P L D 1977 Supreme Court 220 (PLP)

MOHAMMAD AFZAL CHEEMA, J.-Civil Appeals Nos. 13-P acid 14-P of 1971 are connected matters being directed against the same judgment of the then High Court of West Pakistan, Peshawar Bench, dated the 26th of April, 1966. The controversy centres round the validity of a will executed by Allah Dad common ancestor of the parties who are admittedly governed by Shia Law. The will marked Exh. P-1 on the trial Court's record was struck down by High Court in toto. Two petitions for Special Leave to Appeals Nos. 22-P and 27-P of 1966 filed by the appellants herein were allowed by this Court's order, dated 23rd of December, 1966. Leave was granted to examine as to whether or not the view taken by the High Court in striking down the will on the ground that it was in excess of t/3rd of the property of the testator and was executed in favour of more than one person with unspecified shares was based on a correct interpretation of the relevant provisions of the Shia Law. The admitted background of this litigation is that Allah Dad, the common ancestor of the parties was owner of agricultural land measuring 2365 kanals and 3 marlas in two villages Moorat and Talla Sharq in Tehsil Talagang, District Campbellpur. He had two sons Subah Sadiq and Ghulam Akbar and three daughters, Mst. Kaniz Fiza, Mst. Mehr Bibi and MO. Bakht Begum. Subah Sadiq predeceased his father Allah Dad leaving behind two sons Atta Shabir and Hafizallah appellants in Civil Appeal No. 14-P of 1971. Ghulam Akbar who died subsequently was survived by his son Muhammad Tufail appellant in Civil Apneal No. 13-P of 1971, a daughter Mst. Zwbun-Nisa, and his widow Mst. Bakht Bano. Allah Dad executed a will on 10-6-1454 whereby he bequeathed his entire property in favour of his son Ghulam Akbar and his two grandsons Atta Shabir and Hafizullah without specifying their shares, to the exclusion of his three daughters. Allah Dad died on the 30th of June, 1954. The will was registered on 12-7-1954 by the Sub-Registrar before whom it was presented by Ghulam Akbar who died in 1956. On 15-7-1957, Muhammad Tufail appellant in Civil Appeal No. 13-P brought declaratory Suit No. 185 of 1957 against the other heirs of Allah Dad, also impleading his mother Mst. Bakht Bano ani sister Mst. Zaibun-Nisa as defendants Nos. 4 and 5 respectively. On the basis of the aforesaid will, he claimed to b; tae owner of the entire property bequeathed by his grandfather, even to the exclusion .of his mother and sister on the ground that his father Ghularn Akbar the first-mentioned legatee in the will thus being entitled to the entire Property had in his lifetime transferred the same in his favour. The findings given by the learned Senior Civil Judge were that the will was only to the extent valid of 1/3rd qua Atta Shabir and Hafizullah who were non-heirs and was invalid qua Ghulam Akbar. Of course the transfer of property made by Ghulam Akbar. in favour of his son Muhammad Tufail to the exclusion of his wife and daughter was held to be valid but only to the extent of his entitlement of 4/15th share of the entire property worked out after deducting 1/3rd share of Atta Shabir and Hafiauliah. The suit filed by Muhammad Tufail was thus partly decreed only to this extent vide judgment, dated 22-7-1958. Feeling aggrieved. Muhammad Tufail preferred an appeal before the District Judge but during the pendency of his appeal withdrew the suit without permission to file a fresh suit which was accordingly dismissed on 27-5-1959 as having become infrnctuous. This concludes the first round of litigation between the parties. On 20-6-1959, Atta Shabir and Hafizullah brought Suit No. 283 of 1959 for possession of 788 kanals 8 marlas of land equivalent to 1/3rd share of the property of their grandfather Allah Dad, bequeathed in their favour vide will Exh. P.

