P L D 1966 Supreme Court 559 (PLP)

S. A. RAHMAN, J.-This appeal comes to us on a certificate granted by the High Court of West Pakistan that the subject matter of the dispute is valued at more than Rs. 20,000. The relevant facts are as follows. The appeal arises out of a suit brought by Ghulam Sarwar and others for administration of the estate of Ch. Sir Shahabuddin, a Virak Jat of the old Punjab region, who died on the 6th of June 1949. The deceased had left a will dated the 2nd of April 1945. The plaintiffs' case was that in view of certain alienations effected by the testator, subsequently to the will, the latter stood revoked. They also pleaded that at the time of his death, the testator was governed by Muslim Personal Law and the will was no longer operative. They, therefore, asked for a declaration that the will was void. They further prayed for an account of the income of the estate since the testators' death. The suit was resisted by the defendants-respondents who relied on the validity of the will under custom. The trial Court found that the will was amended by the codicil, Exh. D. 2, was still operative (though not with respect to certain properties which had been the subject of gifts by the deceased) under Islamic Law, to the extent of 1/3rd share of the total value of the estate, in favour, of the 1st to the 11th defendants. A preliminary decree was, therefore, passed for an account to be taken and for due administration of tile property, both movable and immovable, including Bank deposits and shares in companies, left by the late Sir Shahabuddin. On appeal, the High Court of West Pakistan set aside the decree and order of the trial Judge, holding that the view of tile trial Court that the will was governed by Muslims Law, was incorrect, as the testator was governed by rules of custom at the time of its execution. The property involved was the self acquired property of the deceased and the will was, therefore, upheld as valid under custom. The case, was, in consequence, remanded to the trial Court with a direction to proceed to the administration of the estate in the light of the findings arrived at by the High Court. The main question that falls for determination in the appeal is as to the true construction of the word "succession" occurring in section 2 of the West Punjab Muslim Personal Law (Sgariat) Application Act, 1948 (hereinafter referred to as the 1948 Act). This Act was brought into force on the 15th of March 1948 and section 2 thereof reads as follows:- "2. Notwithstanding any custom or usage to the contrary, in all questions regarding succession (including succession to agricultural land) and in all questions regarding charities and charitable institutions and charitable and religious endowments, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." It is contended by Mr. Bashir Ahmad on behalf of the appellants that the word "succession" occurring in the provision set out above, includes "wills" and therefore the will of the deceased in the instant case, ought to be regulated by the principles of Islamic Law. On the contrary, it is sought to be maintained on behalf of the respondents, by Mr. Manzur Qadir, that the word "succession" in the context of section 2 of the 1948 Act should receive a restricted interpretation and should be held confined to non-testamentary succession only. As has been mentioned above, the date of the disputed will is the 2nd of April 1945. This was admittedly varied by a codicil dated the 26th of November 1946. As Sir Shahabuddin died in 1949, after the 1948 Act had been brought into force on 15-3-48, if the contention of the appellants is acceded to, then the will could operate only on 1 /3rd of the estate of the deceased who was a Hanafi Muslim. If, however, the restricted interpretation of the word "succession" contended for on behalf of the respondents, 1,, accepted, then the will be operative according to its tenor as required by the customary rules which applied to Sir Shahabuddin's family, who was a Virak Jat of the Punjab region. It may be mentioned that the plaintiffs are the brothers and sisters of the deceased testator and claimed to be his heirs under Islamic Law. The defendants are legatees or successors-in -interest of a legatee under the will. Two of the plaintiffs who were also legatees under the will, repudiated that position and said that they had taken possession of part of the land in dispute, belonging to the deceased, as his Islamic Law heirs and not in their capacity as legatees. The High Court relied for its finding in favour of custom being the governing rule of decision, on a Full Bench authority of that Court reported as Bashir Ahmad and others v. Muhammad and others (P L D 1956 Lab. 934). I was in the High Court then and was a party to that decision. The two questions decided by that judgment were:- (1) A person claiming to be governed by Customary Law, can bring a suit for a declaration that an alienation shall not bind the reversionary rights of the plaintiff, even after the passing of the 1948 Act, in respect of an alienation made by the holder who had inherited under custom. (2) Such a decree could be passed even after the amendment of the Act in 1951. Mr. Bashir Ahmad points out that the authority relied on by the High Court has no direct bearing on the question that arises for determination in the present case. Learned counsel, however, conceded that there was another Full Bench decision of the High Court of West Pakistan published as Mst. Maryam v. Dost Muhammad and others (P L D 1958 Lab. 229), which is against him. I was again a party to that decision in which it was held that the 1948 Act did not change the law with regard to wills and that the word "succession" occurring in section 2 of that Act, must be equated with non-testamentary succession alone. Kayani, J., who was a member of the Bench that decided the case and who had taken a contrary view in a previous D. B. case reported as Mst. Sardar Bibi v. Abdul Latif (P L D 1952 Lab, 294), also expressed his agreement to the overruling of that decision. It is, however, urged that the above case concerned a holder of ancestral property and that there is no decision of this Court on the relevant point, covering self-acquired property, devised by the will of a person who inherited under custom. The question was posed by the Federal Court in Mst. Sardar Bibi v. Abdul Latif and others (P L D 1956 S C (Pak.) 137), when that case was taken in appeal to that Court, but was left undecided. In that particular case, it was held that even after the passing of the 1948 Act, the validity of a gift effected by a customary owner, was not necessarily to be decided with reference to Islamic Law, because of the general principle that in the absence of any indication to the contrary in the Act, the legality or validity of a transaction had to be determined according to the law in force at the time of the transaction itself. In the case of a gift, therefore, made in 1945 and to which custom applied, the question of validity had to be determined with reference to the rules of custom governing the ease. In the course of his judgment the learned Chief Justice of the Federal Court referred to the observation of the High Court in their judgment under appeal, to the effect that the validity of a bequest had to be determined according to Muslim Law on the date of the death of the testator, even though the will may have been executed prior to the enforcement of the 1948 Act. The observations of the learned Chief Justice are pertinent on this point and may be reproduced in extenso: "The High Court had arrived at the aforesaid conclusion by holding that the word "succession" in section 2 of the Act of 1948 included testate succession. We feel that having recorded the obvious and incontrovertible finding that the will had been revoked by the gift, the learned Judges should not have gone into the intricate question whether the word "succession", in section 2 of the Act of 1948, included testate succession. The true issue on this part of the case, if it had to be determined, was not whether the word "succession" in ordinary parlance or its technical sense includes testate succession, by itself a question to which more than one answer is possible, but whether the Legislature in omitting from section 2, the word "wills", which occurred in the repealed legislation, namely, section 5 of the Punjab Laws Act, intended to make earlier testamentary dispositions judge-able on the testator's death by the Muslim Personal Law. The question was one of great difficulty and depended for its decision not only on the history of the legislation but also on several other provisions which are still on the statute book. If the High Court is right in the view it has taken, the provisions relating to wills in the Punjab Limitation (Custom) Act (I of 1920) and the Punjab Custom (Power to Contest) Act (II of 1920), stand abrogated, the maintainability of reversioner's suits for declarations to set aside alienations becomes doubtful and section 3(A) of the Act of 1951 itself, which assumes the validity of certain wills made under custom before that Act came into force, becomes meaningless. It is therefore clearly open to question whether any such revolutionary result was intended by the Legislature. But, as we have said, the question did not arise in this case and since we did not hear full arguments on it we do not decide it." Learned counsel for both parties have invoked the assistance of previous legislation directed at replacing custom by Islamic Law, in support of their respective positions. It is, therefore, necessary to set out the relevant provisions of the previous enactments, which have a bearing on the question that falls for determination in the present case. Section 5 of the Punjab Laws Act, 1872, declares that "in questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution, the rule of decision shall be (a) Any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority; (b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to." The first step towards the enforcement of Islamic Law in this field is represented by the Muslim Personal Law (Shariat) Application Act, 1937, which was a Central Act. Section 2 of this Act may be reproduced with advantage:- "2. Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talak, iia, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gift, trusts and trust properties, and waqfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." Section 3 of that Act provided that if a Muslim declared in a prescribed form, before the prescribed authority, that he desired to obtain the benefit of this provision, section 2 would stand modified so as to include "adoption, wills and legacies" therein. It may be observed that "agricultural land", "charities and charitable institutions and charitable and religious endowments" were included in the Provincial List appended to the Government of India Act, 1935, whereas "wills", "intestacy" and "succession" were in the Concurrent List. This explains the exclusion of subjects included in the Provincial List from the purview of the Central Act. Section 2 of the 1948 Act has already been set out in the beginning of this judgment. It may be noted that section 3 of that Act, deals with the case of Muslim females, holding limited interest in property, under custom and it is provided therein that succession shall be deemed to open out on the termination of such limited interest, whether by death, marriage or otherwise, to all persons who would have been entitled to inherit the property at the time of the death of the last full owner, as if Islamic Law was applicable at the time of his death. In the event of death of any of such heirs before the termination of the limited interest, succession would devolve on his heirs and successors, existing at the time of the termination of the limited interest. The section introduced the legal fiction that the aforesaid person would be deemed to have died at the time of the termination of the limited interest of the female. Moreover, the share which the female limited owner herself would have inherited, if the Islamic Law had applied at the time of the death of the last full owner, would also devolve on her, if she lost her limited interest on account of her marriage or re-marriage and on her heirs, if the interest terminated because of her death. This enactment clearly did not make a clean sweep of the Punjab custom. It only effected a repeal of so much of the provisions contained in section 5 of the Punjab Laws Act, 1872, as were in conflict with the 1948 Act. The repeal had to be partial as the law in respect of Hindu agriculturists was retained intact. Save as expressly provided by section 3, the enactment was to be prospective in its operation and not retrospective. The 1948 Act was supplemented by the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951 (referred to in the sequel as the 1951 Act). By this Act, section 2 of the 1948 Act was replaced by the following provision:- "Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or in-testate) special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions including waqfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in case where the parties are Muslims." This Act further inserted another section 3-A, after section 3 of the 1948 Act. It was couched in the following terms:- "Where a will made by a Muslim provides for more than one legatee succeeding to the testator's property one after the other, and the will has taken effect before the coming into force of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, on the death of the legatee in enjoy ment of the property at the time of the coming into force of that Act, the property shall devolve on such heirs and successors of the testator under the Shariat as would have inherited it had the testator died in-testate, and if any person who would have so inherited the property or any share therein, had there been no will, has in the meantime died, his share in the testator's property shall devolve on such of that person's heirs and successors as may be in existence at the time of the death of the said legatee." Mr. Bashir Ahmad contended before us that a will according to settled authority, speaks from the moment of death and as in the instant case, the testator died after the 1948 Act had come into force, its provisions should govern the will. The question however still remains whether the 1948 Act comprehends within its scope, wills executed by persons who had inherited property under custom, prior to the enforcement of the Act. The argument has been advanced on behalf of the appellants that the law of wills is part of the law of inheritance and "succession". In this connection, Mr. Bashir Ahmad drew our attention to the remarks of K. P. Saksena in his treatise on Muslim Law, at page 845, Second Edition, to the effect that a will offers to the testator the means of correcting, to a certain extent, the law of succession and of enabling some of those relatives who are excluded from inheritance, to obtain share in his goods, and of recognizing the services rendered to him by a stranger, or the devotion to him in his last moments. This observation of the learned author does not, to my mind, support the thesis set up. It is clear that the will may be in favour of a stranger and to that extent, it would have nothing to do with succession or its inequalities. It would, on the contrary, appear that a will something which interferes with the law of "succession" proper and therefore would not ordinarily be within the scope of the latter. The Quranic injunction prescribes that a will has to be given effect to, before the property left by a deceased person is divided among his heirs. It would seem that both under Islamic Law and custom, a bequest is regarded in the nature of an alienation, to take effect on the testator's death. Mr. Bashir Ahmad also referred to an observation of the late Supreme Court of Bombay in Mancharji Pestanji v. Narayan Lakshumanji and others ((1862) Bom. H C R 77), to the effect that the law of Wills is part of the law of inheritance and succession. A will, it is therein observed, is an instrument by which the devolution of an inheritance is prescribed, and in the civil law it is said that inheritance is of two kinds, for it is acquired either ex testamento or ab intestato. Support was sought to be derived for this proposition by reference to what has been said by Abdur Rahim in his Muhammadan Jurisprudence, at page 310 of the 1907 Edition. The learned author says that a bequest or will is defined as a transfer to come into operation after the testator's death. But what the same author says further on, under this heading of bequest, recognizes that it may interfere with the ordinary, disposition of property according to the Law of succession. Mr. Manzur Qadir, on the contrary, has invited our attention to an American publication known as Corpus Juris, Vol. 18, page 803. Under the head "succession", it is stated that succession is a word of technical meaning, denoting the devolution of title to property under the laws of descent and distribution. In the civil law it denotes the transmission of the rights and obligations of a deceased person to his heir or heirs. Some codes, according to the learned Editors, give the same definition and state that the word signifies also the estates, rights, and charges which a person leaves after his death, while the codes of other jurisdiction define "succession" as the coming in of another, to take the property of one who dies, without disposing of it by will. It would seem, therefore, that the word "succession" is susceptible of a restricted as well as a broader meaning, depending on the system of laws in which the expression is used. The main argument advanced on behalf of the appellants is that the word "succession" was used in the 1548 Act, without the qualifying adjective "in-testate", as contrasted with the position under the 1937 Central Act and therefore this term should be held to comprehend both testate and in-testate successions hence forward. Reliance is placed also on the statement of objects and reasons for the Act which read:- The Muslim Personal Law (Sbariat) Application Act (Indian Act XXVI of 1937) leaves out agricultural land and thus deprives the entire agricultural community of the benefit of Shariat. It also does not apply to cases of adoption, wills and legacies except through a process of declaration in a prescribed form. The North-West Frontier Province has been enjoying personal law for some years now, with satisfactory results. The present Act is intended to be an improvement both on the Indian Act and the North-West Frontier Province Act." From the opposite side it is pointed out that the bill as originally moved in the Assembly showed the draft of