' This Revision petition, under section 115 of Civil Procedure Code by Sardar Muhammad and 21 others, is directed against the judgment and decree dated 18-10-1989 whereby learned Additional District Judge, Bahawalnagar dismissed petitioners' appeal, allowed cross-objection filed by Faqir Muhammad and 7 others/respondents and so upheld the decision of Civil Judge, Ist Class, Chishtian dated 25-2-1989 (although on different ground that is res judicata)/dismissing the petitioner's suit.
2. In order to appreciate the contentions of the parties, it is necessary to set out the facts, leading to litigation, in detail. These are: That Nabi Bakhsh, the original right-holder, was owner of agricultural land situated in various Revenue estates in East Punjab. In the wake of partition, he came to Pakistan and submitted five claims for land so abandoned by him in different villages of India. The claims bearing Nos.109722, 109723, 109728, 109729, 109727 were verified on different dates falling between 23-3-1952 and 14-1-1957. The total verification of these claims was calculated to be 4,322.364 produce index units. The aforestated Nabi Bakhsh died in the year 1957 leaving behind Abdul Aziz (son) and petitioners Nos.1 to 6, who were the sons of his predeceased son Rehmatullah.
Abdul Aziz/respondent No,1 and Muhammad Ali made a report of his death to concerned Patwari on 12-2-1957. On 13-2-1957, the Revenue Officer-cum-Settlement Officer sanctioned mutation in favour of Abdul Aziz and the legal heirs of Rehmatullah in equal shares within the terms of para. 46 of Rehabilitation Settlement Scheme/hereinafter referred to as the Scheme. Although petitioners Nos.1 to 6 had relied upon a registered deed of Will made by Nabi Bakhsh dated 23-12-1953, yet the Revenue Officer failed to take its notice and attested the mutation under para. 46 of the Scheme.
On 11-3-1957, vide RL-II No,2, suit land equivalent to 1500.12 units was proposed by the Settlement Authorities in favour of Abdul Aziz and petitioners. The same was confirmed on 1-5-1957.
Muhammad Ali, herein petitioner No,5 paid the rehabilitation fee on 10-8-1958 to the extent of 1/2 of land allotted to Nabi Bakhsh. After the lapse of about 7-1/2 years, Abdul Aziz/respondent No,1, filed revision petition against Mutation No,65 dated 30-4-1965, which was dismissed by Settlement Commissioner, Bahawalpur vide order dated 3-9-1965. Against this order Abdul Aziz filed Constitution Petition No,806/66 which was allowed by learned Single Judge of the High Court vide order dated 26-9-1975, holding that as Nabi Baldish had died before seeking satisfaction of his claim; that his claim was to devolve upon his legal heirs under Para.46 of the Scheme without any deviation. Against this decision petitioners preferred appeal which was dismissed by the Supreme Court on 6-10-1987. It will be worthwhile to note para.7 of the decision of the Supreme Court which is as follows: "7. Once it is established that the instructions dated 14-4-1954 have statutory force, and there is no reason to hold to the contrary, there can be no doubt about its applicability to the case in hand. It clarifies that the instructions contained in paras. 46, 46-A and 67 of the Scheme should be applied only to the cases of inheritance of such refugee right-holders as had died either in India or Pakistan before they could file their claim forms for allotment of land under the Scheme. The case of Nabi Bakhsh was one of death after his claim was filed and duly verified. The instructions further provided that when once a claiment had filed his claim and died thereafter before securing any actual allotment, the normal rule of succession laid down by the Shariat Law should be applied in its entirety without any deviation. As Nabi Bakhsh had died after filing and verification of his claim, Shariat Law without any deviation was to be applied to him. The deviations provided for in paras.
46 and 46-A of the Scheme namely, the inheritance of the sons of predeceased son or daughter would not, therefore, apply. Till the confirmation of land and the payment of Rehabilitation fee, the Rehabilitation Authorities would be competent to sanction mutations of inheritance but in applying the law, they will follow Shariat Law without deviation where death took place after filing the claim form, Band in other cases of death taking place before filing the claim, Shariat Law with the deviations indicated in paras. 46 and 46-A shall be applied."
3. Feeling still dissatisfied, petitioners sued for seeking declaration to the effect that Nabi Bakhsh had executed a registered deed of Will on 24-8-1953 (Exh. P/1) by which he had bequeathed 1/2 of the agricultural land allotted to him in Pakistan in favour of the legal heirs of his predeceased son Rehmatullah,; that the petitioners irrespective of the decision of the Supreme Court, were entitled to receive 1/3rd of the suit land measuring 483-Kanals 14-Marlas (fully described in the plaint); that Mutation No,437 and subsequent mutations attested on the basis of the above mutation, were null and void. The suit was resisted. It is necessary to mention over here that Muhammad Ali, who is the son of Rehmatullah, was impleaded as defendant on the ground that he was living in Province of Siridh and so was not joined as plaintiff. Respondents Nos.7 to 7 (viii) are vendees from. Abdul Aziz.
