Germany, Netherlands, Spain, Portugal, Sweden have, however,, followed Roman Law rule of Universal Succession, and accordingly (PLP)

This is a suit for administration of the estate of Mr. Abdul Rehman son of Mohammad Din (hereinafter referred to as the deceased) a Sunni Muslim, who died at Karachi on 9‑12‑1963 after a prolonged illness leaving behind his widow Mohammad Bibi, two daughters Ghulam Zohra and Ghulam Fatima, the plaintiffs herein and the contesting defendants, Abdul Ghani and Abdul Majid, the two sons. The defendants and Mst. Ghulam Zohra are the children of the deceased by his first wife Mst. Azia Bibi and Mst. Ghulam Fatima is daughter by plaintiff No. 1 who was the second wife of the deceased. The plaint recites that the deceased died intestate leaving behind movable and immovable properties and business concerns at Karachi, Sialkot, Hyderabad, Lahore and in Kampala, particulars of which in so far as the plaintiffs have been able to ascertain ate given in the Schedules `A' to 'D' to the plaint. The plaintiff No. 1 as widow claims 1/8th share and the plaintiffs Nos. 2 and 3 as daughters, 7/48th share each in the estate of the deceased. The deceased according to the plaint was born at Sialkot and migrated to Uganda, West Africa about 40 years ago when he is alleged to have in course of time established a vast lucrative and flourishing business by floating a private limited company known as General Motors Ltd., at Kampala. Out of the profits earned by the deceased by his personal efforts and investments, it is alleged, he purchased several properties in Kampala and ultimately, came to Pakistan in the year 1952‑53 and purchased a plot of land D‑136, S. I. T. E. and thereafter, floated a private limited company in Karachi in the name and style of R. G. M. Motors Ltd., and out of his own funds constructed factory, workshop, show rooms and other residential buildings on the said S I. T. E. plot. It is further alleged that the business concern of General Motors Ltd., at Kampala was worth about rupees two crores. It is the plaintiffs' case that during the life time of the deceased the defendants Nos. 1 and 2 had no funds of their own nor did they own business or earned any money of their own and that the shares standing in their names in R. G. M. Motors Ltd., Karachi and General Motors Ltd., Kampala were given to them without any consideration as benamidars and defendants Nos. 1 and 2 were made directors for the sake of convenience only by the deceased.

2. The plaint goes on to say that after the demise of the deceased the defendants Nos. 1 and 2 assumed control and management of the entire estate of the deceased to the exclusion of the plaintiffs and transferred to their own names the shares standing in the name of the deceased in the said two companies without the consent and knowledge of the plaintiffs. The defendants Nos. 1 and 2 were it is alleged under the influence of one Col. M. S. Malik, the General Manager of the company at Karachi, the defendant No. 3 herein, who was frittering away the estate of the deceased. It is also alleged that in the year 1968 the defendants Nos. 1 and 2 for valuable consideration transferred 11,100 shares of Rs. 100 each in R. G. M. Motors Ltd., in favour of Khaliq Ahmed, the son of plaintiff No. 2 who was also elected as a director and that his shareholding amounts to 51 % of the total share holding in the company. Reference is also made to certain litigation pending between the said Khaliq Abmad and the defendants Nos. 1 and 2 in the subordinate civil Courts.

3. The case of the defendants Nos. 1 and 2 in their written statement is that the deceased had made a joint will with them in the year 1959 at Kampala for which Probate had been issued by the High Court of Kampala on 30th November 1965 after due compliance with the Succession Act of Uganda; that the deceased had migrated to Kampala in the year 1920 where he had permanently settled and acquired British Nationality and at the time of his death he was a British National domiciled in Uganda; that the plaintiffs Nos. 2 and 3 and the defendants Nos. 1 and 2 were born in West Africa and they were and continue to be, together with plaintiff No. 1, British Nationals domiciled in Uganda. As regards Plot No. D‑136, S.

1. T. E., and the con structions made thereon and the machinery installed therein it is alleged that it belongs to R. G. M. Motors Ltd., of which the defendants Nos. 1 and 2 together with the deceased were the shareholders and the directors in their own right. The Karachi properties listed in Annexure `A' to the plaint did not form part of the estate of the deceased and the R. G. M. Square and R. G. M. Market mentioned therein were purchased and constructed sub sequent to the demise of the deceased. Schedule `C' property, via., Majid Farm at Hyderabad exclusively belongs to defendant No.

2. The Kampala properties have been described as exclusively belonging to defendants Nos. 1 and 2 and has been it is contended so held by the High Court of Uganda in the relevant judicial proceedings. The defendants claim to be working with the deceased during his lifetime at Uganda and later on joined him as shareholders and directors in the General Motors Ltd., in their own right. They go on to allege that the deceased was illiterate person and the entire business was being managed by defendants Nos. 1 and 2 who were filing their own tax returns and sharing the wealth produced by their joint efforts; that the deceased came to Pakistan in the year 1959 as he and the contesting defendants thought of starting some business in Pakistan and it was in these circumstances that the company known as R. G. M. Motors Ltd , was floated in Karachi and that the name of R. G. M. consists of the initials of the deceased and defendants Nos. 1 and

2. The defendants further alleged that as on the date of the demise of the deceased the defendant No. 1 held 3,867 shares, the defendant No. 2 3,867 shares, and the deceased 1,533 shares and one Ghulam Nabi 10,000 shares in R. G. M. Motors Ltd. The shares stand ing in the name of the deceased it is alleged were subject‑matter of Trust created in favour of defendants Nos. 1 and 2 and these shares reverted to them on the demise of the deceased and the shares standing in the name of Ghulam Nabi were transferred by him to the defendants Nos. 1 and 2 after the death of the deceased. The defendants deny that any of the properties standing in their names were benami as alleged. They further allege that the estate of the deceased in Uganda had been disposed of in accordance with the will left by the deceased and that the shares standing in the name of the deceas ed in ft. G. M. Motors Ltd., Karachi and General Motors Ltd., Kampala were transferred to defendants Nos. 1 and 2 lawfully and with the knowledge of the plaintiffs. It is alleged that some time in 1969 the plaintiff No. 1, Bashir Ahmad, husband of plaintiff No. 2, and Farooq Ahmad husband of plaintiff No. 3 under an ad interim order of injunction made by the subordinate Court took over the control of R G. M. Motors Ltd., Karachi, which injunction was later vacated. The allegation that Khaliq Ahmad was transferred 11100 shares in R. G. M. Motors Ltd., for consideration is denied; and it was said that Khaliq Ahmad had signed a deed of disclaimer showing that he had no interest whatsoever in the said company. Finally, the Court's jurisdiction is denied and estoppel pleaded against the plaintiffs from suing the defendants in Pakistan by virtue of the previous proceedings held in the High Court of Uganda. In the alternative it is also contended that the parties were not governed by the provisions of the Muslim Law but by the customary law in Punjab as prevailing in the undivided India, under which law the plaintiffs would not in any event inherit the deceased.

4. The issues adopted by the Court read as follows:‑ (1) Was the alleged will dated 16th January 1959 executed by the deceased Abdul Rahman? If so, is the said alleged will valid and binding on the plaintiffs? If not, what is the effect? (2) Do the properties mentioned in Schedules `A', B', 'C' and `D' to the plaint belong to the estate of the deceased? What other properties are left by the deceased? (3) Has this Hon'ble Court jurisdiction to administer the estate left by the deceased Abdul Rahman in Uganda (West Africa)? (4) To what reliefs are the plaintiffs entitled ? (5) General.

5. Issue No. 1.‑The case of the contesting defendants, the two sons of deceased Abdul Rahman is that the deceased died testate leaving his last will and testament dated 16th January 1959 making in effect these defendants his sole heirs in respect of all his properties real and personal which may be in any part of the world to the exclusion of his wife and his daughters, the plaintiffs in the present suit. This will it is alleged is valid according to the laws in force in Uganda where the deceased was domiciled and having been duly proved by the defendants in appropriate Probate Proceedings in that country will be given effect to in this country. The deceased was admittedly both ht the time of mating of the will and his demise not a national of Pakistan though of course he died at Karachi on 9th December 1963. It was contended that the beneficial right of succession in accordance with the English Common Law, upon which is founded our legal system, the law of domicile of the deceased at the date of his death will regulate succession to movables and by lex sites, at that date, in the case of the immovables and, therefore, the validity of the will in so far as it deals with the movables will depend upon the law of the testator's domicile and the immovables on lex sites. In support of these contentions my attention was drawn to numerous passages on the subject of the Conflict of Laws by recognized authors.

