P L D 1952 Lahore 294 (PLP)

KAYANI, J.‑The following pedigree‑table will be found useful for an appreciation of the facts in this first appeal :‑ | | __________________|__________________ | | | Faiz Bakhsh Namdak Khan Qadir Bakhsh | | | | Zulfiqar | ______|______ | ______|______ | | | | | Amir Bakhsh Muhammad | Pir Bakhsh Sattar Bakhsh (died issueless) Khan | | (died issueless) | Illahi Bakhsh | | | Allah Jowaya | (Defendant No. 1) | | | Sardar Bibi‑(Donee‑Defendant | No. 2) __________________|__________________ | | Ali Bakhsh Muhammad Bakhsh (died issueless) | ________________________|____________ | | Ghulam Nabi Hasan Muhammad | | __________________|____________ Hakam Khan | | | Hussain Muhammad Sardar Khan | (died issueless) (plaintiff No. 1) Muhammad Khan | | __________________|____________ | | | | Muhammad Sharif Abdul Latif | (plaintiff No. 4) | | | Muhammad Faruq | (plaintiff No. 3) | | ________________________| | __________________|__________________ | | | Ghulam Rasul Nasar Khan Rehmat Khan (plaintiff No. 9) (plaintiff No. 6) (plaintiff No. 2) | | Nasrullah Khan | (Plaintiff No. 8) | ____________|____________ | | Irshad Ullah Muhammad Islam (plaintiff No. 8) (plaintiff No. 7) The property in dispute belongs to Allah Jowaya of Kaulo Tatar in Gujranwala District. As the pedigree‑table shows, he is without any male issue and has only a daughter Sardar Bibi. On the 6th of February 1928. he executed a will of his entire landed property in favour of his daughter. On the 9th of April 1934 he made a gift of two squares of land in her favour out of the property already willed. The first two plaintiffs, Sardar Khan and Rehmat Khan, thereupon filed a suit for a declaration that the gift would not affect their reversionary rights but failed on the ground that as the will had not been challenged within six years it had become final and as the gift related to a part of the same land in favour of the testator, a declaration would be futile. An appeal from this order was heard by a Division Bench of this Court and dismissed on the same ground on the 28th of September, 1938. On the 16th of February, 1945 Allah Jowaya gifted to his daughter the rest of the property included in the will and a mutation of this gift was attested by the Revenue Officer on the 30th of March, 1945. The officer in question made a note that the first two plaintiffs, Sardar Khan and Rehmat Khan, were present and had no objection to the mutation. On the 13th of November 1945 Mst. Sardar Bibi gifted the entire property covered by the will to her sons, Khurshid and Bashir Ullah, defendants Nos. 3 and 4, and the mutation was attested in their favour on the 15th of November 1945. On the 7th of December 1946 the plaintiffs, who accord ing to the pedigree‑table are reversioners of Allah Jowaya in the fourth degree, brought the present suit for a declaration that the gift of the 16th of February 1945 by Allah Jowaya in favour of Sardar Bibi and the subsequent gift by Sardar Bibi in favour of her sons did not bind their reversionary interests. The contentions of the parties gave rise to the following, issues :‑