Respondents Nos.1 to 6, in their written statement, contended that the matters raised in the suit were directly and substantially in issue between the same parties in Writ Petition No,806/66 which was allowed by the learned Single Judge of the High Court vide order dated 26-9-1975,; that the appeal filed by the petitioner was dismissed by the Supreme Court vide decision dated 6-10-1987 (Exh. P8). In view of above, according to respondents Nos.1 to 6, the suit of the petitioners was barred by the principle of res judicata; that the registered Will dated 24-8-1953 was a forged instrument and was of no lawful effects.
4. On the divergent pleadings of the parties, as many as 14 issues were framed which are not necessary to be recapitulated as learned counsel for the parties focussed their energies on assailing the proprietary of findings of two Courts below on Issues Nos.2 and 5. These are as follows: "2. Whether the suit is barred by principle of res judicata? OPD 1 to 6.
5. Whether the impugned Will is against law and Shariat ? OPD 1 to 6."
' In order to prove their respective pleas, the petitioners examined four witnesses in addition to Muhammad Shafi, who entered into witness as P.W.S. P.W.1 Abdul Majeed proved the signatures of his father Abdul Aziz deceased, who had scribed the document. Zulfiqar Ahmed, P.W.2 proved the signatures of his father Shah Muhammad, who had signed the questioned document as a marginal witness. Muhammad Shafi also proved the disputed document as a marginal witness.
P.W.4 Muhammad Munir proved the signatures of his father Ch. Noor Muhammad/Lambardar, who had identified the parties. Before the Registrar. Muhammad Shafi, one of the plaintiffs, as P.W.5 supported and proved the plaint. The petitioners also tendered into evidence following documents:-- "(1) Original deed of Will registered (Exh. P.1) on 29-8-1953.
(2) Mutation No,2. (Exh. P.2).
(3) Copy of Mutation No,437.
(4) Copy of Mutation No,326 (Exh. P.4).
(5) Copy of Jamabandi for 1985-86 (Exh. P.6).
(6) Copy of Jamabandi for 1981-82, (Exh. P.7).
(7) Copy of judgment of Supreme Court (Exh. P.8) of Pakistan.
(8) Copy of Jamabandi (Exh. P.9).
(9) Copy of Khasra Girdawari for 1986-87 (Exh. P.10).
(10) Copy of Mutation No,216 (Exh. P.5).
' Respondents relied upon two witnesses namely D.W.1 Fateh Muhammad and D.W.2 Muhammad Rashid. Muhammad Rashid, while deposing on oath before the Court, did not utter a single word/challenging the execution of questioned document/Will (Exh. P/1). He stressed that the aforestated document was produced by the sons of Rehmatullah before Revenue Officer but without any effect; that they had produced this document before High Court as well as Supreme Court but these Courts did reject that document. The respondents tendered into evidence following documents:
(1) Copy of Mutation No,208.
(2) Khasra Girdawris for years 1974 to 1988.
(3) Jamabandi for year 1985-86.
5. Upon the consideration of evidence, so adduced by the parties, the learned Court of first instance found that the suit, filed by the petitioners, was based upon registered deed of Will dated 24-8-1953; that claim based upon that document was neither raised in the Constitution petition nor was dealt with by the learned Single Judge of the High Court and so this suit filed by petitioners was not hit by the principle of res judicata. On the question of execution of questioned document, the learned first Court came to the conclusion that Will related to property/agricultural land abandoned by Nabi Bakhsh in India and so it was wholly null and void and could not be enforced in Pakistan. On this finding, the learned Trial Judge dismissed the suit. Feeling. Aggrieved the petitioners preferred appeal. Respondents also filed a cross-objection with regard to finding of the first Court on the issue of res judicata. The learned Appellate Court did not agree with the conclusions of the Court below on the question of res judicata and held that the suit was hit by decision of High Court in Writ Petition No,806/66 and by Supreme Court in Appeal No,157/81 and so the suit was barred by the principle of res judicata. On this conclusion, the learned Court of appeal accepted the cross-objection. Filed by respondents and dismissed the appeal vide a consolidated decision dated 18-1-1989. This is how this revision petition has come to this Court.
6. This Revision petition was fiercely and vehemently argued by both sides. The points raised by the learned counsel for the petitioners can be conveniently summerised as below: ' Firstly; that Mutation No,2 (Exh.P.2) dated 23-12-1957 was sanctioned by the Revenue Authorities with reference to Memo. No,4953/54/3917/R(L) issued on 14-4-1954 whereby the concession was given to the heirs of predeceased sons of the right-holder; that Abdul Aziz has challenged that basis of mutation before the High Court by saying that the inheritance of Nabi Bakhsh was to be governed by para. 46 without any deviational concession to heirs of predeceased sons of the right-holder under aforenoted memorandum; that the aforesaid writ petition was allowed and it was held that the memorandum dated 14-4-1954 was not applicable to the inheritance of Nabi Bakhsh and so the mutation was set aside; that on appeal this was the sole issue before the Supreme Court and the decision of the High Court was affirmed. The claim of the petitioners, on the basis of Will, was neither examined by the Revenue Authorities, nor by the High Court nor by the Supreme Court and so this claim was not a matter directly and substantially in issue in the proceedings before the High Court as well as before the Supreme Court. On this reasoning it was strenuously urged that the suit filed by the petitioners on the basis of registered Will, was not barred by the principle of res judicata.
