, l 950. It was urged by them that the impugned deci8ion of the novcrnmeut W<t> -ultra t>ires and null and void and they claimed a writ of Certiorari quashing the said decision. As a cousequentia! relief, they claimed appropria1 e orders again8t th<! parties who were hnld entitled to shareR in the property of the late Xawah. The Writ Petition was first heard by a Division Bench of the Hyderabad High Court. The Bench found that the petition raised several ques· tions of eonstitutional importance and so on August 24, 19110, it refNrl'd the•petition for disposal before a Full Bench. Aeconlingly, a Full Bench ('onsisting of threP Learned Judges of the High Court he1vrl it on llfarch 20, 1951.

They held that the questi"n8 raisC'd were of such a vital importance that it w< .uld be appropriate that a larger Full Bench should deal with them. That is how the questions formulated were referred to a larger Full Bench of five l('arn<·<l .l udges of the High Court. After thest' questions were answered by the larger Full Bench, the n;atter was remitted to a. .Full Bench of th re<· Iearni><l Judges and in accordance with the answers giv<'n. "the Writ Petition was finally dismiHsed on June 30, 1952. Meanwhile, on March 14, 19,:;2, the Act had come into force. The t.wo widowM of the late Nawab th<·n applied for and obtained a certifioate fn•m the Hi"h Coun to prefer an appeal to this Court. On De~ember '27, 1955, howev<er, the sa.id widows purported to compromise their -disputt. with the opponents and expressed a desire not to prosecute the appeal before the Supreme Court any further.

When the petitioners Sikander Jehan Begum and Khurshid ,Jehan Begum came to know a.bout these developments, they immediately sent an application to this Court praying tha.t thr·ir nnmea should be transposed as appellants in the appeal pending before this Court, at the instance of the said two widows; in this application, they undertook to deposit the necessary security for costs as well as the printing charges. This application was, however, returned to the petitioners on the ground that it did not lie to this Court as the record had not been formally transmitted to :~. 'l'hereupon, the petitioners made a similar application before the Hig9 Court and the widows applied for p('rmission to withdraw their ·appeal. Both the applications came on for hearing before the High Court on August 16, 1955. The High Court rejected the petitioners' application for transposition and allowed the widows' application granting them leave to' withdraw their appeal.

On August 8, 1955, the petitioners had made an independent" application to the High Court for leave to appeal to the 8upreme Court against its judgment in the Writ Petition. This application was dismissed by the High Court on March 20, 1956. Petitioners then applied for speciai leave and special leave was granted to them. That is how Civil Appeal No. 27\J of 1960 has come to this Court by special leave. Long before this appeal came here, the pt:titioners had filed a writ petition No. 197 of l9ii6. That in brief is the background of the dispute between the parties before us. It is common ground that our decision in the Writ Petition will govern the decision in the Civil AppPal. Indeed, as w" ha vc already indicated both the proceedings raise the same point of law.

Before dealing wioh the said question, however, it is necessary to examine btief!y the broad features of the Act. '!'he Act was passed to amend and consolidate the law regarding Atiyat grants in respect of Atiyat enquiries, cnquiiies as to claims to sucr,ession to, 01· a1;y right, title or interf'st in Atiyat grants and matters ancillary thereto. As s. 15 of the Act shows, it repealed all previous circulars Sika11der J eha•1 Be?um Andhra Pradesh State Oovermneni GtJjtndragadkr.r J. Si~ander J~han Ber;UTJ1 And-.ru ~r.,dcsh l:ilate (Joternn:e11t Ga.ienderagad.kar J. :?:H SUPHEM'.E COUE,T RE£QRTS [1962] SUPP. rfllating to this matter except as provided by els. (a) a11d (b) ur ~hu sai4 section. Sections :; to 7 con- ·tain· ge11;•tal pro•':isions as to Atiyat grants. Under . seution 3, all Atiy;it grants held immediately ]Jefore .the. cunimenccmeut of the Act shall continue to be heid by the hoiders !hereof nuc:l by their successors, subject to. the conditions tb 1 dn specified.

