S. K. JAIN, J. ( 1 ) THE present special appeal has been preferred against the judgment and order dated 31-7-1996 whereby the learned single Judge dismissed the suit for partition filed by the plaintiff appellant Talat Fatima Hasan. ( 2 ) THE suit for partition of moveable and immovable properties left by late Nawab syed Raza Ali Khan, Nawab of Rampur, rendition of accounts of income, profits, usufructs and benefits from the said property, and decree for pendentilite and future mesne profits, was filed by the plaintiff appellant in the Court of Civil Judge Rampur in the year 1972. As the proceedings in the suit could not make progress for over twenty years, on the recommendation of the Honble Inspecting Judge for Rampur Session Division, Honble Chief Justice vide his order dated 2-1-1995 assigned the suit to the bench of learned single Judge. ( 3 ) IN short the pleading of the plaintiff are that late His Highness, Maj. Gen. Sir Syed Raza Ali Khan Sahib Bahadur (hereinafter referred to as the late Nawab") was the ruler of erstwhile Rampur State in U. P. By an agreement dated 15-5-1949, the late Nawab transferred the entire administration of the Rampur State to the Government of India, w. e. f. 1-7-1949 and granted to the latter, full authority, jurisdiction and power in relation to the territories of the said State. The said agreement also provided in Article IV that the Nawab shall be entitled to the full ownership use, occupation and enjoyment of all private properties belonging to him on the date of the agreement. An inventory of all moveable properies and immovable properties, securities and cash balance held by him as private propery was prepared. Nawab Syed Raza Ali Khan died intestate on 6/03/1966. He owned and possessed at the time of his death properties detailed in the scheduled attached to the plaint, besides other properties. The late Nawab Syed Raza Ali Khan was a Muslim of the Shia Sect and the personal law applicable was the Muslim Shia Law. The inheritance of his private properties thus would be governed by the Muslim Personal Law (Shariat) Application Act, 1937. According to the said law the estate of the late Nawab comprising of 55,296 Sihams develoved upon his heirs as follows :-1. HER Highness Rafat Zamani Begum (widow)2304 sihams 1/2. Smt. Qaisar Zamani Begum (widow)2304 " 1/3. The inheritance of his private properties thus would be governed by the Muslim Personal Law (Shariat) Application Act, 1937. According to the said law the estate of the late Nawab comprising of 55,296 Sihams develoved upon his heirs as follows :-1. HER Highness Rafat Zamani Begum (widow)2304 sihams 1/2. Smt. Qaisar Zamani Begum (widow)2304 " 1/3. Smt. Talat Zamani Begum (widow)2304 " 2. Nawabzada Syed Abid Ali (son)8064 " 3. His Highness Nawab Syed Murtaza Ali Khan Saheb (son)8064 " 4. Nawabzada Syed Zulfiqar Ali Khan (son)8064 " 5. Nawabzadi Syeda Khurshid Laqa (daughter)4032 " 6. Nawabzadi Syeda Birjees Laqa Begum (daughter)4032 " 7. Nawabzadi Syeda Kamar Laqa Begum (daughter)4032 " 8. Nawabzadi Syeda Akhtar Laqa Begum (daughter)4032 " 9. Nawabzadi Syeda Naheeda Laqa Begum (daughter)4032 " 10. Nawabzadi Syeda Mehrunnisa Begum (daughter)4032 " ( 4 ) CONSEQUENT to the death from time to time of various persons amongst the aforesaid heirs of the late Nawab, the share of the parties as on 4-2-1994, when necessary amendment in the plaint was incorporated, is stated to be as follows :-1. PLAINTIFF-TALAT Fatima Hasan 1120 sihams 2. Defendant No. 1/2 Syed Mohd. Ali Khan 4480 " 3. Defendant No. 1/3 Smt. Nighat Ali Khan 2240 " 4. Defendant No. 3/1 Begum Mehtab Ali Khan alias Begum Noor Bano 1244 " 5. Defendant No. 3/2 Mrs. Saman Khan 2177 " 6. Defendant No. 3/3 Mrs. Durrez Ahmed 2177 " 7. Defendant No. 3/4 Mrs. Kazim Ali Khan alias Naved Khan 1354 " 8. Defendant No. 4 Mrs. GiselaMaria Ali Khan 1008 " 9. Defendant No. 5 Master Raza Andrews Ali Khan 2856 " 10. Defendant No. 6 Master Nadeem Ali Khan 2856 " 11. Defendant No. 8 Syed Sirajul Hasan 2240 " 12. Defendant No. 9 Syeda Birjees Laqa Begum 4976 " 13. Defendant No. 10 Syeda Akhtar Laqa Begum 4976 " 14. Defendant No. 11 Syeda Naheeda Laqa Begum 4976 " 15. Defendant No. 12 Syed Kamar Laqa Begum 4976 " 16. Defendant No. 13 Syeda Mehrun Nisa Begum 4032 " 17. Defendant No. 14 Smt. Qaisar Zamani Begum 2304 " 18. Defendant No. 9 Syeda Birjees Laqa Begum 4976 " 13. Defendant No. 10 Syeda Akhtar Laqa Begum 4976 " 14. Defendant No. 11 Syeda Naheeda Laqa Begum 4976 " 15. Defendant No. 12 Syed Kamar Laqa Begum 4976 " 16. Defendant No. 13 Syeda Mehrun Nisa Begum 4032 " 17. Defendant No. 14 Smt. Qaisar Zamani Begum 2304 " 18. Defendant No. 15 Smt. Talat Zamani Begum 2304 "55296 SIHAMS ( 5 ) IT is further pleaded by the plaintiff appellant that certain rights, privileges and title which were guaranted to the late Nawab when Constitution of India came into effect, were to continue even after his death and were to be enjoyed by his successor who according to the definition given in Article 366 (22) of the constitution was to be recognised by the President as Ruler. The defendant No. 1 Syed Mutaza Ali Khan being the eldest son of the Late Nawab approached the President of India who recognised him as ruler for the purpose of Article 366 (22) of the Constitution. A certificate dated 1-4-1966 was also issued by the Government of India to the following effect:"that His Highness Nawab Murtaza Ali Khan Bahadur has been recognised by the President of India under Article 366 (22) of the Constitution of India as the ruler of Rampur in succession to his father, His Highness Nawab Syed Raza Ali Khan Bahadur, Mustaid-i-Jang with effect from 7/03/1966 and accordingly the said His Highness Nawab Syed Murtaza Ali Khan Bahadur, as such Ruler is the sole successor to all private properties moveable and immoveble held by the said His Highness Nawab Syed Raza Ali Khan Bahadur Mustaid-I-Jang in the capacity of the Ruler of Rampur and that the Government of India have no objection to such property being transferred to the said His Highness Nawab Syed Murtaza Ali Khan Bahadur. " ( 6 ) THE said certificate of the Government of India was challenged by the defendant No. 10 before the Delhi High Court which by judgment and order dated 18-12-1969 quashed the said certificate. the same wa affirmed by the Supreme Court. ( 7 ) ON abolition of the Privy Purses by an Executive Order, President of India withdrew the recongnition granted to the defendant No. 1 for the purpose of Article 366 (22 ). the same wa affirmed by the Supreme Court. ( 7 ) ON abolition of the Privy Purses by an Executive Order, President of India withdrew the recongnition granted to the defendant No. 1 for the purpose of Article 366 (22 ). The said defendant thus lost all his personal rights, privileges, immunities, dignities and title to which he was entitled as a ruler. The plaintiff thereupon filed suit No. 22 of 1970 about the properties in suit in the Court of the District Judge Rampur. During the pendency of the said suit, however, the derecognision order was declared null and void by the Supreme Court, hence the said suit was withdrawn with liberty to file fresh suit with permission of the Government of India. After obtaining the permission on 22/04/1971 under sub sec. (1) of S. 86 read wih S. 87 (b) of the Civil Procedure Code, the present suit has been filed for partition of the plaintiffs share of 784 Sihams out of 55296 Sihams, accounting and recovery of mesne profit, because defendant No. 1 who was in possession over the properties left by the late Nawab and was enjoying usufruct, declined to partition her share, to render accounts and pay her share in the income and mesne profits. ( 8 ) THE suit was contested by late defendant No. 1 which defence has also been adopted by his legal representatives. In the written statement of defence it is not disputed that the late Nawab entered into an agreement dated 15-5-1949 with Government of India and thus ceded his State to the Union of India w. e. f. 1/07/1949. It has been stated in the written statement that the reference to the phrase private Properties has been made in Article IV of the agreement of merger in Contradistinction to the State properties i. e. the property of the Union of India. Prior to the merger there was no distinction between the private and State properties of the State of Rampur, and everything was vested in the ruler. The merger agreement provided that the Dominion Government guarantees succession according to law and custom to the Gaddi of the State and to Nawabs personal rights, privileges, immunities etc. The late Nawab who was a Shia Muslim died on 6/03/1966. The merger agreement provided that the Dominion Government guarantees succession according to law and custom to the Gaddi of the State and to Nawabs personal rights, privileges, immunities etc. The late Nawab who was a Shia Muslim died on 6/03/1966. The inheritance to his Gaddi including his private properties however was not governed by the Muslim Personal Law or Shariat Act rather by the Rule of Secession, known as rule of primogentiure. On the death of late Nawab, the defendant No. 1 who was sole heir and successor under the law of male lineal primogeniture entitled to succession to Gaddi, was recongnised by the President of India as the ruler under Article 366 (22) of the Constitution. The defendant No. 1 alone thus inherited the property left by Nawab as his sole successor. The said right to succession was not conferred by the certificate issued by the Government of India rather was in accordance with the rule of succession prevalent in the matter of succession to the Gaddi and the private properties of Rampur State, which in its very nature has an impartible character. The plaintiff, or for that matter none of the defendant No. 2 to 15 have inherited any share or right to the properties left by the late Nawab Syed Raza Ali Khan. In this way the plaintiff appellant is not entitled to seek partition, rendition of accounts or any mesne profits. It is further stated that late Nawab had according to law of Rampur made ample provision by creating trust including the one named Raza Trust, giving Jagirs and Pensions etc. to the junior members of the family including the plaintiff and other defendants, who were not to get anything under the law of succession applicable to the rulers for Rampur. The plaintiffs mother as also the other defendant had been receiving allowances apart from other properties given to them by the late Nawab. The late Nawab had given a sum of Rs. 25 lacs to Raza Trust which was for the benefit of his children other than the defendant No. 1. The beneficiaries were the defendant Nos. 3, 9 to 12 the husband of the defendant No. 4, father of defendant Nos. 5 and 6, wife of defendant No. 7 and mother of plaintiff and defendant No. 8. ( 9 ) THE defendant No. 13 was provided immovable property at Madras. The beneficiaries were the defendant Nos. 3, 9 to 12 the husband of the defendant No. 4, father of defendant Nos. 5 and 6, wife of defendant No. 7 and mother of plaintiff and defendant No. 8. ( 9 ) THE defendant No. 13 was provided immovable property at Madras. The defendant No. 2 was given properties at Nainital and Bombay worth rupees fifty lacs, besides immovable property worth rupees one crore at Friends Colony, New Delhi, Mussoorie and Madras. The defendant and other