1. The petitioner Shirin Bai has prayed for the grant of Succes--sion Certificate in respect of the debts and securities belonging to her deceased sister, Mohterma Fatimah Jinnah who died at Karachi on the 10th day of July 1967. According to her, the deceased died as a 'Shia', without leaving a `Will', and being the only surviving full-sister, she is entitled to the whole estate left by the deceased.
2. The petition is opposed by six persons, namely, Mohamedali G. Waljee, Hussain G. Waljee, Jafferali G. Walji, Amirali G. Walji, Wazirali G. Walji and Ismail Jan Muhammad, who claim half of the estate as the residuaries of the deceased. According to them, the deceased till the time of death was a Sunni, and the petitioner as a full-sister is entitled to only one-half of the estate, and the balance estate must devolve upon them. At the later stage, it was further asserted that the deceased left a valid `Will' and therefore the petition itself is incompetent in law. The documents purporting to be `Will' were sent for, and these are before me; the first question for determination, therefore, is whether the deceased left a valid `Will'.
3. It may be stated that originally reference was made to 3 documents, Exhs. 12, 13 and 14, but at the final stage of the arguments it was conceded by the learned counsel for the objectors, and rightly so, that the first two documents are only the draft Wills, and neither of the two can be treated as a valid `Will', and the only relevant document in this connection is Exh. 14, which is said to be in the handwriting of the deceased. Although this document purports to be the notes made by the deceased in respect of certain cash amounts, yet it was urged that these notes do constitute a valid 'Will', under the Muhammadan Law.
4. As to the form of a `Will', it is well-settled that a Muslim is not obliged to observe any special formality in making his 'Will', the Muhammadan Law not having prescribed any form in this regard.
5. The 'Will' of a Muslim need not even be in writing, an oral 'Will' is perfectly valid ; but the intention with respect to the property which the testator desires to be carried out after his death must, in whatever form they are declared, be with sufficient clarity, so as to be capable of being ascertained. If the A `Will' is in writing, it need not even be signed by the testator or attested by witnesses, because the verse in the Holy Quran regarding witnesses is considered nearly as a recommendation, and is not mandatory. However, in majority of cases, 'Wills' are, for obvious reasons, in writing, for as observed by their Lordships of the Privy Council as long as the 19th December 1867, in the base of Baboo Beer Partab v. Maharajah Rajender Pertab ((1867) 12 M I A 1).
6. "He who rests his title on so uncertain a foundation as the spoken words of a man, since deceased, is bound to allege, as well as to prove, with the utmost precision, the words on which he relied, with every circumstance of time and place."
7. It is with this background that I have examined the handwritten document, Exh. 14, purported to have been written by Mohterma Fatima Jinnah. I find that all that can be said about this document is that the deceased made a few notes of the sums of moneys which she wanted to be paid to certain persons after her death, but it is clear that she had not finally made up her mind in this regard. On the first page of Exh. 14, she wrote Rs.Rs.
8. 1758,00,000 1753,50,000 3504,50,000 3,50,000interest of 300 per month to sisters after their death the capital of 3,50,000 to be divided equally between my niece Sherbanoo, my grand nieces Zaira Gulshan Rohina and grand nephew Abbas equally 1,00,000to Khatoon-e-Pakistan Girls High School.
9. 10,000Dr. Cassum.
10. 10,000Dr. Alvi.
11. 10,000Col. Shah.
12. 5,000Gulam Ahmad Secretary.
13. 5,000Jamiluddin Ahmed.
14. 1,00,000Jinnah Hospital.
15. 25,000Kotwal."
16. She then appears to have changed her mind, and wrote on the next page as follows Rs.
17. 5,000Jamiluddin.
18. 5,000G. Ahmed.
19. 2,00,000K. P. G. H. School 2,00,000Jinnah College.
20. 10,000Peshawar 10,000Dacca 1,00,000Punjab.
21. 20,000T. B. Sanatorium."
22. The last page contains the following notes which show the change in her mind again 175350Income to sisters and after 175their death, money to go 350into the residue.
23. 3Nieces and grand nieces.
24. 25,000Kotwal 10,000Dr. Alvi.
25. 10,000Dr. Cassim."
