' This is a suit for administration of the estate of Late Mohatrama Fatima Jinnah the sister of the founder of Pakistan Quaid-e-Azam Muhammad Ali Jinnah. The plaintiff is the grandson of Walji Poonja who was the paternal uncle of the deceased. The defendants except defendant No, 6 are also agnates of the deceased. Defendant No, 1 was the brother of the plaintiff and upon his death during the pendency of suit his legal representatives have been brought on record. The second defendant is also the brother of the plaintiff whereas defendants 3 and 4 are the sons of Ghulam Ali who was also the brother of the plaintiff. Defendant No, 5 Mst. Shirin Bai is the only surviving sister of the deceased and is the only contesting defendant in the suit. Defendant No, 6 Mst. Jenna Bai was impleaded as co-defendant in this suit on her own application but has neither filed written statement nor adduced any evidence. No representation for her was made at the hearing of final arguments.
2. Mohatrama Fatima Jinnah expired at Karachi on 10th July, 1967 and was possessed at that time of properties, movable and immovable, details whereof are mentioned in the schedule annexed to the plaint. On 6-2-1968, defendant No, 5 filed an application in the High Court of West Pakistan at Karachi, bearing No, 11 of 1968, under section 370 of the Succession Act, 1925 for grant of a succession certificate in respect of the debts and securities standing in the name of the deceased.
The plaintiff and defendants Nos. 1 to 4 appeared in the aforesaid proceedings and objected to the grant of succession certificate in favour of defendant No,
5. By order dated 2.3-1970 my Lord the Chief Justice sitting then as a Judge on the Original side granted a succession certificate to defendant No, 5 in respect of the debts and securities of the deceased. It would appear that the question of the right of the plaintiff and defendants Nos. 1 to 4 to a share in the estate of the deceased by inheritance as lawful heirs alongwith defendant No, 5 was raised in those proceedings but since no final and binding adjudication could appropriately be made of this question in the proceedings, it was left undecided and the succession certificate was granted to defendant No, 5 on condition that she furnishes a bond with one or more sureties to the extent of value of the properties for rendering an account of the debts and securities received by her, and for the indemnity of the persons who may be entitled to the estate left by the deceased.
(3)This suit was thereafter, filed on 29-10-1970 seeking a decree for administration of the estate of the deceased, for accounts by defendant No, 5 of the estate and part thereof which come to her hands, for payment of all debts and liabilities and for partition of estate of the deceased between the plaintiff and defendants 1 to 5. The plaintiff has alleged that although under the orders of this Court, the defendant No, 5 was allowed payment of Rs, 3,000 per month for the purpose of renting a house and the convenience of a car, she illegally and wrongfully obtained possession of a part of the immovable property of deceased known as Kasr-e-Fatima (Mohatta Palace) situated at Clifton, Karachi together with the furniture, fixtures and fittings. It was further alleged that said defendant also illegally and wrongfully obtained possession of four motor-cars of the deceased, all which properties were being used and enjoyed by her and her son. The plaintiff further contended in the plaint that the deceased Mohatrama Fatima Jinnah, during her lifetime practiced the Sunni/Hanafi faith and continued to do so until the time of her death and as such the inheritance to the estate left by the deceased was governed by the Sunni/Hanafi Law of Inheritance. The plaintiff claimed that he and defendants 1 to 4 were residuary under the Sunni Law of inheritance which governs the succession to her estate. Thus the plaintiff and defendants Nos. 1 to 4 were alleged to be entitled to the half of the estate and the remaining half devolved upon the defendant No, 5 being the surviving sister of the deceased. On this basis the plaintiff claims 1/8th out of the total estate for himself.
4. Defendants Nos. 1 to 4 filed a joint written statement supporting entirely the case of the plaintiff and joined him in the reliefs claimed in the suit. As stated earlier, defendant No, 5 is the only defendant who resisted the suit. She, in her written statement strongly repudiated the assertion that the plaintiff was a rightful heir of the deceased along with defendants 1 to 4 and contended that she was the sole heir of deceased to inherit all the properties of the deceased in her own right.
She controverted the allegation that Late Mohatrama Fatima Jinnah was a Sunni Muslim and characterized the allegation as "mere fiction and imagination". According to her the deceased was and remained until her death an Asna-Asharia Shia Muslim. Accordingly the succession to her property was governed by the Sectarian Law of the Asna-Asharia Shia School. Defendant No, 5 also repudiated other allegations made by the plaintiff regarding the illegal and wrongful takeover of the properties and averred that the house at Clifton was offered to her by the Government of Pakistan through the Commissioner of Karachi, who broke the seals and put the defendant in possession of a part of the ground floor after preparing a complete and full inventory of all the furniture, fixtures and household effects that were spared "after the loot and pilferage soon after Miss Jinnah's death while this defendant was still in India". As regards the cars mentioned by the plaintiff, defendant No, 5 averred that two were old and unserviceable and that all the cars have been preserved and would be donated to the Relics Committee by this defendant at the appropriate time. In short the defendant No, 5 contended that the plaintiff and defendants 1 to 4 have no right to the estate of the deceased as heirs and that she was the sole surviving heir excluding all other relations of the deceased under the Shia Law.
5. On the pleadings of parties the Court framed the following issues :-
(1) Whether the Late Mohatrama Fatima Jinnah practiced Sunni/Hanafi faith during her lifetime and remained a Sunni until the time of her death as claimed by the plaintiff in para. 8 of the plaint.
(2) Whether the plaintiff and defendants 1(a) to 1(c) and 2 to 5 have any interest or share in the properties left by the deceased, if so, to what extent and in what properties.
(3) Whether the suit as framed is misconceived and merits dismissal. (4) What should be the decree.
6 By consent of the parties the evidence recorded in Misc. Application No, 11 of 1968 in this Court was treated and exhibited as evidence in these proceedings. The witnesses whose evidence has thus come on record of this suit are (1) Mr. M. A. H. Ispahani (Exh. 9), (2) Syed Anisul Hussain (Exh. 10),
(3) Moulana Mohammad Hussain Baray (Exh. 11), (4) Mr. M. M. Kotwal (Exh. 12), (5) Mr. G. A. Khan (Exh. 13), (6) Mr. Muhammad Hanif Manias (Exh. 14), (7) Mina Akhter Hussain (Exh. 15), (8) Moulana Ehtashamul Haq (Exh. 16), (9) Syed Saharifuddin Pirzada (Exh. 17) and Syed Inayat Ali (Exh. 18).
7. From the gist of the pleadings and the issues framed by the Court it will be observed that the only question at issue between the patties is as to what were the sectarian beliefs of the deceased, that is to say, whether in the matter of religious faith, she adhered to Shia or Sunni discipline. The fact in issue means any fact from which either by itself or in connection with other facts the existence, non-existence, nature, or existence of any right, liability or disability, asserted or denied in any suit or proceedings necessarily follows. Upon the decision of this issue would depend as to what law would govern the succession to the estate of the deceased.
8. It was conceded at the bar by Mr. Liaquat Merchant. Learned counsel for the plaintiff that if this Court comes to the conclusion that the deceased was a Shia, then the plaintiff would be out of Court and will not be entitled to any share in the property of the deceased. Under the Shia law the defendant No, 5 being the sole surviving sister of the propositus would succeed to the entire estate as sole heir. But if the Sunni law is applicable then she would be entitled as a sharer to half of the estate and the other half would be jointly inherited by the plaintiff and defendants 1 to 4 as residuaries.
9. The word 'fact' has been defined in the Evidence Act to mean and includes :-
(1) anything, set of things, or relation of things, capable of being perceived by the senses ;
(2) any mental condition of which any person is conscious.
Facts, therefore, are either physical or psychological. A physical fact is anything, set of things, or relation of things capable of being perceived by the senses. On the other hand a psychological fact is any mental condition of which a person is conscious. Facts sho sling state of mind as for instance a person's religious faith are relevant when such state of mind is in issue. It has been said that the state of a man's mind is as much a fact as the state of his digestion. Although the proof of such a fact presents considerable difficulties but it can be ascertained as much as anything else.
These psychological facts are incapable of direct proof, hence their existence can be ascertained either by confession of a person's own mental condition or by presumptive inferences from the surrounding circumstances of other physical facts. It is, therefore, considered that the most cogent evidence consists of circumstantial evidence of other external or collateral facts. Section 14 of the Evidence Act expressly deals with the relevancy of facts showing the existence of any state of mind and Explanation (1) appended thereto provides as under :- "A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally but in reference to the particular matter in question!!
10. It is common ground that the deceased was born in a Khoja Ismaili family which is a sub-sect of the Shia sect of Muslims and there is no controversy over the fact that sometime after she attained the age of discretion she renounced the doctrines of that sub-sect. The dispute is only as to what sectarian denomination whether Shia or Sunni she adopted and belonged to at the time of her death.
11. Each side has produced number of witnesses some of whom enjoyed prestigious positions in the affairs of the State and took prominent part in the struggle for achievement of Pakistan and some have had close personal association in the course of their dealings either with Quaid-e-Azam or Mohtarma Fatima Jinnah herself as members of their personal staff.
12. The evidence adduced by the parties to a great deal touches the religious faith of the Quaid-e- Azam. But all the learned counsel appearing in the case have categorically stated that since the Quaid-e-Azam's religious faith is not a material issue between the parties, no decision as regards that question is called for in this case and that therefore such evidence as deals with the Quaid's religious beliefs can be safely excluded from consideration.
