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P L D 1949 Lahore 441

(SINGLE BENCH)

Before Acchru Ram, J

PEHLWAN and others-Defendants-Appellants

versus

LAL and others-Plaintiffs-Respondents

Second Appeal No. 733 of 1945, from the order of the


Senior Sub. Judge, Multan, dated 10th February, 1944.

(a) Custom (Punjab)-Power to contest (Act II of


1920)------

----Ss. 3 and 7-Adoption not recognised-Adoption if made


does not exist in law-Adoption to be
ignored-Non-ancestral land-Adoption allowed by custom,
but person not eligible adopted-Section 7 debars the
plaintiff from contesting the validity of appointment.

In case of people whose personal law does not recognize


adoption or appointment of an heir, and who are not found
to follow any custom sanctioning adoption or such
appointment, the adoption or appointment, if made, cannot
and does not confer on the adoptee or appointee any legal
status, and does not give him any right to succeed to the
property of the adopter or appointer on the latter's death.
The Adoption or the appointment in such a case really
does not exist in the eyes of law and has to be simply
ignored. A suit for a declaration that such an adoption or
appointment of and heir will not affect the plaintiff's right
to succeed to the property of the adopter or appointer on
his death cannot be regarded as a suit to avoid or set aside
the adoption or appointment, for the simple reason that the
adoption or the appointment does not require to be set
aside. The plaintiffs in such a case cannot be regarded as
attacking the adoption or the appointment on the ground of
its being opposed to any rule of custom because no custom
on the subject exists.

If it can be held that the custom of adoption or


appointment of an heir does obtain amongst the parties,
the appointment of Pehlwan cannot be held to be invalid
by reason of his not being eligible for appointment under
the custom applicable to the parties, inasmuch the suit land
being non-ancestral, section 7 debars the p1iintiffs from
contesting the validity of the appointment on any such
ground.

(b) Custom--West Punjab---

---A person is presumed to carry with him his


Custom-This presumption can be rebutted.

It is impossible to hold that, the custom which parties'


family followed before their migration from Jhang to
Multan District has been abrogated and the custom
prevailing in Multan District has been adopted in its place.

A. N. Chona for Appellants.

Shamair Chand for Respondents.

JUDGMENT
ACHHRU RAM, J.-This second appeal has arisen under
the following circumstances. One Naurang, a Sayal of the
village of Shamkot, in Kabirwala Tahsil of Multan
District, was an owner of a -one-eighth share in 720 kanals
of land in the aforesaid village. Pehlwan appellant is
brother's son of Naurang's mother-in-law. In 1944 he made
a gift of half of the land owned by him in favour of
Pehlwan it was an oral gift. The patwari entered the
mutation on the 13th April; 1924. According to the report
of the patwari entering up the mutation Naurang appeared
before him on that day and stated that he had adopted
Pehlwan as his son, that he was making a gift of half of the
land to him at that time, and that the remaining one-half
was to devolve upon Pehlwan on his death, his collateral
relations having nothing to do with it. On the mutation
coming up before the Revenue Officer on the 14th May,
1924, Naurang stated that Pehlwan had been adopted by
him about thirteen or fourteen years ago and was rendering
him services and that he had made a gift of, half of his
land to him. It was further stated that the remaining
one-half was to remain in his own name. There was,
however, nothing said as to the course of devolution that
this half was to follow after his death. Some of the
collaterals of Naurang having made an application
objecting to the gift on the ground of the land being
ancestral, the parties were directed to produce their
evidence in support of their respective contentions.
Naurang being specifically directed to produce a copy of
the Rawaj-i-am. After several adjournments, the case
eventually came up before the Revenue Officer on 15th
August, 1924. It was then pointed out on behalf of
Naurang that Pehlwan was also son of his cousin and that
possession of the land gifted had actually passed to him.
The contention advanced on behalf of his collaterals was
that the Sayal tribe did not recognize adoptions. Naurang
produced a copy of the Riwaj-i-am of the second
Settlement in which it had been stated, in respect of the
Sayal tribe that a kinsman (qarabi) could be adopted.
Considering it unnecessary to go into the intricate question
of Customary law raised by the objectors, and being
satisfied that possession of the gifted land had passed to
Pehlwan, the Revenue Officer sanctioned the mutation in
the latter's favour, directing the collaterals of the donor to
establish their right, if any, by means of a regular suit.
Naurang died in June, 1941. On his death the mutation of
the land which stood in his name at the time of his death
was attested in the name of Mst. Dullan, his widow.
However, at Mst. Dullan's request the land was mutated in
the name of Pehlwan on the 17th November, 1942. On
17th April, 1943, the plaintiffs, who were collaterals of
Naurang in the third degree brought a suit for a declaration
to the effect that the transfer of the suit land by Mst.
Dullan, widow of Naurang, in favour of Pehlwan by
means of the aforesaid mutation should not, after the death
of Mst. Dullan affect their reversionary rights. It was
alleged that Mst. Dullan, had succeeded merely to a
life-estate in the land left by her husband and that she was
not competent to transfer that land to the prejudice of her
husband's reversioners. There was no allegation as to the
land being ancestral qua the plaintiffs and at the trial it
seems to have been admitted by the parties that the land in
suit was not ancestral. The suit was resisted by Mst.
Dullan and Pehlwan who filed a joint written statement
alleging -that the mutation in the name of Pehlwan did not
really evidence any transfer by Mst. Dullan defendant No.
1, in his frvour, that in reality Pehlwan, being the adopted
son of Naurang, having been adopted by the latter in his
infancy, was entitled to succeed to the land in dispute on
Naurang's death, that mutation of that land in Mst.
Dullan's favour was sanctioned by mistake, and that it was
on discovery of this mistake and in order to rectify the
same that Mst. Dullan had the land mutated in his name. It
was also alleged that in 1924 Naurang had made a gift of
half of his land in favour of Pehlwan and had also declared
him to be his heir in respect of the remaining half after his
death. Particular reference was made to an alleged
statement by Naurang during the mutation proceedings of
the gift that after his death the rest of his property was to
devolve on Pehlwan and that his collaterals were to have
nothing to do with it. In the statement made by the
plaintiffs' counsel on the 19th July 1943 the alleged
adoption of Pehlwan by Naurang was denied and it was
stated that although in matters relating to succession and
alienation the parties were governed by agricultural
custom, in matters relating to adoption they were governed
by their personal law. On the pleadings of the parties the
following issues were framed by the learned trial Judge.

(1) Whether the parties are governed by custom in matter


of adoption?

(2) Whether defendant No. 2 Pehlwan, was adopted by


Naurang under that custom?

(3) Whether gift by Mst. Dullan in favour of Pehlwan was


valid.

(4) Whether sale by defendant No. 2 in favour of


defendant No. 4 is fictitious, if not, its effect?

(5) Whether the suit is properly valued for jurisdictional


purposes?

(6) Whether the plaintiffs are estopped from suing?

It may be noted that the fourth issue was necessitated by


the fact that, subsequent to mutation in his name, Pehlwan,
defendant No. 2, had sold a part of the property in dispute
to defendant No. 4 On the second issue, the learned trial
Judge held that the adoption of Pehlwan by Naurang had
been proved. On the first issue it was held that the parties'
family having migrated from Jhang must be presumed to
have carried with them the customs of Sayals residing in
Jhang district. It was further held that Sayals of Jhang
district did not recognize adoption at all. The contention of
the defendants as to their being governed by the customs
of Multan district was repelled. It was, however, also held
that, even if the custom of Multan district was to be
applied, according to the entries contained in the latest
Riwaj-i-am of that district. Muhammadan tribes did not
recognize adoption. On behalf of the defendants, reliance
was placed on the Customary Law of Multan district as
compiled at the Second Settlement. The learned Judge
held that the same had been abrogated by the Customary
Law, compiled at the latest Settlement. He was, however,
also of the opinion that even the Customary Law of
Multan district as compiled at the Second Settlement could
not help the defendants because according to it, only
kinsmen could be validly adopted and Pehlwan was not a
kinsman of the deceased Naurang. On the third issue it
was held that Mst. Dullan could not validly make a gift of
the property inherited by her from her husband in favour
of Pehlwan. The fourth and the fifth issues were also
decided in the plaintiffs' favour and in the result their suit
was decreed. On an appeal by the defendants the learned
Senior Subordinate judge upheld all the material findings
of the learned trial Judge and affirmed the decree passed
by him. It may be noted that on first issue the finding of
the learned Senior Subordinate judge was that the parties
were governed by custom in matters of adoption. The
disputed adoption was, however, held to be invalid on the
ground of Pehlwan not being the kinsman of Naurang. The
learned judge did not come to a clear decision as to
whether the parties were governed by the custom of Sayals
of Jhang district or by that of Sayals of Multan district. He
noticed that according to the Customary Law of Jhang
district among Muhammadan tribes the custom of
adoption did not exist. Holding, however, that even
according to the Customary Law of Multan district
adoption only of a kinsman amongst Sayals was permitted,
he held the adoption in dispute to be contrary to that
custom. The defendant feeling aggrieved from the decree
of the learned Senior Subordinate judge have come UP in
second appeal to this Court.

On behalf of the appellants, Mr. Chona's main contention


was that the land in dispute being admittedly non-ancestral
and the factum of adoption having been held proved,
section 7 of Act II of 1920 was an absolute bar to the
plaintiff's right to contest the appointment of Pehlwan as
an heir to the suit-land on the ground of the appointment
being contrary to custom. He urged that having decided
the question of the factum of adoption in the appellant's
favour the learned Senior Subordinate Judge ought to have
dismissed the plaintiffs' suit, even though under the
custom Pehlwan was not eligible for adoption by Naurang.
In reply to this argument of the learned counsel for the
appellant Mr. Shamair Chand for the respondents
contended that section 7 applied only where there was a
custom of adoption but the particular adoption was alleged
to be contrary to that custom, and that the aforesaid action
had no application where the plaintiff came into Court
alleging that no custom of adoption at all existed amongst
the parties tribe and therefore the alleged adoption was
wholly inoperative and ineffectual.

The question whether the operation of section 7 is


confined to cases where the custom of adoption to
appointment of an heir in the parties tribe is recognized
and the dispute is only with regard to the validity under
that custom of the particular adoption or appointment or it
also extends to cases where no custom of adoption or
appointment of an heir at all exists, is not altogether free
from difficulty. However, after hearing the learned counsel
for the parties I feel inclined to agree with the contention
put forward by Mr. Shamair Chand.

Section 3 of Act II of 1920 provides:

"This Act shall apply only in respect of alienations of


immovable property or appointments of heirs made by
persons who in regard to such alienations or appointments
are governed by custom."

It seems necessarily to follow from the above passage that


the act cannot be applied to cases where the custom of
appointment of heirs does not obtain amongst the parties at
all, because in such cases, the parties cannot be said to be
governed by any custom in regard to such appointments.

In case of people whose personal law does not recognize


adoption or appointment of an heir, and who are not found
to follow any custom sanctioning adoption or such
appointment, the adoption or appointment, if made cannot
and does not confer on the adoptee or appointee any legal
status and does not give him any right to succeed to the
property of the adopter or appointer on the latter's death.
The adoption or the appointment in such a case really does
not exist in the eyes of law and has to be simply ignored. A
suit for a declaration that such an adoption or appointment
of an heir will not affect the plaintiff's right to succeed to
the property of the adopter or appointer on his death
cannot be regarded as a suit to avoid or set aside the
adoption or appointment, for the simple reason that the
adoption or the appointment does not require to be set
aside. The plaintiffs in such a case cannot be regarded as
attacking the adoption or the appointment on the ground of
its being' opposed to any rule of custom because no
custom on the subject exists.

In some cases decided before the enactment of Act II of


1920 and with reference to Article 118 of -the Indian
Limitation Act, it was held by the Chief Court that the
aforesaid Article was not applicable to cases where a
person whom neither personal law nor custom permitted to
make an adoption chose to go through the form of
adopting or appointing an heir. The ratio decidendi of
these cases was that the alleged adoption mentioned in the
Article had to be a transaction by a person with inherent
right to adopt which was challenged as invalid on some
ground of law or custom which did not go to the length of
asserting that the adoption as an adoption was wholly
impossible. In the view of the learned judges who decided
these cases an adoption unknown to the personal law of
the adopter which had no legal inception and did not
displace or threaten to displace the right of succession of
heirs did not require to be avoided. The language of
Article 3 of Act I of 1920, is not materially different from
that of Article 118 of the Indian Limitation Act and on
principle I see no reason to suppose that the scope of the
former is wider than that of the latter. Section 7 of Act II
of 1920 is simply intended to restrict the powers of
reversioners to file suits to contest alienations or
appointments of heirs which are contemplated by Act I of
1920 and for which limitation is provided by the said Act.
Where the suit is one which is outside the scope of Act I of
1930, it must be held to be equally outside the scope of the
restrictive provisions contained in Act II of 1920.

Mr. Chona laid stress on the fact that the learned Senior
Subordinate judge had found the parties to be governed by
custom in the matter of adoption and contended, that even
if Mr. Shamair Chand's interpretation of section 7 were
accepted, the present suit did attract the application of that
section because the plaintiffs had been granted a decree,
not on the finding that the custom of adoption did not
obtain amongst the parties, but on the finding that the
adoption of the appellant Pehlwan was invalid by reason
of its being opposed to custom which allowed adoption or
appointment only of a kinsman which the appellant was
not. There is force in this contention of Mr. Chona and if it
can be held that the custom of adoption or appointment of
an heir does obtain amongst the parties, the appointment
of Pehlwan cannot be held to be invalid by reason of his
not being eligible for appointment under the custom
applicable to the parties, inasmuch the suit land being
non-ancestral section 7 debars the plaintiffs from
contesting the validity of the appointment on any such
ground It was, however, very vehemently urged by Mr.
Shamair Chand for the respondent that the learned Senior
Subordinate Judge was not right in holding that the parties
were governed by custom in the matter of adoption and
that he ought to have held that the custom of adoption or
appointment did not obtain amongst them. He conceded
that if the custom of adoption is found to exist, the
particular adoption now in question cannot be challenged
on the ground of the ineligibility of Pehlwan for adoption
under custom governing the parties. The real question,
therefore, that requires determination in this case is
whether or not the custom of adoption or appointment
prevails in the parties' tribe.

It is not disputed that the family of the parties originally


belonged to Jhang District and that they migrated to
Multan District some generations ago. On the materials on
the record; it is not possible to fix exactly, or even
approximately, the point of time when the migration took
place. Quite irrespective of the time when they left their
original home, normally, the parties should be presumed to
have carried with themselves, the custom which governed
them before they migrated from Jhang and to have
retained that custom even while settled in Multan District.
The presumption is, of course, rebuttable, but in the
present case no special circumstances have been proved to
rebut it. The answer to question' 85 in the Customary Law
of Jhang District shows that the custom of adoption or
appointment of an heir does not exist amongst the
Muhammdan tribes of that District The general
presumption in favour of a customary power of
appointment of an heir is confined by paragraph 35 of
Rattigan's Digest of Customary Law only to agricultural
tribes in the central and eastern-parts of the Punjab. I have
been unable to discover any reported case in which such
power may have been found to exist amongst
Muhammadan agriculturist residing in the western parts of
the Province. No evidence worth the name has been led to
rebut the entry in the Customary Law of the District. The
oral evidence on the subject is extremely meagre, vague,
unconvincing and unsatisfactory. No instances of
adoptions amongst any of the Muhammadan tribes of
Jhang have been proved. It is true that Sayals have a
Hindu origin. They, however, embraced Islam more than
three centuries ago and have since then been living in
those parts of the Province where the inroads by Hindu
Customs and usages in the domain of the Muslim Law
have not been quite as serious as in the Central and
Eastern Districts. I am, therefore, of the opinion, that the
defendant has failed to prove that the custom of adoption
or appointment of heir existed in the parties' tribe. Mr.
Chona did not contend that the custom of adoption or
appointment of any heir existed amongst Muhammadan
agriculturists of Jhang District. His contention was that the
parties had, after migration, adopted the customs and
usages of Multan District and that according to the custom
of Multan as recorded in the Customary Law of that
District compiled by Sir Charles Roe at the Second
Settlement, the practice of adoption did prevail amongst
Muhammadan agriculturists of the said District, particu-
larly those of Kabirwala Tahsil which at the time of the
said Settlement was known as Serai Sidhu Tahsil. A
reference to the answer to question 50 of the said
Customary Law shows that there was a general statement
made by all Muhammadans that adoption was not
recognised amongst them. However, is the notes
underneath the answer, Muhammadans of Serai Sidhu
purport to have stated that adoption was practised amongst
them, that it might be either verbal or written, but that the
adopted son had to be a near kinsman. It is true that in
Customary Law of Muslim District as compiled at the
latest Settlement we have an unqualified statement that
amongst all Muhammadans custom of adoption or
appointment of an heir is not recognised and no exception
is made in favour of Muhammadan tribes of any particular
Tahsil. I, however, feel inclined to attach greater
importance to the record of custom compiled at the second
Settlement, inasmuch as it differentiated between the
customs prevailing in different parts of the district and
gave greater details as to the results of the enquiries made
than are to be found in the Customary Law of the latest
Settlement. Mr. Shamair Chand; in support of his
contention that the entry in the latest Cutomary Law
should be preferred, drew my attention to the statement' in
the perface thereof that very elaborate and exhaustive
enquiries had been made by the Settlement Officer and all
available and relevant instances had been collected. How-
ever, under the answer to question 84, which stands for
question 50 of the Customary Law compiled at the
previous Settlement, no instance are mentioned and it is
otherwise not possible to discover any basis for the change
in the statements as to the custom of Muhammadan tribes
in the matter of adoption. Nor has any explanation been
offered for the omission to refer to the answers given by
the Muhammadan tribes of different Tahsils at the time of
the earlier Settlement; If on the materials on the record, I
could possibly hold that the parties' family were governed
by the custom prevailing in Multan District, I should have
had no difficulty in accepting the record of custom
contained in the Customary Law of the Second Settlement
and holding that the custom of adoption did exist amongst
them. However, on the evidence I do not find it possible to
hold that the custom which they followed before their
migration from Jhang to Multan District has been
abrogated and the custom prevailing in Multan district has
been adopted in its place. There being no evidence worth
the name to rebut the presumption attaching to the entry in
the Customary Law of Jhang I cannot but hold that the
custom of adoption or appointment of an heir has not been
proved to exist amongst the parties.

In the end Mr. Chona contended that, in any case, even if


the appellant was not entitled to succeed to the land left by
Naurang as his adopted son, he had a right to succeed to
the same under the bequest left in his favour by-the said
Naurang, and in support of this contention reliance was
placed on the statement purporting to have been made by
Naukang at the time of reporting to the patwari the gift of
half of his land.
In that statement, he purported to have said that after his
death the rest of the property should devolve on Pehlwan
and that his collaterals should have nothing to do with it.

The alleged bequest was specifically mentioned in the


written statement. It is a pity, however, that no specific
issue on this subject was framed. The matter appears to
have been urged before the learned Senior Subordinate
judge. The learned judge, however, disposed of it
summarily with the following remarks:-- "This statement
before the patwari cannot be regarded as a will and no
authority has been shown to me that it should be regarded
as such." The learned Judge has not expressed any opinion
as to whether the statement had been proved to have been
actually made by Naurang before the patwari, nor has he
expressed any opinion as to whether the words purporting
to have been used by Naurang did amount to a
testamentary disposition of his property. He appears to
assume that there were some a priori reasons for not
regarding a statement made before a patwari as a will.
There are no such a priori reasons. The question whether a
particular statement does or does not contain a- bequest or
a testamentary disposition is a question of fact to be
decided in each case with reference to the words actually
used in the statement regardless of the person to whom the
statement was made.

However, on the record there is no evidence to prove that


Naurang actually made the statement which he purports to
have made to the patiwari on the 13th April, 1924. Mr.
Chona complains that this was due to the absence of any
issue on the subject. There is considerable force in this
contention. The plea of bequest having been specifically
raised in the written statement the learned trial judge ought
to have framed an issue regarding it. The plea was passed
before the learned Senior Subordinate judge and has been
reiterated in the grounds of appeal filed in this Court. I am
of the opinion drat the appellant is entitled to an enquiry
into this question. Before finally disposing of this appeal
therefore, I think it proper to frame the following
additional issues and to remit them for trial to the learned
trial judge who should record such evidence on these
issues as the parties may like to produce and should then
submit his findings along with the evidence through the
learned Senior Subordinate judge, who should also give
his own findings on these issues. The additional issues
are :-

(a) Whether Naurang deceased made a bequest of the land


in dispute in favour of Pehlwan?

(2) If so, how does that bequest affect the present suit?

The case is remanded to the learned trial judge under


Order 41, rule 25, Civil Procedure Code, with the above
directions. The findings on the additional issues to be
submitted to this Court within three months. The parties
will file their objections, if any, to those findings within
ten days of the receipt of the report whereafter the appeal
will be set for hearing. The parties have been directed to
appear in the trial. Court on the 29th April, 1946.

K. M. A.

Case remanded.
P. L- D. 1951 Lahore 408

Before Muhammad Khurshid Zaman and Shabir Ahmad, JJ.

Mst. SAT BHARAI-Plaintiff-Appellant

versus

NUR ELAHI-Defendant-Respondent

(This case was referred to the above noted Division Bench by Mr, Justice Shabir Ahmad,
vide his Lordship's order; dated the 19th May 1951).

Regular Second Appeal No. 211 of, 1950. decided on 16th July 1951, from the decree of
Miau Ghulam Rabbani, District Judge, Jhelum, dated the 1st April 1950, affirming that of
Ch. Muhammad Abdullah Cheema, Sub-Judge, 1st Class, Jhelum, dated the 10th
February 1950.

(a) Majority Act (IX of 1875), S. 2--Muslim on attaining puberty, though under 18 years,
earn bring suit without next friend relating to marriage, dower, divorce and adoption.

It is significant that in section 2 of the Majority Act the Legislature has used the
expression "to act in the following matters" and not to enter into a contract in the
following matters " and it appears that when the Legislature used this expression they
intended the section to apply to all matters including the institution of a suit.

Section 2 (a) of the Majority Act (Act IX of 1875) confers not only the power to enter
into contracts with regard to the matters mentioned therein but also the right to bring suits
with respect to those matters.

I. L R. 55 Born. 160 ; A. I. R. 1948 Cal. 65 ; I. L. R. 3 Mad. 24-8 ; I. L. R. 1.7 Luck. 572 ;


I. L. R. 22 Born. 430 and A. I. R. 1928 Cal. 303 referred to.

(b) Majority Act (IX of 1875), S. 2-Divorce includes right of option of puberty.

The word "divorce" in clause (a) of Section 2 of Majority Act means the termination of
marital ties between two living persons brought about by any means recognised by law
including dissolution of marriage by the exercise of option of puberty. No doubt the word
" talaq " of the Muslim Law, which almost invariably connotes the termination of marital
ties by the unilateral act of the husband, has almost universally been translated as "
divorce " but that restricted meaning cannot be given to the word " divorce " occurring in
section 2 of Act IX of 1875. The Majority Act was intended to apply to all persons
residing in the territories to which the Act was applicable and no expression used in the
Act could therefore have been intended to have a meaning attached to that expression by
only one community.
Saadat Ullah Khan, for Appellant.

Nemo, for Respondent.

ORDER OF REFERENCE

SHABIR AHMAD, J.-On the 8th of October 1949 Mst. Sat Bharai, who was born on the
6th of August 1933, brought a suit for dissolution of her marriage on the ground that she
had exercised her option of puberty. In the plaint she pleaded that she had been given in
marriage by her uncle at a time when she was minor and as the marriage had not been
consummated, she had exercised the option of puberty given to her by the Muslim Law to
dissolve the marriage. Her husband, Nur Ilahi, raised a number of pleas, but in this appeal
we are only concerned with the one that, being under 18 years of age, Mst. Sat Bharai
could not sue without a next friend. The trial Court held that Order 32 rule 1 of the Code
of Civil Procedure applied to the suit and as it had not been brought by a next friend of
the plaintiff, it did not lie. On appeal the learned District judge agreed with the view of
the trial Court about a next friend being necessary, and dismissed the appeal.

In the second appeal brought by Mst. Sat Bharai it is urged by her learned counsel that
the suit was competent and the Courts below had erred in dismissing it on the ground that
it had not been brought by a next friend of Mst. Sat Bharai. In support of his contention
the learned counsel for the appellant has relied on I. L R. 55 Bom.160 and A. I. R: 1948
Cal. 65, in both of which it was held that a suit for any of the matters mentioned in
section 2 of the Majority Act could be brought by a Muhammadan who had attained
puberty.

The respondent is not represented before me, but I find that in I. L.R. 3 Mad. 2421 and I.
L. R. 17 Luck. 572 the view has been taken that a person who is not a major according to
section 3 of the Majority Act cannot sue without a next friend even though the matter
about which the suit is brought is one of those mentioned in section 2 of the Majority Act.

The word. " minor " is not defined either in the Code of Civil Procedure or in the General
Clauses Act, and it would, therefore; appear that the intention of the Legislature was that
for the purposes of the Code of Civil Procedure the question of minority depended on the
matter about which the suit was brought, and therefore, in my view, if a Muhammadan
female, exercising her option of puberty, can be said to be acting in a matter of marriage
or divorce, a suit by her without a next friend would be competent if she was major
according to' the Muhammadan Law. There are a number of authorities (e.g., I. L. R. 22
Born. 430) which take the view that the expression " capacity to act " occurring in section
2 of the Majority Act includes the right to bring a suit. The point that arises is of
considerable importance, and as there ' is no authority of this Court dealing with it, I
think that the case be decided by a Bench of two judges. The papers will be laid before
my Lord the Chief Justice for orders, and I would request that the case be ordered to be
heard by the larger Bench as-soon as possible because the appellant will attain the age of
18 years on the 6th of August this year after which the appeal will become infructuous.
JUDGMENT
SHABIR AHMAD, J.--Mst. Sat Bharai, daughter of Shah Nawaz, who was born on 6th
August 1933, was yet a minor when her father died. She was brought up by her mother
but given away in marriage by her paternal uncle Nawazish Ali at a time when she had
not attained puberty. On the 6th October 1949 when she was 16 years and 2 months of
age Mst. Sat Bharai brought a suit without a next friend for dissolution of her marriage
with Nur Elahi on the ground that she had exercised her option of puberty. Nur Elahi the
only defendant in the case raised a number of pleas at which the trial Court framed the
following issues:---

1. Whether the plaintiff's suit is maintainable without next friend ?

2. Whether the defendant is married to the plaintiff ?

3. Whether the plaintiff has a right to exercise option of puberty ?

4. Whether the marriage has been consummated ?

5. Is the plaintiff entitled to a decree for dissolution of marriage ?

6. Relief.

The trial Court decided issues Nos. 1 and 5 against the plaintiff', issue No. 3 for .her and
issues Nos. 2 and 4 for the defendant and dismissed the suit. Mst. Sat Bbarai instituted an
appeal against the decree of the trial Court and before the District judge, who heard the
appeal, abjection was taken on behalf of Nor Elahi that as Mst. Sat Bharai was not a
major, she could neither bring a suit nor institute an appeal without a next friend and,
therefore, the appeal was incompetent. The learned District judge agreed with the trial
Court in holding that the suit of the plaintiff not having been instituted by a next friend as
required by Order 32, rule I of the Code of Civil Procedure was not properly instituted
and holding that the appeal before him which was instituted without a next friend was
incompetent, dismissed the appeal without deciding the other matters in controversy
between the parties. Against the decision of the learned District Judge Mst. Sat Bharai
presented a second appeal to this Court which came up for hearing before me sitting
singly, but, the question of law involved in the appeal being of some complexity and
importance, I referred the case to a larger Bench and the case has come up before us for
decision.

The question that falls for decision is whether or not a Muslim woman who had attained
puberty but bad not attained the age of 18 can bring a suit for dissolution of marriage on
the ground of exercise of her option of puberty. The institution of suits by minors is
governed by Order 32 rule 1 which reads as follows :-
" Every suit by a minor shall be instituted in his name by a person who in such
suit shall be called the next friend of the minor,"

The word " minor " has not been defined in the Code of Civil Procedure nor in General
Clauses Act and it is clear that the intention of the Legislature was that the word " minor "
was to have the meaning which had been assigned to it by the Majority Act (Act IX of
1875). Section 3 of Act IX of 1875 which has been made subject to the section preceding
it states that no person is to be deemed .to have attained majority before the completion
of 18 years and in some cases mentioned therein not before the completion of 21 years.
Section 2 of the Act, however, contains some exceptions to the general rule contained in
section 3 and that part of the section which is relevant for the purpose of this case reads
as follows :-

(2) " Nothing herein contained shall affect---

(a) the capacity of any person to act in the following matters (namely),-

marriage, dower, divorce and adoption ;

The trial Court held that section 2 of the Majority Act had no application if the question
that arose was whether or riot the suit by a person who was under 18 years of age was
competent if brought without a next friend as this was a matter of procedure governed by
the Code of Civil Procedure. The learned District Judge relying on a decision of the
Madras High Court in Pnyikutb Ithavi Umah v. Kairhiapokil Mamod (I, L. R. 3 Mad.
248) in which it was held by a Division Bench that section 2 of the Majority Act referred
only to capacity to contract and not to the rapacity to sue, agreed with the trial Court in
the view that the suit could not be brought without a next friend.

The respondent is neither present nor represented but all possible attempts have been
made to consider the question from all aspects. There is a decision of the Oudh Chief
Court is Usman Ali Khan v. Mst. Khatoon Banu (I. L. R. 17 Luck. 572) which has taken
the same view as was taken in I. L. R. 3 Mad. 248, but after carefully considering them I
cannot bring myself to agree with the interpretation placed do section 2 of the Majority
Act in those two cases. It appears improbable that while the Legislature considered a
person competent to enter into a contract about a matter even before attaining the age of
18 years it considered that that person was incompetent to lodge a suit about that matter if
necessity for such a suit arose. Under the law a Muhammadan girl who has attained
puberty (which is to be presumed, in the absence of evidence to the contrary-, to have
been attained on her completing the age of 15) can exercise her option of puberty in
certain circumstances and to hold that though she can exercise her option of puberty on
attaining the age of 15 she should wait for at least three years before she can herself bring
a suit, or find a person willing to act as her next friend if she intends to bring suit before
she attains the age which could make her a major under section 3 of the Majority Act, is
an interpretation of section 2 of Act IX of 1875 which would work hardship in many
cases and could not have been intended by the Legislature. It is significant that in section
2 of the Majority Act the Legislature has used the expression " to act in the following
matters " and not " to enter into a contract in the following matters " and it appears to me
that when the Legislature used this expression they intended the section to apply to all
matters including the institution of a suit.

The view I take of the effect of section 2 of the Majority Act on Order 32 rule 1 of the
Civil Procedure Code is not without support. It was held by a Division Bench of the
Bombay High Court so long ago as 1931 in Ahmad Soleman v. Bai Fatma (I. L. R. 55
Bom. 160) that a Muhammadan wife 16 years of age is entitled to sue for divorce without
a next friend by virtue of section 2 of the Majority Act. In the body of the judgment it was
remarked as follows :--

" On the third point, the Muhammadan Law entitles a woman of 16 and over to sue for a
divorce. Under section 2 (a) of the Indian Majority Act nothing in that Act shall affect the
capacity of any person to act in marriage, dower, divorce and adoption. The wife suing
for a divorce acts in the matter of divorce. Therefore, she is entitled to sue without a
guardian *"* * * * *"

The same view was taken in Naksetan Bibi v. Habib-ur-Rahman Mindal (A. I. R. 1948
Cal. 66) which was a case of a minor Muhammadan girl suing after attaining puberty but
before the age of 18 for the dissolution of her marriage on the ground of exercise of her
option of puberty. The decisions in I. L. R. 55 Bom. 160 and A. I. R. 1948 Cal. 66 dealt
directly with the question involved in the present case but there are some other decisions
from which the same inference is deducible. In I. L. R. 22 Born 430, a case under the
Paxsis Marriages and Divorce .Act (Act XV of 1865), it was remarked that the expression
" capacity to ace' occurring in section 2 of Act IX of 1875 includes a right to sue and in
A.I. R. 1928 Cal. 303, the view in I. L. R, 22 Both. 430 with regard to the meaning of
clause (a) of section 2 of the Majority Act was referred to with approval.

After a careful consideration of the relevant provisions .of law and the decision of High
Courts with regard to them, I have arrived at the conclusion that section 2 (a) of the
Majority Act (Act IX of 1875) confers not only the power to enter into contracts) with
regard to the matters mentioned thereof, but also the right to bring suits with respect to
those matters. It might perhaps appear anomalous that a person who is not a major
according to section 3 of the Majority Act (Act IX of 1875) may bring a suit without a
next friend with regard to a matter dealt with by section 2 of the Act, though he would be
incompetent to institute, without a next friend, a suit for recovery of even a trivial sum of
money, but the anomaly is by no means greater than the anomaly that a person incapable
of entering into a contract about even a trivial sum of money could enter into a binding
contract with respect to matters as important and of -far-reaching consequences as those
mentioned in clause (a) of section 2 of Act 1X of 1875.

At first sight it would appear that clause (a) of- section 2 of Act IX of 1.875 which
applies to divorce was not applicable to the present case which remarks .to dissolution of
marriage on the ground of exercise of option of puberty by a Muslim female, but that, in
my view, it is not possible to hold. I am of the opinion that the word " divorce " in the
clause under consideration means the termination of marital ties between two living
persons brought about by any means recognised by law. No doubt the word " talaq " of
the Muslim Law, which almost invariably connotes the termination of marital ties by the
unilateral act of the husband has almost universally been translated as " divorce " but that
restricted meaning cannot be given to the word " divorce " occur ring in section 2 of Act
IX of 1875. The Majority Act was intended to apply to all persons residing in the
territories to which the Act was applicable and no expression used in the Act could there-
fore have been intended to have a meaning attached to that expression by only one
community.

In view of what I have said I have arrived at the conclusion that the plaintiff appellant
was competent to lodge the suit and appeals against the decree therein without a next
friend and the decision of the Courts be to the contrary was incorrect. I would, therefore,
accept the appeal and as the learned District judge did not give a decision on the other
matters arising in the appeal before him, would remand the case to him for decision of the
question left undecided by him. As the respondent was not represented I would leave the
parties to bear their own costs of this appeal.

M. KHURSHID ZAMAN J.---I agree.

K. M. A. Appeal accepted.
P L D 1952 Dacca 357

Before Akbar and Guha, JJ

JOY KUMAR DUTTA and others-Defendants-Appellants

Versus

SITANATH DU TTA-Plaintiff-Respondent

Appeal from Original Decrees Nos. 170 and 177 of 1945 with Cross-objection decided on
27th August, 1951, against the Decree of Prasad Chandra Banerjee, Subordinate Judge,
2nd Court of Zilla Chittagong, dated the 16th February, 1945, in Partition Suit No. 8 of
1938.

(a) Hindu Law-Dayabhaga School-Adoption under a will relates back to death of


adoptive father and entitles the adopted son to inherit the property of the adoptive father-
Adopted son, however, will not inherit property received by adoptive father under the
will of a brother of his grandfather, which had already vested in collaterals before his
adoption in accordance with terms of the will.

Adoption of a son by widow to her deceased husband is„ deemed to relate back to the
husband's death.

Such adoption relates back to the death of adoptive father; that is to say, that an adopted
son is entitled to be put in possession of his adoptive father's share of the family estate
subject of course to lawful alienations in the meantime,

Jittendomohun Tagore and another v. Ganendramnhun Tagore 1872 Supplementary


Volume I A 47; Pratapsingh Shi»sing and another v. Agarsingji Raisingji (1918) 46 I A 97
; Amarendra Mansingh and another v. Sanatan Singh and others (1933) . 69 I A 242 and
Anant Bhikappa Patil v. Shankar Ramchandra Patil 1943 70 I A 232 rel.

Bamundoss Mookherjee and another v, Massamut Tarinee 7 Moore's I A 169 and


Lakshmana Rau v. Lakshmi Ammal and others I L R 4 Mad. 160 ref.

Under the will of a brother of the grandfather of the adoptive father, the latter got a
certain share of the property which vested, in accordance with the will in brothers of the
adoptive father on his death:

Held, that the adopted son by his subsequent adoption could not succeed and divest the
brothers of the deceased adoptive father of the shares which had already vested in them.
In other words, the adopted son can inherit the property that belonged to his adoptive
father and the fiction that the adopted son was in existence at the time of his adoptive
father's death cannot be extended to entitle him to inherit from the collaterals.
Bhubaneswari Debi v. Nilkomul Lahiri L R (1885) 12 I A 137; Kally Prosonno Ghose v.
Gocool Chunder Mitter I L R 2 Cal. 295 (Supra) ; Kalidas v. Krishna Chandra Dass 2 B L
R 103 F. B.; Chundrachoor Deo v. Bibhutibhushan Deba I L R 23 Pat. 763 ; Amarendra's
case I L R 12 Pat. 642 P. C. I L R 12 Pat. 642 P. C. ; Vijasingji's case L R 62 I A 161 ;
Madana Mohana's case L R 45 I A 156 and Tagore's case 9 Beng, LR377P.C.

(b) Hindu Law-Joint family-Presumption as to property acquired by members-


Dayabhaga system.

The rule of the Dayabhaga system is that if two or more sons succeed to ancestral
property and live jointly and acquire properties in the name of any member of the family,
the presumption will be that all the properties acquired during the state of jointness are
joint family properties. This presumption is to be displaced by the person alleging the
property to be his separate self-acquired property.

(c) Civil Procedure Code (V of 1908), O. XLI, r. 4-Decree common to all defendants-
Any defendant can appeal from whole decree.

Under Rule 4, Order XLI of the Code of Civil Procedure, if an appeal proceeds upon a
decree common to all the defendants any of the defendants is entitled to appeal from the
whole decree and the appellate Court can reverse or vary that decree.

Nirmal Chandra Nandi and Birendra Nath Chowdhury, for Appellants Nos. 1 to 4 in F. A.
No. 170 of 1945.

K. M. Hasan for Imam Hossain Chowdhury, for Appellant in F. A. No. 177 of 1945.

Rohini Binode Rakshit, for Respondent in F. A. Nos. 170

JUDGMENT

AKBAR, J. ----These two appeals have been heard together. 170 of 1945 is by
defendants Nos. 1 (ka), 1 (kha),12 and 13. Appeal No. 177 of 1945 is by the defendant
No. 16. The suit out of which these appeals arise was filed by the plaintiff for declaration
of his title to ¼th share of the properties described in the Schedule to the plaint and for
joint possession.

The following genealogical table will explain the question in controversy :

SITARAM
|
Chhatranarayan

____________________________|_________________________

| |

Trahiram Debidas

|
Golak

______________________________|

________________________|______________________________

| | | |

Jagat Raj Chandra Jyotish Satish

died in 1910 died in 1906 died in 1906

| | =Jogmaya

| | (adopted son)

| |___________________

| __________________________|__________________________

| | | | |

| Manindra Fanindra Dhirendra Sudhindra

| |

| |__________________

| __________ | ___________

| | |

| Arun Sripati

|________________________________
________________________________|____________________________

| | | |

Kali Mohan Dakshina Ranjan Monmohan


Sasanka

=Sukhoda =Hemnalini | (died


before

| | the suit)

____|__________ __________ | ___________

| | | |

Joya Kumar Anil Kumar Narendra Amarendra

Chhatranarayan's properties were inherited by his sons Trahiram and Debidas in equal
shares. Debidas's 8 as, share was inherited by Golak. Trahiram executed a will in 1882 by
which he bequeathed his 8 as. share to the 4 sons of his nephew Golak as follows :-Jagat
6 as., Rajchandra 4 as., Joytish 3 as., Satish 3 as. It was also provided in the will that if
any of these 4 grandsons died childless, his share would devolve upon the other
grandsons.

Now the plaintiffs case is that Golak died intestate leaving 4 sons-Jagat, Rajchandra,
Jyotish and Satish who formed, a joint family under Dayabhaga school of Hindu Law.
Jagat being the eldest acted as the Karta of the family. Jagat died leaving his sons Kali
Mohan, defendant No. 1, Dakshinaranjan, defendant No. 2, Monmohan and Sasanka as
his heirs. On Monmohan's death, his sons Narendra, defendant No, 3 and Amarendra,
defendant No. 4 inherited his share. Sasanka died childless. On Jagat's death, Rajchandra
became the Karta of the family. In 1926 Rajchandra died leaving his sons Manindra
defendant No. 5, Fanindra, Dhirendra, defendant No. 6 and Sudhindra, defendant No. 7 as
his heirs. Fanindra died leaving a widow Manibala, defendant No. 8. On Rajchandra s
death, Kali Mohan managed the joint family as Karta. On the I2th December 1906,
Jyotish died childless survived by his widow Jogmaya Dassi. Two days before his death,
he executed a will giving his widow Jogmaya power to adopt 3 sons in succession with
the limitation that her choice must fall upon the sons of his brothers, Jagat, Rajchandra
and Satish. On the 25th February, 1937, Sitanath the youngest son of Satish was taken in
adoption by Jogmaya Dassi. Sitanath as adopted son of Jyotish is asking for a declaration
of his title to ¼th share of the suit properties and for joint possession. He also asked for
declaration that the documents and Khatians which were prepared by the defendants in
collusion with the another may be declared void and inoperative.
Thirteen written statements were filed. They all challenged the validity of the adoption. In
this appeal, however, we are concerned only with defendants appellants Nos. 1 ka, 1 kha,
2, 4, 12, 13 and 16. Defendant No. 1 having died, his heirs 1 ka and 1 kha have been
substituted in his place.

Defendants Nos. 1, 2 and 4 filed a joint written statement challenging the validity of the
adoption. They contended that on Jyotish's death, the properties which he had got under
Trahiram's will passed to his brothers and as such plaintiff had no title to the said
properties, It was further contended that Golak left a will in 1888 by which he gave 6 as.
to Jagat, 3 as. 6 ps. to Rajchandra, 3 as. 3 ps. to Satish and Jyotish each. So, according to
them, the plaintiff's share cannot be more than 1 anna and 7J pies. It was also contended
that all the properties mentioned in the Schedule were not joint properties and that Jagat
who was a Sheristadar of the Judge's Court at Chittagong had acquired some of those
properties with his own money and possessed them separately. According to them, there
was separation of the joint family in 1910 for the purpose of better management, they
held some of the properties jointly which were ultimately partitioned in 1918. They also
took the plea of limitation and adverse possession.

Defendant No. 12, Sukhoda, wife of defendant No. 1 Kali Mohan, defendant No. 13
Pramila Bala Dutt and defendant No. 16 Amir Hossain Dovasi filed separate written
statements claiming certain properties as bona fide purchasers for value.

The learned Subordinate judge held that the adoption of the plaintiff was invalid in law
and hence he dismissed the suit without dealing with the other issues.

On appeal, the High Court held that the adoption of the plaintiff was valid in law and
remanded the case for decision on other material issues.

The learned Subordinate judge has now found (1) that the plaintiff as the adopted son is
entitled to inherit 1 as. 6 ps. share which Jagat got under the will of Trahiram; (2) that
there being no probate of Golak's will, all his sons will get equal share in his estate, in
other words, plaintiff will get 2 as share in the ; properties which Jyotish inherited from
his father Golak ; (3) that the disruption of the joint family took place in 1918 ; (4) that
lot Nos. 2, 14, 80, 91, 95 to 98, 102 to 104, 137 to 141, 15,8, 172, 237 to 251 and 408 to
415 did not form part of the joint family properties.

He accordingly decreed the plaintiff's claim to the extent of 3 as. 6 ps. in all the suit
properties except the lots mentioned in clause No. 4 above.

Mr. Nandi who appears for the appellants in appeal No. 170 has raised several points in
support of the appeal. He has contended in the first place that the adoption of the plaintiff
Sitanath cannot relate back to the death of Jyotish, the adoptive father. In support of his
contention, he has relied on the decisions in Bamundoss Mookherjee and another v. Mst.
Tarinee 7 Moore's I A 169 and Lakshmana Rau v. Lakshmi Ammal and others I L R 4
Mad. 160, and on section 507 of Mulla's Hindu Law, 9th Edition, page 558. On the other
hand, Mr. Rakshit for the plaintiff respondent has argued that adoption of Sitanath will
relate back to the death of Jyotish and for this he has relied on the following cases :
Jittendromohun Tagore and another v. Ganendramohun Tagore 1872 Supplementary
Volume I A 47 ; Pratapsingh Shivsing and another v. Agarsingji Raisingji 1918 46 I A 97 ;
Amarendra Mansingh and another v. Sanatan Singh and others 1933 60 I A 242, and
Anant Bhikappa Patil v. Shankar Ramchandra Patil (1943) 70 I A 232.

Now the Privy Council has frequently pointed out that adoption of a son by widow to her
deceased husband is deemed IA to relate back to the husband's death.

In Jittendromohun Tagore and auother v. Ganendramohun Tagore (Supra), their Lordships


observed at page 67 as follows :-

"The Hindu Law recognises an adopted child, whether adopted by the father
himself in his lifetime, or by the person to whom he has given the power of
adoption after his death from amongst those of his class, of one to stand in the
place of a child actually begotton by the father. In contemplation of law such child
is begotton by the father who adopts him, or for and on behalf of whom he is
adopted. Such child may be provided for as a person whom the law recognises as
in existence at the death of the testator, or to whom, by way of exception, not by
way of rule, it gives the capacity of inheriting or otherwise taking from the
testator, as if he had existed at the time of the testator's death having been actually
begotton by him ".

In the case of Pratapsingh Shivsing and another v. Agarsingji Raisingji (Supra), the
Judicial Committee observed at page 106 as follows

"Now it is an explicit principle of the Hindu law that an adopted son becomes for
all purposes the son of his father, and that his rights unless curtailed by express
text are in every respect the same as those of a natural-born son. And a learned
authority on Hindu law has explained that the only express text by which the
heritable rights of an adopted son are 'contracted' refers to the case of his sharing
the heritage with an after-born natural (aurasa) son. 'In every other instance the
adopted son and the son of the body stand exactly in the same position'. Again, it
is to be remembered that an adopted son is the continuator of his adopted father's
line exactly as an aurasa son, and that an adoption, so far as the continuity of the
line is concerned, has a retrospective effect: whenever the adoption may be made
there is no hiatus in the continuity of the line. In fact, as West and Buhier point
out in their learned treatise in Hindu law, the Hindu lawyers do not regard the
male line to be extinct or a Hindu to have died without male issue until the death
of the widow renders the continuation of the line by adoption impossible ".

In the above case, their Lordships refer to the decision reported in 7 Moore's Indian
Appeal, Page 16) (Supra), on which " Mr. Nandi relies as follows

"Much reliance has been placed on behalf of the respondent on the case of
Bamundoss Mookherjee v. Tarinee (Supra). The only point decided in that case
was that a mere power, given to a widow to adopt does not preclude her from
maintaining an action in her own name and in her own right in respect of the
property in her possession as her husband's widow."

In Amarendra Mansingh and another v. Sanatan Singh and others (Supra), the Privy
Council approved of the decision in Pratapsingh Shivsing and another v. Agarsinghji
Raisingji (Supra).

In Anant Bhikappa Patil v. Shankar Ramchandr a Patil (Supra). Rankin, J. delivering the
judgment of the Board also quoted with approval, the passage referred to above in Pratap
Singh's case. In view of this clear and emphatic pronouncement of the Judicial
Committee, it is now well-settled that adoption relates back to the death of adoptive
father ; that is to say, that an adopted son is entitled to be put in possession of his e
adoptive father's share of the family estate subject of course to lawful alienations in the
meantime.

In the face of these authorities Mr. Nandi found it difficult to challenge the plaintiff's
claim to the property which his adoptive father Jyotish inherited from Golak. He,
however, contended that under Golak's will, Jyotish was entitled to 1 anna 7½ pies and
hence the adopted son would get that share only. The will of Golak was, however, not
probated. In the circumstances, the Court below has rightly held that plaintiff would be
entitled to get 2 as out of Golak's 8 as.

The next and most important question for consideration is whether the plaintiff is entitled
to inherit the property which his adoptive father got under Trahiram's will.

Mr. Nandi has contended that under Trahiram's will Jyotish, the adoptive father, got a life
interest in as. 1-6 of Trahiram's 8 as. and on his death; the said as. 1-6 vested in his
brothers, Jagat, Rajchandra and Satish and hence the plaintiff by his subsequent adoption
could not succeed and divest them of the shares which had already vested in them. In
other words, his contention is that the adopted son can inherit the property that belonged
to his adoptive father and the fiction that the adopted son was in existence at the time of
his adoptive father's death cannot be extended to entitle him to inherit from the
collaterals.

