JUDGMENT [The judgment was delivered by Nasim Hasan Shah, J.].-This judgement will dispose of Civil Appeals Nos. 128 and 129 of 1978, as both of them are directed against the judgment of a Division Bench of the Lahore High Court dated 4-12-1973, passed in Writ Petition No. 346 of 1969. This Writ Petition was filed by Brigadier H.H. Nawab Muhammad Abbas Khan Abbasi, Amir of Bahawalpur, calling in question the validity of the Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969, made by the Central Government of Pakistan, published vide the President's Secretariat (States and Frontier Regions Division) Notification No. S.R.O.
34(H)69, dated the 19th of February, 1969, whereby the personal properties left by H.H. Al-Haj late Sir Sadiq Muhammad Khan Abbasi, Ameer of Bahawalpur State, were distributed among his personal law heirs in the manner specified therein. Brig. H.H. Nawab Muhammad Abbas Khan Abbasi considering that all the personal properties of late Ameer of Bahawalpur devolvped upon him to the exclusion of all others on account of law and customs of the State, namely, the rule of primogeniture he, as the eldest son of the deceased, was solely entitled to them. Consequently, he feit aggrieved by the award of a part of the properties of the late Ameer to his other personal Jaw heirs.
2. To properly appreciate the claim of H.H. Nawab Muhammad Abbas Khan Abbasi it appears necessary to recount briefly the historical development of the State of Bahawalpur from the emergence of the State upto its accession to the Dominion of Pakistan and its uitimate merger in the Province of West Pakistan, the position of the Ruler of the State in this period and the manner in which succession to the Gaddi and to the property of the State was regulated.
3. At the time of the Constitutional Reforms leading to the Government of lndia Act, 1935, the geographical entity known as India was divided into two parts-British lndia and the Indian States.
While British India comprised the Governor's Provinces (which were increased to eleven after the coming into force of the aforementioned Government of India Act 1935) and some other areas administered by the Government of India itself, the Indian States comprised some 562 States which were mostly under the personal rule of Rulers or Chiefs. All the 562 Indian States were not of the same order. Some of them were States under the rule of hereditary Chiefs, which had political status even prior to the conquest of India by the Muslims; others (about 300 in number) were Estates or Jagirs granted by the Muslim Rulers as rewards for services or otherwise, to particular individuals or families. But the common feature that distinguished these 562 States or thereabout from British India was that, the Indian States had not been annexed by the British Crown. So, while British India was under the direct rule of the Crown through its representatives and according to the statutes of Parliament and enactment of the Indian Legislatures, the Indian States were allowed to remain under the personal rule of their Chiefs and Princes, under the 'suzerainty' of the Crown, which was assumed over the entire territory of India wheu the Crown took over authority from the East India Company in 1858. Lord Canning then made the pronouncement: "The Crown in England stands forth the unquestioned ruler and paramount power in all India.'' 4.
The relationship between the Crown and the Indian States since the assumption of suzerainty by the Crown came to be described by the term 'Paramountcy'. The Crown was bound by engagements of a great variety with the Indian States. A common feature of these engagements was that while the States were responsible for their own internal administration, the Crown accepted the responsibility for their external relations and defence. The Indian States had no international life, and for externat purposes, they were practically in the same position as British India. As regards internal affairs, the policy of the British Crown was normally one of non- interference with the monarchical rule of the Rulers, but the Crown interested itself in cases of misrule and maladministration, as well as for giving effect to its international commitments. So, even in the internal sphere, the Indian States had no legal right against non-interference and so Lord Reading explained to the Nizam of Hyderabad: "The Sovereignty of the British Crown is supreme in India, and, therefore, no Ruler of an Indian State can justifiably claim to negotiate with the British Government on an equal footing".
Nevertheless, the Rulers of the Indian States enjoyed certain personal rights and privileges and normally carried on their personal administration unaffected by all political and constitutional vicissitudes within the neighbouring territories of British India.
5. The Government of India Act, 1935, envisaged a federal structure for the whole of India, in which the Indian States could figure as Units together with the Governor's Provinces. Nevertheless, the framers of that Act differentiated the Indian States from the Provinces in two material respects. The two points of difference were-(a) while in the case of the Provinces accession to the Federation was compulsory or automatic,-in the case of an Indian State, it was voluntary and depended upon the signing by the Ruler of an Instrument of Accession, and its acceptance by the Crown: (b) while in the case of the Provinces, the authority of the Federation over the Provinces (executive as well as legislative) extended over the whole of the federal sphere delineated by the Act,-in the case of the Indian States, the authority of the Federation could be limited by the Instrument of Accession and all residuary powers belonged to the State. It is needless to elaborate the details of the plan of 1935, for the accession of the Indian States to the proposed Federation never came about and this Part of that Act was finally abandoned in 1939, when World War II broke out.
When Sir Stafford Cripps came to India with his plan in 1942, it was definitely understood that the Plan proposed by him would be confined to settle the political destinies of British India, and that the Indian States woccept any Instrument of Accession or supplementary Instrument unless he considers it proper so to do or as empowering (the Governor-General) to accept any such Instrument if it appears to him that the terms thereof are inconsistent with the scheme of Federation embodied in this Act: Provided that if any Instrument has in fact been accepted by (the Governor General) the validity of that Instrument or of any of its provisions shall not be called in question and the provisions of this Act shall, in relation to the State, have effect subject to the provisions of the Instrument." (5) (6)
(5)..................... (8) (6) As soon as may be after any Instrument of Accession or supplementary Instrument has been accepted by (the Governor General) under this section, copies of the Instrument and of (the Governor- General) Acceptance thereof shall be laid before (the Federal Legislature), and all Courts take judicial notice of every such Instrument and Acceptance".
9. Several other supplementary Instruments of Accession were executed thereafter, but mention may be made of the Instrument executed by Ameer of Bahawalpur and the Governor General of Pakistan on 11-4-1952, whereby in consideration of the Ameer's accepting for his State the Consti- tuiion of Pakistan to be adopted by the Constitutent Assembly of Pakistan, the Ameer agreed to receive a privy purse of Rs. 29,50,000/- annually, ln this Instrument, the question of succession to the personal rights, privileges, dignities and titles enjoyed by the Ameer as well as the question of how disputes with regard to any item of property, succession to the personal rights, privileges, dignities of Ameer of Bahawalpur were also deait with in Articles II to IV, which may usefully be reproduced hereunder:- Article II.-His Highness the Ameer shall be entitled to the full ownership use and enjoyment of all the jewels, jewellery, ornaments, shares, securities and other private properties, movable as well as immovable, not being State properties, belonging to him on the date of this agreement.
2. His Highness the Ameer shall furnish to the Government of Pakistan within three months of the date of this Agreement lists of the movable and immovable property held by him as such private property.
3. If any dispute arises as to whether any item of property is the private property of His Highness or State property, it shall be decided by the Governor-General of Pakistan whose decision shall be final and binding on all concerned.
Article HI.-His Highness the Ameer and the members of his family shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or out-side the territory of the State immediately before the date of this agreement.
Article IV.-The Government of Pakistan guarantees the succession according to law and custom of the State of Bahawlpur to the Gaddi of the State and to the personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur.
10. The next important agreement, indeed, the crucial one for the decision of this case, which requires mention is the 'Bahawalpur Merger Agreement'. On 17-12-1954, shortly before the establishment of the unified Province of West Pakistan (commonly known as one Unit) the Ameer of Bahawalpur State and the Government of Pakistan executed an agreement known as the "Bahawalpur Merger Agreement". This agreement provided as hithertofore for the accession of the State of Bahawalpur to the Dominion of Pakistan and further for the merger of the same in the proposed One Unit of the said Dominion to be known as West Pakistan. By virtue of this agreement, which was in abrogation to all the previous Instrument of Accession and Agreements, the Ameer of Bahawalpur acceded to the Government of the Dominion of Pakistan, his sovereignty and all rights, authority and powers as Ruler of the State of Bahawalpur and as a resuit of this accession, the Government of Pakistan acquired jurisdiction and control over the territory which was previously vested in the Ruler of the State of Bahawalpur. The Government of Pakistan on and from the date of Merger Agreement undertook responsibility for the governance of the said State and territory and solemnly guaranteed to the Ameer of Bahawalpur certain inviolable rights which are fully described in the Merger Agreement. As the terms of Articles I! To V will need interpretation, the text of the said Articles may, therefore, usefully be reproduced hereunder "Article //.-His Highness the Ameer of Bahawalpur shall be entitled to receive annually from the Government of Pakistan for his privy purse a sum of Rs. 32 lacs (Rs. thirty-two lacs only) free of all taxes.