26. The next question is whether the petitioner Shirinbai is entitled to the full share of the estate left by her sister Mohterma Fatima Jinnah. In this connection the position of the learned counsel for the parties at the final stage of the arguments was that in these proceedings this question can neither be gone into nor can it be determined because of the specific provision in the Succession Act under section 387, which clearly lays down that no decision on any question of right between the parties shall be held to bar the trial of the same question in any suit or any other proceeding between the same parties. The learned counsel for the objectors, therefore, stated that in view of this clear position in law, the objectors will agitate their claims and titles to the estate left by Mohterma Fatima Jinnah by way of a regular civil suit or other r legal proceedings as advised.
27. I cannot part with this judgment without making certain observations in respect of a serious controversy that arose in this case as to the secular faith of the Founder of our Nation, the Quaid-e- Azam Muhammad A.I Jinnah. This controversy was wholly unnecessary, in fact it was admitted so at the final stage of the arguments ; I only wish this should have been realised earlier. However, since evidence on this question had been led from all possible quarters, it would only be appropriate to record a finding thereon, to place on record the faith of the Quaid-e-Azam, so that this unhappy controversy must be put to an end, as far as possible.
28. The controversy arose because the petitioner Shirinbai wished to prove that her sister Mohetrma Fatima Jinnah was a Shia, and she therefore was entitled to the whole of her estate. To prove this, she produced Mr. M. A. H. Ispahani as her witness ; for reasons best known to her, she chose not to examine herself as a. Witness. M. A. H. Ispahani, instead of speaking of the deceased Mohterma Fatima Jinnah straightaway talked about the privilege of his association with the Quaid-e-Azam since the age of 17/18 years, when he was an undergraduate at the Cambridge University. As to the sect of the Quaid-e-Azam, this is what he said "I did not put any questions to him about his sect, but her happened to volunteer, and state these facts to me. In 1890, the Quaid-e-Azam returned from England after calling to the Bar, and after considering the question of continuing to belong, to the Agha Khani Ismail sect, decided to leave it, and to adopt the Asna Ashari faith. He informed me that he subsequently induced the other members of his family to do the same."
29. As against this, several witnesses examined by the objectors stated that from their close association with the Quaid-e-Aaam, they got the clear impression that he did not like to be associated with any particular sect. Syed Sharifuddin, the Attorney---General of Pakistan, who spoke of the close association with the Quaid-e-Azam as his Honorary Secretary from 1941 to 1944, and whose evidence has gone unchallenged on record, referred to certain personal conversation with the Quaid and also produced several documents which clearly prove that the Quaid-e--- Azam was free from any sectarian strings. In the speech delivered at the concluding Session of the Punjab Muslim Students' Federation Conference, Lahore on March 19, 1944, he is said to have declared, amid cheers, that Islam did not recognize any kind of distinction of various classification of castes, and the Prophet was able to level down all castes and create a national unity among Arabs in Arabia. In this connec--petition, extract from Volume II of "Some Recent Speeches and writings of Mr. Jinnah", by Jamiluddin Ahmed, was produced in which the Quaid-e-Azam is said to have added further :- "Our bedrock and sheet-anchor is Islam. There is no question even of Shias and Sunnis. We are one and we must move as one nation, and then alone we shall be able to retain Pakistan. At the time of Census of Population in 1941, Quaid-e-Azam is said to have issued instructions to the Muslims of the Undivided India which appear at page 8 of "The Light" dated February 1, 1941. The extract produced as Exh. 11/13 is to the following effect "I wish to emphasise particularly the following question Question No. 3 : Race, Tribe or Caste.-The answer by every Muslim should be that he is a Muslim." ---The Quaid-e-Azam asked the Muslims to banish sectionalism from their ranks. `I want the Muslims to get rid of the discease of provincialism,' he said. The Quaid-e-Azam added that it was a `curse of the Muslims of the Indian sub-continent' that they thought in terms of Sindhi, Punjabi, Pathan and Delhi Muslims.--- Really undesirable.-What was still worse was that some of the Muslims who had embraced Islam still retained the legacy of the case system in their social fabric. By saying this he did not wish to hurt the sentiments of the non-Muslim brethren, but only to point out the existence of un-Islamic ways among Muslims.--- He said that it was really undesirable that there should be community distinctions among Muslims like Khojas, Bohras and Memons.
30. He went on to emphasize :- ---A nation can never progress unless it marches in one formation. We are all Muslims and all Pakistanis, and citizens of the State serve, sacrifice and die for the State to make it a glorious and sovereign State in the world.--- Syed Sharifuddin Pirzada stated that the Quaid-e-Azam personally told him of an incident of the workers of the Muslim League at Meerut. He said that he was asked a question whether he was a Shia or a Sunni, to which he put a cross question "What was the Prophet?"
