1. HAMOODUR RAHMAN, C. J. This appeal, by special leave, is directed against an order of a Division Bench of the former High Court of West Pakistan, Lahore Seat, dismissing in limine a Writ Petition filed to challenge the order of a Member, Board of Revenue, in certain mutation proceedings.
2. The dispute related to certain lands confirmed in the name of one Mst. Fatima in village Nizampur in the District of Multan. The said Mst. Fatima was the widow of one Syed Ghulam Shabbir, son of Syed Irshad Ali, who died 45 years ago in Patiala State in India. On the death of Syed Ghulam Shabbir, his properties in Patiala, it is alleged, were mutated in the name of Mst. Fatima, his widow, under custom.
3. After Independence Mst. Fatima migrated to Pakistan, and it is alleged that she filed claims here in respect of the properties of her husband left behind in India. She was allotted lands both in village Nizampur in Tehsil Kabirwala, District Multan, and village Daftoo in Tehsil Qasur, District Lahore.
4. These allot--ments were confirmed on the 30th of June 1954 and on the 12th of December 1957 respectively. Thereafter, Mst. Fatima died on the 25th of July 1964. The present appellants who are the real brothers of Syed Ghulam Shabbir; the respondents Nos. 3 to 7, who are the descendants of the brother of Mst. Fatima; and respondent No. 2 Mst. Hassan Zamani, the daughter of respondent No. 3, applied for mutation of their respective names as heirs of Mst. Fatima. The respondent No. 2, Mst. Hassan Zamani, claimed on the basis of a registered will said to have been executed in her favour on the 24th of May 1951 by Mst. Fatima, bequeathing all her properties, obtained in lieu of the properties left behind in Patiala, to the said Mst. Hassan Zamani.
5. The Assistant Collector, after considering the evidence led before him, came to the conclusion that Mst. Fatima, widow of Syed Ghulam Shabbir, was childless and, according to custom, got only a life estate in the properties of her husband who was, on the admission of all parties, an "Anna Asharia"
6. Shia. The mutations were accordingly recorded in the names of the present appellants.
7. Mst. Hassan Zamani, respondent No. 2, alone went up in appeal before the Collector, but the latter affirmed the decision of the Assistant Collector, on all points and dismissed the appeal. Mst.
8. Hassan Zamani then went up in revision to the Additional Commissioner, Revenue. The latter reversed the decisions of the Assistant Collector and the Collector, holding that the estate which Mst. Fatima acquired in the lands confirmed in her favour in Pakistan was of an absolute nature, and hence the inheritance will go to the heirs of Mst. Fatima, deceased, and not to the reversioners of her husband. He did not give any 'decision as regards the validity of the will in favour of Mst.
9. Hassan Zamani but remanded the case back to the Circle Officer for fresh decision in the light of his remarks.
10. From this order of the Additional Commissioner, Revenue, the present appellants went up in second revision before the Member, Board of Revenue, who, relying on the Full Bench decision of the Lahore High Court in the case of Sher Muhammad v. Additional Settlement and Rehabilitation Commissioner (PLD 1968 Lah. 234), dismissed the revision petition. They then went up to the High Court in the writ jurisdiction by Writ Petition No. 487 of 1968, but the same was dismissed in limine.
11. Leave was, however, granted in this case on the 24th of May 1968 to consider the correctness of the Full Bench decision of the High Court.
12. Learned counsel appearing for the appellants contends that, since the Full Bench decision has now been overruled by this Court in the case of Additional Settlement Commissioner (Land) Sargodha v. Muhammad Shafi and others (PLD 1971 SC 791), the present appeal should be allowed and the order of the Assistant Collector restored, as Mst. Fatima, being a childless widow of Syed Ghulam Shabbir, who was an "Asna Asharia" Shia, could not inherit any portion of the lands of her husband under the Shia Law.
13. The present dispute relates only to the lands of village Nizampur in the District of Multan, as the attestation of mutation, irk respect of the lands in village Daftoo in Tehsil Qasur, was, it appears, not challenged, and that attestation has now become final.