section 2 of the Act to be in the following terms:- "Notwithstanding any custom or usage to the contrary, in all questions regarding succession, special property of females including personal property inherited or obtained under contract or gift or any other provision of Personal Law, betrothal, marriage, dower, dissolution of marriage (including Talaq, Ila, Zihar, Lian; Khula and Mubaraat), maintenance, guardianship, minority, bastardy, family relations, gifts, wills, legacies, trusts, trust properties, wakfs, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." However, the bill was referred to a Select Committee and in the final shape in which it emerged therefrom, section 2 stood in the following form:- "Notwithstanding any custom or usage to the contrary, in all questions regarding succession (including succession to agricultural land) and in all questions regarding charities and charitable institutions and charitable and religious endowments the rule of decision in cases where the parties are Muslim shall be the Muslim Personal Law (Shariat)." The omission of certain subjects from the purview of section 2 as compared with their enumeration in section 5 of the Punjab Law Act, 1872, is significant. Not only were wills and legacies thus omitted, but even the word "gifts" was no longer included is, therefore, difficult to sustain the contention that the Legislature, in enacting the 1948 Act, had filled up all the lacuna left by the 1937 Central Act, in the field and had superseded custom total by Islamic Law. The 1948 Act did not in express terms repeal section 3 of the 1937 Central Act. The contention on behalf of the appellants is that there was an implied repeal in this respect. The doctrine of implied repeal can only be pressed into service if an unmistakable intention is evidenced by the language used in the later enactment and the latter cannot stand with the previous enactment. This does not appear to be the case here. Mr. Bashir Ahmad maintains that even if the word "succession", as it occurs in the 1948 Act, is regarded as ambiguous and can bear two interpre tations, the one which favours the Muslim Law, ought to be adopted. The question, however, cannot be decided on any such a priori reasoning. The intention of the Legislature has to be judged by the actual words used in the enactments. It may be that even though the Legislature may have originally intended to E provide for a certain matter, it may have failed to achieve that result, in view of the language used. It is suggested that undue importance should not be attached to the omission of the words "wills" and "legacies" from the enumeration of subjects dealt with in section 2 of the 1948 Act; as compared with the Punjab Laws Act, 1872, considering that some of the items enumerated in the latter enactment are overlapping. For instance, it is pointed out, that the terms "wills and "legacies" do not deal with two separate subjects and similarly "betrothal" which is separately mentioned in section 5 of the Punjab Laws Act, is a part of the law of "marriage" which term also occurs therein. But it may be pointed [out that in respect of "succession" and "wills", this argument is not very weighty. The formality and validity of wills has to be judged under a system of rules which have no connection with "succession" and to that extent the two subjects would call for distinct treatment. Testamentary capacity is not a part of the law of succession though when a will has come into operation, its consequences may affect succession. An heir who takes property by succession does so by force of law but a bequest unless accepted by the legatee does not become effective. Bequests apparently are a development of gifts inter vivos. Mr. Bashir Ahmad himself recognized that in the context of section 5 of the Punjab Laws Act, 1872, the word "succession" must be held to exclude "wills". The question then is whether the use of the same word "succession" in the 1948 Act, has invested it with a more comprehensive meaning, so as to include both testamentary and non-testamentary successions. That "gifts" will not be regulated by Muslim Law, despite the passing of the 1948 Act, if a gift had already been made by a holder of property regulated by custom, is clear from the judgment of the Federal Court in Sardar Bibi v. Abdul Latif and others. It is maintained on behalf of the respondents that the position with regard to "wills" is not dissimilar. The dropping of the words "wills", "legacies" and "gifts" does not appear to have been motivated by a desire merely to prune the relevant provision, of unnecessary matter. No change in the existing law regarding "wills" was necessarily intended. That intention could have been made clear by express words bearing on that subject, instead of merely relying on an omission of the word "in-testate" before the word "succession", as it stood in section 2 of the 1937 Act. After all, as is acknowledged, in section 5 of the Punjab Laws Act, the word "succession" stood without an epithet and still had a restricted meaning, not comprehending "wills and legacies". It is also important to bear in mind that the 1948 Act did not purport, in express terms, to repeal Punjab Acts I and II of 1920. The first of these two Acts, prescribes a limitation for customary suits to challenge alienations of ancestral property by an agriculturist. The second restricts the power to bring such suits, to agnates related to the alienor, in the 5th degree at the most. Both Acts define "alienation" as including any testamentary disposition of property. That there had been no implied repeal of these enactments, has been established by authority. Reference in this connection may be made to Abdullah and others v. Mst. Bakhto Mai and another (P L D 1956 S C (Pak.) 321) and Khair Din and another v. Muhammad Hussain and others (P L D 1961 S C 468). It will be, therefore, difficult to accede to the contention that the 1948 Act had destroyed the last vestiges of custom and replaced its rules by those of Islamic Law. Persons who had inherited under custom, remain subject to its incidents till succession opens out under Muslim Law, byl virtue of the 1948 Act. Support is lent also to the position adopted by the respondents, by the fact that, in enacting the 1951 Act, the legislative authority presumed that certain wills executed under custom, had taken effect before the 1951 Act was promulgated, as is clear from section 3-A of that Act. There was some question raised as to whether this section 3-A would hit even "wills" executed by Muslims governed by Islamic Law or not. H That question does not arise for decision in the present case and may be left over for determination in an appropriate case. For the purpose of the instant case, it is sufficient to remark that the Legislature was clearly conscious of the fact that despite the existence of the 1948 Act, some wills executed under custom, might still have operative force till the year 1951. It is also worth mentioning that the 1951 Act replaced section 2 of the 1948 Act and it is now made clear for the first time that succession would include both varieties, testate and in-testate, and that wills and legacies would be governed hence forth by Muslim Law. The 1951 Act, in its preamble, does not declare that it is an Act to remove any doubts. On the contrary, it seeks to make "further provision" in the application of Shariat to Muslims in certain matters. The mere fact that the authority that was responsible for the 1951 Act, was the Governor, rather than the legislative assembly which passed the 1948 Act, does not, in my opinion, detract from the fact that an authority operating in the same field of legislation, interpreted the 1948 Act as not covering wills. Of course, if the legislative authority had proceeded on an erroneous construction of previous legislation, it would not alter that previous legislation, as was laid down per Lord Sterndale M R. in Cape Brandy Syndicate v. Inland T Revenue Commissioners ((1921) 2 K B 403). But if there be any ambiguity in the earlier legislation, then according to the learned Master of the Rolls, the subsequent legislation may fix the proper interpretation to be put upon the earlier enactment. That dictum, to my mind, applies in full force to the situation in the instant case. The upshot of the whole discussion is that after considering carefully, the arguments advanced at the Bar from both sides, I am not persuaded that the conclusion reached by me in Mst. Maryam v. Dost Muhammad and others (P L D 1958 Lab. 229,) on the construction of section 2 of the 1948 Act, requires to be reviewed. I am, therefore, disposed to hold that section 2 of the 1948 Act did not comprehend within its scope, wills, executed earlier by persons governed by customary law and the rules of that law alone should govern such a transaction. I would, therefore, uphold the decision of the High Court and dismiss the appeal, though, in view of the circumstances, I would leave the parties to bear their own costs. FAZLE-AKBAR, J.-I agree. HAMOODUR BRAHMAN, J.-I agree. CORNELIUS, C. J.-I entirely agree with the reasoning in the judgment of my learned brother S. A. Rahman, J. and with the conclusion at which he has arrived in respect of the disposal of the appeal. B. Z. KAIKAUS, J.