defendants thys are barred and estopped from claiming any share, right and title in the properties held by defendant No. 1 or his legal representatives by virtue of succession. ( 10 ) THE provisions of Shariat Act, it is further contended do not have the effect of overriding the provisions of Article 362, 363, 366 (22) of the Constitution. The plaintiff, her mother, father, as well as other defendants having acquiesced, accepted and acknowledged the right and title of the answering defendant No. 1 as heir apparent and thereafter as the Ruler of Rampur are estopped from denying the right and title of the contesting defendants. the plaintiff and other defendant also having not contested the mutation proceedings in respect of the lended properties inherited by the contesting defendant, their claim of title in respect of the same is now not maintainable. The two palaces namely Khas Bagh Palace and the Shahabad castle have been recognised by the Government of India by notification No. 32-11 dated 14/05/1954 as the official residence of the ruler of Rampur. These places along with their furniture fixtures, equipments, pictures, motor garage, water works plant, Dhobi Ghat land and gardens are adjuncts of the ruler and cannot be subject mater of suit. The suit in respect of partition of moveable properties is barred by limitation, it is bad for partial partition, the suit for partition is also not maintainable due to the pendency of another partition suit namely civil suit No. 219 of 1972 Syed Sirajul Hasan v. syed Murtaza Ali and others pending in the original side of the High Court of judicature at Delhi. It is further pleaded that share, if any of the defendant No. 13 in the property in question stands vested in the custodian of enemy property of the India. It is further pleaded that share, if any of the defendant No. 13 in the property in question stands vested in the custodian of enemy property of the India. ( 11 ) THE defendant No. 2 to 12 have filed applications supporting the claim of the plaintiff and reserving their right to relief at appropriate stage. ( 12 ) THE defendants No. 14 and 15 in their written statement supported the claim of defendant No. 1. ( 13 ) ON behalf of the plaintiff three replications were filed controverting the contentions raised by the contesting defendant, reiterating the averments made in the plaint and further stating that after merger the ruler for all practical purposes ceased to exist, its existence being only for certain purposes specified in the Constitution i. e. privileges, immunities, dignities and privy purse, the late Nawab did not own the properties in suit as ruler, rather held it as an individual Muslim citizen of India. It is wrong to say that defendant No. 1 came to possess these properties as ruler, it was only a conventional affair that the eldest son used to succeed to the Gaddi of the Rampur State as an heir apparent, which also ceased after merger of the State. The right to succeed to Gaddi was different and distinct from the right to inherit personal property. The purported rule of succession was also not uniform and was open to exceptions. The provisions of maintenance, support, status and dignity of the junior members of the family by way of grant of pensions, allowances, property and Jagirs was premerger affair and has no bearing on the question of inheritance. The benefits of the trust could not be mingled with the right of inheritance. It is a benefit from an Atiya and it has not been left as private property by late Nawab and as such cannot be questioned and re-agitated. The property in Friends colony is self acquired of the defendant No. 2. ( 14 ) AFTER framing necessary issues, learned Single Judge dismissed the suit holding that the rule of primogeniture is applicable in the present case and the legal heir of Late Nawab Murtaza Ali Khan who died pendentelite, has succeeded to the entire State left by Late Nawab. ( 14 ) AFTER framing necessary issues, learned Single Judge dismissed the suit holding that the rule of primogeniture is applicable in the present case and the legal heir of Late Nawab Murtaza Ali Khan who died pendentelite, has succeeded to the entire State left by Late Nawab. It was further held that the nature of the properties left by late Nawab is impartible and the same is not open to partition. ( 15 ) THE main points for consideration in this appeal are as follows :- (I) Whether the rule of male lineal primogeniture is applicable in this case and the successor to the Ruler will inherit to the ruler ship (Gaddi) along with the entire Estate left by the ruler including his private properties. (II) Whether the concept of impartibility of State is also there according to which the ruler could not have any joint property with any other person. (III) Whether the aforesaid two propositions of law are applicable in the case of Muslim Ruler also. (IV) In view of S. 2 of the Shariat Act, 1937 providing that notwithstanding any custom or usage to the conrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal law, marriage, dissolution of marriage, including Talaq, ila, -ihar, lian, Khula and Mubarrat, maintenance, dower, guardianship, gifts, trusts, and trust properties, and Wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)" (V) Whether Gaddi" includes private properties also and succession to the Gaddi" means succession to the private properties as well. ( 16 ) WE have heard learned counsel for the parties and perused the record. ( 17 ) THE judgment and order passed by the learned single Judge has been assailed mainly on the following grounds :-it has been argued by the learned counsel for the appellant that the learned single Judge erred in coming to the conclusion that the succession by the Male lineal primogeniture and custom of impartibility are not against the tenets of Muslim Law. The learned single Judge further erred in observing that the Rule of impartibility and primogeniture are the law within the meaning of both S. 292 of the Government of India Act, 1935 and article 372 of the Constitution of India. Hence to negate this, specific legislation repealing the same is necessary. It has also been argued by the learned appellants counsel that Article 366 (10) defining existing law (which very much includes the Shariat Act, 1937) has not been taken into account. According to Article 372, the Shariat Act as an existing law continues to be in force, which, interalia, negates any assertion of the existence of any alleged customary rule of impartibility or primogeniture. If there was any such rule of impartibility or primogeniture applying to Muslim prior to 1937, It was wholly abrogated and abolished by the Shariat Act, 1937 and, as such, at the time when Article 372 was enacted (26-1-1950) there was no such rule in existence, which could be continued under Article 372. On the contrary by reason of definition existing law" in Article 366 (1) of the Constitution, the Shariat Act, 1937 (including the provision therein abolishing the custom contrary to the Muslim Personal law, interalia, relating to intestate succession) was continued as a law in force in India. It is thus claimed that rule of impartibility and primogeniture are not applicable in the present case in view of S. 2 of Shariat Act, 1937 as the same stand wholly abrogated and abolished by the said Shariat Act, which abrogated all the customs contrary to Muslim Personal law, interalia, relating to intestate succession. In this way it is argued that the rule of primogeniture and custom of impartibility being not applicable to the private properties left by Late Nawab Raza Ali Khan, the same shall devolve on the heir of said Nawab in proportion to their shares determined by the personal law and interest of each heir is separate and distinct in accordance with the provisions of Shariat Act, 1937. According to plaintiff appellant, the contesting defendant alone will not inherit the property left by Late Nawab Raza Ali Khan. ( 18 ) LEARNED single Judge has observed that Gaddi includes the properties and succession to the Gaddi means succession to the properties as well. According to plaintiff appellant, the contesting defendant alone will not inherit the property left by Late Nawab Raza Ali Khan. ( 18 ) LEARNED single Judge has observed that Gaddi includes the properties and succession to the Gaddi means succession to the properties as well. Learned single Judge has further observed that what applies in regard to Tarward is applicable equally in respect of the property of a ruler and as such the Shariat Act 1937, is inapplicable. In response, the learned appellants counsel has referred to the case of Kunwar Vir Rajendra Singh v. Union of India AIR 1970 SC 1946 , wherein it was observed that it is manifest that the right to private properties of the last ruler depends upon the personal law of succession to the said private properties. The recognition of the Ruler is a right to succed to the (Gaddi) of the Ruler. This recognition of Rulership by the President is an exercise of political power vested in the President and is thus an instance of purely executive jurisdiction of President. The act of recognition of Rulership is not as far as the President is concerned associated with any act of recognition of right to private properties. " It was further observed that it cannot be said that recognition of rulership is bound up with recognition of private properties of the ruler because the former is within the political power of the President and the latter is governed by the personal law of succession. Recognition of Rulership by the President is not recognising any right to private properties of the Ruler because recognition of Rulership is an exercise of the political power of the President. The distinction between recognition of Rulership and succession to private properties of the Ruler has to be kept in the fore front. The rights to private properties of Rulers are not the matters of recognition of Rulership. The recognition of Rulership is not an indicia of property but it entitles the Ruler to the enjoyment of the Privy purse contemplated in Article 291 and the personal rights, privileges and dignities of the ruler of an Indian State mentioned in Article 362 of the Constitution. Therefore, recognition of Rulership is not a deprivation of right to property". The recognition of Rulership is not an indicia of property but it entitles the Ruler to the enjoyment of the Privy purse contemplated in Article 291 and the personal rights, privileges and dignities of the ruler of an Indian State mentioned in Article 362 of the Constitution. Therefore, recognition of Rulership is not a deprivation of right to property". AIR 1956 Madras 244 has also been referred to wherein it has been held that after coming into force, interalia, the Shariat Act, 1937 the heirs would not be customary heirs, but only the heirs, according to Shariat Act because that is the effect of Shariat Act. In AIR 1958 Madras 144 the Madras High Court made it clear that if there is any property which could be subject of intestate succession then obviously any custom in derogation of the rule of Muslim Shariat Law cannot be pleaded as after the Shariat Act came into force such customs of impartibility/primogeniture stands abrogated and abolished in relation to intestate succession amongst Muslims. ( 19 ) IT