6. The first question, therefore, that arises for consideration is the domicile of the deceased at the date of his death. That the domicile of origin of the deceased was the Pre‑Partition India is not denied. Nor is it denied that this domicile of origin will, in law, continue until another is acquired, that is, until that person had made a new home for himself in lieu of his home of birth. The case of the defendants is that the deceased migrated from the then British India around the year 1920 and permanently settled in Uganda. In other words he acquired a domicile of choice. According to Dicey domicile of choice is acquired by every independent person by obtaining combination of residence factum) and intention of permanent o indefinite residence (animus mamendi) but not otherwise. The domicile of ,g any person is the place or the country which is considered by law to be his permanent home. It is a mixed question of law and fact or rather inference drawn by law from certain facts though in general facts which constitute) "home" are the same facts from which law infers that it is domicile. Domicile is acquired, except where the law may provide otherwise as in case of minors and a wife, where a person resides at a place with the intention of residence and is retained by having so resided there with the intention of residence (animus mamendi), though in fact be may no longer reside there. With respect to the evidence necessary to establish the animus mamendi it is impossible to lay down any positive rules. According to Turner L. J., in an old English case‑ "Courts of justice must necessarily draw their conclusions from all the circumstances of each case and each case must vary from its circums tances; and, moreover, in one, a fad may be of the greatest importance but in another, the same fact may be so qualified as to be of little weight.". . . According to Dicey since a domicile consists of and is constituted by residence and due animus mamenai, "any fact from which it may be inferred either that `D' resiaes or has the intention of indefinite residence within a particular country, is, as far as it goes, evidence that 'D' is domiciled there." The facts relevant for determination of animus mamendi, according to Dicey are the expressions of intention and the time and the mode of residence in a country. Time, according to one authority is the grand ingredient in consti tuting domicile and according to Dicey in most cases unavoidably conclusive. According to Cheshire a person's residence in a country is prima facie evidence that he is domiciled there and the presumption is favour of domicilii grows in strength with the length of the residence but is not the sole criterian of domicile for every thing depends upon the attendant circumstances for they alone disclose the nature of the person's presence in a country. The residence must answer; in the words of Lord Macmillan in the case of Ramsay v. Liverpool Royal Infirmary ((1934) A C 588) "a qualitative as well as a quantitive test." The Courts have regarded the following as an indecia of the resident's inten tion. Naturalization, purchases of house or burial ground, exercise of political rights, financial expectations, establishment of children in business, the place where a man's wife and family reside, declarations of his intention.

7. Let me, therefore, now proceed to examine the evidence on record in support of the defendants' contention that the deceased had acquired Uganda domicile.

8. The deceased, both according to the plaint and written statement migrated from the then British India to Uganda, West Africa, somewhere in the nineteen twenties. He learnt his trade from his Mamoo in Kampala. Sometime later be married Mst. Aziz Bibi the elder sister of plaintiff No. 1 and took her to Uganda. Two of his sons, the defendants were born in Kampala, Uganda in the year 1926, one in January and the other in December. The two daughters were also born in Uganda, one in 1928 and another in 1936. After a year of the demise of his first wife Mst. Aziz Bibi. the deceased came to his original home town Kotli in the Punjab leaving behind his three children in Uganda and married the plaintiff No. 1 in the year 1933, and re turned back to Kampala and was in 1936 followed by his wife, the plaintiff. Sometime later the deceased according to the plaint' No. 1 purchased a plot in Nairobi and constructed and double‑storied house. He also bought a piece of land in Kampala and constructed a residential house thereon. According to the plaintiffs the deceased made a modest start as a motor mechanic, and later acquired extensive businesses in Uganda. Again according to her, the deceased purchased several movable and immovable property in Uganda both for residence and business and also an agricultural land nearly 100 acres in the name of the plaintiff No.

1. His two sons were educated in Uganda and even the plaintiff No. 1 took her lessons in English in that country. In the year 1940‑41 the deceased accompanied by his family members came to Kotli and remained there until 1945. These were the years of the World War II. The business in Kampala, however. according to the plaintiff No. 1 con tinued to be managed by a Parsi Manager and during this period, according to her, the deceased went to Kampala again to give to the Parsi Manager requisite power of attorney for running his business. While the deceased was in Kotli he did start some business of manufacturing safety razors but it was wound up though business was good as the deceased according to the plaintiff did not like to live here and at conclusion of the War returned to Kampala accompanied by big two sons and later followed by his wife and one of the two daughters. While at Kotli the deceased purchased a plot in Kotli for Rs. 5,000.00 and made constructions thereon at the cost of Rs. 20,000 to Rs. 25,

000. He also purchased a double‑storeyed house in Sialkot. These properties were purchased in the names of the defendants and were always managed by one Shah Mohammad, according to him, on behalf of the defendants only. In the following years the business of the deceased in Uganda prospered so much so that a private limited company in the name of General Motors Ltd., with its paid up capital of 200,000 Shillings was floated by him together with his two sons. Admittedly according to the plaintiff too. 1 the two sons worked with their father in his growing business, and the .deceased acquired plots for business purposes and made very sub stantial investments thereon. The deceased, as aforesaid, made a will dated 16‑1‑1959 at Kampala the validity of which would depend upon con tinued retention by him of his Uganda domicile until his demise. The deceased admittedly came down to Pakistan for investment purposes in the year 1959 but retained his British Nationality, and as an overseas investor brought in capital in this country and floated R. G. M. Ltd., and acquired plot in Sind Industrial Trading Estate, Karachi in the name of the company and raised constructions thereon. After prolonged illness the deceased died at Karachi on 9‑12‑1963. The aforesaid facts to my mind conclusively ‑demonstrate that the deceased made Uganda place of his residence with the intention of residing there for a period not limited as to time and thus acquired Uganda as his domicile of choice. I may add that it was not the case of the plaintiffs or at least it was not so argued before me that the deceased by coming to Pakistan in the year 1959 acquired local domicile. In any event domicile of choice is retained until actual abandonment i.e. giving up both residence and intention to reside and there is very little evidence of such an intention on the part of the deceased when he came down to Pakistan from Uganda,

10. In addition to what I have stated above, the question of domicile of the deceased is conclusively settled by the unequivocal admission made by the plaintiff No. 1, who incidentally appeared to me to be both intelligent and well informed, that "on the date of the demise of my husband I was a British National with Uganda domicile". Moreover, Mr. Zari, the learned counsel ,for the plaintiffs, during the course of her deposition admitted, of which .admission I have made a note, that:‑ "the plaintiffs and the defendants Nos. 1 and 2 are British subjects domi ciled in Uganda except plaintiff No. 2 who had acquired local domicile a few months ago." Now in law a woman acquires at marriage the domicile of her husband and her domicile continues to be the same as his and changes with his throughout ,their married life. She may acquire a home for herself but in no circumstances she can have any other domicile or legal home than her husband, and a widow retains her husband's last domicile until she changes it. For these reasons it is abundantly clear that the domicile of the deceased on the date of his demise was Uganda.

11. The next question for consideration is the legal consequences arising from my finding that the deceased was at the time of the death possessed of Uganda domicile. According to Graveson's treatise on the Conflict of Laws domicile is the concept employed by English Law to establish the legal relationship between an individual and the legal system which, in view of English Courts, can most Justly claim to constitute the personal law of that individual The learned author goes on to state that the underlying purpose behind the principle of determining questions of personal law by the law of domicili, is to ensure confirmity by the individual with the moral and social standard of, the community in which he has chosen to live. "Civil status" declared Lords. Westbury in Udny v. Udny ((1869) L R 1 Sc. & Div. 441 (H L))‑ "is governed universally by one single principle, namely, that of domicile, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority, his marriage, succession, testacy and intestacy must depend." This leads me to ascertain the law in Uganda relating to succession. This law is contained in the Succession Act. Chapter 139 section 46 of this Act provides that every person of sound mind and not a minor may by will dispose of his property. Section 334 of this Act empowers the Minister to exempt any class of persons from the operation of the Act by a statutory order: Mr. Muzafiar Ali Khan, the learned counsel for the defendants placed before: me a printed copy o1 Succession Act (Exemption) Order which provides that the rules for the distribution of intestate estates in the Act shall not apply to Mohamedans. Section 5 of the Act provides that succession of immovable property in Uganda of a person deceased is regulated by the law of Uganda, wherever he may have bad his domicile at the time of his death. Subsec tion (2) of section 5 provides that succession to the movable property of ar deceased is regulated by the law of the country in which he had his domicile at the time of his death. Section 6 provides that a person can have one domicile only for the purpose of succession to his movable property. It will, therefore, follow that a person has unrestricted power to dispose of by will his: immovable property situate in Uganda and his movables wherever they may be if that person is domiciled in Uganda.