Mr. Rakshit, has, however, argued that Jyorish has got an absolute interest in as. 1-6 pies
under Trahiram's will and hence the plaintiff is entitled to inherit the said share also.

The question whether ]yotish got an absolute estate or a life estate primarily depends
upon the interpretation of the will of Trahiram.

Mr. Nandi has relied on paragraph 5 and 6 of the will in support of his contention that
Jyotish got a life estate whereas Mr. Rakshit has relied on paragraph 3 of the said will to
show that the testator intended to give an absolute estate to Jyotish.
In paragraph 3, the testator says : "………and my grandsons Jagat Chandra Dutta get and
be given 4 as. (four annas) and Rajchandra Dutta 4 as. (four annas) and Satish Chandra
Dutta 3 as. and Jyotish Chandra Dutta 3 as. shares." In paragraph 5 he says: "God forbid
if any of my four grandsons die leaving wife and 6 daughters they shall not get those
movable and immovable properties given by me. My other grandsons shall get them in
equal shares. God forbid if before the sonless grandson, any grandson die leaving male
issue his sons get share of the sonless". In paragraph 6 he says : "Let it also be known that
among any grandsons one, having no male child or to whom no male child is born, shall
not be entitled to sell for consideration or make pasta or Ijara or Kot-mortgage or do no
such thing to orders. If there be any sale, etc., made, those shall be invalid . . . . . . .

Mr. Rakshit has contended that the words : "That Jyotish shall get and be given 3 as.
shere" in paragraph 3 are clear enough to create an estate of inheritance. According to
him this absolute estate thereby created could not be cut down by limitations imposed in
paragraphs 5 and 6 of the will.

From the above provisions of the will, it cannot be said that the testator attempted to
create an estate unknown to and opposed to Hindu law. Therefore, the clear intention of
the testator contained in paragraphs 5 and 6 limiting the course of succession to male line
and forbidding alienation can be given to. Hence reading the will as a whole, we come to
the conclusion that paragraph 3 will be controlled by the provisions in paragraphs 5 and
6. Mr. Rakshit has cited some cases in support of his contention but in view of clear
provisions of the will, we do not think any useful purpose will be served in referring to
those cases which deal with the construction of other wills having different language.

Here we may observe that the rule of construction generally is that the will must be read
as a whole to ascertain therefrom the intention of the testator and having so ascertained,
that intention must be given effect to so far as legally possible. Applying this principal,
we have formed an opinion that the intention of the testator was to confer a life estate on
his grandsons. Hence we uphold the contention of Mr. Nandt that Jyotish got a life estate
only under the will of Trahiram and that it passed to his brothers after his death.

Next we take up the question whether the plaintiff is entitled to get any share in the
property of Trahiram which has vested in the brothers of Jyotish on Jyotish's death.

Mr. Nandi in support of his contention that the plaintiff cannot succeed to this property
has relied on the decision of the Privy Council in the case of Bhubaneswari Debi v.
Nilkomul Lahiri (1885) L R 12 I A 137.

Mr. Rakshit on the order hand relies on the decisions of the Privy Council in Anant
Bhikappa Patil, minor v. Shankar Ramchandra Patil, (Supra) and Amarendra Mansingh
and another v. Sanatan Singh and others (Supra).

The facts of the present case are as follows: Jyotish died in 1906. The properties that
Jyotish got under Trahiram's will vested in his brothers. In 1937 Jyotish's widow adopted
the plaintiff. No doubt if the plaintiff was alive at the time of Jyotish's death, he should
have inherited as. 1-6 in which his adoptive father Jyotish got a life estate under
Trahiram's will. But the question we have to determine in this case is whether he having
not been adopted before Jyotish's death, his subsequent adoption after 30 year of the
death of Jyotish would confer upon him any right to claim the said share from the persons
in whom it had vested under Trahiram's will.

The plaintiff cannot succeed in this case unless he can establish that on his adoption, the
ownership of the said property was divested from the persons who had succeeded to them
upon the death of Jyotish and vested in himself.

Mr. Nandi's contention, namely, that the adoption dates back only to enable an adopted
son to succeed lineally by divesting other persons and that this fiction cannot be extended
to entitle him to inherit from collaterals finds support from the decision in Kally
Prosonno Ghose v. Gocool Chunder Mitter I L R 2 Cal. 295. The following genealogical
table will help to understand facts of Kally Prosonno's case :-

Pitambur Ghose

Died August, 1855

________________________|_________________________

| |

Parbutty Churn Ghose Bhugoban Chunder


Ghose.

(Died 1851) (Died October, 1855)

Married Bindadebee Dassee Married Potitpaboni


Dassee

(Died in 1864) |

| |

Daughter Khetter Mohn Ghose

=Kristo Mohiny Dassee. (Died 1855)

Died childless between the Married


Bamasoondery

deaths of Parbutty and Dassee, who, after her


bus
Bindadebee. band's death in August,

1876, adopted Kally Pro

sonno Ghose, the Plaintiff.

The facts were as follows : "A Hindu testator died leaving his property to P and B, his
two sons absolutely in equal shares. B died in 1845 leaving a minor son K. P. died in
1851 without male issue leaving a widow B D and a daughter P also left a will by which
he gave, subject to certain trusts for the worship of the family idols, all his property to his
widow B D for her life, and on her death to his daughter's son

(if any)the daughter died, without issue before her mother. B D died in October 1864,
leaving a will, in which she appointed her brother G executor, and G, in accordance with
the directions in her will took possession of the property, which B D took as widow under
the will of P. K died in 1855, when still a minor, leaving a minor widow and having made
a will, by which he gave permission to his widow to adopt a son. The widow of K
adopted a son in August, 1876. In a suit brought by the plaintiff as adopted son of K and
heir of P, to recover the property left by P, the issue was raised whether, assuming the
plaintiff to be the legally adopted son of K, he was the heir of P. "It was held in that case
that K was not entitled to inherit the property of P. As in our opinion, Mitter J. gives a
correct exposition of the law on the subject, we quote his observations in extenso which
begins at page 303

This being so, the plaintiff cannot succeed in this case, unless he can establish that, on his
adoption, the ownership of these properties was divested from the person who had suc-
ceeded to them upon the death of Bindadebee, and vested in himself. If this proposition
could be established, it would lead in many cases to very mischievous and inconvenient
results. There is no limitation of time within which a Hindu widow is bound to exercise
the right of adoption, and there might be cases not of infrequent occurrence, in which
persons rightfully succeeding to properties as heirs might, after a long lapse of time, be
suddenly called upon to relinquish their possession in favour of a person adopted into the
family of the last owner many many years after the death of the latter. A proposition so
startling as this is ought to be established by the clearest possible authority.

No text from the Hindu law has been cited in its support. On the other hand, the
definition of 'heritage' as given in the Dayabhaga, paragraphs 4 and 5 of Chapter 1, tends
to lead to the opposite conclusion. These paragraphs are to the following effect

"The term 'heritage', by derivation, signifies what is given. However, the use of
the verb (da) is here secondary or metaphorical: since the same consequence is
produced namely, that of constituting another's property after annulling the
previous right of a person who is dead or gone into retirement or the like. But
there is no abdication of the deceased ; and the rest in regard to the goods. There-
fore, the word 'heritage' is used to signify wealth in which property dependent on
relation to the former owner arises on the demise of that owner. When a person,
therefore, succeeds to a property by right of inheritance under the Hindu law, in
the language of the Dayabhaga this consequence is produced, namely, that of
constituting another's property after annulling the previous right of a person who
is dead or gone into retirement or the like. His right is therefore, absolute, and
carries with it all the natural incidents of ownership, unless otherwise controlled
by any other express provision of the law. In the case of succession by females,
we know there are such express provisions relating to the right of transfer by sale,
gift, etc. But I am aware of no authority in Hindu law books which supports the
proposition that this right of ownership is subject to be destroyed by a person
being brought into existence subsequently, a person who, if he had been in
existence at the time when the succession opened out, would have been a
preferable heir. This is opposed to natural justice and all principles of the Hindu
law."

Further in the said judgment Mitter, J. relied on the following observation of Sir Bernes
Peacock in the Full Bench case of Kalidas v. Krishna Chandra Dass 2 B L R 103 (F B).

"The case of a widow adopting a son after her husband's death, and thereby
divesting the estate which she took upon the death of her husband without issue,
is one in which only tier own estate is divested. There is no case in which an
estate vested in a male heir by inheritance can be divested by the adoption of a
son by a widow after her husband's death, and the case of a widow divesting her
own estate by the adoption of a son is not one from which inferences can be
drawn by analogy as to the divesting of an estate once vested in a male heir by
inheritance."

Next we take up the case of Bhubaneswari Debi v. Nilkomul Lahiri, (Supra), on which
Mr. Nandi has relied. In that case the facts were these : There were three brothers
Kalimohan, Rammohan and Shibnath governed by Dayabhaga school of Hindu law.
Rammohan died first leaving a widow Chandmoni who succeeded to his property.
Shibnath died next in 1861 having given power to his widow to adopt a son. After that,
Kalimohan died leaving a son Nilkomul. Thereafter Chandmoni died in 1867 and on her
death, her nephew Nilkomul succeeded her husband's property. Subsequently Shibnath's
widow adopted a son Jatindra Mohan Lahiri, a minor who was born after the death of
Cliandmoni. Bhubaneswari as the mother guardian of the minor filed this suit to recover,
on behalf of the minor son, the estate of Rammohan which had vested in Nilkomul on
Chandmoni's death. Sir Barnes Peacock who delivered the judgment of the Bard observed
as follows : ,

"The widow never could, by adoption, if there had been no fraud, have made the
present plaintiff a reversionary heir of half the estate of Rammohan, because he
was not in existence at the time of Chandmoni's death. According to the law as
laid down in the decided cases, an adoption after the death of a collateral does not
entitle the adopted son to come in as heir of the collateral."
Mr. Rakshit has contended that the proposition of law laid down in Nilkomul's case
cannot be accepted as correct in view of the subsequent decisions of the Privy Council in-
Amarendra Mansingh and another v. Sanatan Singh and others (Supra) and Anant
Bhikappa Patil, minor v. Shankar Ramchandra Patil (Supra). The question, therefore, is,
have their Lordships laid down any such rule in Amarendra Mansingh's case which is
inconsistent with the earlier decision in Nilkamul's case ? This question was fully
considered in Chundrachoor Deo v. Bibhutibhushan Deba I L R 23 Pat. 763, and Chatterji
J. observed as follows at page 808

"So far as devolution of property is concerned, the propositions which appear to me to


emerge from 'the aforesaid four decisions of the Privy Council [Amarendra's case I L R
12 Pat. 642 P C; Vijaysingji’s case L R 62; I A 161 Madana Mohana's case L R 45 I A 156
; and Pratap Singh's case, L R 46 I A 97 (Supra) on which Mr. Das places so much
reliance, may be thus stated :-

"(1) If the last male holder of a property dies leaving a widow to whom he gave authority
to adopt, whoever takes his property, whether by survivorships or inheritance or reverter,
takes it only provisionally subject to be displaced, in the event of an adoption by his
widow, by the adopted son."

"(2) If he, the last male holder, dies sonless and unmarried, leaving his mother who had
received authority from her husband to adopt a son to him, whoever takes his property,
whether by survivorship, inheritance or reverter, takes it only provisionally, subject to be
displaced, in the event of an adoption by his mother, by the adopted son."

All that the said cases, therefore, establish is that where the last male holder dies leaving
either his widow or mother with subsisting power of adoption, succession to his property
is of a provisional character, liable to be defeated by a subsequent adoption. If this is so,
the authority of the decision in Tlilkomul's case, is in no way shaken. That decision gives
effect to the ordinary rule of devolution of property that inheritance goes to the heirs of
the deceased owner who are in existence, a child in the womb being included, at the time
when succession opens.

It is to be observed that the decision in Nilkomul's case was not referred to in any of the
aforesaid subsequent cases, obviously for the reason that these cases were dealing with a
quite different question, namely, whether the power of a widow to adopt would depend
upon the vesting of property in her. In these cases the property concerned was the
property of the father's line. If the theory of the continuity of the line were to be applied
to the facts of the case in Nilkomul's case there would be no difference whether the
adopted son was or was not in existence at the time of Chandmoni's death. The adoption
having a retrospective effect, the adopted son would be deemed to be in existence at the
time of Chandmoni's death, his adoptive father having died in her life-time, and in that
case he would be an heir equally with Nilkomul to Rammohun's estate.

In Tagore's case 9 Beng. L R 377 P C, their Lordships, while considering the question of
the validity of a bequest by a Hindu to an unborn person, referred to the position of an
adopted son and said : "Such child may be provided for as a person whom the law
recognises as in existence at the death of the testator, or to whom, by way of exception,
not by way of rule, it gives the capacity of inheriting or otherwise taking from the
testator, as if he has existed at the time of the testator's death having been actually
begotten by him. Apart from this exceptional case, which serves to prove the rule, the law
is plain that the donee must be a person in existence capable of w taking at the time when
the gift takes effect."

It is, therefore, clear that the case of an adopted son is an exception to the general rule.
An exception should not be extended so as to supersede the general rule itself. The case
in Nilkomul, is an illustration of the general rule, while the cases of Amarendra (Supra),
hijayasinghi (Supra), Madana Mohana (Supra), and Partap Singh Shivsingh (Supra), are
illustrations of the exception. The same judge at page 807 made the following
observation

"In Amarendra's case, their Lordships pointed out that 'he (the adopted son) in the
absence of an aurasa, or naturalborn son, is clothed with all the attributes of a son
and is from the date of his adoption regarded as having been born in his adoptive
family. In other words, the rights of the adopted son accrue from the date of his
adoption. This rule, however, is subject to the exception that where the adoption is
made by a widow, it will for the purpose of continuing the line of the adoptive
father relate back to his death. It will not be correct to say that such adoption has a
retrospective effect for all purposes. Their Lordships in Pratap Singh Shivsingh
expressly limit the purpose when they say : An adoption, so far as the continuity
of the line is concerned, has a retrospective effect. As a necessary corrolary to the
theory of continuity of the adoptive father's line it follows that the adopted son
will take the property of his father in whomsoever it might have vested since his
father's death. But no such consideration arises where he claims to succeed to
property belonging to a different line or branch of the family. With regard to such
property is rights accrue only from the time of his adoption."

In this connection we may also quote the following observations of Rankin, J. at page
241 in the case of Anant Bhikappa Patil v. Shankar Ramchandra Patil (Supra), which
follows the decision in Amarendra case.

"Neither the present case nor Amarendra's case brings into question the rule of
law considered in Bhubaneswari Debi v. Nilkomul Lahiri (Supra) Cf. Kalidas Das
v. Krishnachandra Das (Supra) and stated by the Board to be that 'according to the
law as laid down in the decided cases, an adoption after the death of a collateral
does not entitle the adopted son to come in as heir of the collateral."

Therefore it cannot be said that the decision in Amarendra's case and Anant Bhikoppa's
case have in any way shaken the decision of Nilkomul's case. In view of the decisions of
Kally Prosonno Ghose's case and Nilkomul's case which are still good law, we are unable
to accept Mr. Rakshit's contention that an adopted son is exactly in the same position as
the natural born son and adoption has retrospective effect so that the adopted son will
inherit not only the father's property but also the property of a collateral.

In this view of the matter, we uphold the contention of Mr. Nandi that the plaintiff is not
entitled to inherit any property under Trahiram's will. In the result, the plaintiff will be
entitled to get 2 as. share only of the joint family

Now a lengthy schedule of properties has been annexed to the plaint and the plaint claims
all the properties belonging to the joint family. The principal defendants contended that
there was a partition just after Jyotish's death in 1906 and that most of the properties
included in the schedule were acquired by Rajchandra and Jagat after 1906 out of their
own funds. Therefore, it is necessary to determine when there was separation of the joint
family. Mr. Nandi contended before us that, joint family continued till 1910 whereas
according to Mr. Rakshit it had continued till the year of adoption, that is, 1937. The
finding of the Court below is that the disruption of the joint family took place in 1918.

Mr. Nandi has drawn our attention to an agreement between Jagat, Rajchandra and Satish,
dated the 9th June 1910, to show that on that date the members agreed to separate. He
laid stress on paragraph 20 of the said agreement which is as follows : "None of the
parties shall be entitled to claim as joint properties those acquired after this date ; the
person in whose name they are acquired shall be entitled to do so." On the strength of this
paragraph Mr. Nandi has agreed that the plaintiff may be entitled to 2 as. share in the joint
family estate as it stood on the 961 June 1910.

Now the rule of the Dayabhaga system is that if two or more sons succeed to ancestral
property and live jointly and acquired properties in the name of any member of the
family, the presumption will be that all the properties acquired during the state of
jointness are joint family properties. This presumption is to be displaced by the person
alleging the property to be his separate self-acquired property. Therefore we have to see if
Mr. Nandi's clients have rebutted that presumption. In the said agreement on which Mr.
Nandi relies, there is no mention of partition any where. As a matter of fact, the heading
of the said document which is Exh. FF3 is: Agreement between Jagat Chandra,
Rajchandra and Satish Chandra, dated the 26th Jaista, 1272, Maghi 9th June 1910." In
paragraph 5 it is clearly stated that the parties executed this deed of agreement for the
convenience of management and preservation of the properties described in the schedule.
Furthermore, paragraph 8 provides that successors shall not be entitled to have partition
by suit, etc. This agreement which consists of 26 paragraphs does not mention anywhere
that the parties were dividing the joint family properties. In the circumstances we are
unable to accept the contention of Mr. Nandi. On the other hand the evidence adduced by
the defendants and their witnesses clearly indicates that the family continued as joint till
1918. Kalimohan defendant No. I in his evidence has admitted that this deed of
agreement to which Mr. Nandi refers was executed for proper management of their
properties. D. W. 1 Rohiniranjan Dutta, says as follows : "There was an Anshanama deed
between Rajchandra and others in 1280 M. E. (1918). It is written in their town.
residence. Satish was a party to it. It was signed by Rajchandra Dutta, Satish, Kalimohan
and Dakshina in my presence, Exh. B. Before this Anshanarna these four persons were
joint and after the Anshanama Satish Babu alone became separate in mess." In cross-
examination he states : "There was a store-room Bhandar in the Bari of Duttas of
Uttarerbari and Ramesh Biswas was the Bhandari Food was supplied from that Bhandar
to the members of the family up to 1280 M. E. and after the Anshanama the Bhandar
ceased to exist." The above evidence clearly indicates that they were not only joint in
property but also joint in mess till 1918. In our opinion the learned Subordinate judge was
justified in holding that there was separation of the family in 1918 when Anshanama,
Exh. B was executed on the 9th June 1918. In the circumstances we hold that the plaintiff
will be entitled to 2 as. share in the joint family property as it stood on the 9th June 1918.

In appeal No. 170 of 1945 defendant No. 12 Sukhoda and defendant No. 13 Pramila Bala
have claimed certain properties as their's. Sukhoda, defendant No. 12 is the wife of defen-
dant No. 1 Kalimohan who is a son of Jagat. She claims as a bona fide purchaser of lots
Nos. 5, 7, 10, 114 to 116. Her case is that for payment of Government revenue the
defendant Nos. 1 to 8 pledged her ornaments with the Mahaluxmi Bank in the name of
their Tahsildar, Kamini Kumar Choudhry. As they failed to pay the dues of the Bank, the
Bank realised the money by sale of the said ornaments. Subsequently defendant No. 1,
that is, her husband, sold the above mentioned lots in lieu of the value of the ornaments.
It is further contended that the properties are self-acquired properties of Jagat and
Rajchandra (predecessors of defendants Nos. 1 to 8). The findings of the lower Court that
these are not the self-acquired properties of Jagat and Rajchandra has not been challenged
before us. Further from the evidence of defendant No: 1, Kalimahan, it appears that they
maintained proper account of the joint as well as of the self-acquired properties but those
accounts have not been filed. D. W. 4 Kamini Kumar Chowdhury, a retired employee of
the estate has stated in the examination-in-chief : "Sukhoda Bala mortgaged some of her
ornaments with Mahaluxmi Bank for payment of rent." He, however, admits in cross-
examination that he is now living with Kalimohan and till recently worked in the Sherista
of Kalimohan and looked after his litigation. Defendant No. 8 Ambica Charan Sen Gupta,
an employee of the Mahaluxmi Bank, Ltd. has supported the case of defendant No. 12
Sukhoda Bala by saying that Kamini Kumar Chowdhury, Ammaktear of Kalimohan,
pledged some ornaments with his Bank in 1934 and the Bank sold the same probably in
1938. From his evidence it appears that Sudhindra son of Rajchandra and Narendra son
of Monmohan worked with him in the Bank. Besides the statement of these interested
witnesses, their is nothing to show that Sukhoda Bala's ornaments were pledged with the
Bank. As stated above, the account books of the estate have not been produced. Further it
would not have been at all difficult to call for the books of the Bank to prove the pledge
of the said ornaments. In the circumstances no reliance can be placed on the statement of
interested witnesses of the defendants who have been examined in the case. In our
opinion, the defendant No. 12, Sukhoda Bala has failed to prove that she was a bona fide
purchaser for value. We accordingly hold that the learned Subordinate judge has rightly
rejected her claim.

Defendant No. 13 Pramila Bala, wife of Rohiniranjan Dutta, a nephew of Kalimohan


claims lots Nos. 2, 3, 47, 87 and 157. In lots Nos. 2, 3, 47 she claimed raiyati interest on
the strength of her purchase from Akhil Dhupi by Kabala, Ext. Al, dated the 12th July,
1933. Akhil Dhupi denies that he had raiyati settlement in the said land. Now this defend-
ant's case is that out of lot No. 2 she purchased R. S. plots Nos. 4466 and 4354 which
corresponds to C. S. Dags Nos. 1833 and 2888 to 2890 from Akhil Dhupi. The learned
Subordinate Judge on a reference to. C. S. Khatian found that C. S. plot No. 1833 stood
in the name of one Isan Chandra, C. S. plot No. 2888 stood in the name of one Becharam
and C. S. plot No. 2890 stood in the name of Pyari Charan. Hence the learned
Subordinate judge has rightly rejected her claims in respect of those plots. In lot No. 3
this defendant claim raiyati interest in R. S. plot No. 4358 which according to her
corresponds to C. S. Dag No. 2788. Now from the C. S. Khatian it appears that this Dag
No. 2788 is a tank. The R. S. Khatian shows that Akhil Dhupi is a tenant under Satish
alone. In lot No. 47 she claims R. S. plot No. 435 which, according to her, corresponds to
C. S. plot No. 2891 'The C. S. record, however, does not show the name of any of the
above plots was possessed by Akhil Dhupi. Only one R. S. Khatian shows that Akhil
Dhupi was a tenant in respect of plot No. 2788, a tank under Satish alone. In 1918-1919
Satish mortgaged those plots with Bank but no mention was made of the fact that these
were tenanted lands. Therefore most likely the tenancy of Akhil Dhupi was created after
1919, Akhil Dhupi denied any such tenancy. There is not a scrap of paper to show that
Akhil or the defendant ever paid any rent. In the circumstances we are inclined to think
that this tenancy of Akhil Dhupi was created in name only with some ulterior motive and
that Pramila who is the wife of a nephew of Kalimohan had knowledge of the said fact.
Non-payment of rent by this defendant lends support to this inference. In the circum-
stances we hold that she is not a bona fide purchaser with regard to the disputed lots in
lots Nos. 2, 3 and 47.

Now we come to lots Nos. 87 and 157. These properties are ancestral properties.
According to this defendant after partition of 1918 these two plots fell to the exclusive
share of Rajchandra and jagat and after their death, there was partition among their heirs
in 1934 and these lots were allotted to the share of defendant No. 6 Dhirendra, son of
Rajchandra. Thereafter in 1935, she purchased it from him by Kabala, Exh. A 2 dated the
23rd September 1935. We have already held that there was partition of the joint family in
1918. Now from the Anshanama, Ext. B it appears that these two lots were not allotted to
Satish and, therefore, it may be safely inferred that they must have been allotted to
Rajchandra and Jagat. In 1934 there was a partition among the heirs of Rajchandra and
Jagat and it appears from the deed of partition that these two lots fell in the share of
Dhirendra who subseque,ptly on the 23rd September, 1935, sold it to this defendant.
Therefore we have no reason to hold that she is not a bona fide purchaser for value so far
as these lots are concerned. We accordingly hold that she was bona fide purchaser of lots
Nos. 87 and 157.

Now we take up the appeal No. 177 of 1945 which has been preferred by defendant No.
16 Amir Hossain Dovashi. He claims lots Nos. 14 and 399 to 406. The learned Subor-
dinate judge has upheld his claim regarding lot No. 14. He regard to the other lots Now
this detendant's case is that on the 28th October, 1935, Kalimohan, defendant No. 1
executed a Kot Kabala in respect of those plots Nos. 399 to 406 for Rs. 700, vide Exh.
BBB and in June, 1937, sold the said plots to him for Rs. 1,000, vide Kabala, Eat. AAA.
It seems that after partition of 1918, these plots fell in the share of Rajchandra and Jagat
and later in 1934, there was a partition among the heirs of Rajchandra and Jagat and these
plots fell in Kalimohan's share. Thereafter, he sold the same to this defendant. From the
facts and circumstances of the case, it seems to us that this defendant was a bona fide
purchaser for value. Therefore his claim to lots Nos. 399 to 406 must be upheld.

Lastly Mr. Rakshit argued that these appeals are not maintainable inasmuch as the
appellants have not made all the defendants parties in these appeals. Mr. Nandi has
rightly contended that under Rule 9, Order XLI of the Code of Civil Procedure, this
appeal proceeds upon a decree common to all the defendants and any of the, defendants is
entitled to appeal from the whole decree and that this Court can reverse or vary that
decree. Hence this contention has no substance in it.

The cross-objection which has been filed in appeal No. 170 of 1945 is not pressed and is
accordingly dismissed.

In the result, we modify the decree of the learned Subordinate judge as follows : The suit
is decreed in part. Plaintiff's 2 as. share in all the suit lands excepting lots Nos. 2, 14, 80,
87, 91, 95 to 98, 102 to 104, 137 to 141, 157, 158, 17, 237 to 251, 399 to 406 and 408 to
415 to be declared and he do get joint possession of the lots decreed along with the
defendants. The plaintiff will be at liberty to recover mesne profits against the defendants
in his subsequent proceeding up to the date of delivery of possession. The defendants
who contested the appeal in High Court regarding adoption will be liable jointly and
severally for the Court-fee on the memorandum of appeal. The Court-fees on the plaint
will be paid by the plaintiff. The Government will recover the Court-fees on the plaint
from the plaintiff and on the memorandum of appeal in F. A. No. 33 of 1940 from the
contesting respondents of that appeal and payment of the said Court-fee will be first
charge on the subject matter of the suit Defendant No. 1 ka and 1 kha, 2 and 4 will pay
half of the Court-fees paid by the plaintiff to the Government. Defendants Nos. 23 to 31,
that is, the Kundus-defendants will be liable for 1/8th of the costs of the suit only. Others
will bear their respective costs of the suit and these appeals.

The appeals are disposed of as above.

GUHA, J.----I agree with the decision and order of my learned brother passed in these
two appeals. But I shall give my reasons why the plaintiff is not entitled to the share,
which his adoptive father Jyotish got under the will of Trahiram, dated the 13th February,
1882. From the pedigree given below, the basis of the claim of the plaintiff in the suit will
be clear.

CHHATRANARAYAN

___________________________|__________________________

| |

Trahiram (d). Debidas Golok


(d).

Will Ex. AA, dated Will Ex. AA (2),


dated

13th February 1882, 14th February 1888,


but

Probated in 1888. there is no evidence of

its being probated.

____________________________________|

________________________|__________________________________
| | | |

Jagat Rajchandra Satish Jyotish (died on

(d.1910) (d.1926-27) D.9 2-12-06 leaving

| a will Ex. AA (1)

| dated 10-12-06

| and probated in

| 1908giving autho

| rity to his wife

| to adopt)=Jog-

| maya.

| |

| Sitanath

| plaintiff.

|___________________________________

___________________________________|___________________
| | | |

Kali (d) Dakshin (d) Monmohan (d) Sasanka (died

(original D1) (original D2) | before suit).

=Sukhoda =Hemnalini |

D (1ga) D 2. |

____________________________________|________________________

| | | | |

Joykumar Anil D (1 kha). | Narendra Amarendra

D (1ka) | D 3. D 4.

______________________________|______________________________
| | | |

Manindra (d) Dhirendra Sudhindra Famindra


(d)

(Original D 5). D 6. D 7. =Monibala D


8.

|______________________________

__________________|__________________

| |

Arun Sripati

The appeal No, 170 is by D (1 ka), D (1 kha). D (1 ga) as heirs of Kali and D (1 ga) and
D 13 as transferees of some of the suit lands and the appeal No. 177 is by defendant No.
16, a transferee. The plaintiff in his plaint claimed 4 as. share but the learned Subordinate
Judgc granted a decree for 3½ as. share, to annas inherited by Jyotish from Golok and 1J
as. which Jyotish had in his lifetime under the Will of Trahiram. The contesting
defendants wanted to defeat the plaintiff's claim by setting up a will of Golok, which
contention was rightly negatived by the trial Court as that Will had not been probated ;
and also by contending that in view of the terms of Trahiram's Will the share bequeathed
to Jyotish vested in his other brothers in 1906 and then to some of their heirs, long before
the adoption of the plaintiff on the 25th February 1937. It is not seriously contended and
cannot be so done in respect of the two annas’ share which Jyotish inherited from his
father and on his death owned and possessed by his widow Jogmaya, plaintiff's adoptive
mother. As regards the 1½ annas’ share under the Will of Trahiram, to which only my
observations will mainly relate, I am of opinion on a construction of the said Will that
Jyotish got a life interest only and that that construction is correct as has been held by my
learned brother and which also follows from the construction of a Will with similar terms,
which their Lordships of the Judicial Committee of the Privy Council had to deal with in
the case of Kumar Tarakeswar Roy v. Kumar Sashishek Mareswar Roy (1883) L R 10 I A
51; and as I agree with my learned brother on this point I need not detain myself long on
this point for giving my reasons. The finding of the trial Court on evidence on the the
point whether that 1J annas' share was in possession of Jyotish's widow or Jyotish
collaterals is in one way, namely, that the said share on Jyotish's death vested in his
collaterals and they dealt with that as their own since after the death of Jyotish. The only
question that I desire to deal with is the vexed question whether under the Dayabhaga
Hindu Law, when there has already been a vesting in collaterals of the estate of the
adoptive father on his death, the adopted son taken by the widow of the last male holder
in the exercise of her authority to adopt, can divest the said collaterals of the adoptive
father's estate. If the adoption takes place immediately on the death of the last male
holder no question can properly arise. But in a case where the widow of the last male
holder exercises her power to adopt long long after the death of her husband, as in the
present case, the question that arises assumes a very considerable importance. As the
Hindu law-givers are not of opinion and as the Hindu Law applicable in different
provinces differs and as to the judicial decision are not reconcilable without reference to
the original Hindu Law text and commentaries, I take the liberty of tracing the origin of
this conflict in relation to the Hindu Law of adoption as to how far it affects the rights of
an adopted son in regard to his adoptive father's estate, when it has already vested in the
collaterals of his adoptive father before the adoption. It must be remembered that in this
case there is no dispute that the plaintiff has been validly adopted.

The Hindu law as it stands at the present day owes its origin amongst others to the
writings in various commentaries on Hindu law and of sages and law-givers and to the
judicial decisions. In dealing with the question of the rights of an adopted son, the early
Hindu sages, commentators and law-givers speak of 12 kinds of subsidiary sons besides
the aurasa or legitimate son begotten on lawfully wedded wife and the aurasa son
occupies the first place according to all sages but as regards the adopted son, the different
Hindu sages and law-givers assign different places in the matter of succession to him.
Those different kind -of sons are divided into two classes, one class includes those who
are heirs and kinsmen and the other who are not heirs. To mention the opinions of some
of those sages about the position of the adopted son in the order of succession : Vasistha
gives him the 8th place and puts him in the second class ; Vishnu puts him in the second
class giving the 8th place and gives him equal rights with the adoptive father in ancestral
property ; Manu, who is described as the most revered of all Rishis by Lord Hobhouse in
Sri Balusu's case (1899) L R 26 I A 113 (123) and whose code is described as of
paramount authority in Amarendra's case (supra), and which resort to the first principles
as said in Ramalakashmi v. Sivanath (1872) 14 M I A 570 (591) puts him in the first class
giving him the 14th place ; Yajnavalka in his commentary on Mitakshara places him in
the second class giving him in the 10th place ; Narod gives the adopted son 9th place in
the second class ; Brihashpati, whose rules are more rational and advanced and who is
regarded as a civil and criminal jurist, places the adopted son second to the aurasa son in
the first class ; and Debala (Jagannath's digest translated by Mr. Colebrooke in 1801. Vol.

332), whose view has been adopted by the author of Dayabhaga gives the adopted son 6th
place in the order of succession. The next commentary of Yajnavalka Smriti is the
Mitakshara by Vijnaneswara, whose authority is supreme in India except in Benga:. See
Collector of Madura v. Moottoo Ramalinga (1868) 12 M I A 397, Ramchandra's case
(1914) L R 41 1 A 290 and Buddha Singh v. Laltoo Singh (1915) L R 42 I A 208. The
supreme authority in Bengal is Dayabhaga by Jimutavahana, which is described by Jolly
in his Tagore Law Lecture at page 22 as one of the most striking compositions in the
whole department of Indian 'Jurisprudence and is remarkable for its logic, lucidity and
power. The most authoritative expositions of Hindu law of adoption is Dattaka Chandrika
by Kuvera and its doctrines are adhered to in Bengal and by southern jurists as said by
Mr. W. H. Macnaghten and accepted by the Privy Council in Collector of Madura v.
Moottoo Ramalinga (Supra) and in Sri Balasu's case (Supra).

In deciding questions of Hindu Law we must bear in mind the following observations of
their Lordships of the Judicial Committee of the Privy Council : "There is necessity of
great caution in interpreting books of mixed religion. morality and law, lest foreign law,
years……should too hastily take for strict law precepts which are meant to appeal to the
moral sense, and……..should introduce restrictions in Hindu society and impart to it an
inflexible rigidity, never contemplated by the original law-givers". See Sri Balasu (Supra)
and B. G. Tilak v. Shrinivas Pandit (1915) L R 421 A 135 (149); add "On the other hand
Hindu Law contains its own principles of exposition and questions arising under it cannot
be determined on abstract reasonings or analogies borrowed from other systems of law,
but must depend for their decision on the rules and interpretations enunciated by its own
law-givers and recognised exponents". Ramchandra v. Binayek (1914) L R 41 I A 290
(299). In the Collector of Madura's case (Supra) their Lordships of the Judicial
Committee observed at page 436. "The duty of a Judge is not so much to enquire whether
a disputed doctrine is fairly deducible from the earliest authorities as to ascertain whether
it has been received by the particular school which governs the district with which he has
to deal and has, therefore, been sanctioned by usage." In Atmaram Abhimanji v. Bajirao
Janrao (1935) L R 62 1 A 139 (143), Sir Shadi Lal observed. : "It must be remembered
that the commentators, while professing to interpret the law as laid down in the Smritis
introduced changes in order to bring it into harmoney with the usage followed by the
people governed by the law ; and that is the opinion of the commentators which prevails
in the provinces where their authority is recognised. It is, therefore, clear that in the event
of a conflict between the ancient text writers and the commentators, the opinion of the
latter must be accepted".

For the first time Mr. Colebrooke used the term "school of law" and there are two main
schools-the Mitakshara and the Dayabhaga, but there are fundamental differences of rules
of law between the two schools. These differences may be summarised as : (i) In
Dayabhaga the principle of religious efficacy is the common for determination of the line
of succession and so it rejects the preference of agnates to cognates (ii) Dayabhaga does
not recognise the doctrine of right to property by birth, so father is the absolute owner of
property which he can dispose of at his pleasure and does not admit of the son's right to
partition during father's life-time ; (iii). In Dayabhaga brothers or their collaterals hold in
quasi-severality and, therefore, their right to dispose of the property at their pleasure
while joint is recognised and Dayabhaga recognises widow's right in undivided family to
succeed to her husband's share if he dies without issue and to enforce partition, now
removed by the Hindu Women's Right to Property Act (XVIII of 1937). Thus from the
earliest times there have been conflicting principles---one favouring integrity and fixed
succession and the other free use of property as circumstances permit. See Balwant Singh
v. Rani Kishori (1898) L R 25 I A 54 (71). The Dayabhaga Sapindaship doctrine followed
the ancient orthodox view of its logical consequence.

Keeping in view the aforesaid principles and texts, I may now proceed to decide the point
at issue. The institution of adoption is not peculiar only to ancient Hindu Law. It has been
known in other countries, especially in ancient Rome, as we find in Roman Law
"Adoption Emim naturam imitator" (adoption imitates nature). In Rome there was
adoption of a filius-familias and when the latter was transferred by his father, it
extinguished the patriaprotestas where it existed but the bond which he had previously
with his agnates was severed, but after the law of Justinian came into force, adoption did
not in all cases follow by a change in family except where the adoption was a paternal or
maternal grandfather. Even in modern England, adoption has been introduced by a
Statute. See the Adoption of Children Act, 1926 ; Halsbury, Halisham edition, 17th Vol.,
para. 1416, page 685. Adoption has been in vogue amongst the Hindus since the Vedic
times. We have already seen that there are two-fold classifications of sons and according
to Dr. Jolly that was due partly for spiritual benefit and partly out of secular motive. In
other words, it was partly for secular reasons and partly due to someone being in need for
performing funeral rites because a sonless man would be without protection or assistance
in old age or sickness and would not like to see his property pass into the hands of distant
relations. In course of time there remained only two kinds of sons, namely, aurasa i.e.,
"whom one begets on his own wedded wife"--(manu) and Dattaka or adopted sons. In
Smriti Chandrika it is stated that in Kali age adopted son alone is acknowledged except
aurasa son. In Hindu Law, adoption is allowed only in the absence of a legitimate son.
The place of assignment of an adopted son by different commentators may be due to the
difference in local customs and usages. Historically in India adoption became very
prominent after the Gupta Empire. The entire Hindu Law of adoption is envolved from
two texts of Manu and one of Vasistha and a metaphor of Saunakha. Manu says : " A son
equal in caste and affectionately disposed whom his mother or father (or both) give with
water at a time of calamity is known as the Dettrima (Dattaka) son. The adopted son is
not to take away (with him when he is passing from the family of his birth to that of
adoption), the gotra the rikhta (wealth) of the progenitor, the Pinda is follower of the
gotra and the rikhta, the swadha (or spiritual food) goes away absolutely from the giver."
Manu, IX, 168 and 142. The text of Vasistha is : "A son sprung from the virile seed and
the uterine blood is an effect whereof the mother and the father are the cause ; the mother
and the father are, therefore, competent to give, sell or disown him; but an only son
should neither be given nor accepted ; for he is, intended for continuing the lineage of the
ancestors; but a woman should neither give nor accept a son without the permission 'of
the husband. One desirous of adopting a son should after having invited his relations,
inform the King, and perform in the dwelling house the Vyahriti-homa, take one whose
kinsmen are not unknown or one who is a near kinsman. But if a doubt arises (as to the
caste), then the adopted son whose kinsmen are unknown, should be set apart like a Sudra
; for it is well known that by one many are saved. If after he has been adopted, an aurasa
or real legitimate son be born, then the Dattaka shall be participator of a fourth share."
Quoted from Sarkar's Hindu Law, 6th edition, pages 145, 147 and 144. The aforesaid
texts read along with the metaphor of Saunakha that " the adopted son must be the
reflection of a son" has given rise to numerous rules for observance in the case of a valid
adoption. The Dattaka Mimansha of Nanda Pandit and Dattaka Chandrika of Kuvera, two
treatises on adoption are respected all over India ; but when they differ, the doctrine of
the latter is adhered to in Bengal and by southern jurist while the former prevails in
Mithila and Benares. See Collector of Madura's case (Supra).

The religious motive is not very great as Vishnu, Yajnavalka and Narod assign a very low
place and adopted sons Sapinda relationship extends only to three degrees and the period
of pollution is to .three days only and he performs Ekaddistha Sradh on the anniversary of
his adoptive father's death but does not like aurasa son offer divided oblations to the
higher ancestors. His position is inferior to aurasa son religiously. In Dattaka Chandrika it
is stated that a son is to be adopted for " celebration of a name and due perpetuation of a
lineage". Again amongst vast majority of Hindus mere gift and acceptance are sufficient
though the adoptee is expected and does perform customary funeral rites. It is often found
that a husband gives power to his wife to adopt for continuation of his lineage, to inherit
property and to keep up his name: See Rajendra v. Govala (1930) L R 57 1 A 296 (302).
Again secular motive is more dominant than religious more so when adoption is made
long after husband's death (as in this case). The controversy whether adoption is for
religious or secular motive has Been set at rest by Amarendra's case, which reiterates "
the well-established doctrine as to religious efficacy of sonship " following Sri
Raghunandha v. Sri Brozo Kishore (1876) L R 3 I A 154 (192).

The Hindu Law sets no limit to the exercise of the widow's power to adopt. According to
the Dattaka Chandrika,the age of the boy to be adopted is material as determining the
time at which Upanayan may be performed ; but so long as that rite in the case of three
higher classes and marriage in the case of Sudra, can be performed in the family of the
adoptor, there is no limit of any particular time. It is well-settled that there is no power
under the Hindu Law to compel a widow to adopt and in the absence of a time limit
imposed on the authority, which empowered her to adopt or of a direction that she would
adopt promptly, she can make adoption so long as the power is not extinguished or
exhausted. See Mutsaddi Lai v. Kundan Lai (1905) L R 33 1 A 55, Madana Mohana v.
Purushothama (Supra) and Pratapsing v. Agarsinghji (Supr4). In Amarendra v. Sanatan
(Supra) their Lordships of the Privy Council observed, however, that there must be some
limit to its exercises, or at all events some conditions in which it would be either contrary
to the spirit of the Hindu doctrine to admit its continuance or inequitable in the face of
other rights to allow it to take effect". It is well-settled that the widow of a co-parcener
can adopt a son to her husband notwithstanding the vesting of his interest in another co-
parcener. , See Raghunandra v. Brozo Kishore (Supra); Bachoo Hurkisondas v.
Mankorebai, (1907) L R 34 I A 107; Yadao v. Namdeo, (1921) L R 48 I A 513, and
Bhimabai v. Gumnathgonda, (1933) L R 60 I A 25. So also where an aurasa or adopted
son dies unmarried leaving his mother as his heir, her power of adoption can be
exercised. See Rajah Vellanki Benkata Krishna Rau v. Benkata Ramalakshmi Narsayya,
(1876) L R 4, I1A 1, and Vcrabhai Ajubhai v. Bai Hiraba (1903) L R 30 1 A 234. From
Bhubanmoyee v. Ramkishore, (1865) 10 M I A 279 (306-7), it is clear that mere existence
of the son's widow without any authority given by the son, would itself bring the mother's
power to adopt to an end. The recent decision of the Privy Council in Amarendra v.
Sanatan (Supra) swept away the distinction between cases of vesting by inheritance and
vesting by survivorship in limiting the widow's power of adoption and approved the rule
of law in Ramkrishna v. Shamrao, I L R 26 Born. 526 F B and their Lordships observed :
" The vesting of the property on the death of the last holder in some one other than the
adopting widow, be it either another coparcener of the joint family, or an outsider
claiming by reverter, or their Lordships would add, by inheritance, cannot be in itself the
test of the continuance or extinction of the power of adoption." That decision has been
followed in Vijaysrngji v. Shibsingji (Supra) and Anant v. Shankar (Supra). In this case
there is no limitation to the power of the widow to adopt and also the adoption of the
plaintiff by Jogmaya has been found to be valid and that decision is not challenged before
us.

The text on the subject of the result of adoption are fairly comprehensive and clear. Manu
followed in Mitakshara makes the adopted son heir not only to the adoptive father but to
his kinsmen as well. The Dayabagha citing Devala prima facie takes the view that the
adopted son falls in the second six of the twelve secondary sons. I shall discuss that point
later on. Manu makes it clear that the effect of adoption is to cut off all connections with
the natural family in respect of the gotra, wealth, heritage, pinda or oblation and Saradha,
etc., and to transplant him in the adoptive family. Manu further declares that an adopted
son shall never take the family name and the estate of his natural father……the funeral
offerings of him who gives his son in adoption cease as far as the son is concerned."
(Mann, IX, 141, 142 and 159). The Dattaka Mimansha and the Dattaka Chandrika
expressly lay down that the adopted son is a substitute for a legitimate son both for the
purposes of inheritance and of funeral oblations, and that he is a Sapinda to the members
of the adoptive family and that the forefathers of his adoptive mother are his maternal
grandsires. It is now well-settled that an adopted son occupies the same position in the
adoptive father's family and has the same rights and privileges in the family of the
adoptor as a legitimate and natural son (except in instances relating to marriage and to the
competition between the adopted son and an aurasa son subsequently born to the adoptive
father). The theory of adoption depends upon the principle of a complete severance of the
child adopted from the family in which he is born, both in respect of the paternal and the
maternal line, and his complete substitution and engraftation into the adoptor's family, as
if he were born in it. See Jagendra Chandra Ghosh's Hindu Law, page 542: Uma Sankar
v. Kalikomal (1881) I L R 6 Cal. 256 (F B), cited with approval in Nagindas v. Bechoo
(1916) L R 43 I A 56 and in Raghuraj v. Subhadra (1928) L R 55 I A 139 ; Krishnamurthi
Ayyar v. Karishnamurthi Ayyar (1927) L R 54 I A 248, Pundookumari v. Coui t of Wards
(1881) L R 8 I A 229 ; Kalikomul v. Umashukur (1888) L R 10 I A 138 ; Gangadhan
Bogla v. Hiralal Bogla I L R 43 Cal. 944 ; Amarendra v. Sanatan (Supra) and Anant v.
Shankar (Supra). It follows that in contemplation of law an adopted son is the continuator
of the adoptive father's line exactly as an aurasa son with no hiatus in the continuity of
the line. See P,ratapsingh v. Agarsinghji (Supra) ; Benarsi Das v. Sumat Prasad I L R 58
All. 1019, and Bhuptinath v. Basantakumari I L R 63 Cal. 1098. Lord Sumner in
Raghuraj Subhadra (Supra) observes : "It is not true to say that by the Hindu Law an
adoptee only loses his consanguinity for purposes of succession. Adoption has been
spoken of as a 'new birth' in many cases, a term sanctioned by the theory of Hindu Law.
Nor is the expression a mere figure of speech," and citing with approval Nagindas's case
(Supra) and Duttatraya v. Govind I L R 40 Born. 429 observes : 'As has been more than
once observed, the expressions 'civily dead or as if he had never' been born in the family'
are not for all purposes correct or logically applicable, but they are complementary to the
term 'new birth'……..Consideration of the intimate connection, which primitive Hindu
Laws established between the funeral offerings and ceremonies on behalf of the dead and,
the right of succession to his property, will show that ceremonially the adopted son only
becomes new born in the family of his adoptive father, so as to be qualified to provide
efficaciously the offerings of which the dead have need, by first dying in the family of his
birth, out of which he is given by his natural to his adoptive parent, and in which his
offerings will be no longer efficacious or descend. The fiction of adoption operating as
civil death in the natural family and new birth in the adoptive family has been extended
both ways to the extent that the adopted son is to be treated as having been born from his
birth in the adoptive father's family and as having never been born in the natural family.
That in substance is the effect of adoption.

It may be observed that an adopted son is entitled to inherit both lineally Mukund v.
Bykunt I L R 6 Cal. 289, and collaterally Pundakurnari's case (Supra), and Chandreswar
v. Bisheswar I L R 5 Pat. 777, and ex-parte materna as well as exparte paterna
Kalikomul's case (Supra), Shamkuar v. Gayadin, I L R 1 All. 225 (F B), Surjo v. Mohesh
I L R 9 Cal. 70, Dattatraya v. Gangabai I L R 46 Born. 541, and Sown= tharapandian v.
Periaveru Thavan I L R 56 Mad. 759 (F B), in the adoptive family.

