Calcutta High Court
Syed Fateyab Ali Meerza Since Deceased ... vs Union Of India (Uoi) And Ors. on 30 June, 2006
Equivalent citations: 2006(3)CHN407
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
ORDER Bhaskar Bhattacharya, J.
1. These two mandamus appeals have been assigned to this Bench by the Hon'ble the Chief Justice after the Supreme Court has remanded the matters back to this Court in the light of the observations made in the order of that Court.
2 The facts giving rise to these proceedings may be precised thus:
(a) One Syed Fateyab Ali Meerza, (hereinafter referred as the writ petitioner), filed a writ application before this Court thereby praying for declaration that the provisions of the Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 (West Bengal Act 55 of 1980) are ultra vires the Constitution of India and void and for commanding the respondent Nos. 1 and 2 to rescind, revoke, cancel and/or withdraw the said Act and to forbear them from giving effect thereto. The other consequential prayers including an order of injunction restraining the respondents from interfering with the affairs of the Murshidabad Estate or with the possession of the writ petitioner and his tenants in respect of Premises No. 85, Park Street, Calcutta were also made therein.
(b) In the said writ application, the writ petitioner claimed to be the then Nawab Bahadur of Murshidabad and Amir-ul-omrah by virtue of succession from Syed Waris Ali Meerza, the last Nawab, who died on November 20, 1969. According to the writ petitioner, his great grandfather, Faridoon Jah Syed Mansoor Ali Khan was the Nawab of Bengal. Bihar and Orrisa and was in law the independent Ruler of Suba Bengal and in view of differences which arose between the subsequent Nawab and the then Government of India, an Indenture dated 12th March, 1891 was made between Secretary of State for India of one part and Syed Hassan Ali Khan Bahadur, the then Nawab, on the other part and by virtue of the said Sanad, an annual payment of Rs. 2,30,000/- from the revenue of the Government British India was settled to the Nawab Bahadur of Murshidabad as mentioned therein with certain other privileges.
(c) Immediately after the execution of the said Indenture, the Murshidabad Estate Act (Act 15 of 1891) was passed by the Government of India to confirm and to give effect to the said Indenture dated 12"1 March, 1891 and the effect of the said Act read with the Indenture was to guarantee the payment of annuity and/or pension of Rs. 2,30,000/-per annum or Rs. 19,116-10 annas-8 paise per mensem and also to secure the vested right to the scheduled property to the Nawab Bahadur for the time being. It was further provided that such estate would be descendible to the lineal heirs male of the said Nawab Bahadur according to the custom of primogeniture, the eldest male of the eldest branch being preferred.
(d) Subsequently, on 21st September, 1933, the Indian Legislature passed the Murshidabad Estate Administration Act, 1933, to provide inter alia, for the appointment of a Manager on behalf of the Secretary of the State of India in respect of the management of the properties of the Nawab Bahadur of Murshidabad and to afford protection against the liabilities to which he was exposed by reason of his debts and to prevent further debts and to repayment to his creditors and make provision for the payment to Nawab Bahadur for a sum sufficient for the maintenance of his position and dignity.
(e) In terms of the provisions contained in the said Act, the then Government of Bengal appointed Managers under the said Act who took possession of all the properties of the Nawab Bahadur of Murshidabad for the management and since 1933, the successive Managers appointed under the said Act managed the said estate which had an approximate income of several lakhs of rupees.
(f) By virtue of the provision contained in the Government of India Act, 1935, the properties of the Murshidabad Estate vested in the then Government of Bengal and under Section 177 of the said Act, all contracts except those mentioned in Section 178 thereof, made by the Secretary of the State were deemed to have been made on behalf of the Government of the Province of Bengal.
(g) Subsequently, in view of paragraph 2 of Article 8 of the Indian Indenture (Rights, Property and Liabilities) Order, 1947, the Indenture dated 12th March, 1891 on the establishment of the Dominion of India, had the effect, as if, the same had been made on behalf of the Province of the West Bengal.
(h) Subsequently, apart from the aforesaid statutes, namely, the Act of 1891, the Act of 1933, and the Murshidabad Act, 1946, the Murshidabad Estate Administration (Amendment) Act, 1959 was passed for better management of the properties of the said Estate and by virtue of those two subsequent statutes, the annuity given in terms of Indenture dated 12th March, 1891 was not interfered with and there was no break in the payment of the annuity till 1969.