12. Mr. A. A. Zari, the learned counsel for the plaintiffs contended that the defendants who are relying upon foreign law, namely, Succession Act lit. force in Uganda, bad to prove this law as a question of fact and they nave. failed to do so. I may add that what was relied upon by Mr. Muzaffar All Khan was official copies of the Succession Act and the Succession Act, (Exemption) Order printed by the Government Printers, Uganda, on behalf of the Uganda Government, and published by its authority. These docu ments were formally brought on record through an application made by Mr. Muzaffar Ali Khan, and though objected to by Mr. Zari, I have no hesitation in taking on record these documents for they were during the course of very lengthy arguments referred to by Mr. Muzaffar Ali Khan and at my' request Mr. Muzaffar Ali Khan offered to give its inspection to Mr. Zari.

13. In support of his argument that the defendants have failed to prove the foreign law Mr. Zari relied upon the following passages appearing in "Conflict of Laws" by Dicey and Cheshire which read as under:‑ "It is now well settled that foreign law must, in general, be proved by expert evidence. Foreign law cannot be proved merely by putting the text of a foreign enactment before the Court, nor merely by citing foreign decisions or books of authority. Such materials can on 'y be brought before the Court as part of the evidence of an expert witness, since without his assistance the Court cannot evaluate or interpret, them." (Dicey at p. 1113) "The question as to what is the foreign law upon some particular matter, like other matters of which no knowledge is imputed to the Judge must be proved, as facts are proved, by appropriate evidence, i.e. by properly qualified witnesses It cannot be proved, by merely presenting the Judge with the text of the foreign law and leaving him to draw his own conclusions". (Cheshire, p. 131). The aforesaid observations to my mind are irrelevant for we are governed by sections 38 and 84 of the Evidence Act which read as follows:‑

38. When the Court has to form an opinion as to a law of any country, any statement of such law, contained in the book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant." "

84. The Court shall presume the genuineness of every book purporting to be printed or published under the authority of the Government of any country, and to contain any of the laws of that country, and of every book purporting to contain reports of decisions of the Courts of such country." Monir on his classic commentary on the Law of Evidence states that "in England foreign law may be proved by expert testimony but it cannot be proved by mere production of books containing foreign law as is permissible in India under section

38. Section 38 is thus a departure from the English rule." Of course, it was open to the defendants to prove foreign law by expert testimony also under section 4‑5, of the Evidence Act.

14. The defendants have produced certified copies, duly attested by the High Commissioner for Pakistan of the relevant papers including the judgment relating to the probate of the aforesaid will of the deceased, being Administral Cause No. 7 of 1964 in the High Court of Uganda, at Kampala (Exh. 26/263 The will proved in the said cause reads as follows:‑ "This is the last will and testament of ours Mr. Abdul Rehman. Mr. Abdul Gani and Mr. Abdul Majid of P. O. Box 274, Kampala, which we made this sixteenth day of January 1959, and whereby we revoke all previous wills and testamentary dispositions. We give all our property real and personal, which may be in any part of the world, to the survivors or survivor among us for their benefit. The wife or wives of the deceased remain within the family as is customary. Po also the unmarried daughters of the deceased. Signed by the testators in the presence of us both present at the same time who, who, at their request in their presence of each other have hereunto set our names as witnesses. Abdul Rehman. (Sd.) Abdul Ghani. (Sd.) Abdul Majid. 1. (Sd.) S. R. de Zouza. Signature of witness. 2. (Sd.) Signature of witness. (Sd.) Seal Attested. First Secretary, High Commission for Pakistan. Nairobi.

15. From the documents produced it would appear that copy of notice of application to apply for Probate was posted in the High Court Notice Board on 29th January 1964 and notice published in the Uganda Gazette dated 31st January 1964 and a local newspaper Uganda Argus of the same date. The proceedings disclose that no caveat was loged and the Probate was granted by the Court on 30th November 1965 which recites that‑ "the last will of Abdul Rehman late of Kampala Uganda was proved and registered and that administration of the property and credits of the deceased and in any way concerning his will was granted to Abdul Ghani and Abdul Majid (the contesting defendants in this suit) of P. O. Box 575, Uganda, the executors in the said Will named The defendants have also produced printed copy. of .the Uganda Gazette in which notice of the Probate application lodged by Abdul Ghani and Abdul Majid was published.

16. Mr. Muzaffar Ali Khan, the learned counsel for the defendants contended that grant of Probate to the defendants stands duly proved by production of certified copies referred to above, in view of the presumption as to certified copies of foreign judicial record contained in section 86 of the Evidence Act. As regards the conclusiveness of this judgment the learned counsel relied on section 41 of the Evidence Act which reads as follows:‑ "

41. A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing. not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof‑ that any legal character which it confers, accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, or order decree, declares that it had been or should be his property."

17. On the basis of section 41 of the Evidence Act, Mr. Muzafar Ali Khan, went on to argue that the judgment pronounced by the High Court at Uganda in the probate proceedings filed by the contesting defendants con clusively establishes not only the genuineness of the Will of the deceased and his personal testamentary capacity but also the validity of the dispositions made by him in the Will which in the present case made the defendants the sole recepients of the entire estate of the deceased wherever it may be. Before I come to section 41 the question that arises for consideration is the effect of the probate granted by the Uganda Court and to examine whether it determines the genuineness of the Will, the testamentary capacity of the deceas ed and the validity of the dispositions made therein. Under section 179 of the Uganda Succession Act, the executors of the deceased person is his legal representatives for all purposes, and all the property of the deceased person vests in him as such. Section 181 provides that Probate can be granted only to an executor appointed by the Will and such appointment may be, under section 181, express or by necessary implication. Under section 183 Probate shall not be granted to any person who is a minor or is of unsound mind and under section 188 Probate of a Will when granted establishes the will from the death of the testator, and renders valid all intermediate acts of the executors, as such. Finally under section 242, Probate is to have effect over all the pro perty and estate, movable or immovable of the deceased throughout Uganda and shall be conclusive as to the representative title against all the debtors of the deceased, and all persons holding property which belongs to him. From these provisions it will follow that the Court granting probate must necessarily decide upon the genuineness of the Will and the personal testamentary capacity of the testator so that upon the executor is conferred a title conclusive against the debtors of the deceased and persons holding his property and giving complete indemnity to those who paid debts or delivered a property to the executor bolding the Probate. The Probate does not determine the contro versy, if any, between heirs claiming adversely to the Will and persons who claimed beneficial interest under the Will.

18. Coming to section 41 of the Evidence Act it is obvious that the scope of conclusiveness it confers upon a judgment has to be limited, in its effect as in Uganda. Additionally, the section itself restricts its conclusiveness to the legal character it confers, in the present case, the appointment of the defen dants as executors under the Will of the deceased and vesting in them the estate of the deceased in Uganda from the date of the judgment. It is obvious that the foreign Court could not have declared the status of the defendants as executors and vested in them the estate of the deceased without ascertaining the genuineness of the Will and his personal testamentary capacity. as distinct from proprietary capacity. Dicey at page 595 draws this distinction succinctly in the following words:‑ "The rule, be it noted, is limited to personal capacity, for example, to questions whether, and if so to what extent, an infant, lunatic, married woman or a person suffering from ill health ran make a will. It does not apply to questions of proprietary capacity, for example, to questions whether a testator can leave property away from his wife and children. Such questions are, it is submitted, best regarded as questions of material or essential validity."

19. The foreign judgment in this case neither purports to nor in fact pronounces upon the essential validity of the Will and is, therefore, not con clusive proof as regards its contents. In so far as the essential validity of the Will is concerned it will have to be determined in accordance with the rule of Private International Law and these rules without question provide that the material validity of a Will of movables contained therein is to be governed by the law of the testator's domicile at the time of his death and the immovables by lex sites. Dicey at pace 602 observed as follows: "It is well settled that the material or essential validity of a Will of movables or of any particular gift of movables contained therein is governed by the law of the testator's domicile at the date of his death. The law determines such questions as whether the testator is bound to leave a certain proportion of his estate to his wife and children, whether legacies to charities are valid. to what extent gifts are invalid as infringing the rule against perpetuities or accumulations whether substitutionary gifts are valid, whether gifts to attesting witnesses, are valid, and so on."

20. The law in Uganda, I have already stated confers on every person of sound mind and not a minor unlimited capacity to dispose of his property by will.

21. Mr. Zari, the learned counsel for the plaintiffs was not prepared to concede even this limited conclusiveness to the judgment of the Probate Court in Uganda and went on to argue that that judgment to be conclusive must not fall within any of the exceptions to section 13 of the Code of Civil Procedure. The precise argument was that a foreign judgment to be conclusive under section 13 of the Code of Civil Procedure, had to be inter‑parte judgment by a Court of competent jurisdiction, must not be opposed to the rule of natural justice and should not be founded on a breach of law in force in Pakistan. Section 41 of the Evidence Act deals with what are popularly known judgments to rem. They are limited in scope but unlimited in effect. The H determine the status of a person or thing and such a judgment is conclusive evidence for and against all persons, whether privies or strangers of matters actually decided. Generally speaking notices of such proceedings are caused to be published and it is open to the party affected to appear and contest such proceedings. They are under section 44 of the Evidence Act, open to challenge only on the ground that the judgment was delivered by a Court not competent or was obtained by fraud or collusion. A foreign judgment to be conclusive under section 13, C. P. C. must also be pronounced by a Court of competent jurisdiction and must not be obtained by fraud. If section 13, C. P. C. was also applicable to judgments contemplated by section 41 of the Evidence Act, it was not necessary to provide these very limitations in the Evidence Act itself. Section 13, C. P. C. to my mind properly construed applies to foreign judgments In personam which are unlike judgments In rem limited in scope as well as effect. The distinction has been well brought by Cheshire at page 653 :‑ "A judgment in rem settles the destiny of the res itself and binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence'; a judgment in personam, although it may concern a res, merely determines the rights of the litigants Inter se to the rev. The former looks beyond the individual rights of the parties, the latter is directed solely to those rights."