The present is a case of an adoption made by a widow to her deceased husband and it
raises special considerations due to the fact that the person adopted has, apart from the
Act of 1937, as amended by the Act of 1938 a better title than the person in possession,
while on the other hand, the title of the person so in possession has been a perfectly good
and valid title up to the date of possession. Therefore, the question arises in two ways,
firstly, with regard to the title to the estate and secondly, with regard to the validity of acts
done between the date of the death of the husband and the date of adoption.

Before I deal with that question, I shall first deal with the law applicable to this case
amongst parties governed by the Bengal school Dayabhaga, which is found in the texts
and in authoritative commentaries on Hindu Law. We have already seen that the adopted
son becomes a son of the adoptive father's family and the question is what is the right of
the adopted son to inherit in the family of adoption. The 12 kinds of sons described by the
Hindu law-givers become members of the legal father's gotra and as such offer oblations
of food and liabations of water. These 12 sons are divided into two groups, of which the
first six are declared to be heirs to their father and also to kinsmen, while the second six
to the father alone. Manu includes adopted son in--the first six while Debala includes him
in the second six. This conflict is difficult to reconcile. The author of Dattaka Chandrika,
which is authority in Bengal, reconciles by saying that if the adopted son is endowed with
good qualities, Vijnaneswar in Mitakshara says that according to Manu (IX, 185) all sons
without exception have a right of inheriting their father's estate because in another
passage, the sage declares "Not brothers, nor parents, nor parents but sons are heirs to the
estate of the father and Kulluka Bhatta in his gloss on the Institutes of Manu explains that
passage as "sons are heirs to the estate of the father". But Jimutavahana, the author of
Dayabhaga, simply citing Devala (Dayabhaga X, 7) adopts the rule laid down by the
Debala, which he explains as: "The true legitimate son and the rest to the number six are
not only heirs of the father but also of kinsmen, that is, of Sapindas and the like; the
others are successors of their father but not heirs of Spindas and the like." Golap Chandra
Sarkar Sastri in his Tagors Law Lecture on the Hindu Law of Adoption, 2nd edition, at
page 392 after citing the above texts states the law thus: "It has all along been understood
that according to the Dayabhaga, the Dattaka son is entitled to become an heir of his
adoptive father alone, and of no other relation by adoption;" and at page 393 the learned
author states: "The rule laid down in the Dayabhaga, according to which an adopted son
is entitled to inherit from the adoptive father alone, cannot be supposed to be inconsistent
with justice or equity. For, if the usage of adoption to which the Dattaka son owes its
existence, were universal, that is, if all persons destitute of male issue adopted sons,
collateral succession would be impossible; therefore, the law of adoption itself is opposed
to the Dattaka son's right of inheriting from collaterals. Besides, the possibility of
collateral succession which again is merely contingent (under the Dayabhaga law) is not
taken into account when an adoption takes place; the certain right of inheriting from the
adoptive father is understood on behalf of the adopted son, to be an ample compensation
for all the rights lost by him in his natural family; in fact the rich inheritance of the
adoptive father is accepted to be more than all the contingent and the certain rights put
together in the natural family. Moreover, there is no reason why one person should be
permitted to choose an heir for others; a person may, against the wishes of his relative,
choose to adopt a perfect stranger; and he should be at perfect liberty to appoint an heir to
his own property in any way he pleases; ………The inheritance according to Hindu Law,
is determined by two principles, namely, the gotra relationship and blood relationship;
and as the adopted son as such is not a consanguinal relation, his claim to inherit from a
relation by adoption, who is beyond the gotra, is, therefore, supported by neither of the
principles. His Sapinda relationship in the family of adoption appears to be
misunderstood in consequences of the different senses in which the word is used. He
becomes a Sapinda in the sense of one connected through the funeral oblation of food;
and the persons with whom he is so connected are primarily the three ancestors by
adoption ; for it is with their funeral oblations that his funeral oblation is united by the
Sapindikaran ceremony". The learned author concludes that the modern doctrine, that an'
adopted son, except as otherwise provided, resembles the real legitimate son, appears to
be perfectly consistent with the principles of equity and justice. I shall presently show
from a discussion of decided authorities that under the Dayabhaga school, the adopted
son succeeds to his father and he cannot succeed to collaterals. Jogendra Chandra Ghosh
in his Hindu Law at page 503 states that there is no warrant that an adopted son becomes
heir of relations and citing Bhubonmoyee's case (Supra) observes that if the estate vests
on the death of the last male owner in a person other than the widow, adopted son cannot
take. I am also of the same opinion.

Now reverting to the question of the effect of adoption of the plaintiff in this case, I shall
give my reasons on the questions I have formulated in the previous paragraph but one,
according to the Dayabhaga law as understood from texts and principles A widow cannot
be compelled to act upon the authority to adopt. Therefore, the vesting of the inheritance
cannot remain suspended till she exercises her right. In this case we have held that as
regards the share claimed under Trahiram's will by the plaintiff it was a life estate which
plaintiff's father got and on his death it devolved upon the plaintiff's adoptive father's
brothers and went into their possession and that death took place in 1906 and the
plaintiff's adoption in 1937 ; but in legal fiction the plaintiff must be taken to have been in
the womb of his adoptive mother or born at the date of his adoptive father's death and that
position cannot be controverted in law. The only question that requires my determination
then is whether the plaintiff by his adoption can claim that share. My answer to that
question will be in the negative. Here in the case immediately on the death of Jyotish, his
interest passed to the next heir, whether that heir was his widow or some other person and
that heir took with full rights as if no power to adopt existed, subject only to the
possibility of his or her estate being divested by exercise of the power of adoption. It is
settled law that as soon as the widow has exercised her power of adoption, the adopted
son stands exactly in the same position as if he had been born to his adoptive father and
his title relates back to the death of his father to this extent that he will divest the estate of
any person in possession of the property to which he would have title, if he had been in
existence at the date of his adoptive father's death. Here the adoption is by the widow and
she herself is heir to her husband. Prior to the Hindu Women's Rights to Property Act,
1937, the result of the adoption was that her limited estate at once ceased and the adopted
son became full owner to the estate; but now under that Act, the widow takes along with
the adopted son and the adoption will only divest a moiety share of the estate held by her,
the other moiety being held by the widow for her life. On an adoption made to a co-
parcener in an undivided family, the adopted son takes the place of a legitimate son and
so he divests the estate of anyone who in his absence takes his father's interest. Thus on
the death of one of two undivided brothers, the property vests by survivorship in the other
and on adoption made to the deceased brother by his widow puts an end to survivorship.
See Surendra v Sailaja I L R 18 Cal. 385, and Bechoo v. Mankorebai (Supra), following
Raghunanda v. Broza Kishore (Supra). It has been held in Amarendra v. Sanatan (Supra),
and Vijaysingji v. Shivasingji (Supra), that whether the vesting in the collateral has been
by inheritance or survivorship or by reverter, a valid adoption divests the estate of
anyone, who would take only after an aurasa or adopted son. The Bombay view that an
adoption made by a widow of a predeceased co-parcener would not divest the joint
family property vested by inheritance on the death of the last surviving co-parcener to his
heir in Balu Sakharam v. Lalu Sabhaji I L R 1937 Bom. 508 F B, is opposed to the actual
decisions in Amarendra's case and Vijasingji's case cited above and has been dissented
from in Sankaralingam v. Veluchami I L R 1943 Mad. 309 F B, and in Bajirao v.
Ramkrishna I L R 1941 Nag. 707 and has since been overruled by the ludicial Committee
of the Privy Council in Anant v. Shankar (Supra). In delivering the judgment of the
Board, Sir George Rankin observed as follows : "If, then, the plaintiff's adoption was
valid, can it be held that it does not take effect on the property which had belonged to the
joint family because there was no coparcenary in existence at the date of the adoption ?
On this point their Lordships, differing from the majority decision in Balu Sakharam's
case, (Supra) held that the adoption being valid cannot be refused effect. That the
property had vested in the meantime in the heir of Keshab is not of itself a reason, on the
principles laid down in Amarendra's cases why it should not divest and pass to the
plaintiff………..We regard it as clear that a Hindu family cannot be finally brought to an
end while it is possible in nature or law to add a male member to it. The family cannot be
at an end while there is still a potential mother if that mother in the way of nature or in
the way of law brings in a new male member. "It may be stated here that the vexed
question of divesting is not of much practical importance now as under the Hindu
Women's Rights to Property Act of 1937 as amended by the Act of 1938, the widow of a
predeceased coparcener would take her husband's estate and the adopted son would be
entitled to his rights as coparcener notwithstanding the vesting in the last male
coparcener's widow.

It is settled law that on adoption by a widow to her deceased husband after the death of a
collateral, does not entitle the adopted son to come in as an heir of the collateral. In the
present case the question is whether by adoption the plaintiff can come in as an heir to
Jagat or Rajchandra or their brothers. I am of opinion that the plaintiff is not entitled to do
so. In a case governed by the Bengal school, A and B were undivided brothers. A died in
1851 but a Will bequeathed his share to his widow, C for life (who in 1864) and after her
to the sons of his daughter, but the daughter died without issue during C's life-time and on
the daughter's death, the widow C made a Will bequeathing the property to D as executor
for religious purposes. B brother of A died in 1845 leaving his son E, who died in 1855
giving his widow Bamasundary authority to adopt and the latter adopted the plaintiff in
1876 and it was held that the plaintiff's adopted son would not be entitled to claim the
estate of his granduncle A, though he could have done so if he was adopted before the
death of C. See Kally Prosonno Gh05e v. Gocool Chunder Mittcr and another (Supra),
where the distinguished learned Judge Mitter J. on reviewing the texts of Dayabhaga
Hindu Law and the authorities held that the plaintiff's adoption not having taken place
when the succession to the property of A opened out on the death of his widow C, he was
not entitled to the property and as the plaintiff's adoptive mother could not claim on the
death of C to hold the property as trustee for him and as the property must have vested in
someone on the death of C and as property once vested cannot be divested, the plaintiff
was not entitled to succeed. In the case of Bhubaneswari Debi v. T(ilkomul Lahiri
(Supra), which was a case under the Dayabhaga law, Sir Bernes Peacock in delivering the
judgment of the Board observed at pages 140-41 : "It appears that the widow from tune to
time and that they refused upon the grouad of the forged Will which had been set up by
the defendant ; and that consequently she could not get anyone to give her a son in
adoption. After the death of Chandramoni she did adopt the present plaintiff ;but it
appears clearly upon the evidence in the record that the plaintiff was not in existence at
the time of the death of Chandramoni. The widow never could. by adoption, if there had
been no fraud, have made the present plaintiff a reversionary heir of half the estate of
Rammohan, because he was not in existence at the time of Chandramoni s death.
According to the law as laid down in the decided cases, an adoption after the death of a
collateral does not entitle the adopted son to come in as an heir of the collateral." That
case clearly lays down that the plaintiff in this case cannot claim the share bequeathed to
his adoptive father by the Trahiram's will. It may be observed that Sir George Rankin in
Anant's case stated that " neither the present case nor Amarendra's case brings into
question the rule of law considered in Bhubaneswari Debi v. Nilkomul Lahiri (Supra).
From the above it follows that the recent decisions of the Privy Council have negatived
the propositions that the claim of an adopted son will retrospectively operate regarding
the estate of collaterals. See also Gadeyannavar v. Gadeyannavar (1949) 53 C W N (F C)
122. In the case of Amarendra v. Santan (Supra), hijaysingji v. Shivsingji (Supra) and
Ananta v. Shankar (Supra) before the Privy Council cited above the estate in question
were in fact that of the adoptive father and on adoption, the rights of the adopted son
were held to relate back to the death of his adoptive father.

The question of divestment by valid adoption and how far and in what way it will operate
in the case of collateral succession cannot be said to have already come out of the clouds
of confusion. What Sir George Rankin exactly means towards the end of his judgment in
Anant v. Shankar (Supra) is difficult to divine. But when one considers the facts of that
case and the ultimate decision thereon, it appears that the rule of divestment held to be
relating back will apply in the case of collateral succession with the result that if a
collateral died long before the adoption and his estate had vested in his heir, and adoption
made subsequently, would enable the adopted son to divest that estate if the adopted son
is a mere heir of the deceased collateral than the heir who have taken the estate in the
meantime. But whether their Lordships of the Judicial Committee of the Privy Council
really meant to go so far, appears doubtful as the decision in Anant's case expressly says
that the rule of law considered in Bhubaneswari's case and stated by the Board to be that :
"According to the law as laid down in the decided cases, an adoption after the death of a
collateral does not indicate the adopted son as an heir of the collateral" has not been
brought into the question in that case. Why this question was held not before the Board, it
is difficult to see. As a matter of fact, on the fact of the case, in respect of the separate
property of the deceased brother, the adopted son could not he held to be entitled to divest
the intermediate taker unless the rule in Bhubaneswari's case was wrong.

Therefore considering the question about the plaintiff’s claim to the property of his
adoptive father, which was bequeathed to him by the will of Trahiram, from the point of
view of the texts of Hindu Law as prevalent in Bengal and the decided cases, I am of
opinion, that the plaintiff cannot succeed and therefore the decision of the trial Court in
plaintiff's favour as regards that share must be set aside. The result, therefore, is that the
plaintiff is entitled to only two annas' share. On other points I entirely agree with my
learned brother.

A. H. Order accordingly.
P L D (Rev.) 1956 W. P. 63

Before H. A. Majid, Member, Board of Revenue

SAMUEL and others-Appellants

Versus

MEGHA-Respondent

Revision Side No. 93 of 1955-56, decided on 24th July


1956, District Multan.

Colonization of Government Lands (Punjab) Act (V of 1912)----

-----S. 20-Adoptzon evidenced by unregistered will-Not


given eject to.

According to section 20 of Colonization of Government


Lands (Punjab) Act, 1912, an adopted son or his successor
can be treated as lineal descendants "only if the adoption
was made by means of a registered deed."

Where the adoption was sought to be proved by an un-


registered will:

Held, that the failure to get the will registered was fatal to
the claims of the adopted son's successors.

Sardar Muhammad Iqbal for Petitioners.

ORDER

H. A. MAJID.-The petitioners claim to be the sons of an


adopted son of Bagh deceased. The adoption is intended to
be proved by means of a will which is unregistered. Even
if the adoption were proved, the provisions of section 20
of the Colonization of Government Lands (Punjab) Act,
1912, would stand against their claim to nomination as
successors of Bagh deceased. The legal provision is that an
adopted son or his successor can be treated as lineal
descendants "only, if the adoption was made by means of a
registered deed." The, failure to get the said will registered
is fatal to the petitioners 1 case.
It will not open to a Revenue Officer to start looking into
the purpose for which the legislature prescribed the
registration of the adoption deed. I cannot, therefore,
accept the argument that the adoption must be considered
effective in this case, because the respondent does not
deny that the will in question was executed by the
deceased.

The Collector has not stated anywhere in his decision that


the present respondent agreed to the present petitioners
being given half of the tenancy in question. The Collector
merely stated that his decision to distribute the tenancy in
equal parts between the two parties was influenced by the
will. He, however, did not appreciate the point correctly.
The respondent relied on that document merely by way of
argument, whereas the reliance of the present petitioners
on that document was basic. The respondent merely said:
"It is not open to the other party to deny the fact that I am
a real nephew of Bagh deceased. The very document, on
which they are basing their claim, states I am his nephew".

Such a statement cannot be counted as basing the claim on


that document.

For the above reasons, I hold that the petitioners cannot


object to the respondent being nominated as the sole
successor of the tenancy in question. I, therefore, dismiss
their petition for revision.

A.
H.
Petition dismissed.
P L D 1956 (W. P.) Lahore 668

Before M. R. Kayani and Muhammad Yaqub Ali, JJ

KHAIR MUHAMMAD KHAN and another-Petitioners

Versus

THE GOVERNMENT OF WEST PAKISTAN and others-Respondents

Writ Petition No. 123 of 1956, decided on 10th May 1956.

(a) Frontier Crimes Regulation (III of 1901)-Trials under a denial of right to engage
counsel-Illegal-Constitution of Pakistan, Article 7.

Trials under the Frontier Crimes Regulation (III of 1901), so far as they are held under
denial of right to consult and engage a counsel are inconsistent with Article 7 of the
constitution and are illegal.

Article 7 of the constitution should now be treated as a part of every law relating to trial
for any offence.

(b) Frontier Crimes Regulation (III of 1901),

Ss. 2 (b), 3, 4 and 11--Detention of accused, after reference to Council of Elders by


Deputy Commissioner-Does not contravene clause 2 of Article 7, Constitution of
Pakistan-Detention deemed to be "under authority of a Magistrate-Deputy Commissioner
while making reference does not strip himself of magisterial functions -Authority to
detain also inherent in Regulation-Criminal Procedure Code (V of 1898), S. 344-
Desirability of remand orders in case of prisoners under trial under Regulation.

Although it is the Deputy Commissioner who refers the case to a Council of Elders, he
does not, while doing so, take off his Magisterial functions.

The detention at the point of reference of the question of guilt or innocence of the
accused to a Council of Elders under section 11 of the Regulation is, therefore, under the
orders of a Magistrate and such detention does not contravene the last part of clause (2)
of Article 7 of the Constitution of Pakistan.

As regards detention during trial by the Council of Elders, the authority to detain is
inherent in the Regulation. It is implied that the accused person will be under detention
while the special trial goes on, unless the Deputy Commissioner as District Magistrate
releases him on bail. So long as the Regulation is not an unlawful measure, detention for
its purposes will also not be unlawful, provided it has a lawful origin.
So far as the Seventh Article goes, all it says is that detention beyond twenty-four hours
shall not be without the authority of a Magistrate.

Since a jirgah trial is not a trial under the Code, the fortnightly remand to custody (section
344, Criminal P. C.) is not a compelling provision and it would be straining the language
of section 3 of the Regulation if fortnightly remands were made a part of the jirgah trial.

Held, however, that it was desirable to adopt the procedure of section 344, Criminal P. C.,
in the matter of remands of the prisoner facing a trial by the Council of Elders under the
Regulation.

(c) Interpretation of Statutes-Statute enacting adoption of another statute as a whole


and' at the same time enacting expressly application of some part of such other
enactment Effect.

Held, that while it is sometimes argued that the express adoption of certain specific
provisions of an enactment means that the enactment as a whole is not applicable. It may
be argued with equal force that where an enactment has been made applicable as a whole,
except where the contrary intention appear, an express application of some part of it may
be merely intended to take the matter out of the pale of doubt.

Khan Abdul Qayyum Khan for Petitioners.

S. A. Mahmood, Assistant Advocate-General for Respondents (State).

Dates of hearing: 25th, 26th April 1956, and 10th May 1956.

JUDGMENT
KAYANI, J.-This is a habeas corpus petition by Khair Muhammad Khan and Abdul Latif
who were detained in Quetta for the commission of an offence under sections 4 and 5 of
the Explosive Substance Act, 1908, the case having subsequently been referred under the
Frontier Crimes Regulation to a Council of Elders. Khair Muhammad Khan had been
released on bail by the District Magistrate, Quetta, while Abdul Latif's release was
ordered by us during the hearing of this petition.

Mr. Abdul Qayyum Khan, for the petitioners, argued that trial and detention under the
Frontier Crimes Regulation which he must have on numerous occasions defended on the
floor of the N. W. F. P. Legislative Assembly -was repugnant to Article 7 of the
Constitution. Among other things, Article 7 confers upon a person who is arrested the
right to be defended by a legal practitioner and prohibits detention without the authority
of a Magistrate. It was contended that the trial under the Frontier Crimes Regulation
violates both these provisions. Article 7, so far as relevant, is as follows:--
"7.-(1) No person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult
and be defended by a legal practitioner of his choice.

"(2) Every person who is arrested and detained it custody shall be produced before the
nearest Magistrate within a period of twenty-four hours of such arrest, excluding the time
necessary for the journey from the place of arrest to the Court of the Magistrate, and no
such person shall be detained in custody beyond the said period without the authority of a
Magistrate."

A trial under the Frontier Crimes Regulation takes place in the following manner. Under
section 11, "where, in the opinion of the Commissioner or Deputy Commissioner, it is
inexpedient that the question of the guilt or innocence of any person or persons accused
of any offence, or of any of several persons so accused, should be tried by a Court of any
of the classes mentioned in section 6 of the Code of Criminal Procedure, 1898, the
Deputy Commissioner may, or if the Commissioner so directs, shall, by order in writing,
refer the question to the decision of a Council of Elders, and require the Council to come
to a finding on the question after such inquiry as may be necessary and after hearing the
accused person." The Courts mentioned in section 6 of the Code of Criminal Procedure
are the ordinary criminal Courts and it is in respect of these Courts that section 340 of the
Code provides for defence by a pleader as of right. It is, therefore, inherent in section 11
(1) F. C. R., that an accused person cannot be defended by counsel as of right, and it is
not denied that trials under the Regulation are held without the aid of counsel. in fact, the
licence which a practitioner obtains under the Legal Practitioners Act entitles him to
appear only in Court, civil, criminal and revenue, and in revenue offices, and
consequently he cannot appear before a Council of Elders unless the Council is defined in
the Regulation as a criminal Court.

Although there is a green book of instructions which says, among other things, that the
accused should be present before the Council of Elders at all stages of the trial, we are not
sure that a contrary practice is not prevalent and is not observed in most cases; and this is
not contrary to the Regulation, which merely requires that the Council should "come to a
finding" on the question of guilt or innocence of any person "after such inquiry as may be
necessary and after hearing the accused person" The Regulation will be satisfied if the
accused has been heard once. On receipt of the finding, the Deputy Commissioner may
convict, acquit or discharge the accused person and there is no provision that he cannot
do so without hearing the accused. In practice even the Council holds what are called
secret and open inquiries. It examines witnesses informally and visits the spot or its
neighbourhood, often incognito, to ascertain the truth. The" very essence of a jirgah trial
is that it is unencumbered by the law of evidence, the rules of procedure and the cross-
examination of a legal practitioner. Such a trial so far as it relates to the presence of a
counsel, is inconsistent with Article 7 of the Constitution.

We do not, however, think that the Frontier Crimes Regulation has become unlawful
because it does not provide for the appearance of a legal practitioner. From now on, we
should treat Article 7 as a part of every law relating to trial for an offence. We shall,
therefore, issue a direction that no evidence shall be heard or recorded against the
accused before have been given an opportunity of defending themselves by a pleader,
and. this shall be the rules in future. Even if with this restriction the jirgah trial is left with
any charm, the Deputy Commissioner can continue resorting to it. The second contention
of Mr. Abdul Qayyum Khan was that after the Deputy Commissioner had referred a case
to the Council of Elders, the accused's detention ceased to be under "the authority of a
Magistrate" a circumstance which contravened the last part of clause (2) of Article 7. The
contention is based on the assumption that the Frontier. Crimes Regulation expressly uses
the term Deputy Commissioner, and not District Magistrate, apparently because the
District Magistrate is a criminal Court within the meaning of section 6, Criminal P. C.
and, therefore, subject to the revisional Jurisdiction of the High Court. The choice of the
term Deputy Commissioner may not have been made merely to exclude the jurisdiction
of the High Court. That jurisdiction could have been excluded in express terms, in the
manner of section 48, which bars appeals. The Regulation was obviously intended to be
an executive measure excluding judicial tribunals and a 'finding. An appeal lies to the
Commissioner, but if the judicial, term used had been District Magistrate, the
Commissioner would not be the proper authority for appeal. But whet ever be our
conclusion on that score, we are not convinced that in dealing with a jirgah case the
Deputy commissioner ceases to be a Magistrate in actual fact.

Under the Code of Criminal Procedure, section 10, "in every district the Provincial
Government shall appoint a Magistrate of the first class, who shall be called the District
Magistrate". That clearly means there shall be one District Magistrate in every district,
and the question is-apart from established practice-whether such Magistrate can be any
person other than the Deputy Commissioner. Section 11 says that "whenever in
consequence of the office of a District Magistrate becoming vacant, any officer succeeds
temporarily to the chief executive administration of the district, such officer shall . . . . . .
exercise all the powers conferred . . . . . by this Code on the District Magistrate". This
assumes that the District Magistrate held ''the chief executive administration of the
district" and when the office of the former became vacant, automatically somebody
succeeded to the chief executive administration, which obviously is the office of the
Deputy Commissioner. In other words, the Deputy Commissioner must be the District
Magistrate.

So much is assumed by the Regulation, because it defines "Deputy Commissioner" in


section 2 (b) as including any Magistrate of the first class appointed by the Deputy
Commissioner by order in writing to exercise all or any of the functions or powers
specified in the first part of the first Schedule and also any Magistrate appointed by the
Provincial Government to exercise all or any of such functions or powers".

Therefore, whenever any person, apart from the Deputy Commissioner proper, is to be
appointed to exercise the functions of the Deputy Commissioner under the Regulation, he
must also be a first class Magistrate.
Section 4 appears to have been made to lay further emphasis on the fact that only a
Magistrate of the first class could be entrusted with this work. It may be profitably
reproduced:-

"4. (1) In any district in the whole or any part of which all or any of the provisions of this
Regulation are for the time being in force, the Provincial Government may appoint any
Magistrate or Magistrates of the first class to be an Additional District Magistrate or
Additional District Magistrates, without any limit of time.

"(2) Every Additional Distirct Magistrate so appointed shall have all the-ordinary powers
of a District Magistrate specified in the fifth part of the third schedule to the Code of
Criminal Procedure, 1898.

"(3) When exercising any of the powers of a Deputy Commissioner under this
Regulation, an Additional District Magistrate shall be deemed, for the purposes of this
Regulation, to be the Deputy Commissioner.

"(4) Every Additional District Magistrate shall exercise his powers in subordination to the
District Magistrate, and in such cases or classes of cases, and within such local limits, as
the District Magistrate may, by order in writing, direct".

The object of subsection (1) is to appoint one or more Additional District Magistrates in
places where the Regulation is in force. Under subsection (2), their powers would be the
ordinary powers of a District Magistrate under the Code. The purpose of subsection (3) is
somewhat identical with the definition of "Deputy Commissioner" under section 2 (b):
the Additional District Magistrate, like the first class Magistrate, shall be deemed to be
Deputy Commissioner when exercising powers under the Regulation.

Section 4, particularly subsection (2) thereof, would be entirely unnecessary unless it was
intended to make it clear that an authority acting under the Regulation must be a
Magistrate. It would have been enough to define "Deputy Commissioner" as including
any Officer appointed to perform the functions of a Deputy Commissioner, but in that
case, and in the absence of section 4, such officer would not have the powers of a District
Magistrate under the Code of Criminal Procedure. It seems clear enough that these
powers were intended to be exercised if necessary.

Now we may read section 3 with some appreciation:-

"3. (1) The provisions of this Regulation shall take effect in cases to which they apply,
notwithstanding anything in any other enactment.

"(2) The powers conferred by his Regulation may be exercised in addition to any powers
conferred by or under any other enactment, and, where the contrary is not expressed or
implied other enactments in force in any place in which all or any of the provisions of
this Regulation are for the time being in force shall, so far as may be, apply to cases dealt
with in that place under this Regulation".
The important point to notice in subsection (2) is that "other enactments . . . . . . shall, so
far as may be, apply to cases dealt with . . . . . . under this Regulation". That is to say,
unless the contrary is expressed or implied in the Regulation, other enactments must be
applied, so far as they are applicable.

Now the Regulation has no procedure of its own, and where it adopts a procedure
contrary to the Code of Criminal Procedure, it expressly says so. The principal contrariety
lies in section 11, where it excludes all classes of Courts mentioned in the Code for the
purpose of "trying" the guilt or innocence of any person, and for this purpose the Council
of Elders may make any sort of inquiry. Next, there are variations in procedure for certain
specific purposes. Thus, by section 7, the provision of section 337 of the Code relating to
the tender of pardon to accomplices has been so altered as to apply to all offences. Under
section 38 (ii), wider powers have been given to private persons making arrest than have
been provided for in section 46 of the Code by making an addition thereto. Under section
47, the provisions of the Code relating to security for keeping the peace or for good
behavior and those relating to bonds have been so altered as to substitute the
Commissioner for the Sessions Judge and the High Court. Under section 50, the powers
of an appellate Court as provided in the Code have been conferred on the Commissioner.

There are only two places where the procedure provided by the Code has been expressly
adopted. The first is in section 13 (1), where the manner of enforcing sentences has been
indicated to be the same as provided by the Code. The second is in section 47 (2), where
the provisions of the Code relating to security proceedings and bonds "shall be applicable
to every proceeding under this chapter" except that the Commissioner replaces the
Sessions judge and the High Court. It is sometimes argued that the express adoption of
certain specific provisions of an enactment means that the enactment as a whole is not
applicable. But it may be argued with equal force that where-as in section 3-an enactment
has been I made applicable as a whole, except where the contrary intention appears, 'an
express application of some part of it may be merely intended to take the matter out of
the pale of doubt. So much is expressly applicable, and as regards the rest, it "shall" be
applicable "so far as may be".

Consequently, if there is any provision in the Code, apart from the mode of trial, which
can be applicable to a jirgah case, it shall be applied. If the Regulation says nothing about
the detention of prisoners during jirgah trials, we may look for guidance to the Code. It
should be clear that upto the stage of reference to the Council of Elders, the detention is
under the authority of a Magistrate. If the reference had been by the District Magistrate,
there would be no objection to detention, because the authority for detention would be
still that of a Magistrate. But the reference is made by the Deputy Commissioner, and the
objection is that the Deputy Commissioner is not a Magistrate when he makes the
reference. The objection does not seem so formidable now, after we have seen that the
scheme of the Code is to have a District Magistrate who must hold the chief executive
administration of the district and that the scheme of the Regulation is to have Additional
District Magistrate in plenty, in order that they should share with the Deputy
Commissioner the burden of the frontier crimes. Consequently, although it is the Deputy
Commissioner who refers the case to a Council of Elders, he does not, while doing so,
take off his magisterial functions as if these were a pair of trousers: He does not strip
himself of all other powers. He can exercise them when necessary. He even passes orders
of bail while the case is pending with the jirgah. He does not say to the prisoner when
referring his case "Because I am referring the case as a Deputy Commissioner, I am also
detaining you as a Deputy Commissioner".

The detention is, therefore, under the orders of a Magistrate and the question that remains
is whether, after reference to jirgah, any lawful authority still exists for detention. Apart
from other considerations, it would appear that such authority is inherent in the
Regulation. It is implied that the accused person will be under detention while the special
trial goes on, unless the Deputy Commissioner as District Magistrate releases him on
bail. So long as the Regulation is not an unlawful measure, detention for its purposes will
also not be unlawful, provided it has a lawful origin.

Under the Code, no person who is arrested shall remain in police custody for more than
twenty-four hours (section 61). During the investigation, the Magistrate may, from time
to time, remand him to custody for a period not longer than fifteen days (section 167),
and during the trial similar remands may be made for similar periods if the proceeding
cannot be completed for any reason (section 344). In a trial under the Code, therefore, the
prisoner must have an opportunity of seeing the Magistrate at least once a fortnight, and
since this may not necessarily happen in a jirgah trial, one begins to think that the custody
became unlawful on the sixteenth day following the reference. So far as Seventh Article
goes, all it says is that detention beyond twenty-four hours shall not be without the
authority of a Magistrate. It does not say at when intervals, if any, the authority should be
renewed. Since a jirgah trial is not a trial under the Code, the fortnightly remand custody
is not a compelling provision. What is the exact force of the provision in section 3 of the
Regulation that other enactments shall apply "so far as may be"? Can this particular
provision about remands apply when the accused may not appear at all before the Elders
except once? And the detention being under the authority of the District Magistrate, not
of the Elders, they cannot pass any order of remand.

We think it would be straining the language of sect if we made fortnightly remands a part
of the jirgah trial We, therefore, do not think Article 7 is infringed in this detail. We might
remark that so far as the present case goes, we have examined its file and have found that
invariably within fifteen days there have been periodical remand orders by a Magistrate,
often the District Magistrate himself, in the manner of an ordinary trial. In a separate
note, the District Magistrate of Quetta has informed us that this is invariably the practice
in all jirgah trials. If this had been the practice, we would be inclined to lay emphasis,
without issuing any direction on the desirability of adopting the procedure of section 344,
Criminal P. C., so that the prisoner has opportunity at least once a fortnight to appear
before the District Magistrate or any other Magistrate and bring his grievances, if any, to
that officer's notice.

Except that we issue a direction that no evidence shall be heard or recorded against the
accused before they have opportunity to defend themselves by a pleader, we dismiss this
petition. The parties will bear their own costs.
A. H. Petition dismissed.
P L D 1963 Dacca 896
Before Hassan, J

RAM DASI PAL-----Appellant

versus

SUREBALA DASYA AND OTHERS-----Respondents

Appeal from Appellate Decree No. 904 of 1959, decided on 9th May 1962.

Hindu Law-Adoption-Inheritance-Widow's power to adopt may or may not be


exercised-Non-exercise of right-No question of divesting or vesting of property-Adoption
may result in divesting of property-Objects-To secure, spiritual benefits and an heir to
perpetuate adoptor's name-Property vested in widow or her mother, divested subject to
valid transfer but no effect on properties already vested in deities-Right to shebaitship
inheritable like other secular properties if adopted son predeceased adoptive mother
Creation of successive life-interest, valid.

Upendra Kumar Roy with D. C. Bhattacharjee for Appellant.

A. F. M. Mesbahuddin for Respondents Nos. 1, 3 and 4.

T. H. Khan for Respondents 2, 2 (ka) to 2 (kha).

JUDGMENT
Respondent No. 1 Surebala Dasya instituted a suit out of which the present appeal has
arisen for declaration of her right of Shebaitship to the properties described in the
schedules of the plaint with a consequential relief for injunction.

2. The facts necessary for disposal of the suit are as follows: ---The properties in dispute
originally belonged to one Paju Pal. He adopted a son namely Brindaban and gave him in
marriage to one Jamini Sundari. The adopted son Brindaban predeceased Paju Pal leaving
behind Jamini Sundari and a daughter Surebala who is the plaintiff in the present suit. His
death took place on the 20th of May 1912. Thereafter on the 14th of July 1912,
corresponding to 30th Ashar, 1319, B. S. Paju executed and registered a Will which has
been marked as Exh. 1 in the case. On the same date he executed an Arpannama (Exh. 2)
dedicating some of his properties to the deities Lakshmi Narayan and Gupalji, Shortly
after Paju Pal died on the 20th of July 1912. On 8th of July 1920 corresponding to 24th
Ashar. 1327 B. S. Jamini Sundari the widow of Brindaban adopted Brajaraj on the basis
of a power delegated to her by her husband Brindaban, Thereafter in March/April 1925
corresponding to Chaitra, 1331 B. S. Hara Sundari the widow of Paju Pal died. In May
1943 corresponding to Jaistba, 1350 B. S. the adopted son of Brindaban dies childless
leaving behind a widow Ramdasi who is the defendant No. 1 in the present case. In 1955
Ram Dasi the widow of Brajaraj instituted Title Suit No. 13 of 1945 for her maintenance
against Jamini Sundari, the widow of Brindaban and mother-in-law of Ram Dasi, but the
suit was dismissed with an observation amongst others that Ram Dasi was the owner of
the properties. In 1950 Ram Dasi the defendant No. 1 instituted Title Suit No. 14 of 1950
against Jamini and the deities and obtained an ex parte decree. Thereafter Jamini died on
17th of December 1950, corresponding to 12th Pous, 1357 B. S. The plaintiff in the
present suit filed an application under Order IX, rule 13 in Title Suit No. 14 of 1950 but
the same was dismissed. It appears that Ram Dasi the plaintiff of Title Suit No. 14 of
1950 and defendant No. 1 in this suit took delivery through Court on 19th of January
1951. But it has been found by the Courts below that she could not get possession
through the peon's report was to that effect. It appears that she filed an application after
the delivery of 19th of January 1951, for second execution and delivery alleging inter alia
that the decree-holder, namely the defendant No. 1 was not put in and could not get
possession, but her application was dismissed. Thereafter on the 2nd of December 1953,
Surebala, the plaintiff of this suit instituted the suit for declaration of Shebaitship and
injunction. The suit was contested by the defendant No. 1 Ram Dasi alleging inter alia
that the plaintiff was not the Shebait of the properties of the Dieties but Ram Dasi was the
Shebait, that the plaintiff's suit in respect to Schedule I property which was gifted to her
husband Brajaraj by her father-in-law Paju Pal devolved on her on the death of Brajaraj
and as such the said properties were neither Debuttar properties nor the plaintiff had any
right in those properties, that he claim that the properties were Debettar were barred by
the principle of res judicata in view of the decision in Title Suit No. 14 of 1950, that the
plaintiff was not the Shebait of the Deities but it was Ram Dasi and that the suit was
barred by limitation and bad for defect of parties.

3. The added defendant, purchaser from defendant No. 1 filed written statement and
supported defendant No. 1.

4. On these pleadings seven issues were raised and tried. The learned Munsif who tried
the suit dismissed the suit holding that the suit was not maintainable as the same was
barred by the principle of res judicata in view of the decision in Title Suit No. 14 of 1950,
though he found that the suit was not barred in view of the provisions of section 42 of the
Specific Relief Act, that the suit was not barred for defect of parties, that under the will
and the Arpannama Brajaraj did not inherit any property nor became the Shebait and
consequently Ram Dasi could not acquire any right in the properties either in her personal
right or as a Shebait. On appeal by the plaintiff the learned Subordinate Judge accepted
all the findings arrived at by the learned Munsif excepting that on the question of res
judicata. In his opinion the suit was not barred by the principle of res judicata and in this
view of the matter he decreed the suit. Hence the present appeal at the instance of the
defendant Ram Dasi.

5. In the present appeal three main questions are involved one is the applicability of the
principle of res judicata and two others in respect of interpretation of the Will which has
been marked as Exh. 1 executed by Paju Pal and Arpannama which has been marked as
Exh. 2 in this case. I have already stated that on the question of applicability of res
judicata two Courts below came to a different finding but as to the interpretation of Exh.
1 and Exh. 2 they were of the same opinion.

6. Mr. Roy, the learned Advocate for the appellant, has pressed the following points: ---

(1) That the Court below erred in law in holding that Brajaraj did not and could not
inherit on a wrong principle of Hindu Law as under the Hindu Law an adopted son is
presumed to be born in the family at the death of the testator or the adoptive father;

(2) That on the very terms of the Arpannama Surebala the plaintiff cannot claim
Shebaitship;

(a) that the Arpannama (Exh. 2) gives a line of devolution of Shebaitship which is against
the ordinary Hindu Law of inheritance;

(b) and that Shebaitship is the property and is governed by the law of inheritance ;

(3) That the present suit is barred by res judicata in view of the decision in Title Suit No.
14 of 1950.

7. I propose to deal with the question of res judicata, first question of res judicata arises in
the following way:

I find from the plaint (Exh. 7) of Title Suit No. 14 of 1950 that the defendant Ram Dasi
instituted Title Suit No. 13 of 1945 for her maintenance against Jamini Sundari, the
second executive which was dismissed on the ground that the suit was misconceived and
that Ram Dasi was the owner of schedule Ka properties and Shebait of Schedule Kha
properties. The relevant portion of the plaint along with the paper application n Title Suit
No. 14 of 1950 runs as follows:

In pursuance of the above-mentioned judgment and decree the plaintiff has become the
owner and possessor of the properties mentioned in Schedule ka according to the
provisions of Hindu Law. The plaintiff having been the legally full owner, the learned
Court has dismissed her claim for maintenance charges holding it inadmissible in law.

Moreover it does not appear that the decree and judgment, the pleadings and issue of Title
Suit (No. 13) of 1945 have been filed in this case and marked as exhibits. So, it cannot be
said hat the present suit is barred by res judicata in view of the decision in Title Suit (No.
13) of 1945. The issues in the present suit were not apparently the issue in that suit, nor
has it been contended by (Mr. Roy) that the present suit is barred by res judicata in view
of the decision in that suit.

8. Now coming to the Title Suit No. 14 of 1950, which was originally Pauper Suit No. 34
of 1948, I find a prayer for delivery of khas possession after declaration of the plaintiff's
title in the properties left by Paju Pal and for determination that the plaintiff was the
Shebait of the Debuttar properties for delivery of possession after removing the defendant
of that suit there from and for accounts against the defendant. I do not find any
documentary evidence from the records to show that the summons of that suit was served
on the defendant Jamini Sundari, rather I find that the decree was passed ex parte. It is
contended by Mr. Roy that Ram Dasi at first filed a pauper application in 1948 which was
contested by Jamini Sundari and as such Ram Dasi's prayers to file a pauper suit was
refused. No documentary evidence is available in support of the contention of Mr. Roy. It
further appears that the suit was decreed ex parte on 5th of October 1950 and lamini
Sundari died on 17th of December 1950, that is about two months after the ex parte
decree.

9. Be that as it may, I am to see whether the issues raised in the present case had been
raised there and finally decided by the Court. From the prayer portion as stated above I
find that the plaintiff Ram Dasi of Title Suit No. 14 of 1950 did not make any prayer for
declaration that schedule (Ka) properties were not Debuttar but Secular properties of Paju
Pal and as such the Deities nor the Shebait were called upon to meet that allegation. Only
prayer was that Jamini was to be removed from her capacity as executrix and Ram Dasi's
title be declared and khas possession be given to her. The second prayer was for removal
of Jamini Sundari from the Shebaitship on various allegations and appointment of Ram
Dasi as Shebait and the third prayer was for account from Jamini Sundari.

10. The question whether schedule (Ka) properties were Debuttar properties or secular
properties of Paju Pal was not directly or substantially in issue in that suit nor does it
appear from the ex parte decree Exh. C (2) and there order dated the 5th of October 1950,
that Exhs. 1 and 2 were under consideration of that Court. The interpretation of those two
documents involves a complicated question of Hindu Law. Furthermore, from the plaint
(Exh. 7) it appears that Ram Dasi's claim was based on the decision in Title Suit No. 13
of 1945 and it appears that the Court which decreed the Title Suit No. 14 of 1950
accepted that plea as correct. The suit was decreed ex parte and it was ordered that the
plaintiff's case was proved, this far and no farther. So, it appears that whether the
schedule (Ka) properties are Debuttar or not were not finally adjudicated between the
parties. Furthermore, the plaintiff is not claiming by inheritance from Jamini Sundari but
she is claiming her right, title and interest on the basis of Exhs. 1 and 2. She was not a
party in Title Suit No. 14 of 1950, and as such it cannot be said that the present suit is
barred by res judicata in view of the decision in Title Suit No. 14 of 1950. My
observation that Exhs. 1 and 2 were not considered is also supported by the ex parte
decree directing rendering accounts in violation of the provision in Exh. 2 that none of
the Shebaits named by the testator was accountable to anybody for the income and
expenditure.

11. Mr. Roy, the learned Advocate for the appellant, has contended that it appears from
the records that the present plaintiff Surebala filed an application for substitution and for
setting aside the ex parte decree under Order IX, rule 13 of the Code of Civil Procedure
on 6th of January 1951, (vide Exh. C (2). From Exh. D (2), order passed in Miscellaneous
Case No. 86 of 1950 dated 12th of January 1951, allowing her petition for substitution it
appears that summons was directed to be issued and served on the opposite-party. It does
not appear from the records what happened to her prayer for setting aside the ex parte
decree. Mr, Roy contends that the plaintiff's prayer for setting aside the ex parte decree
passed in Title Suit No. 14 of 1950 was dismissed. Relying on this dismissal Mr. Roy
contends that as she got herself substituted and her application for setting aside the ex
parse decree was dismissed her present suit is barred by res judicata. I find no substance
in this contention of Mr. Roy. In her application for substitution and for setting aside ex
parte decree the issues involved in the present suit were not called upon to be raised and
decided and as such no question of bar of res judicata arises.

12. It has been contended by Mr. Mesbahuddin the learned Advocate for the respondents
that Deities is a minor and that in view of the allegation in the plaint Exh. 7 by Ram Dasi
that Jamini Sundari was not fit to be Shebait, rather she was dishonestly misappropriating
the properties of the Deities and removing the Deities from the place, the Deities were not
properly represented and as such any decree passed against the Deities to such
circumstances was nothing but a void one and not binding on the Deities and no question
of `res judicata' arises. For this proposition of law he has relied on the cases of
Subramania Aiyar and others v. Srila Sri Vaithinga Pundara Sunnadhi (133 I C 207);
Ponnuswami Pillaf and others v. Subramania Pillai and others (53 I C 412) and the case
of Mahesh Chandra Bayan v. Manindra Nath Das and others (45 C W N 508). On the
other hand, Mr. Roy the learned Advocate for the appellant, has relied on the cases of
Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy (481 A 49); Gora Chand Lurki v.
Makhan Lal Chakravarty and others (11 C W N 489); Nagendra Nath Mukerjee and
others v. Probal Chandra Mukharjee and another (17 C W N 964); Modhusudun Shaha
Mundul and others v. Brae (I L R 16 Cal. 300 (F B)); Viathialings Mudaliar and others v.
Srirangath Anni and others (30 C W N 313 (P C)); Lilabati Misrain v. Bishun Chobey and
others (6 C L J 621) and the case of Prosunno Kumari Debya and another v. Golab Chand
Baboo (2 I A 145).

13. As regards the cases relied on by Mr. Mesbahuddin, I do not intend to express any
opinion as I have already held that the present suit is not barred by res judicata. As
regards the cases relied on by Mr. Roy, it may be pointed out that most of the cases are in
respect of application of `res judicata' in ex parte decrees. But I have already held that the
decision in Title Suit No. 14 of 1950 does not operate as a bar to the present suit. Hence I
find no substance in the contention of Mr. Roy on the question of res judicata.

14. Then I take up the grounds on the Debuttar properties which have been described in
schedule (Kha) of the plaint and are subject-matter of Exh. 2 Arpannama executed by
Paju Pal on the 14th of July 1912. There is no dispute that the schedule (Kha) properties
are Debuttar. Only dispute is as to who will be the Shebait under the Arpannama of Paju
Pal. The Courts below were of opinion that the plaintiff is the present Shebait under the
Arpannama. Mr. Roy contends that Shebaitship devolved on Brajaraj, husband of the
defendant No. 1 Ram Dasi Pal and on his death it vested in the defendant No. 1 Ram Dasi
Pal as Shebaitship is inheritable under the Hindu Law like other secular properties. For
this proposition of law he has relied on the case of Monohar Mukerji v. Bhupendra Nath
Mukerji (I L R 60 Cal. 452 (F B)); Ganesh Chunder Dhur v. Lal Behari Dhur and others
(63 I A 448); Lala Gowri Sunkar Lal and others v. Janki Pershad and others (17 I A 57);
and the case of Kandarpa Mohan Gossain v. Akhoy Chandra Bose and another (58 C L J
445).

15. It has not been contended by Mr. Mesbahuddin that Shebaitship is not property and
not inheritable and I do not find any reason to differ from but the authorities relied on by
Mr. Roy shall not alone determine the question but the provisions of Exh. 2 shall have to
be looked into and considered.

16. From Exh. 2 I find that Paju Pal appointed himself as the first Shebait of the Debuttar
properties and after him two other persons, namely, his widow Hara Sundari Dasya and
the widow of his predeceased adopted son Brindaban who were to be Shebait
successively one after another for their life and thereafter a son, who may be adopted by
Jamini the widow of Brindaban on the authority given to her by her husband with the
rider." namely down; to his male heirs. Paju had been the Shebait only for about 13 days
as he died on the 27th of July 1912 and Hara Sundari Paju Pal's widow became the
second Shebait. Jamini Sundari did not adopt Brajaraj during the life-time of Paju Pal but
adopted Brajaraj about 8 years after the death of Paju Pal's Brajaraj was adopted on 8th of
July 1920. Thereafter Hara Sundari died on March/April 1915 and Jamini Sundari
became the third Shebait. Brajaraj predeceased his adopted mother Jamini as Brajaraj
died in May 1943 and Jamini Sundari Dasya died on 17th of December 1950.