1. Have all the plaintiffs a locus standi to sue according to the plaint?

2. Is the suit competent in view of the Shariat Act?

3. Is the suit barred under Order II, rule 2, C. P. C. and section 11, C. P. C.?

4. Is the will in favour of Sardar Bibi a bar to this suit?

5. Is the land in suit ancestral qua the plaintiffs?

6. Does the husband of Sardar Bibi live as khanadamad? If so, what is its effect?

7. Is not the plaintiffs' family governed by custom?

8. Is the gift invalid for non‑delivery of possession?

9. Is the suit in time or have the plaintiffs a locus standi to sue? 9‑A. Are the plaintiffs 1 and 2 estopped from suing? 9‑B. Is the gift valid for being for consideration in the form of services rendered by the donee or in view of his undertaking to discharge the donor's debt? 9‑C. Is the gift permitted by any special custom? The trial Court on the whole found in favour of the plain tiffs and decreed their suit ; hence this first appeal. The findings of the lower Court which are relevant to this appeal arc that the property in suit is ancestral and that, not withstanding that the will had become final, it could be challenged by reason of a change in law which had been brought about by the West Punjab Muslim Personal Law (Shariat) Application Act of 1948, by which succession would, in the event of Allah Jowaya's death, be governed by Muslim Law, and as according to Muslim Law a will in favour of one heir cannot be effective without the consent of other heirs, it will not operate after the death of Allah Jowaya. The first question for determination is whether the pro perty in suit is ancestral. It should be stated at once that the land records relating to Gujranwala District are available only upto and including the Settlement of 1892‑93 and that the earlier records have been destroyed. The records of that Settlement, so far as they relate to the present case, have been reproduced from page 140‑of the paper‑book onwards and are to the following effect :‑ Khewat No. Area Owners 33 60 kanals 7 marlas Ilahi Bakhsh, son of Pir Bakhsh (alone). 34 771 kanals 9 marlas "Hakam etc." entered at Khewat No. 32 (one‑half) and Ilahi Bakhsh entered at Khewat No. 33 (one‑half). 35 1313 kanals 17 marlas Hakam, son of Hasan Muhammad and Ghulam Nabi, son of Muhammad Bakhsh in equal shares, one‑half ; Ilahi Bakhsh, son of Pir Bakhsh and Mst. Bakhtawar Bibi, daughter of Ilahi Bakhsh aforesaid, in equal shares, one‑half. One reason why the learned trial Court came to the con clusion that the property was ancestral was that in 1892‑93 it was held by the descendants of Danyal Khan, the common ancestor, in ancestral shares. It is objected, in the first place, that the presumption that any property is ancestral when it is found to be held in ancestral shares, relates only to the first Settlement and not to any subsequent Settlement, and, in the second place, that even in 1892‑93 it was not held in ancestral shares ; this is quite evident because Khewat No. 33 with an area of 60 kanals and 7 marlas is held alone by Ilahi Bakhsh son of Pir Bakhsh. It is also argued that there is nothing to show that the name of Hakam in "Hakam etc.", mentioned in Khewat No. 34, stands for Hakam Khan son of Hasan Muhammad or that the word "etc." includes the entire remaining branch of Namdar Khan. Khewat No. 34 refers for details of ownership to Khewat No. 32, and as that Khewat is not before us, we do not know exactly "Hakam etc." are. Nest, it is objected that in Khewat No. 35 Ilahi Bakhsh is shown to he owner of one‑half together with his daughter Bakhtawar Bibi and that the nature of Bakhtawar Bibi's acquisition is not clear. This objection, however, is suffi ciently answered by a note in the pedigree‑table of 1892 (Exhibit P. 1) that Bakhtawar Bibi had become owner by virtue of a gift from her father. Prima facie, the use of the name "Hakam" in the phrase "Hakam etc " in Khewat No. 34 should, in the present con test, be presumed to have been made so as to mean Hakam, son of Hasan Muhammad, but in the present state of the record it is obvious that we cannot pronounce judgment on this point with any conclusiveness. So far as the plaintiffs' responsibility goes, they discharged it by asking for the record of Khewat No. 34, and it is not their fault that the Muharrir Patwari did not furnish a complete record. In order that we ourselves should not be at a disadvantage, we allowed the plaintiffs to produce a certified‑copy of the record of Khewat No. 32, to which reference had been made in the record of Khewat No. 34, and we find in it the following entry :‑ Khewat No. Area Owners 32 66 kanals 2 marlas Hakam, son of Hasan Muhammad and Ghulam Nabi, son of Muhammad Bakhsh in equal shares. This also explains the fact that Khewat No. 33 with an area of 60 kanals and 7 marlas is held exclusively by Ilahi Bakhsh who represents the other branch of the family. It would appear that while Khewat Nos. 34 and 35 were held jointly by the two branches, Khewat Nos. 32 and 33 were held separately by some private arrangement, and as the areas of these two Khewats are almost equal, it can be safely stated that in 1892‑93 the two branches of Danyal Khan's family held the land in ancestral shares. This was not the only incident which influenced the judgment of the trial Court. It also relied on the history of the village which is given in Exhibit P. 3. reproduced at pages 44 and 45 of the paper‑book. This is a copy of some of the notes given at the foot of the pedigree‑table of 1891‑

