P L D 1961 (W (PLP)

2. There is no dispute between the parties about the following matters :‑ (i)That the property in suit originally belonged to Sahib Ditta Mal, son of Bisakhi Ram and father of Mehar Das. (ii) That though Sahib Ditta, Mal was a Hindu, the parties to the suit are Muslims because the family left their original religion and had become Muslims. (iii) that the property in suit was left in the hands of Mst. Shahr Bano by her husband, Sahib Ditta Mal, by means of a registered deed, copy of which is on the record as Exh. P. 23. (iv) that the parties are followers of His Highness the Agha Khan.

3. The points of difference between the parties may be summarised as under :‑ (i) That Mst. Shahr Bano was not given an absolute estate by her husband in the property left to her by him. (ii) that while some of the parties, including the plaintiffs, asserted that they were governed by Sunni Law of inheritance, some of the others pleaded that the law of succession applicable to them was the Shia Law of inheritance.

4. On the pleadings of the parties, the learned trial Judge framed the following issues :‑ (1) Are parties to the suit not Ismailies? (2) If so by what law are they governed? (3) Of the parties, who are entitled to inherit and to what extent? (4) Was Mst. Shahr Bano the absolute owner of the property in suit? (5) Is the Rehabilitation Department in possession of any of the disputed property and if so, with what effect? (6) Whether Jafar Ali and Gulab Chand defendants are evacuees and if so, what is its effect on the present suit? (7) Relief.

5. The findings of the learned trial Judge, the gist of which has been given earlier, were that the law applicable was the Shia law of inheritance and that Mst. Shahr Bano was given property by her husband as an absol tp. owner and not merelv as' a holder of a life estate. It was mainly because of these findings that the learned trial Judge passed the decree which is the subject of the appeals.

6. Some of the parties to the suit were evacuees and as the learned trial Judge had not referred the 'matter regarding their interest in the property to the Custodian of Evacuee Property, as he was bound to do under section 34 of the Pakistan Evacuee Property Ordinance, 1949, which was in force at the time when the matter was pending before the learned trial Judge, this was done when the matter came to this Court in the form of these appeals. ‑ The case was referred to the Custodian with a view to his giving a finding whether or not any of the parties, who were evacuees, had any interest in the property in suit: The Custodian found that none of the evacuees who were parties to the suit had any interest in any part of the property in suit. In view of this finding of the Custodian, the decision on the entire case can be given by this Court.

7. It can hardly be doubted, and was not denied by the learned counsel for any of the parties to these appeals, that the shares of those of the parties to the suit who are found entitled to any share would differ according as Mst. Shahr Bano, the widow of Sahib Ditta Mal, had been given the property as full owner or not as a full owner. The learned trial Judge found that Sahib Ditta Mal conferred rights of absolute ownership in his property on his wife Mst. Shahr Bano. Some of the. parties to these appeals did not accept this finding of the learned trial Judge as correct and arguments of quite some length ‑were addressed with regard to this matter. The decision of the question whether or not Sahib Ditta Mal conferred an absolute estate on his wife, Mst. Shahr Bano, depends on the‑ words used in the registered document executed by him on the 23rd September 1933. This document, a copy of which is on the record as Exh. P. 23, is described by Sahib Ditta Mal as a Will. Exh. P. 23 shows that Sahib Ditta Mal, who was owner of extensive movable and immovable property, by this document directed. that on his death the property shall devolve on Mst. Shahr Bano whose name at the time of the execution of the deed was Daropti Devi. The Will had five main clauses. The first clause was to the effect that all movable property in the form of cash, clothes and ornaments in the possession of his wife, Mst. Daropti, Devi, that of the wife of his son, Mehar Das, and that of the wife of his grandson, Prithvi Nath, son of Mehar Das, ' shall be deemed to be their Istri dhan. The second clause. of the Will was to the effect that, if his successors were to be of the opinion that the firm known as Sahib Ditta Mal & Sons, Rawalpindi, was running at a loss, it was open to the successor to close business of the firm. The third clause of the Will said that on his death his wife, Mst. Daropti Devi, should be considered to be the head of the family like himself and would manage his entire property, includ ing movable and immovable property as well as the business of the firm and that she shall be considered to be the owner of the property that shall have no right to sell or mortgage the property nor the right to give the property away without consideration unless the property were given to those persons who belonged to his family. The fourth clause of the Will was to the effect that persons in possession of his property as tenants or lessees would remain in possession on the terms and for the periods mentioned in the documents of lease or tenancy. The fifth clause of the Will said that if his wife wanted to make a Will with regard to the property left by him, she would not be competent to make it in favour of anyone other than persons belonging to the family. The learned trial Judge was of the view that because Sahib Ditta Mal had said in the Will that after his death Mst. Daropti Devi was to be deemed to be the owner of his property, it. had to be presumed that Sahib Ditta Mal made her a full owner of the property. The learned counsel for the parties cited some decisions with regard to the interpreta tion of the Will. That those decisions were meant to apply to the facts of the cases determined by them can hardly be doubted and consequently it cannot be open to question that those decisions have but little value for the purposes of the present case It is well settled‑ that what the intention of the person who made a Will was is a. question of fact which is to be determined on consideration of the entire relevant material before the Court.' No. hard and fast rule has been or can be laid down with regard to the meaning that has to be attached to the expressions used in a will unless those expressions be such that they have been used in a particular sense from times immemorial. It is with these rules pertaining to the interpretation of. Wills in view that I proceed to consider. the effect of the Will executed by Sahib Ditta Mal.