Section 4 i;lea!s with the inquiries _ as to Atiyat grants in Jagirs. t:iectivn 5 prescribes the consequences of the brq1ch of conditions of l\fontakba b or Vasiqa. l{):- s. ti alienation's. of the A ti)'at grants are pn)bibi~d ai1d exemption from attachment _by a Court is grarite<l in respect fro them. This latter provisiou is, however, subject t ... he proviso that half t]lo income of the Atiyat gr shall be attachable in execution of a decree thfo ''!! the Revenue Department. SecJ.ion 7 provid~/i •. t,b:at succession to Atfyat grants shall in futuni::f!.\l\i::egulated by the perncual law ap]Jlicable to the la~t$f¥ilder. Sections t> to l l deai with the constitutiun:~f<.'.Atiyat Courts their jurisctiction and procedure. -Section 8 provides f01' hierazchy of four categories of Courts on whom powers could be co11ferred by Government by rueaIJs Of a notification issued under s., 9.

Section 10 provides that the jurisdiction and procedure of the Atiyat _ Courts shall be regulated in the manner spe0ified in the schedule and it adds that the time within" which and the manner in which appeaj~ may be tiled _agaiust the decision~ o! the said. Q0Urts shall be such .as may be prescnb~d. Si3ct!o!+ ll ·deals with appeals. .As "' result of t~e pro.visions <)f s. 11, th.e decisiqn of the Board of' l{eveiiue· shallbe finak Then we have a group of five. se·ctions dealing with mjscellaneous matters. Sect\on X~ confers un the Government the power to - make. rµJes, s. 16 is the i;epealing section; an~ s. 16 provides ·tliat the: Ac~ will oe~se to be apphcable to. any Inam to which ?-t any time the l;Iyd~rabad ;Eniranchised Ii.lams Act, HJ52 is Jllade applrcable ... That· leave s_s. U and 13. which requires careful considel'atiun.

I Section 12 provides that the final decision of a Civil Court on questions of succe8sion, legit.imacy divorce or other questions of personal law shall be given effect to by the Atiyat Court on the said decision being brought to its notice by the party concerned or otherwise irrespective of wh<ether the . decision of the Atiyat Court was given before or after the decision .of the Civil Court. It is thus clear that though the Act has established a hierarchy of Atiyat Courts for dealing with the question about the succession to Atiyat estates, s. 12 provides that .the final decision of the Civil Court on matters therPin specified binds the pa1tics and has to be given effect to by the Atiyat Courts. Under this section, the final decision of the 'Civil Court will have to be· given effect to even 'if it was pronounced after an Atiyat Court had decided the matter.

That means the earlier decision of the Atiyat Court, if it is inconsistP,nt with the subsequent decision of the Civil Court, will have to yield to the latter and the question of succession shall be governed in the light of Civil Court's decision. That takes us to s. 13. This section reads as follows:- " 13. (I) Except as provided in this Act, the decision of an . Atiyat Court shall be final ~nd shall not be questioned in any Court of Law. (2) The orderH passed in cases relating to Atiyat Grants iricluding Jagirs on after the 18th ~eptember, 1948 and before the commencement of this A.ct by the MHitary.

Governoi:, the Chief Civil Administrator or the Chief Minister of Hyderabad or by the Revtmue Minister by virtue of powers given or purporting to be given to him by the Chief Minister · shall be deemed to be the final orders vaildly passed by a competent authority under the law in force at the time when the order Silc-in.dtr J~h11n Beg•lm. ·lndh;a Pradnh State Jnr1umnerit Oaje11dra~adkar J . S ikandff J than AMhra P1odt.<h ,\'la'4 Go,,,rnmer.t GGjtndragadkar J. 236 SVPREME COURT REPORTS [1962] SUPP. ~as passed and shall not be questioned in any court of law.'' It will ho noticed that the result of 8. 13 (2) is to validat<' the order8 of the authorities ther<>in specified which have been passed betwel'n September 18, 1948, and }larch 14, 1952. The first date refers to the commencement of the Police action 1md the latter to tho commencement of the operation of the Act.

