' MUHAMMAD MUNIR KHAN, J.--This letter patent appeal arises from the judgment of the learned Single Judge, whereby he, on 22-11-1966 dismissed the writ petition filed by Zafaryab Ali and Nasir Ali appellants herein against Additional Rehabilitation and Settlement Commissioner, Multan and 7 others.
2. The facts leading up to this L.P.A. in brief are that Fateh Muhammad, the deceased refugee right holder, was the common ancestor of the parties. He owned land in Patti Town (now in India). He had two sons namely Sultan Muhammad respondent No. 2, Nabi Bakhsh, since deceased and one daughter Mst. Ghulam Fatima respondent No.
3. His son Nabi Bakhsh died in the last week of April, 1944 in Lahore leaving behind two sons namely Zafaryab Ali and Nasir Ali, the appellants herein, widow Mst. Sardar Begum respondent No. 4 and 4 daughters respondents Nos. 5 to 8. On 1-5-1944 Fateh Muhammad executed a "Will", the translation of which is Annex. 'A', wherein, he declared that "Sultan Muhammad is the owner of 1/2 share of my property of every kind and Zafaryab Ali and Nasir Ali, the sons of late Nabi Bakhsh, the aforesaid are the owners of the other 1/2 share. Therefore, to make a "Will" that after my death, my son Sultan Muhammad will be the owner of 1/2 share of my entire agricultural land situated in Patti Town and Zafaryab All and Nasir Ali, sons of my son Nabi Bakhsh will be the owners of others 1/2 share. After the death of my son Nabi Bakhsh, his sons Zafaryab All and Nasir Ali, aforesaid have no source of earning their livelihood. Therefore, I feel myself duty bound to make some arrangement for them immediately, with this view, I have executed this "Will", deed and in pursuance of the same view, I am going to get my agricultural land separated through partition in order to make gift of one-half share of my said agricultural land in favour of Zafaryab Ali and Nasir Ali, both the sons of my late son Nabi Bakhsh and to make gift 1/2 share in favour of my son Sultan Muhammad so that if they desire, they may even sell land for the purpose of their nourishment and education etc." In the end of this "Will", deed a special note which reads as follows was also given.
"Moreover, I want to reduce it to writing that as the Shariat gives the daughters their genuine share, therefore, I also made "Will" to the effect that after my death, it will be the duty of my son Sultan Muhammad and Zafaryab All and Nasir Ali, the sons of my late son Nabi Bakhsh that they will give 1/5th share of the said land or of its price in lump sum to Mst. Ghulam Fatima who is my daughter from the womb of my late wife Mst. Ferozan. Otherwise, they will be held responsible on the day of resurrection."
' After partition, Fateh Muhammad came over to Pakistan and died in December, 1947. It appears that in the year 1951, Sultan Muhammad (son) and Mst. Ghulam Fatima (daughter) of late Fateh Muhammad filed claim forms for agricultural land abandoned by Fateh Muhammad in Patti Town (India), consequently on 28-6-1952 Mutation No. 3 of inheritence of Fateh Muhammad was sanctioned in favour of Sultan Muhammad and Mst. Ghulam Fatima to the extent of 2/3 and 1/3 respectively. On this Zafaryab All appellant applied for the review of that mutation on the basis of "Will". The Assistant Rehabilitation Commissioner, after having obtained necessary permission reviewed the same, holding Sultan Muhammad entitled to 2/5th, Mat. Ghulam Fatima to 1/5th, Zafaryab All to 1/10th and Nasir All to 1/10th of the inheritence. Aggrieved by this decision Sultan Muhammad filed appeal which was dismissed on 9-5-1982. Thereafter, Sultan Muhammad, Mst.
Zubeda Begum respondent No. 5 and Mst. Saeeda Begum, respondent No. 6 filed separate revision petitions before the Additional Commissioner (Multan) who vide his order dated 25-7-1963 accepted the 3 revisions. He ignored the "Will" totally and found that the heirs of Fateh Muhammad deceased have to be determined with reference to paragraph No. 46 of the Rehabilitation Settlement Scheme. He, however, modified the order of the Deputy Rehabilitation Commissioner dated 9-5-1962 by giving direction that the mutation of the Estate of Fateh Muhammad should be sanctioned in the name of Mst. Ghulam Fatima 1/5th share, Sultan Muhammad 2/5th, Mst, Saeeda Begum 1/20th, Mst. Zubeda Begum 1/20th, Mst. Zohra Begum 1/20th, Mst, Mushtari Begum 1/20th, Zafaryab Ali, 1/10th, and Nasir All 1/10th. It is to be noted that by this order, the share have been given to the sons, daughters grand-sons and grand daughters i.e., the daughters and the sons of Nabi Bakhsh who had died in the lifetime of Fateh Muhammad. It appears that the entitlement of Mst. Sardar Begum widow of Nabi Bakhsh was not considered. Feeling dissatisfied, Zafaryab All and Nasir Ali, the sons of Nabi Bakhsh challenged the above order passed by the Additional Settlement Commissioner through writ petition which was dismissed with the observation that Mst. Sardar Begum respondent No. 4 widow of Nabi Bakhsh who appears to have not been given her share inadvertently may get shares rectified by Settlement Commissioner if so advised. Hence this letter Patent Appeal.
