1. ANWARUL HAQ, J---This petition seeks a review of the order of this Court dated the 15th of January 1976 whereby Civil Petition for Special Leave to Appeal No. 148-R of 1975 was dismissed.
2. The dispute in this case concerns the allotment and transfer of evacuee land in Pakistan in lieu of the area abandoned by the petitioner's father Faiz Muhammad Khan in a village in Patiala State. It appears to be a common ground between the parties that Faiz Muhammad Khan was killed in September 1947 during the Partition disturbances.
3. On 19-10-1942 Faiz Muhammad Khan had made a registered will bequeathing certain areas of agricultural land in favour of his wife Mst. Jiwi for her life for maintenance after his death, as well as her two sons Ramzan Khan and Muhammad Habib Khan who are petitioners before us. He had thus excluded his son Muhammad Sharif Khan from his first wife Mst. Karam Daulat on the ground that this boy had been adopted by another family and was to inherit from there, However, on the 18th of January 1947 he made a gift of the same land in favour of the petitioners and their mother Mst. Jiwi, more or less in the same terms as the registered will of the 19 of October 1942. The gifts were, however, not given effect to in the revenue records before independence.
4. On migration to Pakistan the heirs of Faiz Muhammad Khan including his three sons and five daughters as well as the surviving widow filed claims for the allotment and transfer of evacuee lands. The petitioners made applications under Paragraph 52 of the Rehabilitation Settlement Scheme for giving effect to the will and the gifts in their favour but this request was not accepted by the Settlement authorities. Their writ petition was also dismissed by the High Court, but ultimately in Civil Appeal No. 55 of 1963decided by this Court on 9-12-65 the matter was remandedth to the Settlement authorities for determining the question whether the will could be given, effect to under Paragraph 52 of the Scheme and also for considering the effect of the subsequent gifts on the operation of the will. After remand the Rehabilitation Commissioner again declined to give effect to the will or the gift deeds and maintained the previous order as to inheritance of the deceased right-holder in terms of Paragraph 46 of the Scheme. This order was challenged once again by the petitioners in the High Court, but their writ petition was dismissed on the ground that by virtue of subsequent gift deeds the earlier will in favour of the petitioners stood revoked This view has been upheld by this Court in the order under review.
5. It is submitted by Mr. Jamil Hussain Rizvi, learned counsel for the petitioners, that: --
(i) Since the parties were governed by custom in India, the will made by Faiz Muhammad Khan in 1942 could not be invalidated by applying provisions of the Muslim Law as to the effect of the subsequent gifts made in 1947, nor could it be set at naught by the application of Paragraph 46 of the Rehabilitation Settlement Scheme, but this Court had overlooked this aspect of the matter while dismissing the petition for special leave to appeal;
(ii) In any case, the sisters, of the petitioners had made an. Admission as to the validity of the will and the gifts in favour of the petitioners and, therefore, to that extent at least the Courts should have given effect to these dispositions; and
(iii) The result of the orders made by the Settlement authorities as well as by the High Court and this Court is that the petitioner---s step brother Muhammad Sharif Khan has managed to get inheritance from two families, whereas the petitioners have been deprived of theirlegitimate share under the will and the gift in their favour.
6. After hearing Mr, Jamill Hussain Rizvi at some length, we find that there is no substance in these submissions, except that it is correct that the effect of the orders made at successive stages in this case is that the petitioners have not been able to get more than their Muslim Law shares in the inherit--ance of their father, and that their brother Muhammad Sharif Khan has also managed to get some land as the adopted son of another family, but there is no question hereof the petitioners having been deprived of their due share in the inheritance of their father. In any case, the questions of law arising for decision in this case could not have been decided with reference to the supposed hardship caused to the petitioners by the enforcement of the provisions of the Shariat Law, its contemplated by Paragraph 46 of the Settlement Scheme.
7. It has been held by the Settlement authorities as well as by the High Court and this Court that the will made by the late Faiz Muhammad Khan in 1942 stood impliedly revoked by hint when he gifted the same property in favour of the petitioners and their mother in 1947 This position obtains not only under the Muslim Law but also under the customary law, as the testator remains competent to deal with his property during his lifetime, in accordance with custom, even if he has made a will. If any such subsequent alienation or disposition by him is valid under the custom, then the will would stand impliedly revoked. Mr. Jamil Hussain was not in a position to show us any provision of the customary law to the contrary. The position under the Muslim Law of course is well-settled, namely, that the earlier will stood impliedly revoked when the testator parted with his property rights in the property concerned by making a gift in 1947. In these circum-- stances, the question of enforcing the will did not arise at all. In any case the Settlement authorities were also right in saying that Paragraph 52 of the Rehabilitation Settlement Scheme was not attracted to the case of a will where death has not occurred before Partition.
8. The only question therefore, was whether the gifts made by Faiz Muhammad Khan could have been acted upon in Pakistan even though the relevant mutations had not been entered in the revenue records. In this behalf, unfortunately the matter was hit by the concession made by the learned counsel for the petitioners before the High Court that there was no evidence to show that the gifts could not be given effect to in the revenue record due to partition disturbances. As a result of this concession, the matter was taken out of the purview of Paragraph 52 of the Scheme, and as the gifts were not reflected in the special Jamabandi prepared under Paragraph 29 of the Scheme, the petitioners could not take any benefit thereunder.
9. The contention that the sisters of the petitioners had assented to the will in favour of the petitioners has no relevance, as the will has been found t have been impliedly revoked by Faiz Muhammad Khan during his lifetime. If, however, the sisters of the petitioners do not wish to take their Muslim Law Share in the inheritance of their father, it is for them to abandon the same in favour of the petitioners, but their consent or otherwise has become irrelevant as the will is no longer operative.
10. It will be seen, therefore, that the will having been revoked by the subsequent gifts trade by Faiz Muhammad Khan, the only question for consideration was whether the petitioners could benefit from the gifts made in 1947. This benefit has been denied to the petitioners by the Settlement authorities for the reason that the case was not brought within the ambit of Paragraph 52 of the Rehabilitation Settlement Scheme. In these circum--stances, the matter was rightly held to be governed by Paragraph 46 of the Scheme, according to which the petitioners were entitled only to their share according to the Muslim .Law of inheritance.
11. For the foregoing reasons, we do not think that any justification is made out for a review of, our previous order. The petition accordingly fails and is hereby dismissed.