1. ' WAJIHUDDIN AHMED, J.---This was a suit initially filed in the District Court at Karachi that was later withdrawn by the petitioner for want of pecuniary jurisdiction and instituted on the original side of the High Court of Sindh, coming to be numbered as Suit No,457 of 1976. There the plaintiff (petitioner) maintained that he was one of the sons of late Sheikh Abdul Khaliq of Mangrol, who expired in 1943, having been succeeded by his elder son, the defendant No,1 (respondent No,1 here).
2. Subsequently, during the pendency of the Suit, the defendant No, 1 expired and his son and daughters, defendants Nos.2 to 6, were impleaded as the legal representatives. Defendants Nos.7 and 8 were a daughter and another son of late Sheikh Abdul Khaliq. In the suit it was claimed that the defendant No,1 had sought displaced persons' compensation in respect of the private properties of late Sheikh Abdul Khaliq and that having been done for self and the other heirs of the late Sheikh, the compensation allowed, as also the properties acquired in lieu thereof, belonged to all such heirs and the plaintiff's share therein was 2/7th of the estate. Nawab/Shaikh Nasiruddin (defendant No,1) who, as already noted, had succeeded as the Ruler of the State of Mangol in 1943 and who acceded to Pakistan, upon the creation of the dominions of India and Pakistan, entered defence in the suit and said that the rule of primogeniture was followed in Mangrol and the being so the Ruler, for the time being, settled such properties and assets on his other legal heirs as he thought fit during his lifetime alone. In respect of part of such allocation in favour of the plaintiff, the plaintiff, allegedly, had himself submitted a compensation claim and had also succeeded in that behalf. Thus, on the part of the defendant No,1, whatever claim was lodged and properties acquired such had exclusively been in relation to the private properties, which belonged to that defendant, at the time of the accession of Mangrol to Pakistan, the accession itself having resulted in the arrest of the defendant No,1 by the invading Indian forces and the State properties having been acquired by the Government of India, first through the Mangrol and Manavadar (Administration of Property) Ordinance, 1948 (XXII of 1948 issued on 16-8-1948) and then per Act H of 1949 (AIR 1949 Indian Acts 51). It was specifically denied that the defendant No,1 ever acted on behalf of his other brothers and sister while filing his own compensation claim. Maintainability of the suit was also questioned. On the basis of these pleadings the following issues were struck by the High Court, trying the suit:- "(1) Whether the defendant No,1 as a refugee obtained compensation in cash and kind for private property of the joint family inherited by all the successors of late ,Shaikh Sahib Abdul Khalique?
(2) Whether the defendant No,1 filed claim for compensation on behalf of all other sharers and asked them not to file separate claims?
(3) Whether the suit property was granted to defendant No,1 ,as his personal property and not to the Ruling Family of Mangrol State, if yes, what is its effect?
(4) Whether the law of primogeniture prevailed in and followed by Ruling family in Mangrol State?
(5) Whether this Hon'ble Court has no jurisdiction to try this suit? If yes, what was its effect?
(6) What should the decree be?"
3. ' The High Court, on its original side, took up Issues Nos.1, 2, 3 and 4 together. It was found that the defendant No,1 has filed the compensation claim exclusively in his personal capacity and, that having been allowed, also obtained some properties in lieu thereof. It was further found that the plaintiff himself had submitted a claim in respect of his personal properties and the Deputy Claims Commissioner had allowed the same under Schedules 1, 5 and 6 where against the plaintiff preferred an appeal in which the value was enhanced. The High Court also observed that in the affidavit filed by the plaintiff (Exh.6/7) the plaintiff spoke of the properties claimed by him viz, a residential bungalow, a building site plot and a garden, admeasuring 40 Bighas, making no mention whatever that in respect of any other properties, belonging to him, jointly or otherwise, any claim had been preferred by the defendant No,1, has brother and the acceding, but displaced, Ruler of the State of Mangrol. The learned Single Judge in the High Court then observed that there was no conclusive and authentic evidence to establish that the defendant No,1 had asked the plaintiff or his other brothers and sister not to file their compensation claims or that he would be filing such in a representative capacity. The claim of the defendant No,1, upon this reasoning, was allowed in respect of properties like rest houses, palaces, and gardens attached thereto, which were treated, by the Claims Department as well as by the Government of Pakistan, as the personal properties of such Ruler. The High Court concluded that as regards the agricultural land there was no evidence on record to show that the same was held by the said Ruler on behalf of any co-sharer. Besides, agricultural land, admeasuring 21 acres 4 Ghuntas, was shown by the defendant No,1 to have been purchased by him through a conveyance deed, dated 18-11-1971. Much the same, as above, applied to factory unit No,2 and workshop unit No,3, since the same were claimed by the defendant No,1, upon succession to his father, in virtue of the rule of primogeniture, which was found by the learned Single Judge to have prevailed in and followed by the ruling family of Mangrol Summarising the finding it was observed:-- "From the evidence of both the parties it emerges that the brothers of the Rulers were granted land in lieu of their right to succeed to the properties left by their predecessor. They were called Bhayath.