13. The plaintiff's evidence including the evidence recorded in the previous proceedings consists of ten witnesses who are : (1) Moulana Muhammad Hussain Baray (Exh. 11) ; (2) Mr. G. A. Khan (Exh. 13) ;
(3) Mr. Muhammad Hanif Muniar (Exh. 14) ; (4) Mirza Akhtar Hussain (Exh. 15) ; (5) Moulana Ehteshamul Hag (Exh. 16) ; (6) Syed Sharifuddiu Piraada (Exh. 17) ; (7) Syed Inayat All (Exh. 18) ; (8)
Mr. Muhammad Jaffar Pirbhai (Exh. 19) ; (9) Mr. Hussain (Exh. 20) and (10) Mufti Muhammad Shafi (Exh. 21).
14. On the side of the plaintiff, the first witness examined was Moulana Muhammad Hussain Baray (Exh. 11), the Ex-Khatib of the Jamia Mosque, Bombay. He deposed that he remained the Khatib of the Jamia Mosque, Bombay from 1932 to 1934 and again from 1942 to 1947. Besides speaking about the Quaid-e-Azam having participated in Sunni Congregational Prayers he spoke about his association with the deceased. He says that he used to go to the house of the deceased for Fateha on the death anniversary of Quaid-e-Azam and used to lead the same from 1950 up to the death of the deceased. He is a Sunni and performed his religious rites according to the Sunni discipline.
He has introduced the name of Muhammed All Manias as the person who used to take him for attending the Fateha-Khwani. He has further stated that sometimes the deceased used to call him by speaking on the telephone. It is contended that this was an overt act on the part of the deceased disclosing her faith.
15. The next witness for the plaintiff is Mr. G. A. Khan, who was in the employment of the deceased as her Private Secretary. This witness was naturally in close contact with the deceased and has categorically stated that from his personal knowledge gathered from close association with her, he cannot say that "the deceased was not associated or connected with any religious or social organization of Shias exclusively." He has further stated 'Miss Fatima Jinnah never told me in clear words that she belongs to any sect of Islam, Shia or Sunni". He has, however, stated that whenever the deceased used to receive correspondence from Shia community asking for patronage or association, she would be annoyed and would say : "What do these people think I am", and would direct him to put these letters away. Another material statement by this witness is that the deceased never observed Moharram as Shias do and further that on every occasion it was her practice to send for Sunni Moulvi for the purpose of Quaid-e-Azam's yearly FatehaKhwani. Once or twice, the witness asserted, she mentioned that Sunni Moulvis should be sent for and Shia Moulvis should not be sent for. Lastly the witness has stated that no Moharram Majlis was ever held by the deceased. It was argued on behalf of the plaintiff that the above instances and facts reveal clearly that even in private while issuing instructions or communicating with her own Secretary, she made it clear that she had nothing to do with Shia sect and that she did not want to be bracketed with Shias in matters of religion but was rather inclined towards the Sunni religious observances.
16. Mr, Muhammad Hanif Maniar (Exh. 14) is the next witness for the plaintiff. His father was a close friend and political associate of the Quaid-eAzam and the witness stated that ho had occasion to visit the house of the Quaid at Bombay and thus came in close contact with the family. The material part of his evidence consists of the following statements : (i) that he never saw the deceased wearing black clothes during Moharram days, (ii) that the deceased never attended any Shia ceremonies or Shia Majlis, (iii) that from her conduct otherwise he formed the impression that she was a Sunni and (iv) that on one occasion he suggested to deceasei that Moulana Ibn-e- Hassan Jarchavi, a Shia Moulvi be called to lead Fateha, whereupon, the deceased observed t "I do not want a Shia Alim". In the cross-examination this witness, however, admitted that on no occasion he enquired from the deceased if she was a Sunni or Shia and that he had never come across any public statement of her to the effect that she belongs to Sunni Sect.
17. Mr. Mirza Akhtar Hussain (Exh. 15) is the next witness of the plaintiff. This witness was practicing as an Advocate in Bombay before his migration to Pakistan and was associated with the Quaid-e- Azam in the Muslim League Movement. He published a book at the instance of the Quaid known as the "History of the Muslim League". He has very fairly conceded that although he was very close to the Quaid-e-Azam, he never got close to the deceased. The only material part of his evidence is that the funeral prayers held for the deceased were according to the Sunni rites and that no Majlis was held or attended by the deceased of either the Sunnis or Shias. In his cross-examination, the witness has conceded he had never seen any public utterance or in the press, books or articles to the effect that the deceased had adopted the Sunni faith but, the witness went on to say, that the conduct of the deceased for about 10 years before her death, convinced him that she was following the Sunni faith. The witness was asked to clarify what conduct he referred to and in reply he stated that every year on the death anniversary of the Quaid-e-Azam the Quran-Khwani was arranged through a Sunni Moulvi.
18. Moulana Ehteshamul Haq Thanvi (Exh. 16) was also examined by the plaintiff. He is a noted Sunni divine and, a scholar. He was also associated with the Pakistan Movement led by the Quaid-e- Azam. This witness has also very honestly stated that he never had a chance of any association or personal contact with the deceased. He, however, stated that he used to be called upon to say Fateha at the Fateha-Khwani of the Quaid-e-Azam. Learned counsel for the plaintiff has rightly conceded that his evidence does not help either side materially.
19. The next witness relied upon, on behalf of the plaintiff is Mr, Sharifuddin Pirzada (Bah, 11), Advocate of this Court and former Attorney-General for Pakistan and Foreign Minister, Government of Pakistan. This witness was summoned to give evidence for the plaintiff in the succession certificate proceedings but before his evidence was recorded, the witness stated that he would like to make the statement as an independent witness and accordingly was treated as a Court witness. Most of the statement of this witness concerns his association with Quaid-e-Azam with whom he claimed to have worked as a Private Secretary. But the material part of his evidence so far as the fact in issue in this case is concerned, was that he had close and cordial relations with the deceased and that she consulted him on a number of occasions with regard to her private and legal affairs. He even represented the deceased in two suits filed in this Court. He has, however.
Categorically stated that he cannot say personally anything about the faith of the deceased he had no occasion to discuss this matter with her. One important fact which this witness has deposed to, which is significantly relevant for the issue under consideration, relates to the circumstances under which the Quaid-e-Azam left the fold of the Ismalia. The witness stated : "It is true that the Quaid-e-Azam was a Ismaili Khoja by birth. It is also true that he had fallen out with Ismailia. This was perhaps in the year 1901. This happened on the occasion of the marriage of his sister Rehmat Bai with Kazzim Bhai Jamal, who was a Sunni Muslim."
20. The next witness for the plaintiff is Syed Inayat All (Exh. 17), an Advocate of this Court. He has spoken of an incident in the year 1939 when he offered Ramzan-Eid Prayers at Azad Maiden, Bombay where the Quaide-Azam was also present. He states that he saw the Quaid-e-Azam say his prayers with his hands folded which is the Sunni manner of prayers. The evidence of this witness is not material for the present purposes.
21. The next witness for the plaintiff Mr. Muhammad Jaffer Pirbhai (Eali. 19), in my opinion, is the most important witness in the case as he is not only a relation of the deceased but seems to have had quite informal and close association with the deceased. Both learned counsel have strongly relied on the evidence of this witness. The witness at the time he gave evidence was the Chairman, Pakistan Banking Council Corporation and has remained Senior Executive Vice-President in the Habib Bank Limited. Prior to joining the Habib Bank, he was a Solicitor in Bombay and after coming over to Pakistan briefly practiced as an Advocate of the West Pakistan High Court. He is a Shia and had claimed association with the deceased for about 20 years, The deceased used to consult him often with regard to her personal and legal matters. His relationship with the deceased was not very close though, in so far as he is related by marriage to the family having married the sister of the husband of grand-niece of the Quaid-e-Azam. He speaks of several facts which are very material to the question at issue. He says, in 1964 the deceased at her residence had a very revealing conversation with him which was as follows : the deceased said "you Shies start mourning during Moharram", upon which the witness said "Miss Jinnah even you are born a Shia".
Upon this she remarked, "I am not a Shia, I am not a Sunni, I am a Mussalman". She explained that the Prophet of Islam had given us Muslim Religion and not Sectarian Religion. The witness, being a Shia, stated categorically that the deceased always referred to the practice of mourning by Shias with disapproval. However, the witness conceded that she used to attend Shia Majlises in private houses whenever invited by her friends. But she had never visited Khoja Jamat Khans at Kharadar or Britto Road. Another significant fact mentioned by the witness was that once the deceased had told him that she and Quaid-e-Azam had been invited by His Highness Agha Khan at Poona where they sat with him as equals unlike Ismailis who had to be kept at respectful distance. She had explained that they were given better treatment because they were not Ismailia. Upon this premise the witness has ventured his own opinion that the deceased was "just a plain Muslim". According to the witness after giving up Ismaili faith the Quaid-e-Azam became Asna-Ashri but he could not say if the whole family including the deceased became Asna-Ashri with him. The witness admitted that some Khojas in Bombay and Karachi also belong to the Sunni faith. Finally, he has stated that the funeral prayers held opposite Mohatta Palace for the deceased were mostly attended by Shims.
22. Tte next to come in the order of witnesses is the plaintiff Hussain (Exh. 20) himself. The plaintiff has made a short statement in which although he said he had known the deceased as she was his aunt, he has not spoken a word about her religious faith except that she was not an Ismaili. The plaintiff himself admits that he is an Ismaili Shia. He has spoken of the funeral prayers held for the deceased at Quaid-e-Azam's Mazar led by Moulana Mufti Muhammad Shaffi. He has shown ignorance about any funeral prayers held at Mohatta Palace. The plaintiff states that he was born in Karachi and had seen the deceased for the first time after she came to Pakistan.