8. The contents of the Will show that it was written by a person who, though he knew Urdu; was not well‑versed in that language. The Will was written by the Manager of the firm of the testator and not by a person connected with the legal profession, such as a practising lawyer, clerk of such a lawyer or a professional deed writer. The Will has a peculiar feature, namely, that not a single word has been said in it with regard to Mehar Das son of the testator or Prithi Nath son of Mehar Das having any interest of any kind in the property of the testator, nor has it been said anywhere in the Will that Prithi Nath and his father Mehar Das will have no interest in the property. Though words used here and there in the will were open to the interpretation that Mst. Daropti Devi was being made the full owner of the property mentioned in the Will, yet if the Will is considered as a whole, it is clear ‑that Sahib Ditta Mal had made his wife Mst.' Daropti Devi the manager of his property. The reason why Sahib Ditta Mal followed the course unusual for a Hindu of preferring his wife to his son for management of his property would appear to be that his son Mehar Das did not have any great interest in worldly affairs and, therefore, Sahib Ditta Mal wanted to pre serve the .property left by him for his descendants. Had his intention been to give away the property to Mst. Daropti Devi as a full owner, he would not have put restrictions on her powers to deal with the property in any manner she liked. Another circumstance in favour of this view is that in the first clause of the Will the testator said that the cash, ornaments and clothes in possession of his wife were to be her istri‑dhan, i.e., property of which she was the full owner and it appears to' me that it would not have been necessary to say that about cash, ornaments and clothes if he wanted to make her the full owner of the property he was leaving. Taking all these facts into consideration, I have arrived at the conclusion that while making his Will, a copy of which is on the record as Exh. P. 23, Sahib Ditta Mall had no intention of disinheriting his son Mehar Das or grandson Prithi Nath. All that he was intending to convey by his Will was that as long as she lived his wife Mst. Daropti Devi will manage his vast property. I would, therefore, hold that Mst. Daropti Devi alias Mst. Shahr Bano was not the full owner of the property mentioned in the Will of Sahib Ditta Mal and that succession to this property shall be governed by the law applicable to the property left by Sahib Ditta Mal. I might mention that this finding does not go counter to the pleadings of the parties because defendants Nos. 3 to 5 said in their written statement dated the 7th of June 1950 that Mst. Shahr Bano was not the full owner of the property left by Sahib Ditta Mal and when the statement of Nur Ali, defendant No. 3, who is the appellant in this appeal (Regular First Appeal No. 77 of 1953), was recorded by the learned trial Judge on the 27th of June 1950, before the framing of the issues, Nur Ali had said that Mst. Sbahr Bano had been made the manager and not the owner of the property in suit by her husband.