has been next argued by the learned counsel for the appellant that the property of a valid Tarward could not be subject of intestate succession because it was joint property devolving by survivorship, whereas the properties of Late Nawab Raza Ali Khan which were his exclusive properties, were subject to intestate succession. ( 20 ) LEARNED single Judge has further observed that the contesting defendants are not barred from pleading or setting up the custom of impartibility and inheritance by rule of primogeniture, in view of provision of S. 37 of Bengal, Agra, Assam Civil Court Act, 1887. The appellants cirticism in this regard is that this is contrary to the Supreme Court Judgments and all cases referred to by the learned single Judge are pre 1937 i. e. before the Shariat Act, 1937 came into force. ( 21 ) CONTENTION of the plaintiff appellant that contesting defendants, are barred from setting up the custom of impartibility, and inheritance by rule of primogeniture, by the provisions of S. 37 of the Bengal Agra Assam Civil Courts Act, 1887, may be examined at this stage. The plea of the plaintiff appellant in this regard is that S. 37 aforsaid prohibits any party to litigation before the Civil Court to plead custom as a source of title. The plea of the plaintiff appellant in this regard is that S. 37 aforsaid prohibits any party to litigation before the Civil Court to plead custom as a source of title. Section 37 of Bengal-Agra-Assam, Civil Courts Act, 1887 runs as follows :-37. Certain decisions to be according to native law :- (I) Where in any suit or other proceeding it is necessary for a Civil Court to decide any question for a Civil Court to decide any question regarding succession inheritance, marriage or caste or any religious usage or institution, the Mohammedans Law incases where the parties are Mohammedans and the Hindu Law in cases where the parties are Hindus shall form the rule of decision except in so far as such law, has by legislative enactment, been altered or abolished. (II) In cases not provided for by sub-sec. (4) or by any other law for the time being in force the Court shall act according to justice, equity and good conscience". ( 22 ) ON behalf of the contesting defendant the plaintiff appellants plea in this regard is repudiated and it has been submitted that, neither the rule of impartibility nor primogeniture come within the mischief of S. 37, in so far as impartibility is not a rule of succession, rather is an antecendent of property. As far as primogeniture is concerned, the same as stated above is law, and not a mere custom. ( 23 ) IN Sardar Nisar Ali Khan v. Mt. Fatima Sultan AIR 1941 PC 62 relating to a case from Punjab, it was observed that a custom regarding succession, at variance with Mohammedan Law could be allowed to be pleaded in the Courts in India where the parties to the case were Mohammedans. ( 24 ) IN Mohd. Ismail Khan v. Sheomukh Rai 1913 (18) Indian Cases 571 the Privi Council disagreeing with the view of Allahabad High Court in Ismail Khan v. Imtiazunnissa Allahabad Law Journal 792 (sic) remanded the case to enable the parties to produce evidence with regard to the issue as to whether the defendants could plead that the family in the matter of inheritance was subject to a custom which was in supersession of the Mohammadan Law. In Ali Asgar v. Collector of Bulandshahr 39 A. L. R. 574 (sic) it was held that evidence was admissible to prove the custom notwithstanding the fact that the same was contrary to the Mohammadan Law. In Mt. Jaffo v. Cyhitta (reported in 1936 (163) Indian Cases 650 (AIR 1936 All. 443) it was held by the Allahabad High Court that in view of the pronouncement of the Privy Council just be held that the family custom which alters the Personal Law of the parties even though not in accordance with the strict Mohammadan Law, can be allowed to be proved. ( 25 ) THE following observation of their Lordships of the Privy Council in Mahomed Ibrahim v. Shaik Ibrahim 1922 (49) Indian Appeals 119 (P. C.) in this regard, though made in reference to a case which arose in the Madras Province, with regard to the role of custom in modifying the ordinary law, may also be usefully quoted :in India however, custom plays a large part in modifying an ordinary law and it is now established that there may be a custom at variance even with the rule of Mohammadans Law governing succession in a praticular community of Mohammadans. "in view of the above State of law prevailing throughout the territories of India and the observations of the various Courts, including the Privi Council and the Allahabad High Court, in the matter of cases arising within the jurisdiction of the areas governed by the Bengal-Agra-Assam Civil Courts Act, 1887, even if the rule of primogeniture and impartibility be taken to be a mere custom, the plea of the plaintiff that the same could not be pleaded or proved, is not tenable. " ( 26 ) LEARNED single Judge also placed reliance on the case of Pratap Singh v. Maharani Sarojni Devi (popularly known as Nabha case J. T. 1993, Supp. S. C. 288) laying down that though impartibility and primogeniture were to be established by custom, in the case of soverign ruler, they are presumed to exit and that the rule of primogeniture applied not only to the Rulership (Gaddi), but also to the entire properties owned by ruler. According to the learned appellants counsel, the principle of law laid down in the said case has been misapplied. According to the learned appellants counsel, the principle of law laid down in the said case has been misapplied. This case was not a case with regard to the private property but with regard to the properties belonging to the State. It is no bodys case in this appeal that any of the suit properties is State property. On the other hand, it is admitted by all that the suit properies were personal properties of Late Nawab Raza Ali Khan at the time of his death on 6-3-1966 when the succession opened and when the Shariat Act was in full force. That being so the appellant was entitled to have share in the property left by Late Nawab Raza Ali Khan in accordance with the provisions of Shariat Act, 1937. ( 27 ) LEARNED single Judge has also taken into account the Travancore case (Reveathinnal Balagopala Varma, Appellant v. His Highness Shri Padmanabha Das Bala Rama Varma, Respondents) (1993 Supp (1) SCC 233 ). Learned appellants counsel has argued that the said Travancore case establishes rather than demolishes the proposition made by the appellant that the properties which were personal properties of the ex-ruler are held by him during his life time as an absolute owner. It is further argued that once a list is given at the time of merger or of surrendering his soverignty by ex-ruler as to what asre his personal properties, which he wanted to retain as his own the properties belong to him personally and not to the State. Therefore when succession opens after death of ex-ruler concerned, these personal properties will pass according to the personal law of intestate succession on the heirs. ( 28 ) THE facts of the aforesaid case are that H. H. Padmanabha Dasa, Respondent No. 1 in the above case was the Ruler and Maharaja of Travancore in 1949 when he executed an instrument of accession in favour of the Dominion of India. Later on, the United State of Travancore and Cochin was formed in pursuance of a covenant, by Article XIV of which H. H. Padmanabha Dasa became the Raj Pramukh of the said United State and the said covenant contained the usual Articles regarding private properties and succession to Gaddi etc. Which were contained in the covenants and agreements of other princely states also. Which were contained in the covenants and agreements of other princely states also. Under Clause XIV of the said covenant the said ruler filed his list of private properties which the Ruler chose to keep for his own private use. ( 29 ) IN the Travencore State the rule of single heir succession to Rulership (Primogeniture) was that the eldest male member (Karnavan) of the Tarwad Royal family used to be the successor-Ruler of Travancore. In course of time, the Hindu Succession Act of 1956 was enacted which made the Taravad property partible which previously could not be partitioned and so the members of the Joint Royal family (Tarwad) divided their joint family properties (The Ruler H. H. Padmanabha Dasa was excluded from the said partition) by a Partation Deed of 1971. After the abolition of Rulership by the Constitution (26th Amendment) Act, 1971, one member out of the several members of the old Royal family (Tarwad) of Travancore filed a suit for partition against H. H. Maharaja Padmanabha Dasa, alleging that the properties owned and possessed by H. H. Padmanabha Dasa as a ruler and which properties the ruler had included in his list of private properties had become joint family properties after abolition of Rulership in 1971. The suit was filed against H. H. Padmanabha Dasa and all other members of the Tarwad family. That suit was dismissed by the Honble Kerala High Court and the Honble Supreme Court (a Bench of 3 Honble Judges) also dismissed the appeal filed against the judgment of the Honble Kerala High Court. ( 30 ) LATE Nawab Raza Ali Khan was a Muslim belonging to Shia Sect. He died on 6-3-1966. At the time of his death he was owner in possession of the immovable and moveable properties, detailed in schedules appended to the plaint. The plaintiff and contesting defendant pleaded conflicting law while advancing their claim to succeed to the said properties left by Late Nawab Raza Ali Khan. The appellant contended that Muslim Personal law will apply and would govern the intestate succession. According to the learned appellants counsel the alleged custom including that of primogeniture would not apply to the properties left by Late Nawab Raza Ali Khan to govern the succession. The appellant contended that Muslim Personal law will apply and would govern the intestate succession. According to the learned appellants counsel the alleged custom including that of primogeniture would not apply to the properties left by Late Nawab Raza Ali Khan to govern the succession. ( 31 ) THE appellants claim for a share in the said properties is based on the application of Muslim Personal law and it is claimed that Late Nawab Raza Ali Khan being a Muslim belonged to Shia Sect, and the inheritance to his Estate, i. e. the private properties, which he possessed would be governed by Muslim Shia law read with the provisions of Muslim Personal Law (Shariat) Application Act, 1937. ( 32 ) THE contesting defendant No. 1 on the other hand, based his claim alleging that there was a family custom which had the force of law, according to which the entire properties (including the private properties left by Late Nawab Raza Ali Khan) would devolve upon the contesting defendant to the exclusion of all other heirs as he would succed to the Gaddi of Late Nawab Raza Ali Khan along with all the properties including the private properties left by him. ( 33 ) IT is argued on behalf of the appellant that on 6-3-1966 when Late Nawab Raza Ali Khan died and succession to the properties owned by him opened the Muslim Personal law (Shariat) Application Act 1937, was in force in Rampur (U. P.) as it was in the rest of India. Article 372 of the constitution of India came into