23. The last witness for the plaintiff is Mufti Muhammad Shaffi who was an acknowledged Sunni Divine. He has stated that he led the funeral prayers of the deceased according to the Sunni manner at the Polo Ground. The witness has very honestly admitted that he had no knowledge whether the funeral prayers were performed in the Sunni manner because of any desire or wish made by the deceased and he categorically stated that he cannot say as to whether the deceased belonged to the Shia or Simi Sect. Ho stated that he had not talked to the deceased about her sect nor anyone else had talked to him about her sect. He, however added, as the deceased was the sister of Quaid-e-Azam and his dominant impression about the latter was that he was a Sunni, he entertained the impression that the deceased was also a Sunni. This impression was further strengthened when the people came to him to lead her funeral prayers.
24. As stated in the earlier part of this judgment by consent of parties the evidence recorded in Misc. Application No, 11 of 1968 which related to the grant of succession certificate has been brought on record and is to be treated as evidence for the purposes of the present suit. There are in all eight witnesses whose evidence has been adduced on behalf of defendant No,
5. They are (1)
Mr. A. H. Ispahani (Exh. 9), (2) Syed Anisul Hasnain (Exh. 10), (3) Haji Kaloo (Exh. 22), (4) Mst. Fatima Bai (Exh. 23), (5) Raja Maqbool (Exh. 24), (6) Mirza Mahrnood Beg (Exh. 25), (7) M. M. Kotwal (Exhs. 12 & 26), and (8) Matloobul Hassan Syed (Exh. 27).
25. Learned counsel for the plaintiff has challenged the evidence of these witnesses and has contended that their evidence does not establish that the deceased belonged to Shia Sect. I shall now take up the consideration of the evidence of each witnesses in the light of the submissions of the counsel. The first witness Mr. M. A. H. Lspahani (Exh. 9) is a well-known personality in Pakistan, having been associated with the Quaid-e-Azam in the political struggle for the achievement of a homeland for Muslims of British India and later served in the diplomatic service of the Government of Pakistan. The material part of his evidence is that the Quaid-e-Azam came from an Agha Khani Ismaili family and in 1890 after he returned from England, decided to leave it and to adopt the Asna-Asharia faith. The witness claimed that the Quaid-e-Azam informed him that he subsequently induced the other members of his family to do the same. This fact was recorded by the witness in a book entitled ''Quaid-e-Azam as 1. Know him". The witness further stated that in the course of his long association with Quaide-Azam he had come in close contact with his sister late Mohtarma Fatima, Jmnah, which association was particularly close since 1936 until the day of her death. On receiving information about her death he went to her house and made entire arrangements for her funeral. He stated that she was-given the last bath according to the Shia rites and her Namaz-e-ianaza (funeral prayers) was led by Moulana Ibn-e-Hassan Jarchavi who was a Shia. Divine. After the prayer her dead body was handed over to the State and was carried under the arrangement made by the State to the Polo Ground veli ere another funeral prayer was held in which many people participated. He further stated that he lowered the dead body of the deceased in the grave and before the body was laid to rest Talkin which is a Shia ritual' was read in his presence. He categorically stated that he never had any talk with the deceased about religion in general and that she had never expressed a desire to him to be buried as a Shia or as a Sunni.
He however, admitted that two sisters of the deceased were married to Sunnis.
26. It was contended by Mr. Liaquat Merchant that the fact that the-deceased was given a Shia burial according to the rites and rituals of that sect did not prove that the deceased herself held that faith. He further submitted that the general impression given by the evidence of this witness, is that, at least after 1936, the deceased like her brother believed in being only a Muslim above any sectarian thinking.
27. The next witness for the contesting defendant was Syed AniseHasnain, who testified that he was a Pesh Imam of Asna Asharia mosque was called at 2-00 O'clock in the night to perform the last rites of the Quaid-e-Azam at the Governor-General's House. When he went there he saw Mohtarma Fatima Jinnah who instructed him t r give the bath to the dead body which e arranged through Shaikh Hidayat Hussain alias Haji Kaloo. After the bath was given Mohtarma Fatima Jinnah told him to read the funeral prayers also which were offered in the room in which the dead body was lying.
He has stated that he had brought the Chussal and other accessories from /scam Asharia Khoja Jamaat, entries of which were-made in the record of the Jama'at.
28. In the cross-examination, this witness has admitted that he met Mohtarma Fatima Jinnah for the first time on that occasion. He has further admitted that he was never called by Mohtarma Fatima Jinnah at any time after that but he joined the Fateha-Khwani on the death anniversary of Quaid-e-Azarn a couple of times at her house, in which, however, he did not lead the Fateha- Khwani.
29. This witness has further admitted that he did not sea the deceased attending any majlis nor was he called by her to attend any religious function, like Shahadat of Hazrat All or the majlis of Hazrat Imam Hussain or Bazrat imam Hassan. He, however, explained that he could not be called, at such Majlises because they had to be ladies majlises. On the whole, the witness did not profess to have any personal knowledge of the faith of the-deceased nor ventured to express any opinion regarding that.
30. The next witness for the contesting defendant is Haji Kale who-is an employee of the Asna- Asharia Jamaat and is a professional dead body washer. He has testified that he was called to give bath to the dead body of Quaid-e-Azam at the Governor-General's House. The important point of his evidence is his assertion that Mohatrama Fatima Jinnah gave him permission to bathe the body in Shia way saying that "they were governed by Shia custom". He has further stated that the Shia Moulvi Anisul Hasnain was present at the time of the bath and supervised the bathing ceremony. Following the bath the Moulvi had led the funeral prayers inside the Governor-General's house. He further states that he had been called at the death of Mohatrama Fatima Jinnah at her Clifton residence and ho had taken a party of women for the purpose of giving the last bath to the dead body. He has named two women Mst. Fatima Syed and Fatima Bachu who actually gave the bath to the dead body of the deceased. He says that the permission for bathing the body was given by Mr. Ispahani who was present there. Afterwards, Moulana Ibne-Hassan Jacharvi who was a Shia led the prayers. In his cross-examination, this witness was asked the details of his first visit for giving bath to the dead body of Quaid-e-Azam. He stated that when he asked the permission of Mohatarma Fatima Jinn* she was in a room with other ladies and he requested the ladies to take permission from her. At this stage, he made another important statement saying that Mohatrama Fatima Jinnah said within his hearing "we are Khoja Muslims and Shia Asna-Asharia, give the bath according to the Shia custom". He has admitted that the Quaid-e-Azam never came to the Shia Imam Bara in Karachi nor did Mohatrama Fatima Jinnah over come to any Imam Bara in Karachi.
He however, related one occasion when she came to the Alam on her way back from Cloth Market but she did not go inside the fencing nor did she touch the Alam. He has also admitted that the Mohatrama was not wearing traditional mourning black clothes at that time.
31. Learned counsel for the plaintiff challenged the evidence of this witness. He contended that this witness could not have asked permission for the bath to the dead body of the Quaid-e-Azam as the Moulvi who was incharge of the ceremonies was present whose duty normally it would be to seek such permission. Counsel further submitted that the version of the witness that he went to the place where ladies were sitting is unbelievable as it is contrary to tradition in our society and no other lady has come forward in evidence to say that the deceased uttered the words attributed to her by this witness. Counsel also emphasised the significance of the concession made by the witness that the deceased did not go near the Alam and did not touch it. It was also contended that the evidence of this witness conflicts materially with the evidence of Moulana Anisul Hasnain. It is in the evidence of the latter that be was instructed by Mohatarma Fatima Jinnah to give the bath to the dead body of the Quaid-e-Azam.
32. Next comes the evidence of Mst. Fatima Bai (Exh. 23) who professionally works for bathing dead oodles. She stated that she had given the last bath to the dead body of Mohatrama Fatima Jinnah for which she was taken by Haji Kaloo. She has asserted that she gave bath according to Shia tradition. It has been argued by the learned counsel for the plaintiff that her evidence contradicts the evidence of Haji Kaloo in so far as she does not speak of Haji Kaloo taking permission for bathing the body from Mr. Ispahani. Counsel argued that it is not necessary for a male bather to go to the house on the occasion of the death of a lady.
33. The next witness for the defence is Raja Maqbool (Exh. 24) who served as the gunman or bodyguard of the deceased in her lifetime. This witness has deposed to three facts namely (1) that the deceased wore black clothes during Moharram on two different occasions in different years,
(2) that there were two Alams and two Panjas of silver among the articles included in the inventory of the personal effects of the deceased prepared by the authorities, and (3) that funeral prayers for the deceased were held at the residence led by Moulana Ibne-Hassan Jarchavi in the Shia manner,
34. He, however, in his cross examination admitted that he had never seen the deceased with the Panja or Alam at any time and that he went inside the house for the first time when the inventory was being prepared.
35. Mina Mahmood Beg (Exh. 26), the next witness for the defence, is the librarian of the Department of Archaeology whose evidence is only material in connection with the Panjas to which the previous witness deposed. The significance of the Alams and Panjas is that according to the contesting defendant these are articles pertaining exclusively to the Shia faith as they represent the significance of the martyrdom at Ka, bale. The witness states that he was assisting Mr. Fazal Qadir who was deputed to collect therelies from the residence of the deceased. Wnatever relics were given by Mst. Shirin Bai, defendant No, 5, were taken by them and kept in the National Museum. These articles were catalogued and kept in a bound volume with photographs which has been produced as (Exh. 25/1). Plate No, 106 in this volume depicts the photographs of the two Panjas which the witness states were taken by them on 6-6-1970 from Mr. Maqbool who was in charge of the household and working under defendant No,
5. He has also referred to plate No, 157 in which there are photographs of ornamental Tughras which contain some special writing in caligraphy depicting the names of Allah, Muhammad, Ali, Fatima, Hassan and Hussain, which are commonly called "Panjtan". It was argued by learned counsel for the plaintiff that two Panjas were taken after three years of the death of the deceased and it is not proved that they belonged to the deceased.