' Secondly; that the principle of constructive res judicata was not at all attracted to the facts and circumstances of this case; ' Thirdly; that the petitioner had proved the execution of Will by overwhelming evidence. P.W.1, P.W.2, P.W.3 and P.W.4, proved the writing of Nabi Bakhsh on the questioned document. The aforesaid witness was subjected to cross-examination but nothing was extracted to demolish their testimony. Muhammad Shafi/one of the plaintiffs, entered the witness-box and proved the Will.
None of the respondents dared to cross-examine him on the question of the execution of questioned Will. Against the above evidence, the respondents examined two witnesses D.W.1 Fateh Muhammad and Muhammad Rashid one of the respondents/defendants as D.Ws. Muhammad Rashid, while appearing as a witness, did not say a single word with respect to the genuineness of the questioned document. He laid much stress upon the circumstances that the Will was produced by the legal heirs of Rehmtullah before the Revenue Officer, before the High Court and before the Supreme Court, but without any effect. He even admitted that sons of Rehmatullah were in possession of one-half of the suit land. On these circumstances, it was urged that according to the law of Muslim-Will the petitioners were entitled to 1/3rd of the suit land.
7. On the contrary, the learned counsel for the respondents, in reply, made the following submissions:
(i) That the petitioners did claim their share in the suit land on the basis of Will before the Revenue Authorities, then before the Settlement Commissioner then before the High Court in Constitutional jurisdiction and then before the Supreme Court, but in vain. On these facts it was suggested that the issue relating to Will was constructively in issue before the High Court as well as the Supreme Court and so, was decided by implication against the petitioners. In view of the decision of the High Court and the Supreme Court, according to the learned counsel, the suit filed by the petitioners was barred by the principle of res judicata. Reliance was placed on Muhammad Yaqub 7. Chief Settlement Commissioner (PLD 1965 SC 254), Muhammad Shafi v. Muhammad Bakhsh (PLD 1971 Lah. 148), Abdul Majid v. Abdul Ghafoor Khan (PLD 1982 SC 146) and Asif Jan Siddiqi v. Government of Sindh (PLD 1983 SC 46).
(ii) Without conceding that the Deed of Will was executed by Nabi Bakhsh, it was submitted that it related to the land abandoned by Nabi Bakhsh in India and this did not relate to the suit land. On this ground it was maintained that the Will was invalid, null and void and so was incapable of enforcement. Reliance was placed on Mirza Anwar Beg v. Mirza Ulfat Beg (PLD 1960 Lah. 265), S. Abdur Rashid v. Pakistan (PLD 1962 SC 42), Zafar Yab Ali v. Additional Rehabilitation and Settlement Commissioner (PLD 1968 Lah. 68), Akbar v. Sadiq (1972 SCMR 23) and Muhanunad Tufail v. Atta Shabbir (PLD 1977 SC 220).
8. From the foregoing narration of the facts, circumstances of the case and the rival contentions of the parties, the only two issues namely Issues Nos.2 and 5 emerge for adjudication. Issue No,2 is built upon the plea of res judicata, raised by respondents. Their case, in brief, is that the question of Will was considered and finally decided by the High Court in Writ Petition No,806/66 on 24-9-1975 and Supreme Court affirmed that decision on 21-6-1987 while disposing of C.A. No,157/81; that the above decision barred the suit filed by the petitioners. The case of the petitioners on the other hand, is that this question was neither directly nor constructively in issue before the High Court in the above-noted proceedings and so it was not decided within the terms of section 11 explanation
(iv) of the Code of Civil Procedure. There is an agreement between the parties that principles of general res judicata are applicable to suit wherein there is some decision rendered in Constitutional jurisdiction of High Court. The question, for consideration, is whether the claim of petitioners based upon Will was actually or constructively in issue before the High Court in Writ Petition No,806/66 and before the Supreme Court in C.A. No,157/81. The answer to this question lies in what is known as constructive res judicata as contained in explanation (iv) to section 11 of the Code of Civil Procedure, which is as follows:-- "Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
9. From the bare reading of this explanation, it becomes clear that this explanation means and ordains that parties to a suit/lis are required under the law to raise before the Court all grounds of their attack and defence which are available to them and must not reserve any ground for a subsequent suit as the piecemeal litigation shall tantamount to the destruction of principle of finality of litigation. This will also defeat the very object of principle of res judicata that the parties should not be allowed to remain in litigious circle endlessly. This doctrine was beautifully propounded in case of Dutchess of Kingstone (L.C. 801-8th Ed.). It will be highly worthwhile to reproduce that classic exposition: "From the variety of cases relative to judgments being given in evidence in civil suits. These two deductions seem to follow as generally true: first that judgment of a Court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another Court; secondly that the judgment of a Court of exclusive jurisdiction, directly on the point, is in like manner, conclusive upon the same matter between the same parties, coming incidentally in question in another Court, for a different purpose. But neither the judgment of a Court of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction nor of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment."
