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Letters Patent Appeal No. 26 of 1952, decided on 17th December 1957, under clause 10 of the Letters Patent Act against the judgment passed by Shabir Ahmad, J. on 3rd June 1952, in Regular Second Appeal No. 199 of 1951.
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Inference of implied repeal ‑‑When to be drawn. Inference of repeal should only be drawn if the provisions of a later Act are so inconsistent with, or repugnant to, those of an earlier Act that the two cannot stand together. If the two can be reconciled on a reasonable interpretation, that would be likely to be in consonance with the intention of the Legislature.
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Subsequent legislation-- When to be looked at for purpose of construing earlier legislation.
Subsequent legislation may be looked at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous, Subsequent legislation if it proceeded on an erroneous construction of previous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier.
In Cape Brandy Syndicate v. 1. C. R. (1921) 2 K B 403 and Ormond Investment Co. v. Betts 1928 A C 143 ref.
S. 2‑Word "Succession"‑Applied only to intestate succession before replacement of S. 2 in 1951. Sardar Bibi v. Abdul Latif P L T) 1952 Lah. 294 Overruled.
Held, that the West Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), did not change the law with regard to wills. In spite of the fact that the word ''succession" was used therein that expression must be equated with non‑testamentary succession.
Sardar Bibi v. Abdul Latif P L D 1952 Lab. 294 Overruled.
The above opinion was the outcome mainly of a con sideration .of section 3‑A introduced into the 1948 Act by the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act (XI of 1951), which escaped notice in P L D 1952 Lab. 294.
The provisions of the aforesaid section 3‑A can only be consistent with the assumption that the word "succession" in section 2 of the 1948, Act, did not include wills within its scope.
Sardar Bibi v. Abdul Latif P L D 1956 F C 137; Abdullah v. Mst. Bakhto Mai P L D 1956 S C Pak. 321 ; Mst. Shahzadan Bibi v. Amir Husain Shah P L D 1956 S C (Pak.) 227 and ,Bashir Ahmad v. Muhammad P L D 1956 Lah. 934 (F, B.) ref.
Corpus Juris. Vol. 18, p. 803 (1919 Ed.) ref.
Ashrafalli v. Mahomedalli A I R 1947 Bom. 122 and Mancharji Pestonji v. Narayan L. (1863) 1 Bom. H C R 77 disting.
Manzoor Qadir and Atta Ullah Sajjad for Appellants.
Mian Muhammad Shaft for Respondents.
Dates of hearing: 2nd and 3rd December 1957.
--This Full Bench has been constituted to consider Letters Patent Appeal No. 26 of 1952, and Regular Second Appeal No. 114 of 1954, together, as the pint of law raised in them is identical and is already covered by a D. B. judgment of this Court reported as Sardar Bibi v. Abdul Latif (P L D 1952 Lah. 294). It has been suggested that the view taken in that case requires reconsideration.
2. The facts of the Letters Patent Appeal may first be briefly summarised. Haji Fatta died in April 1949. He was survived by his widow, Mst. Maryam, and two sets of nephews, Dost Muhammad and Ibrahim, sons of Ismail, and Yusuf and Sultan, sons of Ratta. By a will executed by the deceased on the 13th of June 1935, Exh. P. 1, he had be queathed a life estate to his wife. Mst. Maryam, after his death and there was provision made in the will that on Mst. Maryam's demise, out of the one and a halt square and half a residential ihata owned by the deceased, one square of land and the half ihata will go to Dost Muhammad and Ibrahim and the remaining half square would go to Ratta, his brother or if he was dead at the relevant time, to his progeny. On Fatta's death, mutation of the landed property left by him was effected in accordance with the provisions of the Muslim law, one‑fourth of his land being given to his widow and three‑eights each to the two sets of nephews. By that time, apparently, Ratta had died. Mst. Maryam instituted the suit, from which the present appeal has arisen, on the 26th of August 1950, claiming that she was entitled to keep the pro perty of the deceased as a life estate under his will which was validly executed under custom. The factum and validity of the will were challenged on the basis of Muslim Law, on behalf of the sons of Ratta, though not by the other set of nephews. The contest between the parties was crystallised into three issues which read as follows:‑
(3) Did Fatta leave a will in favour of the plaintiff
(4) If issue No. 3 is found in the affirmative, was the will in question enforceable and, if so, to what extent
(5) What is the effect of the Shariat Act, 1948, on the suit