36. Mr. M. M. Kotwal (Exh. 26) who is an Advocate of this Court and was appearing as a counsel for defendant No, 5 both in the succession certificate proceedings as well as in this suit, has been examined as a witness in both proceedings. His evidence recorded as a Court witness in M. A.
11/1968 has been brought on record of this suit as Exh.
12. The relevant part of his evidence is that he was consulted by the deceased before her death in about June 1961, for drafting of a will which was prepared by him according to the "Sketchy Instructions" as he terms them, given to him by her. In the two draft wills prepared by him, he had left the name of the testator blank as he did not know how the deceased described her name and her parentage. But the witness categorically stated that the deceased told him that she was a Khoja but did not say whether she was a Shia or Sunni. In his evidence in this suit, he has asserted that he had close relationship with the family of the deceased until her death and used to visit her personal residence at Clifton. He says that he saw a Panja from which ho formed an opinion that she was a Shia. Lie has however, categorically admitted that there was no occasion for him to enquire from the deceased whether she was a Shia or Sunni. He has also admitted that he had not seen a Panja before in any other house. Learned counsel for the plaintiff questioned the veracity of the witness as regards the presence of the Panja by contending that if it was true he should have mentioned this fact in his evidence recorded on the previous occasion.
37. The last witness for the contesting defendant is Mr. Matloobul Hassan Syed (Exh. 27), who served as a Private Secretary of the Quaid-eAzam for some time. It was not disputed that he served as the Private Secretary to the Quaid-e-Azam, but it was contended that be left the service of the Quaid- e-Azam in 1943. The witness, however, claimed that he commenced his service in 1940 and resigned in 1944, as he had to write the biography of Quaid-e-Azam, which be eventually published in 1945 as "Muhammad All Jinnah-A Political Study." The witness stated that he remained in personal contact with the deceased in her day to day routine, household and her personal matters". He recalled two occasions in which the deceased touched upon the question of her personal religious faith. On the first occasion in about 1952-53 while commenting about the arrangements made by the Karachi Administration in connection with the observance of Moharram Ceremonies she expressed as to why the Shias of Karachi be so aggressive. Upon the witness telling her that perhaps the Shias felt that they were not given an honest deal. She said "look, I am a Shia myself but this does not mean that I should fight with you being a Sunni". The second occasion related to the visit of the deceased in connection with her election campaign to Mardan, where a deputation of Shias sought to discuss matters with her. After having discussions with them the witness informed the deceased that they were not inclined to vote for her. Upon this, the witness stated, she became very angry and said, "it is not honest either of Field Martial Ayub Khan or of the Stile community of here to negotiate the voting before the election takes place" and further added, "go and tell them that their interests would be more safeguarded by me I being a Shia than with F. M. Ayub Khan who was a Sunni". Saying this she declined to enter into any deal or agreement with them. The witness has fir ally stated that after receiving the news of the demise of the deceased, when he went to her residence, a young man who was related to her approached him saying the witness should get the crowd present thereto agree to the funeral prayers to be held according to Shia rites as the deceased was a Shia and it was her wish. The witness, however, stated that he suggested to the deceased in her lifetime to write a biography of Quaid-e-Azam and in this connection she dictated notes on a few occasions, but she did not mention her sectarian inclinations so far as her religious faith is concerned. The veracity of the evidence of this witness was severely questioned on behalf of the plaintiff. It was contended that the words imputed to the deceased were totally inconsistent with her character and position as the sister of the founder of Pakistan, who kept himself above sectarian prejudices. The statement imputed to the young relation of the deceased at the time of the funeral prayers was challenged as hearsay.
Finally it was pointed out that in view of the admissions made by the witness that after coming over to Pakistan, M.o. Shirin Bai, defendant No, 5 stayed in his house for about a year, no reliance can be placed on his evidence. It was particularly pointed out that at that time defendant No, 5 had instituted proceedings for grant of succession certificate in which the issue of the religious belief of the deceased was raised to the knowledge of the witness yet he did not offer to appear as a witness in those proceedings nor informed defendant No, 5 about the two incidents mentioned in his evidence. He has further admitted that he did not speak of these two incidents narrated by him or disclosed the same in any writing, article or statement.
38. Having carefully analyzed the evidence, I find that the parties have largely relied upon three types of evidence on the question in issue, namely: (t) direct disclosures by word of mouth by the deceased, (2) circumstantial evidence of the conduct of the deceased and (3) opinion of witnesses. As would be observed from the discussion of the evidence adduced on behalf of the plaintiff, except one witness namely Muhammad Hanif Maniar no other witness's testimony relates to the personal disclosure of her own religious faith by the deceased. This witness in this connection only stated that the deceased had declined the suggestion to call a Shia Alim for Fateha Khwani at the death anniversary of the Quaid-e-Azarn. This statement does not necessarily lead to the inference that the deceased was not a Shia, having regard to the fact that the death anniversary of the Quaid-e-Azam was a public event in Pakistan participated by people from all walks of life and of all Muslim sects. The majority of people in Pakistan being Sunnis, in the context of the public nature of the event, the refusal to call a Shia Alim is not inconsistent with the deceased being a Shia. Be that as it may, this fact does not prove that the deceased was a Sunni.
On the side of the contesting defendant two witnesses Haji Kaloo and Matloobul Hassan Syed have imputed to the deceased direct disclosure of faith by word of mouth. As stated earlier, it is highly improbable for Mohatrama Fatima Jinnah in the presence of other ladies to have expressed her own faith of being a Shia to Haji Kaloo on the occasion of the death of Quaid-e-Azam, especially when the arrangements for the bathing of the corpse were entrusted to Moulana Anisul Hasnain who was a Shia Moulvi. It must have been understood by the very fact that the Shia religious divine was called for, that Shia rites have to be observed and therefore, there would be no occasion for an assertion to be made that the family as a whole were Shia. It was contended that it is customary for the bather to seek permission of the next of kin of the deceased before giving final bath.
Nonetheless, the answer could only be in the affirmative and no question of the manner in which the bath was to be administered would arise. I therefore, cannot place reliance on the evidence of Haji Kaloo. As regards Matloobul Hassan Syed I regret similarly to say that it would be unsafe to accept his version of the two incidents described by him wherein he happened to know from the deceased directly about her faith as a Shia. I agree with the submission that the witness's silerfce at the material time to disclose the important information to the concerned party during the proceedings when the issue was being hotly contested in the succession certificate proceedings, robs the testimony of this witness of unimpeachable quality. It may be appreciated that the witness attempted to reproduce the exact words spoken by the deceased 24 years and 12 years respectively after they were spoken. Human memory is prone to dull and distort the effect of spoken words by such long lapse of time and tends to yield itself to impressions formed by the listuer by his own inferences from surrounding circumstances in which the words may have been spoken. Furthermore it is quite clear that no record of the conversations was made either immediately or at any time thereafter.
39. For the aforesaid reasons, in my opinion, the evidence of the class under discussion that has come before the Court does not stand the test of legal scrutiny that it constitutes legal proof. I am, accordingly, bound to discard this part of the testimony and I have, therefore, taken it out of consideration as unworthy of reliance.
40. Next to consider is the evidence of conduct attributed to the deceased reflecting her religious belief. So far as the plaintiff's evidence is concerned, it comprises four circumstances.
41. The first circumstance relates to the fact that funeral prayers at the time of death of the Quaid- e-Azam as well as that of the deceased were held according to the Sunni manner and were led by Sunni Pesh Imams. As against this the evidence of the contesting defendant shows that before public funeral prayers were held, on each occasion a group of persons had offered funeral prayers in the Shia manner. Learned counsel for the plaintiff from time to time in the course of the argument emphatically contended that the fact that the funeral prayers were performed according to the manner of a particular sect is not by itself sufficient for decision as to the religious belief held by the deceased himself or herself, for obviously the matter of funeral ceremony would be in the hands of those who are incharge of the same and it is conceivable-intact it has been so held-that such persons may arrange such ceremonies not strictly according to the religious faith of the deceased but for their own reasons in some other manner. In Mst. Iqbal Begum v. Mst. Syed Begum (1) the learned Judges rejected the evidence that the corpse of the deceased was washed in accordance with the Sunni ceremonial and Sunni Imam officiated at the funeral on the ground that the deceased was married to a Sunni wife and no importance was attached to these facts in toe decision of the question of the sectarian beliefs of the deceased, which were held to be as that of the Shia sect. Obviously therefore, manner or the funeral prayers has no bearing on the issue and it has been unquestionably established that prayers id the Shia manner were also performed.
This evidence therefore, does not help either side.
42. The other circumstance on which the plaintiff relied was the fact that Quran Khwaui and Fateha Khwani ceremony on the death anniversary .Of the Quaid-o-Azam was invariably presided over by a Sunni Alim. It was contended that the conduct of the deceased in this regard extending over a long period of 20 years is clear evidence that the deceased belonged to the Sunni sect herself. I have already observed that in the context of the circumstances this fact is capable of being explained and does not indicate the personal inclination of the deceased to the Sunni sect, in view of the fact that it was a ceremony of public nature attended mostly by the majority community consisting of Sunnis. This view is further strengthened by the fact that according to the plaintiff's evidence, the deceased herself "emphatically and categorically asserted that she was neither Shia nor a Sunni but a Musalman.