1. They impleaded Muhammad Tufail, his sister Mst. Zaibun-Nisa and his mother Mst. Bakht Bano and three sisters of their father. namely Mst. Kaniz Fiza, Mst. Mehr Bibi and Mst. Bakht Begum as Defendants Nos. 1 to 6, respectively. The parties went to trial on the following issue3 : (1) Whether Allah Dad executed a valid will in favour of Ghulam Akbar and the plaintiffs? (2) Whether the plaintiffs are the only legatees entitled to benefit under the will? (3) Whether the defendants are estopped to question the validity of the will? (4) Are the plaintiffs entitled to inherit 2/7th share from the estate of Allah Dad Khan? (5) If the will is not proved, whether Ghulam Akbar was the only person to inherit under the will as the first-named legatee? The execution of the will was found to be established but it was held to be void in its entirety on the ground of being in excess of 1/3rd to which the other heirs had not consented. Consequently, the suit was dismissed by the learned trial Judge, vide judgment, dated 23rd of November, 1960. Having unsuccessfully challenged this judgment before the District Judge, who dismissed their appeal on 1-12-1961, Atta Shabir and Hafizullah filed R. S. A. No. 75 of 1962 in the High Court. The appellate judgment of the District Judge. dated 1-12-1961 was also challenged in appeal before the High Court by Mst. Zaibun-Nisa sister of Muhammad Tufail through R. S. A. No. 44 of 1962 wherein she also impleaded him as a co-respondent. As objection taken to her locus stand to file R. S. A. and the incompetence of her appeal on the ground that she had not challenged before the District Judge, the judgment and decree of the trial Court was overruled by the High Court on the basis of the statutory provision contained in section 1001(2) read with Order XLI, rule 33, C. P. C. Both the appeals i. e. R. S. A. No. 75 filed by Atta Shabir and Hafizullah and R. S. A. No. 44 filed by Mst. Zaibun-Nisa were dismissed by the High Court by a single judgment, dated 26.4-1966. The view taken by the learned Judges was that it being a case of a composite will partly in favour of an heir and partly in favour of non-heirs covering, the entire property of the testator without the consent of the other heirs who were excluded was void in its entirety. It is this judgment to which challenge has been laid in these two Appeals Nos. 13-P and 14-P of 1971. It may be recalled that Muhammad Tufail appellant in Appeal No. 13-P had not only withdrawn his previous suit during the pendency of his appeal before the District Judge but also did not care to challenge the trial Court's judgment in the subsequent suit filed by Atta Shabir and Hafiaullah. It was only his sister Mst. Zaibun-Bliss who pursued the matter before the District Judge and the High Court though without success and yet Civil Appeal No. 13-P was filed before this Court by Muhammad Tufail who was, not a co-appellant with his sister either before the District Judge or the High Court. This intermittent and alternate pursuit of the case by the brother and the sister to the exclusion of each other exposed Appeal No. 13-P to a preliminary objection regarding its competence and the locus standi of Muhammad Tufail appellant on ground of estoppel to which I will presently advert Both the petitions for leave were simultaneously heard by a Bench of this Court. The petitioners now appellants in the two cases supported the validity of the will to the extent of 1/3rd which was a common ground between them but each party tried to exclude the other claiming the entire 1/3rd for itself. In support of his claim. Muhammad Tufail invoked the principle of the first mentioned legatee which status was enjoyed by his father Ghulam Akbar and claimed his entire property as his sister and mother already stood excluded. On the other hand the contentions raised by Atta Shabir and Hafisullah appellants in Civil Appeal No. 14-P were: Firstly, that the decision of the trial Judge in the previous suit filed by Muhammad Tufail holding the will as valid to the extent of 1/3rd qua them having remained unchallenged, that judgment operated as res jndicata against him. Secondly, that Ghulam Akbar father of Muhammad Tufail being an heir, the will i n his favour was void and in any case he could not take precedence over them who were not only non-heirs of the testator but were also sons of his predeceased son. It was to examine these contentions that leave was granted by this Court in this matter of almost first impression. At the time of arguments, the preliminary objection referred to earlier as to the competence of Civil Appeal No. 13-P was strongly reiterated on behalf of Atta Shabir the appellant in C. A. No. 14-P. In support of the invocation of the doctrine of res judicata, it was argued on their behalf. Firstly, that Muhammad Tufail having lost the earlier suit filed by him preferred an appeal before the District Judge and during its pendency withdrew the suit with the result that his appeal was dismissed without permission to bring a fresh suit. Therefore, the finding of .the trial Judge holding the will to be valid to the extent of 1/3rd qua Atta Shabir and Hafizullah had attained finality and could not be re-agitated by him. Secondly, in the subsequent round of litigation initiated through the suit filed by Atta Shabir and Hafizullah, though impleaded as a defendant Muhammad Tufail never challenged the