The amount is intended to cover all the expenses, of His Highness the Ameer [of Bahawalpur and his family bodyguard, tours, hospitality, maintenance of his residence, marriage and all family ceremonies.
The said amount shall be payable to the Ameer of Bahawalpur in four equal instalments at the beginning of each quarter in advance.
The payment of said amount as herein provided is guaranteed by the Government of Pakistan.
Article III.-His Highness the Ameer shall be entitled to the full ownership, use and enjoyment of all the jewels, jewellery, ornaments, securities and other private properties, movable as well as immovable, not being State properties, belonging to him on the date of this agreement.
If any dispute arises as to whether any item of property is the private property of His Higheness or State property, it shall be decided by the Governor General of Pakistan whose decision shall be final and binding on all concerned.
Article IV.-His Highness the Ameer, Her Highness and His Highness's children shall be entitled to all the personal privileges, dignities and titles enjoyed by them whether within or outside the territory of the State immediately before the date of this agreement.
Article V.-The Government of Pakistan gurantees the succession according to law and customs of the State of Bhawalpur to the personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur, as specified in Articles II to IV above.
A reference to the above agreement shows that in the second paragraph of Article III, it was specifically provided that if any dispute arises as to whether any item of property is the private property of His Highness or State Property, it shall be decided by the Governor-General of Pakistan whose decision shall be final and binding on all concerned.
A list of places and buildings etc. recognised by the Government of Pakistan as the personal property of His Highness the Ameer of Bahawalpur was also prepared which was duly signed on behalf of the Government of Pakistan on 8-6-1955 and a copy thereof was supplied to the Ameer of Bahawalpur.
11. On 3-10-1955, the Establishment of West Pakistan Act, 1955 was passed. By virtue of Section 10(1) of this Act read with the First Schedule thereto, Section 6 of the Government of India Act, 1935 was omitted, but all laws in force in West Pakistan, immediately before the appointed date, were to continue to apply to the areas and the persons to whom they would have applied if the Act had not been passed.
12. On 29-2-1956, the Constitution of the Islamic Republic of Pakistan was enacted. Article 224 of this Constitution provided that all laws ircluding the legal Instruments in force in Pakistan immediately before the Constitution Day were, insofar as applicable to continue in force until aitered, repealed or amended by the appropriate Legislature. By virtue of Article 202(3) of the 1956-Constitution, a provision was made in respect of the rights, privileges, etc. Of the Rulers of the existing States in the following words:- "(3) In the exercise of any power to make laws, and in the exercise of the executive authority of the Federation or a Province, due regard shall be had to the guarantees or assurances given under any such agreement as is referred to in Clause (1) with respect to the personal rights, privileges and dignities of the Ruler of any such State as is referred to in that clause".
By Article 231 of the same Constitution, a provision was made for the succession to the rights, liabilities and obligations of the Federal Government of a Province, arising out of contract or otherwise.
13. The Constitution of 1956 unfortunately was only shortlived and on 7-10-1958, Martial Law was promulgated and the Constitution of 1956 was abrogated. However, on 10-10-1958, the Laws (Continuance in Force)
Order, 1958 was promulgated and by Article IV thereof, a provision was made for the continuance of laws other than the Constitution. On 16-6-1960, President's Order No. 15 of 1960 was promulgated, called the Rulers (Recognition of Successors) Order, 1960, wherein it was provided that any refernce to the Ruler of a State would be construed as including a reference to the person recognised, for the time being, by the President as a successor to that Ruler. On 2-9-1961, another Order, which is of importance in this case, was promulgated by the President of Pakistan, namely, President's Order No. 12 of 1961, called "Acceding State (Property) Order, 1961''. In this Order it was laid down that where any question arises directly or indirectly between person claiming to be the heirs and successors of the Ruler of a State or claiming to succeed to the State, concerning the devolution and distribution of any property of that State or of the Ruler, the question shall be decided by an order of the Central Government.
14. On 1-3-1962, the President promulgated the Constitution of the Islamic Republic of Pakistan, 1962, which came into force on 8-6-1962. Article 225 of this Constitution provided for continuance of "existing laws" while Article 232(3) provided for the continuance or rights, liabilities and obligations of the Government arising out of the contract or otherwise. -15. On 24th May, 1966, H.H. Sir Sadiq Muhammad Khan Abbasi, Ameer of Bahawalpur passed away.
Brig. Nawab Muhammad Abbas Khan Abbasi (appellant in Civil Appeal No. 129 of 1978) succeeded as the Ameer of Bahawalpur and the recognition to the aforesaid succession was accorded by the Government of Pakistan vide order dated the 4th June, 1966. However, shortly thereafter, a majority of the heirs of the late H.H. Sir Sadiq Muhammad Khan Abbasi approached the Government of Pakistan claiming succession to the personal properties of the late Ameer. The appellant H.H.
Nawab Muhammad Abbas Khan Abbasi disputed their claim on the ground that in accordance with law and customs of the State of Bahawalpur, which were guaranteed by the Merger Agreement, the appellant having already succeeded to the Ameerate of Bahawalpur was also entitled to succeed exclusively to all the personal properties of the late Ameer of Bahawalpur as a part of his status as Ameer. This position was not accepted by the Government of Pakistan on the ground that the customary law even if it was assume.! To have been applicable to the Ruling family of Bahawalpur had lost its application by Section 2 of the West Pakistan Muslim Personal Law (Shariat) Act, 1962 and that this dispute came within the purview of the provisions of the Acceding State (Property) order, 1961 and was applicable in relation to the distribution of the property left by the Late Ameer of Bahawalpur.
I6. Accordingly, a Commission consisting of two Senior Members of Board of Revenue was appointed under Article 3 of the Acceding State (Property)Order, 1961 to make inquiry and submit its recommendations with regard to the devolution of distribution of the private properties left by the late Ameer. The Members of the Commission, therefore, made a detailed inquiry to discover all the property left by the late Ameer of Bahawalpur and also submitted its recommendation with regard to its distribution among the heirs of the late Ameer. These recommendations were accepted by the President of Pakistan and given effect through an order called "The Devolution & Distribution of Property (Ameer of Bahawalpur) Order, 1969" promulgated by the Government of Pakistan on 19 2-1969 and published in the Gazette of Pakistan, Extraordinary issue dated the 20th February, 1969. Under this Order, the movable and immovable properties fully described in the First Schedule attached on the said Order were held to belong and to vest in H.H. Nawab Mohammad Abbas Khan Abbasi as the Ameer of Bahawalpur in his capacity as Ameer and for so long as he was the Ameer. The rest of the properties, movable and immovable, were distributed in severality between H.H. Nawab Muhammad Abbas Khan Abbasi and the remaining personal heirs of the late Ameer of Bahawalpur, as set out in the Second Schedule of the Order. It was also stipulated in this order that H.H. Nawab Muhammad Abbas Khan Abbasi shall from out of the properties mentioned in the first schedule vested in him in his capacity as the Ameer of Bahawalpur, discharge all the debts and liabilities of the late Ameer, ln this connection, an embargo was placed on him that he shall not without the previous approval of the Central Government transfer by sale or otherwise any of those properties mentioned in the First Schedule or create any encumbrance on them.
Under this Order, all heirs of late Ameer were held to be liable for the estate duty payable in respect of the properties that had devolved on them.
17. Feeling aggrieved of the aforesaid order i.e. the Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969. H.H. Nawab Muhammad Abbas Khan Abbasi filed a writ petition (W.P. No. 346/69) in the Lahore High Court, Lahore, calling the question its validity. Before the High Court, it was contended on behalf of H.H. Nawab Muhammad Abbas Khan Abbasi that the merger agreement of 1954 was a Constitutional Instrument and was not subject to the ordinary law of the land and that the Government of Pakistan was bound by the guarantees and assurances extended to the late Ameer of Bahawalpur in the said Merger Agreement: hence the provisions contained in the Acceding States (Property) Order 1961 (President's Order No. 12 of 1961) did not have the effect of over-riding them. It was further asserted that President's Order No. 12 of 1961 was not applicable to this case and, at any rate, even under President's Order No. 12 of 1961 read with the Merger Agreement the Government of Pakistan was bound to decide this dispute regarding succession to the personal properties of the late Ameer of Bahawalpur in accordance with law and custom of the State, under which, by virture of the rule of primogeniture H.H. Nawab Mohammad Abbas Khan Abbasi alone was entitled to succeed to the entire properties. The validity of the President's Order No. 12 of 1961 was also challenged on the ground that it did not lay down any norms and conferred unguided and uncontrolled powers to the Central Government for its decision in such matter. It was also contended on behalf of Respondent No. 1 that the Government of Pakistan acted illegally in delegating its own function by appointing the Commission for inquiry into this dispute which was within its own exclusive competence. It was asserted on behalf of the appellant (in Civil Appeal No. 129 of 1978) that neither the Commission, during the course of the enquiry before in nor the Central Government before passing the impugned order allowed any reasonable opportunity to the appellant (H.H. Nawab Mohammad Abbas Khan Abbasi) to represent his case and as such acted against the principles of natural justice. It was further argued on his behalf that the Central Government had faded to pass a speaking order which, in fact, was aitogether arbitrary. It was lastly contended that he was not liable for the Estate Duty on the estate which was found to have devolved upon him.