92. It states in para 1 that the village was founded twelve genera tions ago by Mirza, the common ancestor of the proprietors, who named it after his grandfather Kaulo. Since then it has been continuously inhabited. Subsequently it was divided into three tarafs, the taraf to which the present proprietors being Taraf Hamir. Special stress has been laid by the lower Court and by the learned counsel for the plaintiffs on the declaration of the proprietors that "as detailed account of the acquisition of ownership of those persons who have become owners by virtue of purchase after the settlement is given against their names", and it has been argued that since the pedigree‑table does not show that any one of the present proprietors acquired any land, it should be presumed that whatever land they held in 1892‑93, came to them by normal descent through inheritance. This, however, is a misreading of the declaration of the owners. What they meant was that an account of acquisition was given in the case of those persons who were not owners by descent but who had become owners by acquisition from other owners. It is true, however, that the pedigree‑table before us gives against each owner an account of the sales effected by him, if any, though it does not neces sarily mean that an account would have been given of any acquisitions also that had been made by them. Next, there is an account of the rights held in the wells to which the land in suit belongs. This is given in Exhibit 7 at pages 40 to 43 of the paper‑book. The wells in question are Isawala, Dal Beliwala (or Mandiwala) and Kacha, and the area covered by them is exactly the area of Khewat Nos. 32, 33, 34 and 35, that is to say, 2211 kanals 15 marlas. The note in the remarks column against Chah Isawala shows that it was constructed five generations ago by Danyal Khan, ancestor of the proprietors, and that the persons in posses sion are his descendants. The remarks against Dal Beliwala are that this Dal was in existence before the ancestors of the proprietors had settled, that the descendants are owners thereof and that at the time of the settlement of 1892‑93 it was in ruins. Against Chah Kacha, however the remarks are of a different nature. It is stated there that previously this well was a deserted Dal and that the present proprietors had, after the acquisition of ownership, repaired it. The reason why there is no reference to the common ancestor is that the well in question was not constructed by the common ancestor. The land attached to the well, however, as already noticed, is held in ancestral shares. It might be stated here that the area of this well represents the area of Khewat No.

35. For the defendants it was argued with reference to Ex. P, 3 that, since the village had been founded by the common ancestor twelve generations before the Settlement of 1892‑93 and, as time went on, his descendants had been bringing fresh land under cultivation, there is no guarantee that the land thus brought under cultivation. was owned by the common ancestor. It is true that according to para. 2 of Exh. P. 3 the descendants of the common ancestor had been assuming pos session of lands where they had sunk wells and that posses sion, the extent of which depended upon the means and enterprise of each individual proprietor, had become the measure of ownership, but it is also true that the village was partitioned into three tarafs (to which subsequently a fourth taraf Belonging to the Brahmans was added) only after the ownership had been determined on these lines. In other words, there is nothing to show that possession continued to be the measure of ownership even after the taraf s had been formed and the land which belonged to Taraf Hamir, for instance, belonged to any persons other than the ancestors of the present parties. It was also argued that since Exh. P. 1, which is copy of the pedigree‑table, shows Hakam Khan as the son of Ghulam Nabi and not the son of Hasan Muhammad, whatever argument is based on the equality of areas in the two lines falls to the ground. We have reason to think, however, that the copy is incorrect. The two squares containing the names of Hasan Muhammad and Ghulam Nabi are shown side by side in this table, and it appears that the patwari, instead of‑drawing a line of descent under Hasan Muhammad, drew it under Ghulam Nabi and showed Hakam Khan as the son of Ghulam Nabi, without showing anybody as the son of Hasan Muhammad. This is obviously a mistake, for the entire record (see, for instance, Khewat No. 35) shows Hakam as the son of Hasan Muhammad, and the statement of rights in the wells (Exh. P. 7) proceeds on the assumption that Hakam son of Ghulam Nabi is a descendant of Danyal. There is no likelihood therefore, of there being a person of the name of Hakam Khan son of Ghulam Nabi different from Hakam Khan son of Hasan Muhammad, who is a stranger to the family. At one time the fact that the village was founded by a common ancestor was regarded as sufficient for holding that the land held by the descendants was ancestral in character ; see Lakha Singh v. Gujjar Singh A I R 1931 Lah