force with effect from 26-1-1950, and on that date the Shariat Act continued to apply to, inter alia, to Rampur, as it was law in force" and also the existing law". Section 2 of the Shariat Act provides that all the questions relating to intestate succession etc. where the parties were Muslim are to be decided in accordance with the Muslim Personal law, not withstanding any custom or usage to the contrary. This is an injunction on the Court. The Courts are enjoined to apply Muslim Personal law in the matter relating to intestate succession etc. when the parties were Muslim (sic) claim to the suit properties on the basis of alleged custom of primogeniture and impartibility. In view of S. 2 of Shariat Act all the questions relating to the intestate succession etc. The Courts are enjoined to apply Muslim Personal law in the matter relating to intestate succession etc. when the parties were Muslim (sic) claim to the suit properties on the basis of alleged custom of primogeniture and impartibility. In view of S. 2 of Shariat Act all the questions relating to the intestate succession etc. where the parties were Muslim are to be decided according to the provisions of Muslim Personal Law notwithsanding the custom or usage to the contrary and that being so the claim of the contesting defendant No. 1 to succeed to the rulership (Gaddi) and the private properties left by Late Nawab Raza Ali Khan invoking the aid of rule of primogeniture and impartibility goes away. ( 34 ) MR. B. D. Sharma, counsel for the contesting defendant respondents on the other hand has contended that the only question for discussion in the present case would be whether or notthe private property of the Ruler" would be part of Rulership (Gaddi) and would therefore, descend to the validly recognised successor Ruler along with Rulership (Gaddi ). ( 35 ) IN Privy Purse case His Highness Madhav Rao Scindia and others v. Union of India" AIR 1971 SC 530 the Apex Court has laid down in clear and definite terms that the covenants and agreements were fully binding on the Government and that according to the plain interpretation of the said agreements and covenants, Rulership (Gaddi) clearly included ownership of private properties. The Honble Supreme Court clearly held that the Rulers enjoyed their private properties also by virtue of being recognised as Ruler under the constitution and that the constitution of India was the source of their title to their private properties. In other words Honble Supreme Court held that all the ingredients of Rulership (including private properties) were enjoyed by the Rulers by virtue of being recognised as Rulers under the Constitution. ( 36 ) BY means of an instrument of merger dated 15-5-1949, Exhibit 4 quoted below, the late Nawab merged the State of Rampur with the Dominion of India with effect from 1-7-1949. Agreement made this fifteenth day of May, between the Governor General of India and the Nawab of Rampur. ( 36 ) BY means of an instrument of merger dated 15-5-1949, Exhibit 4 quoted below, the late Nawab merged the State of Rampur with the Dominion of India with effect from 1-7-1949. Agreement made this fifteenth day of May, between the Governor General of India and the Nawab of Rampur. Whereas in the best interests of the State of Rampur as well as of the Dominion of India it is desirable to provide for the administration of the said State by or under the authority of the Dominion Government : and WHEREAS the Nawab has accepted the advice given to him by the Dominion Government in this behalf; it IS HEREBY AGREED AS FOLLOWS :-article 1 the Nawab of Rampur hereby cedes to the Dominion Government full and exclusive authority, jurisdiction and powers for and in relation to the goverance of the State and agrees to transfer the administration of the State to the Dominion Government on the 1st day of July, 1949 (hereinafter referred to as the said day ). As from the said day the Dominion Government will be competent to exercise the said powers authority and jurisdiction in such manner and through such agency as it may think fit. ARTICLE 2 the Nawab shall continue to enjoy the same personal rights, privileges, immunities, dignities and titles which he would have enjoyed had this agreement not been made. ARTICLE 3 the Nawab shall with effect from the said day be entitled to receive for his lifetime from the revenues of the State annually for his Privy purse the sum of rupees seven lacs free of all taxes. After him the privy purse will be fixed at rupees six lacs and sixty thousand. This amount is intended to cover all the expenses of the Ruler and his family including expenses on account of his personal staff, maintenance of his residences, marriages and other ceremonies etc. , and will neither be increased nor reduced for any reason whatsoever. The Government of India undertakes that the said sum of rupees seven lacs shall be paid to the Nawab in four equal instalments in advance at the beginning of each quarter from the State treasury or at such other treasury as may be specified by the Government of India. The Government of India undertakes that the said sum of rupees seven lacs shall be paid to the Nawab in four equal instalments in advance at the beginning of each quarter from the State treasury or at such other treasury as may be specified by the Government of India. ARTICLE 4 the Nawab shall be entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of this agreement. The Nawab will furnish to the Dominion Government before the 30/06/1949 an inventory of all the immovable propety, securities and cash balances held by him as such private property. If any dispute arises as to whether any item of property is the private property of the Nawab or State property, it shall be referred to a judicial officer nominated by the Government of India and the decision of that officer shall be final and binding on both parties. ARTICLE 5 all the members of the Nawabs family including his consorts and children shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territories of the State, immediately before the 5th day of August, 1947. ARTICLE 6 the Dominion Government guarantees the succession according to law and custom to the Gaddi of the State and Nawabs personal rights, privileges, immunities, dignities and titles. ARTICLE 7 no enquiry shall be made by or under the authority of the Government of India, and no proceedings shall lie in the Court, against the Nawab, whether in a personal capacity or otherwise, in respect of anything done or omitted to be done by him or under his authority during the period of his administration or that State. ARTICLE 8 (1) The Government of India hereby guarantees either the continuance in service of the permanent members of the Public Services of Rampur on conditions which will be not less advantageous than those on which they were serving on the 1st of May, 1949, or the payment of resonable compensation. ARTICLE 8 (1) The Government of India hereby guarantees either the continuance in service of the permanent members of the Public Services of Rampur on conditions which will be not less advantageous than those on which they were serving on the 1st of May, 1949, or the payment of resonable compensation. (2) The Government of India further guarantees the continuance of pensions and leave salaries sanctioned by the Nawab to members of the Public Services of the State and of the Rampur State Forces who have retired or proceeded on leave preparatory to retirement and also guarantees the grant of pensions, gratuities and leave earned by and due to the members of the aforesaid Public Services of the State and of the Rampur State Forces. ARTICLE 9 except with the previous sanction of the Government of India, no proceedings, civil or criminal, shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duties as a servant of the State before the day on which the administration is made over to the Government of India. In confirmation whereof Mr. Vapal Pangunni Menon Adviser to the Government of India in the Ministry of States, appends his signature on behalf and with the authority of the Governor-General of India and Nawab Sir Syed Raza Ali Khan has appended his signature on behalf of himself, his heirs and successors nawab of Rampur adviser to the Government of India ministry of States ( 37 ) IT is argued by learned counsel for contesting defendants-respondents that Honble Supreme Court in privy purse case has held that the private properties of the ruler were included within the benefits of rulership (Gaddi) conferred on rulers enjoyed by virtue of recognition under the Constitution. No Court would be competent to brush aside that inference of law as to what rulership consisted of,which inference of law was binding on all Courts under Article 141 of the Constitution of India and the dictum laid down by 5 Honble Judges in the Dholpur case A. I. R. 1970 S. C. 1946, that the covenants and agreements were not binding and that Rulership (Gaddi) did not include private properties of Rulers can not prevail as the law declared under Article 141 of the Constitution. It is submitted that the question whether the Dholpur case has been completely set aside and wholly overruled by the privy purses case does not arise for decision in the present case because the only question relevant in the present case is whether the ownership, use and enjoyment of private properties included in the list filed by ruler clause 2 of Article 4 of the Merger Agreement is one of the benefits arising to the ruler under that agreement and is a part or rulership (Gaddi) which the ruler is entitled to enjoy by virtue of being recognised as a ruler under Article 366 (22) of the Constitution of India and when the Honble Supreme Court has answered the said question in the affirmative, the dictum in the Dholpur case to the contrary must be held to have been overruled at least to that extent. Even otherewise there was absolutely no reason to brush aside the plain words of Article 4 of the Merger Agreement which clearly conferred ownership of private properties on the ruler specially when the merger agreement has been held by ten out of the 11 Honble Judges constituting the Bench in the privy purse case to be binding and to be deemed to have been incorporated in the Constitution of India itself. The view in the Dholpur case that the merger agreements and other similar covenants were not binding and could not be used for determining the ingredients of rulership was not correct as the said view was opposed to the law laid down by the Honble Supreme Court in the privy purses case. ( 38 ) THE Honble Supreme Court held that the instrument of merger provided for integration of states and for the transfer of powers from the Rulers. They also guaranteed to the Rulers, Privy Purse, succession to the Gaddi, rights and privileges, full ownership, use, and enjoyment, of all private properties belonging to them as distinct from the State properties. In the same case Honble Supreme Court has further held that there must exist a ruler for every State, who should be entitled to enjoy the benefit of rulership under the covenants and agreement and there should be no hiatus or gap in the existence of a Ruler at any time. In the same case Honble Supreme Court has further held that there must exist a ruler for every State, who should be entitled