1989SCMR755 (PLP)

I Fattoo Ali Bakhsh Ghulam Muhammad Nabi Bakhsh (Last holder died in I 1947 issueless‑Had (appellant/defendant side)made will in favour I of the plaintiff) Nathoo I (Died in 1960) I Son Noor Ahmed respondent/plaintiff and others I Defendants' side As would appear from the afore made pedigree‑table and the notes therein, the will made by Nabi Bakhsh in favour of Noor Ahmed, his nephew, having been made the basis of his claim by the said plaintiff (respondent herein), has been accepted and his suit decreed throughout in his favour. Thus the appellants have lost their ordinary right of inheritance on account of enforcement of the said will. The appellants having ultimately failed on question of fact regarding the said will, made under custom during the time when the Customary Law was in force, sought leave to appeal against the revisional judgment of the High Court. It was granted by the following order:‑ "This leave to appeal petition arises out of a land/inheritance suit. The question whether the will even if made in favour of Noor Ahmad, respondent by Nabi Bakhsh, deceased, is proved as alleged what will be p its effect viz‑a‑viz the rights of the petitioners and their predecessor‑in- interest to inherit the property of Nabi Bakhsh, needs re‑examination. We accordingly allowing this petition grant leave to appeal:" Although the learned counsel for the appellants tried to re‑open the genuineness of the will; but, after having been told that there are not only concurrent findings on fact against the appellants in this behalf but also that this Court had declined to grant leave to appeal on this question, he did not press the point any further. He then relying on the provision of the Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983) and the case of Abdul Ghafoor and others v. Muhammad Shafi etc. (P L D 1985 S C 407), contended that the will in question, shall be deemed to be one under Muslim Law and that being so it will operate accordingly. The argument being that Noor Ahmad respondent's father Nathoo having died in 1960, after the death of Nabi Bakhsh in 1947, he (Noor Ahmed) would not be considered as an heir of Nathoo his father, who was alive at the time of death of Nabi Bakhsh. Therefore, he fairly conceded that Noor Ahmed not being an heir of Nabi Bakhsh would get 1/3rd, under the will. The a remaining 2/3rd, he contended, will have to be distributed amongst the heirs of Nabi Bakhsh in accordance with Shariah shares. Learned counsel for the respondent in reply tried to show that the 1983 enactment would not operate with retrospective effect so as to divert the customary devolution on the death of Nabi Bakhsh in 1947 and thus sought the enforcement of the will made under custom, in its entirety. After he was told that this Court has interpreted the 1983 Law otherwise, and that in the circumstances of the case it would have such reprospective operation so as to apply to the death and inheritance of Nabi Bakhsh, learned counsel remained unable to pursue his line of argument any further; except that he sought clarification that Noor Ahmed will get the property in two parts; (i) 1/3rd under the will, and (ii) his own share as heir of Nathoo who would be deemed to have inherited his Islamic share on the death of Nabi Bakhsh. Learned counsel for the appellant conceded this so claimed right of Noor Ahmed. That being so this appeal is allowed. The impugned judgments are set aside in the light of foregoing discussion. The decree is accordingly modified in that Noor Ahmed respondent shall get 1/3rd property under the will. The remaining 2/3rd will be distributed in accordance with Islamic Law of Inheritance, as discussed above. There shall be no order as to costs. A.A./M‑733/S Appeal allowed.