17. Now the question is whether Brajaraj could have inherited Shebaitship though
Brajaraj predeceased the third executrix. According to the Arapannama (Exh. 2) the right
of Shebait did not and could not have vested in Brajaraj before the death of Jamini as the
legacy did not become payable before the death of Jamini. Consequently, the defendant
Ram Dasi could not have inherited anything from her husband Brajaraj

18. Mr. Roy contends that more than one life-interest cannot be treated under the Hindu
Ldw and as Brajaraj was alive at the death of Paju Pal by fiction of law and at the death
of Hara Sundari Shebaitship vested in Brajaraj though he was adopted on 8th of July
1920. No authority has been cited nor any provision of law has been shown to me in
support of first part of the said contention but it has been contended that once Brajaraj
was adopted he was deemed to be alive at the death of his adoptive father, namely,
Brindadan and consequently at the time of death of Paju Pal and as such the Shebaitship
vested in Brajaraj and after him his widow Ram Dasi inherited. I have already stated that
according to the provisions of Exh. 2 no right could have vested in Brajaraj before the
death of Jamini Sundari on 17th of December 1950, and as he pre-deceased her by about
more than 7 years Brajaraj did not obtain the legacy as contended by Mr. Roy. So the
claim of Ram Dasi is not maintainable.

19. As to the contention of Mr. Roy that life-estate for more than one cannot be created, I
find it untenable. Under the Hindu Law a Hindu may create a life interest or successive
life-estates (see section 38 of the Mulla's Hindu Law, 11th edition and the case of Tagore
v. Tagore (I A Sup. Vol. 47) and the case of Turokessur Roy v. Soshi Shikhuressur Roy (I
L R 9 Cal. 952 corr. to I A 51).
20. In the latter case it was held by their Lordships of the Privy Council:

"the gift over was to persons alive, and capable of taking on the death of the
testator, to take effect on the death of a person or person also then alive, and was
competent, according to the authority of Sremutly Soorjeemonee Dossee v.
Denobundhoo Mulick as explained in the Tagore case. For that reason above
given it could/only confer as estate for life."

21. Accordingly I hold that creation of successive life estates in favour of Paju Pal, Hara
Sundari and Jamini Dasy was valid and that Brajaraj did not inherit Shebaitship on the
death of Paju Pal or Hara Sundari. He could have inherited after the death of his adopted
mother but as he died before her and before the inheritance open neither he nor his widow
Rata Dasi did inherit Shebaitship.

22. Now the question is whether the plaintiff took Shebaitship. I have already referred to
the provisions in the Arpannama (Exh. 2), which provides for appointment of Shebait.
The further relevant portion of the Arpannama for determination of the plaintiff's right is
as follows: ---

"If the said Jamini Sundari Dasya does not adopt any son or dies before the
adoption then Sremati Surebala Dasya daughter of my said adopted son
Brindaban Chandra Pal and in her absence her children and grand-children will
perform the worship and service of the said Deities with the income of the said
properties as Shebait."

23. Referring to the aforesaid provision in the Arpannama 'Exh, 2) it is contended by Mr.
Roy that as Jamini Sundari adopted Brajaraj her daughter Surebala could not inherit
Shebaitship and as such it reverted back to the heirs of Paju Pal. It appears that in any
case, widow of a grand son is not an heir of the grand-father-in-law in the Hindu Law
(Dayabhaga) but a son's daughter's son may be an heir. After going through this
document, I am inclined to hold that the intention of the was that in case there was no
adoption as aforesaid or in case the adopted son died childless then Shebaitship will
devolve on his grand-daughter Surebala and her children and grand-children downward.
This view of mine finds support from paragraph 6 of Exh. 1, the will where it has been
provided that if the testator's daughter-in-law one of the executrix does not adopt or the
adopted son died childless the secular properties of Paju Pal will devolve on the deities
and the widow of the adopted child will get maintenance out of the income of the said
properties. Relying on this provision the defendant No. 1 and Ram Dasi Pal instituted the
aforesaid Title Suit No. 13 of 1945 for maintenance but the same was dismissed. Hence I
hold that on the death of Jamini Sundari Shebaitship devolved on Surebala who was alive
at the death of Paju Pal and was capable of taking on the death.

24. As regards the contention of Mr. Roy that by this Arpannama a new line of succession
in violation of the Hindu Law has been created, I do not find any substance because
Shebaitship did not vest in Brajaraj but it vested in the plaintiff as Brajaraj died before he
could have obtained right of Shebaitship.
25. The other question on the effect of adoption on inheritance does not arise in this
connection in view of the aforesaid decision by me on devolution of Shebaitship.
However this question will be dealt with below in another connection.

26. By para. 3 of Exh. 1, will of Paju Pal, it has been provided that in the absence of the
testator Paju Pal all his immovable properties will devolve absolutely on the adopted son
to be adopted by Jamini Sundari Dasya widow of his adopted on Brindaban in accordance
with the permission given to her by his adopted son Brindaban.

27. By para. 4 Hara Sundari Dasya widow of the testator and Jamini Sundri Dasya were
appointed executrix to continue as such till the son to be adopted as stated above attained
the age of 18.

28. By para. 6 it has been provided that if the testator's daughter-in-law Jamini dies
before adoption or if she adopts a son but he dies before marriage or if the adopted son
marries but dies childless in that case the properties will devolve on the deities placed by
him.

29. I have already noted that Brindaban the adopted son of Paju Pal died on 20-5-1912,
that after the death of his son Brtndaban Exhs. 1 and 2 were executed by Paju Pal on
14-7-1912 that shortly thereafter the testator died on 27-7-1912 and that Brajaraj husband
of the defendant was not adopted by Jamini Sundari during the life-time of the testator
but on 8-7-1920, that is about 8 years after the death of the testator.

30. Now the question is whether vesting of right in the deities could be kept in obeyance
for indefinite time and whether Brajaraj inherited the secular properties of Paju Pal by
virtue of Exh. 1. This calls for a consideration of some of the provisions of the
Succession Act and that of Hindu Law.

31. According to section 124 of the Succession Act which provides:

"Where a legacy is given if a specified uncertain event shall happen and no time is
mentioned in the will for the occurrence of that event, the legacy cannot take
effect, unless such event happens before the period when the fund bequeathed is
payable or distributable."

Brajaraj could not have taken the legacy as no time was mentioned in the will for the
occurrence of the uncertain event, namely adoption of Brajaraj by Jamini Sundari and as
the same did not happen during the life time of Paju Pal the testator but happened about 8
years after the death of the testator and accordingly in view of the provisions of section
181 of the Succession Act, which is as follows:

"(1) A bequest may be made to any person with the condition superadded that in
case a specified uncertain event shall happen, the thing bequeathed shall go to
another person, or that in case a specified uncertain event shall not happen, the
thing bequeathed shall go over to another person."
the legacy went to the deities.

32. To meet this Mr. Roy the learned Advocate for the appellant has contended that
though in view of the aforesaid provisions Brajaraj could not have taken the bequest on
the facts found but in view of the provision of Hindu Law the moment Brajaraj was
adopted by Jamini Sundari, Brajaraj will be considered as to have been adopted during
the life-time of Brindaban and alive then and on the death of Paju Pal the testator and as
such the said Brajaraj took the legacy under the Will and the second bequest, that is the
gift over to the deities failed. For this proposition of law he has relied on the cases of
Pratapsing Shivoing and another v. Asarsingji Raisingji (46 I A 97); Bobu Anoji and
another v. Ratnoji Krishnara (I L R 21 Bom. 319); Kidson v. Marasdan (2 C D (1912)
335). In Rcparry and Daggs reported in (1886) 31 C D 130 and the case of Suresh
Chandra Palit and another v. Lalit Mohan Dutta (20 C W N 463).

Now let us see whether the above contention sound.

33. We get the following passages at page 250 of the Mayne's Hindu Law and Usage,
seventh Edition.

"But the decision itself, coupled with the other cases cited, seems to lead to the
following conclusion : First, where an adoption is made to be last male-holder, the
adopted son will divest the estate of any person, whose title would have been
inferior to his, if had been adopted prior to the death. Secondly, where the
adoption is not made to the last male-holder, but is made by the widow of any
previous holder, it will, if in other respect vaiid, divest her estate. Thirdly, under
no other circumstances will an adoption made to one person divest the estate of
any one who has taken that estate as heir of another person. All these rules seem
to be consistent with natural justice."

34. The following passages at page 20 of Mulla's Hindu Law, 11th Edition, is relevant:

"On the death of a Hindu, the person who is then his nearest heir becomes entitled
at once to the property left by him. The right of succession vests in him
immediately on the death of the owner of the property. It cannot under any
circumstances remain in abeyance in expectation of the birth of a preferable heir,
where such heir was not conceived at the time of the owner's death."

Where the estate of a Hindu has vested in a person who is his nearest heir at the
time of his death, it cannot be divested except either by the birth of a preferable
heir such as a son or a daughter, who was conceived at the time of his death, or by
adoption in certain case of a son to the deceased."

At page 574: "Generally:-( A I R 1954 S C 379) A widow's power to adopt continues all
her life-time-

(i) in all cases where her husband has died without leaving any son
(ii) in cases where her husband has left a son, if the son dies leaving her (his
mother) as his nearest heir.

In the first case, the widow succeeds to the estate as her husband's heir in the second case,
she succeeds to the estate as the heir of her son (i.e. as his mother). In either case, the
estate vests in her, in the one case immediately on the death of her husband, in the other
case, immediately on the death of her son.

By adoption she divests no estate except her own. But vesting or divesting is no
longer of importance."

At page 601:

"The question then arises whether the adopted son is entitled to the estate of his adoptive
father in whose so ever's hands it may be at the date of adoption. The answer is in the
negative, he is entitled to it in certain cases only these being the cases set forth in section
502 below."

At page 602:

"Divesting of estate of inheritance.-Where a widow adopts, one of the objects of adoption


is to perpetuate the adoptive father's name by securing an heir. It now remains to be seen
how far this object is attained.

In the cases mentioned in section 471 (1) the adoption is valid. The widow divest herself
and the adopted son gets the property.

In the cases mentioned in section 471 (2) (a) the adoption is invalid. No question of
divesting the estate arises.

But a valid adoption does not divest the estate of 'a person other than the adoptive father
which had passed to his heir prior to his adoption, even if the adopted son might have
succeeded to it if the adoption had been made earlier, (i.e.) prior to the opening of the
succession."

In the case of Srivivas Krishaarao Kango v. Narayan Devji Kango and others (1) we find
the following passage at page 385 of the report, which was quoted with approval.

In 1888 Golapchandra Sastri observed in his Tagore Law Lectures on the Law of
Adoption:

As regards collateral succession opening before adoption it has been held that an
adoption cannot relate back to they death of the adoptive father so as to entitle the
adopted son to claim the estate of a collateral relation, succession to which opened
before his adoption.
(Vide pages 413 and 414). "The law was thus well-settled that when succession to the
properties of person other than an adoptive father m as involved, the principle applicable
was not the rule of relation back but the rule that inheritance once vested could not be
divested."

The relevant portion of paragraph 17 as to the said right runs as follows:

"Thus far, the scope of the principle of relation back is clear. It applies only when the
claim made by the adopted s:)n relates to the estate of his adoptive father. This estate may
be definite and ascertained as when he is the sole and absolute owner of the properties, or
it may be fluctuating as when he is a member of a joint Hindu family, in which the
interest of the co-partners is liable to increase by death or decrease by birth. In either
case, it is the interest of the adoptive father which the adopted son is declared entitled to
take as on the date of his death. The point for determination now is whether this doctrine
of relation back can be applied when the claim made by the adopted son relates not to the
estate of his adoptive father but a collateral. The theory on which this doctrine is based is
that there should be no hiatus in the continuity of the line of the adoptive father. That, by
its very nature, can apply only to him and not to his collaterals."

Page 25:

"It is not in consonance with the principle well-established in Indian Jurisprudence that
an inheritance could not be in abeyance, and that the relation back to the right of an
adopted son is only `quoad' the estate of the adoptive father. Moreover, the law as laid
down therein leads to results which are highly, inconvenient. When an adoption is made
by a widow of either a co-partner or a separated member, then the right of the adopted
son to claim properties as on the date of the death of the adoptive father by reason of the
theory of relation back is subject to the limitation that alienations made prior to the date
of adoption are binding on him, if they were for purpose, binding on the estate. Thus,
transferees from limited owners, whether they be widows or co-parceners in a joint
family, are amply protected. But no such safeguard exists in respect of property inherited
from a collateral, because if the adopted son is entitled to the theory of relation back to
divest that property, the position of the means holder would be that of an owner
possessing a title defeasible on adoption, and the result of such adoption must be to
extinguish that title and that of all persons claiming under him. The alienees from his
would have no protection, as there could be no question of supporting the alienations of
the ground of necessity or benefit. And if the adoption takes place long after the
succession to the collateral had opened in this case is was 41 years, thereafter and the
property might have meanwhile changed hands several times, the title of the purchasers
would be liable to be disturbed quite a long time after the alienations. We must hesitate to
subscribe to a view of the law which leads to consequences so inconvenient. The claim of
the appellant to divest a vested estate rests on a legal fiction, and legal fictions should not
be extended so as to lead to unjust result."

35. From the authorities on Hindu Law it appears to me that when a widow is empowered
to adopt a son, she cannot be) compelled to act upon it unless she likes. Consequently
vesting of inheritance cannot be suspended until she exercises her right in adoption.
Furthermore this right she may exercise or may not exercise. If she does not exercise the
right, there is no divesting or vesting of any property in any way but trouble arises when
she chooses to exercise that right and adopt. It further appears that authorities did not
extend the theory of birth by fiction of law 'to inheritance and divesting of property
already vested in another person. Rather in certain cases, namely, in the case of adoption
by the widow herself it has been held that the adoption being her own action and out of
her volition, she can be divested. From the authorities on the Hindu Law, it further
appears that the objects of adoption are two-fold one to secure spiritual benefit to the
adopter and his ancestors and another secular, to secure an heir and perpetuate the
adopter's name. By legal fiction, the adopted son is to be born on the date of the death of
the adoptive father but there are divergent views on the effect on inheritance by adoption
etc. From the authorities quoted above, it is clear that the fiction of law on the question of
birth or adoption should not be extended equally on the question of devolution and divest
of properties and spiritual benefit by continuing the life, as the claim of the adopted son
to divest a vested estate rests on a legal fiction and if the legal fictions be extended, it will
lead to unjust results which should not be allowed that question of divesting of the estate
of any person will not arise when the adoption is not made to the last male-holder ; that in
case of adoption by the widow or widow's mother it will divest them when the properties
are already vested in them subject to valid transfer ; that in no other circumstances will
and adoption made to one person divest the estate of any one who has taken that estate as
heir of another person.

36. In the present case before me after the death of Paju Pal, the properties described in
(Ka) schedule vested absolutely in the deities as there was no adoption during the life
time of the testator, namely, when the succession opened but the adoption was 8 years
thereafter. The deities had the right, properties being vested in them to deal with the
properties in any way without interference of any person outside. Then again the adoption
was not to the last male holder, namely, Paju Pal but it was to his predecessor son
Brindaban. So in any way according to the authorities cited there can be no divesting of
the properties already vested in the deities. To accept the theory of birth by fiction on the
death of the testator as in the present case and inheritance Will offend the rules against
perpetuity, equity and natural justice. Furthermore, by adoption by Jamini in the present
case, she was not divesting herself of her property as it did not vest in her. But she was
trying to divest the deity, third party, which is against natural justice and furthermore
power to adopt was not given by Paju Pal to her but it was given by Brindaban, the
husband of Jamini who died on the 20th May 1912, whereas adoption took place in 1920.
For the aforesaid reasons, I am of opinion that on the death of Paju Pal the property
described in schedule I vested in the deities and on adoption by Brajaraj by Jamini's 81
years after the death of Paju Pal did not divest the deities of the properties already vested
in it. Similarly Shebaitship also vested in Surebala Dasya, the plaintiff.

37. Mr. T. H. Khan, the learned Advocate for the defendant Nos. 2 Ka to Kha purchasers
from Ram Dasi pressed some points but as there is no cross-objection filed by him, his
contention cannot be considered. His fate will be determined by the fate of the defendant
No. 1.
38. The appeal is accordingly dismissed with costs to the plaintiff -respondent.

Leave to appeal under Clause 15 of the Letters Patent prayed for is granted.

S. B./A. H.

Appeal dismissed.
P L D 1963 Supreme Court 127

Present : A. R. Cornelius, C. J., Fazle-Akbar and B.Z.


Kaikaus, JJ

PERUMAL-Appellant

versus

THE CENTRAL GOVERNMENT OF PAKISTAN-----


Respondent

Civil Appeal No. 63 of 1961, decided on 29th November 1962.

(On appeal from the judgment and order of the Evacuee Property
Inquiries Tribunal, Karachi, dated the 20th July 1960, in
Reference No. 26 of 1960.)

(a) Pakistan (Administration of Evacuee Property) Act (XII


of 1957) S. 43-A read with S. 22-Reference to Tribunal
competent even if non-evacuee character of property was
declared by Custodian on an application under S. 22, which
owner of such property was obliged to make on account of some
illegal action of Rehabilitation Authority.

(b) Pakistan (Administration of Evacuee Property) Act (XII


of 1957), S. 43-A(2)-Does not contemplate successive
declarations in respect of property of same person except where
change of status has occurred after earlier declaration - Later
declaration made after 1-1-1953 will not thereby become a case
which could be referred to Tribunal.

(c) Pakistan (Administration of Evacuee Property) Act (XII


of 1957), Ss. 43-A & 43-B-Scope and meaning.

(d) Hindu Law-Adoption-General incidents of.

(e) Hindu Law-Joint family property-Property purchased with


income of joint property forms part of such property.

(f) Hindu Law-Joint family-Partition-Wife cannot ask for, but


shares in, partition.
Abdus Sattar Pirzada Senior Advocate Supreme Court with G.
H. Abbasi Advocate Supreme Court instructed by Muhammad
Ali Sayed Attorney for Appellant.

Tufail Ali A. Rahman Attorney-General for Pakistan with


Fakhruddin Ibrahim Advocate Supreme Court instructed by
Shafiq Ahmad Attorney for Respondent.

Dates of hearing: 27th and 29th of November 1962.

JUDGMENT
B. Z. KAIKAUS, J.--- This is an appeal by special leave against
an order of the Inquiry Tribunal appointed under section 43-A of
the Administration of Evacuee Property Act. By an order dated
the 5th April 1958, Mr. Rabat Hussain, an Assistant Custodian of
Evacuee Property, Nawab Shah, had on an application by
Perumal the appellant before us, granted to him the following
declarations: -

(i) That be and his three sons Motimal, Ishu Kumar and Sridhar,
his daughter Nirmla Devi and his wife Sami Bai who constituted
a joint Hindu family were all non-evacuees;

(ii) That 67 acres out of agricultural land and two open plots and
two houses were the ancestral properties of this joint family;

(iii) That the remaining property mentioned in the list attached to


the application was the self-acquired property of Perumal and

(iv) That the fourth son of Perumal i.e., Teju Ram bad passed out
of the joint family having been adopted by Gopaldas brother of
Perumal and had no longer any interest in the property of this
joint family.

Against this order of the Assistant Custodian the Central


Government made a reference under section 43-A of the
Administration of Evacuee Property Act claiming that Perumal
and his brothers as well as their descendants formed a joint
Hindu family which owned a large amount of property including
that which was claimed by Perumal as his self-acquisition or as
the property of the joint Hindu family of which he was the Karla
and father. The Tribunal appointed under section 43-A of the
Administration of Evacuee Property Ordinance came to the
following conclusions
(a) that there bad been a partition amongst Tejumal and his
brothers in 1939 by means of a registered deed and that hence-
forth Perumal and his sons, his daughter and his wife constituted
a joint Hindu family by themselves

(b) that 113 acres (and not 67 acres as stated by the Assistant
Custodian) of agricultural land as well as urban immovable
property consisting of shops, store houses, plots of lands and
buildings had fallen to the', share of this joint family in

(c) that even the property which was claimed by Perumal as his
self-acquisition belonged to this joint Hindu family; and

(d) that Tejumal was an evacuee and he was a son of Perumal


and had not been adopted by Gopaldas.

It would be observed that this order is in favour of the appellant


except that it holds the whole of the property in dispute to be
joint family property and it does not accept that Tejumal was
adopted by Gopaldas but finds that he is still a member of this
joint family and is entitled to a share in the property of this joint
family. This appeal is, therefore, confined to the right which
Tejumal may have in the properties in dispute and the argument
on the merits will be limited to two points-

(i) whether Tejumal was adopted by Gopaldas (it being conceded


that he is an evacuee); and

(ii) whether any part of the property in dispute is the self


acquired property of the appellant.

Learned counsel for the appellant has in the first place


challenged the jurisdiction of the Tribunal to bold that any part
of the property in dispute is evacuee property. In order that this
contention may be appreciated it is necessary to state some facts.
In 1949 the name of the appellant was included in the list of
evacuees maintained by the Rehabilitation Department and on
the 14th of October 1949, the Rehabilitation Commissioner
declared the lands and other properties belonging to the
appellant to be evacuee properties and available for allotment.
Against this order of the Rehabilitation Commissioner the
appellant filed an appeal before Mr. Akbar Hussain, Custodian of
Evacuee Property. On the 8th of February 1950, Mr. Akbar
Hussain, recorded the statement of the appellant. In this
statement the appellant claimed that he had been living in
Pakistan throughout and that an area between 450 and 470 acres
of land was his self-acquired property. On the basis of this
statement, on the 9th of February 1950, Mr. Akbar Hussain,
passed an order the whole of which is reproduced below: -

"Perumal son of Hemraj has been living in Pakistan. His


wife and minor children are said to have gone to Jodhpur
for condolence on the occasion of the death of Perumal's
mother who was separate from him. He has obtained a
permit to go and fetch them.
I am satisfied that the appellant is not an evacuee and his
holding of about 475 acres not evacuee property.
"I refer the case to the Government under section 3,
Ordinance XV of 1949."
The Central Government by its order dated the 17th May
1950, held that the appellant was a non-evacuee and in
accordance with this order there was a declaration by the
Custodian too of the non-evacuee status of the appellant.
In 1954, on an application filed by Maulana Abdul Qadus
Bihari, Mr. .M. M. Qureshi, Assistant Custodian of
Evacuee Property, Nawabshah, made an inquiry into the
question whether the appellant was an evacuee and
having come to the conclusion that he was in fact an
evacuee he declared that the whole of the property which
is in dispute in the present appeal was evacuee property
and was open to allotment. The operative part of his
order said: -
"The land is treated as evacuee property and is open to
allotment. The D. R. C. be informed immediately."

It is to be noted that this order had been passed only in order that
the property in dispute may be treated as evacuee property and
was not order on an application under section 18 of the
Administration of Evacuee Property Ordinance. Such an applica-
tion becomes competent only after property is treated as evacuee
property by a Rehabilitation Authority or the Custodian. The
appellant then filed a regular application under section 22 of the
Administration of Evacuee Property Act (same as section 18 of
Ordinance XV of 1949) claiming that he was non-evacuee and
the property in dispute was not evacuee property. It is in this
application that Mr. Rahat Hussain, Assistant Custodian, granted
a declaration to the appellant which declaration was made the
subject-matter of a reference to the Tribunal under section 43-A
of the Administration of Evacuee Property Act.
Before proceeding to consider the argument addressed to us it
will be convenient to reproduce sections 43-A and 43-B of the
Administration of Evacuee Property Act, 1957. They run: -

"43-A. (1) The Central Government may, by notification in the


official Gazette, constitute a Tribunal, to be called the Evacuee
Property Inquiries Tribunal, consisting of not less than two
members, one at least of whom shall be a person who is or has
been a Judge of High Court.

(2) If in any case in which a Custodian has on or after the first


day of January 1953, declared any evacuee or any evacuee
property to be a non-evacuee or non-evacuee property, as the
case may be, the Central Government may, notwithstanding
anything contained in this Act or in any other law for the time
being in force, refer the case to the Tribunal.

(3) Where a case is referred to the Tribunal under subsection (2),


the Central Government shall send to the Tribunal a statement of
the case together with the record relating thereto.

(4) The Tribunal may, after perusal of the record and the
statement, confirm the decision of the Custodian, or hold such
inquiry as it may consider necessary, and in doing so, call for
report from the Custodian or any other authority, and take any
further evidence, and may pass such order as may be deemed fit:

Provided that the Tribunal shall not pass any order modifying or
reversing the declaration of the Custodian without giving the
person affected thereby an opportunity of being heard.

(5) All questions before the Tribunal shall be decided in


accordance with the opinion of the majority of its members, and,
if the members are equally divided in opinion, in such manner as
may be prescribed.

43-B. Any order passed by a Custodian declaring any evacuee to


be non-evacuee or any evacuee property to be non evacuee
property shall take effect and be deemed always to have taken
effect subject to the order of the Tribunal under section 43-A."

In respect of the question of the jurisdiction of the Tribunal the


first contention of learned counsel for the appellant is that if
(here has been a declaration as to the non-evacuee nature of
property before 1st January 1953, any subsequent declaration as
to the same property which may be necessitated by an ultra vires
act of Rehabilitation Authority or any Custodian is not a
declaration which can empower the Central Government to make
a reference under section 43-A. According to learned counsel
there had been a declaration in this case of the non-evacuee
nature of the property in dispute by Mr. Akbar Hussain on the
9th of February 1950, and the interference by the Assistant
Custodian in 1954 in the face of the order of Mr. Akbar Hussain
was wholly unwarranted, illegal and ultra vires and as it was this
ultra vires order of the Assistant Custodian which forced the
appellant to file an application under section 18 of
Ordinance-XV of 1949 for a declaration of the non-evacuee
nature of his property, the whole of the proceedings under
section 18 should be regarded as null, void and non-existent so
that they could not afford any occasion to the Central
Government to make a reference under section 43-A. The second
contention is that the Inquiry Tribunal appointed under section
43-A has no jurisdiction while deciding a case before it to
over-ride any order by a Custodian before 1st January 1953,
declaring the property to be non-evacuee property. This, learned
counsel says, is the effect of section 43-A which debars the
Central Government from impeaching an order that is passed
before 1st January 1953.

To consider the first of these contentions we do not see an good


ground for holding that an order declaring a person to be
non-evacuee will not attract the operation of section 43-A just
because it was passed on an application which had to be
submitted because of some illegal action of the Rehabilitation
Authorities or a Custodian. In fact whenever the Custodian holds
a person in a proceeding under section 18 of Ordinance XV of
1949 to be non-evacuee and his property to be non-evacuee
property, he does hold that the action already taken by the
Rehabilitation Authorities in connection with his property is
illegal. An application under section 18 is competent only if the
property in dispute was treated as evacuee property by a
Rehabilitation Authority or the Custodian. This is clearly stated
in section 18. Therefore, whenever a person applies under
section 18 he has to assert that the action taken by the
Rehabilitation Authorities is illegal and ultra vires and if the
Custodian grants him a declaration it amounts to saying that the
action of tile Rehabilitation Authorities was ultra vires. To say,
therefore, that if the action of the Rehabilitation Authorities was
ultra vires the declaration is non-existent and therefore does not
affect the operation of section 43-A is not an acceptable
argument.
There is, however, a more plausible method of arguing the
contention raised by the appellant and that is this. If there
already exists an order passed by the Custodian declaring some
property to be non-evacuee property and if the Rehabilitation
Authority or an Assistant or Deputy Custodian treats such
property as evacuee property without claiming that there has
been, subsequent to the declaration by the Custodian, any change
of status, and in consequence of this action of the Rehabilitation
Authority or Assistant or the Deputy Custodian, the person
concerned is forced to approach the Custodian a second time,
then it is not necessary for the Custodian to declare that person
to be non evacuee and his property to be non-evacuee property,
and all that he needs say is that there is already a declaration in
his favour and no further declaration is needed, as there is no
allegation of any change of status after the previous order was
passed. The law does not contemplate successive declarations in
respect of the property of the same person or in respect of the
status of a person except where a change of status is said to have
occurred after the existing declaration. If in the second
proceeding they Custodian simply says that another declaration
is not needed section 43-A will not be attracted in respect of this
order for there is no second declaration by the Custodian. But if
in the second proceeding the Custodian instead of saying that
there is no need of afresh order does grant a second declaration
should that fact prejudice the party? The first declaration having
been made before the 1st of January 1953, could not be made the
subject of a reference under section 43-A. In the second
proceeding the proper order to pass was only this that a second
declaration was not needed. If the Custodian instead of passing
the proper order grants a declaration should the status of a
person or the nature of his property which is not liable to an
attack under section 43-A be made so liable because of the
inappropriate wording of his order? It appears reasonable to
Suggest that if he does grant a second declaration it should not
be regarded as a fresh declaration, but only as a recognition of
the fact that the previous declaration which prevents the
Rehabilitation Authority or the Assistant or Deputy Custodian
from treating the property as evacuee property does exist.

However, in the present case the argument fails on facts. This is


not a case where a second declaration was unnecessary and the
Custodian had simply to say that a declaration existed. The
appellant had himself taken up inconsistent positions in the two
proceedings and the declaration already granted by the
Custodian was not the one which he asked for in the second
proceeding. In the first proceeding he had stated that the whole
of the property that is 450-475 acres were his self-acquired
property in which there was no co-sharer. It would be convenient
to reproduce the statement which he made before Mr. Akbar
Hussain,

He said :-

"I own between 450-475 acres of land which is my self acquired


property. I have no partner."

The word `partner' means here only co-sharer for there is no


reference in the statement to any business. There was no mention
in this statement of any joint family or member of a joint family
or any joint family property. In the application under section 18,
however, which was heard by Mr. Rabat Hussain, the appellant
took up an entirely different position. He stated therein that he
and his three sons, his wife and daughter constituted a joint
Hindu family, that the property which had fallen to his share in
the partition of 1939 was the property of this joint Hindu family
and that the remaining property was his self-acquired property.

The declaration which the appellant secured from the Assistant


Custodian on the 5th of April 1958, has already been narrated
above and need not be repeated. It was quite different from the
declaration made by Mr. Akbar Hussain in 1950. In fact the
order of Mr. Akbar Hussain was not, as we will presently show,
intended to state the extent of the property owned by the
appellant, but quite apart from that question the second
declaration was not an unnecessary one and it could not be said
that it was only a recognition of an already existing declaration.
The contention, therefore, that the order of Mr. Rabat Hussain
could not be made the subject of a reference under section '43-A
is of no force.

We take up now the second contention in respect of jurisdiction.


It is urged that even if the reference was competent the Tribunal
had no jurisdiction to go behind the order of Mr. Akbar Hussain
which he had passed on the 9th of February 1950, holding 475
acres to be non-evacuee property for section 43-A as not permit
the Cent al Government to impeach orders passed by the
Custodian before 1st January 1953 and the provisions of this
section will be defeated if in a competent reference the Tribunal
could ignore an order which the Government could not impeach.

A look at section 43-B will show that the contention put forward
by learned counsel is not quite consistent with the provisions of
this section. This section provides that the order of the Tribunal
will supersede any order passed by the Custodian. It does not say
that an order passed before the 1st January 1953, will bind the
Tribunal.

The section gives full authority to the Tribunal to decide the


question as to the evacuee nature of the property involved or the
status of the person concerned and places no limitation on the
exercise of this jurisdiction. Once there is a competent reference
before a Tribunal it has jurisdiction to decide the matter before it
without being bound by any order passed by the Custodian.
Learned counsel contends that on this interpretation the Tribunal
may on account of a wholly superfluous order passed by a
Custodian declaring property to be non-evacuee after 1st January
1957, get jurisdiction to set aside an order relating to the same
property passed before 1st January 1953, which order, by the
words of section 43-A could not be the subject of a reference and
was not liable to attack. One answer to this objection is that this
situation will never arise for the law does not contemplate, as
has already been explained, the making of a second order
without a change of circumstances. But in any case section 43-B
has to be applied as it stands. We cannot read into it a limitation
which is not there nor can we say that the failure to make an
exception in this section with respect to orders passed before 1st
January 1953, is due to a slip. These two sections were added at
one time and the limitation mentioned in section 43-A should
have been present to the mind of the draftsman when he drafted
section 43-B and the omission of any limitation in section
43-B11 should be regarded as deliberate.

In any case the appellant fails in this contention on facts, because


we are not prepared to interpret the order of Mr. Akbar Hussain
as a declaration with respect to the non-evacuee nature of the
property now in dispute. The only proceedings taken before Mr.
Akbar Hussain were that he recorded the statement of the
appellant wherein the appellant said that he was not evacuee and
on the basis of this statement he passed the short order which has
already been reproduced verbatim. It is clear that Mr. Akbar
Hussain never went into the question as to what property was
owned by the appellant. By referring to 475 acres Mr. Akbar
Hussain was only reproducing the area given in the statement of
Perumal and apparently all that he wanted to say was that what-
ever property was owned by Perumal was not evacuee property.
The order of Mr. Akbar Hussain that the property which belongs
to Perumal is not evacuee is not intended to determine the
question of the extent of that property.
At the same time it is difficult to appreciate this contention in
view of the fact that the appellant himself concedes the order of
Mr. Akbar Hussain to be incorrect. According to him 113 acres
out of this land is joint family property.

On the merits learned counsel for the appellant has challenged


the findings of the Tribunal that Tejumal had not been adopted
and that there were no self-acquisitions by the appellant. In
respect of the adoption of Tejumal the appellant had made his
own statement, had filed an affidavit of Gopaldas his brother and
had produced three persons, Qaim Khan, Ahsan Khan and Mod
as witnesses of the adoption. Qaim Khan and Ahsan Khan were
not present at the adoption ceremony and Qaim Khan was only a
tenant of the appellant. There were a number of circumstances
relied upon by the Tribunal for the finding that Tejumal had not
been adopted by Gopaldas and after going through the record we
find this finding of the Tribunal to be fully justified. In his
statement recorded on the 8th of February 1950, Perumal had
stated that he had three sons who were 16, 9 and 3 years of age
respectively, In the statement which he made before Mr. Rahat
Hussain five or six years later, wherein he claimed that Tejumal
had been adopted by Gopaldas, he stated that he had, including
Tejumal, four sons, Tejumal being 22 years of age, Moti Ram 12,
Ishu Kumar 10 and Sridhar 3. It is clear that Sridhar who was
three years of age at the time of the later statement was not yet in
existence on the 8th of February 1950, when the appellant made
his statement before Mr. Akbar Hussain. As he admitted having
three sons on that date, it is clear that he had accepted Tejumal to
be his son. His case now is that Tejumal had been adopted by
Gopaldas in 1940. This is inconsistent with his statement before
Mr. Akbar Hussain. Also the son which is described as 16 years
old in 1950 can be no other than Tejumal because even at the
time of his later statement Moti Ram was aged only 12 and Ishu
Kumar only 10. When we asked learned counsel for the
appellant to state to whom the age of 16 years in the statement of
1950 could refer, learned counsel said it referred to Moti Ram.
When it was pointed out to him that even at the time of the later
statement Moti Ram was only 12, learned counsel said the age
had not been given correctly. This is a wholly unsatisfactory
explanation. A son who was at the time of the earlier statement
only about 6 years old could not have been described as 16 years
old.

Adoption in Hindu law is a formal act having far reaching


consequences material as well as spiritual and it is generally
evidenced by a document. By adoption a person passes out of
the family to which he belonged by birth and is transplanted into
the family which adopts him. In the present case not only is there
no documentary evidence, but no other evidence of any value
has been produced. There is no affidavit by Tejuram himself.
Tejuram was entitled in India as a refugee to property on the
basis of the property which he had left in Pakistan and he could
very well file an affidavit that the property he received was in
lieu of the property of that joint Hindu family of which Gopaldas
was the father and Karta. There is a good deal of force also in
the observation of the Tribunal to the effect that it was quite easy
to produce school registers wherein the parentage of Tejumal
would be stated. It was the case of appellant himself that
Tejumal had been receiving education in Jodhpur.

The next point is as to whether any part of the property was the
self-acquisition of the appellant. It is an unquestioned principle
of Hindu law that if a nucleus of joint property exists by the
income or out of the proceeds of which the property which is
claimed as self-acquisition of any particular member of the
family may have been acquired, such property will be presumed
to be the property of the joint Hindu family till the contrary is
proved. In the present case there is a nucleus not only of 113
acres of land, but of urban property and cash and ornaments as
will appear from the partition deed of 1939. Even the urban
property was producing an income of Rs. 100 a month as
accepted by learned counsel for the appellant before the
Tribunal. The lands which were subsequently acquired were
barrage lands purchased on installments and there was no
contention before the Tribunal that the installments payable
could not have been met out of the income of the joint family
property. The appellant admits that he does not carry on any
business. The only explanation which he gave for his
self-acquisition was that he was taking other land on lease, but
he admitted that there was no document which could support this
assertion. It was his own bare word which the appellant wanted
to be accepted as sufficient proof of the property being his
self-acquisition. This contention of appellant is without force.

There is one contention, however, which is not mentioned in the


petition, but was urged at the hearing and in which we find force.
The Tribunal found that Tejumal was entitled to 1/5th share of
the property. It had not been urged before the Tribunal that
Tejumal would only have been entitled to 1/6th share at'
partition, because a wife is also entitled to a share equal to that
of a son though she is not herself entitled to demand partition.
The wife of Perumal is admittedly alive. Tejumal would, there-
fore, be entitled only 1/6th share of the whole of the property.
While this appeal fails otherwise it is accepted to the extent that
the share of Tejumal which is held to be evacuee property will be
only 1/6th and not 1/5th of the whole of the property of the joint
Hindu family.

A. H.
Order accordingly.
P L D 1963 Supreme Court 20

Present : A. R. Cornelius, C. J. and Fazle-Akbar, J

RAO MUHAMMAD ASHFAQ KHAN-Petitioner

Versus

THE STATE-Respondent

Petition for Special Leave to Appeal No. 238 of 1962, decided on 9th
November 1962.

(a) Expungement-Remarks against Advocate, in High Court


judgment-Resting on "personal observation " and " impression " of
Court-Possibility of review by Supreme Court excluded Remarks,
"mild reproof "-Not expunged.

An Advocate of the High Court sought expungement from a judgment


of that Court, of a passage in which certain words used by him in the
presentation of an argument, in an appeal were described as
discourteous "by any standard", so that coupled with "the tone in
which they were uttered," they might have constituted contempt of
Court. The Court however expressly refrained from taking action in
contempt, but recorded a reproof in mild terms viz., that what the
Advocate did " was perhaps not the proper thing to do."

According to the Advocate, the words used by him related to a request


that the case be certified as a fit one for appeal to the Supreme Court
and that his citations of certain Supreme Court authorities may be
incorporated in the judgment. This was regarded by the Division
Bench as " implying that he dared the Court to dismiss his appeal ".

Held, that the impression that the words used were, or were intended
to be, a challenge, was based on the whole of the Advocate's conduct
including the tone of his voice, and so rested on the personal
observation and impression of the Division Bench, excluding
possibility of a judicial review. The observations were not outside the
scope of the proceeding before the Division Bench. No final
proceeding was commenced, and at the end, only a mild admonition
was administered, which did not in law require a notice to show cause,
by way of due process.

The petition was dismissed.


(b) Advocate---Right and duty to place client's case before Court "
with maximum of emphasis "-Overdoing his part-Adoption of a
certain " tone " of voice, interpreted as challenge by Court-Court
would be well advised to " excuse ".

Petitioner in person.

Nemo for Respondent.

Date of hearing : 9th November 1962.

JUDGMENT

CORNELIUS, C. J.-This is an unusual petition, in that it is by an


Advocate of the High Court of West Pakistan, Mr. R. M. Ashfaq Khan,
and seeks expungement from a judgment of that Court, of a passage in
which certain words used by him in the presentation of an argument,
in an appeal were described as discourteous " by any standard ", so
that coupled with " the tone in which they were uttered ", they might
have constituted contempt of Court. The Court however expressly
refrained from taking action in contempt, but recorded a reproof in
mild terms viz., that what the Advocate did " was perhaps not the
proper thing to do ".

The Advocate protests that he is habitually careful to preserve by his


conduct, the dignity of the Court, and that on this occasion he acted, "
in a most respectful manner". He described his conduct in the
following words :-

" When their Lordships dismissed my Letters Patent Appeal, I


requested their Lordships to certify the case to be a fit one for
appeal to the Supreme Court, and also with an additional
request for incorporating tree citation in their judgment ".

By " the citation " is meant, the citation of two recent pronouncements
on the law by this Court, viz., the cases of Yousuf Ali v. Muhammad
Aslam Zia (P L D 1958 S C (Pak.) 104) and Farid sons Ltd. v.
Government of Pakistan ((1962) 1 P S C R 1=P L D 1961 S C 537). It
is explained that the Advocate made the request as he was anxious that
the fact of the citation should be noted, so that the argument might not
be excluded at a further stage e.g., in taking the matter before the
Supreme Court, on the ground of non-presentation in the earlier
appeal.

The judgment of the High Court shows that this attitude was regarded
by the Division Bench as
“implying that he dared the Court to dismiss his appeal."

The conclusions of law in the two reported authorities were


summarised in the judgment and it was said that they were of 46 no
avail to the appellants because they dealt with entirely different
matters ".

Mr. R. M. Ashfaq Khan complains that he was threatened by one of


the learned Judges (Mr. Justice Shabir Ahmad) with contempt of Court
proceedings, and that he had done nothing to justify such a threat, or
the disparaging remarks against him made in the judgment. He
thought he had " every right to make a submission fearlessly and
enthusiastically ", and urged that

" if an Advocate is subjected to such threats and humiliation, then he


will not be able to perform his duties fearlessly and independently as
the traditions of the Bar require him to do ".

If the merits of the decision in the, appeal by the Division Bench had
been under examination, we should have been in a better position to
judge the basis upon which the Division Bench got the impression that
Mr. R. M. Ashfaq Khan was " daring the Court to dismiss the appeal ".
The treatment in the judgment of the two Supreme Court decisions he
had cited is of a summary character, and does not enable any inference
as to the extent to which he had pressed that the view which the
Division Bench was favouring was in conflict with binding authorities
of a Superior Court. But it is necessary to observe that his challenge ",
supposing it was held out, could not have been founded on any
personal power or authority vested in himself. It is inconceivable that
he should have based his opposition to the view which the Division
Bench was taking on any foundation except that of law, in this case
the law propounded by the Supreme Court.

Therefore, it may be a question whether, in substance, his contention


was, or was intended to be, a challenge, but the impression that it was,
is based on the whole of his conduct, including the tone of voice used
by him, which is mentioned in the judgment. Mr. R. M. Ashfaq Khan
complains that by refraining from proceeding against him in
contempt, the Division Bench did him no favour, for he has been
denied an opportunity of meeting the totality of the charge, including
such imponderables as tone of voice. He might have shown that in
rejecting the two binding authorities of the Supreme Court for
irrelevancy, the Division Bench had done less than justice to his case,
and to his submissions.
But as the matter stands, the stricture-for such it undoubtedly is-rests
upon the personal observation and impression of the Division Bench,
and in particular of Mr. Justice Shabir' Ahmad who wrote the
judgment, with which the other learned Judge agreed. The possibility
of judicial review is excluded. The observations are not outside the
scope of the proceeding before the Division Bench. No final
proceeding was commenced, and at the end, only a mild admonition
was administered, which did not in law require a notice to show cause,
by way of due process. We cannot see that there is any scope for inter-
ference by this Court.

At the same time, we cannot avoid the observation that an Advocate,


as an important member of the human machinery by which justice is
dispensed, has a right as well as a duty to place his client's case before
the Court, with the maximum of emphasis. He is fully within his
rights in pressing before a subordinate Court, the pronouncements on
similar questions by superior Courts, using the appropriate degree of
emphasis, the highest being reserved for the Court at the apex of the
judicial machinery, whose pronouncements on law are declared by the
Constitution, to be binding on all other Courts in the country. It is
regrettable that, on this occasion, an Advocate's reliance on two such
pronouncements should have been expressed, before the High Court,
in a manner which gave rise to the impression we have mentioned. In
evaluating his conduct, however, greater weight might appropriately
have been given to the consideration that he was pressing a cause
which was not his own, and that he could be excused for overdoing
his part, in that he adopted a certain tone of voice.

A judgment of a superior Court is a permanent arid public, document,


and in this case, the Division Bench has approved the judgment for
publication. Mr. R.M. Ashfaq Khan complains of the injury, and we
can well understand that it might have been avoided, if before
recording these remarks, the learned Judges of the Division Bench had
given him an opportunity, in Court or in Chamber, to explain what he
meant by the words or the tone he had employed. But, as we have
already said, we cannot see that we have power to give Mr. R.M.
Ashfaq Khan the relief he seeks, that is, expungement of the
observations made concerning him, in the circumstances of this case.

A. H.
Petition dismissed.
1971 P Cr. L J 523

[Lahore]

Before Shaukat Ali, J

Mst. RABLA BIBI-Petitioner

versus

ZILLADAR KHAN AND 3 OTHERS-Respondents

Criminal Miscellaneous No. 1961/H of 1970, decided on 14th April 1970.

(a) Muhammadan Law----

--Minority-Minority of a Muslim of either sex, terminates on attaining "puberty"-Puberty


presumed on completion of 15 years according to law governing parties Cessation of
minority effected on completion of 18 years of age under Majority Act, 1875-Not
applicable to Muslims-Matters concerning Muslim Marriage, dower, adoption and
divorce, excepted under S. 2, Majority Act, 1875-Majority Act (IX of 1875), S. 2.

(b) Criminal Procedure Code (V of 1898)---

--S. 491-Habeas Corpus-Detenu a grown-up Muslim girl stating in Court in unequivocal


terms that no one had abducted her and she had voluntarily married accused and signed
nikahnama-Age certificate placed on record showing her 18 or 19 years of age-Detenu
not in illegal custody in circumstances-No case for issuance of writ of habeas corpus,
held, made out.

Major Wahid-ud-Din Virk for Petitioner.

Muhammad Rafique Bajwa for Respondents.

ORDER
This is a petition for a writ of habeas corpus under section 491 of the Criminal Procedure
Code. The material facts are that the alleged detenu, in this case, is Mst. Nasreen Akhtar,
daughter of Mst. Rabia Bibi, the applicant. Mst. Rabia Bibi lodged a report on 7th
February 1970, at Police Station Daska, District Sialkot, wherein she alleged that Mst.
Nasreen Akhtar, her daughter, had been abducted by Zilladar Khan and four others. In
consequence, a case under sections 363 and 366 of the Pakistan Penal Code was
registered at the said police station. Apprehending arrest Zilladar Khan and four others
approached. this Court for bail vide Criminal Misc. No. 901 of 1970. The same was listed
for hearing on 12th February 1970 before my learned brother Mushtaq Hussain Munir, J.
It was contended in the said petition that the case against them was false and that Mst.
Nasreen Akhtar, the alleged abductee, was 17 years of age and had married Zilladar Khan
of her own free will on 28th January 1970, whereas the report was lodged on 7th
February 1970. Learned Judge admitted Zilladar and others to bail. On the 3rd of April
1970, Mst. Rabia Bibi filed a habeas corpus petition (Criminal Misc. 'No. 1961/H of
1970) alleging that Zilladar Khan and others were illegally detaining her daughter, Mst.
Nasreen Akhtar. My learned brother Mushtaq Hussain Munir, J. by the order of even date
directed that this petition should be heard along with Criminal Misc. No. 901 of 1970. On
9th April, both the petitions were placed before me and learned counsel for the petitioners
in Criminal Misc., No. 901 of 1970, undertook to produce Mst. Nasreen Akhtar in his
Court on 14th April 1970. Accordingly she was produced in the Court and her statement
was recorded. In her statement she stated in unequivocal terms that no one had abducted
her and that she had voluntarily married Zilladar Khan and was staying with him as his
wife of her own free will. She admitted that she had signed the nikahnama Exh. A. She
placed on the record a certificate of her age; which showed that she was between 18 or 19
years of age. I have seen the girl. In my opinion, she is more than 16 years of age. She is
quite grown up. No evidence has been brought on the record by the mother or the police
to show that she was under 16 years of age at the time of the alleged abduction.

2. According, to Muslim Law the minority of a male or a. female terminates when he or


she attains puberty. Puberty is presumed on the completion of fifteen years according to
law by which the parties are governed. Under the Majority Act of 8751 minority ceases
on the completion of eighteen years. Section 2 to the said Act, however; makes an
exception in matters relating to marriage, dower, adoption and divorce. Thus for the
purpose of the marriage the rule of Muslim Law must apply in the instance case.
According to which any person, who has attained puberty, is entitled to act in the matter
of marriage on attaining the age ob 16 years. Mst. Nasreen Akhtar, according to the
evidence on the record, is between 18 to 19 years of age. Therefore, she was competent to
contract marriage both under the Majority Act of 1875 and under the Muslim Law. As
such her marriage is valid. It is to be noted' that Mst. Nasreen Akhtar is not in the illegal
custody of her husband, therefore, no case for the issuance of writ of habeas corpus is
made out. The result is that there is no force in this petition, which is dismissed.