to enjoy the benefit of rulership under the covenants and agreement and there should be no hiatus or gap in the existence of a Ruler at any time. ( 39 ) IN A. I. R. 1990 S. C. 522 (Vishnu Pratap Singh, Appellant v. State of Madhya Pradesh) the factual undenied position is that the Ruler of Chattarpur on 5/07/1948 submitted a list to the Raj Pramukh of the United State of Vindhya Pradesh of his private properties and in the said list the house in dispute namely Gulab Rai Wala House was shown as the private property of the Ruler Maharaja Shri BhawaniSingh Ju Deo. He made a gift of the house in dispute in favour of his father-in-law on 25/08/1948. It was observed that in the assertion of his sovereign power, he gave a list on 5-7-1948 and in assertion of the same sovereign power as also individual, he made the gift of the house in dispute to his father in law and the validity of the said gift deed dated 5-7-1948 was upheld on the ground that the ruler acted in exercise of his sovereign power, and donee was held entitled to possession of the said house. ( 40 ) IT was observed that he gifted the property subsequently on 25/08/1948. The State of M. P. which succeeded the Ruler eventually, was held disentitled to challenge the gift made by the Ruler at a point of time when he was a sovereign Ruler, though the State claimed that, subsequently, the Ruler had shown the property as State property in a list submitted to the Government of India in pursuance of a like covenant of September, 1949. This decision upholds the absolute right of a ruler to dispose of, at his will, even properties which may actually belong to the State and also implicitly acknowledges his right to take it back from the donee at his pleasure (though in fact he did not even exercise the latter power in that case ). It is of course patent that he could not exercise either of these powers after he ceases to be a sovereign ruler. It is of course patent that he could not exercise either of these powers after he ceases to be a sovereign ruler. ( 41 ) IT has also been argued by the counsel for the contesting defendants respondents that the properties of a ruler devolved by succession from Ruler to Ruler and not from Ruler to a son or lineal male descendent. No distinction in this regard was made between his personal properties and those held by him as Ruler as held in Revathinnal Balagopala Varma v. His Highness Shri Padmanabha Dasa Bala Ram Varma. ( 42 ) IT was also held that the Doctrine of Hindu law that property inherited by a son from his father would be ancestral property in his hand cannot be applicable as the devolution of the property is from one monarch to his successor. The crown cannot be a partner with a subject. ( 43 ) IT has been next argued that Ruler could not have any joint property with any person in one entire chattel, or one which is not capable of division and where the title of the crown and a subject concur, the crown takes the whole for it cannot be a partner nor can the crown become a joint owner of a chattel real by grant or contract, thus on the death of the regining sovereign, the Crown vested immediately in the person, who is entitled to succeed, it is being the maxim of Common that King never dies. On the principle that a sovereign never dies and succession to the next ruler takes place without there being a hiatus, there could be no change in the legal status of the properties held by one ruler and his successor. ( 44 ) AS such we find that Honble Supreme Court has held that the private properties of the ruler were parts of the Ruler- ship (Gaddi) of the Rulers. ( 45 ) LEARNED counsel for the plaintiff - appellant on the other hand has placed reliance on Dholpur Case in which it was laid down that the agreements and covenants were political agreements and were not binding and so the Merger Agreement did not stand in the way of Honble Supreme Court holding that the private properties were not part of the Rulership (Gaddi ). However, in view of the proposition of law laid down by the Apex Court in aforementioned cases, the dictum in Dholpur case to the contrary stands overruled. ( 46 ) IT has been contended on behalf of the contesting defendants Respondents that Supreme Court has held in several cases that any wish expressed by sovereign Ruler in exercise of his sovereign power was law" which every one had to obey and therefore, if the sovereign ruler expressed his wish by giving list of certain properties which he had set apart for his private use, that was binding on all and no body could claim, in derogation of that law that the said properties would not be treated as the Rulers private property and part of the Gaddi". In support of his contention the learned counsel for the contesting respondent has placed reliance on Vishnu Pratap Singh, Appellant v. State of M. P. , Respondents", AIR 1990 Supreme Court 522, His Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojini Devi and others," JT 1993 (Supp) Supreme Court 288 and Privy purse case His Higness Madhav Rao Scindia and others v. Union of India", AIR 1971 Supreme Court 530. The said rulings lends support to the arguments advanced by learned counsel for the contesting-defendant, according to which the succession of the Ruler in the family of late Nawab shall be governed by the rule of primogeniture/impartibility and the entire private properties left by late Nawab Raza Ali Khan, shall devolve upon the contesting-defendant to the exclusion of all other heirs. Under the Merger Agreement on 15-5-1949 vide clause 2 of Article 4 of the said agreement, the Ruler was required to submit a list of the private properties before 1-7-1949. It thus follows that such ruler submitted his list of private properties during the period when the ruler retained a sovereign power over his kingdom and when the ruler claimed his full ownership, use and enjoyment of his private properties mentioned in the list. He claimed such right by virtue of such law made by himself as the sovereign ruler declaring the private properties in the list belonging to himself and the said law continued to be in force under Article 372 of the Constitution. Even after commencement of the Constitution, no body could question the right of ruler to claim full ownership, use and enjoyment of the said private properties. Even after commencement of the Constitution, no body could question the right of ruler to claim full ownership, use and enjoyment of the said private properties. It is an admitted position in the very term of the Merger Agreement that the ruler retained full sovereign power over his Kingdom until 1-7-1949, the date of transfer of the administration of the territories of Rampur State in favour of Dominion of India. Reliance has been placed on Tavancore Case 1993 Supp. (1) SCC 233. In that case, a suit was filed for partition of the private properties of ex ruler in his lifetime. Before Honble Supreme Court, the contention advanced by ex ruler was that before he surrendered his sovereignty, there was no distinction between the property of the ruler and that of the State and that before surrendering his sovereignty he had entered into covenants whereby he was given an option to furnish a list of property which he wanted to retain as his personal property and that he having furnished such list including the private property in suit and the same having been approved by the Government of India, the property in suit continued to be held by him as his personal property in the capacity of being the absolute owner. The Honble Supreme Court, however, found substance in both contentions. ( 47 ) IN His Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojini devi, reported in JT. 1993 (Suppl) SC 288". The Supreme Court in the matter of Princely State of Nabha, reiterated the time honoured legal position, the principle that though the impartibility and primogeniture in relation to Zamindari Estate or other immovable Estates are to be established by custom in the case of sovereign ruler, they are presumed to exist. It was further held that the rule of primogeniture applied not to the rulership (Gaddi) only but also to the entire property owned by the ruler and it did not come to an end with lapse of paramountcy and integration of the princely States. The facts of Nabha case are that Maharaja Ripudaman Singh was Ruling Chief in the early twentieth century, whose ruling powers were withdrawn by British and he was deposed from Gaddi in 1928. He had three sons. The facts of Nabha case are that Maharaja Ripudaman Singh was Ruling Chief in the early twentieth century, whose ruling powers were withdrawn by British and he was deposed from Gaddi in 1928. He had three sons. One of them eldest Pratap Singh was recognised as ruler under the rule of primogeniture and became the ruler on attaining majority in the year 1945. On 20-8-1948 in terms of the Merger Agreement, Nabha State along with few others States merged and formed a State named Pepsu being part of the Union of India. In terms of the Article 12 of the Agreement (similar to Article 4 of the agreement Ext-4) ruler of Nabha was held entitled to the full ownership, use and enjoyment of all private properties as distinct from State Properties which belonged to him on the date of handing over the administration of the State to Rajpramukh. ( 48 ) DEALING with the contention of the respondent that Maharaja Pratap Singh ceased to be governed by the rule of primogeniture on 15-8-1947, in any case, on 20-8-1948 when he ceased to be a sovereign, the Honble Supreme Court said that it is true that there was no rulership after India became a Republic on 26/01/1950 but if the State is impartible in nature it would continue to be governed by the rule of primogeniture. The Supreme Court further made a categorical observation to the effect that it can be said with certainty that this rule continued even after 1947-48. Under Article 372, the law of succession relating to primogeniture continued until it is repealed. This is the position of law relating to succession. The learned counsel for the appellant vehemently argued that the observation of Maharaja Pratap Singh Case (Supra) are in the nature of obiter dicta and does not lay down any binding legal proposition. It is also argued that the observations appear to have been casually made. The learned counsel for the contesting defendant on the other hand has argued that this contention to say the least is not borne out on a plain reading of the judgment. It is also argued that the observations appear to have been casually made. The learned counsel for the contesting defendant on the other hand has argued that this contention to say the least is not borne out on a plain reading of the judgment. The question relating to the subsistence or otherwise of the property in suit as part of Gaddi and the question of application or otherwise of the rule of primogenitor and impartibility were directly in issue in the said case and were specifically dealt with and opinion was rendered by Honble Supreme Court. The same will have binding force under Article 141 of the Constitution. ( 49 ) ON the question of the properties in suit being impartible in nature, the contention of the plaintiff is that there is no concept of any impartible estate in the Muslim Law, and even if such a concept was there, with the abolition of kingdom, the