-The sole question for decision in this appeal is as to whether "testamentary succession" is included in the word "succession" as it occurs in section 2 of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, As stated in the very beginning of Maxwell "the first and the most elementary rule of construction" is that unless they have a technical meaning words and phrases are "to be assumed" to be used "in their ordinary meaning". I will reproduce this rule in the precise words of Lord Wensleydale in Grev v. Pearson (6HL C61 ). "I have been long and deeply impressed by the wisdom of the rule, now I believe universally adopted, at least in Courts of Law in Westminster Hall, that in construing wills, and indeed statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity and inconsistency and no further." After reproducing this very passage Maxwell says: "In repeating this cannon in Abbott v. Middleton, Lord Wensleydale said: "This rule in substance is laid down by Mr. Justice Burton in Warburton v. Loveland. It had previously been described as "a rule of common sense as strong as can be," by Lord Ellenborough, in Doe v. Jessep. It is stated (by Lord Cranworth, when Chancellor) as `a cardinal rule,' from which, if we depart, we launch into a sea of difficulties not easy to fathom, and as the `golden rule" when applied to Acts of Parliament, by Jervis, C. J., in Mattison v. Hart". "We ought . . . to give to an Act of Parliament the plain, fair, literal meaning of its words, where we do not see from its scope that such meaning would be inconsistent or would lead to manifest injustice." The passage reproduced above was quoted with approval by Lord Blackburn in Calidoncia Railway v. North British Railway ((1881) 6AC113), by lessel, M. R. in Wallan Ex-parte v. Leny Inry (50 L J Ch. 659), and by the Privy Council in City of Victoria v. Bishop of Vanconner Ireland (2 A C 384). Further high authority and in abundance could be quoted in support of this rule. "I have always understood it to be a rule o1 interpretation applicable to statutes that there are to be considered according to the strict grammatical meaning of the language used unless such a construction leads to an absurd result". William: v. Evans (35 L T 64), "I prefer to adhere to the golden rule that the word of a statute are to be read in their ordinary sense unless so construing them will lead to some incongruity or manifest absurdity". Collins v. Welch (5CPD27). "The ordinary canon of construction, that is, to say, by giving them their ordinary meaning in the English language applied to such subject-matter unless some gross or manifest absurdity would be produced". Clerical Life Assurance v. Carter (22QBD444). "Words in a statute must be given their ordinary meaning and unless the Court is compelled to do otherwise it must give a section its ordinary grammatical construction" Kartarsingh v. Imperator (A I R 1946 Llh. 143). I will not burden this judgment with further quotations for the rule is "universally adopted". Our task in view of this strict rule is only this that we first find out the ordinary meaning and then we consider whether such meaning will be inconsistent "with the rest of the instrument," that is, the inconsistency should exist in relation to the contents of the very Act which is being construed. The ascertainment of the ordinary meaning of "succession" is not a matter of any difficulty. Its ordinary meaning has been explained by Spens, C. J., in A I R 1941 F C 73. The learned Judge said: "the ordinary meaning of "succession" is the transmission by law, or by the will of man to one or more K persons of the property and the transmissible rights and obligations of a deceased person". I am going to refer to various enactments wherein this word has been used, but even before I do so let me state that logically "testamentary succession" is to be included in "succession". It is a contradiction in terms to say with respect to a situation it is a case of "testamentary succession" but is not a case of succession. In accordance with deductive logic when an adjective is added to a noun the resultant conception is a species of the genus constituted by the noun. "Testamentary succession" is a species of the genus succession. A large number of Commentaries and Acts may be referred to for the meaning of "succession." Reference may be made to Salmond's Jurisprudence p. 476, Markby's Elements of Law pages 371 and 382, Halsbury Vol. VI (Second Edition) page 240, the Succession Act, the Succession Certificate Act, the Government of India Act section 112, the Bengal Agra Assam and Civil Courts Act section 37, the Assam Laws Act section 4 and the Cutchi Memons Acts of 1920 and 1938. A perusal of these enactments will make it abundantly clear that the word `succession' is being used in a sense which includes both kinds of succession. The common feature of a large number of Acts which provided for the application of personal law to various provinces of India and which start in 1873 and end in 1938 is that they speak of personal law being applicable to "succession and inheritance". I will just as an illustration reproduce the provision in one of these enactments, that is, section 112 of the Government of India Act, 1915, which runs as below the High Courts at Calcutta, Madras and Bombay in the exercise of their original jurisdiction in suits against inhabitants of Calcutta, Madras or Bombay as the case may be shall in matters of inheritance and succession to land, rents and goods . . . . . decide according to Personal Law or custom .. Obviously in all these Acts the word `succession' is used in a sense including testamentary succession for inheritance has been separately mentioned. All these Acts are in pari materia with the Acts which we have to interpret in this case, that is, the Act of 1948, the Shariat Act of 1937 and the Punjab Laws Act of 1872. One of this series of Acts, as I have already said is of 1873, that is, it was enacted only one year after the Punjab Laws Act and it is an act of the same Legislature which enacted the Punjab Laws Act. The important point to note is that not in a single enactment has the word succession been used in a sense confining it to in-testate succession. An argument has been put forward that the word succession in section 5 of the Punjab Laws Act did not include testamentary succession. This being the only instance cited by learned counsel for the respondents of the alleged use of the word "succession", in a sense excluding testamentary succession, I propose dealing at once with it at some length for if it be shown that the word succession was not mentioned in section 5 in a limited sense there will be good deal of difficulty in the way of the respondents putting forward any further argument in view of the elementary rule which I have reproduced above. I propose dealing at the same time with the connected argument, namely, that as the intention of the Act of 1948 was to repeal section 5 of the Punjab Laws Act and as in the repealing provision "succession" was mentioned and "will" was not mentioned although it existed in section 5 of the Punjab Laws Act, the intention was to exclude wills from the operation of the Act of 1948. Reliance has in this connection been placed by learned counsel for the respondents on the fact that the bill as sent to the Select Committee contained a large number of items which found no place in the Act as it was passed. To take up first the question as to the meaning of succession in section 5 of the Punjab Laws Act let me again draw attention to the rule stated above for the rule will be as much applicable in interpreting section 5 of the Punjab Laws Act as it is in interpreting section 2 of the Act of 1948. While interpreting section 5 too we will have to accept the ordinary sense unless some absurdity etc., is occasioned by such interpretation. For convenient reference I reproduce section 5 of the Punjab Laws Act below: It runs: "5. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage or institution or alluvion and diluvion the rule of decision shall be (a) Any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority; (b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to." The only argument put forward on behalf of the respondents in this connection is that as the word "will" is mentioned in section 5 it should be held that the word `succession' used in that provision does not refer to wills. This argument is based on two assumptions: (i) that testamentary succession and wills are co-extensive and that "wills" do not go beyond testamentary succession; and (ii) that in enactments of the kind with which we are dealing there is no overlapping. Let us examine these two assumptions and see whether either of them holds good. As regards the first of these two assumptions I may straightway refer to Halsbury Volume 34, Second Edition, page 6 where the definition of "will" is stated. Following is the definition: "A will or testament is the declaration in a prescribed manner of the intention of the person making it with regard to matters which he wishes to take effect upon or after his death. It may be made for the purpose of appointing his executors or other persons whom he wishes to manage or assist in managing any part of his estate or for the purpose of making disposition of properties to take effect on or after his death or appointing guardians of his infant children after his death or exercising any power exercisable by him in this manner or revoking or altering any previous will of his or for any purpose taking effect on or after his death." It will