704. In Jiivan Singh v. Har Kaur 41 P R 1914, it was observed that "the express mention of Sohan Singh in the pedigree‑table is presumptive proof that the land descended from him," and although that view was criticised by a Division Bench in Jhanda Singh v. Mst. Banto, A I R 1927 Lah 477,‑Nor is our own attitude, in 1952, any different‑It was not held that the mention of the common ancestor in the pedigree‑table does not constitute an important piece of evidence in favour of holding that the property is ancestral. Their Lordships, after observing that this remark in Jiwan Singh v. Har Kaur should not be taken as intending to lay down a general rule, explained how guidance may be sought from land records:‑ "A genealogical tree of this kind is prepared merely to indicate the relationship of the proprietors in a particular village and is in no sense intended to be a record of the acqui sition of every bit of land held by all persons whose names appear in it. It is no doubt presumptive proof of their kinship but not of the nature of the property owned by them. For that purpose one has to look to the history of the acquisition of the village, which is found narrated in what is called Kaifiat dehi, kaifiat husul‑i‑hagqiat. These kaifiats are in some cases appended as footnotes to the genealogical trees, and in others they form separate parts of the settlement record. If the pedigree‑table shows two persons to be descended from one common ancestor and in the footnote or in the karat dehi or other parts of the settlement record are found entries which indicate that the land now held by one of them was acquired or was at one time held by the common ancestor, there might arise a presumption that it has descended from him and is ancestral." We have no doubt that in 1892‑93 the land was held by the descendants of Danyal Khan in ancestral shares. It is not disputed that if at the time of the first settlement such land is found to be held by the sons of the common ancestor in ancestral shares, it should be presumed that the land was held by the common ancestor. We avail of that presumption because no earlier records are available, and we act on probabilities. It might well be argued that a probability of this kind attaches in the present case to the record of 1892‑93, though of a weaker nature, since no earlier records are available. This, together with the facts that the village was founded by a common ancestor, that since the formation of the tarafs the history of the village does not show any acquisitions, and that in the pedigee table, although alienations have been shown against individual proprietors, there are no acquisitions, the only acquisition being that of Mst. Bakhtawar Bibi daughter of Ilahi Bakhsh by virtue of a gift from her father, creates a strong probability that the property in suit is ancestral. It should also be borne in' mind that in the suit of the plaintiffs relating to the gift of two squares in 1934 it was held that the property involved in that suit was ancestral, and Allah Jowaya has stated as D. W. 1 that "the land gifted previously and the land in suit pertains to the same khatas". It is true that the suit having on the whole been decided in favour of the defendants and the appeal also having been decided in their favour on a short ground, they had no oppor tunity of contesting that finding, which could not therefore be regarded as res judicata. It has been held, however, in a number of cases that even though not res judicata, the finding casts a heavy burden on the other party to prove the contrary. In Mst. Aziman v. Ibrahim Beg A I R 1936 Oudh 189 a finding as to the ownership of a house in a previous suit, which was not inter parties, was regarded as throwing upon the new claimant the duty of proving that that finding was incorrect. Reliance was placed on the following observations made by their Lordships of the Privy Council in Midnapur Zamindri Co. v. Naresh Narain Roy, A I R 1922 P C 241:‑ "Their Lordships do not consider that this will found an actual plea of res judicata, for the defendants having succeed ed on the other plea, had no occasion to go further as to the finding against them ; but it is the finding of a Court which was dealing with facts nearer to their ken than the facts are to the Board now, and it certainly creates a paramount duty on the appellants to displace the finding, a duty which they have not been able to perform." In Secretary of State v. Brajendra Kishore Rai Choudhury A I R 1936 Cal. 629, these observations were again relied upon in favour of a previous finding between the parties which did not operate as res judicata because the previous suit had been tried by a judge who had no jurisdiction to try the present suit. In Seth Ganga Sagar v. Sheikh Inam Ilahi, 48 P L R 1946, 195 it was held that a judgment inter parties, even if not res judicata, may be a binding precedent or a valuable piece of evidence not liable to be ignored. We are satisfied, on a consideration of all these matters that the land in suit is ancestral. The next point is