4. The plaintiff admits to have received land, properties and cash in that capacity. The effect of the entire evidence produced by the parties is that the Ruler of the State did apply rule of primogeniture and he succeeded to all the properties of the predecessor Ruler."
5. ' Regarding the legality of applying the rule of primogeniture reference, with approval, was made to D.S. Meamwala Bhayawala v. Shri Amarbas Jethsurbhai, 1968 Gujrat Law Reporter 609, recalling:-- "that the Chief of a sovereign Estate would hold the Estate by virtue of his sovereign power and not by virtue of Municipal Law. To grant that the sons acquire an interest by birth or adoption in the Estate which is a consequence arising under the Municipal law would be to make the Chief who is the sovereign ruler of the Estate subject to the Municipal law. The chief as the sovereign ruler of an Estate governed according to the will of the ruler and not according to law could adopt the rule of primogeniture with the sanction of the British Government as the paramount power. The British Government on exercise of, its paramount could apply the rule of primogeniture to the Estate as one of the functions of the British Government as the paramount power was to settle succession in Indian States. The rule of primogeniture once adopted or applied must be held to apply to the Chief who is permitted to adopt it for himself and his succeeding race."
6. ' In consequence, Issues Nos.1 and 2 were answered in the negative, Issue No,3 in affirmative and, as regards Issue No,4, the rule of primogeniture was deemed applicable. As to Issue No,5, concerning the maintainability of the suit, the learned Judge, sitting on the original side, referred to Articles 3 and 4 of the Acceding State (Property) Order, P.O. 12 of 1961 (PLD .1961 Central Statutes 394), which are as under:- President's Order 12 of 1961 "3 Where any question arises directly or indirectly between persons claiming to be the heirs and successors of the Ruler of a State or claiming to succeed to the State concerning the devolution and distribution of any property of that State or of the Ruler, the question shall be decided by an order of the Central Government.
4. A question whether any disposition of property, whether purporting to be the property of the State or of the Ruler, has been made in the due exercise of power to make it or ought for any reason to be undone shall be deemed to be a question falling under the preceding Article."
7. In context, Article 7 of the President's Order was also referred and the same is this:- "7. No Court shall have jurisdiction to entertain any such question as is referred to in Article 3, and no Court shall call in question any order of the Central ' ' ' ' Government made under that Article or Article 5 or any proceedings connected therewith."
8. Consequently, it was found that the dispute having pertained to the late Ruler of Mangrol State and such having arisen between the heirs of the Ruler, pertaining to properties, allegedly, left by him, constituted a dispute covered by Article 3 'aforementioned and could only be adjudicated upon by the Central Government, the outcome of the adjudication itself being barred from judicial scrutiny under Article 7 of the President's Order.
9. ' On appeal, these ouster clauses found favour also with the Appellate Bench of the High Court which, affirming the decision in the suit, dated 2-8-1986, dismissed the HCA, taken to it by the plaintiff, on 2-9-1998, giving rise to the present leave petition.
10. ' Mr. Abdul Khair Ansari, Advocate Supreme Court has pointed out that, in the meantime, the Riders of acceding State (Abolition of Privy Purses and Privileges) Order, 1972, has been promulgated and Article 2 thereof overrides all other laws which, according to the learned counsel's contention, include President's Order 12 of 1961. Article 2 of President's Order 15 of .1972 runs thus:-- "2. Order to override other laws.---The provisions of this Order shall have effect notwithstanding anything contained in the Provisional Constitution Order of in any other law for the time being in force, or in any Instrument of Accession or any agreement with a Ruler."