22. This aspect of the matter, however, need not detain me any further for I find that the grounds on which Mr. Zari contests the conclusive effect of the judgment given, by the High Court of Uganda have even otherwise no .merit. It was argued that the foreign judgment was in violation of the ,principles of natural justice for the plaintiffs has neither been served nor heard in the cause. The form and procedure, however, for the grant of Probate in Uganda appears to be almost the same as in this Court. They names and addressee of the plaintiffs were disclosed in the petition and cita tions issued and axed on the conspicuous part of the court‑house and published in the Official Gazette and local newspaper. The plaintiffs were at liberty to file caveat against the grant of Probate. Even subsequent to the ,grant i t was open to the plaintiffs to have the Probate revoked for a "just cause". Admittedly no steps have been taken by them to have the grant revoked. The plaintiffs were domiciled citizens of Uganda on the date of filing as well as grant of the Probate. It further appears from Exh. 20/25 that on behalf of the plaintiff, her advocates, in Uganda, Wilkinson & Hunt, .applied for a certified copy of the Probate together with the copy of the Will of the deceased. In these circumstances I am unable to see any justification for the grievance of the plaintiffs that there was any violation of the principles of natural justice.

23. The other argument of Mr. Zari that the Probate should not be given conclusive effect in so far as it makes the defendants the sole legatees of the estate of the deceased as it is founded on breach of Muslim Personal Law in force in Pakistan, is premised on the incorrect assumption that the judg ment has any such conclusive effect. The argument, however, requires to be ,dealt with in another context to which I will now refer.

24. Mr. Zari, the learned counsel for the plaintiffs contended that the validity of the Will of deceased Abdul Rehman should be examined in accordance with the laws in force in Pakistan. He went on to argue that as a Muslim, the deceased Abdul Rehman had no capacity to make a Will by which he could deprive the plaintiffs of their inheritance in the estate of the deceased in accordance with the shariat. The argument in effect was that the Common Law capacity to make a Will which depends on the law of the testator's domicile in the case of movables and on lex sites in the case of immovable should be ignored and the principle universal succession followed in most of the Civil Law countries under which the property of all kinds devolves on death in accordance with the civil system of law should be applied and that the civil law applicable in this country is the personal law of the deceased. In support of his argument the learned counsel relied upon the undermentioned passages of the judgment of Noorul Arfin, J,; in the case of Yusuf Abbas and others v. Mst. Ismat Mustafa arid others (P L D 1968 Kar. 480):‑ "

24. The distinction in the English system of conflict of laws between immovables and movables for the purpose of succession and jurisdiction of Courts. has its roots in the feudal law, under which the feudal lords did not Allow the descent of their land to be affected if vassals should acquire a foreign domicile. Accordingly, the principle of scission was developed, by which the deceased's movable property was governed by lex domicile, while his immovable were governed by the lex sinus. The rule of scission is peculiar to the countries whose legal system is based .on the Anglo‑Saxon system of jurisprudence. Countries like Italy, Germany, Netherlands, Spain, Portugal, Sweden have, however,, followed Roman Law rule of Universal Succession, and accordingly apply a unitary law to the whole of the deceased's property, immov able and movables. Under this system, the heirs succeed per Universtitatem and not by a series of particular acts to each item. In other words for movables and immovables alike, one system of law is applied, which in the case of some countries, that is, Germany, Italy, Spain, Portugal, Netherlands, Sweden, Poland, Egypt, Japan, China and Greece is his personal law, and in countries like Switzerland, Norway Denmark and Argentine, it is the law of the deceased's domicile; Wolff's Private International Law, Second Edition 567‑

568. The advantage of the Unitary Law is that the law applied in the succession to the deceased's estate is simple, and complications are avoided which would be inevitable when several items of property included in one estate have to be distributed under different rules.

26. The question which is now to be considered is whether the Islamic Law, as administered in this country, recognizes the principle of scission between immovables and movables for the purpose of succession. In my opinion, no such distinction is accepted it. this system. I would only refer to Amir Ali (Muhammadan Law Vol. 2, 1965 Edition, page 134), who states that :‑ Muhammadan Law generally is a personal law; that is, its incidents remain attached to the individual Mussalman whatever the domicile, so long as continues even outwardly faithful to the Islamic faith, 'Mussalman' says the Kifaya, is absolutely subject to the laws of Islam, whatever the domicile.' Nor do I see any valid justification to import into this system the dis tinction, rooted in feudal law, between immovable and movables. Thus, if a Moslem dies domiciled in England, the Courts in this country, will apply, not lex domecilii but his personal law that is,. Islamic Law as administered in this country, to succession to his movables in Pakistan. Even the will with regard to these movables, though valid in English Law, will be recognised by the Courts of this. country only so far as it is consistent with Islamic Law."

25. Before I proceed to examine the above observation .of my learned brother Arfin, J., I may recall the facts of that case. A person L died domiciled in Karachi as a National of Pakistan. He left assets both in Karachi and abroad. One of his daughters M had died in Bombay in 1922 leaving behind a son Y and two daughters. L died on 5‑5‑1964 at Karachi leaving behind his widow and other surviving sons and daughters. Y and his two sisters, the children of M the pre‑deceased daughter of L filed a suit for administration of the estate of their late maternal grandfather L against his widow and surviving sons and daughters. It will at once be noted that the above case concerned the estate of a deceased, who was, both a national of and domiciled in Pakistan apt the time of his death and had died intestate. Unlike in the present case the Court had no occasion to examine a will much less a Will of a foreign Muslim citizen domiciled in a foreign country.. Moreover, the Court's refusal to follow the rule of scission was essentially, ,promised on the provisions contained in the Muslim Family Laws Ordinance, 1961 as will appear from the following paragraph in the judgment: "

27. The rule of scission is also disregarded in the Muslim Family Laws. Ordinance, 1961, under which the plaintiffs have brought their claim for inheritance in the estate of the deceased Mustafa Bin Abdul Latif. By section 1(2), it is provided that the Ordinance 'extends to the whole of Pakistan, applies to all Muslim citizens of Pakistan, wherever they may be'. The words 'wherever they may be, are of great significance. If read with section 4 of the Ordinance, under which the children of a predeceased son or daughter of the propositus per stripes received a share equivalent to the share which their father or mother would have received if alive, the irresistible inference would be that the domicile of the propositus is not to be taken into consideration with regard to the succession to his estate. The rule of succession laid down in the Ordinance would apply to every propositus, irrespec tive of his domicile or the place of his ordinary residence. In this respect, the Ordinance, makes more definite the rule of Islamic Law that succession to a Muslim is governed by his personal law. Even if such was not the rule of Islamic jurisprudence, by the use of the words 'wherever they may be' the Ordinance requires that in matters of succession under section 4, the domicile of the propositus should not be taken into account, and this leads to the further inference that with regard to immovables even lex situs has to be disregarded. If a Muslim citizen of Pakistan dies domiciled in a foreign country, the law of his domicile cannot, by the force of the words used in sections 1(2) and 4 of the Ordinance, be applied to his estate in Pakistan. On the same prin ciple, if a Muslim citizen dies domiciled in Pakistan and leaves property, both immovables and movables, in foreign jurisdiction, the succession to his estate will be according to the rule or Islamic law as modified by section 4 of the Ordinance. The Courts in Pakistan, in matters of succession to the estate of a Muslim citizen, can apply only his personal law, irrespective of the rules of lex domicilii or situs. The only limita tion on the jurisdiction of the Courts to regulate succession according to the personal law of the propositus, is the effectiveness of their judgments. Where, however, the Court has jurisdiction under section 20 of the C. P. C. and its judgment can be enforced by securing the personal obedience of the defendants, the Courts in Pakistan will not hesitate to apply this personal law." It will, therefore, not be incorrect to say that the observations on which Mr. Zari placed reliance are obtter dicta. Even otherwise with respect to the learned Judge for whose learning and ingenuity I have great admiration, I am, in all humility, unable to agree with him. In coming to this conclusion that the Islamic Law administered in this country does not recognize the principle of scission between movable and immovables for the purpose of succession, the learned Judge relied upon a passage from Amir Ali's Mohammadan Law reproduced above. At least since the advent of British on this sub‑continent Muslim Personal Law is applied to Muslims in our part of the world not by virtue of the fact simplicitor that we are Muslims but by reason of statute law which empowers the Courts to apply Muslim Personal Law to Mussalmans and that too not in all matters but in some matters only. W do not for example administer in this country Islamic Criminal Law, o Islamic Law of Evidence, though the parties may be Muslims. Moreover, the statute law may expressly vary or supersede Muslim Personal Law (see P L I3 1970 Kar. 613 and section 4 of the Muslim Family Laws Ordinance, 1961). The quotation from Kifaya that the Mussalman is absolutely subject to the Jaw of Islam whatever the domicilii, was true only when most of the civilised world owed allegiance to the Islamic Commonwealth and such allegiance became the teat of the civil rights and liabilities of Muslims. It may have "An long as a Musalman retain his original domicile, so long his status and his personal capacity to do certain legal acts remain subject to the Islamic Law. The moment, however, or as soon as he acquires or adopts a new domicile, he ceases to be governed by the lain of his nation. For example an Indian Musalman when he once takes up his abode permanently in England, or shows distinctly by sonic conduct on his part that stay in this country is not in the nature of a sojourn, but that he has what is called an animus manendi, is subject therefore all matters relating to succession and personal status, to the English Law. He ceases to be under the jurisdiction of the Musalman Civil Law. The moral and religious portions of the law remain binding upon his conscience, but has subjection to the jurisdiction of the English Law has the effect of withdrawing him from the regime of the secular law of his own nation How far this is in accord with the spirit of the Mohammadan Law will be apparent from what has been stated before. Under the Italian and probably under the French Law, he would remain subject to the Islamic system, in spite of a change of domicile so long as he retained his allegiance. So also, a Musalman whilst maintaining a constant association with the country of his origin, or being frequently in the habit of going to and from, may, by establishing a per.; arrant business or trade in England, evidence an intention of adopting domicile different from the domicile of origin and submitting himself to the jurisdiction of the new domicile."