whether the finality of the will estab lished by the previous judgment of the High Court (Exh D. 3) can be challenged by reason of a change in law and whether there has been any change in law. The law in question is the West Punjab Muslim Personal Law (Shariat) Application Act IX of 1948, which provided in section 2 that "notwithstanding any custom or usage to the contrary, in all questions regarding succession (including sucession to agricultural land) and in all questions regarding charities and charitable institutions and charitable and religious, endowments the rule of decision in cases where the parties' are Muslim shall be the Muslim Personal Law (Shariat)". It was contended for the defendants that there has been no change in law relating to wills as the Act only deals with succession which, on the face of it, does not include wills. It was, I think, by reason of this possibility of putting a narrow construction upon the word "successon" that section 2 of the Act was amended by Act XI of 1951 and now reads thus:‑ "Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or intestate) special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious usages or institutions including waqfs, trusts and trust pro perty, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims." If it is true that a will speaks from the testator's death, then, since Allah Jowaya is still alive, it will he governed by the amended Act after his death; but assuming that it is not so governed, we have no doubt that the word "succession" in cludes both testamentary and intestate succession. For the defendants reliance is placed on the fact that in section 5 of the Punjab Laws Act, which prefers the rule of custom in the first instance, the matters enumerated include both succession and wills. It will be of interest to note that the language of section 5 has now been reproduced in the amending Act of 1951, but it is obvious that the matters enumerated in section 5, to which custom was applicable, are in many cases overlapping. Thus, betrothal and marriage, although insepar able from each other have been listed separately ; guardianship and minority, although incidental to each other, are again shown separately; wills and legacies, although inter‑dependent, again form separate items. It is not, therefore, a conclusive argument that, since wills and succession form two distinct items under section 5 if the Shariat Act of 1948 mentions succession and does not mention wills, it should be assumed to exclude wills from its purview. For a history of the legislation on this point and in order to get an idea of the intention of the Legislature in the present case, it will be profitable to repro duce both section 5 of the Punjab Laws Act and section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, which was passed by the Indian Legislature. Section 5 of the Punjab Laws Act:‑ "In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions. or any religious usage or institution, the rule of decision shall be. (a) Any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority ; (b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to." Section 2 of the Muslim Personal Law (Shariat) Applica tion Act, 1937:‑ "Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talak, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gift, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)." It will be noticed that section 2 of the Shariat Act of 107 expressly mentions intestate succession so as to make it clear that testamentary succession, that is to say, succession by will, is excluded from that section. For wills, however, it makes separate provision under section 3, by which a person can avail of Muslim Law relating to wills, after making a declaration in, the prescribed form that he desires to obtain the benefit of the Act. When the Shariat Act of 1948 came to be drafted, it should be assumed that the draftsman had in mind the lang uage of section 2 of the Act of 1937 and of section 5 of the Punjab Laws Act, and it is evident that by including succession to agricultural land and by including also "charities and charit able institutions and charitable and religous endowments", he was confining himself to the Provincial Legislative List, but that, so far as the word "succession" went, he cut out the qualifying word "intestate" so as to provide both for testa mentary and intestate succession. If it can be held on a fair interpretation of the word "succession" that it includes both testamentary and intestate succession, it should be clear that the draftsman intended using no unnecessary words and avoiding sometimes indeterminate, though all comprehensive, language of sections 5 of the Punjab Laws Act, which was providing not for Muslim Law alone, but for Hindu Law and custom also. Thus adoption is not known to Muslim Law, and there is no place, likewise, for "special property of females" and "family relations" in that law. There is hardly any context in which the term "succes sion"‑has been used in exclusion of wills. In Webster's New