11. ' Upon close scrutiny of President's Order 15 of 1972 we have found nothing therein, which runs contrary to the postulations in Articles 3, 4 and 7 of President's Order 12 of 1961. The Order of 1972, in fact, is supplement, not only to President's Order 12 of 1961 but also to the Rulers (Recognition of Successors) Order, 1960. Nothing, therefore, turns upon the advent of President's Order 15 of 1972.
12. ' It has next been argued before us, relying on Government of Pakistan v. Nawab Muhamamd Abbas Khan Abbasi, PLD 1962 SC 367, and the order rejecting review thereof, reported as Muhammad Abbas Khan Abbasi v. Government of Pakistan, PLD 1984 SC 67, that the bar contemplated in Articles 3 and 7 of President's Order 12 of 1961 did not weigh with their Lordships in the cited case and, in spite of such bar, the Devolution and Distribution of Property (Ameer of Bahawalpur) Order, 1969, as set aside by the Lahore High Court, was approved in this Court. No doubt a detailed and very useful discussion as to the history and background of merger of acceding State to Pakistan is to be found in the precedent case but that cannot be of much help to the petitioner's case. Thus the Court, in the case of Ameer of Bahawalpur, did not assume jurisdiction in a dispute, which was found referable, exclusively, under the President's Order to the Central Government and the ambit of interference was opined to be limited to the aforementioned Devolution Order of 1969 only in so far as such Order was not made in compliance with the provisions, substance and form of the Acceding State (Property) Order, 12 of 1961, and did not fall within the four corners of Articles 3 and 7 thereof because, the immunity provided in those Articles did not extend to any excess or patent distortion in the exercise of jurisdiction conferred. As to the merits in Ameer of Bahawalpur's case where, regarding the succession, in preference to the law and custom of the State of Bahawalpur, an invocation of the Muslim Personal Law was made a couple of aspects are of significance: firstly, the acceding Ruler breathed his last on 24-5-1966 whereas, in the meantime, the West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962) had intervened and come into force. Secondly, upon the view, which prevailed with their lordships, a subject on which no comment need be offered here, the protection, which was provided under the instruments of accession, for there 'were more supplements thereof than one, was confined to the State property and to the personal rights and privileges but not to private property of the Ruler, which was to devolve according to the ordinary law or succession, as applicable to the Ruler, upon the date of his demise. Yet another aspect of the matter was that the jurisdiction, which was being exercised by the Court in the Ameer of Bahawalpur's case was the Court's Constitutional jurisdiction as against the ordinary civil jurisdiction, that was invoked by the petitioner in the instant proceedings. It is plain that while exercising its Constitutional jurisdiction a superior Court is not precluded from scrutinizing the lawfulness or otherwise of a particular act or transaction even though scrutiny thereof is barred by a sub-Constitutional legislation. However, even this aspect has no relevance to the petitioner's grievance because the petitioner never agitated, inviting the exclusive forum of the Central Government, giving rise to a further possible question, whether or not such Government acted within the four corners of the authority conferred on it by law.
13. ' In the circumstances of this case, therefore, while we cannot find anything patently amiss in the concurrent findings of the High Court, at its original and appellate levels, we would still permit the petitioner to ventilate his grievance, if any, and if so advised, before the Central Government which recourse, if and when taken, would not be negatived, solely, on the ground of laches and that aspect would be sympathetically considered because of the petitioner having apparently pursued another remedy diligently and in good faith before a forum that ex facie did not have jurisdiction.
14. Even so, it would remain for the Central Government, if approached, to consider the questions, whether the rule of primogeniture, invoked by the petitioner's brother, the last Ruler, did not apply at the time the succession opened namely, the year 1943 and whether the late Ruler, viz. Sheikh Abdul Khaliq of Mangrol, filled the character or capacity of a Ruler in contemplation of President's Order 12 of 1961 and other promulgations on the subject. Further, whether any legal change could take place, and if so, to what effect, when the relevant personal claims for compensation were filed in Pakistan or the properties in lieu thereof obtained here. In reaching any conclusion on merits, but only if that becomes necessary, the evidence and other material placed before the High Court may be relied upon by the Central Government though conclusions reached there may be deviated from provided that due reasons are cited therefor.