be observed that a testamentary disposition is only one of the numerous categories into which will is divided. Will may be made for appointing managers, for appointing guardians of children, for exercise of any power, or any purpose taking effect on or after death. In such cases there is no disposition of property and no case of testamentary succession. Cases noted under the above-mentioned paragraph in Halsbury will show different kinds of directions that a testator may give as to what is to be done after his death. Even directions regarding burial, cremation may be given and they constitute a will. According to section 5 of the Guardians and Wards Act a European British subject could appoint by his will guardians of the property or person or both of his sons. Similar provisions exist in Hindu Law and in Muhammadan Law. In Muhammadan Law there are only four persons who are guardians of property, the father, the person appointed by the will of the father, the grandfather and the person appointed by the will of the grand father. All other relatives, are regarded as strangers so far as guardianship of property is concerned. It should thus be clear that even when testamentary succession is provided for there would still be need to make a provision about wills. I could here refer to the present section 2 of the Act of 1948 wherein both succession and wills are mentioned although it is expressly stated that succession includes in-testate and testamentary succession, but I propose to refer to that provision later on. The first assumption therefore of the argument is not justified, but as a matter of fact the argument in respect of the second assumption is even a stronger one. The second assumption as already stated is that there is no overlapping in enactments like the one with which we are dealing, and that all terms in such enactments should be regarded as exclusive of each other. If it can be shown that in such enactments it is not at all unusual to employ overlapping expressions the argument that the presence of the word "will" in section 5 of the Punjab Laws Act will lead to the inference that the word "succession" in that section does not include "testamentary succession" will have little force. A consideration of various similar enactments will not take us long in reaching the conclusion that the Legislature when it mentions items to which a particular law is to be made applicable does not worry itself as to whether those items do not overlap. The Legislature is only concerned with seeing that nothing is excluded which is intended to be covered. The Legislature does not even feel called upon when stating items in enactments of this nature to consider whether as a matter of fact items are or are not exclusive of each other. I have already referred to a number of enactments wherein the words used are "succession and inheritance". These enactments begin in 1873 and end in 1938 with the Cutchi Memon Act of 1938 which says that henceforth Muslim Law would be applicable to "succession and inheritance" amongst Cutchi Memons. Now it is not a possible argument that inheritance is not included in succession. Actually the argument before us is that succession is confined to inheritance or in-testate succession. If in the enactments referred to above only the word "succession" was used and "inheritance" was omitted could it be said that inheritance was not governed by Muslim Law? The word "inheritance" did not occur in the Punjab Laws Act or the Frontier Law and Justice Regulation or the Oudh Laws Act or the Central Provinces Laws Act, the only words used in those enactments being "succession". Yet nobody has ever doubted that inheritance in all these provinces was governed by personal law. Let us now examine in this connection section 5 of the Punjab Laws Act and see whether it does not contain other overlapping items. It referred to "betrothal, marriage, divorce, dower, bastardy", "wills, legacies". To consider the first of these combinations are not betrothal, dower and divorce included in marriage? Assume that betrothal, dower and divorce were omitted and that only the word marriage was used would not betrothal, dower and divorce be governed by personal law? Betrothal is only a contract of marriage, dower is a part of marriage, divorce is a termination of marriage and bastardy is the effect of want of marriage in the parents. Let ma refer here to sections 2 and 3 of the Bengal, Agara and Assam Civil Courts Act where only the word marriage was used there being no mention of betrothal, divorce, dower and bastardy. Yet, it has never been doubted that in Bengal, Bihar, Assam and Agra the Muslims were governed in these matters by Muslim Law and it was so held by the Privy Council in A I R 1938 P C 80. Also if we say that in marriage, divorce is not included then dissolution by a Court of a marriage on any ground, for instance apostacy, will not be governed by Muslim Law at all for such dissolution is not divorce and if it is not included within marriage there is no other word in which it can be included so far as section 5 of the Punjab Laws Act is concerned. In this connection it will be proper to refer to the fact that when the Central Shariat Act, 1937, applied Muslim Law to the exclusion of custom to a number of subjects and repealed the relevant portion of section 5 of the Punjab Laws Act it did not refer to "betrothal" and "bastardy" obviously the intention was not that "betrothal" and "bastardy" should continue to be governed by custom. The two words were deleted because they were regarded as too flagrantly superfluous to be retained although some overlapping still continued. Section 5 of the Punjab Laws Act refers to both "wills and legacies". I do not think it is possible to urge that if the word "legacies" was omitted there would be any legacies which would not be within the scope of this section. Any dictionary or standard work on "wills" will tell us that legacy is only bequest by will of "personality" though it is sometimes used for will of real estate also. I may refer to Iyer's Law Lexicon, Jarman on wills, which is the best known English Commentary on wills, Halsbury, our Succession Act, Ramamurtbi's Law of wills, etc. They all state the same meaning of legacy. Yet even in the Shariat Act of 1937 both wills and legacies are mentioned. I do not want, however, to labour the question of overlapping because of the clear argument against it contained in section 2 of the Act of 1948 as it has been amended in 1951. After the amendment the section includes succession as well as wills. It u makes clear in the bracket added to the word "succession" that this word includes both in-testate and testamentary succession. I may reproduce the words. They are: "Succession (testate and intestate) and wills." Now if this provision can even after it makes it absolutely clear that succession refers to both testamentary and in-testate succession still mentions wills there can be little force in an N argument that because the word "will" occurs in section 5 of the Punjab Laws Act the word "succession" must necessarily be held as excluding testamentary succession. It was urged that in the Act of 1948 "will" has been added by way of abundant caution, but why could it not be added by way of abundant caution in section 5 of the Punjab Laws Act? The inference from all that as has been stated above is that in enactments of this nature the legislature does not feel concerned about overlapping at all. It is only concerned with whether a subject has been fully included. I may add here that the fact that the words testate and in-testate are put within brackets shows that the original meaning of succession in section 2 has been left unchanged and in the brackets there is only a clarification of what it does connote. It should be clear that there is not a single instance in which the word succession was used in the limited sense of in-testate succession in any of the Acts by which personal law was applied. If the ordinary meaning of the word "succession" be that it includes testamentary succession then on the basis of the rule which is stated at the beginning of this judgment there is no further argument unless some absurdity, repugnancy, etc., is made to appear "with the rest of the instrument" that is, with any part of the Act of 1948 as it was originally enacted. No such absurdity or repugnancy has been pointed out. Truly speaking this should end the argument. The whole of the remaining argument is really not admissible in law at all. The Legislature means what it says. It fully understands the meaning of the words it uses and must be presumed to use them in the ordinary sense. Any argument not within the scope of the rule stated is really speculative and conjectural. I will, however, deal also with the rest of the argument put forward by learned counsel for the respondents assuming it to be admissible. There are two contentions: (i) that the Act of 1948 was amending section 5 of the Punjab Laws Act and as in section 5 succession and wills had been mentioned while in the Act of 1948 only succession is mentioned the intention was not to apply Muslim Law to wills; and (ii) that the Bill as it originally went to the Select Committee contained a large number of items and as the Select Committee had deleted a number of items the intention was that Muslim Law should not apply to those items. The two contentions are connected and may be dealt with