rulers property, succession to which is governed by the Muslim Personal Law, will also be liable to partition. ( 50 ) ON behalf of the contesting defendants on the other hand, it has been contended by their learned counsel that true it is that the late Nawab became an ordinary Indian Citizen with the merger of his State, but the Muslim Personal Law (Shariat) Application Act, 1937 does not apply, as the properties of such rulers, whether State or private, retained the character of impartibility. The rulers obtained a solemn assurance and a firm guarantee while entering into a merger agreement that they will not be subject to Personal Law rather to custom, as per Article 6 of the instrument of merger. Succession in this case opened in 1966 that is before the abolition of rulership by the 26th amendment. Gaddi in reference to context included even the private property of the ruler. The right of Nawab Murtaza Ali Khan to succeed to the Gaddi of Rampur, being the eldest son of the late Nawab and the presidential order of recognition dated 1-4-1966 was never challenged, rather was accepted and acquiesced to by all other heirs of the late Nawab. The rule of male lineal primogeniture stands admitted in the statement under Order 10, Rule 2 C. P. C. of the plaintiffs counsel which is binding as pleading. The principle of impartibility of a State is very much in vogue in Muslims. The rule of male lineal primogeniture stands admitted in the statement under Order 10, Rule 2 C. P. C. of the plaintiffs counsel which is binding as pleading. The principle of impartibility of a State is very much in vogue in Muslims. The rule of impartibility, it is further contended, is a custom qua property and not qua succession, hence the provisions of S. 2 of the Shariat Act will not apply. What the Shariat Act however, prohibits or repeals, is the custom in respect of the matters enumerated in S. 2 of the said Act and not anything beyond it. It only excludes a custom contrary to the Muslim law of succession etc. but there is nothing in it to indicate that it also has the effect of over riding any law to the contrary. In this context as already stated above, the rule of impartibility and primogeniture are laws within the meaning of S. 212 of the Government of India Act, 1935, and Article 372 of the Constitution of India. Consequently, this can be negated only by a specific legislation repealing the same. We find force in this argument. . ( 51 ) TO sum up therefore, as a result of all the above stated facts, circumstances and the legal position, this Court has arrived at a conclusion that the rule of succession in respect of the Gaddi of Rampur State as well as the properties pertaining thereto, has all along been subject to the rule of male lineal primogeniture,according to which the eldest male heir of the late ruler inherited both the Gaddi and the properties, and the properties had an impartible character. On the merger of the State with the dominion of Indian by means of the instrument of merger dated 15-5-1949 Exhibit 4, the said position remained uneffected and the late Nawab (Raza Ali Khan) who declared the properties in suit as his private property in terms of clause 4 of the said instrument, continued to hold these properties, as part of the Gaddi of Rampur State, despite the territories of the said State having been ceded to the Government of India. Thus, this was the position on 6/03/1966 when the succession to the Gaddi and the properties in question opened on the death, intestate, of the late Nawab Raza Ali Khan. Thus, this was the position on 6/03/1966 when the succession to the Gaddi and the properties in question opened on the death, intestate, of the late Nawab Raza Ali Khan. Both the Gaddi of Rampur State as well as the properties owned by the said ruler, thus continued to be governed by the rule of primogeniture and the principle of impartibility, which did not come to an end with the lapse of paramountcy and the integration of the State with the dominion of India. The late defendant No. 1 Nawab Murtaza Ali Khan, thus, in accordance with the above said rule of inheritance, succeeded to the Gaddi of Rampur as well as the entire property then owned by the late ruler. The said property in the matter of succession was not governed by the Muslim Personal Law and the plaintiff, or for that matter no other descendant of the late Nawab, had any right to inherit the same or any share therein. The position in this regard also did not change on the abolition of privy purses and cessation of recognition of the late Nawab as ruler for the purposes of the Constitution by the President of India on account of the 26th Amendment to the Constitution in the year 1971. ( 52 ) THE plaintiff thus has failed to establish that she has inherited any share in the properties in suit, moveable or immovable, as claimed in the plaint, on the demise of the late Nawab Raza Ali Khan. The creation of the trust named Raza Trust by the late Nawab, and for that matter the grant of Jagirs, pensions and making other provisions for such members of the family who are not to inherit any share in the properties does provide a circumstances lending support to the theory of succession by the rule of male lineal primogeniture, though it does not render the suit not-maintainable" at the threshold on that count alone. ( 53 ) IN the result we reach the conclusion that this appeal has no force and deserves to be dismissed. ( 54 ) THE appeal is dismissed. However, there shall be no order as to costs. ( 55 ) BINOD KUMAR ROY, J. :- I have had the advantage of going through the draft judgment prepared by Brother Jain. I agree with his conclusions. ( 54 ) THE appeal is dismissed. However, there shall be no order as to costs. ( 55 ) BINOD KUMAR ROY, J. :- I have had the advantage of going through the draft judgment prepared by Brother Jain. I agree with his conclusions. However, I add as follows :- ( 56 ) THIS Special Appeal by the Plaintiff is directed against the Judgment and Decree dated 31-7-1996 passed by A. B. Srivastava, J. dismissing Original Suit No. 4 of 1972 filed by her for partition of her 1120 Sihams share out of 55296 Sihams, of movables and immovables described in the plaint, which undisputedly belonged to her Maternal Grand Father, who was the Nawab of Rampur, rendition of account of income, profits, usufruct and benefits from the said properties and for mesne profits pendente lite and future. The Suit was contested by Defendant No. 1 and after his death by his heirs and legal representative defendant Nos. 1/1 to 1/3. ( 57 ) 15 Issues were framed by the learned Judge out of which the following three were most important :-2. Whether the succession of the property in suit left on his death by late Nawab Raza Ali Khan after the merger of former State of Rampur with the dominion of India, was governed by personal law applicable to shia muslims to the exclusion of any custom including that of primogeniture?xx XX XX XX XX XX5. Is the suit not maintainable due to the creation of the Raza trust and other grants and gifts made by the late Nawab Syed Raza Ali Khan in favour of his children as enumerated in sub-paras (iii) and (iv) of para 3 of the written statement of defendant No. 1/2 and the acceptance of the same by the plaintiff and defendant Nos. 2 to 15?6. 2 to 15?6. Are the properties in suit left by late Nawas Syed Raza Ali Khan impartible, as alleged in para 3 of written statement of defendant No. 1/2?" ( 58 ) FOLLOWING findings were recorded by the learned Judge in regard to the aforesaid three Issues :- (I) On 6/03/1966 when the succession to the Gaddi and the properties in question opened on the death intestate of the late Nawab Raza Ali Khan, both the Gaddi of Rampur State as well as the properties owned by the said ruler continued to be governed by the rule of primogeniture and the principle of impartibility, which did not come to an end with the lapse of paramounity and the integration of the State with the dominor of India. (II) The late defendant No. 1 Nawab Murtaza Ali Khan, thus, in accordance with the above rule of inheritence, succeeded to the Gaddi of Rampur as well as the entire property of the late ruler, which in the matter of succession was not governed by the Muslim Personal Law and the plaintiff or for the matter no other discendant of the late Nawab had any right to inherit the same or any share them. (III) The legal position did not change on the abolition of Privy Purses and cessation of recognition as ruler of the late Nawab for the purposes of the Constitution by the President of India on account of the 26th Amendment to the Constitution in the year 1971. (IV) The plaintiff has thus failed to establish that she has inherited any share in the suit properties on the demise of the late Nawab Raza Ali Khan. It is answered in the affirmative. (V) The creation of the Raza Trust, the grant of Jagirs and pensions, and making of other provisions for such members of the family who are not to inherit any share in the properties does provide a circumstance lending to the theory of succession by the ruler of lineal primogeniture, though it does not render the suit non-maintainable at the threshold on that count alone. (VI) Issue Nos. 2 and 6 are accordingly answered in the affirmative. Issue No. 5 partly in the affirmative and partly in the negative. (VI) Issue Nos. 2 and 6 are accordingly answered in the affirmative. Issue No. 5 partly in the affirmative and partly in the negative. ( 59 ) IN recording the aforesaid findings, the learned Judge had taken into account the following facts and circumstances besides making following observations :- (I) Admittedly, the State of Rampur, ruled by late Nawab Syed Raza Ali Khan, was a sovereign State under the suzerainty of the British Government, till transfer of power on 13-8-1947 by the British to the people of India by means of the Indian Independence Act, 1947. (II) The suzerainty of the British lapsed w. e. f. the said date. (iii) By means of an instrument of merger dated 15-5-1949, Exhibit 4 the late Nawab merged the State of Rampur with the dominion of India with effect from 1-7-1949. (IV) In terms of the agreement aforesaid Nawab Raza Ali Khan continued to hold the Gaddi of Nawab of Rampur and became entitled to the personal rights, privileges, immunities, dignities and titles attached to the said Gaddi, including the annual privy purse as guaranteed in Article 3 of the Agreement. (V) The late Nawab also became entitled to the full ownership, use and enjoyment of all private properties (as distinct from State properties) belonging to him on the date of Agreement. The immoveable properties subject matter of this suit, detailed and described at the foot of the plaint as well as a good lot of moveable properties, were admittedly retained as his private property by the late Nawab in terms of Article 4 of the Agreement. There of course is a dispute between the parties on the correctness of the list of the moveable properties attached to the plaint. (VI) The abovesaid position obtaining on the eve of the enforcement of the Constitution of India, continued to be operative under the Constitution by virtue of the provisions of Articles 362, 363 and 366 (22 ). (VII) The late Nawab Raza Ali Khan who was a Shia Muslim died intestate on 6-3-1966. (VI) The abovesaid position obtaining