International Dictionary Second Edition, Unabridged) it has been defined as "the change in legal relations by which one person (called the suceessor) comes into the enjoyment of, or becomes responsible for, one or more of the rights or liabilities of another person (called the predecessor) . . . now specifically and usually the act or fact of a person's becoming beneficially entitled to any property or property interest of a deceased per son whether by operation of law upon his dying intestate (suc cession. ab intestato) or by testamentary disposition". In William Markby's Elements of Law the following passage occurs in para 789. at page 382 of the Third Edition:‑ So far we have only dealt with the origin of the con ception of intestate successions. But there exists also testamentary succession ; that is to say, succession in which the person to succeed is determined by a declaration of the will of the deceased person". In Salmond's Jurisprudence (Tenth Edition) it is stated at p. 455, in explanation of the law of inheritance:‑ " The beneficiaries, who are entitled to the residue after satisfaction of the creditors, are of the two classes (1) those nominated by the last will of the deceased, and (2) those appointed by the law in default of any such nomination. The succession of the former is testamentary (ex testaments) that of the latter is intestate (ab intestato)". Under the Succession Duty Act, 1853, of England a person becomes liable to succession duty in respect of property whe ther he acquires the property in the ordinary course of in heritance or under a will ; see Halsbury's Laws of England (Second Edition, Volume 13,) where at pages 349 and 350 separate paragraphs have been devoted to "successions under disposition" and " successions through devolution by law". Even in the Indian Succession Act of 1925, this distinction is recognised by assigning Part V of the Act to "intestate suc cession " and Part VI to "testamentary succession". There can in short be no doubt that succession is understood in legal literature to cover both tetamentary and intestate succession. In Muhammad Asgar Shah v. Muhammad Gulsher Khan, P L D 1949 Lah. 116, although the question before the Full Bench was whether the West Punjab Muslim Personal Law (Shariat) Application Act of 1948 precluded the grant of declaratory decrees under custom, two of the learned judges in the‑ course of discussion assumed that the word "succession" used in section 2 covered both testamentary and intestate succession. Thus Sir Abdur Rahman J. observed at page 144:‑ "The Act merely provides, in my view, as to who is to succeed the last male holder on his death and how or in what shares are heirs to receive the property, but not to what `property are they or are they not to succeed unless specific provisions in regard to that matter are to be found in Shariat, e. g., gifts or wills. Even if customary rule does not allow a gift, it will have to be given effect to in accordance with Muslim Law. Similarly even if a bequest by means of a will is permissible, it will have to be curtailed to a third if it happens to be in favour of an heir in accordance with Muslim Personal Law". Cornelius J. observed at page 132:‑ Although the Central Shariat Act was expressly, confined in its operation to property other than agricultural land and in the relevant respects, to intestate succession, com parison with the provisions of the West Punjab Shariat Act will show that the principle laid down by Mahajan J. in the ruling cited above is fully applicable to the present cases as well". The learned Judge had apparently in mind the fact that although the Central Act was confined in its application to intestate succession, the present Act did not contain any such qualification. In Bayabai v. Bayabai, A I R 1942 Bom. 328 the Court was dealing with the Cutchi Memons Act of 1938, by which the Cutchi Memons of Bombay for the first time became governed by Muslim Law in matters of "Succession and Inheritance." There was a saving clause in section 3 by which rights that had already been acquired were protected. The question before the Court was whether a certain will, which had been executed in 1933, was also protected. It was held that, since a will speaks from the testator's death, it could no be said that any right had been acquired under the will of 1933. Now, although the Act in question made Cutchi Memons governable by Muslim Law only in matters of succession and inheritance and there was no express mention of wills, it was assumed that these words include wills also. We, therefore, hold that the word " succession " in section 2 of the Shariat Act of 1948 includes wills and that, consequently, so far as wills go, there has been a change in law in 1948, inasmuch as they are now governed by Musilm Law and not by custom. According to Muslim Law Alla Jowaya could not have made a will in favour of his daughter Sardar Bibi, except with the consent of other heirs since Sardar Bibi would now be one of his heirs; see Mulla's Mahomedan Law Thirteenth Edition, Para,