14. The appellants also complain that the mutations were reviewed on the 26th of July 1966, in pursuance to the order of the Additional Commissioner, Revenue, without any notice to them, but this point has lost its importance now, because, they were fully represented both before the Additional Com--missioner (Revenue) as also before the learned Member, Board of Revenue, who confirmed the order of Additional Commissioner (Revenue). The mutation merely gave effect to these orders.
15. Learned counsel for the respondents, however, contend that the meaning of the words "childless widow", is not free from doubt and this question has not been decided by any of the Revenue Authorities, at any rate, so far as Mst. Fatima is concerned. Learned counsel contends that "childless" means one who has had no issue at all and not merely a person who has no living issue at the time of her husband's death.
16. Learned counsel for the respondents also contend that the Shia Rule of inheritance relied upon by the appellants for the exclusion of a "childless widow" should not be accepted, as it is not in conformity with the text of the Holy Quran.
17. In support of the first contention, reliance is placed on the observations of Mr. Asaf A. A. Fyzee in his "Outlines of Muhammadan Law", Third Edition, at page 438, which read thus:- "A childless widow does not take her share from the immovable property of her husband ; but she is entitled to her proper share in the value of household effects, trees, buildings, and movable property, including debts due to the deceased. The exact meaning of the expression 'childless widow' is in doubt. Does it mean a woman who has had no children, or does it merely imply that the widow has no children living at the time of the death of her husband? This question has not yet been finally settled."
18. Reference is also made in this connection to Tyabji's Muhammadan Law, Third Edition, page 908, where, after quoting Baillies' translation of the 'Sharai'ul-Islam', the learned author observes as follows:- "This passage indicates a conflict of opinion. If the translation is accurate the rule is limited to cases where the widow has had no child by the deceased. But the Allahabad High Court has followed Syed Ameer Ali's dictum that "when she has no child, or when a child was born but died before the decease of her husband, then she is entitled to 1/4 share in the personal estate only, including household effects, trees, buildings etc., she takes no interest in the landed property. On referring to the mere wording of the Shahrai-ul-Islam in the original Arabic, it seems that the point may not be without some doubt; and there is little to throw light on it even in the very exhaustive commentary, the Jawahir-ul-Kalam."
19. Nevertheless, it must be pointed out that the same learned author then goes on to give the general principle in the following words:- "The general principle is that in matters relating to inheritance, deceased persons do not affect the rights of the living, under which, unless the widow has a child surviving her deceased husband, she must rank as childless."
20. Learned counsel also relies on Shama Churun Sircar's Tagore Law Lectures on Muhammadan Law wherein, at page 260 in para--graph CLXXXV, the learned author writes:- "CLXXXV------------------------------------------- When a wife or widow has had a child (born of her own womb) by the deceased, she inherits out of all that he has left. But,- CLXXXVI.-If there is no such) child, she takes nothing out of the (deceased's) land (arz), but her share of the household effects (alat), and buildings is to be given to her."
21. It is interesting to note that, in the case of Fazal Rab v. Khatun Bibi and others (I L R 25 All. 29), Justice Mahmood, in a very elaborate and learned judgment, after examining the original Shia Arabic texts, came to the conclusion that "childless" in this context meant "a woman who has never had a child from her deceased husband".
22. The difference of opinion has arisen due to the translation of the Sharai-ul-Islam given by Baillie in his "Digest of Muhammadan Law", Part II, at page 295. The translation reads thus:---- "When the wife has had a child by the deceased she inherits oat of all that he has left; and if there was no child she takes nothing oat of the deceased's land, but her share of the value of the household effects and buildings is to be given her. It has been said, however. That she is to be excluded from nothing except the mansions and dwellings; while Moortuza (may God be pleased with him) has expressed a third opinion to the effect that the land should be valued and her share of the value assigned to her. But the first opinion is that which appears to be best founded on traditional authority."
23. Reading this along with the translation given by Shama Chnrnn Sircar, Mahmood, J. Entered upon an elaborate examination of the Arabic texts in the case of Fazal Rab v. Khatun Bibi and others. It appears however, that the correctness of the translation given by Baillie was challenged much earlier before the Calcutta High Court by Syed Ameer Ali himself, who was then appearing for one of the parties. In the case of Mst. Asloo v. Mit. Umdutoonnissa (20 W R 297). And ultimately the translation given by the Official Translator of the Court was accepted as correct by all the parties.