(i) The West Bengal Legislature subsequently passed an Ordinance which was later on incorporated into a statute, namely, the Murshidabad Estate Administration (Amendment) Act, 1959 by which the proviso to Section 5 of the Murshidabad Estate Administration Act, 1933 was deleted and a new proviso was added so that the property might not be restored to the eldest brother of the writ petitioner within sixty days from the date of death of his father.
(j) Subsequently, the West Bengal Legislature passed a statute entitled the Murshidabad Estate (Trust) Act, 1963, which was assented to by the Governor on 18th February, 1963 by which several new provisions were made thereby specifying pension and payment of monthly sum to various persons of the Nawab-family including the Nawab Bahadur for the time being.
(k) By the said 1963 Act, it was specifically provided that insofar as the said provision did not relate to the descent of title of Nawab Bahadur or a sum of Rs. 2,30,000/- that was payable to Nawab Bahadur from the revenue of the Government in pursuance of the Indenture confirmed by Murshidabad Act, 1891 and to the payment thereafter to the Nawab Bahadur in accordance with the provision of the said Indenture, the following Acts were repealed, namely, the Murshidabad Act, 1891, the Murshidabad Estate Administration Act, 1933, the Murshidabad Act, 1946 and the Murshidabad Estate Administration (Amendment) Act, 1959. It was further provided that the provision of 1963 Act shall have the effect notwithstanding anything to the contrary contained in any other law or in any contract, usage or custom to the contrary.
(l) According to the writ petitioner, the Official Trustee of the West Bengal was unlawfully dealing with the Murshidabad Estate by the purported Murshidabad Estate (Trust) Act, 1963 in derogation of the right of the writ petitioner as the then incumbent of the title of Nawab of Murshidabad.
(m) Being dissatisfied with the action of the State-respondent in not recognizing the writ petitioner as Nawab and not paying a sum of Rs. 2,30,000/- annually, the writ petitioner in the past moved another writ application on which a Rule being C.R.No.l0165(W) of 1981 was issued and the same was still pending.
(n) Subsequently, the State of West Bengal passed a statute, namely, Murshidabad Estate (Management of Properties) and Miscellaneous Provisions Act, 1980 which was published in the Calcutta Gazette on March 11,1981 and by the said Act, according to the writ petitioner, the State Government had illegally and maliciously sought to interfere with the right of the writ petitioner as the then Nawab Bahadur of the Murshidabad and to the said annuity of Rs. 2,30,000/-and in the vested rights in the properties belonging to the Murshidabad Estate and thus, the said Act was challenged being ultra vires on various grounds.
(o) A learned Single Judge of this Court partly allowed the writ application after repelling the contentions raised on behalf of the respondent that the writ petitioner had no locus standi to file the writ petition and three Sections of the said statute, namely, 8, 10 and 12 were struck down as ultra vires the Constitution of India and the writ petition was, accordingly, disposed of.
(p) Both the writ petitioner and the State of West Bengal filed two separate appeals being the present two mandamus appeals before a Division Bench of this Court and by an order dated 22nd December, 1992, the Division Bench came to the conclusion that the writ petitioner had no locus standi to file the writ application and accordingly, allowed the appeal filed by the State and dismissed the appeal filed by the writ petitioner on that ground alone and the other contentions raised in the writ application were not go no into in those appeals.
(q) Being dissatisfied, the writ petitioner filed two appeals before the Supreme Court of India by special leave and during the pendency of those appeals, the original writ petitioner died on 3rd January, 1998. Before the Supreme Court two applications were filed, one by Sajid Ali Meerza for being substituted as legal representative of the writ petitioner and the other by Syed Mohammed Abbas Ali Meerza claiming the same relief of substitution as the legal representative of the original writ petitioner. Sajid Ali Meerza was claiming to be the legal representative on the basis of being the son by rnuta marriage of the second Nawab, Wasif Ali Meerza and the other applicant being Syed Mohammad Abbas Ali Meerza was asserting to be the legal representative as the eldest son of the daughter of second Nawab Wasif Ali Meerza who died before the death of the writ petitioner.
3. As there was dispute between the two applicants as to who was entitled to become the legal representative of the original writ petitioner for the purpose of those appeals, the Supreme Court decided to bring on record both of them and thereafter, came to the conclusion that the original writ petitioner, namely, Sayed Fateyab Ali Meerza had the locus standi to file the writ petition and thus, set aside the order passed by the Division Bench and remanded the matter back to this Court for deciding other questions involved in the appeals. The Supreme Court, however, directed this Court to decide as to whether any of the two applicants could be substituted as the legal representative in place of original writ petitioner.