10. This principle came up for examination in number of cases before superior judiciary which are not necessary to be noted. However, I will note , some cases which are of decisive bearing on this case: ' In Kandunni v. Katimma (9 M.251; 3 Ind. Dec. (N.S.) 572) plaintiff and on a demise if 1856 which he failed to prove. A later suit based on a demise of 1835 was held to be not barred. In Girdhar Monardas v. Dayabhai Kalabhai (8 B. 174; 4 Ind. Dec. (N.S.) 489 (F.B.) plaintiffs sued to eject defendants, relying on certain lessee and failed, it being held that the lessee were not proved. A subsequent suit to eject defendants from their tenancy based merely on plaintiffs' ownership was held not to be barred. It was held that the several grounds in the two cases were not so connected as properly to admit of investigation and adjudication together. Zamorin of Calicut v. Narayanan Mussad (22 M. 323; 8 Ind. Dec. (N.S.) 230), is a case similar to Girdhar Manordas v. Dayabhai Kalabhai (8 B 174; 4 Ind. Dec. (N.V.) 489 (F.B.) In Tharikaikot Madathil Baman v. Thiruthiyil Krishmen Nair (29 M. 153; 16 MLJ 48 (F.B.) plaintiff sued on an alleged mortgage and failed. A later suit based on another mortgage in respect of the same property was held to be not barred. In Khater Mistri v.
Sadruddi Khan (34 C. 922) plaintiff sued to eject a tenant but failed, the defendant denying the tenancy and plaintiff failing to prove it. A later suit to eject defendant as a trespasser was held to be not barred. In Kura v. Madho (31 Ind. Cases 159; 68 P.R. 1915; 151 PWR 1915) plaintiffs sued as vendees but failed, being met with a sale-deed older than their own. A later suit by plaintiffs as reversioners for a declaration that the defendants' sale deed was not binding on them for want of consideration and necessity was held to be not barred. It was held that the question whether the earlier deed was invalid as against plaintiffs as reversioners was outside the scope of the first suit has laid, and that the importation of it into that suit would have made the suit one of a different nature and probably multifarious.
11. The principle of constructive res judicata came up for consideration before Division Bench of Lahore High Court in Parshotam v. Balwant (AIR 1929 Lah. 872). Dealing this question, Sir Shadi Lal, the then Chief Justice of Lahore High Court said:- "It will be observed that the doctrine of constructive res judicata, which finds expression in this explanation not only declares, that a matter which might and ought to have been made a ground of attack or defence shall be deemed to have been a matter directly and substantially in issue, but also implies that the matter shall be deemed to have been decided against the party who omitted to raise it. In other words, the result of the omission is that there would be not only a constructive issue in the suit, but also a constructive decision on that issue, against the party failing to set it up.
' It is, however, obvious that the former suit was based upon the allegation of possession and dispossession in respect of a specified plot of land, of which the plaintiff claimed to be the owner; and it is conceded that the land revenue assessed on that land was Rs,16 while according to the custom relied upon by him, he could get a plot of land corresponding to only Rs,14 in land revenue.
The cause of action in the present suit is wholly different from that in the former suit, but that fact alone does not take the case out of the purview of the doctrine of res judicata. In the former suit the plaintiff could, in the alternative ask the Court to fix maintenance and to give him maintenance in terms of landed property. The claim now put forward might have been made a ground of attack in the previous suit, but the question is whether it ought to have been made a ground of attack. My answer to this question is in the negative. The only right claimed in the former suit was the recovery of certain land from a trespasser, and I do not think that it was necessary for a complete and final determination of that right that the plaintiff should have asked the Court to adjudicate upon his right to maintenance and to allot to him a plot equivalent to Rs,14 in land revenue.
' The learned counsel for the parties have invited our attention to several decided cases, but a perusal of the reports shows that those cases proceeded upon their own peculiar facts and afford little or no guidance in the determination of the question before us. As observed by their Lordships of the Privy Council in Kameswa r Parshad v. Rajkumari Rattan Koer (1893) 20 Cal. 79=19 I.A. 234= 6 Sar. 241 (P.C.) the question whether any matter ought to have been made a ground' of attack or defence in a previous suit must depend upon the facts of each case.
' The judgment in Mahomed Ibrahim v. Sheikh Hamja (1911) 35 Born. 507=12 I.C. 387=13 Bom. I.R. 895 has, however, a bearing upon the present case. In that case the plaintiff, claiming to be the mortgagor of certain land, sued the defendant for redemption. The plaintiff failed to prove the mortgage and the suit was dismissed. He then sued the defendant for possession of the same land, claiming to be the owner thereof. It was held that the second suit was not barred by the rule of res judicata. To the same category belongs the case of res judicata. To the same category belongs the case of a person who after the dismissal of his first suit for certain land on an alleged lease brings a second suit fo: the recovery of the same land on the strength of his general title. It has been repeatedly held that the second suit is not barred as res judicata: vide inter alia Zamorin of Calicut v. Narayan Mussad (1899) 22 Mad. 323 and Kutti Ali v. Chindan etc. (1990) 23 Mad.
629."
12. The ratio, underlying the aforegoing discussion, is that the parties to the suit are required to take all the pleas in attack or defence which are available to them and which ought to have been taken.