18. In response, the Government of Pakistan (Appellant in Civil Appeal No. 128 of 1978) contended that the Merger Agreement of 1954 was a treaty arrived at between two Sovereign States and was essentially an Act of State and as such it could not be called in question in any of the municipal Courts in the country and their jurisdiction was aitogether barred in the matter. Aiternatively, it was contended that the Merger Agreement was not sacrosanct and it was itself subject to the ordinary law of the land and could not prevail over it and that it could, therefore, be modified and aitered by the provisions contained in the President's Order No. 12 of 1961. It was further asserted that the jurisdiction of the High Court to entertain this dispute was also barred under Section 7 of the President's Order No. 12 of 1961 and that, at any rate, the contractual obligations incurred between the parties under the Merger Agreement of 1954 could not be enforced by invoking the extraordinary jurisdiction of the High Court under Article 98 of the Constitution (of 1962). it was further contended that the decision of the Government to take cognizance of this dispute in accordance with the provisions of President's Order No- 12 of 1961 was quite lawful and the Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969, passed by the Government was a fair and equitable distribution of the Estate left on the demise of the late Ameer of Bahawalpur among his heirs. It was also contended on behalf of the Government of Pakistan that it was not a fit case for interference by the High Court. The Respondent Nos. 2 to 23, namely, the other heirs of the late Ameer supported the contention of the Government of Pakistan raised before the High Court to the effect that the Devolution and Distribution of the Property (Ameer of Bahawalpur) Order, 1969, was lawfully passed by the Centra! Government by way of an equitable and fair administration of the estate left by the late Ameer of Bahawalpur among his heirs. The said respondents however, supported the appellant H.H. Nawab Mohammad Abbas Khan Abbasi in his contention that the Estate was not liable for payment of Estate Duty. On behalf of Respondent No. 24 (Controller of Esta e Duty) it was contended before the High Court that in the absence of any express exemption allowed to the late Ameer of Bahawalpur the private properties belonging to him were not immune from the provisions of the Estate Duty Act, 1951. It was further contended on his behalf that the writ petition instituted by the appellant (H.H. Nawab Muhammad Abbas Khan Abbasi) was not competent to challenge the proceedings initiated against the heirs of the deceased in accordance with the law under the Estate Duty Act.
19. The High Court, in a detailed and elaborate judgment passed on 4-12-1973, wherein all the questions raised before it, were fully considered, come to the conclusion that the Central Government was competent to decide the dispute concerning the Devolution and Distribution of the property of the State of late Ameer under Section 3 of the President's Order No. 12 of 1961 and the Acceding-State (Property) Order, 1961 which was a valid piece of Legislature. However, while passing the Devolution and Distribution of the Property (Ameer of Bahawalpur) Order, 1961, several errors were committed and it was therefore not passed in accordance with law and, consequently, was of no legal effect. The learned Judges of the High Court, therefore, ordered that "the matter shall go back to the Central Government for fresh disposal of the dispute before it in accordance with law". The writ petition filed by H.H. Nawab Mohammad Abbas Khan Abbasi was, accordingly, accepted to the above extent.
20. The Government of Pakistan feeling aggrieved by the above judgment has, therefore, challenged it by filing an appeal (Civil Appeal No. 128 of 1978). H.H. Nawab Mohammad Abbas Khan Abbasi also feit aggrieved by certain findings recorded in the impugned judgment which, he considers might prejudice his case before the Central Government, while taking its decision in pursuance of the remand order.
21. Before dealing with the contention raised by the appellant in both the appeals it would be profitable to mention the findings recorded by the learned Judges in the High Court on the various issues raised before them.
The High Court, by its judgment passed on 4-12-1973 in Writ Petition No. 346 of 1969, recorded the following findings:-
(a) On the point of the character and the weight to be attached to the Bahawalpur Merger Agreement executed on 17-12-1954 between the then Governor General of Pakistan and the late Ameer of Bahawalpur State, it was held that after the promulgation of the 1962-Constitution the umbrella of the Constitution and its backing in support of the Merger Agreement was aitogether withdrawn and was no longer available. Nor did it (the Constitution) by itself, provide any constitutional safeguard to the guarantees and assurance contained in the Agreement. Aithough the Merger Agreement continued to remain in force without this additional constitutional backing under Sub-Article (1) & (7) of Article 225(1) of the 1962-Constitution but merely as a "legal insrument" and not as a "Constitutional Instrument". It was, thus, relegated Jto the position of and become an ordinary "existing law" and could not be equated with the Constitution itself.
Consequently, the Legislature ordinarily competent to legaislate on the matter, was not precluded from making any law over-riding the provisions of the Merger Agreement in question nor were its powers to make laws under the Constitution curtailed and controlled by the provisions contained in the Merger Agreement.
(b) On the question whether the stipulations contained in the Instrument of Accession or the Merger Agreement amounted to the stipulations of a treaty between two foreign powers and, therefore, being an act of the State, the jurisdiction of municipal Courts of this country was barred from entertaining any dispute arising out of it, it was held that the Courts in this country are bound by the terms of the Constitution of Pakistan and the laws in force here. The Merger Agreement in question was an Instrument of Accession executed by the late Ameer of Bahawalpur and accepted by the Governor General of Pakistan in accordance with Section 6 of the Government of India Act, 1935. The proviso to subsection (4) of Section 6 of the Act laid down that if any Instrument has, in fact, been accepted by the Governor General, the validity of the Instrument or of any of its provisions shall not be called in question and provisions of this Act shall, in relation to the State, have effect subject to the provisions of the Instrument. Under sub-section (9) of this section all Courts are bound to take judicial notice of every such Instrument. The validity of the Instrument or any of its provisions cannot be called in question in any Court. But this bar of jurisdiction is restricted to any attack against the validity of the Instrument or any of its provisions. It does not work in any other direction and debar the Court from enforcing the agreement or any of its provisions between the citizens of Pakistan. In fact, this provisions between the citizens of Pakistan.
In fact, this proviso itself expressly lays down that the provisions of the Act shall have effect subject to the provisions of the Instrument. In short by the terms of the proviso to Section 6(4) of the Government of India Act, 1935, the validity of an Instrument of Accession or of any its provisions shall not be called in question. Short of that there was no bar against any Court from entertaining any dispute for the enforcement of the Instrument of Accession or any of the guarantees, assurances and stipulations contained therein. The Courts cannot go behind the Instrument and challenge its validity but this does not debar these Courts to look into the effect of the Instrument on the rights of the main contesting parties before the Courts who are citizens of Pakistan in relation to a cause of action which for the first time accrued to them long afterwards on the death of the late Ameer on the 24th of May, 1966. The contention raised to the effect that the jurisdiction of the High Court was barred to entertain the dispute was therefore, held as is not tenable.
(c) As to the effect of the Acceding State (Property) Order, 1961 (President's Order No. 12 of 1961) on the Bahawalpur Merger Agreement dated the 17th December 1954, executed between late Ameer of Bahawalpur and the then Governor-General of Pakistan; it was held:-
(i) Article 3 thereof simply provided a forum of exclusive jurisdiction for the settlement of disputes between the rival claimants to the succession to an acceding State or its Ruler concerning the devolution and distribution of their properties. [2] ment of any dispute arising out of it. This aspect is provided for in the President's Order No. 12 of 1961. The povisions of this Order do not over-ride any of the provisions of the Merger Agreement and the two are complementary to each other. Indeed, on this view of the matter, most of the contentions advanced based on the supposition that the provisions of President's Order No. 12 of 1961 have no overriding effect as against the provisions of the Merger Agreement were besides the point.