3. Before parting with this order, I would like to add that e of the girl and her statement
made in this in view of the age Court that she had married of her own free will and was
staying with her husband voluntarily, the Superintendent of police of the District would
not permit the mock prosecution of the accused.

Petition dismissed.
1886 M L D 437

[Lahore]

Before Saad Saood Jan, J

TALIB KHAN and 6 others--Petitioners

versus

COLLECTOR, LYALLPUR and others--Respondents

Writ Petition No. 168 of 1969, decided on 11th February, 1986.

(a) Custom (Punjab)----

--- Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), Preamble-- West
Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962),
S.2--Adoption--Succession to property--Under customary law grin adopted by other
person, held, would not succeed to property of natural father in presence of real
brother--Provisions-of Act IX of 1948 envisaged Muslim Personal Law in matters of
succession where parties were Muslims--Provisions of Act V of 1962 through which Act
IX of 1948 stood repealed has similar provisions, relating to succession-Adopted son
would thus inherit property of his natural father under personal law.

(b) Rest Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)--

---S.2--Custom (Punjab)--Adoption--Succession--Determination of-Succession of a


Muslim dying after enforcement of Act V of 1962, held, would be governed by Muslim
Personal Law and not by rule of custom--Muslim Law does not recognise adoption in
matter of succession. Custom (Punjab)].

Ch. Mushtaq Ahmad Khan for Petitioners.

Ch. Muhammad Aslam Chatha for Respondents.

Date of hearing: 11th February 1986.

JUDGMENT

Petitioners Nos.1 to 4 are the real brothers and sister of Allah Dad who is the only
contesting respondent in this petition. Petitioners Nos. 5 to 8 are the children of Natha
Khan (since dead) who was also a real brother of Allah Dad. The contest between them is
over the succession to the property left by their father Abdul Ghani Khan.
2. Before Independence the parties resided in Tehail Batala of District Gurdaspur. They
were governed by agricultural custom. Abdul Ghani Khan had a real brother by the name
of Sardar Khan. Sardar Khan was issueless. He adopted Allah Dad as his son. On his
death Allah Dad succeeded exclusively under the custom to his property. After Partition
the parties migrated to Pakistan. Allah Dad obtained allotment in respect of the property
which he had inherited from his adopted father.

3. Under the customary law a son adopted by another person did' not succeed to the
property of his natural father in the presence of his real brothers. Now, if the customary
law had still remained in force Allah Dad would not have been considered an heir of
Abdul Ghani Khan. But in 1948 the Punjab Muslim Personal Law (Shariat), Application
Act, 1948 came into force. Under this Act interalia in matters of succession the Muslim
Personal Law was directed to prevail in cases where the parties were Muslims. This Act
was later repealed and replaced by the West Pakistan Muslim Personal Law (Shariat) Act,
1962. This new Act contained a similar provision. Section 2 of the Act reads as follows:--

"Notwithstanding any 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 properties, the rule of decision, subject to the provisions of any
enactment for the time being in force, shall be the Muslim Personal Law (Shariat)
in case where the parties are Muslims."

Abdul Ghani Khan died on 7-10-1967. During the course of mutation proceedings
relating to the property left by him, the petitioners invoked the rule of the customary law
and alleged that Allah Dad was not entitled to any share in the property of their father.
Their assertion was rejected by the revenue authorities which then allowed a share in the
said property to Allah Dad also.

4. It is not disputed that as Abdul Ghana Khan died after the enforcement of the Act of
1962, ibid, succession in this case is to be governed by the Muslim Personal Law and not
by the rule of custom. Muslim law does not recognise adoption in the matter of
succession. That being so, the revenue authorities were justified in recognising the claim
of Allah Dad as well. This writ petition is without any merit and is hereby dismissed.
There will be no order as to costs.

A. A. Petition dismissed.
1991 M L D 2340

[Lahore]

Before Khalil-ur-Rehman Khan, J

SIRAJ DIN through his Legal Representatives---Petitioners

versus

HAMIDA BEGUM---Respondent

Civil Revision No.887-D of 1981, decided on 12th May, 1991.

(a) Custom (Punjab)---

----Succession---Nature of widow's right---Determination---Female succeeding to half of


land as a widow of her deceased husband and not as a stepmother of her stepson---
Mutation in favour of widow was never challenged either by her stepson or his successor
viz. his adopted son---Widow, from the time of death of her husband till her own death,
remained in possession of land in question as widow of deceased and not in lieu of
maintenance---Interest in property possessed by widow would be deemed to be as that of
a limited owner.

Irshad Begum v. Shah Muhammad P L D 1957 Lah. 605; Nawab v. Muhammad Fazil P L
D 1964 Lah. 334; Muhammad Iqbal v. Durab Khan 1976 S C M R 149 and Abdul Hakim
v. Saadullah Khan P L D 1970 SC 63 ref.

(b) Custom (Punjab)---

---- Qanun-e-Shahadat (10 of 1984), Art.133---Female could not be deprived of her


vested rights by her adverse statement against her interest in cross-examination\---Policy
of law is to afford protection to the rights of females rather than destroy them on flimsy
grounds.

Ghulam Ali v. Mst. Ghulam Sarwar Naqvi P L D 1990 SC 1 ref.

(c) Custom (Punjab)---

----Succession---Widow's right---Nature of---Limited owner---Land left by deceased was


mutated in favour of his widow and son---Widow's right to possess such land whether as
a limited owner or as a maintenance holder was a question of fact---Principle that an
issueless widow would get only maintenance out of the estate of male proprietor having
male descendant, though was based on custom and supported by precedents, yet was not
a rule of universal application as the question whether a widow succeeded as a limited
owner or got some land for her maintenance was essentially a question of fact, which
would have to be answered in each case on basis of evidence produced and circumstances
emerging from the record of that very case---Widow succeeding in the presence of a son
from another wife, had succeeded to one-half of land left by her husband by way of
inheritance and not in lieu of maintenance.

Muhammad Iqbal v. Durab Khan 1976 S C M R 149 ref.

(d) Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948)---

----S. 3---Custom (Punjab)---Succession---Mode of inheritance---Widow holding land as


limited owner; provisions of S.3, Punjab Muslim Personal Law (Shariat) Application Act,
1948 would squarely apply---Plaintiff being an adopted son would not be entitled to any
share in the property in question, for Sharia did not recognise adoption ---On death of
widow/limited owner, her life interest would terminate and in view of S.3. Muslim
Personal Law (Shariat) Application Act, 1948, all persons who would have been entitled
to inherit the property at the time of death of the last full owner, had the Muslim Personal
Law (Shariat) Application Act, 1948, been applicable at tine time of his death, would be
entitled to succeed---Plaintiff, being adopted son, would not be entitled to succeed for
Sharia does not recognise adoption of a son by a Muslim---After enforcement of Muslim
Personal Lam' (Shariat) Application Act, 1948, females holding property under custom
would be deemed to be holding the same as limited owners.

Mst. Sunar Begum v. Federal Government of Pakistan P L D 1988 FSC 1; Nawab v.


Muhammad Fazil P L D 1964 Lah. 334 and Muhammad Qasim Khan v. Mst. Mehbooba
1991 S C M R 515 ref.

(e) Civil Procedure Code (V of 1908)---

----S. 115---Custom (Punjab)---Revisional jurisdiction---Adopted son being not entitled


to any share left by deceased last full owner, he could not succeed to property left by such
deceased on opening of succession due to death of limited owner---No justifiable
exception could be taken to the fording returned by two Courts below---Revision was
dismissed in circumstances.

Syed Munir Hussain and Syed Zainal Abidin for Petitioners.

Mian Muhammad Yasin Wattoo and Ch. Hafeez Ahmad for Respondent.

Dates of hearing: 18th, 19th, 25th, 26th, 27th March and 29th April and 4th and 7th May,
1991.

JUDGMENT
This revision petition under section 115 of the Code of Civil Procedure was directed
against the judgment, dated 8-7-1981 of the learned Additional District Judge, Lahore,
whereby the appeal filed by Siraj Din, plaintiff-petitioner, was dismissed and the
judgment dated 18-4-1981, of the learned trial Court was upheld and maintained.

This case has a chequered history. The land in dispute originally belonged to one Saddar
Din who died in 1922, leaving behind one widow namely Mst. Mehtab Bibi, one male
issue namely Noor Din from Mst. Aisha, the predeceased wife and one daughter namely
Mst. Hamida Begum from Mst. Mehtab Bibi. After his death his land was mutated in
equal shares in the names of Noor Din son and Mst. Mehtab 13ibi widow, vide Mutation
No.332, dated 6th May, 1922, Exh.D.9. Noor Din adopted a son namely Siraj Din, the
present plaintiff, in the year 1935. Noor Din died on 14th May, 1947, and the land in his
possession and recorded in his name in the Revenue Record was mutated in favour of
Siraj Din vide Mutation No.283 dated 8-4-1948, Exh.D.8. Mst. Mehtab Bibi widow and
Mst. Hamida Begum daughter, respectively of Saddar Din, filed a suit for possession
challenging the adoption but they failed upto the level of the Supreme Court as the
adoption was upheld and thus Siraj Din continued in possession as owner of the said land
in the capacity of adopted son. The land which was Mutated in the name of Mst. Mehtab
Bibi and which had remained in her possession was gifted by her to Mst. Hamida Begum
her daughter vide registered deed dated 24th June, 1948. Mst. Mehtab Bibi died on 11th
April, 1950.

2. Siraj Din, the present petitioner, after the death of Mst. Mehtab Bibi filed a suit for a
declaration to the effect that the aforesaid gift was void and ineffective in law and as a
consequential relief delivery of possession was also claimed. This suit was decreed by the
then Civil Judge, Lahore, vide judgment and decree dated 12th October, 1964. The appeal
filed by Mst. Hamida Begun) challenging the said judgment and decree was dismissed
vide judgment and decree dated 20th October, 1965, returning the finding that Mst.
Mehtab Bibi was not a limited owner and that she had held the land in lieu of
maintenance. This led to the filing of a second appeal (Regular Second Appeal No.1052
of 1965) in this Court. This appeal succeeded vide judgment and decree dated 5th
November, 1977, in the terms that the case was remanded after making certain
observations as to the questions requiring determination in the suit and as to the
application of Muslim Personal Law (Shariat Application) Act, 1948.

3. After remand the learned Civil Judge dismissed the suit vide judgment dated 4th May,
1978, observing that the fate of the suit stands sealed in view of the observations made by
the learned Judge of this Court in aforesaid regular second appeal. It is pertinent to note
at this stage and the assertion of Siraj Din petitioner that he took possession of the land in
dispute on 1-12-1965 in execution of the decree earlier passed in his favour by the
learned Civil Judge. This assertion was, however, refuted by the respondent. .

4. After dismissal of the suit, the petitioner filed a review application in the High Court
seeking review of the judgment dated 5-11-1977 passed in the R.S.A. He also filed an
appeal against the judgment and decree dated 4-5-1978 of dismissal of the suit passed by
Civil Judge. The review petition was dismissed in limine as misconceived. It will,
however, be pertinent to note the observations made wherein the learned Judges pointed
out the questions which required to be determined in the case. The observations read as
under:-----

"The case involved the determination of questions as to what was the nature of
interest of Mst. Mehtab Bibi, what was the effect of the conduct of Nur Din in not
challenging her rights, if any, what was the validity and effect of the gift made by
Mst. Mehtab Bibi in favour of Mst. Hamida Begum, how does and in what
manner the Shariat Act operate in the situation and whether the vested rights, if
any, acquired by adopted son Siraj Din get affected by the later law."

5. The appeal filed by Siraj Din was accepted vide judgment dated 2-7-1980 and the case
was remanded for fresh decision. On remand the learned Civil Judge vide judgment,
dated 18-4-1981 again dismissed the suit observing that Mst. Mehtab Bibi was a
maintenance holder but the Shariat Application Act, 1948, applies, and inheritance is to
be traced from the last male owner. Siraj Din again challenged this judgment and decree
of dismissal of the suit by filing an appeal which was dismissed by the learned Additional
District Judge, Lahore, vide judgment and decree dated 8-7-1981. This led to the filing of
the present revision petition.

6. Learned counsel for the petitioner contended that the learned Courts below have failed
to comprehend as well as determine the questions involved in the suit. The question
which required to be determined was as to what was the nature of the interest held by
Mst. Mehtab Bibi in the land in dispute. According to the learned counsel Mst. Mehtab
Bibi was not a limited owner but a mere maintenance holder and as such Muslim
Personal Law (Shariat) Application Act, 19.48, did not apply in the instant case. The
succession opened on the death of Saddar Din in 1922 and Mst. Mehtab Bibi having held
the land only as a maintenance holder, such an interest terminated with her death and as
such the land would be deemed to have reverted back to Noor Din in 1922 and as such
his adopted son Siraj Din is entitled to the possession of the same. Learned counsel
further submitted that in the absence of son, the widow under custom received the land
for the purpose of maintenance only. Section 3 of the Shariat Application Act, 1948,
applies when a female is in possession as limited owner but not to the case like the
present one where there was son by the other wife, and the stepmother, the other widow,
was granted land for maintenance as in such a situation the widow is entitled to receive
suitable maintenance out of the property of the last male owner. He added that in a case
where maintenance amount could not be fixed through mutual arrangement between the
parties a portion of the land used to be given over to the widow for the purposes of
maintenance. According to the learned counsel such a giving of the land to a widow
would not make her a limited owner. In support of this submission the learned counsel
relied on Irshad Begum v: Shah Muhammad (P -L D 1957 Lah. 605), Nawab v.
Muhammad Fazil (P L D 1964 Lah. 334) and Muhammad Iqbal v. Durab Khan (1976 S C
M R 149). Next it was submitted that the impugned judgment of the learned Additional
District Judge cannot be sustained as it is based on the observations made by the learned
Judge in the judgment dated 5-11-1977. These observations in view of the observations
made by the Division Bench of this Court in review petition as well as in the presence of
the judgment dated 2-7-1980 of the Additional District Judge remanding the case cannot
be availed of. It was emphasised that the remand judgment dated 2-7-1980 passed by the
Additional District Judge having not been challenged the same will debar the respondent
to reagitate the same question at a later stage. In support of this plea reliance was placed
on Abdul Hakim v. Saadullah Khan (P L D 1970 SC 63).

7. Ch. Hafeez Ahmad and Mr. Muhammad Yasin Khan Wattoo, Advocates, for the
respondent supported the findings recorded by the learned Courts below and argued that
the concurrent findings of fact cannot be interfered with by this Court in exercise of
revisional jurisdiction. The detailed submissions and the precedents relied upon by the
learned Advocates for the respondent will be noted while dealing with the submission of
the learned counsel for the petitioner. The questions which require determination in the
case were succinctly pointed out by the learned Judges of the Division Bench while
disposing of the review petition of Siraj Din petitioner. These observations pointing out
these questions have been quoted in para. 4 above. The foremost questions are (a) what
was the nature of interest of Mst. Mehtab Bibi in the land in dispute and (b) what was the
effect of the conduct of Noor Din in not challenging her right, if any. The petitioner led
the evidence to show that Saddar Din, the owner of the land, was governed by custom
while the evidence led by the respondent was that the family of Saddar Din followed
Shariat and that succession is to be regulated by Shariat. The evidence so led is not of
much consequence in view of the following uncontrovertible facts emerging from the
record. On the death of Saddar Din Mutation No.332, Exh.D.9, dated 6-5-1922 was
sanctioned. The order sanctioning the mutation reads as under:-----

8. The Revenue Officer sanctioning the Mutation in unequivocal terms observed that he
finds no cause/reason for depriving the widow of her right unnecessarily and that if Noor
Din desires to have the widow's name excluded he can do so by having her maintenance
fixed from the Civil Court or he should obtain her consent. After making these
observations he directed that the succession of Saddar Din is hereby sanctioned in the
name of Noor Din his son to the extent of one half and in favour of Mst. Mehtab Bibi his
widow to the extent of the other half. Thus, Mst. Mehtab Bibi succeeded to the half of the
land left by Saddar Din as a widow of her deceased husband and not as stepmother of
Noor Din in fulfilment of the obligation of the son to maintain his stepmother. Moreover,
neither Noor Din, till his death on 14th May, 1947, nor Siraj Din, his adopted son, in the
lifetime of Mst. Mehtab Bibi, challenged the aforesaid mutation recognizing the right of
the widow to succeed to one-half of the land left by Saddar Din. Again neither Noor Din
nor Siraj Din ever instituted any proceedings for having the maintenance of Mst. Mehtab
Bibi fixed either by the Revenue authorities or by the Civil Court. Thus, Mst. Mehtab
Bibi right from 6th May, 1922, till her death on 11th April, 1950, remained in possession
of the land in dispute as the widow of Saddar Din. The interest so held even if Saddar Din
was governed under custom has to be treated as that of a limited owner. This interest in
the circumstances cannot be equated with the interest of a mere maintenance holder. The
emphasis of the learned counsel on the statement of Mst. Mehtab Bibi that on the death of
Saddar Din his property went to Noor Din, who was her stepson, and that Noor Din had
given her some land for maintenance and that that very land which was given to her for
maintenance was gifted by her in favour of Mst. Hamida Begum, her daughter, appearing
in her cross-examination, cannot be given much weight as she being a rustic lady could
not understand the import of the questions put to her. She cannot be deprived of the rights
which came to vest in her under the mutation and in view of the persistent conduct of
Noor Din and Siraj Din extending over a period of more than 28 years. The policy of the
law is to afford protection to the rights of the females rather than destroying them on
flimsy grounds. In this respect reliance may be placed on the weighty observations of the
learned Chief Justice in Ghulam Ali v. Mst. Ghulam Sarwar Naqvi (P L D 1990 S C 1). .

9. In view of the features noted above the reliance of the learned counsel for the
petitioner on the case of Muhammad Iqbal v. Durab Khan (1976 S C M R 149) is inapt.
The principle that an issueless widow only gets maintenance out of the estate of the male
proprietor having male descendants though is based on custom and has the support of
precedents but it is not a rule of universal application as the question whether a widow
succeeded as a limited owner or got some land for her maintenance is essentially a
question of fact which will have to be answered in each case on the basis of evidence
produced and the circumstances emerging from the record of that very case. In the instant
case Mst. Mehtab Bibi inherited one-half of the land left by her deceased husband as a
widow. The mutation so recognising her right to succeed was sanctioned and the same
was not challenged firstly by Noor Din in his lifetime and then by Siraj Din, the adopted
son, throughout the lifetime-of Mst. Mehtab Bibi.

10. The widow so succeeding in the presence of a son from the other wife, was given
one-half of the land left by the husband by way of inheritance and not in lieu of
maintenance. In similar circumstances the same conclusion was reached in the case of
Ghulam Akbar v. Mst. Irshad Begum (P L D 1963 SC 543). It was held in this precedent
after referring to pages 322, 323 of Rattigan's Digest of Customary Law, 13th Edition by
Om Parkash Aggarwalla, that the general custom does not rule out entirely the possibility
of her being allowed a share in the property as is evidenced by instances collected in
Rattigan's Digest. This is what appears to have happened in the present case.

11. Mst. Mehtab Bibi, the widow, was thus holding the land in the capacity of the limited
owner and as such section 3 of the Muslim Personal Law (Shariat) I Application Act,
1948, would squarely apply. Siraj Din being an adopted son will not be entitled to any
share in the property in dispute as Sharia does not recognise adoption. On the death of
Mst. Mehtab Bibi, her life interest would terminate and in view of section 3 of the
Muslim Personal Law (Shariat) Application Act, 1948, all persons who would have been
entitled to inherit the property at the time of the death of the last full owner, had the
Muslim Personal Law (Shariat) Application Act been applicable at the time of such death,
would be entitled to succeed. The net result would be that Siraj Din who is adopted son
would not be entitled to succeed as Sharia does not recognise adoption of a son by a
Muslim. It may also be added that after the enforcement of Muslim Personal Law
(Shariat) Application Act, 1948, the females holding property under custom are being
deemed to be holding the same as limited owners. This is trend of the authorities since
1988, see Mst. Sunar Begum v. Federal Government of Pakistan (P L D 1988 FSC 1)
wherein the view taken in Nawab v. Muhammad Fazil (P L D 1964 Lah. 334) was
dissented from. To same effect are the observations recorded in Muhammad Qasim Khan
v. Mst. Mehbooba (199.1 S C M R 515).

12. In. view of the above it .is apparent that Siraj Din petitioner cannot claim any right in
the land in dispute. No justifiable exception can be taken to the finding returned by the
learned Courts below. This revision petition, therefore, fails and is dismissed. The parties
are, however, left to bear their own costs.

AA./S-970/L Revision dismissed.


2000 Y L R 2318
[Lahore]

Before Zafar Pasha Chaudhry, J

KHALIL AHMAD---Petitioner

versus

Mst. SHAHNAZ AKHTAR

and another---Respondents

Criminal Miscellaneous No.260/Q of 1995, heard on 17th May, 2000.

Muslim Family Laws Ordinance (VIII of


1961)---
----S. 6(5)---Criminal Procedure Code (V of 1898), S. 561-A---Quashing of
proceedings--Contention was that the petitioner having contracted second marriage at
Muzaffargarh and the same having been registered within the limits of District
Muzaffargarh, complaint filed by the first wife of the petitioner at Lahore for polygamy
was not triable and maintainable at Lahore but at Muzaffargarh where the offence had
been committed--Validity---Offence under S.6(5) of the Muslim Family Laws Ordinance,
1961 was refusal by the existing wife or the contract of second marriage without her
permission--Non-grant of permission by first wife had made the offence for which the
trial was being held---Offence having occurred at Lahore, Criminal Court at Lahore had
the jurisdiction to try the same----Petition for quashing the said proceedings was,
therefore, misconceived and the same was dismissed accordingly.

Shaukat Ali v. Kalsoom Akhtar and another PLD 1991 Lah. 247 ref.

Masood Arshad for Petitioner.

Rai Bashir Ahmad for Respondents.

Date of hearing: 17th May, 2000.

JUDGMENT
The brief facts culminating into the filing of this quashment petition are that Mst.
Shahnaz Akhtar wife of the petitioner Khalil Ahmad instituted a private complaint against
him under section 6(5) of the Muslim Family Laws Ordinance. Section 6 is as follows:--

"6. Polygamy.---(1) No man, during the subsistence of an existing marriage, shall,


except with the previous permission in writing of the Arbitration Council, contract
another marriage, nor shall any such marriage contracted without such permission
be registered under this Ordinance.

(2) An application for permission under subsection (1) shall be submitted to the
Chairman in the prescribed manner, together with the prescribed fee and shall
state the reasons for the proposed marriage, and whether the consent of existing
wife or wives has been obtained thereto.

(3) On receipt of the application under subsection (2) the Chairman shall ask the
applicant and his existing wife or wives each to nominate a representative, and the
Arbitration Council so constituted may, if satisfied that the. proposed marriage is
necessary and just, grant subject to such conditions, if any, as may be deemed _
fit, the permission applied for.

(4) In deciding the application the Arbitration Council shall record its reasons for the
decision and any party may, in the prescribed manner, within the prescribed
period, and on payment of the prescribed fee, prefer an application for revision to
the Collector concerned and his decision shall be final and shall not be .called in
question in any Court.

(5) Any man who contracts another marriage without the permission of the
Arbitration Council shall--

(a) pay immediately the entire amount of the dower, whether prompt or deferred, due
to the existing wife or wives, which amount, if not so paid shall be recoverable as
arrears of land revenue; and

(b) on conviction upon complaint be punishable with simple imprisonment which


may extend to one year, or with fine which may extend to five thousand rupees, or
with both."

It was alleged, inter alia, that Mst. Shahnaz Akhtar complainant was resident of Lahore
and according to the petitioner Khalil Ahmad, the second marriage was contracted in
Muzaffargarh. The same was also registered within the limits of District Muzaffargarh.
According to the learned counsel under section 5 read with section.l77, Cr.P.C., the crime
is always local and it would be triable only by a criminal Court in whose jurisdiction the
crime has been committed. Sections 5 and 177, Cr.P.C. are reproduced as follows:--
"5.---(1) All offences, under the Pakistan Penal Code shall be investigated,
inquired into, tried, and otherwise dealt with according to the provisions
hereinafter contained.

(2) All offences, under any other law shall be investigated, be inquired into, tried, and
otherwise dealt with according to the same provisions, but subject to any
enactment for the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such offences."

" 177. Every offence shall ordinarily be inquired into and tried by a Court within
the local limits of whose jurisdiction it was committed."

It has been laid down that the offence is to be tried by a Court in whose jurisdiction, the
same is committed. According to the petitioner, as the second marriage was contracted in
Muzaffargarh, therefore, the complaint should be tiled there and not in Lahore. The
application under section 249-A, Cr.P.C. was moved which was dismissed by the learned
trial Magistrate on the ground that the complainant i.e. Mst. Shahnaz Akhtar has been
vested with the right to institute a complaint wherever she wants to file the same. It
appears that the learned Magistrate has intermengled the provisions of the Muslim Family
Laws Ordinance, Cr.P.C. and the West Pakistan Family Courts Act, and observed that the
wife has been conferred with the right of tiling the suit at a place where she lives but so
far that right is concerned, that cannot be extended to file the private complaint. The
reasons assigned by the learned trial Magistrate appear to be misconceived as very
important aspect of the law has not been adverted to either by the learned Magistrate or
by the learned counsel.

2. Under section 6(5), the offence is constituted when the second marriage is contracted
without the permission of the existing wife or the concerned Arbitration Council meaning
thereby the offence would be not to seek permission and permission has been sought
from the first wife. who was residing at Lahore. That permission has to been sought and
that not seeking the permission is an offence. When it would be an offence, the same is to
be- determined by the trial Court as well. As the refusal by Mst. Shahnaz Akhtar occurred
at Lahore, therefore, the violation of section 6(5) of the Muslim Family Laws Ordinance
had occurred at Lahore. Under section 5 read with section 177, Cr.P.C., the trial Court at
Lahore has jurisdiction to hear and try the complaint. The learned counsel in support of
his contentions has placed reliance on Shaukat Ali v. Kalsoom Akhtar and another (PLD
1991 Lah.247) wherein it is held that the offence under section 6(5) of the Ordinance
would be triable by Illaqa Magistrate in whose jurisdiction the same is alleged to have
been committed. There is no cavil with this proposition but the point is whether the
contract of second marriage without the permission of first wife 6r the refusal to grant
permission by existing wife is the offence committed. The offence under section 6(5) of
the Ordinance is refusal by the existing wife or the contract of second marriage without
her permission. As regards, the contract of second marriage, it is prohibited by the
provisions of the Islamic Law. May be the second marriage be entered and can be legal
practice but so far non-grant of permission by first wife is concerned, that is made an
offence and the trial is being held with regard to that offence. Since that offence has
occurred at Lahore, therefore, the Criminal Court at Lahore has jurisdiction. This petition
appears to be misconceived. The same, therefore, is dismissed. The learned trial
Magistrate will proceed with the trial. Since it is an old matter, it would be proper that he
should see that the same is disposed of urgently without further loss of time.

N.H.Q./K-32/L

Petition dismissed
2003 C L C 138

[Lahore]

Before Abdul Shakoor Paracha, J

SANA ULLAH and 17 others---Petitioners

Versus

MUHAMMAD RAFIQ and 10 others---Respondents

Civil Revision Petition No.2805-D of 1996, decided on 23rd May, 2002.

(a) Contract Act (IX of 1872)---

----S. 188---Authority of attorney---Extent---If power of attorney is given for various


purposes, governing object of which being power to sell, all other purposes must be read
as ancillary to such governing object.

U. P. Government in Nazul Department, Lucknow v. Church Missionary Trust


Association Ltd., London and Allahabad AIR 1948 Oudh 54 ref.

(b) Contract Act (IX of 1872)---

----Ss. 188 & 196---Ratification of agreement by attorney---Statement of counsel


appointed by general attorney---Agreement to sell was executed by one of the co-owners
on his behalf as well as on behalf of the other co-owners without any
authority---Subsequent to execution of the agreement, the other co-owners appointed the
executant of the agreement, as their general power of attorney regarding the property in
question-- Suit was filed against the owners of the property and the "counsel appointed
by the general attorney made statement before the Court of execution of sale-deed in
terms of the agreement---Validity---Other co-owners though were not party to the
contract but the statement made by their counsel could be construed a ratification of
agreement to sell on their behalf---Agreement executed by one of the co-owners was
ratified- in circumstances.

(c) Contract Act (IX of 1872)---

----S. 197---Implied ratification---Silence of principal---Effect---In the case of-agent


exceeding his authority, ratification may be implied from mere silence or acquiescence of
the principal.
Ramasamy Chetty v. Karuppan Chetty and others AIR 1916 Mad. 1133 and Bank of
Montreal v. Dominion Gresham. Guarantee and Casualty Co. AIR 1930 PC 278 ref.

(d) Contract Act (IX of 1872)---

----Ss. 196 & 197---Ratification of contract—Binding adoption--Necessary ingredients.

To constitute a binding adoption of prior unauthorized acts, the following conditions must
exist:--

(i) Acts must have been done for and in the name of supposed principal and

(ii) there must be a full knowledge of what those acts were, or such an unqualified
adoption that the inference may properly be drawn that the principal intended to take
upon himself the responsibility for such act, whatever they were.

Surendra Nath Roy v. Kedar Nath Bose and others AIR 1936 Cal. 87 ref.

(e) Qanun-e-Shahadat (10 of 1984)---

----Arts. 117 & 120---Transaction made by Pardahnashin lady---Onus to prove---When


such transaction is made, then onus would be always on the person claiming advantage of
such transaction to show that the same was made with freewill of the Pardahnashin lady

Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1; Fazal Jan v. Roshan Din PLD
1990 SC 661 and Nasreen v. Fayaz PLD 1991 SC 412 ref.

(f) Contract Act (IX of 1872)---

----S. 55---Time as essence of contract---Transaction of immovable property--Time in


such transaction is not of the essence of contract.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 ref.

(g) Specific Relief Act (I of 1877)---

----S. 27(b)---Qanun-e-Shahadat (10 of 1984). Arts.117 & 120---Plea of bona fide


purchaser for valuable consideration without notice of prior agreement to sell---Onus to
prove---Onus in case of such a plea is always on the subsequent purchaser---If the
purchaser appears and states on oath that he had no knowledge of the agreement, the
burden shifts to the person claiming prior agreement---Such person has to show that the
subsequent vendee had the knowledge of the previous agreement between the parties.

Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishque and 2 others PLD 1972 SC
25 ref.
(h) Specific Relief Act (I of 1877)---

----Ss. 12 & 27(b)--Specific performance of agreement to sell---Plea of bona fide


purchaser for valuable consideration without notice---Plaintiff assailed sale of suit
property on the basis of having prior agreement to sell executed in their favour by the
owners of the property---Defendants raised the plea of being bona fide owner for
valuable consideration without knowledge of prior agreement to sell but it had come on
the file that the Registrar objected to registration of sale-deed in favour of defendants for
reason that there existed a prior agreement---Case set up by the defendants was destroyed
by statement of one of the witnesses produced by them who admitted that before
registration of sale-deed the defendants had come to know about the execution of earlier
agreement---Trial Court dismissed the suit but Appellate Court declined to give the
benefit of S.27(b) of Specific Relief Act, 1877 to the defendants and appeal was allowed
resultantly the suit was decreed in favour of the plaintiffs---Validity---Protection of bona
fide purchaser who had no knowledge of the agreement was provided only under S.27(b)
of Specific Relief Act, 1877---Defendants being the subsequent vendees had the
knowledge of the prior agreement to sell between the owners and the
plaintiffs---Appellate Court on the basis of evidence, had rightly, reversed the findings on
the issue of bona fide purchasers and declared the defendants as not bona fide purchasers
without notice---High Court declined to interfere with the judgment and decree passed by
the Appellate Court in circumstances.

PLD 1964 SC 807; AIR 1923 Cal. 694; AIR 1937 Mad. 596; AIR 1925 Lah. 465; PLD
1994 SC 674 and PLD 1973 Note 119 at p.184 ref.

Ch. Hameed-ud-Din for Petitioners.

Jehangir A. Jhoja for Respondents.

Date of hearing: 24th April, 2002.

JUDGMENT

(1) Fayyaz Ahmad, (2) Riaz Ahmad sons, (3) Mst. Mumtaz Begum widow, (4) Naseem
Akhtar, (5) Mst. Talat Ara, (6) Mst. Asmat Ara, (7) Mst. Nuzhat Mahmood and (8) Mst.
Sabahat Rana, daughters of Mahmood Ahmad (respondents Nos.4 to 11 herein) were the
owners of the suit-land. Fayyaz Ahmad and Riaz Ahmad respondents Nos.4 and 5 herein,
entered into an agreement to sell with the remaining respondents Nos.1 to 3 Muhammad
Rafique, Ashiq Ali and Muhammad Khan on 26-9-1972 for agricultural land in which,
tube-well engine was installed alongwith the standing trees, precisely prescribed in para.
1 of the plaint, in consideration of Rs.50,000. It was undertaken by the aforesaid Fayyaz
Ahmad, Riaz Ahmad and executants of the agreement to sell that their mother and sisters
respondents Nos.6 to 11 herein would also execute the contract. It was agreed that the
sale-deed shall be completed till 26-12-1972. Before the target date i.e. 26-12-1972, the
respondents apprehended that said Fayyaz Ahmad etc. vendors/owners of the land, may
transfer the suit-land to some other persons, therefore, filed suit for permanent injunction
against all the owners. It was prayed chat the owners be restrained from alienating the
disputed property to anyone else than the respondents. The counsel for all the owners, i.e.
Fayyaz Ahmad, Riaz Ahmad, their mother and sisters, made a statement before the Court
that the agreement according to the stipulated conditions would be completed by all of
them. In consequence of the statement, made by the counsel, suit was disposed of vide
order dated 9-12-1972 (Exh.P.10). It was alleged on behalf of the respondents that the
purchaser could not arrange the agreed money till the target date of 26-12-1972,
therefore, the land was purchased by the petitioners, who had purchased the land in good
faith without notice of the earlier agreement to sell dated 26-9-1972 between the parties.
Muhammad Rafique, Ashiq Ali and Muhammad Khan respondents Nos.1 to 3 brought a
suit for specific performance of the agreement dated 26-9-1972 in the Court of Civil
Judge. Suit was resisted by the petitioners. It was contended by the petitioners/owners
that the last date for completion of the agreement was 26-12-1972. The respondents
Nos.1 to 3 could not arrange the amount, therefore, the agreement did not exist between
the parties and the same was rescinded, therefore, the subsequent sale was made on
27-12-1972. The subsequent purchasers, who are the petitioners, contended that they are
bona fide purchasers with consideration and without knowledge of the earlier agreement.

2. From the divergent pleadings of the parties, the learned trial Court framed the
following issues:--

Issues:

(1) Whether the plaintiffs are estopped to file this suit? OPD

(2)Whether the defendants Nos. 1 to 8 agreed to sell the suit-land to the plaintiffs? OPP

(3) If Issue No.2 is proved, whether the plaintiffs fulfilled their part of the contract? OPP

(4) Whether the defendants Nos.3 to 8 are not bound by the agreement in question? If so,
its effect? OPP

(5) Whether the plaintiffs are entitled to get a decree for the enforcement of the
agreement of sale dated 26-9-1972 against defendant No. 1? If so, on what terms? OPD

(6) Whether the defendants Nos.9 to 27 are the bona fide purchasers for value and
without notice? If so, its effect? OPD

(7) Whether the suit has become infructuous and the plaintiffs failed to fulfil their part of
the contract? OPD
(8) Whether the suit is false, frivolous and vexatious and the defendants are entitled to get
special costs from the plaintiffs? If so, to what extent? OPD

(9) Relief.

3. The learned Civil Judge recorded the findings on Issue No.2 in favour of the
plaintiffs /respondents Nos. 1 to 3 and observed that agreement dated 26-9-1972 was
admitted as correct by the respondents Nos.1 to 8, therefore, this issue is decided in
favour of the plaintiffs. On the question whether defendants Nos.3 to 8 are not bound by
the agreement in question? If so, its effect; the issue was answered by observing that the
plaintiffs filed a suit for permanent injunction on the basis of this agreement to sell
against the defendants Nos.1 to 8 wherein their counsel got recorded the statement on
behalf of all the eight defendants that they are bound by the contract till 26-12-1972, the
act of defendants Nos.3 to 8 stands rectified and they are bound by original agreement by
principle of rectification. Under Issues Nos.3 and 5, the learned Civil Judge discussed the
conduct of the plaintiffs and held that the conduct of the plaintiffs is evident even from
the plaint itself and in my opinion the plaintiffs failed to fulfil their part of the contract
and they cannot be held entitled for any decree. Under Issue No.6, the learned Civil Judge
proceeded to observe that "there existed no agreement to sell in favour of the plaintiffs on
27-12-1972 i.e. date for execution of sale deed in favour of defendants Nos.9 to 26,
therefore, these defendants are held bona fide purchasers with value and with notice. On
the basis of findings on Issues Nos.3 and 5, it was held that the plaintiffs are estopped by
their words and conduct to bring the suit. Consequently, the learned Civil Judge on the
basis of findings on Issue No.6, proceeded to dismiss the suit of the respondents Nos. 1 to
3 vide judgment and decree dated 19-6-1995. Aggrieved from the aforesaid judgment and
decree dated 19-6-1995, plaintiffs/petitioners filed an appeal. The learned Additional
District Judge, Gujranwala mentioned different incidents by referring the suit for
permanent injunction Exh. P.10, Exh. P.11 and Exh. P.12 and that the plaintiffs have
apprehended shortly after execution of the agreement that defendants Nos.1 and 2 were
going to resile from the agreement, therefore, filed a suit for permanent injunction and
they further sent the notice through their lawyer to contact the plaintiffs in his Chamber
on the specified date i.e. 20-12-1972; further that the challan form was never signed and
stamp-papers were never purchased by the defendants Nos.1 to 8 to get the sale-deed
written and read for presentation before the Sub-Registrar till 26-12-1972 in spite of the
fact that meantime another notice was also issued to the defendants to do the needful by
contacting them on 23-12-1972 in order to get the sale-deed registered and since next two
days i.e. 24th and 25th were holidays, therefore, the plaintiffs remained present in the
office of the Sub-Registrar on 26-12-1972 and the plaintiffs marked their presence before
the Sub-Registrar on 26-12-1972 for the execution of the sale-deed and from all the
above, the conduct of the plaintiffs /respondents was to so that they were ready and
willing to perform their part of the contract by getting the sale-deed executed in their
favour. The learned Additional District Judge proceeded to reverse the findings on Issue
No.3. Learned Additional District Judge also reversed the findings of the Civil Judge on
issue No.6 regarding bona fide purchaser with consideration without notice and decided
in favour of the petitioners. It was observed that the onus of proving that the defendants
have purchased the property in question with notice of the previous agreement to sell was
discharged and when the burden was shifted to the petitioners only P. W. 4 Muhammad
Sadiq appeared and deposed that he had no knowledge about the sale agreement. The
learned Additional District Judge also relied on the statement of one of the defendants
Muhammad Khan, who appeared as his own witness as P.W.6, who had admitted that the
subsequent purchaser had the knowledge of the earlier agreement to sell. In consequence
of the above-stated facts, the learned Additional District Judge set aside the judgment and
decree of the Civil Judge dated 19-6-1995 by accepting the appeal and decreed the suit of
the respondents/plaintiffs.

4. Learned counsel for the petitioners has contended that out of several co-owners, the
agreement to sell dated 26-9-1972 (Exh.P.7) was executed only by Fayyaz Ahmad and
Riaz Ahmad respondents Nos.4 and 5, who merely had a share of 5/24 in the total land
measuring 247 Kanals, 1 Marla. The mother of Fayyaz Ahmad and Riaz Ahmad had a
share of 3/24 and the sisters had share of 16/24. He submits that the female co-owners
were not party to the contract and the statement made by their counsel in the suit for
permanent injunction Exh.P.10. Exh. P.11 and Exh. P.12, could not be construed a
rectification of the agreement to sell on their behalf. He submits that at all, the agreement
Exh.P.7 could have specifically been enforced only to the extent of shares of Faxyaz
Ahmad and Riaz Ahmad respondents Nos.4 and 5. Reliance has been placed on PLD
1964 SC 807, AIR 1923 Cal. 694, AIR 1937 Mad. 596 and AIR 1925 Lah. 465. Further
contends that the petitioners are bona fide purchasers with consideration and without
notice and are lawful owners of the disputed land. In this connection, he has relied on
PLD 1994 SC 674 and PLD 1973 Note 119 at p. 184.

5. Conversely, learned counsel for the respondents contended that the agreement Exh.P.7
was rectified by other co-owners i.e. mother and sisters and Fayyaz Ahmad and Riaz
Ahmad by statement made by their counsel in the suit for permanent injunction and he
has relied on section 196 of the Contract Act in this behalf. Further contends that the
petitioners were in knowledge of the agreement to sell dated 26-9-1972 Exh. P.7 and the
conduct of the petitioners was mala fide in purchasing the suit-land, therefore, they
cannot be termed as bona fide purchasers with consideration without notice and no
protection can be given to the subsequent vendee. Further contends that agreement dated
26-9-1972 (Exh. P.7) could be enforced against all of the defendants/owners as the same
was executed by Fayyaz Ahmad and Riaz Ahmad on behalf of the mother and sisters also.
It is also the case of the respondents that if at all Fayyaz Ahmad who \vas legally
appointed agent of the other co-owners, exceeded his authority, rectification in this case
has been impliedly given by the other co-owners from their mere silence. According to
the learned counsel, till today, co-owners of Fayyaz Ahmad and Riaz Ahmad have not
taken the stand that the learned counsel, who made the statement on their behalf in the
suit for permanent injunction, was not authorized to make the statement or Fayyaz
Ahmad was not their agent for the purpose of execution of the sale-deed in favour of
respondents. Further contends that tithe in the transaction of the immovable property is
not the essence of the contract and it cannot be argued that on 26-12-1972, which was last
date for performance of the contract, agreement dated 26-9-1972 between the parties
rescinded and the vendees were under no obligation to transfer the land to the
respondents Nos. 1 to 3.
6. The first and pivotal question for determination in this case is that whether the
agreement dated 26-9-1972 was executed only by Fayyaz Ahmad and Riaz Ahmad
respondents Nos.4 and 5 and female co-owners, who were party to the contract, statement
made by their counsel in the suit for permanent injunction got construed as rectification
of agreement to sell on their behalf or not. The agreement dated 26-9-1972 is admitted
between the parties. Out of several co-owners, agreement to sell dated 26-9-1972
(Exh.P.7) was executed only by Fayyaz Ahmad and Riaz Ahmad. It was the case of the
respondents/plaintiffs that they apprehended shortly after the execution of the agreement
that defendants Nos. 1 to 3 were going to resile from the agreement, therefore, they filed
a suit for injunction (Exh.P.11) against Fayyaz Ahmad, Riaz Ahmad sons of Mehmood
Ahmad, Mumtaz Begum, Mst. Naseem Akhtar, Talat Ara, Asmat Ara, Nuzhat Mehmood
and Saba Rahana daughters of Mehmood Ahmad. It was specifically mentioned in
paragraph No.2 that the agreement to sell dated 26-9-1972 has been entered and agreed
between the parties. Plaint is Exh. P.12 on the file. Learned counsel for the defendants
made statement on 9-12-1972 (Exh. P. 11) that the suit property shall not be alienated by
them till 26-12-1972. On the basis of above-stated statement, the order dated 9-12-1972
(Exh.P.10) was passed. It is pertinent to note here that Fayyaz Ahmad had been appointed
as general attorney on behalf of all the above stated co-owners i.e. mother, brothers and
sisters vide general power of attorney registered at Serial No.2387, Behi No.4, Volume
No.359, pages 71/75 registered before the SubRegistrar on 6-12-1972. He was also
general attorney on behalf of Talat Ara on the basis of registered power of attorney
No.2386, Behi No.4, Volume: No.208, registered before the Sub-Register 6-12-1972 and
attorney of Asmat Ara was registered at Serial No.2385, Behi No.4, Volume No.208 dated
6-12-1972 for the land measuring 259 Kanals, 10 Marlas and this fact is clear from the
sale-deed executed by Fayyaz Ahmad (Exh.D.5) on 27-12-1972 in favour of the
subsequent purchaser Petitioners have not denied the appointment of Fayyaz Ahmad as
their general attorney on the basis of document dated 6-12-1972. In case reported as U.P.
Government in Nazul Department, Lucknow v. Church Missionary Trust Association
Ltd., London and Allahabad AIR 1948 Oudh 54, while interpreting section 188 of the
Contract Act, and construction of power of attorney, it has been observed that if the
power of attorney is given for various purposes, governing object being power to sell, all
other purposes must be read as ancillary to governing object. Fayyaz Ahmad was general
attorney of all the co-owners, therefore, he had the power to appoint the counsel, who
made the statement before the Court for execution of the sale-deed. In this view of the
matter even for the arguments sake that the agreement to sell dated' 26-9-1972 (Exh.P.7)
was executed only by Fayyaz Ahmad and Riaz Ahmad respondents Nos.4 and 5, who
merely had a share of 5/24 in the total land measuring 247 Kanals, 1 Marla, the mother of
Fayyaz Ahmad and Riaz Ahmad had a share of 3/24 and the sisters 16/24, though, they
were not party of the contract, but the statement made by their counsel in the
above-referred suit for permanent injunction could be construed a rectification of the
agreement to sell on their behalf. To understand the controversy, the provision of section
197 of the Contract Act is reproduced as under:--

"Ratification may be expressed or implied. Ratification may be expressed or may


be implied in the conduct of the person on whose behalf the acts are done."
Sisters and mothers of Fayyaz Ahmad and Riaz Ahmad kept silent despite that Fayyaz
Ahmad being agent, appointed the counsel and made the statement before the Court that
they will bound by the agreement dated 26-9-1972. Section 197 of the Contract Act, came
up for interpretation in case of Ramasamy Chetty v. Karuppan Chetty and others AIR
1916 Mad. 1133 and it was held that "in the cage of an agent exceeding his authority
ratification may be implied from the mere silence or acquiescence of the principal". In
case of Bank of Montreal v. Dominion Gresham Guarantee and Casualty Co. AIR 1930
PC 278 it has been ruled that "effective ratification necessarily involves knowledge of all
the material facts on the part of him who ratifies". In case of Surendra Nath Roy v. Kedar
Nath Bose and others AIR 1936 Cal. 87 the necessary ingredients of ratification have
been discussed and it has been observed that "to constitute a binding adoption of acts of
priori unauthorized, these conditions must exist: (1) acts must have been done for and in
the name of the supposed principal and (2) there must be a full knowledge of what those
acts were, or such an unqualified adoption that the inference may properly be drawn that
the principal intended to take upon himself the responsibility for such act, whatever they
were.

7. Learned counsel for the petitioners on the basis of case reported as Raza Hussain and
others v. Muhammad Khan and others 1999 CLC 1057 has argued that the petitioners,
who were co-owners of the suit-land being female and Pardahnasheen ladies had
protection and that the alleged agreement to sell executed on behalf of the ladies was not
binding on them because the plaintiffs were unable to discharge burden of satisfying
Court that the agreement was executed with full knowledge and consent, There is no cavil
with the proposition that when a transaction was made by a Pardanashin lady, onus was
always on person claiming advantage of such transaction to show that same was made
with free-will of Pardahnashin lady and in case of Ghulam Ali v. Mst. Ghulam Sarwar
Naqvi PLD 1990 SC 1, Fazal Jan v. Roshan Din PLD 1990 SC 661 and Nasreen v.
Fayyaz PLD 1991 SC 412, it has been ruled that "real test invariably would be as to
whether in a given case, it could be inferred that agreement was made by lady with full
comprehension of its implications and a state of mind free from outside pressures". The
above-referred cases are not applicable to the facts and circumstances of the present case,
because it is not disputed by the ladies that there was fraud on the part of Fayyaz Ahmad
and Riaz Ahmad their brothers in execution of "the agreement to sell or appointment of
the counsel, who made the statement before the Court that the sale-deed would be
executed.