It was found by the trial Judge on issue No. 3 that the execu tion of the will by the deceased was not proved and issue No. 4 was therefore, held not to arise. On issue No. 5 it was found that even if the will had been validly executed, it had become ineffective after the enforcement of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, (here inafter referred to as the 1948 Act) as Fatta had died after that Act had come into operation. As a consequence of these findings, the plaintiff's suit was dismissed with costs. On appeal the learned Senior Civil Judge, Lyallpur, reversed the finding of the trial judge on issue No. 3 and held that the will duly executed by the deceased, Haji Fatta. He further expressed the view that on the testator's death, the will was enforceable and that the position was not affected by the Shariat Acts. The appeal was, consequently allowed and the plaintiff was granted a declaration that she was entitled to possession of the suit land as a widow's estate till her death. The defendants, Yusuf and Sultan, were burdened with costs of the plaintiff in both the Courts. Against the judgment and decree passed by the learned Senior Civil Judge, a second appeal was filed in this Court. This was decided by Shabir Ahmad, J., who, relying on the D. B. judgment of this Court in Sardar Bibi v. Abdul Latif, accepted the view that the word "succession" occurring in section 2 of the 1948 Act included testate as well as intestate succession and, therefore, the validity of the will left by Haji Fatta was to be considered with reference to Muslim Law. Under that law a will in favour of heirs without the consent of the other heirs could not be effective. The appeal was, therefore, allowed and the suit of the plaintiff dismissed but the parties were left to bear their own costs throughout. The learned Judge granted a certificate for an appeal under clause 10 of the Letters Patent.
3. In Regular Second Appeal No. 114 of 1954, the relevant facts are that Nur Ahmad, son of Nathu, a Gujjar of the Jhelum District, died on the 8th of September 1948. He left a will dated the 11th October 1939, by which he bequeathed his landed property in favour of Ghulam Rasool and Fazal Ilahi, defendants Nos. 1 and 6, and Allah Lok, deceased husband of Mst. Zainab, defendant No. 2, and father of Muhammad Akram, Mst. Anwar Begum and Mst. Sakina, minor defendants Nos. 3 to 5. Mutation was entered in favour of these persons on the 30th of December 1950. It appears that the deceased had also gifted inter vivos certain property to his sister, Mst. Bhagan, the plaintiff in the case, but defendants Ghulam Rasul and Fazal Ilahi and Allah Lok deceased had obtained a declaration under custom from the Civil Court that the gift would not affect their reversionary rights in the property of the deceased: Mst. Bhagan filed the suit, giving rise to the present appeal, for joint possession of a half share in the property of her brother, Nur Ahmad, on the 31st of March 1953, claiming that she was entitled to it under Muslim law. The trial judge held that the matter was concluded by the Division Bench authority of this Court mentioned above and that the will relied on by the defendants was, therefore, inoperative in the absence of consent by the other heirs.' The legatees under the will were collaterals of the deceased in the fourth degree. The plaintiff's suit was, therefore, decreed but the parties were left to bear their own cots. On appeal the learned District Judge, Jhelum, agreed with the findings of the Court of first instance. A second appeal was presented in this Court which came up before Ortcheson, J., who considered it desirable that the question raised in the case be referred to a larger Bench.
4. The main question that falls for determination is that of the true construction of the word "succession" occurring in section 2 of the 1948 Act. The section reads as follows:‑
"Notwithstanding any custom or usage to the contrary, in all questions regarding succession (including succession to agricultural land) and in all questions regarding charities and charitable institutions and charitable and religious endowments the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."
5. Mr. Manzoor Qadir and Mr. Iftikhar‑ul‑Haq Khan, who appeared for the appellants in these cases, have contended before us that the word "succession" in this section does not include testamentary succession and is confined to non -testamentary succession alone. In the alternative, it was urged that even if the word "succession" be held to be com prehensive enough to cover both kinds of succession, it does not necessarily follow that the power to make a will under custom had been taken away from an owner who had inherited property under customary rules. It was suggested that the power to make a will may be judgeable by one system of law even though the incidents of succession, whether under a will or otherwise, fell to be decided by another system of law. Succession and wills, it was pointed out, do not cover identical fields as in succession reference would be mainly to the persons succeeding the deceased whereas the context of wills was primarily concerned with the competency of the testator to make a will. Such anomalies, it was argued, were bound to arise in a transitional phase of our law when the old customary rules were being replaced gradually by Muslim law.