The object of the Legislature clearly is to validato order., p&SSed between the said two dates so that the questions determined by the relevant orders should not be reopened for enquiry either before the Atiya~ Courts or before the Civil Courts. It is not disputed that between the commencement of the police action and the passing of the Act events of historical importance took place in the State of Hyderabad and so trflating that period as of unusual significance is not open to to any eriticism. Therefm e, if the Legislature chose to deal with the orders passed during this period as constituting a claRs by themselves, that itself cannot be said to contravene Art. 14 of the Constitution. It is however, urged that the result of the impugned provision is to deny the petitioners their right to have questions of succession adjudicated upon hy Civil Court and th11.t itself constitutes discrimination which contravenes Art.14.

In support of this argument, reliance has been placed on the decision of this Court in Ammuronniaaa Bl!{}Um v. Mahboob &gum{'). We are not impre886d by this argument. In the case of Ammeerunnisea. Begum it was obvious that the Legislature had singled out two groups of perBons consisting of two ladies and their children out of those who claimed to be related to the deceased Nawab Waliudowla and preventing thl·m from establishing their rights under the personal law which governed the community, m Courts of law. Unconstitutional discrimination (I) {1953] S. C.R. 404. was thus writ l:trg~ on t·he face of the Act impugned in that case. The position in the present case is very much different. Section 13 (2) does not validate. the orders passed in the enquiry relating to the pres11nt case alone. It purports to validate the orders passed between the two specified dates in respect of all the enquiries which were then pending. That is one important point of distinction.

Besid<>s, a.s we will point out later, the nature. of the property in respect of which the petitioners make a· cliiim i11 funrlamentally different Jrom that in the oa.8e of Ammeerunnissa Begum .. The property in the latter case was heritable property succession to which had to be determined under the principles of the personal la.w applicable to the parties, while in· the present case, the succession . to Atiyat property does not come as a matter of right to the heirs of the last holder. Therefore, in our opinion, the argument based upon the decision of the case Ammeerunnissa Begum cannot succeed. The chollange to the validity of s. 13 (2) has taken another form before us. It was argued that during the prescribed period, a . large number of c1B~ wore penrling orders by the authorities concerned. By chance or accident, orders by the relevant authorities were paeeed in the present case and may have been passed in some others.

But there may be other cases of a similar type on which orders may not have been passed by the relevant authorities during the prescribed period and in singling out cases in which orders have been pa.ased the impugned provision hM made a classification whioh is irrational and offends against Art. 14. The. accident t,hat orders were passed in 11ome oases and were not passed in some others cannot afford a rational basis for classifying the two sets of cases. During the course of arguments, however, it turned out that.no fo,otual baai.s hl¥1 Sikander J eha1 Bepitm Aridhra Pra<4sh St ate Gov1rn1714nl S.fkonder Jehon Bee um ,.!ndhra Pradesh Stnle Gotenuntnl Gojendtoga~ka,. J. bGen made out in the petition on which this argument could be based. It is· not alleged that there are any cases in which orders have not been passed and which would, therefore, fall outsides. 13 (2).

When this fact was put to tho learned :~ttnrney·General who argttcd for the petitioners, he fairly conceded_ that in the nbsenco of the relnvant material, the a1gument could not be sustained. Th.,refore, we do not think it is necessary to examine the merits of this argument, though 0 WEl may add that, prima jacie, chtssification made botwocn cases decided and those not decided may not be irrational or unreasonable. The learned Attorney-General then contended that in validating the orders passed by executive authority on the question of succession, s. 13 ( 2) •riolate~ Art. l+ because it is the.right of every citizen to have qw;stions of succession tried by a Civil Court. He argues th~t if the petitioners wish to make a claim in regard to the succession to the estnte in question, they brtve a right to enforce their claim i~ a Court of Law itnd in so far as the impugned provision denies them that right, that amounts to discrimination against the petitioners which is violative of Art. 14.