on the eve of the enforcement of the Constitution of India, continued to be operative under the Constitution by virtue of the provisions of Articles 362, 363 and 366 (22 ). (VII) The late Nawab Raza Ali Khan who was a Shia Muslim died intestate on 6-3-1966. The dispute between the parties arises from this stage in so far as it is the contention of the plaintiff that the entire property (moveable or immoveable) left by the late Nawab devolved upon all his heirs according to the Muslim Personal law, including the plaintiff, and not exclusively on his eldest son Nawab Syed Murtaza Ali Khan (late defendant No. 1 ). (VIII) The controversy thus has to be decided on the basis of the pleadings, the statements, and admission if any under Order 10 Rule 2 C. P. C. of the parties, the impart if any, of the instrument of merger, the presidential order of recognition and the legal position as applicable on the facts of the case. Taking up first the question of the mode of inheritance in the rulership of the State of Rampur, which before merger was admittedly a sovereign State, it would be found that it is not so hotly debated a question in pleadings, as has been sought to be made in the course of arguments. The plaint was silent about any such controversy. (IX) Even while referring to the recognition of late defendant No. 1 Murtaza Ali Khan as Nawab in succession to the late Nawab (Syed Raza Ali Khan) under Article 366 (22) of the Constitution by the President of India, the only thing stated was that Syed Murtaza Ali Khan being the eldest son of the late Nawab approached the President to recognize him as Ruler. No issue on this question thus was created in the pleadings as contained in the plaint. (X) In the written statement of defence filed by the contesting defendant however, it was specifically and categorically pleaded that the Gaddi of Rampur State was from the very beginning inherited by the eldest son of the deceased ruler, on the principle of male lineal primogeniture and it was on this principle that Syed Raza Ali Khan and after him, Syed Murtaza Ali Khan became the ruler of Rampur. (XI) In her replication, for the first time the plaintiff made a feeble attempt to deny the defendants contention in this regard by saying that it was only a conventional affair that the eldest son used to succeed to the Gaddi of Rampur as a heir apparent. (XII) Under law of pleadings, where a fact alleged or pleaded by a party is not specifically controverted, with its own version in that regard clearly and categorically pleaded, no issue can arise. In the state of facts relating to pleadings herein, as stated above, in the eye of law there was no denial of the defendants contention, regarding inheritance to the Gaddi of Rampur State being governed by the law of male lineal primogeniture. This fact is further confirmed when we look into the evidence led by the plaintiff wherein also nothing was stated in derogation of the contention of the defence in this regard. (XIII) On the other hand, we have on record the statement under Order 10, Rule 2 C. P. C. of Zulfikar Ali Khan in his capacity as the General Attorney of the plaintiff made on 7-12-1974 in the Court of the District Judge, where the suit was then pending, to the effect that in the ex Rampur State there was no written law but there was only a custom that the eldest son would succeed as the Nawab of Rampur; the eldest son was also recognized as heir apparent from the time of his birth. . . . . . . " (XIV) There being no dearth of law on the point that a statement of a party, its counsel or agent under Order 10, Rule 2 C. P. C. is for all practical purposes a part of pleadings and is binding on the party, who makes it or on whose behalf it is made. The plaintiff thus is bound by these admissions going to clearly establish the rule of inheritance to the Gaddi of Rampur State by the eldest son of the ruler, on whose death the succession opened. The plaintiff thus is bound by these admissions going to clearly establish the rule of inheritance to the Gaddi of Rampur State by the eldest son of the ruler, on whose death the succession opened. (XV) An attempt has been made during arguments on behalf of the plaintiff to wriggle out of the binding nature of these admissions, and lack of specific denial of the defendants pleas in this regard, by saying that firstly it was not necessary to say so, the burden being on the defendant to establish succession by the rule of male lineal primogeniture, and secondly by suggesting that the statement under Order 10, Rule 2 C. P. C. may be erroneous. No evidence or circumstances, however, has been cited to indicate that it was an erroneous statement either in the replication or under Order 10, Rule 2 C. P. C. The burden no doubt was on the defendant to establish his plea of succession by eldest son, but the same stood discharged when his contention was not challenged in accordance with law, as contained in the relevant rules or Order 8 of the C. P. C. (XVI) Even if we look to the history of succession to the throne of the State of Rampur right from its inception about 200 years ago, as contained in the administration report of Rampur State of 1937-38, Exhibit 30, it would go to strengthen the plea with regard to the inheritance to the Gaddi being based on male lineal primogeniture. The one or two stray incidents of the succession going to a person other than the eldest son of the deceased ruler, appear more to be outcome of the force of circumstances, and not because of any deviation from the principle of male lineal primogeniture. There thus, could be no two opinion on the point that succession to the Gaddi of Rampur State has all along been governed by the rule of succession, known as male lineal primogeniture. (XVII) It is common ground amongst the parties, as far as the premerger period is concerned, that there was no distinction between the State properties and the private properties of the ruler. It being so, merely because the governance of the State was transferred to the dominion of India, it cannot be said that the Gaddi of the ruler for whatever worth itwas also became altogether extinct. It being so, merely because the governance of the State was transferred to the dominion of India, it cannot be said that the Gaddi of the ruler for whatever worth itwas also became altogether extinct. (XVIII) The only effect of merger was that the territories constituing the State of Rampur for the purpose of exercising sovereignty, stood merged in the dominion of India, and the ruler lost the power to govern. Further the properties held by the ruler, were divided in two parts, first the State property which stood transferred to Union Government, and second, the private properties which continued to be owned, possessed, and enjoyed by the ruler as before. (XIX) The abolition of State thus did not affect the nature, title and succession to these properties, which continued to be part of the Gaddi, which still existed for the purposes other than those which were ceded to the Union of Government by means of the agreement of merger. (XX) Articles 291, 362, 363 or for that matter 366 (22) of the Constitution were not provisions relating to conferment of extinction of right to property. (XXI) There is ample material to show that the property in suit, as also the other properties belonging to the ruler of the State of Rampur, have all along been succeded by a single heir of the deceased ruler, on the principle of male lineal primogeniture, which neither is the creation of the instrument of merger or any constitutional provision, nor was at any stage abrogated by any other means. (XXII) There is not dearth authority on the subject that rule of primogeniture, and impartibility, is as much applicable to the muslims as the Hindus. (XXIII) The custom of these nature, have all along been treated as law and not merely a practice. Consequently, there neither could be a bar to plead the same, in view of S. 37 of the Bengal Agra Assam Civil Courts Act, nor would it be treated as abrogated because of S. 2 of the Shariat Act. None of the observations or principles laid down in Revathinal Balegopala Verma v. His Highness Shri Padmanabha Dasa 1993 Supp (1) SCC 238 relied on by the plaintiff lead to any such conclusion. For the reasons aforesaid the plaintiff also does not derive any support from the decision of the Supreme Court in C. Mohd. None of the observations or principles laid down in Revathinal Balegopala Verma v. His Highness Shri Padmanabha Dasa 1993 Supp (1) SCC 238 relied on by the plaintiff lead to any such conclusion. For the reasons aforesaid the plaintiff also does not derive any support from the decision of the Supreme Court in C. Mohd. Yunus v. Syedunnusa AIR 1961 SC 808 . (XXIV) In the Privy Purses cases, AIR 1971 SC 580, the Supreme Court while considering the nature and scope of the Presidents power of recognition of a ruler, laid down that the power exercised by the President in this regard was an executive power. There thus was a departure from the observations in this regard in Dholpur case, AIR 1970 SC 1946 . Thus, the successor to the Gaddi of a deceased ruler was to be appointed by the President in accordance with the laws and custom and not at his will. According to the above declaration by the Supreme Court, therefore, apart from the fact of the properties retained by the rulers as their private property at the time of merger, being held and enjoyed by them by virtue of their rights as existed during the subsistence of their State, these properties, like other rights and privileges, continued to be enjoyed also by the force of the Constitution. These thus would not become non-existent merely because the recognition ceased to be effective by virtue of Article 363-A inserted by the 26th amendment. (XXV) In the case of His Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojni Devi reported in Judgment today 1993 (Supp) SC 288, the Supreme Court in the matter of the princely State of Nabha, reiterated the time honoured legal position and principle that, though impartibility and primogeniture in relation to Zamindari estates or other impartible estates are to be established by custom, in the case of a sovereign ruler they are presumed to exist, and further held that the rule of primogeniture applied not only to the rulership (Gaddi) but also to the entire property owned by the ruler, and it did not come to an end with the lapse of paramountcy and the integration of the princely States. (XXVI) The questions relating to the subsistence or otherwise, of the property in suit as part of Gaddi, and the question of application or otherwise of the rule of primogeniture and impartibility, were directly in issue in the said case and were specifically dealt with the opinion rendered by the Supreme Court. The same will have binding force under Article 141 of the Constitution. (XXVII) This Court thus finds that the properties in suit which were retained by the late Nawab on the eve of merger of his State with the dominion of India, as his personal property, like in the past, continued to be a part of the Gaddi of Rampur State, governed by the rule of male lineal primogeniture in the matter of succession, retaining the characer of impartibility, even after merger of the State by means of the instrument of merger dated 15-5-1949, Exhibit 