8. This brings me on other issue that there was no agreement on 27-12-1972, when the
sale-deed (Exh.D.5) was executed on behalf of Fayyaz Ahmad etc. in favour of
subsequent purchasers and the agreement dated 26-9-1972 came to an end. It is
well-established principle of law that in the transaction of an immovable property, time is
not essence of the contract. In case of Ghulam Nabi and others v. Seth Muhammad Yaqub
and others PLD 1983 SC 344, while interpreting section 55 of the Contract Act, the
Honourable Supreme Court has held that in the transaction involving immovable
property, time is not always the essence of the contract Number of events have taken
place before the subsequent purchasers to get the land transferred in their favour through
the registered sale-deed dated 17-12-1972. Firstly, suit was filed on 4-11-1972 against
Fayyaz Ahmad etc. in which the counsel for the owners appeared and made the statement
that the registered sale-deed will be executed in favour of the respondents Nos. 1 and 2.
Thereafter, notice Exh.P.3 was issued to the respondents on 20-12-1972 calling upon the
owners to execute the sale-deed. Another notice dated 12-12-1972 Exh. P.3 was issued on
behalf of Muhammad Rafique to Fayyaz Ahmad. In pursuance of the notice dated
20-12-1972, one of the owners Fayyaz Ahmad reached in time and the plaintiffs asked
him to sign the challan form for deposit of specified amount for purchasing the stamp
papers, whereupon the sale-deed was to be written, but the said defendant made the
excuse that since he had to collect power of attorney of few of ladies co-owners.
therefore, he would do the needful later on. This conduct of Fayyaz Ahmad was based
upon mala fide because he was already general attorney of the female co-owners as is
evident from Exh.D.5 sale-deed registered in favour of subsequent vendee and the challan
form was never signed and stamp papers were never purchased by defendants Nos. 1 to 8.
The plaintiffs also issued notice on 23-12-1972 and meanwhile there were two holidays
on 24-12-1972 and 25-12-1972. Thereafter, plaintiffs appeared before the Sub-Registrar
on 26-12-1972 and kept awaiting in the office of the Sub-Registrar. The plaintiffs got
their presence marked on 26-12-1972 before the Sub-Registrar, who also appeared as
P.W.4 to substantiate the fact that the plaintiffs appeared before him with an intent to get
the sale-deed registered. Fayyaz Ahmad also appeared before Sub-Registrar on
20-12-1972 as well as on 26-12-1972. Application submitted to the Registrar is also on
the file. From whole of the above stated facts, it is manifestly clear that the plaintiffs were
ready to perform their part of the contract. In case reported as Mst. Khair-ul-Nisa and 6
others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25, the Honourable
Supreme Court has observed that the basic onus of purchasing the land with
consideration and without notice of the previous agreement in good faith, is always on
the subsequent purchaser and if the purchaser appears before the Court and states on oath
that he had no knowledge of the agreement to sell, then burden will shift on the plaintiff
to show that the subsequent vendee had the knowledge of the previous agreement
between .the parties. In this background, it was obligatory upon the petitioners to
establish firstly that they had no knowledge about the previous agreement to sell between
the parties and defendants Nos. 1 to 9, secondly they acted to good faith and also with
due reasonable care get the Exh.P.5 executed in their favour. There is solitary statement of
denial of knowledge by Muhammad Sadiq D.W.4, who has deposed that he had no
knowledge about the sale agreement. However, he has admitted in cross-examination that
before getting the sale-deed executed and registered, they got the knowledge about the
agreement to sell between the parties through the Registrar as an application was
presented by the plaintiffs before the Registrar, who objected registration of the sale.
From the statement of Sub-Registrar P.W.4, who testified that he made notes upon
Exh.P.8 and Exh.P.9 on 27-12-1972 the case of bona fide purchaser with consideration
without notice set up by the petitioners was totally destroyed by one of the defendants
Muhammad Khan, who appeared as his own witness as P. W.6, who deposed that the
subsequent purchasers had the knowledge about the sale agreement prior to execution of
the sale-deed in their favour. Under section 27(b) of the Specific Relief Act, the plaintiffs
could have enforced the agreement against the subsequent vendee. Only exception was
made under section 27 of the Specific Relief Act for protection of the bona fide
purchaser, who had no knowledge of the agreement. Here in this case, for all the facts
stated above, it is crystal cl6ar that the subsequent vendees i.e. defendants Nos.2 to 8 had
the knowledge of the prior agreement to sell dated 26-9-1972 (Exh.P.7) between the
owners and respondents Nos.1 and 2. In this view of the matter, the learned Additional
District Judge rightly on the basis of evidence, reversed the findings on Issue No.6 and
declared that the petitioners being subsequent purchasers were not the bona fide
purchasers without notice. The learned Civil Judge on the basis of misreading of the
evidence, dismissed the suit of the respondents Nos. 1 and 2. The learned Additional
District Judge rightly set aside the judgment and decree passed by the learned Civil Judge
and accepted the appeal of the respondents and decreed the suit. Resultantly, this revision
petition has no force and is dismissed with costs.

Q.M.H./M.A.K./S-467/L Revision dismissed.


P L D 2003 Karachi 270

Before Mushir Alam, J

Miss LILIAN SEN---Appellant

Versus

Mrs. PHYLLIS MERLIN XAVIER ---Respondent

Miscellaneous Appeal No.5 of 2001, decided on 14th October, 2002.

(a) Succession Act (XXXIX of 1925)---

----Preamble, Ss. 4 & 5---Term "succession" ---Meaning.

Succession, though not defined in the Succession Act, 1925 itself, means the devolution
of right, title and interest in the property of deceased unto his kindred in accordance with
law regulating such devolution and distribution of property.

(b) Words and phrases---

----"Succession"---Meaning.

(c) Words and phrases---

----"Adoption"---Definition.

Black's Law Dictionary. 6th Edn. rel.

(d) Succession Act (XXXIX of 1925)---

----S. 5---Succession to property---Adoption---Adoption neither defined nor recognized


under the Succession Act, 1925---Adoption neither under "Islamic Law" nor "Christian
Law" creates any kindred relationship between adopted child and adoptive parent---No
legal rights or obligations flow from either side, thus, none could be claimed or
enforced---Succession to estate of intestate Pakistani is regulated by S.5 of the
Succession Act, 1925.

(e) Islamic Law---

----Inheritance---Adopted child---Status.

(f) Succession Act (XXXIX of 1925)---


----Ss. 5 & 23 to 48---Succession to property---Christian succession---Succession to
movable and immovable property of any intestate in Pakistan is governed under the laws
in Pakistan in terms of S.5 of the Succession Act, 1925--Property in case of Christian
succession devolves upon surviving spouses-or upon those who are kindred in ascending
or descending order to the intestate.

(g) Succession Act (XXXIX of 1925)---

----Ss. 5, 29 & Sched. I---Succession---Adopted child of Christian parent domiciled in


Pakistan---Succession and inheritance rights---Discussed.

Christians domiciled in Pakistan, in matter of inheritance and succession are governed by


Succession Act, 1925. Property of intestate Christian devolves upon the spouse or upon
those, who are either lineal or collaterally kindred to the deceased in ascending or
descending order as set out in Succession Act. Degree of kindred is computed in the
manner set out in the Schedule I of the said Act. Adopted child does not find any mention
in the category of kindred upon whom property of intestate upon his death may devolve.
According to succession laid down under Succession Act, adopted child is not an heir or
kindred entitled upon intestacy to inherit the estate of his/her deceased adoptive parent.

Ranbir Karam Singh v. Jogindra Chandra 1940 All. LJR 1; Makhin Than v. Ma Ahma
AIR 1934 Rang. 72 and Mst. Inayat Bibi and others v. Issac Nazir Ullah and others PLD
1992 SC 385 ref.

(h) Words and phrases---

----"Canon Law"---Its origin and applicability.

Wharton's Law Lexicon, 4th Edn.; Concise Law Dictionary, 5th and Black's Law
Dictionary, (Centennial Edit. 1891-1991 ref.

(i) Code of Canon--

----Canon"--- Enforcement of "Code of Canon" through Court of law---Said Code is


Personal Law for Christians in general---Code of Canon is more of a codification of
certain regulations framed by holder of high religious office/position under Chirstianity
considered to be it conformity with divine law---Code needs authorization of Legislature
before the same could be enforced.

Jhamat Jethanand for Appellant.

Ch. Nasir for Respondent.

Date of hearing: 1st April, 2002.


JUDGMENT
This Appeal under section 384 of the Succession Act, 1925 arises out of an Order dated
10-4-2001, passed by Abdul Rasool Memon, learned IV Additional District Judge,
Hyderabad, whereby, Succession Application No.46 of 1998 was dismissed.

Briefly stated the facts are that, the appellant, adopted daughter of late Mary Mariam Sen,
applied for the grant of letter of administration in respect of the property and estate left
behind by intestate Christian adoptive parent Mary Mariam Sen. It was disclosed in the
petition that deceased has also left behind real daughter Mrs. Phyllis Merlin Xavier.
Succession Petition was objected to by the real daughter on the ground, inter alia, that
adopted daughter, not being legal heir, would not succeed to the estate of the deceased.
Evidence was led by both the parties, out of the pleadings following issues were
framed:--

(1) Whether the succession application is not maintainable?

(2) Whether the succession application is time-barred?

(3) Whether the petitioner has no cause of action?

(4) Whether the petitioner has got any entitlement over the bungalow No.19/B,
Block-E Unit No.6, Latifabad, Hyderabad, left by the deceased Mary Mariam
Sen?

(5) Whether the petitioner has any locus standi in present succession application
being an adopted daughter of the deceased? If so, entitled to get her share from
the estates of the deceased?

(6) Whether the opponent/respondent is also an adopted daughter not?

(7) What should the order be?

Learned Vth Additional District Judge, Hyderabad, vide order dated 10-4-2001 decided
the Issue No.1 against the petitioner dismissed the petition. Mr. Jhamat Jethanand,
learned counsel for the petitioner contended that under the Christian Personal Law the
adopted child is entitled to half the share in the property left by the instate Christian as
per Code of Canon and Laws reported in Halsbury Law of England.

Learned counsel for the respondent maintained that the Christian in Pakistan are
governed under Succession Act, 1925 and are not at all governed under the Code of
Canon or laws as reported in Halsbury Law of England. It was further contended that the
Code of Canon, in any case, applies to the clergy and layman holding ecclesiastical office
and not Christian in general.
I have heard the arguments of learned counsel for the parties at great length, perused the
material available on record.

Engaging question that has arisen in this appeal is, whether under the law governing
succession in Pakistan, a child adopted by a Christian would succeed to the estate of
adoptive parent. Succession, though not defined in the Act itself means the devolution of
right, title and interest in the property of the deceased unto his kindred in accordance with
law regulating such devolution and distribution of property. Whether adoption ipso facto
creates any relationship of kinship, between the adopted child and adoptive parents is to
be examined. Adoption in legal parlance in terms or Black's Law Dictionary (Sixth
Edition) is defined as follows:--

Adoption.--Legal process pursuant to state statue in which a child's legal rights


and duties towards his natural parents are terminated and similar rights and duties
toward his adoptive parents are substituted. To take into one's family the child of
another and give him or her the rights, privileges, and duties of a child and heir.
The procedure is entirely statutory and has no historical basis in common law.

Adoption has not been defined nor is recognized under the Succession Act, 1925.
Adoption neither under 'Muslim Law' nor 'Christian Law' creates any kindred relationship
between the adopted child and adoptive parent whosoever. Succession to the movable and
immovable property of any intestate Pakistani is governed under the laws of Pakistan in
terms or section 5 of the Succession Act, 1925. In case of Christian Succession, the
property devolves upon surviving spouses or upon those who are kindred to ascending or
descending order to the intestate. (See sections 23 to 48 of the Act).

According to the learned counsel for the petitioner in terms of sub-section (2) to section
29 of the Succession Act, 1925 law recognizes "any other law for the time being in force"
to be applicable in case of Christian inheritance. According to him, in terms of Code of
Canon, the adopted Child is entitled to inherit at par with that of real child. According to
Mr. Jhamat, Code of Canon' is Code of Christian Personal Law and is to be made
applicable, like Muslim Personal Law, applies to Muslim Succession.

He contends that according to Canon 22 and 110 of the Code of Canon Law and paras.
615, 629 and 630 of Halsbury Law of England governing the Christian Personal Law, the
petitioner is entitled to inherit from the deceased being her adopted child. According to
the learned counsel the Christian Personal Law is not mentioned in the Succession Act,
1925, therefore, the succession of the Christian would be governed under the law as is
applicable. In order to appreciate his contention, it will be advantageous to reproduce
section 29 of the Succession Act, 1925 which runs as follows:

"29. Application of Part.--(1) This Part shall not apply to any intestacy occurring
before the first day of January, 1866, or to the property of any Hindu,
Muhammadan, Buddhist, Sikh and Jaina.
Save as provided in subsection (1) or by any other law for the time being in force,
the provisions of this part shall constitute the law of [Pakistan] in all cases of
intestacy."

At the first sight there is lure in this argument. But on close examination, I do not find
any force. Arguments of Mr. Jhamat Jethanand, cannot be sustained for many reasons
firstly, by virtue of section 29(1), Part V of the Act of 1925 (i.e. sections 29 to 56) do not
apply to the property of any intestate Hindu, Muslim, Buddhist, Sikh and Jaina. It may be
noted that the "Christian and Parsis" are conspicuously excluded in the categories of
person whose intestate succession is not governed under Part V of the Act. Part V of the
Act applies to Christians, Parsi and other communities professing religion or belief other
than those mentioned in subsection (1) to section 29. Secondly, by virtue of Muslim
Personal Law (Shariat) Application Act, 1937 succeeded by West Pakistan Muslim
Personal Law (Shariat) Application Act, 1962 all questions regarding succession (whether
testate or intestate) in cases where parties are Muslims, are governed under Muslim
Personal Law i.e. Shariat. There is no contemporary legislation in Pakistan as far as
Christians are concerned. Reliance of the learned counsel on the Code of Canon is
misplaced. Cannon Law, its origin and applicability is detailed in ' Wharton's Law
Lexicon" (Fourteenth Edition) as follows:

"Canon Law.--When Christian communities formed themselves into


congregations, certain resolutions were agreed upon for their government; these
were termed rules (kavoves, forma, disciplina); and the phrases canonica sanctio,
lex canonica, and canonum jura, were not introduced until the ninth century, nor
the phrase jus eanonicum until the canon law began in the twelfth century to be
treated as a science. The cannon law, properly so called, denotes the i
ecclesiastical law, sanctioned by the Church of Rome. It borrows from the Roman
Law many of its principles and rules of proceeding, though not servilely, nor
without such variations as the independence of its tribunals and the different
nature of its authorities might be expected to produce. See Hall. Lit. Hist.

The, canons made in England in 1603, and revised in 1866, are binding on the
clergy only (see per Lord Hardwicke in Middleton v. Croft, (1737) 2 Str.1056),
some of them being very archaic, as canon 72, by which it is unlawful for any
minister to attempt to cast out devils, except with the licence of the bishop of the
diocese. They are made by Convocation, but by the Act of Submission (25 Hen. 8,
c. 19), the Royal license is required for the making of any new canon. "

Canon law in Concise Law Dictionary (Fifth Edition) is defined as follows:

Canon Law.--A body of Roman ecclesiastical law, compiled from the opinions of
the ancient Latin fathers, the decrees of general councils, and the decretal epistles
and bulls of the Holy See. It was codified in the twelfth century by Gratianus, and
added to by subsequent collections, and known as the Corpus Juris Canonica,
In this country, canon law means the law of the Church of England, unless
subsequently receiving the authorization of Parliament or merely declaratory of
ancient customs, such canons bind only the clergy and laymen holding
ecclesiastical office; e.g., churchwardens.

In Black's Law Dictionary (Centennial Edition 1891-1991), it is further elaborated as:

"'The Canon Law' is contained in two principal parts.,-- the decrees or


ecclesiastical constitutions made by the popes and cardinals and the decretal or
canonical epistles written by the pope and cardinals, at the suit of one or more
persons. As the decrees set out the origin of the Canon Law, and the rights,
dignities, and decrees of ecclesiastical persons, with their manner of election,
ordination, etc. So the decretals contain the law to be used in ecclesiastical Courts,
the Canon law form no part of the law of England, unless it has been brought into
use and acted on there. "

Therefore, it cannot be said that the 'Code of Canon is Personal Law for Christians in
general, in fact, Code of Canon are more of a codification of certain regulation framed by
holder of high religious office/position under Christianity considered to be in conformity
with divine law. It needs authorization of Legislature before it could be enforced. I
Contentions, similar to one raised by Mr. Jhamat, were also raised in the case of Ranbir
Karam Singh v. Jogindra Chandra (1940 Allahabad Law Journal Reports 1), wherein a
Sikh, converted to Christianity; adopted a child, who invoked section 5 of Punjab Laws
Act, 1872 which recognizes custom applicable to the parties concerned, in case of
succession by adoption. It was held that there is absolutely no mention of adoption in the
Indian Succession Act, as creating any kind of relationship whatsoever succession to the
estate of an Indian Christian who was a convert from Sikhism cannot be governed by the
custom prevailing among the Sikhs of the particular place in the Punjab to which he
belonged. In another case, a Christian woman while she was Buddhist adopted a girl as a
daughter with a view to inherit but she subsequently became Christian and died as a
Christian intestate. In a claim of succession by the adopted daughter trial Court allowed
the claim. However in Appeal reported as Makhin Than v. Ma Ahma (AIR 1934 Rangoon
72), it was held that according to the rule of succession laid down under Succession Act,
an adopted child is not an heir entitled upon an intestacy to, inherit the estate of his
deceased adoptive parent. "

In a case from Pakistan Jurisdiction relating to Christian inheritance reported as Mst.


Inayat Bibi etc. v. Ism Nazir Ullah, etc. (PLD 1992 SC 385) in which case Punjab
Customary Law were invoked, by virtue of section 5 of Punjab Laws. Act, 1872. Apex
Court declined to apply Customary Laws of Punjab, for two-fold reasons, set out at Page
558 of the reported judgment as follows:

"One, that the Succession Act did alter the customary succession in so far as
Christians are concerned; and also for them it abolished customary law in Punjab,
therefore, the same would not be applicable.
Secondly, that the Privy Council judgment in the present case is fully attracted. Even if
we are not otherwise bound to accept the Privy Council view today as binding on this
Court; yet there is nothing therein not to commend itself as a correctly laid down legal
proposition. The Christian females, similarly as in the present case, were allowed to
inherit in presence of male heirs. It is thus a case of the application of the Succession Act,
which by Statutory dispensation having determined the mode of succession when a
Christian male dies, neither the question of Custom nor any other law relied upon by the
learned counsel, would be applicable."

As already observed adoption either under Christianity or Muslim Law ipso facto does
not create any kindred relationship between the adopted child and adoptive parent, no
legal rights or obligations flow from either side, therefore, none could be claimed or
enforced. The process of adoption and assumption of any rights and obligations as akin to
blood kindred are all statutory and governed under Municipal Law in England where
disposition of property of an adopted parent or child is dealt with under the Children Act;
1975, earlier it was regulated under the Adoption Act, 1958. There is no such
contemporary law in Pakistan. Succession to the estate of Intestate Pakistani is regulated
by laws of Pakistan (section 5 of the Act, 1925).

Learned counsel for the appellant was not able to place any material on record to show
that a Pakistani domiciled Christian in the matter of succession would be governed under
any personal, customary law, code of .canon or laws of England.

The upshot of the above discussion is that the Christian domiciled in Pakistan, in the
matter of inheritance and succession are governed by the Succession Act, 1925. Property
of intestate Christian devolves upon the spouse or upon those who are either lineal or
collaterally kindred to the deceased in ascending or descending order as set out in the
Succession Act. Degree of kindred is computed in the manner set out in the Schedule 1 to
the Act. Adopted child does not find any mention in the category of kindred upon whom
property of intestate upon his death may devolve. According to the succession laid down
under the Succession Act, appellant an adopted child is not an heir or kindred entitled
upon intestacy to inherit the estate of her deceased adoptive parent.

In view of the foregoing discussion, finding no merits in the appeal, same is dismissed.

S.A.K./L-26/K Appeal dismissed.


P L D 2002 Lahore 283

Before Muhammad Nawaz Abbasi, J

Mst. IRFANA SHAHEEN ---Petitioner

Versus

ABID WAHEED---Respondent

Criminal Miscellaneous Nos. 109-H and 130-H of 2001, decided on 2nd October, 2001.

(a) Criminal Procedure Code (V of 1898)-------S. 491---Writ of habeas


corpus---Scope---Powers under 5.491, Cr.P.C. were to be exercised only in cases of
illegal and improper custody and not for any other consideration including social status
and financial position of the parties.

(b) Islamic Law------- Custody of minor---Adoption---Right of Hizanat of foster mother


in respect of an adopted minor---Parties being husband and wife had willingly adopted
infant child jointly when they were in marriage---After dissolution of marriage ex-wife in
exercise of right of Hizanat of mother in Islam claimed custody of infant child on the
ground that after dissolution of marriage between the parties the man being not real -
father of the child would have no special or preferential right over female to retain
custody of minor child---Validity---Female partner in adoption had accepted duty and
responsibility of bringing up the child with motherly love and affection which
responsibility could not be discharged by the male---Female being the most essential
partner of adoption in light of concept of right of custody of such child in Islam, would
exclusively be entitled to custody of the female child---Welfare .of the child would also
demand that minor girl should remain in custody of female partner of adoption---Female
partner having enjoyed status of mother of the minor would be entitled to retain her
custody in exercise of right of Hizanat and would not be deprived of such right---High
Court directed that custody of- minor with female partner was not to be disturbed except
in accordance with law.

(c) Islamic Law------- Custody of minor---Abandoned child---Newly born child was


found lying in an open space and the petitioner being an issueless lady having desired for
the child, with consent of local police and respectable of the area, obtained custody of the
infant as an adopted child---Lady, having willingly adopted the child should have
exclusive right to retain custody of child and institution of Gehwara or any other official
organization or a private person, except real mother and father of the child, would have
no right to deprive the said lady from custody of child as mother---Lady having
voluntarily accepted responsibility of bringing up the child as her daughter, she would be
entitled to custody of child adopted by her without intervention of "Gehwara Institution"
---Lady in the interest of welfare of child and to regulate matters relating to custody as an
adopted child, would give undertaking to Gehwara for giving motherly love and affection
to the child and abide by rules and regulations of Gehwara relating to adoption of child.

(d) Constitution of Pakistan (1973)-------Part II, Chap. 2 [Arts. 29 to 40]---Principles of


Policy, Arts. 31 & 35--Providing shelter to orphan, destitute etc.---Mandate of Holy
Qur'an--Federal and Provincial Governments are under Constitutional obligation to
establish institutions like Gehwara at large scale to regulate the affairs of unattended
children in the light of the mandate of Holy Qur'an and Sunnah of the Holy Prophet
(p.b.u.h.) as provided in Chap.2 of Part II of the Constitution of Pakistan (1973).

Ghulam Rabbani Qureshi for Petitioner.

Tanvir Iqbal for Respondent.

Dr. Zubair Awan:- Amicus curiae.

ORDER

Criminal Miscellaneous No. 109-H of 2001 and Criminal Miscellaneous No. 130-H of
2001 involving the common question of law and facts are proposed to be disposed of
through this single judgment.

2. Mst. Irfana Shaheen has moved Criminal'Miscellaneous No. 109-H of 2001 under
section 491, Cr.P.C. against Abid Waheed for recovery of the minor girl namely Arooj
from his custody and delivery of the custody of the girl to the petitioner. Abid Waheed
was married with the petitioner in the year 1992. The spouses being issueless approached
a Social Institution namely Gehwara being run under the control of Social Walfare
Department, Government of the Punjab, and adopted a female child aged about one
month and twelve days. Subsequently, the relations between the parties became strained
and the respondent ousted the petitioner from the house with the minor. The petitioner
having taken shelter in the house of her parents filed a suit for dissolution of marriage
against the respondent. The suit was decreed by the learned Judge Family Court at
Kahuta vide judgment dated 5-12-2000 and marriage was dissolved on the ground of
Khula'. Mst. Irfana Shaheen through this petition has sought the custody of the minor
who was allegedly snatched from her by the respondent forcibly on dissolution of
marriage and despite repeated request did not return the custody of the minor to the
petitioner.

2. In Criminal Miscellaneous No. 130-H of 2001, Gul Zareena petitioner has sought
similar direction for recovery and production of infant child of the age of about fifteen
days from the custody of Incharge Gehwara, tespondent No.2, in this petition for handing
over the custody of the child to her. The facts in this petition in the background are that
during the night of 18/19 September, 2001, a newly-born baby was found lying in an
open space near a mosque in Taxila and the petitioner being issueless having desired for
-the child with the consent of the local police and the respectable of the Village, the
petitioner obtained the custody of the infant as an adopted child. The local police,
however, having entered report at Police Station Taxila registered a case under section
328, P.P.C. vide F.I.R. No.480 dated 19-9-2001 - against unknown person. The petitioner
with a view to avoid any complication, on the advice of local police moved an application
before a Judicial Magistrate at Taxila for regularization of the custody 'of the minor with
her. The learned Magistrate instead of permitting the petitioner to retain the custody of
the minor directed the Investigating Officer to hand over the infant to Gehwara, an
Institution being run under the control of Social Welfare Department, Government of the
Punjab. Mst. Gul Zarina approached Incharge Gehwara, respondent No.2, for custody of
the child but the said respondent refused to hand over tile custody of the minor to her, and
consequently Mst. Gul Zarina having questioned the legality of the order dated 19-9-2001
passed by the Judicial Magistrate has moved this application under section 491, Cr.P.C.
for the custody of the infant child.

4. The essential question relating to the right of custody of an adopted child involved in
these petitions needs determination in the light of the concept of adoption of a child in
Islam. The petitioner in Criminal Miscellaneous No. 109-H of 2001 upon separation
claimed the custody of Mst. Arooj, a minor girl, who was jointly adopted by the parties.
The petitioner being female in the light of right of Hazanat of mother in Islam has
claimed the custody of infant child on the ground that the respondent being not real father
of the child would have no special or preferential right over the petitioner to retain the
custody of the minor girl. The respondent on the other hand has contended that he having
adopted the minor girl as father with the acceptance of responsibility of bringing up the
child as his daughter would be entitled to retain the custody of the child and that the
welfare of the minor girl would also demand that the respondent should retain her
custody.

5. The question in the present petitions under section 491, Cr.P.C. would confine only to
the extent of adoption of abandoned and destitute children and the right of their custody
in Gehwara, an Institute of Government of Punjab, under a recognized policy discharges
the service of giving the custody of such children to the needy people and regulate the
custody of adopted children in their welfare with their custodian. The powers, under
section 491, Cr.P.C. are exercised only in cases of illegal and p improper custody and not
for any other consideration including the social status and financial position of the
parties.

6. In the light of the nature of the issue and its public importance, Dr.Zaheer-ud-Din
Babar Awan, an Advocate of this Court who is wellconversant with Islamic Law was
requested to assist the Court as amicus curiae. The learned counsel with reference to the
Qur'anic Verses and authoritative Books written by Muslim Jurists submitted that the
female in the light of concept of Foster Mother would have first right of custody of a
female minor and similarly she would be entitled to exercise right of Hazanat in the
matter of custody of an adopted child. Learned counsel quoted (a) Surat Al-Nisa, Verse
No.23 which provides as under:--

"Prohibited to you (For marriage) are:--


Your mothers, daughters, Sisters: father's sister, mother's sister, brother's
daughters, Sister's daughters; foster-mothers (Who gave your suck),
forster-sisters, Your wives' mothers, Your stepdaughters under your guardianship,
born of your wives To whom ye have gone in,--(Those who have been) Wives of
your sons proceeding From your loins; And two sisters in wedlock At one and the
same time, Except for what is past; For All/is Oft-forgiving, Most Merciful",--

(b) The discussion on the subject in the light of above Ayat is found in a Book
published in the name of Holy Qur'an English translation of the meanings and
Commentary in Saudi Arabia. The relevant portion is read as under:--

"Foster male played an important part in Islamic Society and count like
blood-relationships: it would, therefore, seen that not only foster-mothers and
foster sisters but foster mother's sister, etc, all come within the prohibited degree."

(c) Ayat No.2 of Surat Al-Majadla reads as under:--

Urdu

(d) The discussion on the issues relating to the social problem of adopted child
from a Book "Anwar-ul-Quran" written by Dr.Ghulam Murtaza. The relevant
portion at page 538 of the said Book is read as under:--

Urdu

(e) In a Book written by Allama Abu Bakkar Allaw-ud-Din Kasani under Chapter
Kitab-ul-Raza, the issue was discussed at page 14 as under:--

Urdu

(f) Similar issue was expressed in "Fatawa Aalam Giri" at page 266 (Second
Volume) and the Muslim Jurists in the following manner:--

(i) Hanfite, in the light of the right of Hazanat, mother is entitled to the custody of
the minor child notwithstanding the dissolution of marriage or its existence
between the parties.

(ii) Malkia: The custody of the child will go to the mother and after mother, the
preference will be given to maternal side and not the paternal side.

(iii) Shaafia: In presence of father and mother, the preference shall be given to the
mother and in absence of mother, the grandmother shall be entitled to the custody
of the female child and in absence of grandmaternal mother, the grand-paternal
mother will be entitled and, thereafter the mother's sister and father's sister
respectively. On the male side, the first right goes to the father and in absence of
father, the grandfather and brother and step-brother etc.
(iv) Hambalia: The mother has the first right of custody.

In nutshell, the learned counsel contended that the principle for the custody of an adopted
minor should not be different to that of a real child except the certain limitations relating
to the inheritance. Learned counsel has, however, submitted that the concerned Ministries
and Departments in the Provincial and Federal Governments are under a legal and moral
obligation to regulate the matters relating to the custody of destitute child in their welfare
and should establish Institutions for orphans, abandoned and destitute children as a State
obligation as provided under Chapter 2 of the Constitution (Principle of Policy) and made
special allocation for their education, health and marriages etc. from Zakat Funds.

7. Having considered the arguments of the learned counsel for the parties and Dr.
Z.13abar Awan, Advocate, who has rendered a very valuable assistance to the Court, I
hold as under:--

(a) The parties in Criminal Miscellaneous No.109-H of 2001, have jointly adopted a
minor girl from Gehwara Institution, therefore, respondent would have no exclusive right
of custody of the minor son or daughter, as the case may be, being the male partner of the
transaction of adoption. The parties willingly adopted the child jointly when they were in
marriage tie. The petitioner accepted the duty and responsibility of bringing up the child
with motherly love and affection and how after the dissolution of marriage, the said
responsibility can be discharged by the respondent or can be shifted to any other woman.
The petitioner being the most essential partner of adoption in the light of the concept of
right of custody of such H child in Islam would exclusively be entitled to the custody of
child. The welfare of the child at this stage would also demand that he/she should remain
in the custody of the female partners of adoption. In nutshell, the petitioner having
enjoyed the status of mother of the minor would be entitled to retain her custody in
exercise of the right of Hazanat and would not be deprived of such right for wordily
consideration, I, therefore, allow this application and direct that the I custody of the
minor with the petitioner shall not be disturbed except in accordance with law.

(b) In Criminal Miscellaneous No.130-H of 2001, the petitioner is the sole contestant for
the custody of the child, who has willingly adopted the abandoned child with the consent
of the people of the area. Undoubtedly, the Institution namely Gehwara is rendering a
noble service for the settlement of destitute and abandoned child and regulates the
matters relating to the adoption by giving their custody to the needy people but the
petitioner having willingly adopted the child would have exclusive right to retain his
custody and the institution of Gehwara or any other official Organization or a private
person except the real mother and father of the child would have no right to deprive the
petitioner from the custody of the child as mother. The petitioner has voluntarily accepted
the responsibility of bringing up the child as her son/daughter as the case may be,
therefore, under the law, the petitioner shall be entitled to the custody of the child adopted
by her without the intervention of Gehwara. However, in the interest of welfare of child
and to regulate the matter relating to his custody as an adopted child, the petitioner will
give an undertaking to Gehwara for giving motherly love and affectiop, to the child and
abide by the Rules andr Regulations of Gehwara relating to the adoption of child and will
not further deliver his/her custody to any other person without the permission of
Gehwara. It may be observed that with a view to provide shelter to the orphans and
destitute children, the Federal and Provincial Governments are under Constitutional
obligation to establish such Institutions at large scale to regulate the affairs of such
unattended children in the light of mandate of Holy Qur'an and Sunnah of Holy Prophet
(p.b.u.h.) as provided under Chapter 2 of the Constitution of Islamic Republic of
Pakistan, 1973.

These petitions are, therefore, allowed in the above terms.

8. The copy of this order shall be sent to the Ministry of Religious Affairs, Government
of Pakistan for possible action in the matter.

H.B.T./I-105/L Petition allowed.


2007 C L D 1

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Faqir Muhammad Khokhar and Mian
Shakirullah Jan, JJ

Civil Appeals Nos. 2296 to 2412 of 2001

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and others---


Appellants

Versus

Haji MUHAMMAD SADIQ and others---Respondents

(On appeal from the judgment and order of High Court of Sindh, Karachi dated 22-12-2000
passed in C.Ps. Nos. 1216, 1452, 2287, 1454, 1471, 1969, 1795, 774, 1064, 693, 1517, 463,
1521/1993, 1545/92, 1092, 1514, 1841, 204, 3430, 932, 762, 3163, 1038, 3146, 775, 1541,
1290, 3186, 1160, 1735, 1468, 140, 2616, 1470, 805, 2818, 1456, 2136, 3514, 3147, 1063,
748, 1036, 506, 3167, 1518/93, 3164/92, 1513, 694, 2872, 224, 691/93, 225/94, 1379,
2471, 704, 1031/93, 186, 1342, 1371, 2873, 692, 1736, 3389, 1453, 1472, 2874, 1159/93,
3185/92, 804-D/93, 3165/92, 275-D/93, 2617/93, 3166-D/92, 1457/93, 1794-D/93,
690/93, 1116-D/93, 1281/93, 1694, 1333/93, D-226/93, D-1098/94, D-1405/98, D-
1372/94, D-1449/93, D-1494/93, D-1519/93, D-1532/94, D-1951/93, D-1971/93, D-
1796/93, D-3137/92, D-151/93, D-255/93, D-734/93, D-735/93, D-769/93, 934/93,
1099/94, 1143/93, 1189/95, 1217/93, 1372/94, 1386/93, 1794/93, 1970/93, 2193/93,
2194/93, 3098/93 and 3146/92).
Civil Appeals Nos.2707-2717 of 2001

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and


others---Respondents

(On appeal from the judgment and order of High Court of Sindh, Karachi dated 22-12-
2000 passed in C.Ps. Nos.D-148, 152, 727, 729, 736, 775, 1064, 1099, 1468, 1521 and
1541/1993).

Civil Appeal No.516 of 2002

INDUSTRIAL DEVELOPMENT BANK OF PAKISTAN---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and


others---Respondents

(On appeal from the judgment and order of High Court of Sindh at Karachi dated 30-10-
2001 in C.P. No.D-2342/93).

Civil Appeal No.934 of 2002


ICC TEXTILE MILLS, LTD.---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and others---


Respondents

(On appeal from the judgment and order of Lahore High Court Lahore dated 4-4-2002
passed in W.P. No. 9705).

Civil Appeals Nos. 1087-1091 of 2004

Messrs PAK ELECTRON LTD. and others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and others---


Respondents

(On appeal from the judgment and order of the Lahore High Court, Lahore dated 4-4-
2002 passed in W.Ps. Nos. 23072/96, 316-317/97 and dated 27-5-2004 in W.Ps. Nos.
21760 and 20642/1996).

Civil Appeals Nos.2254-2403 of 2005


Messrs FAISAL ASAD TEXTILE MILLS LTD. and others---Appellants

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance and others---


Respondents

(On appeal from the judgment and order of Lahore High Court, Lahore dated 4-4-2002 in
W.Ps. Nos. 151/94, 1082/93, 3895/92, 12059/97, 743/93, 744/93, 795/93, 742/93, 918/96,
2512/97, 10691/95, 5686/96, 4915/95, 4919/95, 4917/95, 4918/95, 776/93, 4916/95,
121010/92, 12011/92, 685/93, 22007/92, 12139/92; 101/93, 11060/92, 102/93, 12091/92,
12014/92, 12092/92, 11059/92, 12013/92, 11061/92, 12008/92, 12012-92, 3730/96,
2063/96, 12143/92, 12141/02, 12142/02, 4599/94, 16565/96, 2293/97, 16567/96,
7601/97, 704/97, 703/97, 1851/93, 12445/92, 12450/92, 1770/98, 1357/93, 1580/93,
16520/95, 216522/95, 2918/93, 1046/93, 12665/96, 12768/96, 11238/97, 1267/96,
1263/96, 12674/96, 12676/96, 12695/96, 12696/96, 19120/01, 20059/96, 20060/96,
2901/93, 3309/93, 3513/97, 4073/97, 7039 to 7041/93, 2454/93, 2523/93, 2526-2530/93,
3995/93, 14284/93, 14285/93, 243/93, 436/93, 492/93, 2525/93, 2531/93, 5317/93,
11294/95, 1407/92, 13775/96, 3543/93, 509/93, 1083/93, 2524/93, 322/94, 989/93,
3000/94, 3001/94, 3004-3005/94, 13894/94, 8113/95, 8115/95, 8116/95, 8117/95, 987/93,
17214/96, 17215/96, 17218/96, 10057/97, 10045/97, 10061/97, 10063/97, 13179/96,
613/96, 12333/92, 10054/97, 2593/96, 611/96, 2594/96, 2592/96, 609/96, 2595/96,
606/96, 610/96, 605/96, 607/96, 4099/93, 10055/97, 12334/92, 10056/97, 612/97,
608/96, dated 20-8-2002 in W.P. No.3896/1992, dated 4-4-2002 in W. P. No. 2596/96,
1408/93, 5412/93, dated 24-9-2002 in W.P. No. 18702/2001, dated 4-4-2002 in W.Ps.
Nos.1884/96, 20753/96, dated 18-6-2002 in W.P. No. 319/93 and dated 4-4-2002 in
W.P.No.7078/ 1993).

Civil Appeals Nos.2410-2423 of 2005

FEDERATION OF PAKISTAN and others---Appellants

Versus
GUL AHMAD TEXTILE MILLS LTD. and others---Respondents

(On appeal from the judgment and order of High Court of Sindh, Karachi passed in C.Ps.
Nos. 462, 780, 2289/93, 2136/94, 841/93, 3139/92, 147/03, D-54/94, D-2190/93, D-
254/93, D-2202/93, D-933/93, D-1-331/93 and 1606-D/1993).

Civil Appeals Nos.2433-2436 of 2005

THE PAK PUNJAB MANUFACTURING COMPANY (PVT.) LTD. and others---


Appellants

Versus

FEDERATION OF PAKISTAN and others---Respondents

(On appeal from the judgment and order of Lahore High Court, Lahore dated 4-4-2002 in
W.Ps. Nos.17307, 17309, 17310 and 17314 of 1993).

Civil Appeals Nos. 2296 to 2412, 2707-2717 of 2001, 516, 934 of 2002, 1087-1091 of
2004, 2254-2403, 2410-2423, 2433--2436 of 2005, decided on 22nd February, 2006.

(a) Islamic Banking---

----Islamic modes of financing, adoption of---Expressions "loan", "interest" etc., would


be alien to Islamic Banking system.
(b) Central Excise Act (I of 1944)---

---Ss. 2(20), 3 & First Sched. Part-II, Item 14.14---Excisable Services---History stated.

(c) Central Excise Act (I of 1944)---

----Ss. 2(20), 3, 3-C(1)(b), 4(3), 7(1) & First Sched. Part-II, Item 14.14 [as inserted by S.5
of Finance Act (XII of 1991) and then replaced with Item No.9813.0000 by Finance Act
(XII of 1994)]---Constitution of Pakistan (1973), Arts, 144, 163 & Fourth Sched.---Levy
of excise duty on services provided or rendered to its customers by Institutions named in
Item 14.14 of Part-II of First Sched. of Central Excise Act, 1944---Validity---Legislature
was competent to levy excise duty on excisable services by inserting Item 14.14 in First
Sched. of Central Excise Act, 1944---Such Item was part of the Central Excise Act, 1944
for purposes of charging duty on services in respect of advances made to any person---
First Sched. was appended with Central Excise Act, 1944 to cater requirement of S.3
thereof being a charging section---Constitutionality of such Item, thus, could not be
testified on touchstone of S.3 of Central Excise Act, 1944 for being constitutional---In
case of irreconcilable inconsistency between such Item and S.3 of Central Excise Act,
1944, such Item would yield to section 3 thereof---Legal nexus between such Item and
S.3 of the Act, existed for both being part of a statute---Word "services" used in plural
sense in Column II of such Item would cover all services provided to its customers by
Institutions named therein---Criteria or measure to calculate duty provided in Column II
of such Item was neither vague nor ambiguous---Excise duty would be calculated on the
volume of loan/advance at the rate specified in Column III of such Item---Such
Institutions would have a recurring cause of action for purpose of effecting recovery of
excise duty on services being provided on monthly basis on volume of advance/loan,
which would be calculated on last working day of each calendar month---Expressions/
words used in S. 2(20) of Central Excise Act, 1944 and such item would be interpreted
keeping in view their popular meanings---Words facilities", "loans", "utilities" and
"advances" would be considered in popular sense---Such Item did not speak in respect of
Modaraba or Musharka etc., but after its replacement with Item No.9813.0000 by Finance
Act, 1994, excise duty became chargeable on services provided or rendered by Banking
Companies, Insurance Companies, Cooperative Financing Society, Modaraba, Musharka,
Licensing Companies, Non-Banking Companies and other person dealing in such
services---Levy of excise duty would depend upon services being provided in respect of
advances to a person, but no sooner when there was no advance outstanding, Bank would
not be deemed to be providing or rendering any service as transaction between Bank and
customer came to an end--Financing Company would enjoy recurring cause of action till
adjustment of loan---Day on which excisable service was rendered/provided would be the
date for determination of excise duty---Rate of excise duty mentioned in Item 14.4 of
First Schedule, Part II of the Central Excise Act, 1944 was just, proper and not
arbitrary---Levy of excise duty at such rate being an indirect tax would not 1-'urden such
Institutions, but would be passed on to its customs---Principles.

South Behar Sugar Mills Ltd. v. Union of India AIR 1968 SC 922; Hirjina & Co. v.
Islamic Republic of Pakistan 1993 SCMR 1342; Elahi Cotton Mills Ltd. v. Federation of
Pakistan PLD 1997 SC 582; Pakistan Industrial Development Corporation v. Pakistan
1992 SCMR 891; United Provinces v. Atiqa Begum AIR 1941 FC 16; Navinchaandra
Mafatlal v. Commissioner of Income Tax [1954] (XVI) I'I'R 758; Bisvil Spinners v.
Superintendent Central Excise PLD 1988 SC 370; Ghulam Hyder Shah v. Chief Land
Commissioner 1983 CLC 1585; Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66;
A&B Food Industries Ltd. v. Commissioner of Income/Sales Tax Karachi 1992 SCMR
663; Commissioner of Agricultural Income Tax East Bengal v. B.W.M. Abdul Rehman
PLD 1973 SC 445; Excise and Taxation Officer Karachi v. Burma Shell Storage and
Distribution Company of Pakistan 1993 SCMR 338; Mondi's Refreshment Room & Bar,
Karachi v. Islamic Republic of Pakistan PLD 1983 Kar. 214; Sohail Jute Mills Ltd. and
others v. Federation of Pakistan PLD 1991 SC 329; ICC Textiles Ltd. v. Federation of
Pakistan 2003 PTD 1017; P. Kunhammad Kutty Haji v. Union of India [1989] 176 ITR
481; Ocean Industries Ltd. v. Industrial Development Bank PLD 1966 SC 738; Jamat-i-
Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111; Buxa Dooars Tea Company
Ltd. v. State of West Bengal AIR 1989 SC 2015; Govind Saran Ganga Saran v.
Commissioner of the Sales Tax (1985) 155 ITR 144; Commissioner of Sales Tax v. Hunza
Central Asian Textile and Woolen Mills Ltd. 1999 PTD 1135; Reference No.2 of 2005
PLD 2005 SC 873; 2002 CLC 1714; Messrs Central Insurance Co. v. The Central Board
of Revenue 1993 SCMR 1232; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC
324; Pakistan v. Public at large PLD 1987 SC 304 and Mrs. Zehra Begum v. Pakistan
Burmah-shell Ltd. PLD 1984 SC 38 ref.

Abdul Rahim v. UBL PLD 1997 Kar. 62; Excise and Taxation Officer Karachi v. Burma
Shell Storage and Distribution Company of Pakistan 1993 SCMR 338; Messrs Army
Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652: Chambers Concise
Dictionary (pg. 53); Habib Bank Limited v. Messrs Farooq Compost Fertilizer
Corporation Ltd. 1993 MLD 1571; Habib Bank Limited v. Messrs Qayyum Spinning Ltd.
2001 MLD 1351; Muhammad Shafi v. Wealth Tax Officer 1992 PTD 726 and Messrs
ICC Textile Ltd. and others v. Federation of Pakistan and others 2001 SCMR 1208 rel.

(d) Words and phrases----


--"Service" -Meaning.

Advanced Law Lexicon 3rd Edition Volume 4 (2005) ref.

(e) Interpretation of statutes---

----Fiscal statute---Language used in fiscal statute would be interpreted in its literal and
ordinary meanings in favour of taxpayer.

Government of Pakistan v. Messrs Haswani Hotel Ltd. PLD 1990 SC 68; Messrs Army
Welfare Sugar Mills Ltd. v. Federation of Pakistan 1992 SCMR 1652; Messrs Bisvil
Spinners Ltd. v. Superintendent Central Excise and Land Customs PLD 1988 SC 370 and
Abdul Rahim v. United Bank Ltd. PLD 1997 Kar. 62 fol.

(f) Interpretation of statutes---

----Not safe to compare language in one statute with that employed in another, even
though subject covered by the two may involve similarities.

Abdul Rahim v. UBL PLD 1997 Kar. 62 ref.

(g) Words and phrases----

---"Advances"-Meaning.
Words and Phrases Vo. 2-A (pg. 117) and Corpus Juris Secundum Vol. 2 page 496-97 ref.

(h) Interpretation of statutes---

--Law should be interpreted in such a manner, that same should be saved rather than
destroyed.

Elahi Cotton Mills PLD 1997 SC 582 and Corpus Juris Secundum Vol. 2 pg. 496-97 rel.

(i) Interpretation of statutes---

----Schedule appended with statute---Legal status---Schedule placed/appended with an


enactment is an extension of the section for the purpose of which same has been inserted.

(j) Interpretation of statutes---

--Act and Schedule, conflict between---Schedule being an enjoinder equal status of an


enacment; in case of such conflict, Act would prevail and Schedule would yield to the
Act---Principles.

Excise and Taxation Officer Karachi v. Burma Shell Storage and Distribution Company
of Pakistan 1993 SCMR 338; Craies on Statute Law Seventh Edition 1971 p. 225; N.S.
Bindra's The Interpretation of Statutes Seventh Edition at pg. 92 and Understanding
Statutes S.M. Zafar rel.

(k) Interpretation of statutes---


----Fiscal statute constitutional validity of---Determination---Principles stated.

The Court is bound while examining whether particular matter falls within a fiscal statute
is required to examine the letter of the law, and if it comes to the conclusion that all the
expressions used by the legislature are to be taken into consideration its popular meaning,
then there should not be hesitation in maintaining the constitutionality of particular law.

Corpus Juris Secundum Vol. 84 page 246; Commissioner of Agricultural Income Tax East
Bengal v. B.W.M. Abdul Rehman 1973 SCMR 445; Tenant v. Smith 1892 AC 150;
Interpretation of Statutes Fourth Edition at page 977; Sohail Jute Mills Ltd. v. Federation
of Pakistan PLD 1991 SC 329 and Mian Ejaz Shafi v. Federation of Pakistan and others
PLD 1997 Kar. 604 ref.

(l) Interpretation of statutes---

----Laws relating to economical activities, interpretation of---Principles stated

The Court while interpreting laws relating to economical activities view the same with
greater latitude than the law relating to civil rights such as freedom of speech, religion
etc., keeping in view the complexity of economic problems, which do not admit of
solution through any doctrinaire or strait jacket formula.

Elahi Cotton Mills PLD 1997 SC 582 fol.

