Sahibzada Saiyed Muhammedamirabbas... vs The State Of Madhya Bharat and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: 1960 AIR 768

Decision Date: 26 February, 1960

Coram: J.C. Shah, Bhuvneshwar P. Sinha, Syed Jaffer Imam, A.K. Sarkar, K.N. Wanchoo

In the matter titled Sahibzada Saiyed Muhammedamirabbas … versus The State of Madhya Bharat and Others, the Supreme Court rendered its judgment on 26 February 1960. The bench comprised Justice J. C. Shah, Justice Bhuvneshwar P. Sinha, Justice Syed Jaffer Imam, Justice A. K. Sarkar, Justice K. N. Wanchoo and Justice K. N. Wanchoo. The citation for the decision is 1960 AIR 768 and 1960 SCR (3) 138; it has been referenced in subsequent reports APL 1962 SC 1616, RF 1981 SC 2189 and related authorities. The case concerned the right to guardianship under personal law and the possibility of enforcing that right through the constitutional remedy provided by Article 32 of the Constitution of India, which guarantees the right to approach the Supreme Court for the enforcement of fundamental rights.

The petitioner, Sahibzada Saiyed Muhammedamirabbas Abbasi, had migrated to West Pakistan and sought a writ of habeas corpus from the High Court of Madhya Bharat requesting that his two minor children, identified as petitioners 2 and 3, be produced before the court on the ground that they were being wrongfully confined. After that application was dismissed, the petitioner approached the District Judge of Ratlam under the Guardian and Wards Act, seeking appointment as guardian of the person and property of the minors. The District Judge rejected the petition and instead appointed the second respondent as guardian. The petitioner appealed that order to the High Court, which dismissed the appeal. He then applied for special leave to appeal to this Court, but the application for special leave under Article 136 was also rejected. Consequently, the petitioner filed the present petition directly under Article 32, claiming that the second respondent’s interest was adverse to that of the minors, that the respondent had misappropriated the minors’ property, and that the State of Madhya Bharat, as the first respondent, was obligated to protect the minors’ property but had failed to do so, thereby becoming liable to compensate the loss suffered by the minors.

The Court held that the petition was wholly misconceived and therefore dismissed. It explained that jurisdiction under Article 32 is limited to the enforcement of fundamental rights guaranteed by Part III of the Constitution. When a right alleged by a petitioner does not exist because a competent court has already decided the matter, there can be no infringement of that right, and the Supreme Court cannot entertain a petition under Article 32 for protection of a non‑existent right. The Court further observed that a claim of denial of equality before the law or equal protection of the laws may be made against executive action or legislative process, but not against a decision rendered by a court of competent jurisdiction. Finally, the Court affirmed that an order rejecting an application for special leave under Article 136 cannot be bypassed by filing a writ petition under Article 32.

The matter was identified as petition number 217 of 1956 and was presented as a petition under Article 32 of the Constitution of India seeking enforcement of fundamental rights. The petitioners were assisted by counsel Pandit Nanak Chand while the first respondent was represented by counsel I N Shroff. The petition was filed on 26 February 1960 and the judgment in the case was delivered by Justice Shah. The petition was instituted by Sahibzada Saiyed Muhammed Amirabbas Abbasi, who is hereinafter referred to as the first petitioner. He filed the petition both on his own behalf and as the natural guardian of his two minor children, Kamal Abbas and Jehanzeb Bano, who are designated as petitioners 2 and 3. The petition was brought against the State of Madhya Bharat—now known as the State of Madhya Pradesh—and against three additional respondents. The reliefs sought included an order directing the State of Madhya Bharat to take immediate charge of the property belonging to the minor petitioners, to assess the loss suffered by the minors, and to require the State and the other respondents to compensate the minors for the full value of the property that had been lost through alleged negligence in performing their duties to protect the minors’ property. Further reliefs sought the production of the minor children before this Court by the fourth respondent, to place the children in the custody of a relative competent under the applicable Personal Law, and to compel the Chief Secretary of Madhya Bharat to provide complete particulars of any trust property released in favour of the second respondent. The petition also demanded that the first respondent produce in this Court the box of jewellery that had been entrusted to it, together with full details of its custody from 29 March 1948, to determine whether the contents had been misappropriated, to ascertain any loss suffered by the minors, to quantify that loss, and to declare the liability of the respondents. The petition further requested any further relief that the Court might deem just and proper. The Court observed that, on a preliminary assessment, the reliefs claimed did not fall within the ordinary scope of a petition for a writ under Article 32. While the Court possesses authority under Article 32 to issue directions, orders or writs—including habeas corpus, mandamus, prohibition, quo warranto and certiorari—when required for the enforcement of fundamental rights, the present petition sought, on the ground that the respondents had misappropriated or misapplied the property of petitioners 2 and 3, a writ directing the assessment and restitution of the loss and also sought orders concerning the custody of the minors in accordance with their Personal Law. The factual background giving rise to the petition was then set out. The first petitioner had married in 1940 a woman named Naiyar Jahan Begam, by whom he fathered the two children who are now petitioners 2 and 3. Naiyar Jahan Begam died in 1943, after which the petition proceeds to the subsequent facts.

After the death of Naiyar Jahan Begam, the two minor children, referred to as petitioners 2 and 3, were placed under the care of Musharraf Jahan Begam, who was the mother of Naiyar Jahan Begam. The minor children inherited valuable property from their father, Naiyar Jahan Begam, and they also received a substantial dowry from their mother, Musharraf Jahan Begam, at the time of their marriage. Prior to her death on 6 March 1949, Musharraf Jahan Begam executed a trust concerning certain property for the benefit of petitioners 2 and 3. Following the death of Naiyar Jahan Begam, the first petitioner entered into a second marriage, which produced three additional children. Throughout the lifetime of Musharraf Jahan Begam, the first petitioner showed no interest in the welfare of petitioners 2 and 3, and in 1948 he migrated to West Pakistan, taking residence in Rawalpindi.