(iii) Article 7 of the President's Order does not bar the jurisdiction of the High Court to entertain a petition challenging the validity of an order made under Article 3 of the Order, because thereunder it is only orders made in compliance with its provisions, substance and forum which are immune from challenge before the High Court and this immunity does not extend to any order passed by the Central Government which cannot properly be brought within the four corners of this Article and was in reality made in excuse of the powers conferred by it. In support of this view reliance was placed on Khair Mohammad Khan v. The State (PLD 1966 S.C. 604).
(iv) The order, however, does not repeal the substantive law that may be applicable to the disputes of the kind arising between the parties. The disputes being of a civil nature touching important rights of the parties thereto, the Central Government in deciding these disputes must not judicially as a quasi judicial tribunal or a sole arbitrator constituted for their settlement.
(d) The Devolution and Distribution of Property (Ameer of Bahawalpur). Order, 1969, passed by the Central Government under Article 3 of the President's Order No. 12 of 1961, is bad because:-
(i) It is based on report of a Enquiry Commission consisting of two Members of the West Pakistan Board of Revenue, whereas under Article 3 of the President's Order No. 12 of 1961, the Central Government was vested with the power to decide the dispute in question by an order. There is no provision in this Order for the Central Government to delegate its authority and constitute a Commission or appoint any enquiry officer for holding an enquiry into the matter in dispute before it. The procedure followed is contrary to the principle "delegatus non potest delegare" and also against the principle contained in Section 73 read with the provisions contained in Order 26 of the Civil Procedure Code dealing with issuance of Commissions. The Central Government in the discharge of its functions under Article 3 of the President's Order No. 12 of 1961 could not, therefore, entrust the entire enquiry to the Commission appointed by it for the purpose.
(ii) the order passed by the Government is not a "speaking order". The distribution of the properties between the appellant (H.H. Nawab Mohammad Abbas Khan Abbasi) and Respondents Nos. 2 to 23 has been done at randum without disclosing any basis for doing so. The properties enumerated in the First Schedule were vested in theappellant in his capacity as the Ameer and for so long as he was the Ameer. The remaining properties in dispute were divided between the appellant and Respondents Nos. 2 to 23 in severally as set out in detail in the Second Schedule. The parties were held liable for their share of the estate duty. There is no basis laid down for the inclusion of the properties in the First Schedule and to distinguish them from the rest of the properties in dispute included in the Second Schedule.
(iii) the distribution of the property in the Second Schedule of the impugned order cannot be justified either on the basis of the application of the alleged Customary Law or the Shariat to this case. In the absence of any valuation of these properties it cannot be said that the mode of division thereof was in accordance with the respective share of all the different heirs of the late Ameer under the Shariat Law.
(iv) the plea of the appellant that he was the sole heir and the entire property in dispute was Ameerate property attached to the Gaddi of the Ruler and, thus, devolved on him was rejected illegally, in limine, vide its letter dated 10th July, 1967 without affording him any reasonable and adequate opportunity for hearing by the Central Government.
(v) the Central Government had not allowed any reasonable opportunity to the appellant to show cause against the impugned order. The Central Government did not hear him before accepting the report submitted by the Commission of which he had no notice at all.
(e) As regards, the main contention of the appellant on the merits that under Article V of the Merger Agreement dated the 17th December, 1954, whereby the Government of Pakistan had guaranteed the succssion according to "law and customs of the State of Bahawalpur" to the personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur, as specified in Articles II to IV, which articles relate back to the private properties, movable as well as immovable, not being the State properties belonging to the late Ameer of Bahawalpur on the date of the Merger Agreement; therefore, in view of the law and customs of Bahawalpur which was the rule of primogeniture applicable to this family the appellant succeeded to the Gaddi as a Ruler and the Ameerate and as the personal properties were attached to the Gaddi he was entitled to succeed to them to the exclusion of the Respondents Nos. 2 to 23, it was held that the Government of Pakistan had merely guaranteed the succession according to the "law and customs of the Bahawalpur State" and it did not guarantee the application of the custom in preference to the other laws in force in the State. This stipulation only means that the succession shall be according to rule of law in general. It did not mean that this rule of law was immutable for all times and that the Legislature competent to legislate in that matter could not pass any law modifying the law of succession in this behalf.
(f) On the question whether the appellant was immune and exempt from the payment of the estate duty and application of the West Pakistan Land Reforms Regulations, 1959 (MLR 64), it was observed that according to the Bahawalpur Merger Agreement, the late Ameer of Bahawalpur was entitled to the full ownership, use and enjoyment of his private properties, not being State properties. In this connection, a list of those properties was also drarwn up and recognised by the Government. By this, it was agreed that these properties shall not be treated as the State properties. But it did not mean that these properties, in the private ownership of the late Ameer of Bahawalpur, were, in any manner, placed above the law of the land and were not subject to it like all other owners of private properties. As a citizen of Pakistan, the laws of land were equally appliable to him, subject to the immunities, if any, and the personal privileges, dignities and titles enjoyed by him and his family members.
It was further observed that the question as to whether the private properties in dispute left behind by the late Ameer of Bahawalpur on his demise on the 24th May, 1966, were liable for the estate duty under the Estate Duty Act, 1950 bad come up only in directly. So far none of the competent authorities vested with jurisdiction in this behalf under the Estate Duty Act had passed any order against the appellant and Respondents Nos. 2 to 23. The provision made in the devolution and distribution order for the proportionate payment of the estate duty that may be due from the heirs of the late Ameer was aitogether gratuitous. The eventuality for the payment of the estate duty, if any, still remained to be ascertained at the hands of the competent authorities under the Act. It shall be for the appellant and Respondents 2-23, after estate duty has been levied to the satisfaction of the competent authorities that they were saved from the operation of the Estate Duty Act. Since this matter is already pending before the Controller of Estate Duty no further opinion can be expressed at this stage.
22. In support of the appeal filed by the Government of Pakistan (Civil Appeal No. 128 of 1978) Syed Iftikhar Ahmad, learned Deputy Attorney General has submitted that the Bahawalpur Merger Agreement dated 17-12-1954 was made between the Sovereign Ruler of Bahawalpur and the Sovereign Dominion of Pakistan. The Governor General of the Dominion of Pakistan extended the Agreement as provided in Section 6 of the Government of lndia Act 1935 and it was duly laid before the Federal Legislature as required by subsection (9) of Section 6 of the said Act. Even though the acceptance of this agreement by the Governor General was in exercise of the powers under Section 6 of the Act 1935 it was an Act of State and as such, the Municipal Courts of Pakistan though required to take judicial notice of it under subsection (9) of Section 6 could not inquire into its validity nor could they issue any process or order for the enforcement of any provisions of this Agreement.
It was further submitted that the Merger Agreement, according to the High Court, when made had the backing of the Constitution provided by Section 6 of the Government of India Act but this backing ceased to exist on 14-10-1955 when the Establishment of the West Pakistan Act, 1955 came into force and Section 6 of Government of India Act, 1935 stood omitted in accordance with the provisions of the First Schedule to this Act. The view of the High Court that thereafter the Merger Agreement was continued in force as a "legal instrument" by Article 224(1) of the Constitution of Pakistan 1956 and subsequently by the Laws (Continuance in Force) Order, 1958 and the Constitution of Pakistan, 1973 is not correct because if for keeping the Merger Agreement alive as an instrument of legal validity continued Constitutional sanction is necessary; the Merger Agreement ceased to have any legal validity after the omission of Section 6 from the Government of India Act, 1935 on 14-10-1955 and there was no Constitutional sanction available to keep this Agreement alive till 23rd March, 1956, when the 1956-Constitution came into force. Accordingly, if the reasoning of the High Court was followed the Merger Agreement even ceased to exist as a "iegal instrument" having lost the Constitutional backing on 14-10-1955 and, therefore, the Constitution of 1956 by its Article 224(1) could not bring to life something which was not in force in Pakistan immediately before the commencing day i.e. 23-3-1956.
The learned Deputy Attorney General further submitted that Article 202 of the 1956-Constitution by its clauses (1) and (2) gave Constitutional sanction only to the payment to a Ruler of a State, in accession with Pakistan, the sum of money fixed in an Agreement with him as a privy purse free of tax but provided no constitutional recognition to other rights and privileges of the Ruler under the Agreement apart from holding out the assurance in Clause (3) of this Article that "due regard shall be had to the guarantees of assurance given under any such agreement" with respect to the "personal rights, privileges and dignities of the Ruler" while exercising any law making power and in exercising the executive authority of the Federation. Consequently, the Federal Legislature was not prohibited from making a law contrary to or modifying the "persona! rights, privileges and dignities of the Ruler" if it wished to make any such law. However, neither in the Constitution of 1962 nor in the 1973-Constitution there was provision similar to Article 202 of the 1956-Constitution. Thus, the Merger Agreement made between the late Ameer of Bahawalpur and the Governor- General of Pakistan had no binding force and the Government of Pakistan was only under political and moral obligation to observe its terms as far as public interest permitted it.