4, w. e. f. 1-7-1949. The same remained unaffected, by abolition of the privy purses and consequent cessation of recognition, pursuant to the 26th Amendment to the Constitution of India. (XXVIII) What the Shariat Act, however, prohibits or repeals, is is the custom in respect of the matters enumerated in S. 2 of the said Act and not anything beyond it. It only excludes a custom contrary to the Muslim Law of succession etc. , but there is nothing in it to indicate that it also has the effect of overriding any law to the contrary. In this context as already stated above the rule of impartibility and primogeniture are law within the meaning of S. 292 of the Government of India Act, 1935, and Article 372 of the Constitution of India. Consequently, this can be negated only by a specific legislation repealing the same. (XXIX) There is force in the contention advanced on behalf of the contesting defendant that Muslim Personal Law (Shariat) Application Act, 1937 is a law providing for succession to properties, and not to Gaddi. Gaddi as already stated above, in reference to context includes the personal properties of the ruler. (XXIX) There is force in the contention advanced on behalf of the contesting defendant that Muslim Personal Law (Shariat) Application Act, 1937 is a law providing for succession to properties, and not to Gaddi. Gaddi as already stated above, in reference to context includes the personal properties of the ruler. (XXX) In view of the above state of law prevailing throughout the territories of the India and the observations of the various courts, including the Privy Council and the Allahabad High Court, in the matter of cases arising within the jurisdiction of the areas governed by the Bengal Agra Assam Civil Courts Act, 1887, even if the rule of primogeniture and impartibility be taken to be mere custom, the plea of the plaintiff that the same could not be pleaded or proved, is not tenable. (XXXI) The plaintiff thus did not challenge the factual averments of the contesting defendants with regard to the grants, Jagirs, pensions, jwellery and cash etc. rather contested only the defendants plea regarding the effect thereof, as a proof of existence and continuance of the rule of single heir succession. (XXXII) These above facts, which go to prove the factum of ample provisions to have been made in the past, as well as on the eve of merger of the State with the dominion of India, for the maintenance and ensure proper living conditions even to the family members, other than the one entitled to the Gaddi and the properties attached to it, also go to lend support and credibility to the continuance of theory of single heir succession qua the private properties held by the late Nawab, as set up by the contesting defendant. (XXXIII) Simply because provision for allowances, jwellery and some other properties was also made for the defendant No. 1 in the life time of late Nawab, it does not in any way go to militate against the theory of single heir succession. . . . . . . . . (XXXIII) Simply because provision for allowances, jwellery and some other properties was also made for the defendant No. 1 in the life time of late Nawab, it does not in any way go to militate against the theory of single heir succession. . . . . . . . . (XXXIV) On the merger of the State with dominion of India by means of the instrument of Merger dated 15-5-1949 Exhibit 4, the said position remained unaffected and the late Nawab (Raza Ali Khan) who declared the properties in suit as his private property in terms of clause 4 of the said instrument, continued to hold these properties, as part of the Gaddi of Rampur State, despite the territories of the said State having been ceded to the Government of India. (XXXV) The creation of the trust named Raza Trust by the late Nawab, and for that matter the grant of Jagirs, pensions and making other provisions for such members of the family who are not to inherit any share in the properties does provide a circumstance lending support to the theory of succession by the rule of male lineal primogeniture. ( 60 ) THE statements made under Order X Rule 2 of the Code of Civil Procedure dated 7-12-1974 of Zulfiquar Ali Khan (Defendant No. 3) in the capacity of General Agent of the plaintiff have been brought on the Paper Book, Volume III. Similarly the statements made by Sri Majahar Ali, Advocate for the plaintiff has been brought on the record which are at pages 449-450 of this Paper-book. The Appellant examined Syed Mehdi Hasan, holder of General Power of Attorney on behalf of plaintiff, as P. W. 1. The Appellant also exhibited 37 documents, some of which were not in English, along with their English translation which are at pages 493 to 719 of the Paper-book. ( 61 ) THE statements made by Sri B. D. Sharma, Advocate for Defendant Nos. 1/2 and 1/3 have also been brought on the record which are at pages 451-452 of this Paper-book. Defendant No. 1 examined Abdul Zameel Khan as D. W. 1. Defendant No. 1 got exhibited a number of documents as Ex. A-1 to A-43 which are at pages 853 to 1005 of paper Book, Volume IV. ( 62 ) DEFENDANT Birjees Laqa Begum examined herself as D. W. 2. Defendant No. 1 examined Abdul Zameel Khan as D. W. 1. Defendant No. 1 got exhibited a number of documents as Ex. A-1 to A-43 which are at pages 853 to 1005 of paper Book, Volume IV. ( 62 ) DEFENDANT Birjees Laqa Begum examined herself as D. W. 2. ( 63 ) THE main thrust of the submissions of Mr. Ray, the learned Senior Counsel, appearing on behalf of the Appellant was that the suit was wrongly dismissed as Gaddi" or Rulership" did not include that private properties of the Ruler and recognition of the Ruler under the Constitution had nothing to do with recognition of right to properties which was in the realm of personal law of succession as laid down in State of Bihar v. Kameshwar Singh AIR 1952 SC 252 ; Sudhanshu Shekhar Singh Deo v. The State of Orissa AIR 1961 SC 196 and Kunwar Shri Vir Rajendra Singh v. The Union of India AIR 1970 SC 1946 ; the rule of impartibility or primogeniture applying prior to 1937 stood wholly abrogated and abolished by the Shariat Act of 1937 and thus on 1-1-1950 when Article 372 of the Constitution was enacted there was no such rule in existence which could be continued; the learned Judge wrongly relied on pre-1937 judgments; that Primogeniture, in the case of the Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo 1981 (4) SCC 613 ( AIR 1981 SC 1937 ) was held to cease to have any effect after the enactment and enforcement of the Hindu Succession Act, 1956 and as further held in Revathinnal Balagopala Varma v. His Highness Shri Padmanabha Dasa (1993) (Supp) 1 SCC 233 it stood abrogated; Sri Ray tried to persuade us to take a view that the Judgment of Srivastava, J. is vitiated on account of many errors of law and the legal position emerging out of the various provisions of Ext. 4 (the Agreement of Merger), Ext. 4 (the Agreement of Merger), Ext. A-7 by which His Excellency The President of India had recognized Defendant No. 1 as the ruler of Rampur State and erroneous applicability of the Privy Purses case AIR 1971 SC 530 instead of following the 5 Judges Bench decision of the Supreme Court in Dholpur case AIR 1970 SC 1946 , Nabhas case JT 1993 (Suppl) S. C. 288 and Travancor Maharajas case (1993) (Suppl) 1 SCC 233 and the suit should be decreed by us and in the ends of justice a retired Judge of either this Court or a District Judge be appointed for working out the modalities of effecting partition after passing of preliminary decree. He also submitted notes of his arguments which are on the record. ( 64 ) THE main thrust of the contention of Mr. Sharma, learned Senior Counsel appearing on behalf of the contesting Respondents, on the other hand, was that the Eleven Judges decision of the Supreme Court in Privy Purses case AIR 1971 SC 530 holding that the President of India in recognizing a Ruler or Successor under Article 366 (22) of the Constitution was bound to apply the law and custom in vogue relating to Gaddi as laid down in the merger agreement and to choose his successor according to such Law and Custom" by devolution of the Gaddi in vogue in a particular State and that according to the decision of the Supreme Court in Thakore Shri Vinayasinhji (Dead) by LRs. v. Kumar Shri Natwarsinghji AIR 1988 SC 247 , His Highness Maharaja Pratap Singh v. His Highness Maharani Sarojini Devi J. T. 1993 (Suppl) SC 288; and Revathinnal Balagopala Varma v. His Highness Shri Padmanabh Dasa (1993) 1 (Supp) SCC 233 private properties of a Ruler formed part of his Gaddi and that succession to such properties and Gaddi had to be governed by rule of single heir succession according to the law of custom of devolution of the Gaddi of that State prevalent in the pre-merger period, there is no merit in the appeal which be dismissed. He too had submitted notes of his arguments which are on the record. ( 65 ) MR. B. D. Mandhyan, learned counsel for Respondent Nos. 3/1 to 3/4 stated that he follows Mr. Ray. He too had submitted notes of his arguments which are on the record. ( 65 ) MR. B. D. Mandhyan, learned counsel for Respondent Nos. 3/1 to 3/4 stated that he follows Mr. Ray. ( 66 ) IT may be mentioned that both learned counsel addressed us on pure questions of law and not of fact and they did not refer to the oral evidence adduced by the parties or the exhibited documents except Ext. 4 Merger Agreement and Ext. A-7 the Order of the Ministry of Home Affairs, New Delhi 1/04/1966 published as G. S. R. No. 498 passed under Article 366 (22) of the Constitution of India by the President of India recognizing defendant No. 1 as Ruler of Rampur in place of the late Nawab. ( 67 ) BROTHER Jain has discussed the main submissions made by both learned counsel and has come to the conclusion that there is no merit in this Appeal. ( 68 ) I have given anxious consideration to the various aspects and a number of case laws cited at the Bar by Mr. Ray as well as Mr. Sharma. ( 69 ) IN the order dated 22-3-1984 passed by Honble Supreme Court in Civil Appeal Nos. 700-701 of 1971 Ex. 5 dismissing Civil Appeal Nos. 700-703 of 1971 filed by Defendant No. 1 it was clearly held that the Certificate which is quashed shall not be set up either in support of the claim by any party and the decision of the Delhi High Court quashing that certificate is final and binding and that the suits shall be disposed of wholly uninfluenced by any observation made with regard to nature and character of the property. ( 70 ) IN view of the ratio laid down in the Privy Purses case AIR 1971 SC 530 , which also took note of Dholpur case, and three other cases decided by the Honble Supreme Court in Thakore Sri Vinayasinhji v. Kunwar Natwar Sinhji AIR 1988 SC 247 , Nabhas case JT 1993 (Suppl) SC 288 and Travancore Maharajas case (1993) (Suppl) 1 SCC 233, I have no option but to hold in agreement with Srivastava, J. and Brother Jain, J. that the private properties of the Nawab, who was the ruler of Rampur, formed part of hisgaddiand that succession to such private properties andgaddihad to be governed by single heir succession according to law and custom and devolution of thegaddito Rampur State which was also prevalent in the pre-merger period and that the law of succession has to be determined in the light of the Merger Agreement. Order accordingly. .