26. It will, therefore, follow that a Musalman may by adopting domicile) in a foreign country choose to be governed, in matter of succession by the law of the country of his domicile and by giving effect to such a law which may provide for devolution of property of all kinds under a single system of law as per aniverstitatian or by application of rule of succession based on the Anglo‑Sexon system of jurisprudence, the Courts in this country will not be acting in derogation of or inconsistent with the Islamic Laws.

27. An additional argument of Mr. Zari for not applying the Uganda law is its repugnancy to our distinctive‑public policy for it is recognized rule of conflict of law to quote Dicey that:‑ "The Court will not enforce or recognise a right, power, capacity, disability or legal relationship arising under the law of a foreign country, if the enforcement or recognition of such right, power, capacity, disability or legal relationship would the fundamental public policy of English law."

28. As to the circumstances under which the Court recognise or enforce law of a foreign country Cheshire has this to say:‑ "The conception of public policy, is, or should be narrower and more limited in private International Law than in internal law. A transac tion that is valid by its foreign‑law cases should not be nullified on this ground unless enforcement would offend some moral, social or economic principle so sancrosant in English eyes as to require its maintenance at all costs and without exception. In the words of Cardozo, J. in a NewYork Case. A right of action is property. If a foreign statute gives the right, the mere fact that we do not give a like right is no reason for refusing to help the plaintiff in getting what belongs to him. We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home. . .The courts are not free to refuse to enforce a foreign right at the individual notion of expediency or doors unless help would violate some prevalent conception of good of the commonwealth. The particular rule of public policy that the defendant invokes may be of this overriding nature and, therefore, enforceable in all actions. Or it may be local in the sense that it represents some feature of internal policy. If so it must be confined to cases where the lee course in English." 29. 1n support of this contention Mr. Zari invited my attention to Article 2 of the Constitution which makes Islam the State religion of Pakistan and Article 31 which obliges the State to take steps to enable the Muslims of Pakistan individually and collectively to order their lives in accordance with the fundamental principles and basic concept of Islam and to provide facilities whereby they may be able to understand the meaning of life according to the Holy Qur'an and Sunnah. The obligation of the State contained in Article 31 and is towards Muslims of Pakistan" and not Musalmans and generally wherever they may be. Moreover, I am unable to see any moral, social or economic principle so sancrosant in our law which will impel us to give effect to only such foreign law of succession as is a mirror image of our own law.

30. My conclusions, therefore, are : (a) that the deceased died leaving behind a will dated 16th January 1959 which is valid in law and binding on the plaintiff's. (b) That the Will has been duly proved in the probate proceedings in Uganda and has the effect of vesting in the contesting defendants as executors the entire estate of the deceased situate in Uganda. (c) That the probate obtained by the contesting defendants gives them exclusive jurisdiction to administer the entire estate of the deceased in Uganda. (d) That the will is valid in so far as it makes the contesting defendants the sole legatees of movables and immovables situate in Uganda and movables wherever situated.

31. Issue No. 2.‑According to Schedule `A' to the plaint three Karachi properties which form part of the estate of the deceased are :‑ Rs. (a) A plot No. S‑136, S. I. T. E., Karachi, with Show Room, Workshop and office and residential pre mises situated therein, with machinery installed in workshop . .. . 25,00,000.00 (b) A multi‑storeyed building known as R. G. M. Square, Nouman Street, Karachi . ... ... 20,00,000,00. (c) An incomplete building known as R. G. M. Market Rs. on plot No. 7, Sub‑Block C/4, Block No. 4, Nazim abad, Karachi ... . 25,00,000.00 The property No. 1 admittedly did. not stand in the name of the deceased either during his life time or on the date of his demise. This property admittedly stood in the name of a private limited company, namely, R G. M. Motors Ltd., this company was floated by the deceased, who alongwith Mr. G. Altahur Exh. 13, a solicitor, were, its first two directors. The total number of shares standing in the name of the deceased in this company on the date of his demise was 3867 shares of the fully paid up face value of Rs. 100 each. The total issued capital of the company was Rs. 21,60,000.00 represented by 21600 shares. According to the Minute Book of the Company, Exh. 16/1, 1670 shares were issued and allotted to the deceased and 1668 shares to each of the defendants on 14‑4‑1960 ; 664 shares were issued and allotted to the deceased and 665 shares to each of the defendants on 6‑6‑1960 ; 1533 shares were issued and allotted to the deceased, 1534 to defendant No. 1, 1535 to defendant No. 2 and 10,000 shares to Ghulam Nabi on 15‑3‑1963. The last issue according to the Minutes was against the amounts received and kept to the credit of "Advances Received against shares to be issued" in the names of Messrs Abdul Rehman, Abdul Ghani Abdul Majid and Ghulam Nabi. The plaintiff's' case is that the entire share capital of this company was con tributed by the deceased exclusively and that it was the deceased who came to Pakistan in the year 1959, floated this company, purchased the plot at S.1. T. E. a Petrol Pump, imported plant and machinery and taxies and made its payments. Admittedly, the deceased did not purchase any of these assets in his own name but in the name of said R. G. M. Motors Ltd. The shares that were issued from time to time in favour of defendants and Ghulam Nabi were it is alleged paid for exclusively by the deceased as the defendants had no independent source of income at all. When it was pointed out that the contesting; defendants were working with the deceased at least from 1945 on wards in Kampala and in 1951 put in complete charge of the newly incor porated General Motors Ltd., Kampala and with a paid up capital of 2 lacs shillings, which the company grew and prospered so much so that by March 1963 it had paid up Capital of 23,30,000 shillings with the shares of the face value of 19,80,000 in the name of the contesting defendants and of the value of 6,50,000 shillings in the name of the deceased, the reply was that these shares really belonged to the deceased and the defendants were only its ostensible owners. The defendants have produced a case of documents to show their active participation in business in Uganda, receipts of substantial salary and dividend income from the said company and the taxes paid by them for at least some of the years. It has also come in evidence that Bank accounts were opened in the name of this company which were operated by the defendants arid there were also personal accounts, jointly operated by the deceased and his two sons in banks in Uganda as well as in the United King dom. The oral as well as the documentary evidence establish beyond doubt that the family business in Uganda though started by the deceased and initially modest was later on enlarged and prospered by the joint efforts of the contesting defendants. There is not an iota of evidence that the income derived from business in Uganda was wholly appropriated by the deceased himself to the exclusion of his two sons who between themselves, held more than 2/3rd shares in the General Motors Ltd., Uganda. The least that can be said is that the deceased set up his two children, the contesting defendants in business for their benefit and was quite willing to give them substantial shares in the said company. Assuming, therefore, that doctrine of Benami could be pressed into service by the plaintiff, in relation to the properties acquired by the deceased in Uganda, the plaintiffs have failed to prove that the contesting defendants were not the real owners of the shares held by them in the said company.