43 The third circumstance appearing in the evidence of the plaintiff relates to the annoyance expressed by the deceased whenever she received any request for patronage from Shias. In my opinion, this circumstance is also not sufficient to hold by itself that the deceased was not a Shia or That she was a Sunni. This fact is narrated by Mr. G. A. Khan (Exh.. 13), Private Secretary of the deceased. The evidence clearly points out that the deceased did not personally express to even persons in close contact with her whether she belonged to one or to the other sect. She could not, therefore, have meant to communicate by the words attributed to her on these occasions that she belonged to the Sunni faith. It would, therefore, be consistent to interpret these words to mean that she did not like to publicly associate with any sectarian group.
44. The last to consider in this regard is the evidence that the deceased never observed moharram and never held any Majlis in commemoration of -tragedy of 'Karbala' and never wore the traditional black clothes for mourning Moharram. There is no evidence on the record from the contesting
(1) AIR 1933 Lah. 80 ' defendant's side that the deceased arranged any of the aforesaid ceremonies. However, there is evidence on record to show that the deceased participated in Shia Majlises whenever invited.
Plaintiff's witness Muhammad Jaffar (Exh. I a) has said that "she used to attend Shia Majlises in private houses whenever invited by friends." This constitutes a piece of evidence rending support to the version of the contesting defendant
45. In support of the plea that the deceased was a Shia Muslim the defendant No, 5 has brought on record some circumstantial evidence which may be summarized as follows :-
(I) The last bath and the burial ceremony of the deceased was performed act -1rding to the Shia manner.
(ii) The articles and personal effects secured from the house of the deceased included two Alams, two silver Panjas and certain articles with the names of the Panjtan' inscribed on them.
(ill) On two occasions the deceased wore black clothes during Moharram.
' As regards the first, it is on the record that the funeral ceremonies were taken charge of by Mr. M.
A. H. Ispahani and were conducted under his directions. This witness admits that he did not have direct knowledge about the religious faith of the deceased but had the impression that she was a Shia. The witness was asked a direct question suggesting that if the burial ceremony was entrusted to Moulana Ehteshamul Haq, he would have performed it according to the Sunni rites. The answer of the witness was in the following words "Possibly, I have nothing to say about it but I adopted the course of burying her according to the Shia rites because of the declaration which the Quaid-e-Azam had made to him in 1936, because of the form in which the burial of the Quaid-e-Azam himself took and because of the request of the Mohatrama Fatima Jinnah which she had made to him to translate my book into Urdu and Bengali without objecting to the statement contained in it about the declaration made by the Quaid-e- Azam to him in 1936. Additionally her relations were present at the time at which the rites were performed and not one of them objected to the course which was adopted by me."
' The declaration of the Quaid-e-Azam relates to the fact stated by the witness that be (Quaid-e- Azam) told him that after leaving the Ismaili faith he had become an Asna-Ashri Shia and induced other members of family to follow suit. This by no means was sufficient to infer that other members of the family did in fact do the same. Similarly the form of Burial adopted in case of the Quaid-e- Azam does not necessarily establish the religious beliefs of the deceased herself. Finally, the witness referred to the fact that he mentioned what Quaid-e-Azam had told him about the change of sect by him, in a book written by the witness and that the deceased had asked him to translate the book in Urdu and Bengali.
46. The grounds disclosed by the witness may not appeal to reason as providing him with a sound basis for forming the opinion that the deceased was a Shia Muslim but it cannot be ignored that his evidence establishes the fact that the deceased was buried according to the rites and rituals observed in the case of Shia Muslims, Whether the plaintiff himself was present at the time or not, it is obvious that no objection was raised to-the manner of burial by anyone present. It is reasonable to expect that close relations and friends of the deceased must have been present at the occasion.
However, the fact remains that no one objected to the manner in which the last rites of the deceased were performed. This fact, in my opinion, has some weight as the manner of religious rites attending a funeral is always regarded as an important matter to which the attention of friends and relations is normally attracted. No person would dare much less in the case of a personage of the position of Mohatarma Fatima Jinnah the sister of the founder of the nation, to take upon himself to direct the funeral rites in the manner of the faith different from that actually held or believed to have been held by the deceased-and in case someone dared to do so the same would not go unchallenged or objected. This circumstance along with other facts appearing in the evidence, therefore tends to support the claim that the deceased was governed by the Shia personal law. I shall at a later stage consider the effect of this circumstance in juxtaposition with other pieces of evidence.
47. As to the articles secured from the house of the deceased, defendant's witness Mirza Mahmood Baig (Exh. 5) has clearly admitted that these articles were handed over to him by defendant No, 5 after the death of the deceased through Mr. Maqbool and that no inventory of these articles was prepared immediately after the death of the deceased. In the circumstances no value can be attached to this piece of evidence.
48. As regards the fact that the deceased wore black clothes in Moharram during two separate years as stated by Raja Maqbool the bodyguard of the deceased, as already stated this fact does not clearly establish, that the deceased was a Shia.
49. The last category of evidence adduced at the trial consists of the opinion of witnesses. On the side of the plaintiff Mr. G. A. Khan, Ex-Private Secretary of the deceased stated that the deceased never told him in clear words that she belonged to any sect of Islam, Shia or Sunni. Mr. Hanif Maniar has stated that his impression was that she was a Sunni because he never saw her wearing black clothes in Moharram or attending any Shia ceremony or Shia Majlis. He, however, admits that on no occasion he enquired from the deceased if she was a Sunni or Shia. Mirza Akhtar Hussain frankly admitted that he was not very close to the deceased. Similarly, Moulana Ehtashamul Haq did not claim to have any association with the deceased. Mr. Sharifuddin Pirzada very candidly stated that he cannot say personally anything about the faith of the deceased because he had no occasion to discuss this matter with her. Mufti Muhammad Shafi has also admitted that be never met the deceased and has categorically stated that he cannot say as to whether she belonged to the Shia or Sunni sect. Mr. Muhammad Jaffar Pirbhai said that she called herself a Muslim and not a Shia or Sunni.
50. As regards the contesting defendant's evidence, Mr. M. A. H, Ispahani whose evidence has been discussed above stated ;hat according to his impression the deceased was a Shia, Mr. M. M. Kotwal, who was the legal advisor of the deceased stated that the deceased only told him that she was a Khoja and never gave out that she was either a Shia or Sunni Muslim. Mr. Matloobul Hassan whose evidence has also been discussed above stated that the deceased told him that she was a Shia.
But this witness admitted that while dictating notes to him on the biography of Quaid-e-Azarn she did not mention her sectarian inclination.
51. Keeping the evidence in juxtaposition I have come to the conclusion that the deceased did not categorically express to any of the witnesses who had appeared in this case that she belonged either to the Shia or to the Sunni sects. As against the evidence of opinion adduced on behalf of each side in support of their respective claims that she belonged to one of the sects, there is the testimony of Muhammad laffar Pirbhai which cuts right across the entire remaining testimony in bringing to light the oral declaration of the deceased that she was neither a Shia, nor a Sunni but a simple Mussalman. On the whole I have no hesitation to accept the testimony of this witness. There is no reason to doubt the veracity of this witness. His evidence has impressed me as true and unbiased. Counsel for all parties accepted the testimony of this witness as unimpeachable and sought to seek support for their respective cases from his evidence. The evidence of this witness will also be considered in greater depth at a later stage.
52. A careful analysis of the evidence led at the trial shows that following facts have been established :-
(1) That the deceased was born in Isma ili Khoja family ;
(2) that she renounced Ismail faith
(3) that she was never seen saying her prayers ;
(4) that she never generally wore mourning clothes during Moharram ;
(5) that she attended Shia Majlises whenever she was invited by friends ;
(6) that she did not observe usual Moharram ceremonies like visiting Alam or Imam Bara;
(7) that she never held Moharram Majlis herself ;
(8) that on the death anniversary of Quaid-e-Azam she always called a Sunni Moulvi ;
(9) that her funeral rites were performed according to Shia faith ; (i0) that her funeral prayers were held both according to the Shia as welt as the Sunni manner ; (1 0 that she declared that she was neither a Shia nor a Sunni but only a Muslim.
53. Mr. Liaquat Merchant learned counsel for the plaintiff urged a two-fold contention. His main contention was that the evidence established that although the deceased was born as Ismaili Khoja, after renouncing that sub-sect she became a Sunni. In the alternative, counsel urged, if the Court comes to the conclusion that it was not clearly established that the deceased belonged to any one of the sects, the decision would be governed by the Rule of presumption whereby since majority of the Muslims in this country are Hanafi Sunnis the initial presumption would be that she was a Hanafi Sunni. Learned counsel laid great stress on the evidence of conduct of the deceased and contended that the fact that the deceased invariably called a Sunni Moulvi on the death anniversary of the Quaid-e-Aza an over a period of 20 years and expressed annoyance at the suggestion to call a Shia Moulvi for the purpose was sufficient to conclude that she was a Sunni. I need not repeat the reasons why I cannot accept the contentions as have already discussed these pieces of evidence.