24. Mr. Syed Ameer Ali, in his book on "Muhammadan Law", Volume II, gives the following categorical opinion in para. 13 at page 113 of his Book:- "The husband takes a share in all kinds of property left by his deceased wife, and so does the widow when she has a child "born of her womb", or child's child. But when she has no child, or when a child was born to her, but died before the decease of her husband, then she is entitled to a fourth share in the personal estate only, including household effects trees, buildings, etc. She takes no interest in the landed property."
25. The authorities cited were Jam'a-ush-Shittat and a number of cases in which this view has been taken.
26. Though Tyabji in his book on "Muhammadan Law" has taken the view that the translation given by Baillie indicates a conflict of opinion, yet his own enunciation of the general principle appears to support the view of Syed Ameer Ali. The translation given by Syed Ameer Ali is also supported by the Urdu text of the Jame-ul-Ahkam at page 73. In fact, the English translation appears to have been made from this text for which also the authority cited is Jam'a-ush-Shittat.
27. K. P. Saxena in his book on "Muslim Law" 3rd Edition, at page 862 has also taken the view that:- "Under the Shia law, claims of a childless wife, that is, of a wife who has had no child or when the child, was born and died in the lifetime of her husband, is not the same as that of a wife having a child. The childless wife 1% entitled to get one-fourth share in the personal estate of the deceased husband Including the value of household effects, building and trees, but cannot claim any share to the immovable property of her husband."
28. N. J. Coulson in his book on "Succession in the Muslim Family" at page 113 also opines that:-- " "Childless' here means, according to the texts, that the surviving widow is without a child, alive or in embryo and subsequently born alive, at the time succession to the estate opens.A wife, therefore, suffers from this disability if she has had children by the prepositas who have died before the succession opens or if her only children are those of another marriage. The rule is clearly aimed at ensuring, to a large degree, that lands remain within the husband's family. A widow succeeds to a share in her husband's lands only when that share, or the greater part of it, will in the normal course of events be transmitted to the husband's issue upon her decease."
29. The view taken by Syed Ameer Ali is also supported by the decision of the Judicial Committee of the Privy Council in the cases of Aga Mahamed Jaffer Bindaneem v. Koolsom Bee Bee (24IA 190) and Parbati v. Muzafar Ali Khan (I L R 34 All. 289), where the view was taken that, if the widow had not borne a daughter to her deceased husband who survived him, then she would take no title to any share in the properties of the deceased husband.
30. The above analysis given by the learned authors indicates that the controversy has arisen as a result of the translations given by Baillie in his "Digest of Muhammadan Law" and by Shama Churun Sircar in his "Tagore Law Lectures". The correctness of Baillie's translation was dinectly in issue in the case of Mst. Asloo v. Mst. Umdutoonnissa and the Official Court Translator's version, which coincides with that given by Syed Ameer Ali in his book on 'Muhammadan Law", Volume II, was accepted. In the circumstances, the question arisesas to whose translation should be preferred. If we have to make a choice between Syed Ameer Ali on the one hand and Baillie and Shama Churun Sircar, both non-Muslims, on the other, then we can have no hesitation in accepting the translation of Syed Ameer Ali, an eminent Shia Scholar himself, who, sub--sequently, rose to b-.Come a member of the Judicial Committee of the Privy Council. We see no reason to doubt the correctness of the translation given by Syed Ameer Ali of the 'Sharai-ul-- Islam', since it also conforms to the general principle enunciated by Tyabji in his book on 'Muhammadan Law' and Coulson in his book on 'Succession in the Muslim Family'.