6. That the Legislature has not thought it fit to abolish custom with one stroke is clear from the history of legislation bearing on the subject. The first attempt in this direction is represented by the Muslim Personal Law (Shariat) Application Act, 1937, (hereinafter designated as the 1937 Act), which was passed by the Indian Legislature and received the assent of the Governor‑General on the 7th of October 1937. It applied to the whole of British India, excluding the North‑West Frontier Province which already had its Shariat Act, passed in 1935. Section 2 of the 1937 Act is expressed in the following terms:‑
"Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal Law, marriage, dissolution of marriage, including talak, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gift, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)."
Section 3 of the Act enabled a Muslim, by a declaration in the prescribed form before the prescribed authority, to ensure that after such declaration, even in respect of adoption, wills and legacies, he and his descendants would be governed by Muslim law. Agricultural land was within the legislative competence of the Provinces and, therefore, it was excluded from the purview of the Act. This was followed by the 1948 Act, section 2 whereof has been set out above. It is relevant to note that in the original Bill, as introduced in the Provincial Assembly on the 9th of January 1948, the proposed clause 2 was much more comprehensive than section 2 of the Act as passed by the Legislature. It referred, inter alia, to gifts, wills and legacies also. These words were omitted by the Select Committee of the Legislature and, consequently, in the Act they did not figure. These were obviously all attempts to amend the law contained in section 5 of the Punjab Laws Act, 1872. It may be useful to quote that section in extenso:‑
"in questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bustard, family relations, wills, legacies, gifts, partitions, or any religious usage or institu tion, the rule of decision shall be‑
(a) Any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, and has not been declared to be void by any competent authority;
(b) the Muhammadan Law, in cases where the parties are Muhammadans, and the Hindu Law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to."
7. It is contended on behalf of the appellants that the omission of the words "wills and legacies" from section 2 of the 1948 Act, at the instance of the Select Committee, was significant. There was, it is suggested, a careful enumeration of subjects in section 5 of the Punjab Laws Act, which the Central Legislature, while passing the 1937 Act, and the Provincial Legislature, while enacting the 1048 Act, had obviously in view. The subjects of "succession" and "wills", though impinging on each other, do not have coincident boundaries and the inference is, therefore, sought to be drawn by the learned counsel for the appellants that the omission of wills and legacies from section 2 of the 1948 Act, was intended to confine the word "succession" to intestate succes sion alone. On the other hand, Mian Muhammad Shafi, who argued on behalf of the respondents in both the appeals drew our attention to the omission of the qualifying word "intestate" from before the word "succession" although this adjective existed in section 2 of the 1937 Act. Both con siderations have a certain amount of weight, but it cannot be said that they would be conclusive one way or the other. At best, it may be said that the connotation of the word "succession" may be open to more than one interpretation on these considerations.
8. Another factor pressed into service on behalf of the appellants is that the 1948 Act did not expressly repeal the relevant provisions of Punjab Acts I and II of 1920. The short title of the first Act is the Punjab Limitation (Custom) Act, 1920, and that of the second the Punjab Custom (Power to Contest) Act, 1920. Both Acts define "alienation" as including any testamentary disposition of property. The first Act prescribes certain periods of limitation for suits to challenge alienations made by a customary owner in respect of ancestral immovable property. The second Act confines the right to challenge such alienations to certain male collaterals of the owner of ancestral immovable property. It is argued that since the 1948 Act makes no reference to these previous Acts, their provisions concerning the rights of collaterals to challenge alienations by wills under custom, must be deemed to subsist and this provides an indication that the word "succession" in section 2 of the 1948 Act did not cover testamentary disposition. On the contrary, the suggestion is made on behalf of the respondents that there may have been an implied repeal pro tento of these previous Acts by the 1948 Act and that express reference to them may not have been made per incuriam.