32. Funds, in cash and in kind, were admittedly remitted from Uganda for investment in Pakistan and in lieu of these remittances, shares issued from time to time in favour of the deceased and the contesting defendants in R. G. M. Motors Ltd., Karachi after obtaining the requisite permission from the State Bank of Pakistan and the Controller of Capital Issues. According to Mr. Zari, the recitals in the two resolutions dated 14‑4‑1960 and 6‑6‑1960 of the Board of Directors of R. G. M. Motors Ltd., authorising the company to issue shares of the total face value of Rs. 7,00,748 80 is favour of the deceased and the contesting defendants "that the company has received remittances aggregating to R9. 7,00,748.80 from A:. A. Rehman as subscrip tion for shares to be issued to him and other overseas investors," is a clear admission by the defendants that these funds belonged to the deceased. The recital merely states that the remittances were received by the company from the deceased for issue of shares to the deceased and other overseas investors. There is, therefore, no admission by the defendants in the Minute Books, as contended by Mr. Zari, that the consideration for the issue of the shares belonged to the deceased.

33. The other circumstances to which Mr. Zari laid great emphasis and which according to him conclusively establishes the benami nature of the investment made in Pakistan was the publication of an article in the Auto mobile Supplement of the Daily Mashriq dated 1‑3‑1968, Exh. 9/1, of R. G. M. Motors Ltd., in which the deceased is described as founder of R. G. M. Motors Ltd. A mention is made of the start of his business career in the early years of this century in Kampala, then British East Africa, when after a lone fight, determination, untiring efforts and intelligence, the deceased laid down foundation stone of General Motors in Kampala in the vehicle industry . . . . . . .by his day and night efforts. After Partition the article goes on to say that the deceased chalked out a programme for manufacture of spare parts and accessories of vehicles etc . . . . . .spent huge amount and started a subsidiary company in Karachi in the name of R. G. M. Motors Ltd. . . . . put up a splendid building on a vast piece of land costing many lacs of rupees on Manghopir Road, Karachi. The article then refers to the agency of Peugeot cars acquired by R. G. M. Motors Ltd, Karachi on account of successful efforts of the deceased in East Africa and the introduction by the deceased of this vehicle in Karachi by bringing into operation a taxi fleet of 30 Peugeot cars . . . . . The article thereafter goes on to refer to the devotion given by the deceased for development of Engineering Workshop of R. G. M. Motors Ltd., after 1962, and to the deceased's unfortunate demise when his planning was about to accomplish. The writer then gave vent to his apprehension that though after the death of Abdul Rehman it appeared that no one would appear to complete his great aim but his two obedient sons with great courage and hope took the responsibility on their shoulders. The aim of the deceased was realised, the article concludes by addition of two more glorious buildings, one on Bunder Road and another at Nazimabad, the latter under completion, and the completion of R. G. M. Motors Ltd., in every respect.

34. The aforesaid article to my mind is nothing more than an advertisement booster for R. G. M. Motors Ltd., Karachi. No doubt the article almost exclusively attributes to the deceased the progress made by the family business. But this is quite natural for we in the east, pride in our admiration and loyalty to our parents, and more so after their demise and, are therefore, understandably‑ profuse and over generous in our tributes to them. This document cannot by itself, and much less in the context of other circumstances, pursuade me to come to the conclusion that the entire invest ment in Pakistan came from the deceased and exclusively belonged to him.

35. It is not disputed that on the date of demise of the deceased a total of 3867 shares in R. G. M. Motors Ltd., stood in his name and that consideration for 100000 shares issued by the company in the name of Ghulam Nabi wag paid for by the deceased. It is, however, the case of the contesting defendants that these shares are subject to two declarations of Trust, Exhs. 13/8 and 13/7. Exh. 13/o is dated 7‑8‑1962 and is a declaration of trust made by Ghulam Nabi, then General Manager of R. G. M. Motors Ltd. The document recites that the company had been requested by Abdul Rehman to transfer in the Company's book. to the credit of the account of Ghulam Nabi, the Trustee, a sum of Rs. 10,00,000 out of the moneys of the deceased lying with the Company, and that in pursuance to this request, the company, had already transferred the sum of Rs. 7.00,000 and the balance of Rs. 3,00,000 would be transferred from tine to time and that the funds transferred or to be transferred to the account of the Trustee were on the latter's undertaking that he will utilise the funds solely and exclusively for the purpose of taking up and fully paying for, shares which the company proposed to issue to the Trustee, for which the company bad sought permission from the Controller of Capital Issues and that these shares will be held by the Trustee, Ghulam Nabi as trustee in trust for the benefit of all the sons (the sons to include those sons born after the execution of this deed) of the defendants. This is followed by a declaration by the Trustee that he will so hold the trust shares and that the trustees shall have no personal interest or right in the trust funds. Among other things the Trust provided that the beneficiaries upon attaining majority were absolutely entitled to the shares in the trust fund ; the trustee was prohibited from selling, transferring, mortgaging etc.. the shares except with the prior consent in writing of the present directors of the company ; and in the event of his death or incapacity or unwillingness to act as trustee the trust fund was to automatically vest in the contesting defendants jointly or the survivors of them as Trustees who were bound to continue to hold the trust funds in trust for the beneficiaries. The power was also given to any of the present directors. of the company to determine the trusteeship, should the Trustee be unfit to or incapable of acting as trustee in which event the trust funds shall vest in the defendants as trustees to be continued to be held by then in trust for the said beneficiaries. It is an admitted position that following this declaration of Trust and on receipt from the Controller of Capital Issues the requisite permission. the company issued vide its resolution dated 15-3‑1963 10.000 shares of the face value of Rs. 100 each in the name of Ghulam Nabi. This declaration is signed by Ghulam Nabi as trustee and his signature is witnessed by one Mr. Kabral, Barrister at Law, then working in the office of Messrs Surridge & Beecheno. Both the signatures have been confirmed by Mr. Gallahar Exh. 13, whose firm, had drafted the trust deed and had got the original engrossed on the stamp paper. It is also an admitted position that as on the date of this declaration of trust only one of the two defendants had sons while sons to the other defendant were born subsequently. These 10,000 shares throughout, until transferred, 500 to each of defendants by resolution dated 30‑8‑1967, stood in the name of Ghulam Nabi and in so far as the company's records are concerned Mr. Ghulam Nabi's capacity as Trustee was never recognised. The other trust Exh. 13/7, is one declared by deceased Abdul Rehman on 27th August 1962. In its recital it is stated that the deceased held 2334 ordinary fully paid up shares in R. G. M. Motors Ltd., and was also owner of certain funds lying to his credit against shares and shipment accounts in the books of R. G M. Motors Ltd., and that the amount of such funds was fluctuating from time to time. The said shares are described as trust shares and funds as trust funds and both collectively described as Trust property, and tae deceased as Trustee declared that he held the Trust property upon Trust in equal shares fur his two sons, the defendants, as beneficiaries and that the Trustee shall not have any personal interest nor have any right to the Trust property and that in the event of his death or incapacity or unwillingness to act as a Trustee, the beneficiaries shall become absolutely entitled to the crust property subject, however, to the condition that the Trustees wife Muhammad Bibi, the plaintiff No. 1, shall be entitled to receive from the Trust property annual annuity of Rs. 6,

000. Lastly, the Trust provided that the beneficiaries at any time if they may so desire determine the Trust and become absolutely entitled to the Trust property subject, however, to the said annuity payable to plaintiff No.

1. The trust also provided that it" any fresh shares were issued to the Trustee after the date of the declaration the same will form part of the (rust shares and held by the Trustee in Trust for the beneficiaries. This declaration is signed by the deceased and witnessed by Mr. Kabral, Barrister‑at‑Law, working in the office of Surndge & Beecheno and both the signatures have been identified by Mr. Gallahar who also admits that the declaration was engrossed on the non‑judicial stamp paper in his office. It is also an admitted position that subsequent to this Declaration further 1533 shares were issued in favour of the deceased and after his demise, the Trust shares including those issued sub sequently and forming part of the Trust shares were, by the Company's Resolution dated 30‑8‑1967, transferred in the name of the defendants. In so far as the Company is concerned the shares throughout continued to stand exclusively in the name of the deceased in his own right and not as v Trustee.