31. Coming now to the next point, we find, that learned counsel appearing for the respondents place strong reliance on the relevant text of the Holy Quran itself and urge that, where there is a variance between the text and the subsequent traditions, it is the text that must prevail. There can be no doubt about it that the highest authority must be attached to the text of the Holy Qur'an as the primary source of law. It is only after the text that the traditions of the Holy Prophet are to be ranked as the sources of law. The relevant text occurs in Ayat 12 of Sura An-Nisa which is quoted below:--- - The English translation of the above passage, as given 4Y S. V. Mir Ahmed Ali, according to the version of the Holy Ahlul-Bait is :---- "And for them shall be a fourth of what ye leave if ye have no issue, and if ye have an issue then for them (shall be) the eighth of what ye leave after paying the bequest ye had bequeathed and the debt;"
32. "In what ye leave, Their share is a fourth, If ye leave no child; But if ye leave a child, They get an eighth; after payment Of legacies and debts."
33. The translation of Marmaduke Pickthall reads as follows;- "And unto them belongeth the fourth ofthat which ye leave if ye have no child, but if ye have a child, then the eighth of that which ye leave, after any legacy ye may have bequeathed, or debt (you may have contracted), hath been paid." "and they shall have the fourth of what you leave if you have no child, but if you have a child then they shall have the eighth of what you leave after (payment) of a bequest you may have bequeathed or a debt."
34. The Urdu translation of the same text, as given by Hazrat Maulana Ashraf Ali Saheb Thanvi, is to the following effect; The translation given by Sahebzada Peer Muhammad Karam Shah Saheb, Sajjad-e-Nasheen Bhairah, in his Ziaul Qur'an is as follows:- It will be observed that in the translations, quoted above, there is hardly any difference and none of these translations appear to make any difference between a " childless " and a "childful" widow.
35. Indeed, they seem to indicate that if the propositus dies issueless then widow gets a fourth after payments of debts and legacies. There is nothing in this text to indicate that the Holy Qur'an made a distinction between a "childless" and a "childful" widow.
36. Learned counsel, appearing for the respondents, has also challenged the division of the assets of the deceased propositus into agricultural lands and other classes of properties. He maintains that the Holy Qur'an makes no such distinction and therefore the distinction sought to be drawn between various classes of properties by the Shia jurists for the exclusion of the widow from inheritance appears to be unwarranted. For this purpose he has also relied on the dictionary meaning of the word 'Tarkah' to show that no such distinction can be drawn. "Tarkah" includes both movable and immovable heritable properties. Hughes in his "Dictionary of Islam" defines "Tarkah" as "a legacy, a bequest and inheritance."
37. The meaning given by Imam Raghib Ispahani and in Al-Manjid is to the same effect.
38. Nevertheless, it appears that according to the Shia Fiqh the principle appears to be well-settled that a childless widow is deprived of her share of inheritance in the lands of the deceased. A Thus, in the "Bist Babi" of Jamia Abbasi at page 383, the 21st rule of exclusion mentioned is as follows :--- ---- In the Sharayeh-ul-Islam, Beirut Edition, page 191, the rule is stated as follows; The English translation of the above passage is as follows: "The fifth case is that of a wife having children by the deceased. She inherits oat of all of his property. If she has no children she shall not at all participate in land, and shall get her share out of the value of the utensils and buildings, and it is said by some that she is not debarred from anything except the houses and buildings. Murtaza gives a third report, that is, the land should be valued and her share given out of the value thereof. The first is most obvious (i. e., authority)."
39. The rule laid down in "Durus" Book on Inheritance, "Jawahir--ul-Kalam" and "Jami-ush-shattat", Book on Inheritance, is the same. All these texts will be found conveniently collected together with their proper translations in the case of Fazl Rab v. Khatun Bibi. They all uniformly indicate that the childless widow does not inherit in the land. Mahmood, J. Of the Allababad High Court did not doubt the correctness of this rule though he was not satisfied with the meaning of the word "childless" as given by Syed Ameer Ali. The view of Murtaza is the solitary view which seems to indicate that, even though such a widow is not entitled to a share in the lands, yet a valuation should be made of the lands and a fourth of that value should be given to her. Other Shia jurists seem to differ from this and take the view that she is not entitled even to this share of the value.