If the party does not take such plea, it is debarred from raising such plea in a subsequent litigation.
This is known as principle of constructive res judicata. However, this principle is subject to certain well-settled exceptions that a party to litigation is not bound to raise any plea which is neither relevant nor has any similarity with the cause of action; that if the plea is inconsistent with other pleas, it is not required to raise in a suit by way of attack or by way of defence. The question as to whether the plea falls within the ambit of constructive res judicata depends upon the peculiar facts and circumstances of each case. Applying these principles to the facts and circumstances of the case in hand, it is clear to me that in Writ Petition No,806/66, the only question falling for examination was whether the instructions embodied in Memo. No,4953-54/3917 dated 14-4-1954 were valid and applicable to inheritance of Nabi Bakhsh, who had filed the claim but had not secured the allotment of the suit land before his demise. The High Court held that the above-noted circular was a valid one and was not applicable to inheritance of Nabi Bakhsh. This construction of the above circular was affirmed by the Supreme Court in C.A. No,157/81 in its decision dated 21-6- 1987 reported in 1988 SCMR 267. Very clearly the claim, of petitioners resting on the Deed of Will made by Nabi Bakhsh, was neither actually nor constructively in issue in Writ Petition No,806 of 1966. Furthermore, it is clear that claim was essentially based upon instrument allegedly executed by Nabi Bakhsh and was to be proved by oral as well as documentary evidence. It is well-settled and well-entrenched law that this Court, in Constitutional jurisdiction, does not decide the complicated questions of title, the adjudication of which needs all the type of evidence in possession of the parties. Reference may be made to Government of Pakistan v. Aquil Ahmed (PLD 1969 Dacca 930), Muhammad Bakhsh v. S.A.A. Khan, C.S.P., Member, Board of Revenue, West Pakistan, Lahore (1970 SCMR 517), Mian Muhammad v. The Municipal Committee (1983 SCMR 732), State Life Insurance Corporation of Pakistan v. Messrs Pakistan Tobacco Company Ltd. (PLD 1983 SC 280) and Ehasanul Haq Kiani v. Allied Bank of Pakistan, Karachi (1984 SCMR 963). It could be so safely said that this Court was not competent to examine the question regarding the execution of Will by Nabi Bakhsh in Constitutional jurisdiction and so the High Court as well as Supreme Court very rightly did not advert to this question.
13. Judged from the above angle, I have no hesitation in coming to the conclusion that the question regarding the execution of Will was neither actually nor constructively in issue before High Court in Writ Petition No,806/66 and also before Supreme Court in C.A. No,157/81, and so it can be safely said that this question was not finally decided by the High Court as well as by the Supreme Court within the terms of principles of res judicata. This being the position, it can be rightly concluded that the principle of res judicata was not applicable to facts and circumstances of the case in hand and the decision of the Appellate Court on this is clearly unsustainable. I, accordingly, set aside the finding of the learned Appellate Court on Issue No,2 and find that the suit filed by the petitioners was not barred by the principles of res judicata.
14. Before I proceed to deal with Issue No,5, I find it necessary to examine the concept of Will in detail. The making of Will is ordained in Holy Qur'an in Sura Albaqar in Verse No,180 wherein the believers are commanded to make bequests in following words:- "It is prescribed, {{TABLE}} When death approaches Any of you, if he leave Any goods, that he make bequest To parents and next of kin. According to reasonable usage; This is due From the God-fearing." (II-180). {{URDU TEXT}} {{TABLE}} ' The above-stated injunction was reiterated in various verses in Holy Qur'an in one or other context and was also endorsed by Holy Prophet (p.b.u.h.) in number of sayings These are:
(i) It is narrated from ' Abdullah Ibn' Umar that the Prophet said: "A Muslim who has some thing has no right to pass even two nights without making a Will unless he has already written one."
(ii) Sa'd Ibn Abi Waqqas said 'the Prophet of God came to visit me in my sickness. I was then at Mecca and did not like to die at a place from where I had migrated'. The Prophet of God said: "God shall have mercy on Ibn 'Afra'. I said to the Prophet, '0' Prophet! I am wealthy and my only heir is my daughter. Permit me that I make a Will of my entire property'. He said: 'No'. I said, should I make a Will of two-third of my property?" He said, 'No'. Hazrat Sa'd then said, 'permit me for a third'. The Prophet replied, you may, however, make a Will of a third, although this is also too much. To leave after you your heirs well to do is better than you leave them pauper and in want and others meet their needs.
(iii) Jabir b. 'Abdullah narrates that the Prophet Sallallahu 'alayhi was sallam said, 'Whoever died after making a Will, died on straight path following the (Prophet's) tradition. The one who died on piety or achie 'ed martyrdom receives absolution.
(iv) Mu'awiyah b. Qurrah narrates from his father that the Prophet (Sallallahu 'alayhi wa sallam) said, ' The one whose death approaches him if he makes a Will and his Will is in accordance with the Book of God, it shall be the atonement for the non-payment of Zakat due from him in his lifetime'.
(v) It is narrated by 'Ata' from Abu Hurairah that the Prophet of God (Sallallahu 'alayhi was sallam) said, 'Allah has conferred a blessing on you to do a good turn at the time of your death by means of a third of your property'.
