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Civil Appeals No. 15 and 16 of 1957, decided on 10th February 1958.
(On appeal from the judgment and decree of the High Court of Judicature at Lahore, dated the 20th May 1953, in Regular Second Appeals Nos. 225 and 322 of 1950 and Civil Miscellaneous Nos. 50/C and 66/C of 1953 dated the 15th February 1954).
‑By lower Courts‑Supreme Court hill not interfere.
The Courts below had not accepted the theory that the original of the photographic copy of a will was a forgery. In the Supreme Court, no reason was shown that this theory should have been accepted. Their Lordships declined to interfere with the concurrent finding of the lower Courts.
The Supreme Court further declined to interfere with a concurrent finding of the lower Courts that a testatrix was of sound disposing mind at the time of execution of his will.
‑Plea of‑To be raised in pleadings and should be made subject of an issue‑Not to be entertained when raised in grounds of appeal only.
‑Plea of‑To be raised by pleadings by specific allegation‑Civil Procedure Code (V of 1908), O. VI, r. 4.
Undue influence was not alleged by the defendants in their written statements, though it was denied that the testatrix had executed the will "of her own accord."
Held, that this was not a specific allegation of undue influence.
‑Sound disposing state of mind of testator‑Burden on party propounding will‑Undue influence Burden on party alleging. While the party propounding the will has to establish that it was executed in a sound disposing state of mind, the burden of proving that the will resulted from coercion and undue influence is on the party who alleges it.
‑Undue influence‑What is.
Mere influence and persuasion to make a will is not undue influence in respect of the charge of undue influence, there must be clear evidence that it was in fact exercised, mere motive or opportunity for such exercise is not sufficient.
Baudains and others v. Richardson and another 1906 A C 169 and Bur Singh and others v. Uttam Singh and others 38 I A 13 rel.
(Power to Contest) Act (II of 1920), Ss. 6 & 7‑Restrictions apply both to plaintiffs and defendants.
Held, that the restrictions imposed by sections 6 and 7, Punjab Custom (Power to Contest) Act (II of 1920), apply both to plaintiffs and defendants. There is nothing either in the preamble or in section 6 or section 7 indicating that the word "contest: does not apply to the defendant.
Radha Kishan and others v. Safdar Ali and another A I R 1939 Lah. 262 ; Mohamda v. Mst. Khethan and another A I R 1933 Lah. 680 and Muhammad Asghar v. Mst. Ghulam Fatima I L R 16 Lah. 604 considered.
‑Question definitely barred from being raised at time of granting leave Supreme Court declined to re‑open question at hearing‑Constitution of Pakistan, Article 160.
Civil Appeal No. 15 of 1957
Mahmud Ali and Ghulam Abbas Jaffery Advocates, Supreme Court, instructed by Zahir Abbas, Attorney for Appellants.
Respondents Nos. 2 and 4 to 14: Ex parte.
Bashir Ahmad, Senior Advocate, Supreme Court, (Muhammad Akram, Advocate, Supreme Court, with him), instructed by Virasat Hussain, Attorney for Respondents Nos. 1 to 3,
Civil Appeal No. 16 of 1957
Ghias Muhammad Advocate, Supreme Court, instructed by Naziruddin, Attorney for Appellant.
Bashir Ahmad, Senior Advocate, (Muhammad Akram, Advocate, with him), instructed by Virasat Hussain, Attorney for Respondents No. 1 and 15.
Ata Ullah Sajjad, Advocate, Supreme Court, instructed by Zahir Abbas, Attorney for Respondents No. 2 and 9.
Respondents No. 3 to 8 and 10 to 14 and 16 : Ex-parte.
Date of hearing: 10th February 1958.
‑These appeals arise out of a suit brought in the Court of Subordinate Judge, Ist Class, Lahore, by Mst. Rashida (Respondent No. 1 in both the appeals) for possession of a portion of the property which originally belonged to one Nabi Bux.
The following are the facts of the case. Nabi Bux who was possessed of 60 bighas, some houses and house sites and who died in July 1934 had married three wives Mst. Baghan, Mst. Panhai and Mst. Fazl‑un‑Nisa. Mst. Baghan predeceased him leaving two daughters, Mst. Hasan (D. 2) and Mst. Bakhtawar who also died before him and is represented by her sons Aminuddin and Zahuruddin (D.3 and D.4). He divorced Mst. Panahi but he had by her a daughter Mst: Chiragh Bibi (D. 1): Mst. Fazl‑un‑Nisa who survived him had no issue. On 25th July 1932 he executed a will which was registered and under which Mst. Fazl‑un‑Nisa who was his only wife by then was made the absolute owner after his death of all the properties he owned on that date and such property that he might acquire thereafter. He, however, directed in that will that Mst. Fazl‑un -Nisa should leave by will 10 bighas besides three kothris to Mst. Hassan (D. 2) and equal property besides 10 marlas to the issues of Mst. Bakhtawar who are D. 3 and D. 4. He also directed that Rs. 100 per year should be spent for the Urs of a shrine named by him, not only during the life‑time of Mst. Fazl un‑Nisa but also during the life‑time of her legatee. He stated in this will that he had discharged all his obligations in respect of his daughter Mst. Chiragh Bibi (D. 1) and that she had no right to his property. In spite of these directions which covered only a portion of the property the language of the will clearly made Fazl‑un‑Nisa the absolute owner of the entire estate.