trial Court's judgment either before the District Judge or the High Court and as such was estopped from filing this appeal. Reliance was placed in this regard on Nand Lal v. Mst. Lakhmi' and others A I R 1939 Lah. 414 an authority equally pressed into service by the opposite-party. In answer to the preliminary objection, learned counsel far Muhammad Tufail tried to place reliance on the statutory provision contained in Order XXIII, rule 1 of the C. P. C. and Nand Lal v. Mst. Lakhmi and others. Having examined the relevant provisions of law on the point as also, the authorities relied upon by the parties in support of their respective positions, I have come to the firm conclusion that the preliminary objection must prevail. The factual correctness of the position cannot be disputed that it was none else than Muhammad Tufail who took the initiative in going to the Civil Court for seeking a declaration that he had a valid title to the entire bequest of his grand-father Allah Dad and obtained an adverse finding by the Civil Judge who clearly held that the will was valid only to the extent of 1/3rd qua Atta Shabir and Hafizullah they being the" only non-heirs. Having challenged this finding in appeal before the District Judge in the first instance, he thought fit to withdraw the suit during the pendency of the appeal for reasons best known to him with the result that tree appeal was dismissed as having become infructuous. Not only this even the trial Court's finding in the subsequent suit filed by Atta Shabir and Hafizullah who impleaded him as a defendant was never challenged by him before the District Judge or the High Court. Obviously, therefore, he was estopped from coming directly to this Court for the first time without challenging the judgment of the trial Court. The object of the principle of res judicata as suggested by the expression itself is that finality should impart to judicial decisions and if a case is audicata, it may not be reopened so as to be adjudged again. In other words once a matter between the parties to a suit or proceeding is decided and the decision has become final either (i) because no appeal lies or (ii) no appeal was taken or (iii) if taken, it was dismissed, none of the parties shall be allowed to canvass the same matter again in a subsequent suit or proceedings between the same parties. But for this curb on litigation it would become interminable, human nature being what it is. As a result of the application of this principle as embodied in section 11 of the C. P. C. all future litigation at any length between the parties roust proceed on the presumption of correctness of the previous decision. The principle of Yes judicata is thus clearly attracted to this litigation at two stages: Firstly, when the appeal filed by Muhammad Tufail against the partial dismissed .of his suit was dismissed by the District Judge' in the first round and not having been taken to the High Court, the matter) -finally rested at that. and Secondly, when he did not challenge the judgment of the trial Court in the second round initiated by Atta Shabir and Hafizullah. It was held in T. B. Ramchandra Rao and another v. A. N. S. Ramchandra Rao and others AIR 1922 P C 80 that it was not competent for the Court in respect of -the same question arising between the same parties to review a previous .decision, no longer open to appeal. If the decision was wrong, it ought to have been appealed from in due time. It is needless to add, however, that this does not apply to interlocutory matters as held in Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another AIR 1960 S C

941. Apart from the fact that Muhammad Tufail was directly hit by the principle of res judicata, he can be further put out of the Court by his own conduct. Having in vain tried to canvass before us, the principle of the first-mentioned legatee, an additional ground urged before us by the learned .counsel fur Muhammad Tufail was that the latter had also purchased the share of the three sisters of his father Ghulam Akbar, namely. Kaneez Fiza, Mehr Bibi and Bakht Begum in whose favour the mutations had been, attested. Whatever be the effect of these mutations attested pendente lite, the fact remains that by his own conduct Muhammad Tufail has ignored the will. It would not be out of place to mention in this context that these three ladies were represented before us by another counsel who relying on A I R 1940 All. 462, as also on Mulla and Bailee, tried to defend -the High Court's judgment and argued that the will should be struck down as a whole. As pointed out by me at the outset, it is rather a unique case being one of first impression in which there are four distinguishing features of the will in question. Firstly, that it relates to the entire property of the testator. Secondly, it excludes some of the heirs. Thirdly, it is partly in favour of an . heir and partly in favour of non-heirs, and Lastly, it contains no specification of the shares of the legatees. Learned counsel for the parties took divergent stands each basing his contention on one principle or the other. The only point on which they seemed to be agreed was that Shia Law did not recognize the principle of rateable distribution amongst the legatees. In the circumstances, therefore, the choice is confined to one of the following three alternatives, which may be found to be based on correct interpretation