It would be noticed that t.his argument is, in substa.nce, similar to the contention rnised by the lenrned Attorney·General on the strength of the decision in the case of Ammcerunnissa Begum. In examining the validity of this argument, it is necessary to consider the nature of the property in respect of which the petitioners seek to make n claim by way of succession. Tire kgnl nnture of the jagir estate has been considered by the High Court in dealing with the Writ Petition filed by the widows of the late Nawab. Several Firmans to which reference has been made by the High Court indicate that on the death of the holder of the jagir, the estate devolvecl upon the State and though it was usually regranted to the person who was found to be the successor on enquiry, in theory, ja~ii:s were resumerl on the death of the ho Ider of the jagir and their heirs cl id not automatically succeed to them.

It is alsri clear that in their lifetime the .Tagirrfars were not p<'r·. mitted to alienate the property 11ncl th,tt it was not necessary that on the death of the J11girrbr the estate should be granted to all his lwirs eith<>r. It also appears that no suit relating to jagir c.·mlrl bo instituted in the Civil Court without the prior special permission of the Nizam. ThA Firman issued on Deeember 16, 1901, to which the Judgment refers, shows that the heirs of the deceased holders of J agirs could not insist upon their right to succeed to the estate because no Atiyat grant was heritable. Another Firman issued on September 28, 1928, showed that the powers of the grantor of the .Tq,gir could not be curtailed by the rulef! framed for the guidance of the Atiyat Courts and that the grantor had an absolute right either to regrant the state to the successor or not..

There fore, the position appears to be that "the jagir tenure consisted of no more than usufructuary rights in land to which the revenue law of the State did not apply; that the Jagirs were inalienable and terminable on the death of the grantee, each Jagirdar, though an heir of the d~ceasecl holder, was deemed a fresh grantee of the estate, the right to confer such o.n estate being uncontrolled, absolute and beyond the jurisdiction of the Civil Courts. It is true that on the death of a Jagirdar an enquiry was held about the succession to the said Jagir either by the Ativat Courts or by a commission orTribunal specially appointed in that behalf; and it is also true that generally the property of the deceased Jagirdar was granted to the person who was held by the Nizam to be the successor of the deceased J agirdar. But that does n~t· affect the trae le~il ch:tracter of the Jagir. Sikander .iehan Bet!wn Andhr11 f',adeshj Staie Go·1•rrnmn1t Gajrn.d.a.z.1dkar J. Jl61 Siknid1r J1h411 Bttum Andhra Prablh si.u lor~·"nmmt 2-tO SUPREME CJURT REPORTS [1962]

SUPP. This position is borne out by the previous Firma.ns i88ued bv the Nizam in regard to the enquiry of the Atiya.t e8tatPs Circular No. 34 of !341F prescribed rules for conducting enquiries and paBBing decision" in cases of Inam. Thie circular was subs· quently surJereedcd and in ita place Circular No. I 0 of J:l38 F was issued. The date of this latter circular is Juno 1:1, 1!129. Several rules aro prescribed in the from of sections for holding enquiries and passing decisions in Inam cases. It is net necessarv to refor t<• the sections of this Circular in detail. It may be enough to state that three classe~ of officer are contempla.k>d by the Circular for holding the enquiry. They are given powers to hold the enquiry. The enquiries are intended to be he Id gen rally in accordance with the procedure prescribed in the Civil Procedure Code.

Appeals aro provid1·d against the decision of one officC'r to the officer higher in rank, but the ultimate position appe>trs to be clear; when the Nizam-c-Atiya.t expresse~ his opinion and submits it to the Hon'ble the Revenue Mombcr, the l<cvenne :viembrr thereupon expres8<'S his own opinion, and on considering all the opinion expressed in the enquiry, ·'the N"izam is graciously pleased to issue his Firman and the Firman thus issued will be binding on the partios."' Thus it appears thi.t though formal provisions were made in regard to the holding of the enquiry, the n11.turc ,,f the enquiry was eBBentially consultative and the Nizam was not bound by thti decisions reached by the eoveral officers autorisod to hold the enquiry.