9. It was common ground between the parties during the hearing of the appeals that Sahib Ditta Mal died a Hindu and one finds that the entries in the document relating to his death which is Exh. P. 27 on the record describe him as Sahib Ditta Mal and not by a Muslim name. As Sahib Ditta 'Mal was a resident of the then Province of the Punjab he has to be deemed to be governed by the succession laid down by the Mitakshara School of Hindu Law. Exh. P. 27 shows that Sahib Ditta Mal died on the 6th of November 1933. Entries in the document relating to the death of Pirthi Nath which is Exh. P. 26 on the. record show that he was a Hindu and died on the 5th of. December 1945, while those in the document relating to the death of Mehar Das Alias Mehar Ali, son of Sahib Ditta Mal, which is Exh. P. 29 on the record, describe him as Mehar only and mentions his date of death as the 13th of July 1946. The learned counsel for the parties agreed that Mst. Daropti alias Shahr Bano died on the 8th of September 1948. The parties are also agreed that both Mst. Daropti and her son Mehar Das had embraced Islam and had changed their names to Mst. Shahr Bano and Mehar Ali respectively before the death of the latter. This change of religion will, however, have no effect on their rights in property because of the Caste Disabilities Removal Act, 1850 and if e Mehar Ali and Mst. Shahr Bano had inherited any property from Sahib Ditta Mal, they would not get deprived of it by reason of the change of religion. There is no evidence on the record that the property which Sahib Ditta Mal left was coparcenary property and indeed the fact that he had given his wife so much control over it in 1933, which was about three years and a half before the passing of the Hindu Women's Rights to Property Act (XVIII of 1937), would prove that the property was his self -acquired property. Now according to the law in before at the time of the death of Sahib Ditta Mal the Hindu law of succession in force in the then Province of the Punjab was that sapindas excluded samanodakas and bandhus and as the succession opened out before the passing of the Hindu Women's Rights to Property Act (XVIII of 1937) and Act IX of 1938, which amended the 1937 Act, neither Mst. Shahr Bano nor Mst. Malka Sultana, widow of Pirthi Nath, the son of Mehar Das alias Mehar Ali will have any share in the property left by Sahib Ditta Mal. I have indicated above that according to the Hindu Law of succession in force at the time of the death of Sahib Ditta Mall, sapindas excluded the heirs of the other two classes. Mehar Das as Mehar Ali was called on the 6th of November 1933, when his father Sahib Ditta, Mal died, was the only son and he, therefore, became owner of the whole of Sahib Ditta D Mal's property which would on the death of Mehar Ali devolve according to the Muslim Law as is clear from the decision of their Lordships of the Privy Council in Miter Sen Singh v. Magbul Hasan Khan (571 A313=A1R1930PC 251)

10. I will now take up the second of the two questions about which the parties are not agreed, namely, whether Hanafi law of succession or Shia law of succession was applicable to the property in dispute. The learned trial Judge has held that because the parties to the suit were the followers of His Highness the Agha Khan III, who was a Shia, they must also be held to be Shias and governed by the law of succession applicable to Shias. This reasoning is no doubt specious, but overlooks a very important fact that the followers of His Highness the Agha Khan came from all sects. It is in evidence that Sahib Ditta Mal was the follower of His Highness the Agha Khan even though he (Sahib Ditta Mal) had not embraced Islam. From the evidence on the record and the Memoirs of the Late. Agha Khan, it is abundantly clear that His Highness the Agha Khan E allowed considerable liberty of religious professions to his followers. The mere fact; therefore, that a Muslim was the follower of His Highness the Agha Khan would not conclusively establish that he was a Shia by religion.

11. With regard to the Shia law of succession being applicable to the property in suit, there are only the bald state ments of a couple of witnesses, while the preponderance of the evidence is to the effect that the Sunni law of succession was applicable to the property in suit. The most important piece of evidence with regard to Sunni Law of succession being applicable to the property in suit in spite of the fact that the owners of the property were the followers of His Highness the Agha Khan is a document known as Dastur‑ul‑Aml, which details the course of conduct prescribed for the followers of His Highness the Agha Khan in the Punjab and N. W. F. Province., Chapter 2 of this document, which is Exh. D. 1 on the record, deals with rules relating to betrothals marriages, births and deaths. The third paragraph in this Chapter reads as follows :‑ "The ceremonies concerning Nikah (marriage contract) and mourning such as Goosal (washing of the corpse), offering the prayer over the corpse etc. shall be got solemnised by Moulvies belonging to Ehl‑i‑Sunat Jamat. Any person acting contrary to this shall be punished by the Council." It need not be emphasized that two of the most important events in a family area marriage and a death, and when one finds that with regard to these two important matters the services of Maulvis belonging to Sunni sect were to be utilised, one inclines to the view that persons who were governed by the Dastur‑ul‑Aml in question were at liberty not to follow the Shia Law of succession. In addition there is evidence to that effect in Paragraph 27 of Chapter 4 of Exh. D. 1, which reads as follows :‑ "The ancient Kulma (i,e. fundamental creed of Islam) La‑Illaha Ill‑allah Muhammad‑ur‑Rasoolillah shall be recited publicly among all our Ismaili Jamats throughout the Punjab." The Shias add a little to .this Kulma and it follows that) liberty had been given to the Ismailis of the Punjab to remain Sunnies. From the above‑mentioned evidence on the record it becomes clear that the followers of His Highness the Agha Khan living in the former Province of the‑Punjab and the F former Province of the North‑West Frontier were not necessarily governed by Shia law of succession by reason of the fact that they were the followers of His Highness the Agha Khan who was a Shia.