together. I am going to refer to the whole background and history of legislation but let me state here the apparent objections to those contentions. These contentions ignore that section 5 of the Punjab Laws Act as it existed in 1872 had been amended in 1937 so that there was very little left in it so far as the Muslims are concerned, that the Act of 1948 is not an Independent Act from which the subjects to which Muslims Law is applicable are to be found out, but that it was only a supplementary Act whose intention was to complete the work which had been partially or rather to a considerable extent done by the Act of 1937, that if we put the Act of 1948 and the Act of 1937 side by side it will be apparent that one Act is intended to be a counterpart of the other, that the draftsman of the Act of 1948 had before him Act of 1937 and not the Act of 1872, and that the contention that when the Select Committee excluded marriage, etc., from the bill the intention was not to apply Muslim Law to the deleted subjects is wholly untenable. However, as these contentions represent the main argument on behalf of the respondents I will deal with them at some length. Let me before proceeding further reproduce for reference the various provisions. Section 2 of the Act of 1948 which we are interpreting runs: "2. Notwithstanding any custom or usage to the contrary, in all questions regarding succession (including succession to agricultural land) and in all questions regarding charities and charitable institutions and charitable and religious endowments the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." Section 2 of the Shariat Act of 1937 was in the following words: "2. Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding in-testate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, including talaak, ila, z1har, lian, khula, and mubaraat, maintenance, dower, guardianship, gift, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." The Bill of the Act of 1948 as it was originally moved in the Assembly was the following: (2) "Notwithstanding any custom or usage to the contrary, in all questions regarding succession, special property of females including personal property inherited or obtained under contract or gift or any other provision of Personal Law, betrothal, marriage, dower, dissolution of marriage (including talag, ila, zihar, lian; khula and mubaraat), maintenance, guardianship, minority, bastardy, family relations, gifts, wills, legacies, trusts, trust properties wakfs, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." Before entering upon the discussion let me record that when I heard what I regard as an altogether untenable and misleading argument based on the Select Committee's report, I became convinced of the superior wisdom of the Privy Council when it took pains in The Administrator-General of Bengal v. Premlal Mullick (1 L R 22 Cal. 788), to point out that proceedings in Legislature are not to be referred to when interpreting an Act. One of the. proceedings which were before the Privy Council in that case was, U as will appear from the judgment of the Calcutta High Court under appeal, the report of the Select Committee. This judgment of the Privy Council had held the field in pre-Partition India and I do not know of any case even after Partition where it was dissented from: However, not knowing the attitude of my brothers on this point I will assume the admissibility of the report of the Select Committee as well as of proceedings in Council and will consider whether the report is helpful to the respondents or otherwise. Let me now begin with the background. Although a number of laws had been enacted in British India which made custom the first rule of decision in the majority of the provinces, though not all of them, orthodox Muslim opinion which was consistently growing had been making demands that Muslim Law should be applied to the exclusion of custom The first Act by which this public demand was conceded I as the N: W. F. P. Shariat Act of 1935 which did away with custom in N.-W. F. P. Next came the Act of 1937 which was a Central Act. It applied Muslim Law generally to all subjects to which Muslim Law is regarded as applicable except agricultural lends, wills, legacies and adoption. Agricultural land was not a internal subject at all. What reasons there were for non-applicability pf the law to wills, legacies and adoptions we need not go into. It may simply be stated that to these subjects Muslim Law could apply if there was a declaration to that effect by a person and that apart from these subjects the Act of 1937 covered the whole of the field in respect of which there was a demand for application of Muslim Law. "Adoption" in custom, it may be explained is only the "appointment of an heir" for there is no transplantation of the adoptee in another family. In fact Rattigan calls the Chapter on adoption "appointment of heir". Adoption is only a form of will, that is, it relates to circumstances in which a will may be justified. By the Shariat Act of 1937 all Provincial Laws were repealed to the extent of their inconsistency with the Shariat Act of 1937. Section 6 of the Act mentions the enactments which were repealed and section 5 of the Punjab Laws Act is one of them. So, the situation at the time when the Act of 1948 was enacted was that the Punjab Laws Act stood repealed except in respect of agricultural land and testamentary succession (I may point out here that alluvion, diluvion and partition have throughout remained subject to custom because on these matters there is no provision of Muslim Law and the intention was not to denounce custom, but to apply Muslim Law to the exclusion of custom). When Pakistan came into existence there was a great public demand for the application of Muslim Law. The conception of Pakistan was that it was a home for the Muslims, a State where the Muslims could order their lives in accordance with the injunction of their religion. It was part of the manifesto of the Muslim League that the Shariat would be the law of this State. The public demanded that in Pakistan Shariat be applied and it was this demand of the public which the Government purported to meet by the enactment of the Act of 1948. Now I will state what happened in the Legislature. The bill which was introduced in the Assembly mentioned all the items to which Muslim Law was intended to be applied. The statement of the objects and reasons of this Act is important. It reads: "The Muslim Personal Law (Shariat) Application Act (Indian Act XXVI of 1937) leaves out agricultural land and thus deprives the entire agricultural community of the benefit of Shariat. It also does not apply to cases of adoption, wills, and legacies except through a process of declaration in a prescribed form. The North-West Frontier Province has been enjoying personal law for some years now, with satisfactory results. The present Act is intended to be an improvement both on the Indian Act and the North-West Frontier Province Act. It will be observed that: (i) the reason for this Act was that the Central Act had left out agricultural land and wills, etc. and (ii) this Act was intended to be an improvement upon the Indian Act as well as the N.W. F. P. Act (which admittedly applied to wills). The bill was moved by the Finance Minister who said: "On the day on which this Assembly commenced, the Chief Minister had, in unmistakable language, proclaimed that the Muslim League Ministry would, in all its actions, keep in view Muslim traditions and Muslim Laws and it would make an effort to base its administration on Islamic principles. I do not think that it was even necessary for the Chief Minister to say so, for this has been the basic principle of the Muslim League . . . . The public is waiting how we fulfil our promises and implement our declarations . . . The Bill does not need any great discussion. There is one point, however, which I want to make clear and that is that the Shariat Bill is in the form of a declaration. It enforces Muslim Shariat so far as it is possible. With regard to the codification of the Shariat, that will be effected gradually. This is not something which can be accomplished in a day." So this was the implementation of the promise of League. The words of the Finance Minister are: "It enforces Muslim Shariat so far as it is possible. With regard to the codification of the Shariat, that will be effected gradually. This is not something which can be accomplished in a day". So to the extent to which it was possible to apply Muslim Law without codification, it was being applied. The Government moved that the bill be passed in the form in which it was. Now let us consider why it was sent to the Select Committee at all. It was not sent because there was any objection to the bill being passed. It was sent because one of the members that is, Malik Muhammad Feroze Khan Noon was of the opinion that it did not go far enough because although it did away with custom it did not do away with those statutes which were opposed to the Shariat. He moved, therefore, that the Bill be referred to select Committee saying: "Whatever we have been doing till to-day in accordance with custom is something which I deeply regret. We have been opposing God and His Prophet. By this Bill we will be atoning for all that. I, therefore, from the bottom of my heart, support this Bill. With respect to the Bill there have been discussions in our party