717. In para. 122 it is stated that it is not requisite to the validity of a bequest that the thing bequeathed should be in existence it the time of making the will ; it is sufficient if it exists at the time of the testator's death. The reason is (by Baillic, 624) that a will takes effect from the moment of the testator's death, and not earlier. There is consequently no question of its becoming final before the testator's death, and we may at once state here, with respect, that the decision in the previous suit (Ex. D 3) was not based on a proper exercise of discre tion inasmuch as it lost sight of the fact that the legatee might die before the death of the testator, in which case the subject‑matter of the will would revert to the testator and should, in the ordinary course, be inherited by the plaintiffs, who, however, would be prevented from claiming it by reason of this decision. In Krishna Kumwi Devi v. Rajendra A I R 1929 P C 121, a Raja had executed a will in favour of his daughter‑in‑law at a time when his application to the Government for a declaration of the subject‑matter of the will as a settled estate under the Oudh Settled Estates Act 1900. was pending. The application was granted in due course and the estate was, therefore, governed by the Act of 1900. After the Raja's death, v, hen his daughter‑in‑law claimed the property, the Privy Council disallowed the claim holding that the will of a testator must, in the absence of any intima tion of a contrary intention therein, be regarded 'as speaking from his death and that its validity with reference to the devise of any particular property thereby made must depend upon the testator's‑ statutory or other lawful disposing power over that property at that time". Now, inasmuch as even in Muslim Law a will operates from the death of the testator, this ruling is fully applicable, and it Allah Jowaya's will is not so far in operation and the present' law will affect its validity on Allah Jowaya's death, it cannot have binding force on the plaintiffs, notwithstanding a previous decision to the contrary. In Salik Ram v. Subedar Singh A I R 1948 Oudh 270 it was held, relying on A I R 1925 Cal. 1193 and 1932 All. 416, that the rule of res judicata will not apply if the law is changed in the mean time, whether by statute or by the trend of judicial authority. In Shromam Gurdwara Prabandhak Committee v. Mst, Nand Kaur A I R 1931 Lah. 254 a certain institution was declared to be a Sikh Gurdwara under the Sikh Gurdwaras Act; notwithstanding a previous decision given before the Act came into force, erg pursuance of an application: under section 92 of the Code of Civil Procedure, that it was not a public institution. The second decision was based on the fact that according to the new law contained in the Sikh Gurdwaras Act, the institution in question was a Sikh Gurdwara. Further, it should be noted here that a bequest can be revoked by implication; see Mulla's Mahomedan Law para. 129, where it is stated that a bequest may be revoked by an extinc tion of the proprietary right of the testator. Allah Jowaya having made a gift of the entire subject‑matter of the will to his daughter, has impliedly revoked the will, which is conse quently no longer in force. We, therefore, hold that the previous decision as to the finality of the will is not binding on the plaintiffs because (1) it has been impliedly revoked, and (2) it will be inoperative at the time of the testator's death by the enforcement of the Shariat Act of 1948. It is admitted for the defendants that if the property is ancestral, a gift cannot be made according to custom. The judgment of the lower Court is, therefore, upheld and the appeal is dismissed with costs. A. H. Appeal dismissed.