36. Mr. Zari, the learned counsel for the plaintiffs challenged both the factum and the validity of the aforesaid two Trusts. As regards the factum his contention was that its execution had not been proved and the signatures of the declarants as well as the witnesses identified by Mr. Gallahar should be considered in the context of numerous signatures which were put to the witness for identification and, therefore, what the learned counsel implied was that it was a case of mistaken identification of the signature on the two Trusts by Mr. Gallahar. I am unable to agree with the learned counsel for ‑the simple reason that Mr. Gallahar is a legal practitioner both of repute and experience and he would not have identified the signatures in so unamliguous, manner if he had the slightest doubt. It was next contended that the signature of the declarants appeared only on the last page and not on every page. But again in view of the categorical statement made by Mr. Gallahar that these documents were engrossed in his office mere absence of signature on other pages would not justify an adverse inference. Mr. Zari then referred to the four non judicial stamp papers on which the first two, pages the two Declarations are engrossed and made a grievance that the stamp papers bore different dates of issue. The non judicial papers were Issued in the name of Messrs Surridge and Beecheao and not in the name of the Daclarants and a firm of Solicitors like that of Surridge a Beecheno is expected to have non judicial stamp papers for use on behalf of their clients. For these reasons I am unable to come to the conclusion that the two Trust Deeds are forgeries and have been prepared for the purpose of the present case. That the deceased contemplated a Trust of the shares which were issued in the name of Ghulam Nabi is clearly borne out by the contemporaneous correspondence exchanged between him and Messrs Farguson & Co., who were the Company's auditors. Moreover, the recits in the Trust declared by Ghulam Nabi were made effective in the life time of the deceased. Coming to the validity of the trust the main argument of Mr. Zari was that the purpose of the two Trusts was opposed to Public .Policy and/or its nature such that if permitted it would defeat provisions of law. The argument was that the two declarations of the Trust were ‑in fact intended to deprive the plaintiffs to their legal inheritance of their father, the deceased and, therefore, contrary to the Muslim Personal Law, and more so, as it is the declared Public Policy of the Islamic Republic of Pakistan that Mussalmans shall be permitted to live in accordance with the ,Shariat. The question to my mind is essentially one of the power possessed in law by the deceased to make a declaration or caused it to be made in the manner aforesaid. A Musalman during his life time has unfettered power to deal with his properties as he may deem fit. He may for example make a gift of his entire estate and he may, either by design or L otherwise exclude thereby all or any of his heirs. If any authority was needed for this proposition the same is found in the case of Saifullah v. Ghulam Jabbar and others (P L D 1955 Lah. 191) :‑ "The only restraint upon a Muslim in the matter of alienating his property imposed by the Muslim Law relates to wills and gifts on death bed. In other cases the power of alienation of a Muslims qua his property is, apart from the conditions laid down by the law for completing a transfer, unfettered. it may be impious for a Muslim to deprive some or all of his children of his property by alienating it in his lifetime‑and it would be obviously so in all good sense if done without just cause ; but there is nothing anywhere in the Holy Qur'an to forbid such gifts when made by a person not suffering from maraz‑ul‑maut. "

37. If, therefore, a Musalman instead of a gift makes an effective declaration of Trust of his property the consequences can be no different. Mr. M Zari relied on a decision from Burma reported in 1919 I C 522, in which a gift was made in favour of a nephew for religious offering but if the donor recovered the property was to remain his own. In other words the gift was to take effect in the event of his death. The Court held that no beneficial interest had been given to the donee but he was in a position of a Trustee for carrying out the wishes of the donor after his death and such a transfer was invalid as gift and the document which purported to do so in fact amounted to a will, and invalid as such for concept of will was entirely foreign to Budhist law, which governed the parties. The case has no parallel for in the present case the deceased had full and unfettered power to make or cause to be made declaration of his trust of his properties.

38. The second ground of attack was that there was no transfer of trust property in favour of the two Trustees and the documents were in erect bequests. It is true that under section 6 of the Trusts Act, 1882, a Trust is created, among other things, when the author of the Trust transfers the Trust property to the Trustee but these words are predicated by "unless the author of the Trust is himself to be the Trustee." In the latter event all that is required is an indication by the author of the Trust with reasonable certainty by any words or acts an intention on his part to create a Trust. This intention has been clearly impressed in both the Declarations Exhs. 13/7 and 13/8. The argument that the two documents were in effect bequests are not borne out by the fact the declarants caused to have any personal interest in the shares and the provisions regarding termination of the Trusts by the beneficiaries even during the life time of the declarants. Mr. Zari laid great stress on the fact that neither R. G. M. Motors Ltd., nor the Registrar of Companies were informed of these Trusts and the company did not accept any such Trusts and that in so far as the company was concerned it throughout recognised the deceased as well as Ghulam Nabi as owners of the shares in respect of which Trusts were created, as their individual properties. The learned counsel, however, lost right of section 33 of the Companies Act, 1 913 which provides that no notice of any Trust, expressed, implied or constructive, shall be entered on the register or be receivable by the Registrar. Some arguments were addressed with reference to the clauses in the Trust Deeds which provide for determination of the Trust at the instance of the beneficiaries, but then the law itself, section 78 of the Trust Act, envisages such a situation. It was next argued that the declarations were sham documents and not acted upon and for this purpose reliance was placed on the manner in which these shares were dealt with by the defendants. The shares which stood in the name of the deceased were transferred to their joint names as heirs and not as beneficiaries. As regards the shares standing in the name of Ghulam Nabi, each of the two defendants got half the shares, 5,000, each, transferred in their favour and the argument was that the former shares should have been transferred in favour of the defendants beneficiaries and the latter jointly as Trustees. It may at once be noted that no allegation is made as regards the trust having not acted upon during the life time of the deceased. It was not open to the com pany to recognise any Trust or equitable interest in shares, and the company could, therefore, accept transfer only in favour of the legal heirs of the person in whose name the shares stood. When Ghulam Nabi ceased to be the Manager of the company and presumably expressed his inability to continue as Trustee, the two defendants became Trustees and the only person who can object to the transfer of these shares equally in the name of the two defendants instead of in their joint names would at best be its beneficiaries. These circumstances which have their origin several years after the demise of the deceased cannot go to establish that the trusts declared or caused to be declared by him was not acted upon. In fact what had to be established was that the declarants did not act upon the Trust which is clearly not so as all that was required for the acquisition of the shares in the name of the Trustee, in the case of Ghulam Nabi, had been done and for the shares held by the deceased no overt act of transfer was necessary except his declaration.

39. In support of his contention that the two declarations of Trust were sham documents Mr. Zari relied on the following observation of the Supreme Court in the case of Lakshmi Narayan Jew and others v. The Province of East Pakistan (1969 S C M R 898) :- "There mere execution of a deed, though it may purport on the face of it to dedicate property, is not enough. It is necessary for the validity of an endowment to show that the executants had divested themselves of the property. Thus if subsequent dealings show that no idol was set up or that no part of the income was spent for the worship of the idol the dedication cannot be found to be operative. In the circumstances, it was, in our view, necessary for the appellants to show that something more was done to make the dedication complete and elective. This they have clearly failed to do, as has rightly been held by the High Court." The observations themselves show that the facts of that case were entirely different from the present one. Moreover, in the present case my finding is that by the declarations the authors had clearly divested themselves of the Trust property. It has also not been shown that the Trust funds or shares IV were subsequent to the declarations dealt with by the author trustees as their own. The manner in which the shares were dealt with by the succeeding trustees, the defendants to my mind will not, in these circumstances make otherwise valid and effective trusts, sham.

40. A further argument made in connection with Trust declared by Ghulam Nabi, was that the Trust funds of which he made the declaration in fact belonged to the deceased and it was, therefore, not open to him to declare Trust of property not possessed by him. That the deceased was responsible‑for the creation of this Trust by Ghulam Nabi is borne out not only by the correspondence exchanged between the deceased and Fergusons & Co., but by the very recitals of this Trust. Moreoever, under section 5, of the Trust Act, Trust can be declared either by the author of the Trust or by a Trustee.

41. It was next argued, in passing only that the Trust declared by Ghulam Nabi was void as it was also for the benefit of then unborn male children of one of the two defendants. It was not so stated but the learned counsel was perhaps relying upon that principle of Mulsim Personal Law which does not recognise contingent interests and just as gift in favour of an unborn person is void Trust which is in the nature of a gift will suffer from the same impediment. In the present case however, one of the two defendants had male children as on the date of the declaration of this Trust, which will not make the Trust contingent and the learned counsel was unable to show that the entire trust would be void as the other brother did not have any male children as on the date of the declaration of Trust. The analogy of a gift not becoming void if in favour of born and unborn person will apply to Trust as well.

42. Lastly, in the absence of the beneficiaries before me, it would not be open to me to give an adverse finding in so far as Ghulam Nabi's Trust is concerned.

43. Before I part with this aspect of the matter I must add that it was contended on behalf of the defendants that it is not open to this Court in an administration suit to question the validity of the alienations made by the deceased during his life time. Some decisions were cited from foreign jurisdiction in support of this contention. I am, however, of the view that in an administration suit the Court has the jurisdiction to decide whether a particular property belonged to the deceased or not and it would be impossible for the Court to administer the estate without deciding what that estate is. The form of the decree given in Schedule I, Appendix 'D' of the Code of Civil Procedure, would also support this view.