9. The 1937 Act, which was a Central Act, has also not been repealed though this could have been done by the Provincial Legislature, considering that succession and wills were included in the Concurrent List, under the Government of India Act, 1935, provided that the assent of the Governor -General was obtained to the repealing legislation. The 1948 Act was in fact passed with the assent of the Governor -General and it cannot be said, therefore, that the Provincial Legislature wanted to confine its enactment to the exclusive provincial legislative field. In consequence, section 3 of the 1937 Act, which gave an option to a Muslim to adopt Muslim law in respect of wills and legacies or choose to be governed by any other law including custom, was represented to be still in force, unless it could be held to have been repealed by implication by the 1948 Act. If the word "succession" occurring in section 2 of the 1948 Act is held to include "wills", then section 3 of the 1937 Act would come into conflict with it. To avoid this result it is urged that a construction of section 2 of the 1948 Act should be adopted, which saves the provisions of the 1937 Act. Repeal by implication, it is pointed out, is not favoured unless there is no escape from such a conclusion. Reliance was, in this connection, placed on Maxwell on Interpretation of Statutes, Tenth Edition, page 170, which, undoubtedly, lends support to the argument raised. The inference of repeal should only be drawn if the provisions of a later Act are so inconsistent with, or repugnant to, those of an earlier Act that the two cannot stand together. If the two can be reconciled on a reasonable interpretation that would be likely to be in consonance with the intention of the Legislature.
10. Note must also be taken of section 3‑A introduced into the 1948 Act by the Punjab Muslim Personal Law (Shariat) Application Act, 1951, (referred to in the sequel as the 1951 Act) which is couched in the following terms:‑
"Where a will made by a Muslim provides for more than one legatee succeeding to the testator's property one after the other, and the will has taken effect before the coming into force of the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, on the death of the legatee in enjoyment of the property at the time of the coming into force of that Act, the property shall devolve on such heirs and successors of the testator under the Shariat as would have inherited, it had the testator died intestate, and if any person who would have so inherited the property or any share therein, had there been no will, has in the meantime died, his share in the testator's property shall devolve on such of that person's heirs and successors as may be in existence at the time of the death of the said legatee."
This provision clearly envisages the existence of wills made by a customary owner at the time of the enactment of the 1951 Act. It is forcefully contended that this provision would have been entirely redundant if the subject of wills had already been covered by section 2 of the 1948 Act. It is also to be observed that the 1951 Act replaced section 2 of the 1948 Act by the following provision
"Notwithstanding any rule of custom or usage, in all questions regarding succession (whether testate or intestate, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, legitimacy or bastardy, family relations, wills, legacies, gifts, religious mages or institutions including waqfs, trusts and trust property, the rule of decision shall be the Muslim Personal Law (Shariat) in cases where the parties are Muslims."
This section, now, for the first time incorporates all the subjects mentioned in section 5 of the Punjab Laws Act, 1872, and clarifies beyond doubt that the "succession" mentioned in this section would comprehend both testate and intestate succession and expressly refers to wills and legacies. The 1951 Act is not a purely declaratory or explanatory Act. The preamble clearly indicates that it made further provision in respect of the application of Muslim law to Muslims. The 1951 Act amounts to a legislative exposition of the intention behind the 1948 Act, but there are no words used in the preamble to sustain the argument that the scope of section 2 of the 1948 Act was being enlarged in respect of succession, merely to remove doubts. On the other hand, the provisions of section 3‑A, which were introduced into the 1948 Act, clearly envisage that the Legislature recognised the existence of certain customary wills right up to the year 1951 when the new Act was passed. Of course, this legislative or parliamentary exposition is only an argument that may be prayed in aid of attaching some certain meaning to a statute and cannot be treated as per se conclusive, as Craies points out in his book on Statute Law, at page 138 of the Fifth Edition of that work. Nevertheless, section 3‑A can only be consistent with the assumption that the word "succession" in section 2 of the 1948 Act, did not include wills within its scope. If the words of section 2 of the 1948 Act had been unequivocal and plain and susceptible of only one meaning, then, even though the Legislature may have put an erroneous interpretation on that enactment in a subse quent measure the position would not have been affected. Craies has quoted from the judgment of Lord Saterndala, M. R., In Cape Brandy Syndicate v. I. C. R. ((1921) 2 K B 403) the following extract
"I think it is clearly established in Att.‑Gen. v. Clarkson (1900) 1 Q B 156, that subsequent legislation may be looked B at in order to see the proper construction to be put upon an earlier Act where that earlier Act is ambiguous. I quite agree that subsequent legislation if it proceeded on an erroneous construction of previous legislation cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier."