31. To this the questioner's reply was that he was neither, and the Quaid-e-Azam said that his reply was that he followed the Prophet, and that he was a Mussalman.
32. Yet another incident narrated by Syed Sharifuddin Pirzada was that the Quaid-e-Azam during the same conversation told him about a Hindu who had embraced Islam and who on being asked as to what was he, replied that he was a Muslim. On again being asked whether he was a Shia or a Sunni, the reply he gave was that he had given up case system and embraced Islam. The Quaid-e- Azam said of this convert that he was a true Mussalman.
33. I may, however, mention that two affidavits, one of Mohterma Fatima Jinnah and the other of Nawabzada Liaquat A.I Khan which were filed in this Court in connection with Miscellaneous Application No: 54 of 1948 filed by Mohterma Fatima Jinnah for the administration of the Quaid-e- Azam's property were produced on the file of this case. In these affidavits the deponents stated that the Quaid-e-Azam was a Shia Khoja Muslim. These statements are clearly inadmissible in law for the simple reason that the deponents were not put to cross-examination, nor the faith of the Quaid-e-Azam was a fact in issue in these proceedings. Moreover, no legal value can be attached to these assertions in view of the clear provisions of section 387 of the Succession Act. I, therefore, cannot attach any importance to these affidavits.
34. The clear position that emerges from the record before me is that the Quaid-e-Azam was, as he always declared himself to be, a true Mussalman, free from any sectarian feelings, senti--ment and faith ; his ideal was the Holy Prophet ; and the Quran, according to him, was a complete code of every aspect of life of a Mussalman. This was, in the fitness of things and circumstances as it had to be in the role that the Quaid-e-Azam was destined to play, and did in fact play, in the unchallenged position that he acquired for himself as the leader of the Mussalmans of the undivided India, and in the fight for obtaining a separate and independent homeland for the Muslims of this part of the world ; not only this, but in the subsequent events that took place, to the marvel of the world leaders-the establishment of Pakistan as an independent State-the very idea of which, at the time when conceived, was considered to be impossible for achievement. This was possible, among other reasons, on account of the faith of the Quaid-e-Azam that he was Mussalman first and the last, and that following the Holy Prophet, he was neither a Sunni nor a Shia.
35. But this, as I have said earlier, does not affect the question of the grant of the Succession Certificate. The admitted position before me is that the petitioner Shirinbai is entitled to one-half of the estate left by her sister, Mohterma Fatima Jinnah, in case it is held that the deceased left no Wilt. Since I have reached the conclusion that the deceased left no Will, the controversy is confined to only one-half of the estate. It is also the admitted position of the parties that in case Mohterma Fatima Jinnah is held to be a Sunni, the disputed half of the estate must devolve upon the six objectors. It would be of interest to point out here that had Mohterma Fatima Jinnah executed either of the documents, Exhs. 12 or 13, or if Exh. 14 were to be treated as a valid Will, and any of these documents could be legally enforce--able, her sister, the petitioner Shirinbai, would not have got anything beyond Rs. 150 per month for her lifetime, but in the absence of a valid Will, I cannot deprive anyone what the Mohammadan Law commands to be given. The position in law clearly is that even if the petitioner is held to be entitled to one---half of the estate of her sister, the Succession Certificate can be granted to her for the whole estate if the claims of the other persons entitled to the estate are sufficiently safeguarded. In fact, section 375 of the Succession Act provides for such a situation. I would, therefore, like to safeguard the rights that the six objectors may have to the estate left by Mohterma Fatima Jinnah. In the circumstances, I direct issue of the Succession Certificate to the petitioner in respect of the properties shown in the amended Schedule "A", on the condition that she furnishes a bond with one or more sureties to the extent of the value of the properties for rendering an account of the debts and securities received by her, and for the indemnity of the persons who may be entitled to the estate left by the deceased. Until she has done so, she will be entitled to receive the sum of Rs. 3,000 (three thousand) only, per month, according to the interim orders passed already in the case. In case, however, any amount is payable to the Government or any other authority as Income-tax, estate duty, Municipal taxes, etc., the petitioner will be authorised to collect the same from the outstanding balance to the credit of Account No. 2335 of Mohterma Fatima Jinnah with the Foreign Exchange Branch of the Habib Bank Limited, Karachi.