(m) Interpretation of statutes---

----Fiscal statute---Taxing measure---Ultra vires to the Constitution---Determination---


Reasonableness or otherwise of such measure would be a matter of legislative policy and
not for the Courts for adjudication.
Anoud Power Generation Ltd. v. Federation of Pakistan PLD 2001 SC 340 rel.

(n) Constitution of Pakistan (1973)----

--Arts. 25, 184, 185(3) & 199---Pakistan Citizenship Act (II of 1951), S.2---
Constitutional petition by a Company challenging constitutionality of a statute on
touchstone of Art. 25 of the Constitution---Not maintainable without joining its
shareholder/director-Principles.

Undoubtedly, the companies have got fundamental rights to carry on business through its
representatives, who are the citizens of Pakistan, but for the purpose of challenging the
constitutionality. of a statute, it would be a condition precedent to satisfy that challenge is
by a citizen at the touchstone of Article 25 of the Constitution, which provides that all
citizens are equal before the law and are entitled to protection of law. Expression
"citizen" means a citizen of Pakistan as defined by law under Article 260 of the
Constitution.

A company incorporated under the Companies Act, 1913 or the Companies Ordinance,
1984, does not fall within the definition of a citizen. However, the constitutionality of a
legislation, which has impaired the rights of a company, can be challenged through a
shareholder.

An incorporated company does not fall within the definition of citizen. However,
constitutionality of a statute can be examined for violation of Article 25 of the
Constitution, if the vires of the statute have been questioned by a shareholder, director
along with the company itself and the company independently cannot question the
constitutionality of legislation at the touchstone of Article 25 of the Constitution. The
Courts are not debarred to examine the case of the company on the point other than the
alleged violation of Article 25 of the Constitution.

The incorporated bodies/companies do not fall within the definition of a citizen for the
purpose of Article 25 of the Constitution; therefore, without joining the share/account
holders, the impugned legislation cannot be examined within the parameters of Article 25
of the Constitution.

It would be incorrect to contend that while examining the availability of the question of
discrimination under Article 25 to an incorporated body, but so far as the petition under
Article 199 of the Constitution is concerned, it would be maintainable on behalf of the
companies/banking institutions, if they fall within the definition of a person as it has been
used in Article 199 of the Constitution. It would not be out of context to lay down a
distinction between the expression of a person and a citizen. As far as the expression
"person" is concerned, it also includes a juristic person i.e. incorporated bodies, and so far
as expression "citizen" is concerned as it has been employed in Article 25 of the
Constitution, which means as defined under the law. Essentially the law on the subject is
Pakistan Citizenship Act, 1951, which by its implication excludes a juristic person from
the definition of citizen.

Divisional Forest Officer v. Bishwanath Tea Co. Ltd. AIR 1981 SC 1368; Excell Wear v.
Union of India AIR 1979 SC 25; U.P.S.E. Board v. Han Shanker AIR 1979 SC 65; I.A.
Sherwani v. Government of Pakistan 1991 SCMR 1041 and Inaam ur Rehman v.
Federation of Pakistan 1992 SCMR 563 ref.

The Progress of Pakistan Co. Ltd. v. Registrar Joint Stock Companies Karachi PLD 1958
Lah. 887; Shelat v. Bhargava, G.K. Mitter AIR 1970 SC 564; Godhra Electric Company
v. State of Gujarat AIR 1975 SC 32 and DC & GM Company v. Union of India AIR 1983
SC 937 rel.

(o) Administration of justice---

----Power of Court to maintain judgment other than on the grounds on which same was
founded---Scope stated.

Courts can maintain the judgments other than on the grounds on which the same were
founded. But if the plea is not available under the law to defend the judgment, then
argument raised by him would not help him at all.
(p) Central Excise Act (1 of 1944)---

----S. 2(20), 3 & First Sched. Part-II, Item, 14.14 [as inserted by S.5 of Finance Act (XII
of 1991) and then replaced with Item No.9813.0000 by Finance Act (XII of 1994)]---
Excise duty on excisable services---Status---Such tax being an indirect tax recoverable
from a person to whom excisable services were provided or rendered---Duty of Financial
Institution, Insurance Company, Cooperative Financial Society, other Lending Bank or
Institution and. other person dealing in advancing of loans to realize excise duty at
prescribed rate from amount of advances outstanding against each borrower.

Messrs Central Insurance Co. v. The Central Board of Revenue 1993 SCMR 1232 ref.

(q) Interpretation of statutes---

----Retrospective effect---Scope---In absence of clear intention of legislature to apply


provision of a statute with retrospective effect, same would be deemed applicable
prospectively.

(r) Taxation---

----Rate of tax, fixation of---Acceptable consensus of taxpayers ordinarily preferred by


Lawmakers---Principles.

The Lawgivers before imposing the tax ordinarily undertake an exercise during the
process whereof the taxpayers are also examined and keeping in view their acceptable
consensus the rate of tax is fixed. Besides at the same time, it becomes very difficult to
quantify the excise tax, therefore, a reasonable/moderate rate of tax is fixed keeping in
view the suggestion of the taxpayers and other persons who matter in this behalf.
Elahi Cotton Mills PLD 1997 SC 582 rel.

(s) Central Excise Act (I of 1944)---

---Ss. 2(20), 3, 3-C(1)(b), 4(3), 7(1) & First Sched. Part-II Item 14.14 [as inserted by S. 5
of Finance Act (XII of 1991)]---Excise duty on excisable services, imposition of-Estoppel
against legislature---Scope---Legislature could not be estopped from promulgating a law
to impose tax with a view to generate revenue---Principles.

Neither Banking Companies nor C.B.R. has imposed excise levy on excisable services, as
it is evident from the contents of Finance Act, 1991. Similarly the Federation of Pakistan,
who had legislated item 14.14 of First Schedule Part-II is not a party to the agreement
between the persons dealing in advances of loans and the Bank. Therefore, the legislature
cannot be estopped from promulgating a law for the purpose of imposing of the tax with a
view to generate revenue keeping in view its growing requirement to generate funds to
address burning problems of the day and the complex issues facing the people, which the
legislature in its wisdom through legislation seeks to solve, therefore, there is no estoppel
against the Federation to levy excise on the excisable services notwithstanding the
contents of the agreement. The powers of the legislature to promulgate the law imposing
excise duty or other duties cannot be curtailed.

Molasses Trading and Export (Pvt.) Ltd. v. Federation of Pakistan 1993 SCMR 1905 and
Government of Pakistan v. Muhammad Ashraf PLD 1993 SC 176 rel.

Waseem Sajjad, Senior Advocate Supreme Court, and Mumtaz Sheikh, Member (Legal)
C.B.R. for Appellants (in Civil Appeals Nos.2296 to 2412 of 2001).

Khalid Anwar, Senior Advocate Supreme Court with M.A. Zaidi and M.S. Khattak,.
Advocates-on-Record for Respondents (in C. As. Nos.2312, 2317, 2321, 2355, 2356,
2359, 2373, 2375, 2376, 2383, 2402 and 2406 of 2001).

Syed Ali Zafar, Advocate Supreme Court for Respondents (in C.A. No.2318 of 2001).
Fazal-e-Ghani, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-
Record for Respondents (in C.As. Nos. 2325, 2331, 2376, 2402 and 2410 of 2001).

Muhammad Afzal Sandhu, Advocate Supreme Court for Respondents (in C.As. Nos.
2330 and 2366 of 2001).

Raja Haq Nawaz, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for
Respondents (in C.As. Nos. 2345, 2357, 2363, 2386 and 2405 of 2001).

Muhammad Farid, Advocate Supreme Court for Respondents (in C.A. No.2401 of 2001).

A.I. Chundrigarh, Advocate Supreme Court with A.S.K. Ghori, Advocate Supreme Court
for Appellant (in C.As. Nos. 2707-2717 of 2001).

Waseem Sajjad, Senior Advocate Supreme Court with Raja Abdul Ghafoor, Advocate-on-
Record (in Civil Appeals Nos. 2707 to 2717 of 2001) and Farogh Naseem, Advocate
Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondents (in C.A.2717 of
2001).

A.I. Chundrigarh, Advocate Supreme Court with A.S.K. Ghori, Advocate-on-Record for
Appellant (in C.A. No. 516 of 2002).

Nemo for Respondents (in C.As. Nos. 516 of 2002).

Imtiaz Rasheed Siddiqui, Advocate Supreme Court with Sh. Salahuddin, Advocate-on-
Record for Appellant (in C.A. No.934 of 2002).
A. Karim Malik, Senior Advocate Supreme Court and Ahmer Bilal Sufi, Advocate
Supreme Court for Respondents (in C.A. No.934 of 2002).

Nemo for Appellant (in C.As. Nos. 1087-1091 of 2004).

Raja Muhammad Irshad, D.A.-G. with Raja Abdul Ghafoor, Advocate-on-Record for
Respondents (in C.As. Nos.1087 to 1091 of 2004).

Izhar-ul-Haq Advocate-Supreme-Court ( i n C. A No.1091 of 2004).

Imtiaz Rasheed Siddiqui, Advocate Supreme Court with Sh. Salahuddin, Advocate-on-
Record for Appellants (in C.As. Nos.2254-2256, 2260-2261, 2262, 227, 2287, 2290-
2292, 2297-2300, 2301, 2303, 2318-2322, 2327-2329, 2349, 2350 and 2395 of 2005).

Syed Ali Zafar, Advocate Supreme Court with Ch. Arshad Ali, Advocate-on-Record for
Appellants (in C.As. Nos.2257, 2288, 2289 and 2304-2308 of 2005).

Syed Najmul Hassan Kazmi, Advocate Supreme Court for Appellants (in C.As. Nos.
2258 and 2259 of 2005).

Ashtar Ausaf Ali, Advocate Supreme Court with Sh. Salahuddin, Advocate-on-Record for
Appellants (in C.As. Nos.2262, 2290-2292 and 2327-2329 of 2005).

Shahid Hamid, Senior Advocate Supreme Court for Appellants (in C.As. Nos. 2263-2265
of 2005).

Khawaja Muhammad Akram, Advocate Supreme Court for Appellants (in C.As. Nos.
2293-2296 and 2323 of 2005).
Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellants (in C.As.
Nos.2310-2317 and 2325-2326 of 2005).

Raja Muhammad Akram, Senior Advocate Supreme Court for Appellants (in
C.As.Nos.2259, 2311., 2330-2338, 2340-2347, 2349, 2352, 2353, 2365, 2367-2369,
2375, 2376 and 2385-2388 of 2005).

Sh. Shahid Waheed, .Advocate Supreme Court for Appellants (in C.As. Nos.2337-2339
of 2005).

Mian Abdul Rauf, Advocate Supreme Court for Appellants (in C.As. Nos. 2344 and 2352
of 2005).

Ch. Muhammad Anwar, Advocate Supreme Court for Appellants (in C.As. Nos. 2348,
2354 and 2364 of 2005).

Tariq Mehmood Khokhar, Advocate Supreme Court with Ejaz Muhammad Khan,
Advocate-on-Record for Respondents (in C.A. No.2332 of 2005).

Waseem Sajjad, Senior Advocate Supreme Court and Mumtaz Sheikh, Member (Legal)
C.B.R. for Appellants (C.As. Nos.2410-2423 of 2005).

Khalid Anwar, Senior Advocate Supreme Court with M.S. Khattak, Advocate-on-Record
for Respondents (in C.As. Nos.2410 and 2412 of 2005).

Muhammad Azeem Malik, Advocate Supreme Court for Appellants (in C.As. Nos.2433
and 2434 of 2005).
Ch. Muhammad Anwar Khan, Advocate-on-Record for Appellants (in C.As. Nos. 2435-
2436 of 2005).

M.S. Khattak, Advocate-on-Record for Respondents (in C.A. No.2433 of 2005).

Dates of hearing: 20th, 21st and 22nd February, 2006.

JUDGMENT

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.---These appeals are by the leave of the


Court against judgments passed by High Court of Sindh dated 22-12-2000 and 23-10-
2001 and Lahore High Court dated 4th April, 2002 and 27th May, 2004 respectively
whereby divergent opinions were expressed respectively about the constitutionality of the
item 14.14 incorporated in the 1st Schedule of the Central Excise and Salt Act, 1944
(herein after referred to as the Act 1944'). Concluding paras from both the judgment are
reproduced thus:--

Impugned judgment of the High Court of Sindh at Karachi.---"The learned


counsel for the parties relied on the following case laws in support of their
contentions, Pakistan through Secretary, Ministry of Commerce and 2 others v.
Salahuddin and 3 others (PLD 1991 SC 546), Ram Nawaz Guppy and others v.
State of Haryana through Secretary Local Self Government (sic), Federation of
Pakistan and others v. Ch. Muhammad Asian and others 1986 SCMR 916, Al-
Samreze Enterprises v. Federation of Pakistan (1986 SCMR 1917, 1918),
Government of Pakistan and another v. Messrs Mardan. Industries Ltd. (1988
SCMR 410), Colony Sarhad Textile Mills Ltd., Nowshera v. Superintendent
Central Excise and Land Customs (sic), Muhammad Younas v. Central Board of
Revenue Government of Pakistan and others (PLD 1964 SC 113), Government of
Pakistan and others v. Muhammad Ashraf and others (PLD 1993 SC 176),
Government of Pakistan and others v. Messrs Hashwani Hotel Ltd. (PLD 1990 SC
68), Mondi's Refreshment Room and Bar Karachi v. Islamic Republic of Pakistan
and others (PLD 1986 Karachi 214), Messrs Abdul Wahid, Abdul Majeed v.
Government of Pakistan and others (1993 SCMR 18), Central Insurance Co. Ltd.
v. C.B.R. (1993 SCMR 1232), CIT v. Noor Hussain (PLD 1964 SC 657), State of
Madras v. Garrission (1958 SC 560), Zaman Textile Mills Ltd. v. C.B.R. (PLD
1993 SC 305), Madrass Trading v. Federation of Pakistan (1993 SCMR 1905),
CIT v. Olympia (1987 PTD 739), South Bihar Sugar Mills Ltd. v. Union of India
(AIR 1968 SC 922), Abdul Rahim v. UBL (PLD 1997 Karachi 62), Shamres Khan
v. Muhammad Amin (PLD 1978 SC 89), Hirjina v. Islamic Republic of Pakistan
(1993 SCMR 1342), PIDC v. Federation of Pakistan (1992 SCMR 891), CIT v.
SK & F (PTCL 1993 CL 89), Tola Ram v. State of Bombay (AIR 1954 SC 496),
State of Madras v. Chittuni (AIR 1957 AP 675), Berger v. Industry (1900) 2QB
348, Brett v. Rajers (1897) IQB 525, Lord Ghanely v. Winghtman (1933) AC 618.

In a result the petitions are allowed, however, there shall be no order as to costs."

Impugned judgment of Lahore High Court.---We, therefore, dismissed all the writ
petitions mentioned in Part-I of the Schedule. The petitions enumerated in Part-II
thereof do not have nexus with the questions heard and decided in these cases and
same shall be re-heard and decided in these cases and same shall be re-heard by
the learned Single Bench of this Court. Office to take orders from the Hon'ble
Justice in this regard."

2. Learned Lahore High Court, Lahore vide impugned judgments, dated 4-4-2002 and 27-
5-2004 declared Item No.14.14 intra vires to the Constitution of the Islamic Republic of
Pakistan whereas the learned High Court of Sindh, vide impugned judgments, lotted 22-
12-2000 and 23-10-2001, held to be ultra vires to the Constitution.

3. As both the judgments passed by learned High Courts, are under challenge therefore,
we intended to dispose them of by instant judgment.

4. The legislative history of the impugned Item 14.14 is like this levy was on, 'Excisable
Goods' but in 1970, levy on excisable services' was made 'chargeable by virtue of
following amendment of the Act, 1944:--
"S. 2(20) 'excisable services' means services, facilities and utilities specified in the
First Schedule read with Chapter 98 thereof, including .the services, facilities and
utilities originating from Pakistan or its tariff area or terminating in Pakistan or its
tariff area."

In view of the above amendment original section 3-C was renumbered as subsection (1) of
section 3-C by the Act, 1991. For convenience same is reproduced herein below:

S.3-C Determination of tariff value and rate of duty.---

(1) The value, retail price, tariff value of and the rate of duty applicable to, excisable
goods or services shall be the value, retail prices, tariff value and the rate of duty in
force:--

(a) In the case of goods, on the date on which the goods are cleared for export or for
kind of consumption:--

(b) in the case of services, on the date on which the services are provided or rendered;
and

(c) -----------------

(d) ----------------

In Part-II of the First Schedule of the Act, 1944 following Item was added by the Finance
Act, 1991:--

"14.14 Services provided or rendered by banking 1/12th of 1% of the amount


companies, financial institutions, insurance each advance outstanding on
companies, other lending banks or institutions and the last working day of each
other persons dealing in advancing of loans, in respect calendar month."
of advances made to any person.

The Federal Government through S.R.O. No. 706(I)/91, dated 4th August, 91 added Rule 96
'ZZI' to the Rules of 1944. Sub Rule-1 which being relevant is reproduced herein below:--

"96 ZZI(I) "All banking companies, financial institutions, insurance companies,


cooperative financing societies, other lending banks or institutions and other persons
dealing in advancing of loans hereinafter called company, shall pay the central excise
duty leviable on the advances made by the company to any person."

5. Learned High Court of Sindh in the impugned judgment formulated following issues for
consideration:--

"(13) In our considered opinion the key questions which revolve round these petitions
are the following two connected issues:--

(a) while imposing central excise duty on goods or services under 1944 Act, can the
legislature bring within the tax net any transaction or event which otherwise on a
plain, ordinary and grammatical meaning of the terms may by no stretch of
imagination be construed as 'goods' or 'services';

(b) only if the answer to the first issue is in the negative, whether in fact the grant of
advances or loans, especially their quantum in its ordinary signification be construed
as services'.

6. Learned High Court to find out meanings of 'excisable service' relied upon judgment in the
case of South Behar Sugar Mills Ltd. v. Union of India (AIR 1968 SC 922) wherein it was
held that as the Act does not define the term 'goods', the Legislature must be taken to have
used that word in its ordinary dictionary meaning and concluded that as this expression
(services) has also not been defined, therefore, "the Court will have to look at the pith and
substance of the subject-matter of tax, to ascertain whether in ordinary signification the same
can be construed as 'service'. It was further held that Entry 44 of the Fourth Schedule of the
Constitution of Pakistan, 1973 empowers the Federal Legislature to impose duty of excise.
Originally in Pakistan, Central Excise duty was levied only on manufacturing of goods and
not on services. However, through the Finance Ordinance, 1970 services were brought within
the tax net. This amendment was challenged and this Court in the case of Hirjina and Co. v.
Islamic Republic of Pakistan (1993 SCMR 1342) held that the levy i.e. excise duty on
services had been saved by Article 278 of the Constitution. If this is so then the term 'services'
has to be read as part of Entry 44 of the Fourth Schedule of the Constitution which prescribes
the levy of central excise duty, as has already stated above. Once the term 'services' is read
into Entry 44, it is the fundamental principle of interpretation of Constitutional entries that
Courts have to look whether in pith and substance the subject-matter of the levy in question
comes within the ambit of Constitutional Entry. No doubt the Courts have to give a very
liberal and stretch connotation to Constitutional entries, however, at the end of the day in
pith and substance, the ordinary grammatical and literal meanings of the terms will have
to be seen. To support the arguments help was sought from Elahi Cotton Mills Ltd: v.
Federation of Pakistan (PLD 1997 SC 582), Pakistan Industrial Development Corporation
v. Pakistan (1992 SCMR 891), United Provinces v. Atiqa Begum (AIR 1941 FC 16) and
Navinchaandra Mafatlal v. Commissioner of Income Tax ([1954] ()CVI) ITR 758) as a
result whereof Issue (a) was decided in negative.

As far as Issue (b) is concerned, it was decided that in the case of Abdul Rahim v. UBL
(PLD 1997 Karachi 62) mere advancement of loans or finances by the Bank to customers
would not amount to rendering of services. This would be moreso when the advancement
of loans was structured on the Islamic mode of financing. It may be noted that the High
Court also interpreted the expression "in respect of' in item No.14.14 and held that it is
relatable to which on a plain reading implies that what has been taxed is not mere
advancement of loan but rather services which may have been rendered in relation to give
all such loans. The observation in Abdul Rahim's case (ibid) do not apply because it is
altogether in different fields/areas of law. The observations therein were made in the
context of banking laws and in these petitions the fact that the grant of
loans/advancement constitutes services can only be answered by recourse. to banking
concepts and laws. The definition of "banking" as appearing in section 5 read with
section 7 of Banking Companies Ordinance, 1962 confirms that banking is business and
not 'services'. The fact that Item 14.14, Column II imposes the charge on "services" in
respect of loans and not on loans/advances per se is obvious from a plain reading of the
statute. In fiscal statue the Court cannot supply any omission or extra words or cannot
change the expression used in the statute on grounds that the Legislature would have used
a different word had it thought about it i.e. there is no scope for any intendment. Reliance
in this behalf was placed on Bisvil Spinners v. Superintendent Central Excise (PLD 1988
SC 370). As a result of this discussion the Court held as follows:--
(a) mere advancement of loans or financial facilities, or quantum thereof, does not
constitute rendering of services and hence the same cannot be subjected to central
excise duty;

(b) on a plain and grammatical reading of Item 14.14 Column II, the charge or
levy is not on the mere advances or loans but any services which may be rendered
with regard thereto, in relation thereto or in respect thereof.

It is further held that Column III of item 14.14 has provided a fatal blow to the
validity of the levy. According to it a yardstick of measure the levy is the
outstanding balance of the loan/advance at the end of every month, whereas the
charge is on services "in respect of loans or advances". The two had no
correlation. The amount may be greater and services rendered very meagre, or
vice versa. Both in Pakistan and India now it is an established principle of taxing
law that the yardstick to measure the tax, must have nexus with the nature and the
character of the subject-matter of the tax. In this case this nexus is missing and the
levy also fails.

It was also held that even if the levy had been sustained as lawful it could not
have been given any retrospective operation to affect contracts of loans already
concluded between the parties before introduction of the levy. This is so since no
retrospectivity has been found to be expressed or implicit. Also if the impugned
levy was found to be retrospective, it could not have affected transaction past and
closed as held by a Division Bench of this Court in Ghulam Ryder Shah v. Chief
Land Commissioner (1983 CLC 1585) that even where law is given a
retrospective expression it cannot affect transactions past and closed. Also it
appears relevant to mention that in Item 14.14 the law has intended a one-time
levy by use of expression "provided" and "rendered", in other words the
calculation of the levy on a continuing basis i.e. according to the balance of
outstanding loans every month, as mentioned in the third column of Item 14.14.
conflicts the charge mentioned in the second column of Item No.14.14. In Elahi
Cotton Mills (PLD 1997 SC 582) the Supreme Court found the levies to be intra
vires on the ground that in pith and substances taxes on sales and purchases were
covered by the Constitutional entries listed out in the Fourth Schedule of the
Constitution. A true interpretation of Elahi Cotton would be that since Entry 49 of
the 4th Schedule of the Constitution had prescribed 'taxes on sales and purchases',
to challenge that the taxes introduced through sections 80-C, 80-CC and 80-D fell
outside the scope of Entry 47 was rather immaterial, since the same could fall
under Entry No.49.
It was further observed that the Court should lean in favour of finding possible
explanations to uphold rather than destroy legislation but that is only the first
principle. The second principle as held in Sabir Shah v. Shad Muhammad Khan
(PLD 1995 SC 66) is that where on a plain reading of statute and the Constitution,
the legislation is so ultra vires that it cannot be saved despite a very liberal
connotation, it is the duty of the Court to strike the same down since the principle
regarding presumption of Constitutionality of laws is only rebuttable presumption.

In Elahi Cotton Mills case it has also been held that question as to whether laws
are intra vires or ultra vires do not depend upon the consideration of the
jurisprudence or policy but depend simply on examining the language of
Constitution and of comparing the legislative authority conferred on the
Parliament with the provisions of the sub-Constitutional law by which the
Parliament purports to exercise that authority.

Elahi Cotton Mills case says that a very liberal interpretation is to be given to
fiscal legislation.

7. Learned Lahore High Court, Lahore examined following questions:--

(1) Section 3 of the Act, 1944 provides for levy and collection of duty of excise on
all excisable services provided or rendered in Pakistan while section 3-C(1)(b) of
the said Act classifies the said charge with reference to the date on which services
are provided or rendered.

(2) Section 3-C(1)(b) provides that value of the services as also rate of duty
applicable to them shall be one enforced on the said date i.e. on which the
services are provided or rendered.

(3) Item No.14.14 (now 9813.0000) of the schedule-is not in harmony with the
said provision of sections 3 and 3-C(1)(b) of the said Act. There is no nexus
between the said item of the first schedule on the one hand and the said charging
and computing provisions on the other.

(4) The services which have been made chargeable to the said duty have not been
specified in the said schedule and as such the rule applicable for the interpretation
of the said term would be itself clear dictionary meaning i.e. definition of terms
loans in other statutes are not to be imported into the said Act, 1944.

(5) The transaction based on mark up would not be falling within the meaning of
term 'loan'.

(6) That services sought to be charges have no been defined. Item 14.14 provides
for levy of the duty in respect of services provided or rendered in respect of
leasing and these have no relation to the amount of lease.

(7) That only charge for services rendered or provided by Leasing Company being
the said one-time services, there cannot be imposition of continuous charge as
provided in column No.3 of the said item. The levy is violative of the Item 14.14
of the Federal Legislative list inasmuch as Government has proceeded to tax loans
or lease itself and not the services rendered by the bank or the leasing company. In
view of provision of sections 3 and section 3-C(1)(b) of the Act, 1944 the duty
could not have been levied with retrospective effect inasmuch as services already
rendered before imposition of the duty are sought to be charged.

(8) In the matter of Musharka there is a sale arrangement and not concept of loan
or advance, also insist that banking loans are not to be referred to in the matter of
ascertaining the meanings of terms 'loans and advances' and ordinary dictionary
meaning would be applicable.

(9) Levy is to be on the person providing services and borrower/


customers/lessees are not to be burdened. The term 'advance' has not been defined
and whereas loan may be subject to the said duty Modarba cannot be also charged.
(10) Act of 1944 provides for levy of duty on services rendered or provided on
services one time and there is no concept of recurring imposition and there is no
co-relation inter se the services and manners in which the duty has been imposed.
The duty has in fact been imposed on the services rendered by the bank and
leasing company. The mode and quantum of charge, same cannot be challenged.
Maintenance of accounts and book-keeping by the said companies are continues
services being provided and as such there is no violation of section 3-C of the said
Act. Section 4(3) of the Act, 1944 does not prohibit imposition of duty on the
basis other than charges for the services.

(11) Schedule is part of the Act and in case of inconsistency it is the schedule
which is to prevail.

(12) Duty is payable by the banks and companies who passed on the burden to the
customers and borrowers under the agreements between the said parties. Thus
said customers, borrowers and lessees have no locus standi to file the petitions to
challenge the said levy.

The conclusion drawn by the High Court in respect of above questions is as under:--

(1) A plain reading of Item 14.14 (presently 9831) leaves one in no manner of
doubt as per column II of the said Item it is not advances, loans, lease or
Musharka finance which has been subject to the levy of the duty of excise rather it
is services provided or rendered in respect thereof which have been subject to the
said duty.

(2) Under section 3 what has been made subject to levy of the duty of excise are
not goods or services but excisable goods and services. The said Statute defines
excisable services to mean services, faculties and utilities in First Schedule read
with chapter 98 thereof including services, facilities and utilities originated. As
per the judgment in Hiijina and Co. (1993 SCMR 1342) section 3 has been
declared constitutionally valid. The judgment relied upon by the Sindh High
Court reported in AIR 1968 SC 922 and PLD 1997 Karachi 62 are
distinguishable. The latter judgment has been delivered with reference to banking
laws which cannot be merged into the cases of Act, 1944.
(3) In the case of A&B Food Industries Ltd. v. Commissioner of Income/Sales
Tax, Karachi (1992 SCMR 663) the tax payer sought refund of sales tax on the
ground that the payment of sales tax has been exempted on the goods in question
but they were made to pay the same on the basis that legislature had merged the
sales tax into enhanced rate of excise duty payable on the same. The precise plea
was that the real character of the said levy of excise at the enhanced rate be
determined and veil be lifted so as to expose the component of the said rate. The
Supreme Court observed that no doubt the Court is competent to determine the
real nature of particular revenue with reference to the relevant statute but
observed that the above rule does not empower a Court to read something into a
clear provision of a taxing statute. Similar observations were made by Mr. Justice
Cornelius in the case of Commissioner of Agricultural Income Tax East Bengal v.
B.W.M. Abdul Rehman (PLD 1973 SC 445) (para. has been reproduced at page
30). Similar reference from the judgment of Lord Halsburry in the case of Tanant
v. Smith (1892 AC 150) was made, "reproduction" is at page 30). On the basis of
these two judgments the High Court concluded that levy has been imposed on
services being provided by the said financial institution instead of loans,
advances, lease and Musharka finances and not on the loan, advances, lease and
Musharka itself.

(4) It is the banking company, financial institution, insurance company,


cooperative financing society and lending bank or any other company or
association of persons dealing in advancing of loans or providing services of
leasing or Musharka finances who are to pay said exercise duty. As to the
mechanism of arranging the payment the matter is between the said companies
and their clients, borrowers, customers, lessees.

(5) In view of the judgment in the case of Excise and Taxation Officer Karachi v.
Burma Shell Storage and Distribution Company of Pakistan (1993 SCMR 338) if
there is inconsistency between the schedule and section 3-C(1)(b) of the Act, 1944
the substantive portion of the Act will prevail. However, on having examined the
provisions of section 3-C(1)(b) and section 4(3) of the Act there is no consistency
between them.

(6) As far as reasonability of the rate of duty is concerned, in view of the


commentary reproduced in PLD 2001 SC 340 from NS Bindra's "interpretation of
statutes" (7th Edition at Pg. 771) and PK Kutty Haji (1989) 176 ITR 481 that
"Judicial approach throughout has been to allow the legislature flexibility at the
joint, particularly .when a taxing statute is under attack". This principle has also
been re-iterated in the case of Messrs Elahi Cotton Mills v. Federation of Pakistan
(PLD 1997 SC 582) therefore, rate of the tax cannot be questioned.

8. Mr. Waseem Sajjad, learned senior Advocate Supreme Court contended that as per the
definition of excisable services under section 2(20) of the Act, 1944, the Federal
Government has been empowered under Part II Schedule 1 of the Act, 1944 to recover
duty for providing service of banking which includes processing of application for loan,
maintaining ledger/account and undertaking of other acts necessary to keep the borrower
updated. He further explained that the word loan, facility, utility and advance has been
used in its popular meanings in Item 14.14.

9. Mr. Abdul Karim Malik, Sr. Advocate Supreme Court and Mr. Ahmer Bilal Sufi,
Advocate Supreme Court, supported his contention and to elaborate their arguments
preferred to dictionary meaning of the term `services and advances'.

10. Mr. Khalid Anwar, learned Sr. Advocate Supreme Court who has advanced leading
arguments contended that duty of excisable services on loan facilities, utilities and
advances under section 3 read with section 3-C(1)(b) of the Act, 1944 and Item No.14.14
of Part-II of the First Schedule, cannot be recovered as with effect from 1st July, 1984,
the banking system in Pakistan has shifted over to Islamic modes of financing and
according to the spirit of this system instead of loaning the amount, the banks enter into a
trade agreement with the borrower with latest commitment to pay extra amount other
than the amount which has been obtained by a purchaser for running the business or
trade. Learned counsel placed on record BCD-13 which find mentioned in respect of
elimination of RIBA from the banking system. Reliance in this behalf has been placed by
him on the case of Abdul Rahim (ibid). He further stressed with vehemence that a
banking or financial institution does not render any extra service to the
customer/borrower as it is their duty to provide them service for completion and
maintaining of the bank accounts for which at the end of each transaction, charges for the
service are separately recovered, therefore, extra burden cannot be placed upon the.
borrower by compelling them to pay duty on the services provided/ rendered by the
bankers.

11. We have heard learned counsel for both the sides and have gone through the relevant
documents placed on record. It would be appropriate to note briefly legislative history of
section 3 of the Act, 1944 for purpose of understanding the concept of excisable services
on which for the first time excise duty was imposed. Prior to 29th June, 1970, there was
no concept of charging duty on excisable services and for the first time by means of
Finance Ordinance, 1970 (Ordinance XI of 1970) its definition was provided by which in
clause (dd) was incorporated in section 2 of the Act, 1944, which defines the "excisable
services". According to which "excisable services" means services, facilities and utilities
specified in part II of the first Schedule as being subject to a duty of excise. By means of
same Ordinance, subsection (1) of the original subsection (3) was substituted which
provides "there shall be levied and collected in such a manner as may be prescribed
duties of excise on `excisable goods' produced or manufactured and on all `excisable
services' provided or rendered in Pakistan, as and at the rates set forth in the firs
schedule". Later on definition clause (dd) of section 2 of the Act, 1944 was substituted
with section 2(20) by means of Finance Act, 1995, which has already been reproduced
hereinabove. It is equally important to note that subsequent thereto, section 3-C was also
inserted by the Finance Ordinance, 1983. Relevant provision therefrom i.e. 3-C(1)(b)
dealing with the case of services has already been" reproduced above.

The constitutionality of section 2(dd) and section 3 of the Act, 1944 came for
consideration in the case of Mondi's Refreshment Room and Bar, Karachi v. Islamic
Republic of Pakistan (PLD 1983 Karachi 214) wherein it has been held that if the
legislature is competent to levy a tax or duty it could do so by providing for the same
either in existing Act or by passing independent Act. The judgment in Mondi's
Refreshment Room (ibid) came upto for consideration before this Court in the case of
Hirjina and Co. (ibid). After examining the constitutionality of section 3(1) this Court
declared it to be valid law for all intents and purposes taking into consideration the
provisions of the constitutional documents applicable at that time. Thus question of
validity of charging duties on excisable services is not open for further discussion.

12. Now turning towards the arguments of Mr. Waseem Sajjad, learned counsel for the
appellants who filed appeals on behalf of the Federation against the impugned judgments
passed by High Court of Sindh. It is to be observed that the duty is being charged as per
Item 14.14 on the services provided or rendered not only by banking companies, financial
institutions, insurance companies, other lending banks or institutions and also persons
dealing in advancing of loans in respect of advances made to any person. He emphasized
that facilitating the processing, completion and handling all the accounts of borrowers/
customers to whom loan has been provided, tantamounts rendering `excisable services' and
in lieu of the same the legislature is empowered under section 3 of the Act, 1944 to
recover duties as per the rate set forth in the First Schedule. To support his arguments he
quoted following part from the case of Hirjina (ibid):--

"(14) The appellants in Civil Appeals Nos. 101-K to 107-K were selling alcoholic
liquor for consumption on their premises. It was urged on their behalf that they
did not provide any services to the consumers and as such they did not render any
excisable services and for that reason the demand of excise duty from them was
illegal. There is no merit in this contention. The appellants did provide services to
their clients by affording them the facility of consumption of liquor in their
premises and as such they cannot avoid the liability to pay excise duty."

In this behalf it would be appropriate to attend to the contention raised by learned counsel
for respondents, Mr. Khalid Anwar, learned Sr. Advocate Supreme Court whose
arguments have been adopted by majority of the counsel appearing for different
respondents. It is true that from 1st July, 1984, the banks had adopted Islamic modes of
financing and the expression 'loans', 'interest' etc. is alien to such system as learned
counsel has explained in his arguments, referred to above. The proposition can be
attended from two different angles, keeping in view the definition of excisable services
under section 2(20) wherein for the purpose of defining excisable services expression
facilities and utilities has been used. According to the dictionary, facility means 'in
banking this is referred as an arrangement between bankers and customers for the use of a
banking service' e.g. deposit, collection, documentary credits etc. Alternatively it is an
understanding that over draft and the loans are available if required upto a given amount,
[Klein, judicial dictionary, 13th Edition, pg 393.] At this juncture definition of the word
service as per dictionary meaning may not be out of context. As per advanced Law
Lexicon 3rd Edition volume 4 (2005), it means service of any description which is made
available to potentional users and includes the provisions of facilities in connection with
banking financing, insurance, medical assistance, legal assistance or something provide
usually for a fee, that may not be classified as a manufacturing. or production in any form
as such legal advise, procrage, agency services and financial advice (international
account; business; insurance).

13. It is the case of the respondents that in terms of sections 5 and 7 of the Banking
Companies Ordinance, 1962 it is the duty of the bank to facilitate its customers for the
purposes of handling their accounts which include depositing, processing of the
applications, encashing of cheques etc., therefore, the bank is not providing an extra
service entitling it to charge duties.

14. Learned counsel for the respondents contended that Hirjina's case (ibid) is
distinguishable on this point, because it pertains to supply of eatable etc. in the hotel for
which a service is provided, whereas bank does not provide any service. The argument so
raised by him has no force in view of the definition of the word 'facility of the service'
noted hereinabove. We are inclined - to agree that the bank is bound to handle the cases
of their customers/borrowers as it has been prescribed under the Banking Companies
Ordinance, 1962 but we have to keep in mind that a duty of excisable service is not
charged only by the banking companies but by other financial institutions, insurance
companies and other persons dealing in advancing of loans as per the language of Item
14.14 as well. He stated that language implied in fiscal statute is required to be
interpreted in its literal and ordinary meanings, in favour of tax payers, as it has been held
in the case of Government of Pakistan v. Messrs Haswani Hotel Ltd. (PLD 1990 SC 68),
Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan (1992 SCMR 1652),
Messrs Bisvil Spinners Ltd. v. Superintendent Central Excise and Land Customs (PLD
1988 SC 370), Abdul Rahim v. United Bank Ltd. (PLD 1997 Karachi 62).

15. As far as the question of interpreting fiscal statute is concerned, it has been discussed
time and again by this Court in the judgments which have been relied upon on behalf of
the respondents and in number of other cases. However, the proposition in the case in
hand is some-what different. Here we have to ascertain as to whether excise duty can be
recovered on the services in terms of section 2(dd) read with 3 of the Act 1944, on the
services provided or rendered by the bank, therefore, it is obligatory to examine the
characteristics of the duty as discussed by this Court in the case of A & B Food Industries
Ltd. v. Commissioner of Income/Sales Tax, Karachi (1992 SCMR 663), Sohail Jute Mills
Ltd. and others v. Federation of Pakistan (PLD 1991 SC 329). However, a larger Bench
comprising five learned Judges of this Court on having surveyed the judgments from our
own jurisdiction and across the border finally laid down principles in the case of Messrs
Elahi Cotton Mills Ltd. v. Federation of Pakistan (PLD 1997 SC 582) and ICC Textiles
Ltd. v. Federation of Pakistan (2003 PTD 1017).

Relevant extracts are reproduced from page 1031, paragraph 26 (i, ii, iii) as follows:

(i) That in view of wide variety of diverse economic criteria, which are to be
considered for the formulation of a fiscal policy, Legislature enjoys a wide
latitude in the matter of selection of persons, subject-matter, events, etc. for
taxation. But with all this latitude certain irreducible desiderata of equality shall
govern classification for differential a treatment in taxation law as well.

(ii) That Court while interpreting laws relating to economic activities view the
same with greater latitude than the laws relating to civil rights such as freedom of
speech, religion etc., keeping in view the complexity of economic problems which
do not admit of solution through any doctrinaire or strait jacket formula as pointed
out by Holms, J. in one of his judgments.
(iii) That Frankfurter, J., in Morey v. Doud (1957) U.S. 457 has remarked that in
the utilities, tax and economic regulation cases, there are good reasons for judicial
self-restraint if not judicial defence to the legislative judgments."

Keeping in view the above principle as well as following the observations in the case of
P. Kunhammed Kutty Haji v. Union of India ((1989) 176 ITR 481) i.e. Judicial approach
throughout has to allow the legislature flexibility at the joints, particularly when a taxing
statue is under attack, we have to interpret the words 'services', 'loan' and 'advances'. It
may be noted that the learned High Court of Sindh at Karachi had relied upon the
principle discussed in the case of South Bihar Sugar Mills Ltd. v. Tata Chemicals Ltd.
(AIR 1968 SC 922). The principle enunciated in this judgment has not been applied
correctly. According to its ratio decidendi if a word like goods has not been defined by
the law, therefore, it is to be construed that such a word has been used in its ordinary
dictionary meaning. There is yet another aspect of the case namely that Indian Supreme
Court was not interpreting the expression excisable services, therefore, instead of taking
the support from this judgment the learned High Court of Sindh may have relied upon the
case of Hirjina (ibid). Relevant para. therefrom has already been reproduced hereinabove.
Particularly in view of the fact that this Court had declared section 3 of the Act, 1944
intra vires to the Constitution. Similarly the judgment in the case of Abdul Rahim (ibid)
was distinguishable because in this case as well the word 'loan' has been defined in view
of the definition of the finance under the Banking Tribunal Ordinance, 1984. As per its
meaning under section 2(e) it includes an accommodation or facility under a system
which is not based on interest but provided on the basis of participation in providing a
loan, markup/markdown in price, higher purchase, lease, licensing, common charge or
fee of any count, purchase/sale including commodities, patent, business, trademarks and
copy rights etc. Whereas in item 14.14 the word loans has been used in its popular
meanings. In this context it is to be noted that in the case of Ocean Industries Ltd. v.
Industrial Development Bank (PLD 1966 SC 738) proposition came into consideration
whether under section, 39 of Industrial Development Bank of Pakistan Ordinance, 1961
the bank could only exercise its powers for enforcing claim of bank against industrial
concerned where the bank had granted a loan, because a case of the appellant was that
recourse of section 39 could not have been made as the bank had not granted any loan at
all to the appellant company but had merely granted the payment of certain instalments
payable to the Foreign Ship Builder. While examining this proposition it was observed
that it is true that under subsection (1) of section 39 where an industrial concern fails to
repay such loan by the due date or in compliance with the notice under section 38, an
officer of the Bank, generally or specially authorized by the Board in this behalf may
apply to the District Judge.

16. It is important to disclose that subsequently the Industrial Development Bank


Ordinance, 1961 was amended on 3rd June, 1965 by Ordinance XIX of 1965 and terms,
"loan" was defined as including a guarantee. The arguments so raised were not accepted
because this Court without taking into consideration the amended definition of the loan
held that after the bank had in fulfilment of its guarantee paid the first two instalments to
the ship builder and insurance premium upon the failure of the appellant company it
became entitled to recovery the same from the appellant company (the principal debtor)
as money was paid on behalf of principal-debtor. To that extent the amount paid
constituted an advance and the relationship of debtor and creditor arose between the
surety and the principal-debtor. In this behalf the, debt also assumed the characteristic of
a loan for the amount so advanced. In this back-drop the Court proceeded to examine the
term loan and held as under:--

"The term "loan" has, of course, not been defined in the Ordinance of 1961 as it
originally stood. What meaning is then to be given to it? Should it be read in a
technical sense or in its ordinary or popular sense. Reading the provisions of the
Ordinance as a whole it appears to us that the term has been used in its popular
sense, for it is difficult to imagine that the framers of the Ordinance only wished
the special procedure prescribed by section 39 to protect "loans" in the strict sense
and to leave out other debts due to the respondent-Bank from industrial concerns.
The obvious intention of these provisions appears to us to have been to give the
respondent-Bank a special remedy to recover its claim and dues from defaulting
industrial concerns assisted by it. We would, therefore, read the tents "loan" in this
section as meaning a contract by which a person receives upon his own credit
advances of money from another on specified conditions of repayment."

17. It is an important fact that cash is paid to a borrower subject to entering Modaraba
agreement etc.

Mr. Waseem Sajjad learned counsel for the appellants in this behalf placed reliance on a
letter, dated 27th September, 1994, copy of which was issued by Faisal Islamic Bank of
Bahrain. Relevant lines therefrom are reproduced below:

"Further to our discussion, we hereby confirm to you that we agree to appoint you
as our agent to acquire for our account and benefit goods under the following
terms and conditions:
(1) You will be provided by us upto a sum of Rs.40,000,000, to be credited in
your account No.2006804-001 with us on a date to be agreed upon mutually under
intimation to you.

(2) ------------

(3) ------------

(4) The authorization hereunder contingent upon your entering into a Modarbah
agreement being in a form satisfactory to us,"

In view of the above admitted document factual assistance can also be availed for the
purposes interpreting a fiscal statute provided that no one amongst parties has reservation
about its existence. Since this document has been relied upon by the respondents
themselves, therefore, no objection from their side can be entertained. In addition to this
the definition of finance in the Banking Tribunal Ordinance, 1984 cannot be imported in
Act, 1944 in view of the principle that it is unsaved to compare the language in one
statute with that employed in another, even though the subject covered by the two may
involve similarities. Such comparison otherwise may also not be conclusive on the point
agitated in the case of Abdul Rahim (ibid).

Thus it is held that judgment in the case of Abdul Rahim (ibid) for the purpose of
defining the expression `services' is not applicable and the expressions/words used in
section 2(20) of the Act, 1944 and Item 14.14 of the Second Schedule are to be
interpreted independently keeping in view their popular meanings.

18. In Item 14.14 column II another important expression namely 'advances' has been
employed. This expression with reference to context is equally important as according to
Words and Phrases Vol.2-A (Pg. 117) ordinarily its meanings also include a 'loan' and an
'action to recover it'. Reference at this juncture of section 7(1) may also be made which
defines forms of business in which banking company may engage including borrowing,
or taking up of money, lending or advancing of money either upon or without security.
19. Similarly in Corpus Juris Secundum Vol.2 pages 496-97 the word 'advances' has been
defined as under:

"in legal parlance the word used to indicate advances of a pecuniary nature and
includes money or chattels or both, although it may be employed as referring only
to money."

Thus it is held that words facilities, utilities, loans and advances are to be used in popular
sense for the purpose of interpreting the same in view of the cardinal principle of
interpretation of statutes that a law should be interpreted in such a manner that it should
be saved rather than destroyed. Multiline Associates v. Ardeshir Cowasgee (PLD 1995
SC 423) and Elahi Cotton Mills (ibid). Relevant para. therefrom is reproduced herein
below:--

(ix) That the law should be saved rather than be destroyed and the Court must lean
in favour of upholding the constitutionality of a legislation keeping in view that
the rule of Constitutional interpretation is that there is a presumption in favour of
the constitutionality of the legislative enactments unless ex facie it is violative of
a Constitutional provision."

Secondly in view of the above conclusion that the terms employed in the legislative
provisions under discussion are to m be considered in popular sense. It is to be noted that
in Act, 1944 First Schedule was again amended and the duty on excisable services was
made chargeable under heading 9813.000 wherein it was held applicable on services
provided or rendered by Banking Companies, Insurance Companies, Cooperative
Financing Societies, Modaraba, Musharka, Leasing Companies, non-banking Financial
Institutions and other persons dealing in such services. So in view of the amendment,
although this amendment was not specifically called in question either of the parties but a
perusal of the amended schedule indicates that excise duty has also been made applicable
on the transaction covered by Islamic modes of financing. In this context it is to be borne
in mind that factually in these transactions as well cess is passed on to the borrower as it
is evident from a letter of Faisal Islamic Bank of Bahrain, dated 27th September, 1994,
contents whereof have been reproduced hereinabove.

20. Learned counsel for the respondents contended that item 14.14 of First Schedule has
no nexus with the provisions of main Act i.e. section 3 of the Act, 1944, because it does
not provide for any specific service namely that on which type of the services, excise
duty is recoverable, therefore, being vague is liable to be struck down. Reliance has been
placed on Jamat-e-Islami Pakistan v. Federation of Pakistan (PLD 2000 SC 111), Buxa
Dooars Tea Company Ltd. v. State of West Bengal (AIR 1989 SC 2015), Govind Saran
Ganga Saran v. Commissioner of the Sales Tax (1985) 155 ITR 144, Commissioner of
Sales Tax v. Hunza Central Asian Textile and Woolen Mills Ltd. (1999 PTD 1135),
Reference No.2 of 2005 (PLD 2005 SC 873). He has also referred to Hirjina's case (ibid)
to explain that in this judgment an excise duty was imposed in respect of services
rendered by hotels in providing room, liquor and other refreshment to their clients,
whereas in respect of excisable services item 14.14 of the Schedule does not describe any
service which will be provided or rendered, therefore, on account of it being an
unspecific in nature cannot be made liable to the respondents to pay excise duty on the
services.