of the relevant provisions of the Shia Law. The alternatives are as follows: (i) The bequest being one of the entire property to the exclusion of some heirs, the will is void as a whole as consistently held by the Courts below including the High Court. (ii) The will was valid only to the extent of 1 /3rd in favour of Ghulam Akbar on the principle of first named legatee, the testamentory power of the testator having thus been exhausted. (iii) The will was valid only to the extent of 1/3rd share made in favour of the non-heirs and even if the testator had the power to make a will in favour of an heir without the consent of other co-heirs, he could not take precedence over the non-heir co-legatees in a composite will who would come first. For a proper determination of the legal issues involved in the matter it would be necessary to appreciate the precise nature and scope of will, its underlying objects and the relevant principles of Muslim Law, i.e. the Shia Law in the instant case. The Qur'anic injunctions relating to bequest are contained in three different Suras of the Holy Qur'an. The first of these is mentioned in Verses 180 to 182 of Sara Al-Baqra and i3 as follows: "

180. It is prescribed when death approaches any of you, if he leaves any property that he make a bequest to parents & next of kin, according to reasonable usage; This is due from the God-fearing.

181. If anyone changes the bequest after hearing it, the guilt shall be on those who make the change. For Allah hears and knows all things.

182. But if anyone fears partiality or wrong doing on the part of the testator and makes peace between the parties concerned, there is no wrong in him: For God is Oft-forgiving, most Merciful". According to the Sunni Jurists this was in the nature of an ad interim injunction enjoining upon the Muslims, when apprehending death to make bequests of their properties in favour of their parents and nearest of kin in accordance with the prevailing custom (Ma'aroof); and held good till the revelation of Verses I1 to 14 of Sura Al-Nisa which not only prescribed the different categories of legal heirs of the deceased but also specified their respective shares in his properties. These Verses are reproduced below with their tranalation: "

11. God (thus) directs you as regards your children's (Inheritance), to the male, a portion equal to that of two females; if only daughters. two or more, their share is two-thirds of the inheritance; If only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children, if no children, and the parents are the (only) heirs, the mother has a third, if the deceased left brothers/sisters. the mother has a sixth. (The distribution in all cases is) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions, ordained by God, and God is all Knowing, all-Wise, (12) In what your wives leave, your share is half, if they leave no child But if they leave a child, ye get a fourth: after payment of legacies. and debts. In what ye leave. their share is a fourth, if ye leave no child; But it ye leave a child, they get an eighth; after payment of legacies and debts. If the man or woman whose inheritance is in question, has left neither ascendants nor descendants. But has left a brother or a sister, each one of the two gets a sixth, but if more than two, they share in a third; after payment of legacies and debts; so that no loss is caused (to anyone). Thus is it ordained by Allah; and Allah is all Knowing, most Forbearing. (13) Those are limits set by Allah: those who obey Allah and His Apostle will be admitted to Gardens with rivers flowing beneath, to abide therein (for ever) and that will be the Supreme achievement. (14) But those who disobey Allah and Isis Apostle and transgress His limits will be admitted to a Fire, to abide therein: And they shall have a humiliating punishment". An equally explicit reference is contained in Verse 109 of Sura Al-Maids which is as follows; "

109. O ye who believe! When death approaches any of you, (take) witnesses among yourselves when making bequests,-two just men of your own (brotherhood) or others from outside". It has to be borne in mind that the above specification of shares has been made subject to testamentary disposition, if any, which must take precedence. Although the Qur'an did not impose any restriction on the extent of testamontary disposition there is a complete unanimity of views between the Sunni and Shia doctors as to the traditional regulation of the will by the Holy Prophet (peace be upon him) who imposed a limit of one-third. According to the Sunni School bequests in favour of heirs are not permissible.' The relevant injunctions contained . in Sura Al-Baqra were deemed to be impliedly abrogated by Verses 11 to 14 of Sura AI-Nisa reproduced above. Thhe Sunnis trace the restriction of one-third and prohibition of a will in favour of heirs, to the last address of the Holy Prophet (pace be upon him) known as the relevant portion as contained in by Sahia (150-255 A. H.) is as follows: "O people: verily God has specified the share of each heir in the property of the deceased, it is not permissible to make a will in favour of heirs nor should the will exceed one-third." Except for the divergence of views on the validity of a will in favour of an heir or of a will in excess of one-third with or without the consent of heirs there seems to be by and large no difference of