54. The evidence of a person's sectarian faith could come either from the personal profession orally expressed or from conduct of such nature which indicates his or her preference to the practices of either of two sects. Generally speaking the differences that can be outwardly perceived relates to the manner in which prayers are said, funeral ceremonies are held or other distinctive religious ceremonies are performed. ##The Silas generally observe Moharram for the purpose of mourning the tragedy of Karbala, in this part of the country they wear black clothes as a sign of mourning during Moharram, most of them attend Majlises where the tragic events of Karbala are recounted and visibly show the feelings of sorrow or grief. On the other hand, the Sunnis as a rule do not believe in mourning although many of them show great reverence for Imam Hussain and his companions who met their martyrdom at Karbala. However, most distinctive outwards features between the two sects relate to the manner in which they recite Kalima and say their prayers. The evidence in this case does not indicate any such circumstances from which any conclusive inference could be drawn. Whereas it is established that the deceased did not observe Moharram strictly in accordance with the Shia practices, it is in the evidence that she sometimes attended the Malaises. Similarly the fact that Quaid-e-Azam's death anniversary was presided over by a Sunni Moulvi is not of much help in arriving at a positive conclusion that she was a Sunni. But before considering the effect of evidence adduced by the parties and the conclusions to be drawn from the established facts as aforementioned, it is necessary to dispose of the question of presumption of Sunnisim.
55. As stated earlier it was contended that the burden of proof to prove that the deceased was a Shia lay upon the contesting defendant as there is a well-established rule that in this country there is an initial presumption that a Muslim is a Sunni until the contrary is proved. The following are the cases in which the rule regarding this presumption was considered or applied. Pathana v. Vasal (1), Noor All v. Malka Sultana (2), Sardar Bibi v. Muhammad Bux (3), Mat. Lqbal Begum v. Mst. Syed Begum (4), Bafatoon v. Blatt' Khanum (5), Mst. Hidayatunnisa v. Syed Muhammad All Khan (6), Jamilunnisa v. Shaikh Muhammad Zia (7) and Akbar Ali v. Muhammad All (8). The distinction between a presumption of fact and a presumption of lawj is well known. The presumption under consideration is obviously a presumption of fact and has apparently been propounded by virtue of section 114 of the Evidence Act. Phips on says that presumptions of law are arbitrary consequences expressly annexed by law to particular facts. Presumptions of fact, on the other hand, are inferences which the mind naturally and logically draws from given facts, irrespective of their legal effect. Presumptions of fact are not therefore, obligatory in the sense that the Court must raise them. I have examined the cases mentioned above and find that initially the presumption was expounded on the ground that as the great majority of Muslims in the Indo-sub-continent follow the Hanafi School of Sunni law, the Court must presume that Muslims in the subcontinent follow the Hanafi Law unless tie contrary is alleged and proved. Sn ,Ikbar Ali v. Muhammad Ali, Tyabji, J., observed as follows :- '"These are presumptions based on the number of followers of each sect on the principle of providing for the ordinary course of thing."
(1) PLD 1965 SC 134 (3) PLD 1964 Lah. 480 (5) I L R 30 Cal. 683 (7) AIR 1937 All. 547 ' It is not easy, however, to conceive of a case so devoid of all other circumstances from which the religion of the parties can be inferred, that this presumption from numbers should effectually come into operation."
' Similarly, in Sardar Bibi v. Muhammad Bux (1) Kaikaus, J. (as he then was), while cc sneering the contention whether such a presumption should apply in the case before him, after considering the previous decisions summarized his conclusion in the following words : "I would agree, therefore, that the Court may presume that a deceased person was a Hanafi till the contrary is proved, and ordinarily it will raise this presumption, and let me hope, as did Tyabji, J., in Akbar Ali v. Muhammad Alt that them will be no case so devoid of circumstances from which religion of party may be inferred, that there should be a necessity for the application of the presumption even after evidence is led. The presumption however, is one of fact and the Court may refuse to give client to it in the circumstances of a parti'ular case. 1-or instance if the deceased made a will stating that he was a Shia, or was the founder of some Shia Waqf like an imame bars, the Court would refuse to make a presumption and would direct the patty alleging the deceased to be a Hanafi to prove it."
In the rest of the cases cited above either the presumption was not resorted to and the cases were decided on evidence or the presumption was applied in cases where no plea regarding the secierian beliefs of the person concerned, was taken in the pleadings. Presumptions of fact are essentially rules of evidence governit g the question of burden of proof. It is now well settle that the question of burden of proof becomes immaterial when the entire evidence is led and can be invoked only in cases where the evidence is so evenly balanced that the Court cannot come to any definite conclusion or when no evidence is led at the hearing.
56. Therefore, since evidence has been led by the parties this is no one of those cases where the initial presumptions stated above would arise. Nor am I confronted with the situation that evidence on each side is so evenly balanced that I am unable to come to a definite conclusion so that the presumption be invoked. I am clearly of the opinion that the evidence is by no n easily balanced and although it is not possible to come to a conclusive decision, it is nevertheless not difficult to come to a finding upon the principle of preponderance of evidence which is the criterion for decision in civil proceedings. The analysis of evidence adduced at th trial, as discussed in the foregoing part of this judgment, no doubt shows that there are only scattered bits and pieces bearing on question of faith of the deceased and on the whole the case lacks in clear or decisive evidenc on the issue. As is well recognized, in civil cases a mere preponderance o probability is a sufficient basis for decision and hence Courts can decide on the balance of probability.
57. Now the issue as framed merely puts up for determination the question whether the deceased was a Sunni. Mr. Ibadat Yar Khan very emphatically contended that, this being so, the issue can be decided in the negative without going into the mass of evidence adduced at the trial on the basis of the testimony of Mr. Muhammad Jaffar Pirbhai to the effect that the deceased in reply to the question of the witness stated that she was
(I) PLD 1954 Lah. 480 ' neither Shia nor Sunni. Counsel contended that this piece of evidence coming from the plaintiff's own witness, conclusively answers the question at issue that sbe was not a Sunni. However, in my opinion the Court is required to adjudicate the real controversy and cannot close its eyes upon 'the pleadings. The plea in defence by the contesting defendant is that the deceased was a Shia and the said defendant has led evidence in support of her plea. The controversy between the parties therefore, is whether the deceased was a Sunni or a Shia which requires to be determined in order to ascertain what law of succession would govern the case. This is particularly so in view of the nature of the suit which is for administration of the property of the deceased. Here however, it is necessary to deal with the alternative plea advanced at the hearing by Mr. Aziz Munshi, learned counsel appearing for defendants Nos. 1 and 2,
58. As already stated defendants Nos. 1 to 4 fully supported the plaintiff as they have common interest in the claim to the estate of the deceased.: Mr. Aziz Munshi, therefore, adopted the arguments of Mr. Liaquat Merchant' to the factual controversy between the parties as embodied in the issue; under discussion. However, he made a very novel and ingenious submission that in case the Court comes to the conclusion that the evidence established that the deceased belonged to neither sect but to have been a pure and simple Mussalman, then the Court mist have recourse to the fundamental source of Islamic Law as contained in the text of the Holy 'Qur'an or apply the mandates contained therein for the decision of the question of succession. According to the learned counsel if the deceased categorically disowned and rejected the Sunni or the Shia sects of Islam and proclaimed to be a Mussalman above sectarian classifications, she had to be governed by the Islamic Law interpreted by the Court directly on the basis of Qur'an free from the jurisprudential theories of the two sects. This is obviously a novel point which in all probability has never been presented to any Court before as it was c ',needed that there is no reported precedent of such a case. The counsel addressed a very well prepared argument and with the help of the well-known treatises on Islamic Law sought to bring out the differences between the interpretations and juristic theories of two schools of thought. He took me to the relevant verses of the Sura Mu" F (fourth Sura) of the Holy Qur'an and contended that the Quranic verses in the said Sura specifically deal with the right, of inheritance of a sole surviving sister and provide that a sole surviving sister would be entitled to half share of the estate. Counsel, therefore, contended that the other half must go to the agnates of the deceased. In support of his contention that it is permissible for the Court to directly interpret the text of the Qur'an even on matters in which authoritative opinion of the doctors of Muslim jurisprudence of great antiquity is available, he cited some decisions of the Supreme Court and the High Courts of Pakistan.
59. I find no substance in the contention for more than one reasons. The ultimate question at issue between the parties in this suit is as to the personal law of succession which governs the devolution of the estate. Ini other words the question is whether the plaintiff is the lawful heir of the deceased which in turn depends upon the decision of the question as to whether the deceased at the time of her death was a Sunni or a Shia. The legal relevance of this question arises by virtue of the operation of the provisions of West Pakistan Muslim Personal Law (Shariat) Aoplication Act, 1962 (hereinafter referred to as the Shariat Act of 1962). The undisputed position as regards the Khoja Muslims of India during the British netiod was that in matters of succession and inheritance they were governed by the Customary and Hindu Law but by the enforcement of the Muslim Personal Law (Shariat) Application Act, 1937 except testate succession in all matters of personal law all the Muslims including the Khojas were governed by the Muslim Personal Law which abolished the Customary and Hindu Law in their application to Muslims. As regards the testate succession an option was given to such persons who were not governed by the Muslim Law to adopt its application by making a declaration before the prescribed authority. The Shariat Act of 1937 in its application to West Pakistan was repealed by Shariat Act of 1962 which extended the Muslim Personal Law to all matters including the testate succession. Section 2 of this Act may with advantage be reproduced as under I- "Notwithstanding any custom and usage, in all questions regarding. Succession (whether testate or intestate), special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, iVaqfs, trusts and trust properties, the rule of decision, subject to the provisions of any enactment for the time being in force, shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."
The bare reading of the enacting part of the section will clearly reveal that: on proof that a person was a Muslim, the Muslim Personal Law or Shariat would directly govern the matter of succession to his property. But the question for consideration is as to what is meant by "Muslim Personal Law".
Obviously the Statute itself has used this expression to mean Shariat or Vice G. Versa. Now it is well established by a long line of authorities both in pre-Independence and subsequent decisions that the members of each sect are to be governed by the sectarian law applicable to them. The earliest decision on which I could lay my hands, in this regard is a case of 1841 via. Rajah Deedar Hossain v.