The learned author points out that this passage was quoted with approval by Lord Buck-master in Ormond Investment Co. v. Betts (1928 A C 143) where Lord Atkinson said: "Sargant, L. J., seems to hold that a Legislative interpretation of the statute of 1918 is to be found in this section 26 of the Act of 1924 and therefore the case comes within a well‑recognised principle dealing with the construction of statutes, namely, that where the interpretation of a statute is obscure or ambiguous or readily capable of more than one interpreta tion, light may be thrown upon the true view to be taken of it, by the aim and provisions of a subsequent statute." The rule would thus seem to have been approved by the House of Lords.
11. The main hurdle in the way of the appellants in these cases, of course, is the Division Bench authority of this Court reported as Sardar Bibi v. Abdul Latif (P L D 1952 Lah. 294). The view was, undoubtedly, taken in that case that the word "succession" in section 2 of the 1948 Act comprehends wills. The case went up in appeal to the Federal Court and the judgment of their Lordships is reported as Sardar Bibi v. Abdul Latif (P L D 1956 F C 137). The learned Chief justice pointed out that the Division Bench of this Court having found in that case that the will had been revoked by a subsequent gift, should not have gone into the intricate question whether the word "succession" in section 2 of the 1948 Act included testate succession. The following observations of the learned Chief justice, in that connection, are instructive:‑
"The true issue on this part of the case, if it had to be determined, was not whether the word 'succession' in ordinary parlance or its technical sense, includes testate succession, by itself a question to which more than one answer is possible, but whether the legislature in omitting from section 2 the word 'wills' which occurred in the repealed legislation, namely, section 5 of the Punjab Laws Act, intended to make earlier testamentary dispositions judgeable on the testator's death by the Muslim Personal Law. The question was one of great difficulty and depended for its decision not only on history of the legislation but also on several other provisions which are still on the statute book. If the High Court is right in the view it has taken, the provisions relating to wills in the Punjab Limitation (Custom) Act (I of 1920), and the Punjab Custom (Power to Contest) Act (11 of 1920), stand abrogated, the maintain ability of revesioner's suits for declarations to set aside alienations becomes doubtful and section 3‑A of the Act of 1951 which assumes the validity of certain wills made under custom before that Act came into force, becomes meaning less. It is therefore clearly open to question whether any such revolutionary result was intended by the legislature. But, as we have said, the question did not arise in this case and since we did not hear full arguments on it, we do not decide it".
12. These remarks of the Federal Court, undoubtedly, have shaken the authority of the decision of this Court in Sardar Bibi's case, but it may be necessary to examine some of the other considerations that prevailed with the Division Bench in that case.
13. The reasons that found favour with the learned judges in that case will be found at page 303 et seg of the published report. The learned judges recognised, to begin with, that the 1951 Act was probably intended to do away with the possibility of putting a narrow construction upon the word "succession" in section 2 of the 1948 Act. They then went on to argue that the matters enumerated in section 5 of the Punjab Laws Act, 1872, were in many cases over lapping and, therefore, thought that nothing ;turned on the fact that they had been reproduced in section 2 of the Act, as amended by Act XI of 1951. The instances cited, in that respect, by the learned judges were of betrothal and marriage, guardianship and minority and wills and legacies. They, consequently, thought that the argument could not be conclusive that since wills and succession formed two distinct items under section 5 of the Punjab Laws Act and the 1948 Act mentioned succession only to the exclusion of wills, it should be assumed to exclude wills from its purview. It has been observed above that the fields covered by wills and succession may not be co‑terminus and, therefore, it seems to me, with respect, that the omission of the word "wills" from section 2 of the 1948 Act and retention only of the word "succession" is not entirely without significance. The fact that the words "intestate succession" occurred in section 2 of the 1937 Act, was then commented upon by the learned Judges and assuming that the draftsman of the 1948 Act had the 1937 Act as well as the Punjab Laws Act in mind they opined that by cutting out the qualifying word "intestate", the draftsman was covering both kinds of succession. However, as has been pointed out above, the opposite view can also be contended for in view of the drafting changes made in the 1948 Act, as compared with section 5 of the Punjab Laws Act.