4. Accordingly, these two appeals have been placed before us.
5. Therefore, the first question that falls for determination is whether any of the two applicants are the legal representative of the original writ petitioner. It may not be out of place to mention here that after the disposal of the Supreme Court appeals, Sajid Ali Meerza, one of the contesting applicant died intestate leaving his widow and two daughters and those three persons have come up before this Court for being substituted in place of original writ petitioner as legal representative of Sajid Ali Meerza.
6. After hearing the learned Counsel for the parties and after going through the materials-on-record we find that by virtue of the Indenture of 1891 which was affirmed by the Murshidabad Act of 1891, the devolution of the right of the Nawab-Estate will not be governed by the ordinary law of succession applicable to the Shia Muslim community to which the Nawab belonged but should be governed by the provision contained in the Indenture itself which says that such right will be descendible to the lineal heirs male of the said Nawab Bahadur according to the Custom of primogeniture, the eldest male of the eldest branch being preferred. Subsequently, in 1963 Act, the statute passed by the West Bengal Legislature, although, the 1891 Act was repealed, yet, the provision of devolution of the right of the Nawab and the right to get annuity had not been repealed. Therefore, the right of the Nawab to the Murshidabad Estate will be governed by the law of primogeniture, the eldest male of eldest branch being preferred.
7. Sajid Ali Meerza claimed to be the brother of the writ petitioner by muta marriage of the father of the writ petitioner and according to him, he being the eldest male member in the said branch is entitled to be substituted in place of the writ petitioner. Although, Mr. Das, the learned Counsel appearing on behalf of the other claimant vehemently opposed the aforesaid assertion, in our view, we are now not required to go into that disputed questions as regards the status of Sajid AH Meerza as the step-brother of the deceased writ petitioner because he has died in the meantime and is survived by his widow and two daughters. Since the present applicants are all females, according to the primogeniture Rule of Succession, they cannot claim such right and therefore, they cannot be substituted in place of the writ petitioner, even if, their predecessor, Sajid Ali Meerza was the brother of the last Nawab by virtue of muta marriage of their father. We, thus, reject the application of the heirs of Sajid Ali Meerza on the sole ground that they being the female heirs are not entitled to get the right and privilege of the Nawab by virtue of Indenture of 1891. We make it clear that we have not gone into the question whether Sajid Ali was really the step-brother of the writ petitioner as alleged or whether the so-called Sajid Ali, the applicant before the Apex Court, was an impostor as alleged by the other applicant.
8. The next question is whether Syed Mohammed Abbas Ali Meerza, the other applicant, should be substituted in place of the deceased writ petitioner.
In order to appreciate the aforesaid claim, the following geneological table submitted by Mr. Das may be taken note of:
9. It appears from the said geneological table that Syed Mohammed Abbas Ali Meerza is claiming to be the eldest male member of the family through the predeceased sister of Syed Fateyab Ali Meerza, the writ petitioner.
10. In our view, as the said Syed Mohammad Abbas Ali Meerza is claiming through the predeceased sister of last Nawab, he cannot claim inheritance of the Nawab Estate as law of primogeniture excludes the right of female and when his mother was unable to get any right, he also cannot succeed to the estate. It appears that the other predeceased brothers of Syed Fateyab Ali Meerza have sons who, according to this applicant, have all migrated to England and have become British Nationals. Since the present applicant, namely, Md. Abbas Ali Meerza is unable to substantiate his own claim, we are not inclined to enter into the question whether sons of Syed Kazim Ali Meerza, and Syed Waris Ah Meerza, the predeceased brothers of the writ petitioner are his heirs because none of them is coming forward to be substituted in place of Syed Fateyab Ali Meerza for the purpose of proceedings with these appeals as the legal representative of the writ petitioner.
11. In this connection, Mr. Das places strong reliance upon the definition of primogenitures given in the Stroud's Judicial Dictionary and Black's Law Dictionary, in support of his contention that his client being himself a male member can be the successor of the writ petitioner, although he is claiming through his mother who was a predeceased sister of the writ petitioner.
12. To appreciate the aforesaid question, the definition of primogeniture as mentioned in Black's Law Dictionary is quoted herein:
PrimogenitureThe state of being the first-born among several children of the same parents; seniority by birth in the same family. The superior or exclusive right possessed by the eldest son, and particularly, his right to succeed to the estate of his ancestor, in right of his seniority by birth, to the exclusion of younger sons.