Subsequent to the death of Musharraf Jahan Begam, the first petitioner approached the Madhya Bharat High Court seeking a writ of habeas corpus, requesting that the court order petitioners 2 and 3 to be produced before it on the ground that they were allegedly being wrongfully detained. The High Court declined to issue the writ and directed that, if deemed appropriate, the first petitioner could pursue relief under the Guardian and Wards Act. Acting on that suggestion, the first petitioner filed an application before the District Judge of Ratlam, asking to be appointed guardian of the persons and property of petitioners 2 and 3. On 23 November 1949, the second respondent, Sultan Hamid Khan, who was a cousin of Musharraf Jahan Begam, also applied for appointment as guardian of the minors. By order dated 5 December 1949, the District Court appointed Sultan Hamid Khan as guardian and dismissed the first petitioner’s application.

The first petitioner appealed the District Court’s order (Appeal No. 20 of 1950) to the Madhya Bharat High Court. The High Court dismissed the appeal on 29 March 1954. An application for special leave to appeal that dismissal to this Court under Section 136 was filed, but on 12 November 1956 the application was rejected. In the interim, the first petitioner filed a petition before this Court under Article 32 of the Constitution, seeking the reliefs previously described. In that petition, petitioners 2 and 3 were joined as parties, and the first petitioner claimed that he was their natural guardian and next friend. However, since the District Court of Ratlam had already appointed the second respondent as guardian of the minors’ persons and property, the first petitioner could not, without further order, claim to be their next friend or to act as their guardian unless this Court, for reasons to be recorded, determined that such appointment would be for the welfare of the minors, in accordance with Order 32, Rule 4 of the Code of Civil Procedure. The first petitioner had not obtained any order from this Court authorising him to act as next friend or guardian of petitioners 2 and 3.

In the present proceedings the petitioner sought to be recognized as the next friend of petitioners two and three despite the earlier order of the District Court that had appointed respondent number two as their guardian. The petition filed by the petitioner was lengthy and detailed. In that petition the petitioner alleged that the interests of the second respondent, who had been designated a guardian by the District Court, were opposed to the interests of the minors. He asserted that the second respondent was unfit to serve as guardian, that the second respondent had misappropriated the minors’ property, that the second respondent was neglecting the care of the minors and was acting contrary to their welfare, and that the proceedings before the District Court were tainted by partiality, collusion and a deliberate violation of an order previously issued by the High Court. The petitioner further contended that the State of Madhya Bharat was obligated to safeguard the entire estate of the minor petitioners, but that the first respondent had failed to do so, thereby making the State liable to compensate for the loss incurred. On the basis of these allegations the petitioner submitted that the minors had been denied equal protection under the existing statutes, including the applicable Personal Law, and that such discrimination placed their property in serious danger of being wasted or misappropriated. He also argued that his own rights under the Personal Law governing the minors, as their natural guardian, could not be denied merely because he had acquired a foreign domicile. The petitioner invoked jurisdiction under Article 32 of the Constitution, noting that this Court could grant relief only for the enforcement of rights conferred by Part III of the Constitution. The Court observed that the petitioner’s claimed right to guardianship of his minor children under the Personal Law was not a fundamental right guaranteed by the Constitution, and that the appointment of respondent number two as guardian under the Guardian and Wards Act did not amount to discrimination against the minors. The appointment of the second respondent had been made by a competent court, and the Constitution’s guarantee of equality before the law or equal protection of the laws could be pressed against executive or legislative action but not against a decision of a duly constituted judicial tribunal. Consequently, a person aggrieved by the decision of such a tribunal must seek redress from a higher tribunal, if one exists. In this case an appeal against the District Court’s order appointing the second respondent as guardian of the person and property of the minors was filed in the High Court and was dismissed. A subsequent application for special leave to appeal to this Court was also refused, leaving the District Court’s order final. The Court noted that if, after the date of that appointment, circumstances arose that required a modification of the guardian’s order, the proper remedy would be to apply to the District Court for such modification rather than to seek a writ under Article 32.

In the present case, the Court observed that the appropriate remedy for the first petitioner was to file an application before the District Court seeking the relief claimed. The Court further held that the petitioner could not approach this Court for a writ of habeas or any other relief under Article 32 of the Constitution. The Court noted that it had already dismissed the petitioner’s request for special leave to appeal under Article 136. It also stated that this dismissal could not be avoided by filing a fresh application for a writ under Article 32. The Court further explained that relief under Article 32 for enforcement of a fundamental right belonging to Chapter III could be granted only when the petitioner could demonstrate the existence of that right. It also required that the petitioner provide proof that the alleged right had actually been infringed by the respondents. The Court held that if a competent civil court had already adjudicated the matter and denied the right, a petition to this Court under Article 32 could not be entertained despite the civil court’s decision. Accordingly, the Court held that the first petitioner sought an assessment of the respondents’ liability, alleging either misappropriation of the minors’ estate or loss caused by negligence. The Court said that such relief could be obtained only through a properly instituted civil suit and not through a petition under Article 32. The Court added that the question of the property to which the minors were or might become entitled could be settled in a proceeding under the Guardian and Wards Act or by a civil suit. It further held that the determination of the minors’ property rights could not be made by a writ petition filed under Article 32. Concluding its analysis, the Court described the petition as entirely misconceived, ordered its dismissal, and directed that the costs of the petition be paid by the first petitioner personally. Accordingly, the Court dismissed the petition and entered an order that reflected the dismissal and required the petitioner to bear the costs.