opinion on the salutary object of a will as enjoined by the Qur'an and Sunnah. Abdullah Yusuf Ali in his commentary of the relevant Verses of Sura AI-Baqra has observed as follows: "A verbal will is allowed but it is expected that the testator will be just to his heirs and not depart from what is considered equitable. For this reason definite shares were laid down for heirs later (Sura IV, 11, etc.). These define or limit the testamentary power, but do not abrogate it. For example, amongst kin there are persons (any orphan grandson in the presence of surving sons) who would not inherit under the intestate scheme, and the testator might bike to provide for them. Again there may be outsiders for whom he may wish to provide and Jurists have held that he has powers of disposition up to one-third of his property. But he must not be partial to one heir at the expense of the other or attempt to defeat lawful creditors." Almost to the same effect is the following quotation from M. Santayra reproduced by Ameer Ali in his Mohammadan Law, Volume I, Chapter 18, captioned "the law relating to will": "A will from the Mussulman's point of view is a divine institution, since its exercise is regulated by the Kor'an. It 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 a share in his goods, and of recognising the services rendered to him by a stranger, or the devotion to him in his last moments. At the same time the Prophet has declared that the power should not be exercised to the injury of the lawful heirs." On the other hand while accepting the one-third limit on the testamentary disposition the Shia Jurists do not believe in the implied abrogation of Verses 18C-182 of Sura Al-Baqra which enjoin bequests in favour of parents and nearest of kin in the customary manner but also support this view with reference to the famous traditions of tile Holy Prophet (peace be upon him) when he visited his companion Abee Vaqas during the latteer's illness, a tradition whose authority and authenticity remain unquestioned by the Sunnis. The original text as contained in is as follows: "In the year of the conquest of Mecca being taken so extremely ill that my life was despaired of and the Prophet of Gad came to pay me a visit of consolation. I told him that by the blessing of God having a great estate but no heirs except one daughter, I wished to know if I could dispose of it all by will! He replied, 'No'. And when I severally Interrogated him if I might leave two-third or one half he also replied in the negative, but when I asked if I might leave a third. He answered, yes you may leave a third of your property by will, but a third part to be disposed of by will is a great portion, and it is better you should leave your heirs rich than in a state of poverty which might oblige them to beg of others." According to the Shia Jurists and Mujtahids, the injunction contained in Verses 180 and 181 of Sura Al-Baqra were not of interim nature nor could they be deemed to have been superseded by Verses 11 to 14 of Sura An-Nisa, which prescribed shares of different heirs in as much as these specifications of shares were made subject to the provision contained in the will, if any. of the deceased testator whose inheritance was in question. This would be abundantly clear from the repeated prefixation of the qualifying expression in the relevant Verses reproduced earlier. According to the Shia Mujtahids, the two injunctions contained in Sura Al-Baqra of Sura Al-Nisa were clearly reconcilable and could easily go together and further a tradition of the Holy Prophet (peace be upon him) could not be construed so as to supersede or take precedence over a Quranic injunction. Reference may be made in this regard to Allama Tabrisi Exegesis of Quran " Vol - I, p. 267 and Allama Tusi's Altibyan Vol. It pp. 107-108. It is in this view of the matter that according to Shia Law, a testator can leave a legacy to an heir even without the consent of the other heirs but where it exceeds one-third, it is not valid without the consent of all the other heirs who may give their consent before or after the death of the testator. Reliance could also be placed on edited by Shaikh Abee .Jafar Mohammad Bin Al-Hassan Al-Tusi a book on Shia Jurisprudence of high authority based on traditions of the Holy Prophet (peace be upon him) traced to the house of Ali. In Part IX, Chapter XII of 1962 Edition at page 199 under the caption the following 4 traditions have been mentioned in support of a bequest in favour of an heir. As would be seen the third tradition is based on the Verses 180-181 of Sura AI-Baqra: The same view was also expressed in a judicial pronouncement in Hussain Begum v. Syed Muhammad Mehdi A I R 1927 All 340 on the basis of the following quotation from Ameer Ali's Mohammadan Law: "According to Shia Law, a testator can leave a legacy to an heir so long as it does not exceed one-third. Such a legacy is valid without consent of other heirs, but where it exceeds one third, it is not valid without the consent of all theirs. Such a consent may be given before or after the death of the testator". In this judgment reliance was also placed by the learned Judges on Tayabji's Principles of Mohammadan Law wherein the same view was expressed. A similar view was expressed earlier in Fehmeeda Khanum v. Jaafri Khanum I L R 30 All. 153, which was followed in Amrat Bibi v. Mustafa Hussain I L R 46 All.