13. Similarly, the definition given in Stroud's Judicial Dictionary is also quoted herein:
Primogeniture. Primogeniture is 'the right of the eldest among the males to inherit' real estate [Wms. K.P.(1st Ed.), Pt. 1, Ch. 4; see HEIR], or a DIGNITY.
14. Apart from those two dictionaries, we have ourselves considered several other dictionaries to find out the meaning of the word "primogeniture" and also the meaning of the rule of succession according to the custom of primogeniture.
15. According to the Oxford Universal Dictionary Illustrated, Third edition revised and edited by C.T. Onions, the word "primogeniture" is defined as follows:
1. The fact or condition of being the first-born of the children of the same parents. 2. The right of succession or inheritance to the first-born; the principle, custom or law by which the property or the title descends to the eldest son (or eldest child); spec. The feudal rule of inheritance by which the whole of the real estate of an intestate passes to the eldest son.
16. According to the Webster's New Worlds Dictionary and T. "Primogeniture" is defined thus:
1. The condition or fact of being the first born of the same parents; 2. Law the exclusive right of the eldest son to inherit his father's estate.
17. According to the Osborn's Concise Dictionary, Seventh Edition by Roger Bird, the word "primogeniture" means "the rule of inheritance according to which the eldest male in the same decree succeeded to the ancestor's land to the exclusions of others".
18. The Supreme Court had the occasion to deal with the word "primogeniture" in the case of Dattatrya v. Krisna Rao reported in 1993 Suppl. (1) SCC page 32 and the following observations of the Court is relevant for our purpose:
Thus it is settled law that succession to an impartible estate is governed by the rule of primogeniture and the eldest male member of the family would succeed by survivorship to the impartible estate.
19. After going through the aforesaid definitions as well as the observations of the Apex Court while dealing with the succession of an impartible estate under the M.B. Abolition of Jagirs Act, we are of the view that primogeniture law of succession as indicated in the Indenture in questions means exclusion of female and restricting the inheritance to the seniormost male member of the same decree although the plain meaning of the word is the condition or the fact of being born first of the same parents. When we are called upon to interpret the meaning of the "rule of inheritance according to the custom of primogeniture, eldest male of the eldest branch being preferred" as mentioned in the Indenture, we are left with no other option but to hold that the females or their successors, even if they happen to be male, must be excluded for the purpose of inheritance.
20. We, thus, find that Mr. Das's client being a son of the sister of the last Nawab, he cannot be said to be the legal representative of the writ petitioner according to the law of devolution by which the estate of the Nawab is governed. We make it clear that we have not gone into the question whether the children of Syeed Waris Ali Meerza or the son of Syeed Kazim Ali Meerza have embraced Jewish religion or whether they have become British nationals as alleged by Mr. Das as those questions are inconsequential for the purpose of deciding these appeals particularly when they have not come forward to be substituted in this appeal.
21. Both the applicants having failed to prove that they are the legal representatives of the original writ petitioner and no other persons having claimed to be substituted hi his place, we find that the appeal filed by the original writ petitioner should be dismissed as abated.
22. So far the other appeal preferred by the State is concerned, Mr. Balai Chandra Roy, the learned Advocate General appearing on behalf of the appellant submits that he has instruction not to press the appeal. Since, the State does not want to proceed with their appeal we dismiss the appeal being F.M.A.No. 2052 of 2003 as not pressed.
23. In course of hearing these appeals, another application was filed being CAN No. 9444 of 2004 at the instance of Mr. Das's client namely, Syed Mohammed Abbas Ali Meerza thereby praying for allowing the amendment of the original writ application. Since we have found that he cannot be substituted in place of the writ petitioner, the said application is dismissed as not maintainable.
24. Another application being CAN No. 1427 of 2006 has been filed by one Suraj Karan Jain for addition as party in the writ application as respondent on the ground that he has interest in respect of premises No. 85. Park Street and has also got 25 per cent of the total Estate of Nawab of Murshidabad.
25. Since, the appeal filed by the writ petitioner is dismissed as abated, the present application has also become infructuous and is not required to be considered. Accordingly, we dismiss the present application being CAN No. 1427 of 2006 as superfluous.
26. Both the appeals and the connected applications are, thus, disposed of.
In the facts and circumstances, there will be, however, no order as to costs.
Pravendu Narayan Sinha, J.
27. I agree.