(vi) It is narrated from 'Abdullah Ibn 'Umar that the Prophet (Sallallahu alayhi wa sallam) said, '0 sons of Adam! There are two things, none of them were (meant) for you. I have fixed for you a part of your own property at the time of your death so that I may purify you in consideration' thereof and my slaves may pray for you after your death."
(See p.199 of Code of Muslim Personal Law, Vol. II, Ist Edn., 1980 by Dr. Tanzil-ur-Rehman).
15. There had been numerous controversies with respect to the above concept among the celebrated scholars of Islam. One of these was whether the making of Will was optional or obligatory. According to the well-known four schools of Muslim Jurisprudence, i,e, Hanafis, Malkis, Shafis and Hanblis, it was optional, not compulsory. Imam Ibn Ham, a celebrated Jurist, however took different view. While expressing his opinion in his celebrated work alMuhallah, Cairo Vol. VI, page 21, he wrote: " that some Ulama maintain that a Will is not incumbent. They argue from Nafi, based on a second tradition narrated by Ibn 'Umar through 'Ubaidullah b. 'Umar. In the said tradition; there is addition of the words, If he has some property and he desires to make a Will thereof' to the text narrated through Ubaidullah b. Umar by Nafi' from Abdullah Ibn Umar. Latter group maintains that in this tradition the Prophet has made the Will dependent on the intention of the Maker of Will, which is an argument in favour of the Will not being obligatory. It is a proof of its being dependent on one's volition. These persons also say that the Prophet did not make a Will and Ibn 'Umar, from whom the abovementioned tradition is narrated, himself made no Will and (similarly) Hatib Bin Abi Balta'ah also made no Will in the presence of Umar. It is narrated from Ibrahim Nakh'i that a Will is not obligatory (Wajib). Same is the assertion of Malik, Shafi'i and Abu Hanifah.
' Abu Muhammad Ibn Hazm rejecting their arguments has, however, argued in favour of his own view regarding Will to be obligatory. (For detailed arguments vide al-Muhalla by Ibn Hazm)."
' Continuing, he goes on to say: ...It is the duty of every Muslim to make a Will in favour of non-heir relatives who, because of their being slaves, non-believers or being excluded from inheritance are held to be non-heirs. A Will may be made in favour of such persons according to one's own wishes. No quantum is fixed for the same. Even if a Will has not been made, it shall be obligatory to give something as if in the Will, to such relatives after consultation with the heir or executor. Consequently it shall be incumbent to make a ' Will' in favour of a person's parents or any-one of them, even they be a non-believers or slaves. If no Will has been made, yet something is to be given to them.
' According to Ibn Hazm the obligation shall be discharged only by making the 'Will' in favour of those relatives (Aqarib), who are related to the deceased from his father's side, because in the dictionary meaning only such people are called Aqarib. The inclusion of others as relatives shall not be correct logically. According to Ibn Hazm, hisauthority is the verse", "" Accordingly the parents and relatives who happen to be heirs shall be considered to have been excluded and making a Will in favour of such relatives who are not held to be heirs, shall be obligatory. Same are the conclusions of Ta'us, Hasan al-Basri, Said b. Musayyib, Masruq, Salim b. Yasar, 'Ala' b. Ziyad, Abdul Malik b. Yu'la, Qatada, Ayas Bin Mu'awiya, Ishaq and Abu Sulaiman."
(See p.204 of Code of Muslim Personal Law, Vol.II, 1st Edn., 1980 by Dr. Tan zil-ur-Rehman) .
' The view propounded by Ibn Hazm was followed by Zuhri, Salim, Sulaiman b. Yasar, ' Amru b. Dinar, Muhammad b. Sirin. The above view was given a statutory recognition by Egyptian Government in Qanun al-Wasiyyat, 1946. The same view, in some form or the other, was adopted in Syria, Tunicia and Algeria. The concept of compulsory Will, so had become a part of the legal framework of the aforenoted Muslim countries. However, no such work was carried out in our country. Since this point was not argued fully before me by the learned counsel for the parties, I am not inclined to examine it more. Needless to say that there is a consensus among the four schools of Muslim Jurisprudence that making of Will is a desirable and is virtuous,; that it is designed to enable the testator to allevite the suffering of those relations who had been left out from the line of heirship; that it enables the testators to leave some of his legal estate or its profit to some noble causes in the service of humanity or in the service of God Al-mighty; that making of Will in favour of legal heir, without consent of other legal heirs, is prohibited; that no Will can be made in excess of 1/3rd of the legal estate of the testator. This consensus is rocked upon the tradition reported by Hazrat Abi Wakkas wherein he narrated: "A Will from the Mussulman's point of view is a divine institution, since its exercise is regulated by the Qoran. It offers to the testator the means of correcting to a certain extent the law of succession, and of enabling some of those relatives who are excluded from inheritance to obtain a share in his goods, and of recognising the services rendered to him by a stranger, or the devotion to him in his last moments. At the same time the Prophet has declared that the power should not be exercised to the injury of the lawful heirs.