28. In the latter authority, it was ruled that a bequest by a Muslim of Shia Sect of his entire property to one heir to the exclusion of other heirs is not valid unless the excluded heir assents to it after death of the testator. In Kaneez Kubara Begum v. Syed Muzuffaruddin Haider A I R 1940 All. 462, which is a Single Bench Judgment, the view expressed by Mr. Justice Bennet was that a will of the' whole property for different objects, the device being irreducible to one-third was not valid. It is equally an uncontroverted doctrine of Shia Law that it does not recognize the principle of rateable distribution of a bequest. However, where there are bequests to two different persons in two successive wills, the later bequest in point of time would amount to an implied revocation of the earlier as mentioned by Mulla in "Principles of Muhammadan Law" . on the basis of Bailles II Volume page

235. There is, however, complete unanimity of view between the Sunnis and the Shias based on the tradition of the Holy Prophet (peace be upon him) that no heir should be meted out an unfair treatment so as to be completely excluded from inheritance nor should others be allowed to get undue share at his expense. This clearly seems to be the object and wisdom behind the imposition of the limit of one-third on testamentary disposition. As stated earlier, in the instant case we are dealing with a composite will which has excluded the daughters of the testator, is partly in favour of an heir, namely the son who is the first-named legatee in the will and partly in favour of non-heirs who are sons of the predeceased son of the testator. Again the bequest covers the entire property and there is also -no specification of the shares of the legatees. It is these unique feature of the will, which have complicated the issue. If the question of the .exclusion of the three daughters of the testator who did not assent to it were to be determinative of the validity of the will, then it would be obviously invalid as held by the learned Judges of the High Court. Again if the principal object of will, namely, provision for the nearest of kin who are otherwise, non-heirs and are not entitled to a share in the property of the testator is allowed to prevail then the grandsons will exclude the son but shall be entitled only to the extent of one-third notwithstanding the fact that the bequest related to the entire property of the testator. Being fully alive to the fact that the questions involved were of considerable nicety besides being of sensitive nature, we invited the counsel for the parties to suggest the name of a Shia Mujtahid who could assist the Court in the resolution of the controversy. They agreed on Mufti Jaffar Hussain of Gujranwala who was at one time a member of the Council of Islamic Ideology of Pakistan. He appeared before us on 16-11-1976 and enlightened us in the presence of the learned counsel. What he stated in substance was that a will in excess of one-third would be valid only to that extent. It could be in favour of heirs as well as non-heirs and that nothing would turn on the order in which the names of the legatees were mentioned in the instrument of will when shares remained unspecified. He thus discredited the principle of first-mentioned legatee and stated that in such a case. the intention of the testator shall have to be spelt out from the interpretation of the will. In my opinion an attempt at the harmonization of the conflicting principles involved in the matter keeping in view the principal object underlying the relevant injunctions namely, to provide for the non-heirs, nearest of kin, to be charitable or to reward for services of course without being unjust or, partial to the heirs should offer a safe and sound basis for a reasonable and equitable interpretation of the will in question and it is from this angle of approach that I proceed to consider the various characteristics of the will one by one and their effect on its validity. It may not be out of place to mention in this context that it is in view of the common disregard of this salutary commandment that most of the Governments of Muslim countries including Pakistan had provided by legislation for the entitlement of the children of a predeceased son to a share in the in the inheritance of their grandfather. The first question to be addressed to is as to what is the effect of the will covering the entire property of the testator instead of being confined to one-third. As observed earlier, this restriction on the extent of testamentary disposition confining it to one-third of the entire property of the testator is not based on any injunction of the Holy Qur'an but is traced to a tradition of the Holy Prophet (peace be upon him) to which no less sanctity