3. The learned counsel has contended:-
(i) That the Additional Settlement Commissioner and the learned Judge in Chamber have excluded "Will", without legal justification inasmuch as the same at least to the extent of 1/3rd was very much effective and operative on the death of Fateh Muhammad. The learned counsel explains that since Rehabilitation and Settlement Laws are of peculiar nature and have to be operated notwithstanding anything to the contrary in any law for the time being enforce, the allotment rights in Pakistan can be substituted in the "Will" in place of specific land left by the testator in India.
(ii) That though Fateh Muhammad, the refugee right-holder has lost his agricultural land in India, yet for the special purpose of making allotment his inheritence has to be governed in Pakistan in accordance with the Shariat Laws as envisaged by paragraphs Nos. 46, 46-A of the Rehabilitation and Settlement Scheme and as such after the transfer of 1/3rd of the agricultural property in accordance with the "Will", the rest of the property could be given to the heirs under paragraph No. 46 of the Scheme because the term inheritence, in para. No. 46 includes testate as well as intestate succession, therefore, the appellant claim on the basis of "Will" could not be excluded.
As against this, the learned counsel for the respondents has vehemently defended the impugned judgment and while doing so he adopted almost same reasons as given by the learned Single Judge.
4. From the record we find that the execution of "Will" (translation Annexure, "A") in the year, 1944: the specific relations of the parties with Fateh Muhammad; their rights of inheritance; the fact that the subject of "Will" i.e. agricultural land had been abandoned by Fateh Muhammad in India 4 months prior to his death in Pakistan and the same was subject to the evacuee laws of India, are the admitted facts of the case. To our mind, the crucial question which is to be resolved first, is, as to the effectiveness of the "Will" at the time of the death of Fateh Muhammad. After having considered the arguments advanced by the learned counsel for the parties, we are inclined to hold that A since the subject-matter of the "Will" having been left behind in India, the same was no more under the disposing power of the testator and was to be dealt with in accordance with Indian evacuee laws. It can, thus be safely said that subject of "Will" stood extinguished at the time of the death of Fateh Muhammad. It is now, well-settled that a "Will" can hold good only with respect to the testator's property and operates from the time of his death and upon his property being extinguished, the bequest become null. We further find that the arguments of the learned counsel for the appellants that although the land was no more under the disposing power of Fateh Muhammad, yet the evacuee laws in Pakistan gave him right of allotment which in fact is in lieu of the land left by ,him in India, have been elaborately dealt with in para. No. 5 of the judgment of the learned Single Judge, the same may be reproduced with some advantage.
"All these authorities go to show that the allotment rights cannot be substituted in the will in place of the specific land (bequeathed by the testator) left and abandoned by him in India. The two are altogather different properties. One was the material property itself and the other is merely a grant of a sort of compensation for the loss suffered by the testator on account of having left the property in India. There is no indication in the will that it is to operate on all types of properties to which the land in India was to be converted here in Pakistan or in India. In this view of the matter. I am of the opinion that the will with regard to property situated in India deemed after the migration of Fateh Muhammad to Pakistan."
' We do not find any fault with the view point of the learned Single Judge and no exception can be taken to it.
5. For what has been stated above, we are convinced that in the circumstances of the case in hand, the "Will" having lost its effectiveness, it could not be implemented in any manner on the death of the testator and as such there was no other alternative but to determine the heirs of Fateh Muhammad in accordance with paragraph No. 46 of Rehabilitation Settlement Scheme. That being so, the contentions raised by the learned counsel collapse. Even otherwise, letter patent appeal is not an appeal in the strict sense. It may be more aptly described as an internal arrangement of the Court for reviewing its own decision given in the first instance by one member of the Court. In the instant case, we see that the learned Single Judge has given an elaborate and authoritative judgment after applying his mind to the factual aspects of the case and thrashing out the relevant law. Resultantly, this appeal is dismissed leaving the parties to bear their own costs.
Letters patent .