40. It seems that this question was raised sometime back in the West Pakistan Legislative Assembly but no amendment was made as it was opposed by the Shia community. In that connection, one Allama Mufti Syed Tyeb Agha Musavi Jazairi seriously controverted the argument that the Shia rule was against the text of the Holy Qur'an by maintaining in a pamphlet entitled "Beevi Ki Meeras" that the proper translation of the Arabic text of the Holy Qur'an quoted earlier, is as follows :---- This translation, it will be noticed, does not tally with the other translations which we have given above; but the learned author has also maintained that the rule excluding a childless widow from inheriting agricultural lands is based on the true traditions of Imam Jafar Sadek, the founder of the Shia School. Indeed, the learned author has cited as his authorities for this rule Muhammad Bin Muslim. Biyah Al-Zarti and Zajar Sayeb and also cites Abdul Malek as authority for the following tradition :------ It is said that Imam Muhammad Baqir also summoned the Book of Hazrat Ali. This was brought by Imam Jafar Sadek and in it was found written that for widows there will not be any share in the lands of their deceased husbands. This was written in the hand of Hazrat Ali himself which was recognised by Imam Muhammad Baqir.
41. But even according to these traditions it will be noticed that no distinction has been made between "childless" and "childful" widows. The denial is to all widows and the reason given for this rule is that, since the widow does not belong to the family of the deceased husband, she is excluded from inheritance in the lands in order to avoid disputes which are likely to occur if she remarries and thus introduces an outsider in the family.
42. The Shias claim that the differences between Shias and Sunnis arise as a result of their different interpretations of some of the Quranic texts. The Sunnis, it is said, accept the interpreta--tions given by the four Imams, namely; Imam Abu Hanifa, Imam Malek, Imam Ahmad and Imam Shafi'e whereas the Shias rely on the Interpretations of the Holy Qur'an given by only the Ahl-e-Bait (Members of the Household of the Holy Prophet) beginning with Hazrat Ali and ending with the last Imam and, as such, they claim that their interpretation is likely to be more correct. No one, they maintain, could have known the Holy Qur'an better than Hazrat Ali himself who in his Book had recorded these interpretations according to the instructions of the Holy Prophet himself.
43. In view of this difference in the interpretation of the Quranic text itself, we feel that it would not be proper on our part at this stage to attempt to put our own construction in opposition to the express ruling of commentators of such great antiquity and high authority. To depart from a rule of succession which the Shia community has universally been following ever since the days of Imam Jafar Sadek, as evidenced by the unanimous opinions of the Shia jurists on this point, would be wrong. It is not open to us to change a settled rule of succession, having the force of Ijma' behind it at this late stage. If a change is desired to be made this work should be undertaken by the Legislature itself after consulting the Shia Community. We can only point out that the Urdu translation given by Allama Mufti Syed Tyeb Agha Musavi Jazairi does not tally with the English translation given by S. V. Mir Ahmed Ali, another eminent Shia scholar.
44. This rule has, it appears, also been consistently followed by the Courts in this subcontinent since the decision of the Calcutta High Court in Mst. Asloo v. Mst. Umdutoonnissa. It was affirmed by the Privy Council in1897 in the case of Aga Mohamed Jafer Bindaneem v. Koolsom Bee Bee. The Allahabad, Madras and Patna High Courts have also followed it in Umardaraz Ali Khan v. Wilayat Ali (ILR19All.169), Durga Das v. Nawab Ali (ILR48All.557), Mir Ali Hussain v. Sajuda Begum (I L R 21 Mad. 27) and Syed Ali Zamin v. Syed Muhammad Akbar Ali Khan (I L R 7 Pat. 426). Indeed no decision to the contrary has been brought to our notice.
45. We would, therefore, allow this appeal, set aside the order of the High Court and declare that on the death of Mst. Fatima a childless widow, her life estate terminated and the bequest made by her in favour of Mst. Hassan Zamani in respect of the Niuzampur lands came to an end. According to the Shia Law, even after the termination of her limited estate under custom, she acquired no share in the landed properties obtained by her 9n lieu of her husband's estate left behind in India, according to the Shia Law.
46. This decision will not, however, govern the lands in village Dafto, Tehsil Qasur, the mutation in respect whereof, has now become final.
47. In view of the fact that as a result of this decision the respondents will not get any share in the lands of village Nizampur, we make no order as to the costs of this appeal.