attaches as a source of Islamic Law. Since, however, according to the Shia doctrine based on Verses 180 and 181 of Sara AI-Baqara, a bequest could be made to an heir and even in excess of one-third subject course to the assent of other heirs it is clear that bequest comprising the entire;' property is not void ab initio and of course depends on its validity on the assent of all the heirs which is not available in the instant case. The question would, therefore, arise as to whether in the circumstances the refusal of some of the heirs to give their assent would have the effect of striking it ,down in its totality or it could still be considered valid to the extent of one-third having regard to the relevant divine commandment contained in Sum AI-Baqra and Sura Al-Maids and the salutary objects sought to be achieved thereby, namely, providing for such nearest of kin as are not entitled to get a share in the inheritance and may be rendered destitute. In Chapter VI captioned referred to earlier, the following tradition of the Holy Prophet (peace upon him) has been reproduced; It means that "a person who at the time of his death did not make a will in favour of such of his kith and kin who do not have a share in inheritance, he concluded his deeds on sin". This indicates the impressiveness of will and the emphasis laid by the Holy Prophet (peace be upon him) on testamentary disposition in favour of those near relations who are denied a share in the inheritance. Keeping in view the raison daetre of will, from the assent of Ghulam Akbar who himself sought its implementation before the revenue authorities a reasonable inference can be drawn that in the peculiar circumstances of the case the will shall not be struck down in its totality merely on account of the offending feature but on an equitable construction should be deemed to be valid to the extent of one-third. This' position is not devoid of authority. In Chapter JAI captioned of the same book at page 192 there is the following reference to a saying of Hazrat Ali and his verdict on the will of a person who had, bequeathed they whole of his property or a major portion thereof :- . When translated, it means in substance that testamentary disposition: should confine to one-third of the property and a will in excess of that that would be valid only to that extent. Mufti Jaffar Hussain informed us that a similar view has been expressed by the two famous Mujtahids of Najaf, Agha Syed Abul Qasim Khoi and Agha Mohsin Hakeem Taba fabai in Minhajul Saleheen. He referred us to the following relevant observation made by Agha Khoi in Minhajul Saleheen, Volume II page 150 and reproduced by Agha Taba Tabai in his Book also named Minhajul Salheen, on page 225: It means that "if a will made by a person is confined only to the, deprivation .of some of the heirs from their share of inheritance and the heirs so deprived do not consent to it, it is not legal. If the will is not confined to one-third of the property of the testator but goes beyond it, and some of the heirs arc deprived on that account, it could be valid and acted upon only to the extent of one third," This brings me to the next distinguishing feature of the will in question, namely, that. it is partly in favour of an heir and partly in favour of non-heirs. It was common ground between the parties that the Shia Law did not recognise the principle of rateable distribution. It was urged on behalf of Mohammad Tufail that on the principle, of the first mentioned legatee his father Ghularn Akbar would get the entire one-third share of the property if the will may be held to be valid to that extent. No doubt some authorities have referred to this principle of Shia Law but it would be applicable to a case where the shares of the different legatees have been specified as would be clear from an illustration at page 535 of Sharai-ul-Islam Volume I, 1898 Edition, a well-known Book of Shia Jurisprudence. According to' this if a person wills 1/3rd to A, 1/4th to B and 1 /6th to C and the heirs do not consent then A being the first-mentioned legatee will get 1/3rd and B and C will get nothing. But in Sbarai-ul-Islam at page 33' there is another illustration. According to this if a person wills away separately 1/3rd to A and then 4/3rd to B then only B will take. This seems to be based on the principle of implied revocation of the earlier will by the latter. Apart from the fact that there has been no specification of the shares of the legatees in the instant case, in my humble opinion, having regard to the wisdom and philosophy behind the relevant divine precept, the principle of first-mentioned legatee has nothing to commend itself in the circumstance of the case where the conflict is between the heirs and non-heirs who are nearest of kin and have been otherwise denied a share in inheritance.