It was further submitted that the Government of Pakistan in order to discharge its obligations under this and other similar Agreement with the Rulers enacted two statutory enactments:-
(a) Rulers (Recognition of Successors) Order, 1960 (P.O. No. 15 of 1960); and (b) Acceeding State (Property) Order; 1961 (P.O. No. 12 of 1961).
The first deait with the question of succession to office of Ruler of a State while P.O. No. 12 of 1961 in its Article 3 deait with question concerning devolution and distribution of the property of a Ruler on his death when there is a dispute between persons claiming to be heirs and successors of the Ruler. The Distribution Order of 1969, impugned by the appellant in the other appeal, could, therefore, validly be made thereunder.
Coming to the Acceding State (Property) Order, 1961 it was submitted that Article 3 which alone is material in this case, empowers the Federal Government to decide a question arising between persons claiming to be the heirs and successors of a Ruler of a State concerning devolution and distribution of any property of that State or of the Ruler. The absence of any clear direction as to the law to be followed by the Federal Government in deciding the question of devolution and distribution of the property of the Ruler among the heirs, indicates that the intention of the law maker was to give the Federal Government a free hand in determining as to who are the persons among the claimants who are entitled to succeed and what share in the property may be allocated to each one of them. This was necessary to enable the Federal Government to discharge its obligations under the Merger Agreement which guarantees protection to the personal titles, dignities and privileges of the Ruler for the time being. To enable the successor of the Ruler to maintain his status and position as Ruler, a portion of the property left by the late Ruler of Bahawalpur was set aside, which the present Ameer given, apart from his share in the inheritance which be got along with other heirs. The portion of the property attached to the office of the Ruler by the Distribution Order of 1969 is to be held by the present Ameer subject to the condition that no part of it shall be alienated or transferred without the prior permission of the Federal Government.
The rest of the property has been divided among the heirs including the present Ameer substantially in accordance with the principles of Muslim Law. Keeping in view the dictates of policy necessiated by its obligations under the Merger Agreement, the division of property as made in the Distribution Order 1969 is just, fair and equitable and it has been accepted as such by almost all the heirs. The High Court ought not to have interfered with the division of the property as made, especially as Articles 7 of the Order excludes the jurisdiction of the Courts in this matter.
Coming to the question whether the Central Government is to act as a Judicial Tribunal deciding the dispute of the kind herein questioned it was submitted that the High Court erred in holding the Federal Government in deciding the question of devolution and distribution of the property under Article 3 of President's Order No. 12 of 1961 must assume the role of a judicial or a quasi-judicial Tribunal. It is true that the question falling for decision under Article 3 must necessarily involve rights to property devolving on the claimants by inheritance. The Central Government in view of its responsibilities appointed an Inquiry Commission comprising of two senior most officers of the Provincial Government in the Revenue side. They ascertained the properties left by the late Ruler of Bahawalpur and got evaluation made of urban properties, buildings and bungalows etc. by Engineers and those of agricuitural lands by senior and subordinate Revenue Officers. The claimants including the present Ameer were issued notices to appear before the Commission and to present their respective point of view. The recommendations of the Commission were thoroughly scrutinised and examined by Senior Officers of the Central Government as is evident from the minutes of the meeting of these officers dated the 5th of August, 1968, which have been filed in this Court. The recommendations as finalized were submitted to the President with a summary for his approval. The President approved the distribution as recommended and thereafter the Distribution Order, 1969 was issued. In the light of the provisions of Article 3 of the Order, the procedure adopted by the Central Government was just and fair and the report of the Inquiry Commission and the other documents filed in this Court clearly show that adequate opportunity was given to all concerned to place their point of view before the Commission.
Lastly, dealing with the question whether the Central Government had delegated its function to the Inquiry Commission which was not possible under Article 3 of the President's Order No. 15 of 1961 it is submitted that there was no delegation of functions of the Federal Government to the Inquiry Commission. The Central Government has to function through its officers and the Commission was entrusted with the task of ascertaining the properties left by the late Ruler and of suggesting division of the properties among the claimants. The final decision on the recommendations was taken by the Central Government after thorough scrutiny and examinations of the Commission's recommendations. The uitimate approval was given by the President.
23. Mr. A.K. Brohi, appearing on behalf of the appellant in Civil Appeal No. 129 of 1978 (Nawab Mohammad Abbas Khan Abbasi) submitted that the accession of the State of Bahawalpur into the Dominion of Pakistan was accepted by the Governor-General of Pakistan under Section 6 of the Government of India Act, 1935, as amended by the Pakistan Provisional Constitution Order, 1947. The Instrument of Accession having been accepted under a constitutional power could not be regarded as a treaty. In fact, the Governor-General, who accepted it, has no treaty making powers.
The Instrument of Accession after acceptance was fully incorporated into law, by force of the provisions of Section 6(4) of the said Act Consequently, its provisions can be scrutinized by a Court of law. In these circumstances, the Instrument of Accession cannot be equated with an Act of State on the principle that what is done under the law cannot be an Act of State.
However, the Instrument of Accession dated 3-10-1947 as also all the Supplementary Instruments of Accession down to the uitimate Merger Agreement of 17-12-1954 executed by the Ameer of Bahawalpur whereby the State of Bahawalpur lost its identity and agreed to its absorption into one of the Provinces of the Dominion of Pakistan (West Pakistan) are Constitutional Instruments.
Accordingly, they continued to exist as such and can be undone only by the method by which the Constitution can be amended and its stipulations cannot be over-ridden by ordinary law. The omission of Section 6 of the 1935 Act (by the West Pakistan Establishment Act of 1955) did not affect the situation. The said provision had served its purpose and become redundant because all the States in the region had by then acceded to Pakistan. However, the Instruments already accepted under Section 6 continued as Constitutional Instruments until they were rescinded in a formal and constitutional way. The provisions of the Merger Agreement of 1954 therefore could not be modified or.over-ridden by any ordinary law. According to Article V of the said Agreement, the Government of Pakistan had guaranteed the "succession" according to law and customs of the State of Bahawalpur to the "personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur, as specified in Article II to IV of the said agreement". The effect of this provision was to confer juristic personality to the Ameer and to make him a corporation sole. The office of the Ameer of Bahawalpur had been kept intact and signified the continuance of the concept of Ameerate. It was pointed out that after the merger the Ameer became a Ruler without any territory over which he could rule and the Ameerate was the symbol of his status. The succession to the personal rights of the Ameer was an aspect of his status and it embraced proprietary rights. The State Property went to the Government of Pakistan. However, the entire personal property being Ameerate property devolved on the Ameer. Private property was an adjunct of the office of the Ruler and develoved upon the persons succeeding to that office. Mr. Brohi emphasised that personal rights and personal properties are interchangeable expressions and personal rights embrace all the rights mentioned in Article 3 of the Merger Agreement. Accordingly, the succession to the office of the Ameer also included the rights to succeed all the private properties of the Ameer. Accordingly, the appellant was entitled to succeed to all the properties left by the late Ameer, save that property which was treated as State property.
The Devolution and Distribution Order of 1969 was criticised on the ground that it did not disclose the principles on which it was made. It not being a legislative act could not impose the conditions that it purported to impose on the appellant in respect of the property awarded to him under Schedule I to the Order. The question of succession could only be regulated by the rule laid down in Article V of the Merger Agreement and on no other principle. If effect was given to it, the entire private property ought to have been awarded to the appellant.
24. Mr. A.R. Sheikh, appearing on behalf of the legal heirs of Respondents Nos. 2 and 13 in both the appeals provided us with the factual background, accompanied by the dates of the relevant acts and events in the perimeters of which the matters in dispute fall to be decided. He generally supported the judgment of the High Court and strongly controverted the arguments of Mr. Brohi that proprietary rights are included in personal rights. According to Mr. A.R. Sheikh personal rights do not include the right to property. The property of late Ameer according to him was to be distributed amongst the heirs according to Shariat Law. He conceded that the decision regarding the succession to the Gaddi was to be made by the order of the Governor General, but so far as succession to the Private Property of the Ameer was concerned it was to be decided according to Muslim Law.