12. As Hanafi law is more widely applicable than the Shia law, it has been laid down by some judicial decisions of unquestionable authority that the intitial presumption with regard H to the law applicable was in favour of the Hanafi law. In addition, there is a mass of evidence in this case to show that the property in suit was to devolve according to the Hanafi law of succession. No instance was cited with regard to the law of succession followed being Hanafi or Shia, but the depositions of Sardar Ali (D. W. 4), Gulab Khan (P. W. 1) . and Zulfiqar Ali (P. . W. 2), which, are on the Urdu record; and those of Aasan Ali (P. W. 5) anti Amir Ali (P. W. 8), which are on the English record, made it clear that many of the doctrines of Hanafi law were followed 'by persons belonging to the family of Sahib Ditta Mal. One or two of these witnesses deposed that the Shia law of succession was applicable to the parties, but as no instances were cited in support of this statement, it cannot be accepted as .a piece of evidence of any weight in support of the contention that Shia law of succession, was applicable to the property in suit. Some of the parties to the suit deposed that they were governed by the Shia law of succession, but in addition to these statements coming from persons interested in making them, there is the fact that these statements cannot establish that Mehar Das who embraced Islam and took the name of Mehar Ali and with regard to succession to whose property the question arises was also governed by Shia law of succession. 1 would; therefore, hold that the Sunni Law of succession was appli cable to the property in dispute and would upset the finding of the learned trial Judge that the Shia law of succession was applicable to this case.

13. Having held that the property in suit is to be deemed to be that of Mehar Ali, son of Sahib Ditta Mal, and that the Hanafi law of succession is applicable to the case, I proceed to determine what shares in the property were the parties to the suit entitled to. Hanafi law of succession divides heirs into three categories, namely, the sharers, the residuaries and the distant kindred. Mst. Allah Rakhi, defendant No. 2, who is the appellant in Regular First Appeal No. 96 of 1953, would get 1/8th of the property left by her husband as a sharer. Mst. Niamat, defendant No. 2, who had been held by the learned trial Judge to be the only heir of the property would get one‑half of the property left by her father, because a daughter is, like a widow, a sharer under the. Hanafi law of succession. Mst Shama‑i‑Anjuman, the daughter of Prithvi Nath, son of Mehar Ali, would also get the property left by her father's father as a sharer and her share would be 1/6th. Mehar Ali left no heir who could be held to be a residuary, with the result that the 'distant kindred will not get any share in his property, and the rule of. Radd (Return) mentioned in paragraph 44 of Mullah's book.on Principles of Mumammdan Law, 13th Edition, would be applicable. Mehar Ali's widow cannot benefit by the rule of Radd, but his daughter and his son's daughter can, with the result that the share of Mst. Niamat would increase to 63/96th. and that of ‑Mst. Shama‑i Anjuman to 21/96th, while that of.Mst. Allah Rakhi would remain 1/8th,. i.e., 12/96th.

14. In view of what I have said above, I would pass a ‑decree in favour of Mst. Shama‑i‑Anjuman for possession of 21/96th share by partition of the houses mentioned in the plaint and would grant her a declaration that she is the owner .of 21/96tn of the land mentioned in the plaint. Regular First Appeal No. 94 of 1953 would stand accepted to the extent indicated above, while Regular First Appeal No. 96 of 1953 would stand accepted to this extent that Mst. Allah Rakhi is granted a declaration that she is the owner of 1/8th of the property left by Mehar Ali, her husband. All the other appeals shall stand dismissed, and all the parties to the suit will bear their own cost in both the Courts. SAJJAD, J.‑I agree. A. H. Order accordingly.