Ranee Zuhoor-Oon-Nissa (1). In this case their Lordships of the Judicial Committee of the Privy Council were considering the provisions of Regulation XI of 1973 which had a parallel provision providing for the succession and inheritance in the case of Mahomedans to be governed by Muhamedan Law. It was held in that case that according to the true construction of this Regulation, in absence of any judicial decision or established practice limiting or controlling its meaning. The Mahomedan Law of succession applicable to each sect ought to prevail as to litigants of that sect. It was further observed as under "It is not said that one uniform law should be adopted in all cases-affecting Mahomedans, but that the Mahomedan Law, whatever it is shall be adopted. If each sect has its own rule according to the Mahomedan Law, that rule should be followed with respect to the litigants of that sect. Such is the natural construction of this Regulation, and it accords with the just and equitable principle upon which it was founded, and gives effect to the usages of each religion, which it was evidently its object to preserve unchanged."
But the argument of the learned counsel is that if none of those laws is applicable in case the finding is that the deceased was neither Sunni nor Shia, the case will be governed by the Muslim Law as interpreted by th Court. In my opinion, the argument is fallacious inasmuch as the acceptance of the same would amount to creating of new system of Persona Law applicable to cases of such Muslims who did not belong to any
(1) 13 Moor's I A 441 ' sect of Islam. The dictionary meaning of the term Shariat in Arabic is "Law; Statute". The meaning of the expression 'Personal Law' in Black's Law Dictonary is as follows. As opposed to territorial law, is the law applicable to persons not subject to the law of the territory in which they reside. In the note underneath the following remarks are noted :- "It is only by permission of the territorial law that the personal law can exist at the present day; e.g., it applies to British subjects resident in the Levent and in Mahomedan and Barbarous countries.
Under the Roman Empire, it had a very wide application."
' In the book `Roman Law and Common Law' by Buckland and Nair (2nd Edition) at page 24 in Chapter 2 relating to law of persons, while elucidating the difference between territorial and personal law under justinian, the authors observed as under :- "A person not a member of the community but permanently settled' there, had the same rights in commercial law, but was governed in the matter of family law and succession by the law of his own community if he had one."
The origin of the rule pertaining to the application of personal law, therefore, appears to go back to the days of the Romans and has been continued up to the present day in some countries. The genesis of the application of Muslim Law in the sub-continent, which is the basis of its continuance in the present day in Pakistan, is therefore the distinction between territorial and personal law that prevailed under the ancient Roman Law.
60. In this perspective therefore, it is not difficult to see that the true legislative intent expressed in section 2, Shariat Act of 1962 was to apply the secretarian laws already prevalent and applied to the various sects of Islam In case of the members of each such sect. The language of the section cannot be construed to mean that the Court by its own process of reasoning r or interpretation can formulate legal rules in cases where authoritative exposition exists on any matter, for by doing so the Court would not be applying the personal lay of the sect concerned but the Muslim Law as understood and interpreted by the Court by its own light. By this 1 do not mean to say that the power of the Court to interpret and apply to a given set of facts the sect law should in any way be impaired. What I mean to say is that after having determined the question as to which of the sect laws is applicable in a case, the Court is bound to decide the case according to the recognized jurisprudential theories of the particular sect and cannot by its own inference or interpretation of the provisions of the Holy Qur'an adopt the legal theory of the sect. To give a practical example, in the case of inheritance and succession there is a fundamental divergence in the philosophic cases of Islamic Law between the systems of Sunni and Shia jurisprudence. The Sunni jurisprudence recognizes two basic material sources of Sharia Law-the Qur'an, the divine word itself, and the Sunna, the divinely inspired precedents set by the Prophet. For the Sunnis this constitutes the limit of divine revelation, since they believe that Muhammad (may peace be upon him) was the last person to have contact to the divine will. Accordingly, the further elaboration of law was a process of juristic reasoning which involved, in particular, the extension of the principles embodied in the divine revelation by the method of analogical deduction or Qiyas. For the Shias, however, divine revelation was so limited in point of substance or time. In their belief the divine will continue to be transmitted, after the passing away of the prophet, to the line of their own recognized leaders or Imams. Accordingly, they maintain that, in addition to the Qur'an and the Sunna, the pronouncements of their Imams constituted divine revelation and therefore binding law. In the matter of inheritance and succession the consistent feature of Sunni jurisprudence is the interpretation of the Qur'anic texts in the light of customary criterion of the priority of male agnates in succession. Shia jurisprudence, on the other hand, regards this as a wholly unwarranted proless of forcing the text of the Qur'an to conform to preconceived nations of succession. They insisted that the words of the Qur'an should be taken at their face value. According to the Sunni view the Qur'anic rules serve, to qualify and matigate the customary system of agnatic succession and so do, broadly speaking, only to the extent of their express terms. For the Shias, on the other hand, the particular regulations of the Qur'an embody, by implication, the general and fundamental principles of succession. In the final analysis, therefore, the distinctive features of the Shia system of succession are attributable to a particular jurisprudential view of the nature and scope of Qur'anic legislation. This view was natural and integral part of fundamental Shia political ideology, which in turn was grounded upon the religious conviction that Islam meant a new way of life completely divorced from previous practice and not merely, as it did for the Sunnis, a reform of that practice.
Tyabji in his book Mahomedan Law (III Edn.) at page 926 while discussing the Hanafi and Shia interpretation of Qur'an, stated the difference between the theories of the two schools in the following words :- "The general provisions of Qur'an with reference to inheritance have been interpreted by the Hanafis strictly retaining the substratum of pie-Islamic Customs. The Qur'an has not been taken to alter or affect the basic conception existing in Arabia regarding proximity of Kinship. So the Hanafi interpretation of the law, permits those women alone to compete with the customary heir, in those cases the only bar to recognization (under the Customary law), was their sex fix, female agnates.
The Shias on the other hand, have, on the strength of such verses, removed the basic distinction made by custom between agnates and cognates. They interpret the Qur'an as placing those who are related through women on a footing of equality with those related through men. The result is that with the Shias the agnates have no priority over the cognates, and proximity is reckoned merely by counting the connecting links, whether male or female."
61. The divergence in the two systems of law is therefore, fundamental and based on the underlying philosophy and approach to the interpretation of the Qur'an. In the very nature of things therefore, a parson belonging to one sect cannot be subjected to the laws governing the other as the distinctive rules for inclusion or exclusion of heirs directly flow from the basic theory under lying each system of law. It could not therefore, be the intention of law to apply a uniform system to the Muslims belonging to both sect I cannot see, therefore, how a new theory can be propounded for the interpretation of the text of the Qur'an in the matter of succession which can be independent of the rival theories of great authority and antiquity propounded by the two sects. Indeed, learned counsel did no suggest any such interpretation o' the regulations of the Qur'an which could independent of the two recognized systems. The interpretation he sought to place upon the verses of Qur'an were exactly in consonance with the Sunni theory of interpretation under which the sister being tee Qur'anic sharer is entitled to half 'of the estate and the other half goes to the customary heirs con-prizing the agnates of the porosities.
62. In order to support the proposition that the Court is competent to undertake the interpretation of the Qur'an, learned counsel relied upon some decisions of the High Courts of Pakistan and Supreme Court in which the verses of the Qur'an were taken into consideration for the decisions of questions touching matters like %hula", life estate and divorce. But in all these decisions the controversy was as to what the Muslim Law was on a particular subject and the question of the sectarian law was not in dispute. All these cases related to the interpretation of the Harafi Law and its exposition by the great Imams of that school Apart from the fact that there is some divergence of opinion between the several Imams of that school, the Imams, themselves did not claim finality for their exposition of the Muslim Law, leaving scope for the subsequent generations of jurists to form their own opinion if they felt compelled to differ from theirs. It is in this context that in these cases the Court resorted to its own interpretation of the law with the help of the authorities or directly invoking the text of the Qur'an. These cases are therefore, no authority for the proposition that the Court can do away completely with the authoritative interpretation and evolve an entirely new mode of interpretation of :Muslim. Law.
63. The other simple reason for rejecting this submission is that the pleadings of the parties do not raise the question of the deceased belonging to neither of the sects or of being only a Muslim. The case of the plaintiff is that the deceased was ,a Sunni. Defendants Nos. 1 to 4 in then written statements, admit this and therefore, their plea in their pleadings is also that she was a Sunni.
Defendant No, 5 on the other hand, denied this plea and contended that the deceased was a Shia.
Therefore, none o the parties raised the alternative plea that the deceased was a simple Muslim belonging to neither sect. It is therefore, that the only issue between the parties is whether the deceased was a Sunni or a Shia. It was nobody's case so far as the pleadings are concerned that the deceased belonged to neither sect. This being essentially a question of fact, under Order VI, rule 2, C. P. C. It was incumbent on the party interested in raising this plea to specifically take such a plea in his pleading. The question has been raised for the first time in the evidence of P. W.
Muhammad Jaffar Parthia. It is well settled that the Court is not bound to decide a matter on which no issue has been framed and where the pleadings omit iaterial facts, the party will not be permitted to lead evidence which is at variance with the issue. If authority is required cases reported in 1968 SCMR 804, PLD 1964 SC 68 and P LD 1971 Kar. 505 may be referred to. The plaintiff having pleaded specifically that the deceased was a Sunni cannot be allowed to rely on the inconsistent alternate plea that she was N neither Sunni nor Shia. In this view of the matter I am clearly of the opinion that no decision can be given on this question and the plaintiff and defendants Nos. 1 to 4 cannot be allowed to raise this contention.