44. The two other properties in Schedule 'A' are the multistoreyed building known as R. G. M. Square and an incomplete market known as R. G. M. Market at Nazimabad. These two properties were purchased by the defendants in the year 1961 long after the demise of the deceased and its sale deeds are Exhs. 26/266 and Exh. 26/277. The plaintiff's contention was that the entire consideration for the purchase of these plots and the construc tions made thereon came from R. G. M. Motors Ltd. ant since it is their case that the entire share holding belonged to the deceased the consideration paid for the purchase and development of the two properties came from the deceased. The contention to my mind has no force as the deceased was not in my view possessed of any shares in R. G. M. Motors Ltd., in his own right, on the date of his demise. Even in the absence of Trusts referred to above and on an exemption that funds for the purchase and development of these properties came from the company, it will not follow as a consequence that these properties formed part of the estate of the deceased. On merits the plaintiffs failed to prove that any part of the consideration for the purchase of these properties came from the company.

45. Schedule 'B' properties are a plot at Kotli and a building in Sialkot and these were admittedly purchased in the year 1940. The open plot at Kotli was developed . immediately after its `purchase. The Sale Deeds of these two properties Exh. 24/1 and 24/2 and the receipts Exhs. 24/3 and 24/4 of consideration paid are in favour of the contesting defendants. Though the deceased was then in Koth the purchases were made through Shah Muhammad, Exh.

24. That the defendants at that time were not possessed of any independent source of income is not denied. The dafendant's case is that the consideration partly came from their mother Mst. Aziz Bibi and partly from their deceased father. It is alleged that a sum of Rs. 20,003 and some jewellery was given by Mst. Aziz Bibi to Shah Muhammad in the year 1928 at Kampala as 'amanat' to be invested in the home town for the benefit of the defendants. I am unable to accept this version. Mst. Aziz Bibi died in the year 1931 and it is difficult to believe that Shah Muhammad retained the money and Jewellery allegedly given to him until 1940 for investment as aforesaid. I jam satisfied on the basis of oral evidence on record that the entire consideration for the purchase of this property and its later development came exclusively from the deceased. This, however, does not conclude the matter. For the admitted position is that since the purchase of the said properties they were being continuously managed by Shah Muhammad not on behalf of the deceased but for the benefit of the defendants to whom accounts were rendered and rent paid by Shah Muhammad. The documents of title to the two properties have throughout remained in possession of Shah Muhammad. Moreover, the‑plaintiffs did not for six long years since the demise of the deceased claim any share in the aforesaid properties or its income. In these circumstances Mr. Muzaffar Ali Khan alternatively argued that the properties were purchased for the bene fit of the defendants and notwithstanding the fact that the consideration came from the deceased the properties became absolutely vested in the defendants. It is now well settled that the source of purchase money is not conclusive in favour of the benami character of a transaction though it is an important criterion. Where there are other circumstances showing that the purchase inten ded the property to belong to the person in whose favour the conveyance was taken, the essence of benami being the intention of the purchaser, the Court must give effect to such an intention. The law has been well summoned up by Mr. K. A. A. Qamaruddin in his book "Law of Benami Transactions in India and Pakistan" at pages‑86 and 87 as follows :‑ "It would, therefore, seen clear upon the authorities cited so far that there is no conclusive presumption, either in favour of or against, benami transfers. Whatever presumption may arise from a transaction which is benami, such presumption is rebuttable. The long line of decisions of different High Courts in British India and the Privy Council firmly established the rules that in a benami transfer or purchase the source of purchase money for acquisition of the property must come from some one other than the ostensible transferee or the purchaser; that there will always be an initial and primary presumption in benami that the property belongs to the real purchaser. But it is also a well‑settled and established rule of law, that notwithstanding that the doctrine of advancement does not apply in India and Pakistan, the presumption of resulting trusts in benami transfers is always liable to be rebutted upon evidence that the purchaser, grantor or donor intended to benefit the person in whose name the property was acquired and the conveyance of the legal estate was taken. And, it seems necessary to point out here that this doctrine of Indo‑Pakistani law of 'Intention to Benefit' has not only been established by judicial decisions but the very essence of it is contemplated and embodied in section 82 of the Trusts Act, 1882, which deals, as we have seen earlier, with the application of the principles of resulting trusts in benami purchases. For section 82 of the said Act provides Where property is transferred to one person for a consideration paid or provided by another and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, transferee must hold the property for the benefit of the person paying or providing the consideration, and the above clause put in italic type abdundantly makes it clear that a resulting trust in benami will only arise if the person paying or providing the purchase money pays or provides without any intention to benefit the transferee. It will be seen that section 82, Trust Act, was so interpreted in Chiltaluri v. Sittapatl Rao A I R 1938 Mad. 8 where their Lordships of the Madras High Court held that It is true that in Indian law, the English rule as to the presumption of advancement has not been adopted, but section 82, Trusts Act, recognises that money may have been contributed by another towards a purchase with the intention of giving a beneficial interest to the person in whose name the purchase is made." The intention to benefit the defendants is to my mind clear by the attending circumstances, namely, the general design of the deceased which appears to be to affect the interest of his wife and daughters and to vary the rules of succession between his sons and other heirs, the purchase by Shah Muhammad though the deceased was present, management by Shah Muhammad on behalf of the defendants to whom account of income was rendered, the custody of the title deeds, and the conduct of the plaintiffs. In the words of the Privy Council in the case of Imambandi Begun v. Kumelshwari Pershad (1886 L R 1311 A 160): "Where there are benami transactions, and the question is who is the real owner, the actual possession or receipt of rents of the property is most important." My finding, therefore, is that these properties were purchased for the benefit of the defendants and they exclusively belong to them.

46. Schedule "C" property is an agricultural farm which was purchased by defendant No. 2 in the year 1963 vide Exh. 22/2. The price for the purchase of this farm was paid for by a bank draft obtained by debitting the personal account of this defendant with Habib Bank Ltd., S. I. T. E. Branch, which account was operated upon by witness Karamat Mirza, Exh.

22. Mr. Zari conceded that there was no evidence to show that this farm was purchased by the deceased or that he bad deposited in the said bank account of defendant No. 2 any sum. All that he could show was that the deceased was interested in the purchase of a farm which is hardly sufficient. In the presence of documentary evidence of the payment from the bank account of defendant No. 2, the oral evidence of Muhammad Bibi Plaintiff No. 1 and Pir Din Exh. 19 that the price of this farm was paid for by the deceased is of little value. I, therefore, hold that this farm did not form part of the estate of the deceased.

47. Schedule "D" properties consists of properties at Uganda and these are as follows :‑ (1) Two show rooms, workshops, with two houses, situated on Bamboo Road, Kampala, with machinery installed in workshops, fully equipped, owned by General Motors Ltd. Rs. 20,00,000.00. (2) One show room under construction on Entabbe Road, Kampala. Rs. 20,00.000.00. (3) Hotel Silver Spring (Uganda) Ltd., on Jinja Road, Kampala, four multi‑storeyed buildings for residential hotel in 12 acres of land, purchased by A. Ghani and A. Majeed for and out of funds of deceased. Rs.18,00,000.00." Property No. 1 was admittedly not owned by the deceased but General Motors Ltd., and at the time of his demise deceased held according to Exh, 26/55, 1300 shares of shillings 500 each in this company. It is also not proved that the deceased was the real owner of the shares standing in the names of the contesting defendants in this company. There is no evidence that the deceased left any immovable property in Uganda. The plaintiffs could have easily produced certified copy of any immovable property standing in the name of the deceased or at least given its particulars. Regarding property No. 3, this was admittedly purchased long after the demise of the deceased but it is said that out of funds of the deceased for which there is no evidence.

48. Issue No. 3.‑ Mr. Muzaffar Ali Khan, challenged the jurisdiction of this Court on the ground that the executors appointed by the Court at Uganda in the probate proceedings referred to above alone are entitled to administer the estate of the deceased wherever it may be. I have already dealt with the legal effect of the Probate granted by the Court at Uganda and in view of its restricted effect as confined to properties situate in Uganda only I am unable to see how grant of probate by that Court will oust the jurisdiction of this court.

49. Issue No. 4.‑The result is that except for 1680 shares in General Motors Ltd., at Uganda, accrued dividened thereon, cash in Banks in U. K. and Uganda as disclosed in the probate proceedings the deceased did not die possessed of any other estate. Even on the assumption that shares held by the deceased and Ghulam Nabi in R. G. M. Motors Ltd., Karachi, were his personal properties, the plaintiffs would not inherit these shares or shares and cash in Uganda and U. K. for in accordance with the law of the domicile of the deceased the defendants would take these shares absolutely under the will of the deceased dated 16th January 1959.

50. The suit is, accordingly dismissed but in the circumstances of this case there will be no order as to cost. The interim receiver appointed by this Court is discharged. K. B. A. Suit dismissed.