The High Court of Justice: Marcus Smith J., dismissed Pakistan’s claim over a sum of £1,007,940 deposited in 1948 by the government of Hyderabad with the Pakistan High Commission in London. The Court ruled that “Nizam VII was beneficially entitled to the Fund and those claiming in right of Nizam VII.”
On 20 September 1948, Nawab Moin Nawaz Jung (Moin) caused the sum of £1,007,940 to be transferred from an account of the Government of Hyderabad held at Westminster Bank (the Bank) to an account in the name of Habib Ibrahim Rahimtoola (Rahimtoola). Until 17-09-1948, Moin had been the Finance Minister and Minister for External Affairs for the Government of Hyderabad. His status post this date was under question and scrutiny in this Judgment. Rahimtoola at the time of the Transfer was the High Commissioner to the United Kingdom for the Islamic Republic of Pakistan (Pakistan).
This Fund was however paid into Court. A dispute as to the title of the Fund arose immediately. Initially, the dispute was between the ruler of Hyderabad, His Exalted Highness, the Seventh Nizam of Hyderabad (Nizam VII), and Pakistan. That dispute resulted in proceedings commenced in the Chancery Division of the High Court of Justice (the 1954 Proceedings). The claim was brought by Nizam VII and Hyderabad as plaintiffs against Moin, the Bank and Rahimtoola as defendants. Early in the course of the 1954 Proceedings, Pakistan asserted sovereign immunity.
The 1954 Proceedings were stayed against the Bank, and set aside against Rahimtoola, by order of the House of Lords on grounds of Pakistan’s successful assertion of sovereign immunity. Pakistan asserted sovereign immunity by reason of the fact that Rahimtoola held the Fund as High Commissioner of Pakistan and that the claim brought by the plaintiffs directly or indirectly infringed Pakistan’s sovereign immunity. Although at no time in these proceedings did Pakistan assert any beneficial interest in the Fund. The House of Lords held (upholding Upjohn J. at first instance and overruling the Court of Appeal) that Pakistan’s bare legal title in the Fund, through Rahimtoola as High Commissioner, was sufficient to enable her to assert soverign immunity.
In 1963, Nizam VII created a trust over his interest in the Fund (the 1963 Settlement) and in 1965 the capital and income of the 1963 Settlement were irrevocably appointed upon trust for his grandsons – Nizam VIII and Prince Muffakham (Princes).
In 2013, Pakistan commenced the present proceedings. These were against the Bank for payment of the Fund to Pakistan. This involved – for the first time in legal proceedings – an assertion by Pakistan of a beneficial interest in the Fund. The Princes and India were joined to the proceedings. The Bank interpleaded; stated that it claimed no interest in the Fund for itself and that it would pay the Fund to whoever the Court determined was entitled to it. Pakistan having waived her sovereign immunity in commencing the proceedings, there was now an opportunity for the ownership of the Fund to be determined.
The main question before the Court was whether it was Pakistan or the late Nizam VII who was, in 1948, entitled to the Fund?
Contentions by the parties:
a. Pakistan’s claims to be absolutely entitled to the Fund:
Pakistan claims an absolute entitlement to the Fund on two alternative bases:
- The monies were transferred to compensate/reimburse/indemnify Pakistan for assistance provided by her in procuring/facilitating the supply and/or transportation of weapons.
- The monies were transferred in order to keep the Fund out of the hands of India. It was Pakistan’s case that if there had been a legal obligation on Pakistan to return the Fund on Nizam VII’s demand, the Fund would not be safeguarded from India because India would force Nizam VII to demand the return of the Fund.
b. The Princes’ and India’s contentions that the Fund was held on trust:
The Princes and India disputed Pakistan’s claim to be absolutely entitled to the Fund. They contended that there was no absolute transfer to Pakistan but that Nizam VII retained the beneficial interest in the Fund and that a trust arose. The Princes and India also said that the transfer was to Rahimtoola in his personal capacity and that Pakistan had no interest – not even a legal interest – in the Fund. In short, the Princes and India asserted that the fund was held on trust by Rahimtoola in his personal capacity alternatively in his capacity as High Commissioner.
c. The restitutionary claim:
The Princes and India made a claim in restitution against both Pakistan and the Bank contending that the Transfer was unauthorised and that this lack of authority provided the basis for a claim in restitution or unjust enrichment.
d. Foreign act of state and non-justiciability:
Pakistan contended that the facts of this case were such as to render it non-justiciable in whole or in part.
The Fund was held by Pakistan through her High Commissioner in the United Kingdom on trust for Nizam VII and his successors in title. The Fund was not held by Rahimtoola personally, nor did either Pakistan or Rahimtoola have any beneficial interest in the Fund. The trust was either a constructive trust in favour of Nizam VII or a resulting trust in favour of Nizam VII. It was not an express trust because the that Nizam VII did not communicate to Moin any authority to effect the Transfer and create a trust. However, Moin’s conduct was consistent with the unexpressed wishes of Nizam VII. Both Moin and Rahimtoola intended that an express trust should arise and – had there been communication of authority by Nizam VII to Moin – an express trust would have arisen.
There is nothing in the involvement of Pakistan, India, Hyderabad or Nizam VII as sovereign states or rulers of sovereign states to prevent a trust (whether express, constructive or resulting) from arising.
The Court deemed it unnecessary to determine whether it is the Princes or India that is Nizam VII’s successor in title, whether by virtue of the 1963 Settlement and 1965 Appointment (in the case of the Princes) or the 1965 Assignment (in the case of India) given the Settlement reached as between the Princes and India. However, it is appropriate to record that the Nizam’s successor in the title can be no-one other than the Princes or India. The administrator of Nizam VII’s estate (Mr Lintott) was a party to these proceedings and was given every opportunity to bring a rival claim to those of the Princes and India: he did not do and is bound by the outcome of these proceedings. During the course of these proceedings, the Court did not see any hint of the possibility of any further claimant to the Fund, beyond the Princes and India.
The Princes’ and India’s alternative claims in restitution succeed against (i) Pakistan and (ii) in the alternative, the Bank. Pakistan’s assertion of a defence of limitation is an abuse of the process of the court and order that the paragraphs in Pakistan’s statements of case asserting this defence be struck out. The Bank never pleaded a defence of limitation, and therefore a claim in restitution is properly maintainable against the Bank.
Pakistan’s contentions of non-justiciability by reason of the foreign act of state doctrine and non-enforceability on grounds of illegality both fail.
In these circumstances, Nizam VII was beneficially entitled to the Fund and those claiming in right of Nizam VII – the Princes and India – were entitled to have the sum paid out to their order.
- India was correct in asserting that the question of illegality was “analytically irrelevant” to the claim to the Fund advanced by India.
- Even if the question of illegality were relevant to India’s claims, the Settlement between the Princes and India had rendered the issue irrelevant because the rival claims to the Fund of the Princes and India had validly been compromised, such that the question of illegality was no longer before the Court.
- There was no illegality alleged that would be sufficient to cause this Court to prevent the Princes and India – specifically, India – from asserting their claim to the Fund. [Pakistan v. India,  EWHC 2551 (Ch), decided on 02-10-2019]