21. On the other hand learned counsel for the appellants including Mr. A. Karim Malik
and Mr. Ahmer Bilal Sufi, who appeared on behalf of Central Board of Revenue argued
that item 14.14 of the Schedule has to be read along with the provision of sections 3(1),
3-C(1)(b) and section 4(3) of the Act, 1944 for the purpose of substantiating that there is
nexus between item 14.14 of the Schedule as well as substantive provisions of law.

22. In the judgments relied by the learned counsel different provisions of law were
declared void and invalid on account of their being vague. In Jamat-e-Islami's case (ibid)
this Court tested provision of section 7-A of the Anti-Terrorism Act, 1997 at the touch
stone of Articles 4, 9, 14, 16, 19 and 27 of the Constitution and held that due to vague
definition of the word "internal disturbance", illegal strike, lockout and go-slow is
unconstitutional and requires suitably amended. In the case of Pakistan Tobacco
Company Ltd. (ibid) it was held that rate of levy of the excise duty should have nexus
with the value of the goods which are produced or manufactured and that the same cannot
be fixed arbitrarily. It was held in the case of Buxa Dooars (ibid) that if the levy was
regarded as one in respect of tea estate and the measure of the liability was defined in
terms of the weight of tea dispatched from the tea estate there must be a nexus between
the levy on the tea estate and the criteria for determining the measure of liability. In the
case of Govind Saran, Ganga Saran (ibid) the learned counsel discussed essential
components for a concept of the tax namely: first is the character of the imposition
known by its nature which prescribes the taxable event attracting the levy, second is a
clear indication of the person on whom the levy is imposed and who is obliged to pay the
tax, the third is the rate at which the tax is imposed and the fourth is the measure or value
to which the rate will be applied for computing the tax liability. If those components are
not clearly and definitely ascertainable, it is difficult to say that levy exists in point of
law. Any uncertainty or vagueness in the legislative scheme defining any of those
components of the levy will be fatal to its validity. In the case of Commissioner of Sales
Tax and others v. Hunza Central Asian Textile and Woolen Mills Ltd. (1999 SCMR 526)
it was held that "use or consumption of intermediary goods, in restricted sense could be
treated as sales by legal fiction, so as to bring such goods under the levy of sales tax
where final product was not subject to sales tax when sold and used or consumed by
intermediary goods. In such circumstances have a rational nexus with sales tax. In the
case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445) while taking into
consideration the provisions of sections 6, 7 and 8 of the Anti-Terrorism Act, 1997 along
with Schedule attached thereto it was held that offences mentioned in the schedule should
have nexus with the object mentioned in sections 6, 7 and 8 of the Act, 1997. In the case
of Excise Taxation Officer v. Burma Shell and distribution this Court held that one of the
Rules of construction of statute is that in case of irreconcilable inconsistency between a
charging section and the Schedule, the former is to prevail and the schedule is to yield to
the Act. Some of the provisions in Reference No.2 of 2005 (Hisba Bill, 2005) were
declared ultra vires to the Constitution being vague and overbroad.

23. First of all it would be appropriate to ascertain the status of item 14.14 of first
Schedule Part-II. Reference in this behalf may be made that under First Schedule Part-II
of the Excise Act, 1944, item 14.14 of the First Schedule part-II was inserted in
pursuance of section 5 of the Finance Act, 1991, meaning thereby that the item has been
made part of the Act, 1944 for the purposes of charging excise duty on services in respect
of advances made to any person. The rate of the duty has been prescribed in Column
No.3 which will be leviable on the amount of advances outstanding on the last day of
each calendar month. According to the legal status a schedule placed/appended with an
enactment is an extension of the section for the purpose of which it has been inserted. In
the instant case section 3 is a charging section, therefore, to cater its requirement it has
been appended. At this stage reference may be made to the following two principles
discussed in Craies on Statute Law Seventh Edition, 1971 Pg. 225 and N.S. Bindra's The
Interpretation of Statutes Seventh Edition at Pg. 92:

(1) Crates on Statute Law Seventh Edition, 1971 p.225.---"If the enacting part of
the Statute cannot be made to correspond with the Schedule, the latter must yield
to the former".

(2) N.S. Bindra's The Interpretation of Statutes Seventh Edition at pg.92).---In


case of conflict between the body of the Act and its Schedule, the former prevails.

Reference of book "Understanding Statutes" by S.M. Zafar is equally important wherein


it has been observed that:
(1) "The schedule is an extension of the section which induces it. Material is put
into a schedule because it is too lengthy or detailed to conveniently
accommodated in a section or because it forms a separate document (such as a
treaty)

(2) With respect to calling it a schedule, a schedule is an Act of Parliament is a


mere question of drafting; a mere question of words; a schedule is as much a part
of the statute and is as much an equipment as any other part."

The above principles are sufficient to conclude that a schedule is an enjoinder equal
status of an enactment. There could be cases wherein a conflict between the Act and the
schedule could be visible and in such a situation principle noted in the Craies on Statute
Law (seventh Edition 1971 at pg. 225) and N.S. Bindra's The Interpretation of Statutes
(Seventh Edition pg. 92) shall be pressed into service. Keeping in view the above
principles, this Court in the case of Excise and Taxation Officer v. Burma Shell Storage
(ibid) held that in case of irreconcilable inconsistency between the charging section and a
schedule, former is to prevail and schedule is to yield to the Act.

24. It may be noted that as per sections 8 and 10 of the Act the Third Schedule were to
provide scale as to the amount of the tax which was to be levied and recovered on the
value of the goods imported or exported. The Third Schedule instead of providing scale
in terms of the above sections purported to levy tax on the value of the licences. This
Court held that the third Schedule is not in terms of section 3, therefore, cannot be
enforced. To resolve the controversy it is to be observed that as per the dictum laid down
in the case of Hirjina's (ibid) constitutionality of section 3 has been upheld and now as
per the grievance of the respondents item 14.14 of the First Schedule Part-II has no nexus
with section 3. Before examining the proposition it is to be noted that item 14.14 as per
its status is a part of the main enactment. Under the Constitution its constitutionality
cannot be testified at the touchstone of section 3 unless it violates any of the provisions of
the Constitution or inconsistency as it has been alleged irreconcilable therefore, instead of
declaring it to be ultra vires of the Constitution, it would be yield to section 3 of the Act.
Section 3 being a charging section deals in respect of duties specified in the First
Schedule to be levied. Thus a legal nexus between item 14.14 of the Schedule Part-II and
section 3 to exist as both of them are the parts of a statute. Section 3 being charging
section provides that excisable service provided or rendered in Pakistan, as and at the
rates set forth in the first Schedule shall be chargeable. Word 'as' according to Chambers
Concise Dictionary (pg. 53) means in what decree, proportioned manner, to what extent;
in that decree; to that extent clearly demonstrates that duty can be recovered on excisable
service. at the rates set forth in the Schedule. It means that under the schedule a rate has
to be specified for charging duty on the excisable service. The provision being a
comprehensive in its nature has not placed restriction to fix the rates of the duty and the
manner in which it will be recovered as per the contents of the Schedule. As such it is
necessary to see whether the Schedule fulfils the requirements namely proportioned
manner and extent to recover the excise duty or not. A perusal of Column-II of the
schedule speaks about the services provided or rendered by banking companies etc. in
respect of advances made to any person. It is to be kept in mind that above discussion as
it has already been held that institutions named in Column-II of Item 14.14 provides
service in respect of advances made to any person. It is also to be observed that the word
'services' used in this column, represents to more than one services. Thus the arguments
put forwarded on behalf of the respondents' counsel that as in the case of Hirjina (ibid)
services were specified, therefore, to that extent the item of the schedule discussed
therein is valid and in the item under discussion this expression has not defined therefore,
on account of vagueness the provision has no substance. The word 'services' in plural
sense is sufficient to conclude that it covers all the services provided by the institutions
named in Column-II to its customers, therefore, the legislation instead of spelling out
each kind of the service comparing to the item of the schedule which were discussed in
Hirjina's case, a comprehensive expression 'Services' has been employed. Thus it is held
that no ambiguity or vagueness can be attached to the contents of Column-II of the Item
14.14 for the purpose of declaring the provision vague or unspecified. Since the
legislature had demanded duty on excisable services in respect of the advances made to
any person (customers), therefore, it would be seen that as to what manner has been
adapted to calculate the duty and it has got nexus with the provision of section 3 of the
Act, 1944. Reference in this context may be made to Column II of the Item 14.14 of First
Schedule Part-II, according to which 1/12th of 1% of amount of each advance,
outstanding on the last working day of each calendar month. Its plain reading indicates
that excise duty is being charged on excisable services depending on the volume of the
amount outstanding on the last working day of each calendar month. Thus the criteria or
measure to calculate the duty has been provided in this column. Meaning thereby that if
loan is higher the services are more and if the loan is less the services are less. The
measure to calculate the excise duty, therefore, seems to be just and proper because,
prima facie, by adapting such yardstick there would be no discrimination in the recovery
of the excise duty. Thus it is held that in view of the manner prescribed in column III of
item 14.14 first Schedule part-II the legislation had provided a device to calculate the
duty at the rates in acceptable manner to fulfil requirements of section 3 of the Act, 1944.
Now at this stage another important argument raised by the learned counsel is required to
be attended namely in column III of the item 14.14 rate of excise duty has been levied on
volume of loans and advances as outstanding on the last working day of each calendar
month which is inconsistent to the provision of section 3-C(1)(b) and section 4(3) of the
Act. It may be observed that this provision, excise duty (CED) is to be calculated on the
amount which is to be charged for such services, facilities or utilities whereas according
to the learned counsel the schedule as prescribed charging of the duty on the volume of
the advances/loans. It is to be observed that as far as section 4(3) is concerned it was also
added as back as in the year, 1970 by means of the Finance Ordinance, 1970 when the
services were also subjected to excise duty. Section 4(3)(b) deals that the amount with
reference to which the duty shall be levied, shall be the total amount charged for all
services, facilities and utilities provided or rendered including charging for supply or
merchandise therewith. So the argument is that on the volume of amount excise duty
cannot be charged and if it is to be calculated it should be amount chargeable for
providing/rendering facilities, services and utilities. The argument has no force because
subsection (3) of section 4 has widened the scope of levying the excise duty by using the
expression where under this Act any services, facilities or utilities are subject to duty at a
rate dependent upon the charges thereof. The word 'dependent' has created a distinction in
respect of different kind of services on which excise duty is recoverable. In this behalf
reference may be made to the case of Hirjina (ibid) where calculation of the duty on each
item provided to the customers where as in the financial institutions to quantify the excise
duty item-wise is not possible in view of multifarious services rendered or provided by
the banks, therefore, depending upon this particular aspect of the case for the purpose of
quantifying the excise duty, it is to be calculated on the volume of loan. Therefore, we are
persuaded to hold that there is no inconsistency between the Act of 1944 and item 14.14
first Schedule part-II and this item of the Schedule for all intends and purposes shall be
deemed to be a part of section 3 of the Act, 1944. As such the judgment in the case of
Excise and Taxation Officer Karachi (ibid) is not applicable and further it is not in
conflict with section 3-C(1)(b) of the Act, 1944 which relates to the determination of
tariff value and rate of duty on 'the date on which the services are provided or rendered.
Admittedly so long a person continuously enjoys services provided or rendered by the
banking companies etc. in respect of advances made of to it/him shall be obliged to pay
excise duty at the rate mentioned in Column-III of item 14.14. In other words it would be
a recurring cause of section to the banking institutions and others for the purpose of
effecting the recovery of excise duty on the services being provided on monthly basis on
the volume of advances which shall be calculated on the last working day of each
calendar month as it has been held in Messrs Army Welfare Sugar Mills Ltd. v.
Federation of Pakistan (ibid). Thus the arguments raised in this context by Mr. Imtiaz
Rashid Siddiqui and Mr. Ali Zafar, learned Advocate Supreme Court namely services on
advances is provided only once at the time of giving loan, and duty cannot be charged on
monthly basis, has no substance.

25. Mr. Khalid Anwar, learned counsel for respondents emphasized that this Court while
examining the vires of item 14.14 of first Schedule part-II required to consider its pith
and substance to ascertain whether it is violative of the Constitution of the Islamic
Republic of Pakistan and also to determine whether it is in violation of the powers of the
Federal or Provincial Government under Article 163 of the Constitution. Mr. Ali Zafar,
learned Advocate Supreme Court has also adopted his arguments and to substantiate his
plea he has referred to Article 141 of the Constitution and contended that charging, of
CED on excisable services is not permissible by the Federal Government. The argument
put forward by both the sides have no force because it is nobody's case that Federal
Legislature is not empowered to enact item 14.14 of the Schedule Part-II for the purpose
of levying excise duty on the excisable services. In this behalf reference may be made to
Entry 44 of the Fourth Schedule part-I of the Constitution.
26. Mr. Khalid Anwar, learned counsel for the respondents actually wanted to canvass
that in view of banking system based on Islamic modes of financing excise duty cannot
be recovered on the loans or advances as according to him there is no loan or advance but
it is trading i.e. sale and purchase of goods, which regulates the financial liabilities of the
parties upon each others. 'Reliance in this behalf has been placed on Habib Bank Limited
v. Messrs Farooq Compost Fertilizer Corporation Ltd. (1993 MLD 1571) and Habit Bank
Limited v. Messrs Qayyum Spinning Ltd. (2001 MLD 1351). Whereas the argument of
learned counsel Mr. Ali Zafar is that the Constitution has not authorized to recover excise
duty on advances and it does not fall within the pith and substance of the Article 141 of
the Constitution of the Islamic Republic of Pakistan. As such Item 14.14 being
unconstitutional deserves to be struck down.

27. Mr. Shahid Hamid one of the learned counsel for the respondents contended that
without prejudice to his arguments namely Advances even if are treated Loan, it would not
cover the transaction of Lease, Modaraba etc. therefore, the loan amount is the capital
assets of the bank advanced to the customers on which no excise duty could be recovered
as according to the pith and substance of item 14.14 actually it is duty on capital assets of
the bank.

28. On having taken into consideration the arguments of the learned counsel with
reference to Article 141 and Article 163 of the Constitution which deals with the
jurisdiction of Majlis-e-Shoora (Parliament) and Provincial Assembly to make laws in
respect of profession etc. As far as Entry 44 of the Fourth Schedule Part-I is concerned it
confers powers upon the legislature to promulgate laws relating to duties of excise
including duty on Salt but not including on alcoholic liquor, opium and other narcotics. It
is nobody's case that the law givers are not empowered to promulgate the law within their
sphere, however, the arguments of the learned counsel for respondents seem to be that as
Modaraba, Musharka etc. are concerned, the excise duty cannot be recovered on such
loans. It may be noted that they have taken exception to the definition of the word
'advances' as it has been noted herein above but on having taken into consideration the
different aspect of the case it has been held that word 'advance' or 'loan' has been used in
its popular sense. It is equally important to note that as far as item No.14.14 of the First
Schedule Part-II is concerned it does not speak in respect of the Modaraba or Musharka
etc. It so happened that in the year of 1994 the First Schedule was once again substituted
by means of Finance Act, 1994 and item 14.14 was replaced with item No.9813.0000,
according to which excise duty was chargeable on services provided or rendered by
Banking Companies, Insurance Companies, Cooperative Financing Society, Modaraba,
Musharka, Licensing Companies, Non-Banking Companies and other persons dealing in
such services.
Firstly it may be noted that as far as this amendment is concerned it was never challenged
before the High Court nor in this behalf any argument was raised obviously for the reason
that this amendment was brought in the year, 1994 when the petitions have already been
filed by them.

Secondly if we have to consider the arguments in the light of this amended item even
then keeping in view the material available on record particularly a letter, dated 27th
September, 1994 issued by the Faisal Islamic Bank of Bahrain, reference of which has
also been made hereinabove wherein instead of entering into the trade of sales and
purchase, cash amount was given to the loanee. Relevant conditions have already been
reproduced hereinabove. Besides, the Court is bound while examining whether particular
matter becomes within a fiscal statute is required to examine the letter of the law and if
comes to the conclusion that all the expressions used by the legislature are to be taken
into consideration in its popular meaning then there should not be hesitation in
maintaining the constitutionality of particular law. Reference in this behalf be made to the
following passage from Corpus Juris Secundum Vol.84 page 246:--

"Determination of character of tax.---In determining whether or not a particular


statute impose on excise or privilege tax, the Courts look to the real nature of the
tax, which is determined by its operation rather than by any particular descriptive
language . which may have been applied to it, so that the mere fact that the statute
characterizes the tax as an excise or privilege tax does not constitute it such a tax.
Although legislative declaration that a tax thereby imposed is an excise tax is not
conclusive, such designation is entitled to considerable weight in ascertaining the
nature the tax, and will be accepted unless the declaration is incompatible with the
effect of the statute."

Similarly the above principle has been approved in the case of the Commissioner of
Agricultural Income Tax East Bengal v. S.W.M. Abdul Rehman (1973 SCMR 445).

It is equally important to note that Lord Halsbury in the case of Tenant v. Smith (1892 AC
150) observed as follows:--
"In a Taxing Act it is impossible, I believe to assume any intention, any governing
purpose in the Act to do more than take such tax as the statute imposes---------
Cases, therefore, under the Taxing Acts always resolve themselves into a question
whether or not the words of the Act have reached the alleged subject of taxation."

Similarly in the case of Elahi Cotton Mills (ibid) it has been held that Court while
interpreting laws relating to economical activities viewed the same with greater latitude
than the laws w relating to civil rights such as freedom of speech, religion etc., keeping in
view the complexity of economic problems which do not admit of solution through any
doctrinaire or strait jacket formula.

Secondly, the arguments for declaring item 14.14 of the First Schedule part-II
unconstitutional as by its pith and substance it is not covered under Article 163 of the
Constitution is not acceptable in view of the fact that this Article in its original form
covers item 14.14 of the Schedule and so far as the Islamic mode of financing, wherein
the money is given to a second party by Banking Institutions by using the expression
Modaraba etc. is concerned such transactions would also be taken into consideration in
the popular sense.

Thirdly as far as Article 163 is concerned it deals in respect of the provision of tax etc.
The excise duty on the excisable services is altogether different. If for the sake of
arguments it is considered that excise duty on the excisable services is being charged in
lieu of providing professional skills to maintain the action of the customers, still the
Federal Legislation would not be debarred to legislate the tax on such profession because
worse to worse the case of the respondents could be of a double taxation i.e. (i) it could
be charged/claimed by the Provincial Government in terms of Article 163 and under
Article 144 of the Constitution read with item 14.14 of the schedule and double taxation
under the law promulgated by the Majlis-e-Shoora or Provincial Assembly is permissible
as it has been held by this Court in number of cases. Reference may be made to
Muhammad Shafi v. Wealth Tax Officer (1992 PTD 726). This judgment has been
followed in the case of Messrs ICC Textile Ltd. and others v. Federation of Pakistan and
others (2001 SCMR 1208).

Fourthly a test has been laid down to declare a law unconstitutional by N.S. Bindra in his
book on Interpretation of Statutes fourth edition at page 977 as follows:--
"To determine the Constitutional validity of an Act, its pith and substance should
be considered. In other words, where a law is impugned as ultra vires, it is the true
character of the legislation that has to be ascertained. That is, it must be
ascertained whether the impugned legislation is directly in respect of the subject
covered by any particular Article of the Constitution or touches the said Article
only incidentally or directly. If it be found that the legislation is in substance one
on a matter which has been assigned to the Legislature, there can be no question
of its validity even though it might incidentally infringe on matters beyond its
competence."

The above principle has also been relied upon by this Court in the case of Sohail Jute
Mills Ltd. v. Federation of Pakistan (PLD 1991 SC 329) and in the case of Mian Ejaz
Shafi v. Federation of Pakistan and others (PLD 1997 Karachi 604). Applying the above
test which has been approved by this Court in the case of Sohail Jute Mills (ibid), we are
persuaded to hold that legislature was competent to levy excise duty on excisable services
by inserting item 14.14 in First Schedule Par-II, in view of the provisions of Fourth
Schedule of the Constitution. Thus the judgment relied upon by the respondents counsel
being of no help to them are kept out of consideration.

29. Next it was contended by them that levy of excise duty on excisable services is
unreasonable because if there is no outstanding amount on the last working day of each
calendar month but excise duty will be charged as services being provided by maintaining
the accounts etc.

30. Learned counsel for the appellant Mr. Waseem Sajjad stated that excise duty is
recoverable only when there is a service provided or rendered in respect of advance made
to any person but no sooner the outstanding amount of advances has reimbursed it shall
be deemed that no services are being provided by the banking or financial or other
institutions to the customers. He also contended that reasonableness of law is not to be
examined by this Court for the purpose of declaring the same unconstitutional. In our
considered opinion the levy of excise duty under item 14.14 is dependent upon the
services which are being paid off in respect of the advances to a person but no sooner
when there is no advance it would be deemed that bank is neither providing nor rendering
any service because the transaction has come to an end between a bank and the
customers. Therefore, it is in the interest of customers that he is being alleviated from
further levy of the excise duty. In addition to it while construing a taxing measure for
determining its constitutional validity at the touchstone of reasonableness cannot be
entertained as per settled judicial norms. The only consideration is whether the legislation
under challenge is permissible by the Constitution. The reasonableness or otherwise of
such state is a matter of legislative policy and it is not for the Courts for adjudication.
(Interpretation of Statute by N.S. Bindra Seventh Edition pg 771 relied upon by this
Court in the case of Anoud Power Generation Ltd. v. Federation of Pakistan (PLD 2001
SC 340). Thus it is concluded that for both the reasons mentioned hereinbefore item
14.14 of the First Schedule part-II of the Act, 1944 cannot be declared ultravires of the
Constitution.

31. Learned counsel contended that item 14.14 of First Schedule is unconstitutional being
contrary to the provision of law as it has created unreasonable classification for the
purpose of providing/rendering excisable services of identical nature to all of them.

32. Mr. Akram Sheikh, learned counsel for some of the respondents also supported the
view of Mr. Khalid Anwar in respect of violation of Article 25 of the Constitution by
incorporating item 14.14 of the First Schedule part-II and stated that companies being
incorporate bodies are entitled to question the constitutionality of the law if it is against
the fundamental rights or any one of the provisions of the Constitution. Reference in this
context has been made to Divisional Forest Officer v. Bishwanath Tea Co. Ltd., AIR 1981
SC 1368), Excell Wear v. Union of India (AIR 1979 SC 25), U.P.S.E. Board v. Hari
Shanker (AIR 1979 SC 65).

33. Before adverting to the arguments advanced on behalf of the respondent/banking


companies on the question whether incorporate bodies are entitled for the protection of
Article 25 of the Constitution and the constitutionality of a Statute can be examined on
their behalf. Learned counsel for the respondents were one on the point that as the
companies are entitled to freedom of trade, business or to carry on a profession, therefore,
if the legislation is discriminatory qua their rights, the companies can impugn such
legislation before the Courts either under Article 199 or under Article 185(3) of the
Constitution. We are not in agreement with the contentions raised by them. Undoubtedly
the companies have not fundamental rights to carry on business through its
representatives who are the citizens of Pakistan but for the purpose of challenging the
constitutionality of a statute, it would be a condition precedent to satisfy that challenge is
by a citizen at the touchstone of Article 25 of the Constitution, which provides that all
citizens are equal before the law and are entitled to protection of law, Expression
"citizen" means a citizen of Pakistan as defined by law under Article 260 of the
Constitution. According to the case of The Progress of Pakistan Co. Ltd. v. Registrar Joint
Stock Companies Karachi (PLD 1958 Lahore 887) relevant law to define the "citizen" is
the Citizenship Act of 1951 as it has been explained in sections 6, 7 and 9 of that Act.
Relevant paras are reproduced from the case of Shelat v. Bhargava, G.K. Mitter (AIR
1970 SC 564):--
"(14) By a petition praying for a writ against infringement of fundamental rights,
except in a case where the petition is for a writ of habeas corpus and probably for
infringement of the guarantees under Articles 17, 23 and 24, the petitioner may
seek relief in respect of his own rights and not of others. The shareholder of a
Company, it is true, is not the owner of its assets; he has merely a right to
participate in the profits the Company subject to the contract contained in the
Articles of Association. But on that account the petitions will not fail. A measure
executive or legislative may impair the rights of the Company alone, and not of its
shareholders; it may impair the rights of the shareholder and not of the Company:
it may impair the rights of the shareholders as well as of the Company.
Jurisdiction of the Court to grant relief cannot be denied, when by State action the
rights of the individual shareholder are impaired if any as well. The test in
determining whether the shareholder's right is impaired is not formal; it is
essentially qualitative, if the State action impairs the right of the shareholders as
well as of the Company, the Court will not, concentrating merely upon the
technical operation of the action, deny itself jurisdiction to grant relief.

(15) The petitioner claims that by the Act and by the Ordinance the rights
guaranteed to him under Articles 14, 19 and 31 of the Constitution are impaired.
He says that the Act and the Ordinance are without legislative competence in that
they interfere with the guarantee of freedom of trade and are not made in the
public interest; that the Parliament had no legislative competence to enact the Act
and the President had no power to promulgate the Ordinance, because the subject-
matter of the Act and the Ordinance is (partially at least) within the State List; and
that the Act and Ordinance are invalid because they vest the undertaking of the
named banks in the new corporations without a public purpose and without setting
out principles and the basis for determination and payment of a just equivalent for
the property expropriated. He says that in consequence of the hostile
discrimination practised by the State the value of his investment in the shares in
substantially reduced, his right to receive dividend from his investment has
ceased, and he has suffered great financial loss, he is deprived of the rights as a
shareholder to carry on business through the agency of the Company, and that in
respect of deposits the obligations of the corresponding new banks not of his
choice are substituted without his consent"

34. Admittedly a company incorporated under the Companies Act, 1913 or the
Companies Ordinance, 1984 does not fall within the definition of a citizen. However,
constitutionality of legislation which has impaired the rights of a company can be
challenged through a shareholder who fulfils the following test laid down in the' case of
Godhra Electric Company v. State of Gujarat (AIR 1975 SC 32):--
"(30) In R.C. Cooper v. Union of India (1970) 3 SCR 530 at p.556 = (AIR 1970
SC 564 at p.585) this Court said:--

"Jurisdiction of the Court to grant relief cannot be denied, when by State action
the rights of the individual shareholder are impaired, if that action impairs the
rights of the Company as well. The test in determining whether the shareholder's
right is impaired is not formal; it is essentially qualitative: if the State action
impairs the right of the shareholders as well as to the Company, the Court will
not, concentrating merely upon the technical, operation of the action, deny itself
jurisdiction to grant relief."

(32) In Bennett Coleman and Co. v. Union of India, (1973) 2 SCR 757 at p.773 =
(AIR 1973 SC 106 at p.115) one of us, Ray, J. as he then was, speaking for the
majority said:--

"As a result of the Bank Nationalization case (1970) 3 SCR 530 = (AIR 1970 SC
564) (supra) it follows that the Court finds out whether the legislative measure
directly touches the company of which the petitioner is a shareholder. A
shareholder is entitled to protection of Art. 19. That individual right is not lost by
reason of the fact that he is a shareholder of the company. The Bank
Nationalization case (supra) has established the view that the fundamental rights
of shareholders as citizens are not lost when they associate to form a company.
When their fundamental rights as shareholders are impaired by State action their
rights as shareholder are protected. The reason is that the shareholders' rights are
equally and necessarily affected if the rights of the company are affected.

(33) We think the second appellant is entitled to challenge the validity of the
subsection on the ground that it abridged his fundamental right under Arts. 19(1)
(g) and 19(1)(f)."

The Indian Supreme Court in the case of DC & GM Company v. Union of India (AIR
1983 SC 937) examined maintainability of a writ petition by an incorporated company
qua denial of freedom guaranteed under Article 90 and observed as follows:
"(12) The Attorney General raised a preliminary objection to the maintainability
of the writ petitions filed in this Court under Art.32 and those filed in the High
Court under Art. 226 of the Constitution. The submission was founded on the
ground that an incorporated company being not a citizen for the purposes of Art.
19 and therefore it cannot complain of the denial or deprivation of fundamental
freedom guaranteed by Art. 19 (1)(g) of the Constitution and the situation is not
improved by joining either a shareholder or a Director as co-petitioner. It was said
that the company has a juristic personality independent of the Director or a
shareholder and the business or trade carried on by the company is not that of
either the shareholder or the Director. As the corollary, it was urged that even if
the impugned Rule 3A imposes an unreasonable restriction on the fundamental
freedom to carry on trade or business, this Court cannot entertain a petition under
Art. 32 not the High Court can entertain one under Art. 226 of the Constitution.
Frankly speaking, this is an of repeated contention whenever the petitioner is an
incorporated company but the law in this behalf is in a nebulous state and
therefore, it is not possible to throw out the petition at the threshold. More so
because a petition under. Art. 226 of the Constitution can be filed by the company
for any other purpose and also the petitioners complain of violation of Art. 14 of
the Constitution. The reasons for stating that the law is in a nebulous state may
briefly be mentioned. In State Trading Corporation of India Ltd. v. Commercial
Tax Officer, Visakhapatnam (1964) 4 SCR 99: (AIR 1963 SC 1811) and Tata
Engineering and Locomotive Co. v. State of Bihar, (1964) 6 SCR 885: (AIR 1965
SC 40), this Court held that a Corporation was not a citizen within the
comprehension of Art. 19 and therefore, could not complain of denial of
fundamental freedom granted by Art. 19 to a citizen of this country. These two
decisions are an authority for the proposition that an incorporated company being
not a citizen could not complain of violation of fundamental freedom granted to
citizen under Art.19. But a different note was struck in R.C. Cooper v. Union of
India, (1970) 3 SCR 530: (AIR 1970 SC 564), when it was held that a measure
executive or legislative may impair the rights of the company alone, and not of its
shareholder; it may impair the rights of the shareholder as well as the company. It
was further held that jurisdiction of the Court to grant relief cannot be denied,
when by State action the rights of the individual shareholder are impaired, if that
action impairs the rights of the company as well. In that case, the Court
entertained the petition under Art. 32 of the Constitution at the instance of a
Director and shareholder of a company and granted relief. The two conflicting
trends in this behalf were noticed by this Court in Bennett Coleman and Co. v.
Union of India (1973) 2 SCR 757: (AIR 1973 SC 106) where after review of the
aforementioned decisions and several others, it was held as under (at p. 115 of
AIR):--

"As a result of the Bank Nationalization case (supra) it follows that the Court
finds out whether the legislative measures directly touches the company of which
the petitioner is a shareholder. A shareholder is entitled to protection of Art. 19.
That individual right is not lost by reason of the fact that he is a shareholder of the
company. The Bank Nationalization case (supra) has established the view that
fundamental rights of shareholders as citizens are not lost when they associate to
form a company. When their fundamental rights as shareholders are impaired by
State action their rights as shareholders are protected. The reason is that the
shareholders' rights are equally and necessarily affected if the rights of the
company are affected. The rights of shareholders with regard to Art. 19(1)(a) are
projected and manifested by the newspapers owned and controlled by the
shareholders through the medium of the corporation."

....Thus apart from the law being a nebulous state, the trend is in the direction of
holding that in the matter of fundamental freedoms guaranteed by Art. 19 the
rights of a shareholder and the company which the shareholders have formed are
rather coextensive and the denial to one of the fundamental freedom would be
denial to the others. It is time to put an end to this controversy……….."

35. It may be noted that from the above observation as well as the observation made in
the other judgments cited hereinabove it becomes abundantly clear that an incorporated
company does not fall within the definition of citizen. However, constitutionality of a
statute can be examined for violation of Article 25 of the Constitution if the vires of the
Statute has been questioned by a shareholder, director along with the company itself and
that the company independently cannot question the constitutionality of a legislation at
the touchstone of Article 25 of the Constitution. The Courts are not debarred to examine
the cases of company or others on the point other than the alleged violation of Article 25
of the Constitution as in the instant case number of other points have been examined on
behalf of the respondents who are supporting the judgments pronounced by the Sindh
High Court, reported in (2002 CLC 1714) and are also requesting to set aside the
judgment on the same point of the Lahore High Court reported in (2003 PTD 1017). It
is equally important to point out that we inquired from Mr. Khalid Anwar, learned Sr.
Advocate Supreme Court appearing for some of the respondents whether constitutionality
of item 14.14 of First Schedule Part-II was agitated before both the Courts namely
Karachi and Lahore, he contended that in some of the cases the constitutionality of the
impugned legislation was questioned being ultra vires to the Constitution. He further
added that as Sindh High Court had declared the impugned legislation ultra vires to the
Constitution, therefore, he is entitled to defend the impugned judgment of the Sindh High
Court on any ground available to the respondents, because it is well settled that the
Courts can maintain the judgments other than on the grounds on which the same were
founded. We are inclined to agree with his contention but with the added observations
that if a plea is not available under the law to defend the judgment, the arguments raised
by him would not help him at all. Whereas in the instant case on the basis of the above
discussion it has been held that incorporated bodies/respondent companies does not fall
within the definition of a citizen for the purpose of Article 25 of the Constitution
therefore, without joining to the share/account holders the impugned legislation cannot be
examined within the parameters of Article 25 of the Constitution. At this juncture Mr. A
Karim Malik learned counsel appearing for some of the respondents contended that he
has raised objection before the Lahore High Court about the non-maintainability of the
petition under Article 199 of the Constitution of the Islamic Republic of Pakistan,
because according to him the imposition of excise duty on excisable services is a matter
between C.B.R. and the Banks. As far as the respondents are concerned they have no
locus standi to challenge the constitutionality of item 14.14 of the First Schedule part-II.
In reply to his arguments, Mr. A.I. Chundrighar appearing on behalf of Industrial
Development Banks contended that the banks actually passed on the burden of liability,
being an indirect tax, to the customers, therefore, they can maintain 'the petition and if the
judgment of Lahore High Court (2003 PTD 1017) is maintained and the judgment of the
Sindh High Court (2002 CLC 1714) is set aside, bank shall recover excise duty from the
customers. We are not in agreement with the contention raised by Mr. A. Karim Malik
with reference to the observations made hereinabove while examining the availability of
the question of discrimination under Article 25 to an incorporated body but as far as the
petition under Article 199 of the Constitution is concerned it would be maintainable on
behalf of the respondent banking institutions if they fall within the definition of a person
as it has been used in Article 199 of the Constitution. At this stage it would not be out of
context to lay down a distinction between the expression of a person and a citizen. As far
as the expression 'person' is concerned it also includes a juristic person i.e. Incorporated
bodies and so far expression citizen is concerned as it has been employed in Article 25 of
the Constitution "person" which means as defined under the law. Essentially the law on
the subject is Pakistan Citizenship Act, 1951 which by its implication excludes a juristic
person from the definition of citizen. As far as the question of passing on the burden of
the excise duty is concerned, in this context this Court in Elahi Cotton Mills Ltd. (ibid)
has observed as follows:--

"(xxv) That a direct tax is one which is demanded from the very person, who it is
intended or desired should pay it, whereas indirect taxes are those,

which are demanded from one person in the expectation and intention that he
shall indemnify himself at the expense of another, like customs duties, excise
taxes and sales tax, which are borne by the consumers."

The consensus of opinion as per these observations leaves no room to form contrary
view, therefore, excise duty on excisable services is required to be indirect tax,
recoverable from a person to whom excisable service has been provided or rendered,
therefore, the C.B.R. rightly considered the excise levy on excisable service to be indirect
tax and vide circular dated Islamabad, the 26th September, 1991 issued clarification to
the effect that all Banks, Financial Institutions, Insurance Companies, Cooperative
Financial Societies, other Lending Banks or Institutions and other persons dealing in
advancing of loans were/are required to realize the excise duty at the aforesaid rate from
the amount of advances outstanding against each borrower.

36. Learned counsel had also objected upon the validity of this circular on the strength of
the judgment of this Court in the case Messrs Central Insurance Co. v. The Central Board
of Revenue (1993 SCMR 1232). We examined the facts of this case according to which
C.B.R. issued Circular No.4 of 1988 to interpret the expression "definite information" as
it has been implied in section 65 of the Income Tax Ordinance, 1979. This Court held that
reopening of the assessment by Income Tax Officer on the basis of circular No.4 of 1988
by the C.B.R. was not justified. The observations made in this judgment are not
applicable as the Circular under discussion has not incorporated any provision of law but
had made clarification in respect of the recovery of excise levy of excisable services from
the amount of advances outstanding against each borrower. Fully comprehending that the
excise levy is an indirect tax, the legitimate burden of which has to be borne by a person
to whom services have been provided or rendered by the Banks and Financial Institutions
etc. at the rate mentioned in Column No.III of item 14.14, therefore, objection raised in
this behalf has no substance.

37. Mr. Ali Zafar learned counsel contended that under item 14.14 no mechanism
(criteria) has been laid down to levy the tax on different kinds of services as according to
him the rate of excise levy as per column-II of the impugned item of First Schedule part-
II in respect of long term and short term loans is the same, although alleged services
rendered or provided would be different, therefore, it being vague in nature deserves to be
declared unconstitutional.

38. Mr. Khalid Anwar learned counsel also contended that the impugned item of First
Schedule Part-II is operating in a discriminatory manner and in absence of any reasonable
classification and intelligible differentia, between the person who have obtained advances
for a longer or shorter term, negates their fundamental rights under Article 25 of the
Constitution which envisages that all citizens are equal before law and are entitled for
equal protection of law. Reliance is this behalf has been placed by him on I.A. Sherwani
v. Government of Pakistan (1991 SCMR 1041) and Inaam-ur-Rehman v. Federation of
Pakistan (1992 SCMR 563).

39. Learned counsel for the Federation, Mr. Waseem Sajjad, contradicting their
contentions stated that there is no discrimination because the persons having less loan
have been charged with lesser amount and persons having greater loan have been charged
with higher amount. In our considered opinion the arguments raised on behalf of the
respondent need not be examined in view of the observations made hereinabove
regarding non-availability of such agreements to a person in terms of Article 25 of the
Constitution because no one amongst the affected persons i.e. share/accounts holders had
approached the learned High Courts by Invoking its jurisdiction under Article 199 of the
Constitution nor a citizen of the same category is respondent before us. As far as
respondent companies being Incorporated Bodies are concerned they do not fall within
the definition of `citizen' as has been discussed hereinabove, therefore, the argument so
raised is turned down.

40. Learned counsel for the private parties vigorously agitated that excise levy on
excisable service as per item 14.14 shall be applicable on advances which were granted
prior to the promulgation of Finance Act, 1991 in pursuance whereof item 14.14 of the
First Schedule Part-II was inserted. He also added that excise levy is distinguishable only
once at the time of the giving of loan, therefore, the duty cannot be charged on monthly
basis. It was also argued by them that even if it is assumed that any excisable service is
provided or rendered by Banking Companies or Financial Institutions it would be once at
the time when the loan was extended and not afterward. He further contended on behalf
of C.B.R. that item 14.14 of First Schedule part-II is not being implemented/enforced
with retrospective effect from the date when it was promulgated i.e. 27th June, 1991 and
excise levy is being charged on excisable services in respect of advances made to any
person which were outstanding and excisable service was being provided/rendered in
respect whereof as the banking companies have recurring cause of action against the
respondents.

41. We having considered the arguments put forward by the learned counsel for the
parties in this behalf. It is well settled principle of law that in absence of clear intention of
the legislature to apply a provision of statute with retrospective effect it would be deemed
that it would be applicable prospectively. This principle has been highlighted in the
judgment relied upon by the learned counsel for the respondents. However, keeping in
view the principles highlighted therein while proceeding ahead we have to examine as to
whether services, facilities and utilities extended by the banking institutions and other
persons shall be limited to the extent of the date when the loan was granted or excisable
services shall continue till the final adjustment of the loan/advances. Leaned counsel
appearing for the respondents had not produced the copies of the loan agreement to
ascertain the exact factual position in this behalf but from the pleading of the parties it is
inferred that after the promulgation of Finance Act, 1991 in pursuance whereof item
14.14 First Schedule part-II was inserted and respondents were called upon to pay excise
duty on excisable services, therefore, being aggrieved from such demand they instituted
writ petitions before the High Court of Sindh and Lahore High Court, Lahore which have
been disposed of vide impugned judgments expressing opinion against each other. Thus it
is held that when the Banking Institutions are continuously providing/rendering excisable
services including facilities, accommodation and utilities to the persons who have
obtained the loan and same have not been adjusted so far, and cause of action m
continues in favour of Banking Institutions etc. till such m loan/advance is not finally
adjudicated or it has not been recovered through judicial process by invoking jurisdiction
of a Court of law, the Bank shall continue extending excisable services and shall be liable
to recover CED.

42. At this juncture it is important to point out that the excisable service is covered under
section 3-C(1)(b) according to which in the case of services on the day on which services
are provided or rendered. As per Column No.II item 14.14 of the First Schedule Part-II of
the Act, 1944 has laid down conditions for excise levy whereas Column No.III provides
the rate of duty as it has been noted hereinabove that the person who has obtained less
loan, shall be charged with less amount of excise levy and, person having obtained
greater loan has to be charged with higher amount of levy. Column-III in fact is the
transaction of section 3-C(1)(b) which deals in respect of rate of levy on the date on
which services are rendered/provided. As we are of the opinion that until the adjustment
of the loans the financing companies enjoy recurring cause of action therefore, the day on
which the excisable service is rendered/provided that would be the date for the
determination of excise levy. Column III had fixed on the last working day of each
calendar month. Meaning thereby that during the month's period whatever services had
been provided or rendered the excise duty will be levied upon the same on the last day of
month keeping in view the amount of advances against the petitioner. It may be noted that
unless such a measure is not adopted the provision of section 3-C(1)(b) read with item
14.14 of the Act, 1944 would be rendered unworkable. It may be noted that the rate of
levy I.E. 1/12th of 1% of the amount as per Column-III was enhanced to 1/12th of 2% of
the amount as per Finance Act, 1992. Question arises that what is the criteria for fixation
of levy of excise at different rates as per Column-III. In this behalf it may be noted that
the lawgivers before imposing the tax ordinarily undertake an exercise during the process
whereof the tax payers are also examined and keeping in view their acceptable consensus
the rate of tax is fixed. Besides at the same time it becomes very difficult to quantity the
excise tax, therefore, a reasonable/moderate rate of tax is fixed keeping in view the
suggestion of the tax payers and other person who matters in this behalf. This Court faced
identical situation while dealing with the presumptive tax under section 80-CC and
minimum tax under section 80-D of the Income Tax Ordinance, 1979 in the case of Elahi
Cotton Mills Ltd., wherein it was observed:--

"The rate of half per cent of minimum tax adopted under section 80-D seems to be
on the basis of minimum rate of tax suggested by Export Enhancement
Committee."
Therefore, we are of the opinion that the rate of excise levy, as it stood finally
incorporated, is just and proper thus free from any arbitrariness. As far as the respondents
are concerned in fact they are not being burdened by the excise levy at the rates whatever
mentioned in Column-III because it being an indirect tax has to be passed on by the
respondent companies to their clients. In this behalf circular, dated 26th September, 1991
which has already been discussed hereinabove, is a clear demonstration of the factum of
passing on the tax to the borrowers etc.

43. Raja Muhammad Akram, learned Sr. Advocate Supreme Court or some of the
respondents contended that in majority of the cases, Banking Institutions forwarded
advances to the respondents before the promulgation of item 14.14 in the First Schedule
Part-II of the Act, 1944, therefore, the customers/loanees have attached legal expectancy
that they will not be suffered with any other tax. To elaborate his arguments he relied
upon the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) therefore,
according to the Act of the Parliament no further tax can be levied and according to him
such excise levy by the Government is contrary to Islamic Injunctions. Reference was
made by him to Ayah No.1 of Sora' Almaida and Ayah No.34 of Sora' Rani Israel. He
emphasized that as far as the banks are concerned they are bound to follow the contract
(agreement) executed between the parties period to insertion of item 14.14. In this behalf
he also relied upon in the judgment reported in Pakistan v. Public at large (PLD 1987 SC
304) and Mrs. Zehra Begum v. Pakistan Burma Shell Ltd. (PLD 1984 SC 38).

44. In this context it may be noted that neither the Banking Companies nor C.B.R. has
imposed excise levy on excisable services as it is evident from the contents of Finance
Act, 1991. Similarly the Federation of Pakistan who had legislated item 14.14 of First
Schedule part-II is not a party to the agreement between the persons dealing in advances
of loans and the banks. Therefore, the legislature cannot be stopped to promulgate a law
for the purpose of imposing of the tax with a view to generate revenue keeping in view its
growing requirement to generate funds to address burning problems of the day and the
complex issues facing the people which the legislature in its wisdom through legislation
seeks to solve (Elahi Cotton Mills (ibid)), therefore, there is no estoppel against the
Federation to levy excise on the excisable services notwithstanding the fact that what are
contents of the agreement. In this context it may be noted that the powers of the
legislature to promulgate the law, imposing excise duty or other duties cannot be curtailed
as it has been held in the case of Molasses Trading and Export (Pvt.) Ltd. v. Federation of
Pakistan (1993 SCMR 1905) and Government of Pakistan v. Muhammad Ashraf (PLD
1993 SC 176). Relevant para. is reproduced herein below: --

"However, the question whether the ratio of Al-Samrez Enterprises would be


attracted in the case of regulatory duty under section 18(2) of the Act is a separate
matter. The case of Al. Samrez Enterprise dealt with the question of the effect of
withdrawal of an exemption notification under section 19 of the Act. As discussed
in Civil Appeal No.915-K of 1990 and others in Al-Samrez Enterprise the concept
of examination as applied to taxation, which presupposes a liability and
constitutes grant of immunity from the liability created by the charging section,
was the essential principle on which the decision proceeded. So far as the power
of the Government to impose a regulatory duty is concerned, the case falls within
the domain of delegated legislation, whereby duty or tax is imposed under the law
as authorized by Article 77 of the Constitution, under the authority of the Act of
Parliament. Therefore, on no principle or rule of law, it can be urged that merely
because at one time no regulatory duty was imposed and was in force, when the
contract was entered into, any embargo is thereby created upon the delegate of the
legislature to impose the tax at any time irrespective of any transaction entered
into on the basis when no such tax was in force. We have not been shown any
authority for the proposition that abstention of the Government or non-excise of
delegated authority to impose that tax at a given time under delegated authority,
gives a vested right to any one to be exempted from the payment of such tax ipso
facto subsequently when such tax is imposed.

Mr. Rahimtoola, learned counsel for some of the respondents besides arguing that
duty could not be imposed so as to destroy vested rights created in favour of the
importer after a contract of sale was concluded and L.C. opened, further urged
that the policy announced by the Government imposing no regulatory duty on
Soyabean Oil in the first instance constituted promissory estoppel as in the
meantime his clients had acted on the initial declaration of policy providing no
regulatory duty on the commodity in question, Mr. Fakhruddin G. Ebrahim and
Mr. Khalid Anwar also advanced a similar argument in urging that, once the
government takes a conscious decision on what articles regulatory duty should be
imposed, if subsequently within the same financial year duty is imposed on one of
the items free from such duty, a question of vested right and promissory estoppel
does arise and the Government cannot be allowed to go back upon such
representation. However, as already discussed abstentation from subjecting a
particular item of goods from regulatory duty at a given time, or for that matter at
the commencement of the financial year, does not create any vested right in
favour of any party who may have entered into contracts on that basis, because
the authority to levy the duty is the sovereign power of the State by the device of
delegated legislation for imposing a tax. So far as the argument on promissory
estoppel is concerned, there is no question of a representation on the part of the
Government, which is an essential element of the principle of promissory
estoppel, when particular item is not subjected to duty at the initial stage."
45. So far the principle highlighted in the Quranic Injunctions relied upon by the learned
counsel is concerned, there is no denial of the same at all but same would be applicable
between the parties who have signed the agreement. The Federation of Pakistan is not
signatory to the loan agreement, therefore, it is not bound with the condition of the same.
It is equally important to note that even the copies of the agreement have not been placed
before us for the purpose of reading the condition noted therein. We may observe here
that the respondent can also not claim a right for not paying a duty on excisable services
in view of the fact that legislature under the Constitution is competent to levy excise
according to the section 3 of the Act, 1944 which has already been declared a valid piece
of legislature in the Hijina's case (ibid).

46. Thus for the foregoing reasons appeals tiled against the judgments of High Court of
Sindh at Karachi, dated 22-12-2000 and 23-10-2001 are accepted whereas the appeals
filed against the judgment of the Lahore High Court, Lahore, dated 4-4-2002 and 27-5-
2004, are rejected with costs throughout.

S.A.K./F-56/SC Order accordingl