[ The sine qua non of the invocation of the principle of first-mentioned legatee is that the priority of mention in the sequence of names of the legatee should clearly reflect the conscious preference or choice of the testator in favour of the first-mentioned legatee. Since, an unqualified power o testamentary disposition is confined to one-third of the property and stand exhausted with that, it is taken to be an implied expression of the testator's' choice in his favour otherwise, there is no logic in this. As stated earlier in the instant case there is no such specification of shares. gain it is common knowledge that while recording the names of the heirs of propositus in legal instruments normally the scribe or the draftsman would begin with the eldest male member or alternatively the names might be mentioned at random in the order in which they are given by the testator. Thus it would be wholly unjustified to construe the sequence, a3 being indicative or determinative of the testator's conscious preference. The will having been found to be valid to the extent of one-third and the principles of rateable distribution and first-mentioned legatee having been excluded, the next question for determination will be as to how is this one-third to be distributed between the parties. As mentioned earlier, it was stated by Mufti Jaffar Hussain before us that this would depend on the intention of the testator to be spelt out from the language used by him in the instrument. Having regard to the concomitent circumstances, I am in no manner of doubt that while the testator wanted to deprive his daughters as customary among most of the agriculturist tribes he also wanted the entire property to be equally shared between his son and the two grandsons in fifty-fifty the latter being otherwise, disentitled to inherit as non heirs. It is precisely for this reason that he willed away his entire property between them to the exclusion of the daughters. It appears to me, that but for this two-fold object he would have confined the will to one-thin share and that too in favour of his grandsons who were otherwise, to be completely denied any share in the inheritance, their father having predeceased the testator. Since, however, the will specifically referred to three legatees, namely, Ghulam Akbar the son of the testator and Atta Shabbir and Hafeezullah his grandsons being the; sons of his pre-deceased son Suba Sadiq, in the absence of any specification of shares the only equitable interpretation to be placed on the will would be that the son and the grandsons shall inherit the bequest in fifty-fifty share. The last question to be examined in the controversy is the effect of the exclusion of the three daughters of the testator who of course would otherwise, be entitled to inheritance as his heirs. No doubt the Holy Prophet peace be upon him) enjoined a fair and impartial treatment to the heirs s that some may not be allowed to gain at the expense of others, but this equitable principle cannot be so construed as to render negatory the salutary object of the will and the philosophy behind It. Islam place no restrict on the disposition of a man's property during his life time of which he is the absolute owner and can deal with it in any manner he likes. It is only in the state of Marzul-Maut that a restriction is placed on his power of disposition and for quite understandable reasons too. Since. however, in the instant case on the view I have taken, the validity of the will has been confined only to the extent of one-third, allegation of its being prejudicial to the daughters would hardly be relevant inasmuch as they would be entitled to their share in the remaining one-third property. Thus in the ultimate analysis, the conclusion I have reached is that the composite will should not be struck down in its totality but maybe deemed to be valid to the extent of one-third of the bequest to be shared equally between the uncle Ghulam Akbar and his nephews Atta Shabbir and Hafeezullah. For reasons stated earlier the share of Ghulam Akbar shall devolve on his son Muhammad Tufail appellant in Civil Appeal No. 13-P of 1971. The result is that Civil Appeal No. 14-P of 1971 partly succeeds to the extent indicated above whereas Civil Appeal No. 13-P of 1971 filed by Muhammad Tufail stands dismissed on ground of estoppel on the principle of res judicata as explained earlier. However, nothwithatanding the dismissal of his appeal, Muhammad Tufail shall be entitled to one-half share in the bequest. Since the cases involved complicated questions of law, there shall be no order as to costs. SALAHUDDIN AHMED J.-I agree. ANWARUL HAQ, J.-I agree. S. A. H. Order accordingly.