14. The learned Judges then referred to Webster's New International Dictionary for the definition of the word "succession" and remarked that there was hardly any context in which the term "succession" had been used in exclusion of wills. A quotation was also made from William Markby's Elements of Law, page 382 of the Third Edition, which mentioned separately, intestate and testamentary succession. A similar bifurcation, occurring in Salmond's Jurisprudence, Tenth Edition, at page 455, was remarked upon, Halsbury's Laws of England, Second Edition. Volume 13. at pages 349 and 350, too, it was pointed out devoted separate paragraphs to "succession" under "disposition and "succession through devolution by law". The same distinction is recognised in the Indian Succession Act of 1925 and in the view of the learned Judges, therefore, there could be no doubt that succession was understood in legal literature to cover both testamentary and intestate succession. Mr. Manzoor (nadir, has, however, drawn our attention to an American publication called Corpus Juris, Volume 18, page 803, 1919 Edition. Under the heading "succession", it is mentioned by the learned author that the word "succession" has a technical meaning denoting the devolution of title to property under the laws of descent and distribution and that in the civil law it denotes the trans mission of the rights and obligations of a deceased person to his heir or heirs. The learned author says further that some codes give the same definition and state that the word signifies also the estates, rights and charges which a person leaves after his death, while the codes of other jurisdictions define succession as the coming in of another to take the property of one who dies without disposing of it by will. It would thus appear that in certain jurisdictions the word "succession", by itself, may denote non‑testamentary succes sion, and the assumption made by the learned judges that the word "succession" would, in all cases, comprehend both types of succession, does not seem to be founded on fact.
15. Some support was sought to be derived by the learned judges from the observations of Sir Abdur Rahman, J. and Cornelius, J. in Muhammad Asghar Shah v. Muhammad Gulsher Khan (P L D 1949 Lah. 116). The question decided by the Full Bench in that case was whether the 1948 Act precluded the grant of declaratory decrees under custom. It seems to have been assumed by Sir Abdur Rahman, J. while discussing that question that henceforward wills would be governed by Muslim Law. That was, however, an incidental remark, not really germane to the question that fell for decision in the case.
16. Reference was also made in the D. B. judgment to Bayabai v. Bayabai (A I R 1942 Bom. 328), a case dealing with the Cutchi Memons Act of 1938. For the first time, by that Act, the Cutchi Memons of Bombay came to be governed by Muslim Law in matters of succession and inheritance. Section 3 of the Act saved rights already accrued, from the purview of the Act. The question in that case was whether a certain will, which had been executed in 1933, was within the saving clause of section 3 or not. Chagla, J. held that as a will speaks from the testator's death, it could not be said that any right had been acquired under the will of 1933 before the 1938 Act, the testator having died after the Act came into force. However, as pointed out by Mr. Manzoor Qadir, the point does not seem to have been contested in that case whether succession and inheritance would include wills or not. There was no real determination of the point at issue in the present case and the authority is, therefore, not directly helpful.
17. Mian Muhammad Shafi on behalf of the respondents stressed the point that section 2 of the 1948 Act made Muslim law applicable in all questions regarding succession. He emphasised the word "all" in this context and attempted to argue that this meant that testamentary succession was com prehended within the word "succession," This does not really carry the matter very much further. The learned counsel also invited our attention to Ashraf Ali v. Mahammed Ali (A I R 1947 Bom. 122), another decision by Chagla, J., in which it was held that section 2 of the Shariat Act of 1937, when it refers to trusts and waqfs, does so not merely to trusts and waqfs inter vivos but also includes testamentary trusts and waqfs. It was, therefore, laid down by the learned judge that although a khoja, who, in the matter of succession, is governed by Hindu Law, can, after the passing of the Shariat Act of 1937, will away the whole of his property under Hindu Law, yet when it comes to the question of construction of his will to the extent he has created trusts or waqfs by that will, the validity of those trusts and waqfs must be determined by Muhammadan Law, and not by Hindu Law. The actual decision in that case again affords no direct assistance to the position adopted by the respondents. It is interesting to note, however, that even in that case the two subjects of wills and legacies were not regarded as involving a tautology.
18. Learned counsel for the respondents sought to fortify his argument by reference to a parenthical observation contained in Tyabji's Muhammadan Law, Third Edition, at page 781, while discussing the effect of the Indian Majority Act, 1870, on Muslim law, The learned author has remarked that the law of wills forms a part of the law of succession and the reference in that connection is to an authority mentioned as Mancharji Pestonji v. Narayan L. ((1863) 1 Bom. H C R 77). The authority in question is not available to us and it is, therefore, not possible to say in what context the remark was made in that judgment. In a general sense perhaps, it may be said that the law of wills forms a part of the law of succession, but, as has been observed above, the two subjects do not necessarily overlap in all their ramifications.