' The tradition reported by Abi Wakkas supports the above view and forms the foundation for the restriction which the Muhammadan Law imposes on the power of testamentary disposition possessed by a Mussulman. He says: 'In the year of the conquest of Mecca, being taken so extremely ill that my life was despaired of, the Prophet of God came to pay me a visit of consolation; I told him that, by the blessing of God, having a great estate but no heirs except one daughter, I wished to know if I might dispose of it all by will.' he replied: 'No'. And well I severally interrogated him, ' if I might leave two-thirds or one-half,' he also replied in the negative--but when I asked if I might leave a third, he answered, 'yes, you may leave a third of your property by will, but a third part to be disposed of by will is a great portion, and it is better you should leave your heirs rich than in a state of poverty which might oblige them to beg of others' ."
(See p. 569 of Muhammadan Law, Vol. I, Edn. 1976 by Syed Ameer Ali published by Shan Ellahi, Shan Electric Press, Church Road, Lahore).
16. One more principle, pertaining to Law of Muslim Will, is of enormous significance. "Will regarding a property which is not in existence at the time of making it but comes into existence at the time of death of the testator" says Dr. Tanzil-ur-Rehman "is valid". There is a consensus among the various schools of Muslim Jurisprudence on this principle. It will be worthwhile to quote a passage from the Code of Muslim Personal Law by Dr. Tanzil-ur-Rehman. This passage occurs on page No,324 and is as follows: "The Hanafis have classified Wills regarding properties that are not in existence in the following manner:
(1) The properties that exist at the time of making the Will but do not exist at the time of death of the legator.
(2) The properties that do not exist at the time of making the Will but come into existence, after the Will is made, at the time of death.
' The properties that are in existence at the time of making the Will but become non-existent at the death of the legator, a Will made regarding them shall be operative when they, after death of the legator, come into existence again. In case of their continuing non-existence the Will shall become void. Will, regarding that does not exist at the time of making the Will but comes into existence after the Will is made, such as the young one of an anurnal, shall, on the basis of Istihsan, be valid. When it comes into existence it shall be considered to be the property under the Will. But fruit-crops on garden trees that may grow or come into existence after the death of the legator shall be included in the Will when the legator has specified about the Will being a permanent one. This is what the Qiyas demands but on the basis of Istihsan even if no specification of it being of permanent nature has been made, the aforementioned rule shall apply, which has been constantly acted upon.
Likewise, if a person makes a Will regarding his garden in favour of another person, saying that his garden after his death be given to such person, and there is no garden belonging to him at the time of his making the Will but a garden is purchased by him thereafter and then the legator dies, the Will regarding the garden shall be valid. If in the aforementioned case Will is made regarding the income of the garden, according to Imam Sarakhsi, it shall not be valid. According to Imam Karkhi, however, it shall be valid because according to the law of Wills that property in the legacy should exist after the death of the legator. In the aforementioned case the garden exists and so the income therefrom may be available. This is the correct view of the matter."
17. The ratios, deducible from the foregoing discussion, are that making of Will is a divine institution and it is sanctioned by Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.); that it is a settlement of property gratuitously on the legatee after the death of testator; that it is not only confined to the property but it includes any usufruct of the property or any advantage arising out of the property; that making of Will is desirable and virtuous; that the underlying object of this mode of transfer is to better the lot of those relatives who were/are not legal heirs; .That another object of making Will is to help the noble causes in the service of community and in the causes of the God Al-mighty; that there can be no Will beyond 1/3rd of the legal estate left by the testator and it should not be designed to injure the rule of inheritance; that the Will can be made with respect to a property which may not be in existence at the time of Will but may be acquired by testator before his death and he left after the death and is capable of being delivered to the legatee.