25. Mr. Abdul Hakim Khan, on behalf of Respondents Nos. 3 to 12, 14 to 19 and 21 to 23 in both the appeals, also supported the judgment of the High Court. According to him, the disputed property is the private property of the late Ameer and the Merger Agreement did not give any assurance with regard to the devolution of this kind of property. This property is to be inherited in accordance with the provisions of the Muslim Personal Law (Shariat Application) Act, 1962. He refuted the contention of Mr. Brohi that the institution of the Ameer was a corporation sole and pointed out that such an institution can be created in Pakistan only by statute and could come into existence only expressly and not by implication; that there was no statute to the effect that the Ameer of Bahawalpur will be a corporation sole and, therefore, the argument that the Ameer of Bahawalpur could be deemed to be a corporation sole was not valid. He also challenged the argument of the learned Deputy Attorney General that after the omission of Section 6 from the Goverment of India Act on the enforcement of the Establishment of West Pakistan Act, 1955, on 14-10-1956, there was no constitutional sanction available to keep the Merger Agreement alive till 23rd March, 1956, when the 1956-Constitution came into force, by submitting that "omission" of a provision was equivalent to its "repeal".
Mr. Inayat Hussain, Advocate-on-Record, appearing for Respondent No. 20 adopted the arguments of Mr. A.R. Sheikh and invited our attention to Article 187 of 1973-Constitution, empowering this Court to do complete justic in a cause.
26. We have given our earnest consideration to the submissions made before us and have very carefully considered the entire matter. We cannot accept the argument of the learned Deputy Attorney General that the Instrument of Accession entered into by the Ameer of Bahawalpur with the Government of Pakistan amounted to an Act of State and, therefore, no proceedings can be initiated before the Courts of law in the country to enforce any of its terms. This question has been deait with very elaborately and we may say so with respect most ably by the High Court who found the above contention to be unsustainable. Though there is hardly anything we can add to the elaborate discussion of this question by the High Court we may perhaps mention that the Court has in two judgments explained connotation of the phrase "Act of State" namely, in The Superintendent, Land Customs, Torkham (Khyber Agency) v. Dewar Khan and others (PLD 1969 SC 485) and Special Reference under Article 187 of the Interim Constitution of the Islamic Republic of Pakistan by President Zulfiqar Ali Bhutto (PLJ 1973 SC 142=PLD 1973 SC 563).
In fact, in the second judgment, the connotation of this expression given in the first judgment has merely been reiterated. In these judgments it was said that the expression "Act of State" in its wide sense denotes "those acts of the Crown which are done in the exercise of its prerogative powers in the sphere of foreign affairs, such as, the making of war or peace, the accession or cession of territory, the recognition of a new State or the new Government of an old State. Acts of the latter kind are not justiciable in the Municipal Courts", (underlining is ours). [Here in italics\.
According to Stephens "an act done by a Sovereign authority independently of the ordinary law of the land is not cognizable by the ordinary municipal courts, it is an act injurious to the person or to the property of some person who is not at the time of that act a subject of His Majesty which act is done by any representative of His Majesty's authority, civil or military, and is either previously sanctioned or subsequently ratified by His Majesty", (underlining is ours). [Here in italics].
Halsbury defines an act of State in his Laws of England; fourth edition volume 18, as:- "1413. Meaning of "act of state". An act of state is a prerogative act of policy in the field of foreign affairs performed by the Crown in the course of its relationship with another state or its subjects.
Typical acts of state are the making and performance of treaties, the annexation of foreign territory, the seizure of land or goods in right of conquest, declarations of war and blockage. The detention of an enemy alien in wartime or his deportation may be regarded as an act of state".
"1414. Acts of state outside the Courts'jurisdiction.-An act of state is essentially an exercise of sovereign power and hence cannot be challenged, controlled or interfered with by municipal courts. Its sanction is not that of law, but that of sovereign power, and the municipal courts cannot question it: it is a catastrophic change, constituting a new departure, and the municipal law has nothing to do with the act of change by which the new departure comes about.
Hence the courts have no jurisdiction to question the validity of an act of state, and an individual cannot rely upon an act of state in order to found a cause of action." "1418. Acts of state and British subjects.-In general there can be no act of state with respect to a British subject. Hence the defence of act of state cannot be pleaded by the Crown, nor whether if act of state is no defence against a British subject in such a case, act committed upon him in Her Majesty's dominions. For this purpose, "British subject" includes friendly aliens resident within British territory...... It has not been clearly decided whether act of state can be pleaded as a defence to an action brought by a British subject for a tort committed outside the dominions of the Crown, nor whether if act of state is no defence against a British subject in such a case, who is a British subject for this purpose".
It is clear from Halsbury that the Government cannot plead an act of State against the subject.
Wade and Phillips in Constitutional and Administrative Law, Ninth Edition observe at page 299:- "An act of state has been described as "an act of the Executive as a matter of policy performed in the course of its relations with another state, including its relations with the subjects of that state, unless they are temporarily within the allegiance of the Crown". As this description suggests, the term act of state may be used in a number of senses.......... Where an Executive act occurs within the territories of the Crown, act of state may be pleaded only against very limited categories of litigant.
It will not succeed against a British subject or a resident friendly alien........... The extent to which act of state is available in respect of Executive action taken abroad against British subjects is however unclear." Salmond in his Law of Torts, Sixteenth Edition, writes- "A British subject owes allegiance to the Crown in whatever part of the world he may be; it seems therefore that the Crown cannot plead act of State as against him, whatever the wrong may have been committed. On the other hand those who owe no allegiance to the Crown may, save in British territory, be deait with by the Crown as it pleases." But Winfield in his Law of Torts, Tenth Edition, writes- "There is no doubt that no action may be brought either against the Crown or anyone else in respect of an act of State, but jhere is little agreement on the meaning of this phrase. Certainly an injury inflicted upon a foreigner abroad which is either authorised or ratified by the Crown is for this purpose an "act of State" and cannot be made the subject of an action in the English courts, but it is doubtful whether as an answer to a claim for tort, act of state goes any further than that. It will probably not avail a defendant to plead act of state in respect of an act done within British territory, whether against a British subject or a friendly alien, and it may well be unavailing against a British subject wherever he may be." It will thus be seen that all the learned authors draw a distinction between the position of an alien and of a citizen and whilst Winfield has some doubts on the question whether an act of State can be pleaded by the Government as a defence against a citizen, the other learned authors have answered this question in the negative without any hesitation.
27. It is, thus, manifest from the discussion made above, that the Government cannot plead an Act of State against the subject. In any case, the Instruments of Accession executed by the Ameer of Bahawalpur and accepted by the Governor General of Pakistan in exercise of a constitutional power conferred on him by Section 6 of the Government of India Act, cannot possibly be categorised as Acts of State.
28. By the terms of the afore-mentioned provision (Section 6 of the Act of 1935), no doubt, the Courts cannot go behind the Instrument and challenge its validity, but the same provision lays down that the provisions of the Act (of 1935) shall, in relation to the State, have effect subject to the provisions of the Instrument. Thus, these provisions acquire the force of law and the Courts are not debarred from examining the effect thereof on the rights of the main contesting parties before it and construing the meaning and import of its provisions.
29. The main submission of the appellant in Civil Appeal No. 129 of 1978 is that under the terms of the Merger Agreement he is, by the law and customs of the State of Bahawalpur, which according to him prescribes the rule of primogeniture in matters of succession, entitled to succeed to the private properties of the late Ameer.
The crucial question, therefore, is whether on a proper construction of the provisions of Merger Agreement, the appellant in Civil Appeal No. 129 of 1978 is right in asserting that according to its terms he is, indeed, entitled to succeed to the entire private property of the late Ameer, to the exclusion of all his other heirs. If the Court is prepared to examine the matter on this premises then the controversy whether the Merger Agreement is a "constitutional instrument", as contended by Mr. Brohi, and cannot be over-ridden by ordinary law or whether its status is merely that of a "legal instrument" at least after the promulgation of the 1962-Constitution and, therefore, could be over- ridden by ordinary law, as held by the High Court or it possessed no more than political or moral value, as submitttd by the learned Deputy Attorney General loses much of its importance.
30. We would, therefore, now proceed to discuss how for the contention of H.H. Nawab Mohammad Abbas Khan Abbasi that he is entitled to succeed to the entire private property of the late Ameer is correct, if the matter is decided on the basis of the provisions of the Merger Agreement of 1954 itself.
The bedrock of the case of the appellant (in Civil Appeal No. 129 of 1978) to succeed to all the private property of the late Ameer to the exclusion of all his other heirs is based on Article V of the Merger Agreement. This Article lays down:- "The Government of Pakistan guarantees the succession according to law and customs of the State of Bahawalpur to the personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur, as specified in Articles II to IV".