Tht• fact that tho N"izam usually a~cept-O<l the decision of the enquiry does not alter· the lega.1 position that the Nizam might well have refused to accept the opinion and might even have refused to make a grant of the estate to anyone among the s,·vernl claimants. Therefore, even under the Circulars issne.d by the Xi1..a.m for holding enquiries into the questions of succe&lion to Jagirs, the position appears to be 2 s.c.&. clear that jagirs were not heritable and on the death of the Jagirdar, on principle and in theory, it was always a. case of resumption and regrant. If that be so, any person who . claimed to be the successor of the deceased Jagirda.r had no right to come be a Civil Court for establishing that claim. In fact, there is no claim to succession at all, the question of re-grant being always in the absolute discretion of the Nizam.

Aft'lr the Rule of the Nizam came to an end, the only change that occurred was that on the death of the Jagirda.r, the property vested in the State and could be regranted to a successor in the discretion of the State. Therefore, in our opinion, the argum1cnt that by denying the petitioners the right to establish a claim in the Civil Court, the impugned provision of s. 13 (2) offends against Art. 14 of the Constitution, connot be sustained. The property in respect of which the claim is sought to be made is not like the property in the case of Ameerunnissa at all. In that case, the property was heritable and succession to it was governed by the rules of personal law. In the present case, there is no right to succession .as suoh-wl:i:oever gets the estate as a result ofthe decision of the Chief Minister gets it by way of regran:t made by the State. That is why we are satisfied that the challege to the validity of s. 13 (2) on the ground that it contravenes Art. 14 cannot be sustained.

In view of the special character of the property in question, it is obvious that the petitioners cannot challenge the validity of s. 13 (2) on the ground tbat it contravenes Art. 19 ( l) (f). There is one more point which needs to be considered and that relates to the non-Atiyat estute left by the estate deceased Nawab Kamal Yar Jung. It appears that the Firman by which the Nizam appointed the first commiBllion of Enquiry refers to the Sikander Jehan Begum Andhra P1adtsh State Government Gajendrai11Jfr:ar J, Sik.,,1er J aluin Brt"rn A.11·1 i'Jf Pra lHh SitJte 'J1H''1IH1t 242 SUPRRME COURT REPORTS [1962} SUPP. estate of the deooa.sed Nawab in general and is not apparently confined to hi8 Ativat !'state. ~imi­ hrly, tho order paRsed by the Nizam that the Government Rh.ould take possession of the deceased N'a.wab's proparty appears to ha.ve been implemt·nted in regard to both Atiyat and non- Atiyat estates left by the Nawab.

The Chief :IIinist.er's ordPr confirming the r<'port of the special Tribunal subsequently appointe l is likewise vague and may seem to c?ver both the Atiyat and non-Atiyat estates. The petitioners contend that whatever may hr th" position in regard to the Atiyat estate, the Chief Minister had no right to make an order in respect of 11011.Ativat esta.te; indeed the Nizam himself could not ha.ve appointed an Enquiry Commission in respect of non-Atiyat esta.te and so the dispute in regard to the> sucoossion to th" said estate must be left to be decided accorrlin~ to the peraonal law of the parties and it must he tried hy the ordinary Civil Court~. This po~ition is not disputed ·either by Mr. Vi1wanatha Sa.~tri who appeared for the State or by Mr. Latifi who appeared for the respondents before 111. Incidentally, we may add that it appears that litigation is pendi11g in respect of this property between some of the parties in Civil Suit No. 139 of 1355F.

Since it is cornmon ground before> us that the non- A tiyat estate iJi not covered by the order pa8Md by the Chit'f Miniliter, all that we wi11h to do in the present Writ Petition is to make it clear that th11 sairl order doos not relate to non-Ativat estate and that questions of titla in respect of if. will have to be tried in the Civil Court•. In the reault, both the Writ Petition and the Appeal fail and are dis'llissed with costs. One set of heR.rin~ co~ts. Petition and Appeal dumi11tAl.