18. Guided by the aforesaid rules pertaining to Law of Will, I now revert to the merits of respective claims of the parties on Issue No,5. In order to prove their case, petitioners relied upon five witnesses, including Muhammad Shafi, one of the petitioners. Abdul Majeed, P.W.1 proved the signatures of his father Abdul Aziz deceased who had scribed the document. Zulfiqar Ahmad P.W.2 proved the signatures of his father Shah Muhammad/the marginal witness of the questioned document. Muhammad Shafi also appeared as a marginal witness. P.W.4 Muhammad Munir proved the signatures of his father Ch. Noor Muhammad Lambardar who had identified the parties before the Registrar, Muhammad Shafi, P.W.5 proved the contents of the plaint. On the contrary, respondents relied upon two witnesses namely, D.W.1 Fateh Muhammad and D.W.2 Muhammad Rashid. The latter witness did not utter a single word challenging the execution of Exh. P.1. He consumed his energy in proving, that the questioned document/Exh.P.1 was produced by the sons of Rehmatullah before the Revenue Officer, before High Court and before Supreme Court but without any success. From the above resume of the evidence, it is but clear that the execution of questioned document Exh. P.1 was not seriously challenged by the respondents. Most conspicuous feature of the case is that D.W.1 and D.W.2 did admit before the Court that the legal heirs of Rehmatullah/predeceased son of Nabi Bakhsh and Abdul Aziz/surviving son were inducted into possession of the suit land in equal share under the Will. This admission by D.W.1 and D.W.2 does establish beyond any scintilla of doubt that the questioned Will was executed by Nabi Bakhsh on 24-8-1953 and was acted upon by the legal heirs of Rehmatullah as well as Abdul Aziz who, however, later on challenged the mutation of attested in favour of parties under the impact of rule laid down in PLD 1962 SC 42 wherein the vires of Circular No,4953/54/3917/R(L) issued on 14-4-1954 was upheld. On the above assessm ent of the evidence, I have, therefore, no difficulty in holding that instrument of Will was executed by Nabi Bakhsh on 24-8-1953 in favour of the legal heirs of Rehmatullah and Abdul Aziz. The next point, which remains to be considered, is whether this instrument was valid in the eyes of law and the petitioners Nos.1 to 6 had become the owners of 1/3rd of the property in dispute. This question will not detain us for consideration any longer. It is not in dispute that Nabi Bakhsh/the right-holder was the owner of agricultural land in various Revenue estates of India and which he had abandoned while coming to Pakistan in the wake of Partition. It is the case of the both parties that before making Will, he had filed a claim and it was verified. It is also not in dispute between the parties that the legal heirs of Rehmatullah and Abdul Aziz had made report of the aforesaid events to Settlement Officer and their names were recorded as heirs of Nabi Bakhsh in equal shares and that suit land was proposed under para.46 of Scheme to both legal heirs of Rehmatullah and Abdul Aziz in equal shares. Taking these undisputed circumstances into consideration and Muslim Rule of Will to respective claim of parties, it is as clear as a day that Nabi Bakhsh had come to Pakistan in the wake of Partition alongwith the legal heirs of his predeceased sons Rehmatullah and Abdul Aziz/leaving his estate in India. The evacuee laws were enacted one after the other to integrate the displaced persons coming from India into socio- economic life of the country. Under para.29 of the West Pakistan Rehabilitation Settlement Scheme, he was entitled to seek allotment of the land in Pakistan in lieu of land abandoned by him in India in accordance with entries of special Jamabandi. His rights, irrespective of the fact as to whether the claim was a right or a licence, was guaranteed by para.29 of the Scheme. Pursuant to this para. He had filed a claim which was verified. So it was very clear that he was entitled to secure the allotment of suit land in lieu of the land abandoned by him in India. Therefore, while making the Will he was almost certain about the-acquisition of the suit land by way of a right and this materialised into the reality under Scheme by the effort of both legal heirs of Rehmatullah as well as Abdul Aziz.
On the above examination, I have no hesitation in coming to conclusion that the Will made by Nabi Bakhsh was in complete consonance with the Muslim Rules pertaining to Will and was not in any manner illegal and so in my view the questioned document (Exh. P.1) contained all the necessary attributes of Will under Muslim Jurisprudence. This being the position the finding rendered by learned first Court on Issue No,5 is wholly illegal, void and cannot be sustained. I accordingly set aside the finding of the first Court on this issue and decide the same in favour of petitioners/plaintiffs.
19. As regards PLD 1962 SC 42, it is sufficient to say that the facts and circumstances of the case are clearly dissimilar to factual background of case in hand. Even otherwise, the rule laid down in PLD 1962 SC 42 regarding the right of inheritance of legal heir of predeceased son, was not followed by the Supreme Court with mathematical exactitude in Civil Appeal No,530/88 decided on 18-4-1990.
After recording the factual matrixes of the case (which are similar to the case in hand), it was said:-- "During the arguments it came to light that the general question of the right of the grand-children to inherit the property of the grandfather has emerged again and again as a question of Islamic Law of Inheritance which needed final resolution. It is true that in earlier authorities an assumption was made of generally accepted Muslim Law in the Sub-Continent that the grandchildren to do not inherit. It is being re-opened for further examination in the light of the relevant Constitutional mandates that such like questions have to be decided in accordance with the Injunctions of Islam as contained in Qur'an and Sunnah. That is why this Court has kept the open the question as to whether section 4 of the Family Laws Ordinance did not in fact recognize any such pre-existing law of Islamic inheritance; namely, that the grandchildren do inherit and thus this provision is more of declaratory nature and may not be a new legislative dispensation. In that context its retrospective effect has also been opened for examination."
' From there it is thus clear that even the right of legal heirs of predeceased son was kept open.
Similarly, the rule laid down in PLD 1968 Lah. 68 is not attracted to the facts and circumstances of the instant case.
20. As a result of the above discussion and my findings on Issues Nos.2 and 5, I, hereby, allow this revision petition, set aside the findings of the appellate Court on Issue No,2 and the findings of the first Court on Issue No,5 and decree the suit filed by the petitioners to the extent of 1/3rd within the parameters of law relating to Will made by a Muslim. The petitioners are thus declared to be owners in possession of the suit land to the extent of 1/3rd share under the registered deed of Will dated 24-8-1953. Since this case was not free from difficulty, none of the parties shall be burdened with costs.
21. While parting with this judgment, I acknowledge my indebtedness to scholarly expertise on the Code of Muslim Personal Law written by Dr. Tanzil-ur-Rehman. I have grossly benefited from this treatise which led me to see the work of celebrated scholar like Ibn Hazm and so many other scholars.