meetings and I have been expressing an opinion to the effect that this Bill in its present form does not fully apply the Shariat. It is defective for whereas it does say that if there is anything in custom or usage which is opposed to Shariat Law, the Shariat Law will govern it; it does not, at the same time, say that if there be a statute whether enacted b, the British, or by us, that will also stand repealed. I wish we should enforce Shariat in such a way that it should even override statute . . . . . . The Qaid-i-Azam had, on a number of times in his speeches, said that we will recast all our laws in the light of Islamic principles. I wish, therefore, that a Select Committee be constituted which may remove the defects in this bill and may present it in a correct and complete form." There was some opposition to the reference of this bill to the Select Committee on the ground that the legislation will be delayed. But the intention of the mover was not that there should be any delay and he moved that the Select Committee should submit its report on the very next day, that is, the 20th January 1948. Although the bill was sent to the Select Committee in the form reproduced above it emerged therefrom in the form of section 2. Why did the Select Committee change the form? The reason given by the Select Committee as to why the form was changed was the following: "The Committee after fully considering the bill and taking it into account other enactments applicable to the matters mentioned in the bill make the following recommendations." The reason obviously was that the form in which the bill was being moved was legally incorrect. The subjects mentioned in the bill except those which had been omitted in the Act of 1937 were already governed by Muslim Law to the exclusion of custom. The words of the bill that notwithstanding any custom to the contrary marriage, dower, etc. would be governed by Muslim Law were wholly inappropriate for already to all these subjects Muslim Law and not custom was applicable on account of the Central Act of 1937. By section 4 of this Act the Punjab Laws Act was being repealed to the extent of inconsistency, but most of the subjects which were being mentioned in section 2 did not exist in section 5 of the Punjab Laws Act at all at that date. Section 2 as it stood in the bill was assuming the applicability of custom to marriage, dower, etc., which was not correct and it was repealing section 5 in respect of a number of items not existing therein. This is why the Select Committee said that it was making its recommendations after taking into consideration "other enactments applicable to the matters mentioned in the bill". These other "enactments" were the Punjab Laws Act and the Central Shariat Act. This is the only reason given in the report of the Select Committee for the change they made in the bill, a change made in one day. If the Select Committee had deleted the items mentioned in the bill on the ground that in its opinion Muslim Law was not to be applied to them it would have stated its reasons for making such a drastic change in the bill. But all that the Select Committee said was that in view of other enactments on the subject the form of the bill was changed which can mean only that this was done in view of the Central Act which had already repealed the Punjab Laws Act so that only the deficiency of the Central Act was being made up. Already in the statement of objects and reasons it had been said that the Indian Act was inapplicable to agricultural land and wills, etc. and had to be added to. If we place section 2 of the Central Shariat Act, 1937, and section 2 of the Act of 1948, side by side, we will find that the Act of 1948 just fills in the gaps of the Act of 1937, that is, it applies only to what was contained in the brackets of 1937. Everything which was in the brackets in 1937 was put in this Act and intestate succession was changed to succession. That the reason for the change of the Act in the Select Committee was the Central Shariat Act, 1937, and there could not be any desire to exclude the objects mentioned in the original Bill would also appear from what the members of the Select Committee said at that time. Mr. Abdus Sattar Khan Niazi, a member of the Select Committee who represented that section of the public which demanded an immediate application of all Muslim Laws civil as well as criminal appended a note of dissent on the ground that the Act did not apply civil and criminal Muslim Law and did not make provision for the appoint ment of qaszis and muftis. He was also opposed to it because it did not provide for a complete codification of the Shariat. If the bill as it emerged from the Select Committee did not cover even wills he would surely have raised a hue and cry that even the whole law of succession was not being applied. Begum Shahnawaz another member of the Select Committee made it clear that the Act as it was being passed was only the Kazmi Bill, (the Shariat Act of 1937 is called the Kazmi Bill), with this addition that the difficulties of the Kazmi Bill had been removed. The deletion by the Select Committee of items in the bill could be capable of two explanations only. Either the subjects were deleted because the intention was not to apply Muslim Law to them or they were deleted because they were already governed by Muslim Law. The first alternative is hardly possible for it could not be the intention that marriage, dower, maintenance, guardianship, minority, waqf, etc., should not be governed by Muslim Law. If the draftsman of 1948 had before him the Act of 1937 and if he intended to exclude testamentary succession there is not the slightest reason why he should not have used the words "in-testate succession". Considering the atmosphere that prevailed at the time when the Act of 1948 was passed it is impossible for me to accept that there was any intention of yet excluding Muslim Law from any part of the law of succession. A further and serious difficulty in the way of acceptance of the exclusion of wills from succession are the injunctions of the Quran and the Muslim Law. In Muslim Law wills are really at a part of the law of inheritance for the Quran does not grant a share to an heir unless what is given by will is first deducted. I reproduce below the provisions in the Quran as to shares of the relatives (p. 504 Willson's Anglo-Muhammadan Law): "11. Specific rules children.-God hath thus commanded you concerning your children. A male shall have as much as the share of two females; but if they be females only, and above two in number, they shall have two-third parts of what the deceased shall leave; and if there be but one, she shall have the half. And the parents of the deceased shall have each of them a sixth part of what he shall leave, if he have a child; but if he have no child, and his parents be his heirs, then his mother shall have the third part. And if he have brethren, his mother shall have a sixth part, after the legacies which be shall bequeath, and his debts be paid. Ye known not whether your parents or your children be of greater use unto you. This is an Ordinance from God, and God is knowing and wise. 12. Husbands and wives.

Moreover, ye may claim half of what your wives shall leave, if they have no issue; but if they have issue, then ye shall have the fourth part of what they shall leave, after the legacies which they shall bequeath and the debts be paid. They also shall have the fourth part of what ye shall leave, in case ye have no issue; but if ye have issue, then they shall have the eighth part of what ye shall leave, after the legacies which ye shall bequeath, and your debts be paid. And if a man or woman's substance be inherited by a distance relation, and he or she have a brother or sister; each of them two shall have a sixth part of the estate. But if there be more than this number, they shall be equal shares in a third part after payment of the legacies which shall be bequeathed, and the debts, without prejudice to the heirs. This is an ordinance from God; and God is knowing and gracious." It will be observed that every sharer takes his share after the legacies bequeathed and the debts are deducted out of the estate. It is as much essential to pay the legacies as it is to pay the debts before right to a share arises. Three times are these injunctions repeated in these verses and twice it is said: "This is an ordinance from God". In Muslim Law shares and legacies are so mixed up that inheritance is not possible without the payment of legacies. The first full Bench judgment in which the meaning of the word "succession" was considered was Asghar Ali Shah v. Gulsher (P L D 1949 Lah. 116). Although the question as to whether wills were Q included in "succession" was not involved it does not appear to have been doubted by any member of the Full Bench that they were so included. Two learned Judges referred to this matter and each expressed the opinion that they were included. Cornelius, J., (now my Lord the Chief Justice) when comparing the Central Act with the Act of 1948 said: "Although the Central Shariat Act was expressly confined in its operation to property other than agricultural land and in the relevant respects, to intestate succession comparison with the provisions of the West Punjab Shariat Act will show . . . .". Justice Sir Abdur Rahman said when stating the effect of application of Muslim Law henceforth to succession: "even if a bequest by means of a will is permissible, it will have to be curtailed to a third if it happens to be in favour of an heir in accordance with Muslim Personal Law." The next argument advanced on behalf of the respondents is based on section 3-A of the Muslim Personal Law (Shariat) Application (Amendment) Act, 1951. This section runs as below "Where a will made by a Muslim provides for more than one legatee succeeding to the testator's property one after the other, and will has taken effect before the coming into force of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, on the death of the legatee in (1) P L D 1949 Lah. 116 enjoyment of the property at the time of the coming into force of that Act, the property shall devolve on such heirs and successors of the testator under the Shariat as would have inherited it had the testator died intestate, and if any person who would have so inherited the property or any share therein, had there been no will, has in the meantime died, his share in the testator's property shall devolve on such of that person's heirs and successors as may be in existence at the time of the death of the said legatee." The argument is that as this section applies even to wills which were executed after the coming into force of Shariat Act of 1948, but before the amending Act, 1951, the inference is that will R could be made under custom even after the coming into force of the Shariat Act, 1948. The replies to this argument are the following:- (1) The section applies not only to wills executed under custom, but to all wills. It does not refer to a will executed in the exercise of a power granted by custom. It speaks of any will made by a Muslim. Learned counsel for the respondents assumed that wills with successive legatees could be made only under custom. This is a misapprehension. I may simply refer to the decision of the Privy Council in Nawazish Ali Khan v. Ali Raza Khan A I R 1948 P C 134 wherein the Privy Council upheld a Muslim will in which there was a provision for a number of successive legatees. If Muhammadan Law was applicable after the Shariat Act, 1948, still a will could be made to which section 3-A would become applicable. The provision in section 3-A that even wills executed after the coming into force of the Shariat Act, 1948, but before this amendment, would be covered by the section is the only reasonable and logical provision which could be made because if wills with more than one legatee executed before 1948 are invalidated, there is no reason why such wills when executed after 1948 should not be invalidated. (2) The provision is really not quite intelligible in the sense that whereas the intention of such a provision should be to apply Muslim law actually it invalidates wills which were valid under Muslim law. There is no bar as held by the Privy Council in Nawazish Ali Khan v. Ali Raza Khan to a Muslim creating by will successive life estates and bequeathing the property ultimately in full ownership to some person. Yet in accordance with section 3-A on the death of the person in enjoyment of property at the time when this section came into force the property reverts to the heirs of the testator. (3) The section creates absurdities. Suppose that the person in possession at the date when this amendment came into force is the last legatee who was to take the property in full ownership. In accordance with the words of this section on the death of that full owner the property still reverts to the heirs of the testator. It is difficult to understand the reason behind such a provision. Another difficulty is that the section makes no provision for a case where the estate of a legatee ends not by death (but) by another event for instance marriage or remarriage which event usually terminates estates held under custom. The result is strange. When the widow who is a legatee till remarriage, remarries, this section has no effect and the next legatee will take the property, but when the widow actually dies then, although she had no connection at the time with the property at all, on her death property reverts to the heirs of the testator. Another difficulty is that the section speaks of: "the legatee in enjoyment of the property". Suppose the property was in possession of a trespasser. Will the section be inapplicable? (4) Even had there been any assumption in this Amending Act that section 2 of the Act of 1918 did not cover wills this amendment would be hardly of any great help in interpreting the Act. The Act of 1948 was an Act passed by the Legislative Assembly. The amending Act is a Governor's Act. At the most it could mean that the Governor or perhaps the Governor's draftsman assumed wills to be not covered by section 1 as it originally stood. The House of Lords had held in Ormond Investment v Bell 1928 A C 143 that the assumption in later Act as to the interpretation of an earlier Act was not to be relied upon. But even if such assumption be held to be admissible the value of such an assumption is further diminishes in this case by the fact that this is a legislation which it is impossible to understand. If the draftsman of section 3-A did not even understand Muslim Law and did not even realise the consequences of the amendment which he was introducing by section 3-A what value can be attached to his opinion as to the interpretation of the Act of 1948. Two more arguments have to be noticed. The first is that the Act of 1948 does not say that the Punjab Act I of 1920 which provides for limitation with respect to declaratory suits filed under custom is being repealed in relation to wills and therefore should be assumes: that will is not included in section 2 of the Act of 1948, because if it was included suits with respect to wills would not henceforth be maintainable. The obvious objections to this argument are: (a) That in accordance with the Full Bench judgment of the High Court of West Pakistan which has already been approved even in this Court suits challenging alienations by males are still competent because if a person inherited property before the coming into force of the Shariat Act of 1948, his estate would be a limited one and he would not be entitled to make alienations so as to defeat the rights of succession of the reversioners. Every will therefore by such a person would still be liable to be challenged though he may have lived for a hundred years after the coming into force of the Act of 1948. In accordance with Punjab Act I of 1920 a suit to contest a will must be brought within the period provided otherwise the will becomes immune from attack. (b) Truly speaking no question of repeal arises in such a case. It is one thing to say that an Act is repealed and another that an Act has become useless or redundant. Assuming that suits relating to wills were not possible after the coming into force of the Act of 1948, that would not mean that Act of 1920 is repealed. Repeal only means the disappearance of a provision which is inconsistent with the law that is enacted. The law enacted in 1948 is only this that succession would henceforth be governed by Muslim Law and the only enactment repealed would be which provided that custom would apply to the exclusion of the Muslim Law. If on account of the application of Muslim Law some suit becomes in competent the provisions as to limitation would not be repealed. Only the need for their application would not arise. If at any time there is again a change in law so as to make custom applicable those provisions will again become applicable. Now in the amendment of 1951 wills have been expressly mentioned. Yet even now there is no provision saying that the Act of 1920 is to any extent repealed. The Legislature would not be thinking of repeal of limitation Acts even when it totally abolishes custom. This is not a case of repeal at all. Another argument, a minor one, was that in the Act of 1948 section 5 of the Punjab Laws Act is repealed only "to the extent of its inconsistency". This argument fails to take notice of the fact that there are three items, that is, alluvion, diluvion and partition which appear in section 5 of the Punjab Laws Act and to which custom is still applicable. I have already explained that "alluvion, diluvion and partition" have been excepted because there is no Muslim Law relating to these subjects and the intention was not the destruction of custom as if it was something abhorrent, the intention being only that custom should not override Muslim Law. In fact it is one of the principles of Muslim Law stated in the beginning of Abdur Rahim's Jurisprudence that all is valid which is not invalidated by Muslim Law. This argument also does not appear to have taken notice of the fact that the whole of section 5 could not possibly be repealed as that section applies to Hindus as well as Muslims and the repeal is only in respect of Muslims. So far as Hindus are concerned it is still applicable. There is yet another difficulty. If there be no custom or Muslim Law then the case has, according to section 5 to be decided according to justice, equity and good conscience. That provision has to remain. I would accept this appeal and remand the case to the trial Court for decision on the basis that will was governed by Muslim Law. I would make no order as to costs. ORDER OF THE COURT In accordance with the view of majority we dismiss this appeal and leave the parties to bear their own costs. A. H. Appeal dismissed.