64. Now the issue between the parties is whether the deceased was a Sunni or Shia. On the one nan the plaintiff's evidence seeks to support the plea with positive and negative facts established by evidence. On the positive side is the only circumstance that at the death anniversary of Quaid-e- Azam invariably a Sunni Moulvi presided the Fateha Khwani. On the negative side the facts established are (1) that the deceased showed annoyance at requests for patronage by Shia Community; (2) that she refused to call a Shia Moulvi for the Fateha Khawani of the Quaid-e-Azam; and (3) she did not observe Moharram by wearing black clothes or by arranging Majlisetw at her residence.
65. In the evidence of the contesting defendant, on other hand, the facts established are: (1) that on the occasion of decease of Quaid-e-Azam, a Sbia Moulvi was called for the last rites which were conducted according to Shia manner; (2) the funeral and last rites of the deceased were similarly held; and (3) she attended Shia Majlises.
66. As against this there is the evidence of Mr. Muhammad Iaffiu Pirbhai (plaintiff's witness) which apparently cuts across the pleas of both sides as it attributes a direct assertion to the deceased that she belonged to neither sect and was a simple Musalman.
67. I have already discussed above that it is not permissible for any party to seek a finding in terms of this statement and that a finding has to be given on the question rose in the pleadings only. I may furthe clarify that the issue as to the faith of the deceased does not arise in a religious context or in any manner with the object of fixing the exact religious beliefs of the deceased but only in order to decide the contending claims of the parties to the estate of the deceased which has to be disposed of by the application of the appropriate personal law in the juristic sense.
68. It was contended on behalf of the contesting defendant that this statement should not be taken in the literal sense and out of its context. It was pointed out that the deceased had stated that she was above-sectarian differences and was a simple Musalman in the context of the conversation which, as the witness has stated commenced with the comments of the deceased regarding the manner in which the Shias mourn during. Moharram. The question as to the effect of the words of the deceased have on the evidence as a whole has vexed my mind a great deal.
However, Mr. Pirbhai categorically stated that the deceased used to attend Shia Majlises in private houses whenever invited by her friends. Another important circumstance which has a bearing on the meaning of words , uttered by the deceased, is the fact that the deceased along with Nawabzad Liaquat All Khan after the death of the Quaid-e-Azam had submitted an application in the Chief Court of Sind under section 372 of the Succession Act, 1925 for grant of a succession certificate in respect of debts and securities belonging to the Quaid-e-Azam bearing Misc.
Application No, 54 of 1948. In this petition which was drafted by Mr. M. M. Kotwal, following two paragraphs stated as under r- "(3) That the deceased at the time of his death left surviving th following persons as his next of kin according to Shia law applicable to Khojas viz. (the names of the daughter, and four sisters of the al Quaid-e-Azam including Miss Shirin Bai and Miss Fatima Jinnah and their addresses are mentioned).
(5) That by the said will the deceased appointed the petitioners executors thereof jointly with Muhammad Ali Chaiwala, solicitor of Bombay having his office known as Muhammad Ali & Company, situated at No, 15, Military Square Land, 4th Bombay No,
1. The said deceased being a Shia Khoja Mahomedan, the provisions of section 213(2) of the Indian Succession Act did not apply in the case of the aforesaid will made by the deceased."
' This petition bears the signatures of Miss Fatima Jinnah and the Late. Nawbzada Liaquat All Khan as proved by Mr. M. M. Kotwal (Exh. 26). Mr. Kotwal stated in his evidence that he drafted these paragraphs under instructions of Miss Fatima Jinnah and Late Nawabzada Liaquat All Khan. On the basis of these statements it was forcefully contended by Mr. Ibadat Yar Khan, learned counsel for the contesting defendant that therein lies the key to the true intent and meaning of the assertion made by the deceased that she was a simple Musalman. As held by my Lord the Chief Justice in the judgment in Misc. Application No, 11 of 1968 pertaining to the succession certificate in respect of the debts and securities of Mohatrama Fatima Jinnah, the Quaid-e-Azam always asserted that he was neither a Sunni nor a Shia but a Musalman first and last. The significance of the statements contained in the aforesaid Petition No, 54/1948 that Quaid-e-Azam was a Shia Khoja Mahomedan and his next of kin were mentioned according to the Shia Law, in this case arises not on account of the faith of the Quaid-e-Azam being in issue but on account of a different reason altogether. The significance lies in the fact that in spite of the deceased being the closest member in the family to the Quaid-e-Azam, upon his decease she asserted that he was governed by the Shia Law. I was in this sense that the learned counsel for the contesting defendant urged that similar assertion made by deceased herself had nothing to d with the choice of law governing the matter of succession of her property. I find great force in this contention and it appears to me that so far as th deceased is concerned, she did not mean to assert that she would not governed by either the Sunni or Shia system of law in matters of personal law as she herself has been shown not to have interpreted the words of th Quaid-e-Azam of similar nature to mean that.
69. However, Mr. Liaquat Merchant questioned the admissibility of this evidence on the ground that the statements made by the deceased are inadmissible in evidence under section 32 and section 33 of the Evidence Act. I am rather surprised at the objection raised as the plaintiff's own evidence is full of facts which consist of statements attributed to the deceased. As observed earlier these statements are relevant under section 14 of the Evidence Act showing the existence of the state mind of the deceased. Under this section illustration (m) states that where the question is as to the state of his health at the time when an assurance on his life was effected, statement made by A as to the state of his health at or near the time in question, are relevant facts. In any case the facts relied upon would be relevant under section 8 of the Evidence Act as res jestae. In Lloyd v. Powell Duffryn Steam Coal Company Limited (1) a posthumous illegitimate child claimed compensation under the Workmen's Compensation Act as a dependent of its putative father, who was killed by accident, evidence of statements made by the deceased to the effect that he acknowledged the paternity of the child and that he intended to marry its mother before the child was born were held to be admissible both on the issue of paternity and on the issue of dependency, as evidence of the state of mind of the deceased in relation to the child. It was observed at page 748 of the report by Lord Shaw of Dunfermline as under "In a question of status, I am of opinion that such statements, proved to have been made at the time and in the circumstances such as occurred in the present case, are part of the res jestae equally with actual contracts entered into by the deceased or conduct apart from words, both of which contracts and conduct could undoubtedly have been proved. I agree with the view that statements made at
(1) 1914 A C 733 ' the time are, in this question of status, similarly admissible evidence. I cannot, speaking for myself, held that they can be excluded because of the English rule as to statements not made against interest."
70. In view of the above I have no doubt that the statements made by the deceased in the said petition made by her in regard to succession certificate relating to Quaid-e-Azam's securities, are admissible pieces of , evidence. I have also no doubt that these statements have been legally proved. The fact that in spite of the categorical assertions made by the Quaid-e-Azarn on various occasions in his lifetime, that he was a Muslim above sectarianism, the deceased chose to assert in her petition to this Court that he was governed by Shia law, irrespective of the validity of the assertion so far as the religious faith of the Quaid-e-Azam, has, in my reckoning, great probative force that on the same analogy, her own assertions of similar nature were not intended to displace the application of personal law of the sect in the matters governed by personal law. Her declaration therefore, that she was neither a Sunni nor a Shia but a pure Mussalman cannot be construed to mean that she intended to disown the application of the personal law of both schools of law. In this way, to my mind, this circumstance tends to neutralize the effect of the assertion of the deceased under consideration and leaves the matter to be considered on the basis of other circumstances. In some degree this circumsta! Ce tends to support the plea that the deceased regarded herself also to be governed by the Shia Law on a parity of reasoning vis-a-vis her assertions about the application of Shia Law to the succession of Quaid-e-Azam.
71. The cumulative effect of all these circumstances is that the preponderance of evidence adduced at the trial leans in favour of the conclusion T that the deceased chose to be governed by the Shia Law and not by the Sunni Law. The first issue is therefore, answered in the negative.
72. Mr. Saeeduz Zaman learned counsel appearing for defendants 3 and 4 supported the case of the plaintiff. He further submitted that in case the Court comes to the conclusion that the deceased did adhere to the doctrines of any sect of Islam then the case has to be decided by the application of the principles of justice, equity and good conscience. He supported his submission with some decisions. But in view of my finding on issue No, 1, it is not necessary to consider this argument.
73. As a result of the finding on issue No, 1, I hold that the plaintiff has no right to the inheritance of the deceased as according to the Shia Law the entire estate left by the deceased will devolve upon her sister defendant No,
5. Similarly defendants Nos. 1 to 4 have no right to share the inheritance.
Issue No, 2 is also, then fore, answered in the negative.
74. The only remaining issue relates to maintainability of the suit. Mr. Lbadat Yar Khan contended that the present suit is not competent inasmuch as the right claimed by the plaintiff was denied to his knowledge before the filing of the suit and therefore, no suit for administration was maintainable at the instance of the plaintiff until by a separate suit he established his right and status as lawful heir of the deceased. Alternatively counsel contended that the suit as framed is not one for administration in so far as the main relief sought is for partition of the properties. The relief sought in the plaint are for (1) administration of the estate of the deceased under the order of the Court; (2) rendition of accounts by defendant No, 5 of the estate which has come to her hands; (3) payment , of debts and liabilities ; and (4) for partition of the estate between the heirs. This is clearly therefore, a suit for administration of the property of the deceased. Order XX, rule 13 of the Code of Civil Procedure along with the relevant forms in the Schedule appended thereto clearly show Oat a next of kin can maintain a suit for administration of the property of a deceased person.
I therefore, find no legal flaw as to the form or maintainability of this suit. This issue is accordingly answered in the negative.
75. In view of the above findings and conclusions, the suit is dismissed with costs.