Article II provides for privy purse, free of taxes and Article IV relates to "all the personal privileges, dignities and titles enjoyed" by the Ameer, Her Highness and their children, Article III, however, provides as follows: "His Highness the Ameer shall be entitled to the full ownership, use and enjoyment of all the jewels, jewellery, ornaments, securities and other private properties, movable as well as immovable, not being State properties, belonging to him on the date of this agreement.
If any dispute arises as to whether any item of property is the private property of His Highness or State Property, it shall be decided by the Governor-General of Pakistan whose decision shall be final and binding on all concerned."
31. The question, therefore, is whether the guarantee regarding succession to personal rights, privileges, dignities and titles includes succession to private property as well. The Ameer, no doubt, has been conferred the right of full ownership over the private property but the guarantee regarding succession, according to the law and custom of Bahawalpur, is confined only to personal rights, privileges, dignities and titles to His Highness the Ameer of Bahawalpur, as specified in Articles II to IV above and no mention is specifically made to succession to private property in Article V. This would indicate that the guarantee has not been extended to succession to private property in accordance with the law and customs of the State.
This conclusion is re-inforced by the circumstance that once rights which have been guaranteed have duly been specified in Article V then any further reference to the rights mentioned in Article III, specially those which are inconsistent with the rights specified in Article V, cannot be resorted to and in fact must be ignored. In Article V, as already pointed out, no reference is made to private properties. Consequently, Mr. Brohi was constrained to argue that succession to personal rights by the law and customs of the State, which is guaranteed by Article V, includes succession to private properties as well. Unfortunately, there is no force in this submission because personal rights do not include the "proprietary rights". Paton in his Text Book of Jurisprudence (Third Edition Page 266) distinguishes the two as follows:- "Personal rights can be defined only as the residuary rights which remain after proprietary rights have been substracted." Salmond on Jurisprudence (15th Edition) also brings out this distinction on Page 238 and 239 in the following words "The aggregate of a man's proprietary rights constitutes his estate, his assets, or-bis property in one of the many senses of that most equivocal of legal terms. The sum total of a man's personal rights on the other hand constitutes his status or personal condition as opposed to his estate........... If we go outside the sphere of private into that of public law, we find the list of personal rights greatly increased. Citizenship, honours dignities and ofiicial position in all its innumerable forms, pertain to the law of status, not that of property".
Reference may also be made to two judgments from the Indian jurisdiction The State of Bihar v. Sir Kameshwar Singh (A.I.T. 1952 S.C. 252), wherein at page 306 it was observed: - "The guarantee or assurance to which due regard is to be had is limited to personal rights, privileges and dignities of the Ruler 'qua' a Ruler. It does not extend to personal property which is different from personal rights " Tie same view was reiterated in Sudhansusekhar Singh Deo. v. The State of Oriss & another (A.I.R. 1961 S.C. 196 at page 198) and it was found that personal property is different from personal rights.
32. This distinction appears to have duly been kept in view in the Merger Agreement because though private property was specifically provided for in Article III thereof, it is conspicuously omitted in Article V. A general reference to Article II to IV while guaranteeing succession to personal rights,* privileges, dignities and titles only cannot enlarge the guarantee, aiter the concept or efface the distinction between personal rights and the personal property which is clearly brought out in books of jurisprudence decisions of Courts and other legal literature. It also appears from the scheme of Article IV that only two categories of property were recognised, the State property and the private property; no third category of impartible inalientable property attached to the office of the Ameer as such was envisaged. Thus, whatever was not found to be State property was the private property of the Ameer. According to Section 9 of the Establishment of West Pakistan Act, 1955, all State properties were to vest for the purposes of Government of Pakistan while the remaining properties where to be regarded as the property of the Ameer. In fact, this pattern of thought was consistently followed in the agreements entered into between the late Ameer of Bahawalpur and the Governor General of Pakistan. For instance, in the Agreement dated 11th April, 1952 regarding "Privy Purse, Private Property and Rights and Privileges" the guarantee clause (Article IV) therein was in the following terms: "The Government of Pakistan guarantees the succession according to law and custom of the State of Bahawalpur to the Gaddi of the State and the personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur".
The Private Property was deait with in Article II of that document, namely, "His Highness the Ameer shall be entitled to the full ownership, use and enjoyment of all the jewels, jewellery, ornaments, shares, securities and other private properties, movable as well as immovable, not being State properties, belonging to him on the date of this agreement.
Here also private property was excluded from Article IV wherein the Government of Pakistan had guaranteed the succession according to law and customs of the State of Bahawalpur to the personal rights, privileges, dignities and titles of His Highness the Ameer of Bahawalpur.
33. It is, therefore, clear that under the Merger Agreement there were only two categories of the properties viz. State Property and Private Property. While State Property was to be taken over by the West Pakistan Government the dispute was only with regard to the succession to the Private Property and Article V of the Merger Agreement extended the guarantee regarding succession according to law and custom of the State of Bahawalpur only to personal rights which, as discussed above, did not embrace private property.
Consequently, when the question arose between heirs of the Ruler of the State concerning devolution and distribution of the property the same could be decided by the President of Pakistan according to Article III of the Merger Agreement or the Central Government under Section 3 of the President's Order No. 12 of 1961 viz. Acceding States (Property) Order, 1961. Here we may observe that we are in agreement with the view of the High Court that President's Order No. 12 of 1961 is not at all in conflict with the Merger Agreement and is only complementary to it. As has been pointed out the Merger Agreement does not expressly specify the forum for the,settlement of any dispute, which arise in implementing its terms. This aspect is provided for in Article 3 of the President's Order No. 12 of 1961. The provisions of this Order do not over-ride any of the provisions of the Merger Agreement and, in fact, the two are complementary to each other.
34. We may now proceed to examine the validity of the Devolution and Distribution Order, 1969 passed by the Central Government under Section 3 of President's Order No. 12 of 1961. As has already been noted that in the order the movable and immovable properties of the late Amen- have been divided into two parts and deait with differently. A part of it has been included in the First Schedule which were held to belong to and vest in the appellant (in C.A. No. 129 of 1978) in his capacity as and f >r so long as he is the Ameer. This was done to enable the successor of the Ruler to maintain his status and position as a Ruler. However, he was to discharge all the debts and liabilities of the late Ameer out of this property. Moreover, a further restriction was placed on him that he shall not transfer by sale or otherwise any of the above properties without the approval of the Central Government or create any encumbrance on them. The other part, which was placed in the Second Schedule, was distributed in severility among the appellant and the remaining personal heirs of the late Ameer (Respondents Nos. 2 to 23) in the manner and the extent indicated in the Schedule. All the heirs of the late Ameer were held to be liable for the estate duty payable in respect of the properties that devolved on them.
The High Court held that the distribution of the property under order of the Central Government had been done at random without disclosing any basis for doing so and the properties had not been valued and it was not clear whether the mode of division was in accordance with the Customary Law or Shariat Law.
35. In the course of the proceedings in this Court, Syed Iftikhar Ahmad, learned Deputy Attorney General placed the copy of the report containing the entire proceedings conducted by the Inquiry Commission which made the recommendations with regard to the distribution of the property to the heirs of the late Ameer of Bahawalpur and formed the basis of the Order of the Central Government after approval by the President of Pakistan. Unfortunately, as the above copy of this report was not placed before the High Court, the High Court was led to think that distribution of the property had been made at random and was not based on any principle. A perusal of the report shows that apart from the portion of the property in Schedule I, which was attached to the office of the Ruler and to be held by the present Ameer subject to the condition that no part of it shall be alienated or transferred without prior permission of the Central Government, the rest of the property was divided among the heirs including the present Ameer, in accordance with the principles of Muslim Law, justice and fair play. The report further shows that all the heirs had an adequate opportunity to represent their point of view before the Commission, which appears to have made strenuous efforts to ascertain the properties left by the late Ameer of Bahawalpur and get them evaluated, from Engineers (so far as urban properties were concerned) and Revenue Officers (as regards agricuitural property) and to make as fair a distribution as was possible in accordance with their lights.
36. In fact, Respondents Nos. 2 to 23 were fully satisfied with the distribution of the property in Schedule II and did not object to it by filing any writ petition and, indeed, pressed for its acceptance by the High Court in the written statement filed by them. The appellant (in Civil Appeal No. 129/78) alone objected to it and that too only on the ground that he was entitled to the entire private property on the rule of primogeniture and not because he was not given his share under the Muslim Law.