19. In Sardar Bibi's case, the points that have been urged before us, were not brought to the notice of the learned judges and specially the effect of section 3‑A introduced by the 1951 Act was omitted from consideration. It is permissible to hazard the opinion that if this had been done, the decision may have been different.
20. That some incidents of custom, specially in regard to the right of collaterals under custom to challenge aliena tions of ancestral property by an owner who had inherited under custom, still subsisted in spite of the 1948 Act, is supported by ample authority. Reference may be made in this connection, to Sardar Bibi v. Abdul Latif (P L D 1956 F C 137 (2)); Abdullah v. Mst. Bakhto Mai (P L D 1956 S C (Pak.) 321); Mst. Shahzadan Bibi v. Amir Hussain Shah (P L D 1956 S C (Pak) 227), and Bashir Ahmad v. Muhammad (P L D 1956 Lah. 934 (F B)).
21. The conclusion, therefore, that I have reached is that the 1948 Act did not change the law with regard to wills. In spite of the fact that the word "succession" was used therein that expression must be equated with non testamentary succession in the context of the above discussion. The view taken in Sardar Bibi's case by a Division Bench of this Court must, therefore, be overruled.
22. In both the cases before us, it is common ground between the parties that if custom was to be the rule of decision, the two wills in question would have been perfectly valid and enforceable. The result follows that both the appeals must be allowed and the wills, which were the subject-matter of the two cases, must be given their full force. In the Letters Patent Appeal, Mst. Maryam, who is alive, must be held entitled to a life estate in accordance with the will in her favour and her suit should be decreed. In the second appeal, the respondent, Mst, Bhagan's suit must be dismissed. I would order accordingly, but in view of the difficulty of the legal question involved, I would leave the parties to bear their own costs throughout.
I agree.
I agree that Sardar Bibi v. Abdul Latif should be overruled, but since I was a member of the Division Bench which decided that case‑the judgment was written by me‑I should explain why I have agreed to its being overruled.
2. I still hold that "succession", when used without a qualifying word, includes both testamentary and intestate succession, for the reasons given by me in that case and reproduced in the judgment of my Lord the Chief Justice. If a word has a full meaning, its fullness should not be reduced unless it has been reduced consciously and artificially, as by the use of the word "intestate" with "succession". I still attach great importance to the fact that, while copying out the language of the Act of 1937, the draftsman dropped the word "intestate" in section 2 and made no provision analogous to section 3, which placed wills in an optional category.
3. That view has received further support from the fact that section 2 speaks of "all questions regarding succession",--‑I do not attach any special importance to "all"‑--which means that whenever there is a question relating to a deceased Muslim's succession, the matter is to be decided according to Muslim law. Now if on the death of a Muslim, a question arises as to whether a certain set of heirs succeed him, and some person steps into the field of succession with a will, are we to say that a consideration of the will is no part of the question relating to succession
4. But I do not claim that the matter was left beyond dispute. The word "will" had been expressly mentioned in the Punjab Laws Act and the Act of 1937, but in the present case, when the Select Committee dropped the other contents of the original draft, they dropped wills also. It was, there fore, arguable that wills had been deliberately excluded, not foolishly.
5. It, therefore, becomes relevant to consider whether, if the omission was inadvertent, the inadvertency was carried even to 1951, when a more comprehensive list replaced the brief list of section 2, and when, to make assurance doubly sure, section' 3‑A provided for certain wills which the draftsman assumed to have been validly executed under custom, thus assuming that, until 1951, Muslim Law did not apply to wills. I deliberately do not ascribe any intention to the Legislature, because the Legislature did not then exist, and the matter was between the Governor and his draftsman‑and perhaps some one who was interested in rendering invalid a particular will which provided for a succession of legatees. This is the principal reason‑and perhaps the only reason‑which has influenced my present decision, and this had not come to my notice in 1952, when I heard the previous case. I think the argument resting on section 3‑A carries great weight, and although it reflects the opinion of a draftsman and a Governor only, not of the Legislature, in deference to accepted con ventions of interpretation, I agree to my previous decision being overruled.
A. H. Appeals allowed.
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