37. The question, therefore, arises whether any interference is called for in the Devolution and Distribution Order passed by the Central Government. We have already found that the contention of the appellant (in Civil Appeal No. 129 of 1978) to the effect that he was under the Merger Agreement, entitled to succeed to the entire property of the late Ameer, on account of the rule of primogeniture, according to the law and customs of the State, is without force. The real question, therefore, which arises is as to whether the Central Government had unbridled powers to distribute the property in any manner it thought fit or whether it was bound by any rule in determining the dispute regarding the succession to the private properties of the late Ameer of Bahawalpur. We agree with the High Court that as valuable civil rights of the parties were involved, the decision could not be taken arbitrarily but had to rest on some principle. The rule of decision in the absence of any compulsion to the contrary could, we have no doubt, be only the Muslim Law (Shariat). No such compulsion exists as it has already affirmatively been found that the contention to the effect that under the Merger Agreement the question of succession is to be governed by the law and customs of the State is untenable. The State of Bahawalpur, as we have mentioned already, acceded to the Dominion of Pakistan on 3-10-1947. Shortly, thereafter, the Pakistan Citizenship Act was enacted, on 13th April, 1951 and by the Bahawalpur (Extention of Federal Laws) Order, 1953 (Governor-General's Order No. 5 of 1953) its operation was also extended to the State of Bahawalpur and, accordidgly, the appellant, as also Respondents Nos. 2 to 23, became citizens of Pakistan. Thereafter, pursuant to the Bahawalpur Merger Agreement entered into on 17-12-1954, and the coming into force of the Establishment of West Pakistan Act, 1955, the State of Bahawalpur was absorbed in the Province of West Pakistan. On 31-12-1962, the Muslim Personal Law (Shariat Application) Act, 1962 was enforced which extended to the whole of the Province of West Pakistan, whereby Muslim Personal Law (Shariat) was to apply in all questions regarding succession, where the parties are Muslims. In fact, the Bahawalpur State had itself adopted in 1951 (1951 uOL,l 3UJ 0^U). Consequently, in deciding how the private property of the late Ameer was to be distributed among the heirs of late Ameer of Bahawalpur, the Muslim Law (Shariat) was to be the rule of decision and ought to have been applied. Indeed, the Central Government, while deciding this dispute, which involved a question pertaining to succession to the private property of the late Ameer was expected to apply the same rule that any ordinary Court of Law would have applied. The Central Government was burdened with the onerous duty to deciding this matter only because of the special status of the parties. In view of the high status of the contestants it appears that it was considered appropriate to create a special and exclusive forum to decide their dispute, so as to save the distinguished members of the late Ruler's family from the rigours of a trial before the ordinary court of the land.
Apart therefrom, the dispute, touching as it did the civil rights of the parties had to be determined in accordance with the law of the land which applied to such matters viz. Muslim Law (Shariat).
38. However, the distribution of property made in the Devolution & Distribution Order is not in accordance with the said rule. The private property of the late Ameer was divided into two parts and deait with in Schedule I and Schedule II of the Order. As regards the property in Schedule, I, this was awarded, subject to certain conditions, to the appellant (in Civil Appeal No. 129 of 1978) on the ground that he, being the successor to the Ameerate, was entitled to some property apart from what was his rightfull share in order to enable him to maintain his status as a Ruler. The award of any property on this account, however, was not justified. We have already seen that only two categories of the property viz. State Property and the Private Property was envisaged in the Merger Agreement of 1954 and no third category of the property which was attached the office of the Ameerate was envisaged therein. The argument of Mr. Brohi that the Ameer of Bahawalpur was a Corporation Sole and the entire property belonged to the person occupying the office of the Ameer, is not correct. No statute was shown to us which creates the Ameer of Bahawalpur as a Corporation Sole, nor can he be deemed to have become so by the term of the Merger Agreement.
As State Property was to be taken over by the West Pakistan Government under Section 9 of the Establishment of West Pakistan Act, 1955 and possession thereof was accordingly taken over by it, only the private property was left and this had to be distributed among all the heirs in accordance with the principles of Muslim Law. Here we may mention that our attention was drawn to the fact that with effect from 20-12-1971 by the President's Order- No. 15 of 1972 on the subject of "Ruler of Acceding States (Abolition of Privy Purses and Privileges) Order, 1972" the right of a Ruler to a privy purse and all other privileges to titles guaranteed or granted to a Ruler by or under any instrument of accession, agreement or under any law were abolished and it was submitted that in the present context there is no point in reserving any property left by the late Ameer of Bahawalpur for maintaining the status and position of his successor as a Ruler. We may observe that as the Instrument being relied upon in support of this submission (President's Order No. 12 of 1972) was not in the field when the impugned Order of 1969 was passed by the Central Government it could not affect the situation.
39. We have already noted that even in the property exclusively reserved for the appellant and included in Schedule I stipulations were made to the effect that this part of the property could not be alienated or transferred or in any way encumbered. Limitations of this kind can be imposed only by a legislative act and not by an order made in exercise of a power to distribute the property among the legal heirs and, therefore, the said limitation could not be imposed within the limits of the relevant statute.
However, that may be, as already explained above, no part of the property could be kept apart and given only to one of, the heirs. The whole of it was liable to be distributed to all the heirs and that too also in accordance with the rules of Muslim Law.
40. Even the property covered by Schedule II has not been distributed strictly in accordances with Muslim Law, but only "substantially" with it. The other factors being "justice" and "fair play". Thus, the criticism made by the High Court that the distribution made by Respondent No. 1 (in Civil Appeal No. 129 of 1978 i.e. the Central Government) in distributing the property to the various heirs of the late Ameer is not based on any principle or rule or any law but on its own personal notions, is well founded. Though some of the criticism against the Distribution Order made by the High Court to the effect, inter alia, that the property was not evaluated, is not correct. But it is Respondent No. 1 (in Civil Appeal No. 129/78) who is to blame for this, for failing to place the report of the Enquiry Commission before the High Court. Nonetheless, the basic criticism against the validity of the Devolution & Distribution Order remains unaffected, namely, that is illegally divided the private property of the late Ameer in two parts; awarding one part of it to one heir only and the other part alone to all of them and that the distribution of the property made to them too was not strictly in accordance with the rules of Muslim Law (Shariat).
41. On this view of the matter we would agree with the High Court that as the Devolution & Distribution Order passed by Respondent No. 1 (in Civil Appeal No. 129/78) is not within the limits of the statute under which it purports to have been made and despite the ouster clause contained in Article Vll of President's Order No. 12 of 1961, whereby the jurisdiction of the Courts to question orders made under Article III thereof was ousted, could be scrutinised by the High Court because any order which is not passed within the four corners of the statute authorising the passing of such an order is not immune from challenge vide Khair Mohammad Khan v. State (PLD 1966 S.C. 604).
Consequently, the High Court was right in remanding the case to the Central Government for decision afresh in accordance with the law.
42. We may here clarify that we do not agree with the High Court that the Inquiry Commission appointed by the Central Government could not have been appointed for ascertaining the properties left by the latfe Ameer and to suggest the mode of its distribution to his heirs. In our opinion where a matter is to be decided by the Central Government, which can be determined after making some inquiry it can either itself hold the inquiry in any manner that appears to it to be necessary or justified or get such an inquiry made through its officers. If the latter course is followed it does not imply that it has delegated its powers in the relevant regard because the power throughout remains with it. The inquiry is only coafi- ned to fact finding and to making recommendations. The Inquiry Comi- mission, while conducting the inquiry must hold it after giving a fair opportunity to all concerned to present their point of view, before making their recommendations. It may give notice to the heirs requiring them not only to give their views about the mode of distribution of the property, but also to indicate if any property belonging to the late Ameer has escaped notice and has not been taken into account so far.
43. As for the question regarding the liability for payment of estate duty on the property devolving on the heirs of the late Ameer we agree with the finding of the High Court that this issue is premature at this stage. We may, however, make it clear that the appellant (in Civil Appeal No. 129 of 1978) nor the other heirs of the late Ameer can be regarded as above the law and to be immune from the operation of the Estate Duty Act, 1951. No such immunity has been granted to them under any provision of the Merger Agreement of 1954 or any other law. However, each heir will be liable for the estate duty of his only share of the property which will be payable as soon as the exact share of each heir has been determined by the Central Government.
The upshot is that both the appeals, directed against the judgment of the High Court remanding the matter to the Central Government for _a decision afresh, passed in Writ Petition No. 346 of 1969 fail and are dismissed hereby, subject, however, to the observations made above. The parties, however, will be left to bear their own costs..
TAXATION VOLUME 46-1982 [Orders of the Pakistan Income Tax Appellate Tribunal on Income Tax, Sales Tax, Gift Tax, Weaith Tax and Estate Duty Acts, etc.]