Several attempts to avoid this will were made. On the 8th November 1934, D. 1, D. 2 and D. 3 and D. 4 together entered into a tripartite agreement that if the will became void and they got the estate, D. 3 and D. 4 should first take 8 bighas for themselves and the remaining property should be divided among D. 1, D. 2 and D, 3 and D. 4 together equally. It would appear that they took forcible possession of the property after Nabi Bux's death. On 3rd December 1935, D. 1 (Mst. Chiragh Bibi) brought a suit claiming one‑half of the property of Nabi Bux and alleging that Mst. Fazl‑un‑Nisa had lost her right to maintenance on account of unchastity. Mst. Chiragh Bibi repudiated the will of her father while D. 3 who was one of the defendants in that suit claimed the property as the adopted son of Nabi Bux. Both the claims were found against and the suit was dismissed. The issue regarding the allegation against Fazl‑un‑Nisa's character was found in her favour and the will in her favour was upheld. An appeal was filed in forma pauperis but it was dismissed. Subsequently on 19th April 1943, the present D. 2 to D.4 (Mst. Hassan Bibi and Aminuddin and Zahuruddin) brought a suit against Mst. Fazl‑un‑Nisa for an injunction restraining her from alienating and wasting the property. This was dismissed and an appeal from the order of dismissal was also dismissed.
In the meantime Fazl‑un‑Nisa had on 29th April 1941 executed a will carrying out almost all the wishes of her husband expressed in his will. She bequeathed 10 bighas and 3 kothris to D. 2 and 10 bighas and 3 kothris to the issues of Mst. Bakhtawar. She also bequeathed 10 bighas to the plaintiff, who is her sister's daughter, an equal extent to the plaintiff's sister, Mst. Hamida whose husband is D. 10, and 20 bighas to Mst. Natho, another sister of the plaintiff (D. 11). But on the 13th January 1944, about 18 days before her death she executed another will bequeathing 36 out of 60 bighas to D. 1 and her husband, though Nabi Bux had in his will of 1932 stated that he had discharged all his obligations in respect of his daughter (D. 1) and that she had no right to his property. Defendants 2 to 4 who had to be provided for according to the wishes of Nabi Bux were excluded altogether in this will and in their place bequests were made to the step‑mother of Fazl‑un‑Nisa, to D. 10, husband of Mst. Hamida, sister of the plaintiff, to Mst. Khurshid Begum and to two maid‑servants. It was stated in this will that she had not executed any prior will. This was not a correct statement in view of her will of 1941. It was unnatural for hfst. Fazl-un‑Nisa to have executed this will of her own accord because the principal beneficiaries under it are D. 1 and her husband, and Nabi Bux had specifically excluded D. 1 and the latter had gone to the extent of alleging in her suit that Mst. Fazl- un‑Nisa was unchaste and therefore had lost even her right to maintenance. It is therefore not surprising that on 29th January 1944 two days before her death she executed a fresh will containing dispositions to D. 2 and the issues of Bakhtawar (D. 3 and 4) according to the wishes of her husband expressed in his will. She bequeathed by this will 10 bighas of land to the shrine for the Urs of which Nabi Bux had desired Rs. 100 to be spent every year. The rest of the property she bequeathed to her own relatives. She left 10 bighas, and 3 kothris to the plaintiff and the present suit relates to the possession of this part of Nabi Bux's property. Plaintiff's husband was given a site mashinwali jagah land Mst. Natho D. 11, (sister of the. plaintiff) was given 20 bighas. In this will it is stated that Mst. Chiragh Bibi, Feroze Din and others who had harassed her because of the will of her husband in her favour took her into their custody and under threats of violence obtained her thumb‑impression on a will already written and had it registered.
On the 12th February 1944, a report in the mutation pro ceedings was made by the Patwari and the Tahsildar ordered mutation on the basis of the last mentioned will though it had not been registered. In doing so, he rejected the claims set up on the strength of the will of 13th January 1944 as well as the claim of the third defendant that he was an adopted son of Nabi Bux. Hut on 1st November 1944, the Collector of Lahore allowed the appeal filed by Mst. Chiragh Bibi who had alleged that the will of the 29th January was a forgery. The original will was produced before the Collector but he doubted its genuineness. Mutation was therefore sanctioned in favour of Mst. Chiragh Bibi. Mst, Rashida Begum one of the legatees under the will of 29th January 1944, thereupon brought the suit out of which these appeals arise, basing her claim both on the will dated 29th January 1944 and on the customary law of inheritance.
Mst. Chiragh Bibi, first defendant, and defendants 5 to 10 admitted that Mst. Fazl‑un‑Nisa was the full owner of the entire property under Nabi Bakhsh's will, but they relied on the will executed by Mst. Fazl‑un‑Nisa on 13th January and contended that her latest will of the 29th January which was not registered and the original of which was not produced in Court was a forgery. They did not admit the plaintiff's claim to inheritance under the customary law. The third defendant on the other hand claimed to have been adopted by Nabi Bux and he and his brother D. 4 as well as Mst. Hassan Bibi, the surviving daughter of Nabi Bakhsh, (D. 2) did not admit his will of 1932. They alleged that if it was executed at all it was due to undue influence exercised by Mst. Fazl‑un‑Nisa and that according to custom Nabi Bakhsh could not bequeath more than one‑third of his property and that the bequest in favour of Fazl‑un‑Nisa did not make her full owner but gave her only a life interest.
The Subordinate Judge decreed the suit. He held that the decision in the previous suit brought by Mst. Chiragh Bibi, in which Aminuddin was one of the defendants, on questions relating to the execution and validity of the will of Nabi Bux and the alleged adoption of Aminuddin was binding on defendants 2 to 4 on the principle of res judicata, and that even otherwise, the will of Nabi Bakhsh had been proved to be valid and that the adoption of Aminuddin was not established. As regards the will of Fazl‑un‑Nisa dated 13th January 1944 he took the view that it was probable that it resulted from coercion and undue influence and it would have had no effect even if the will of 29th January 1944, had not been executed. As regards the latter will be held that' it was executed by Mst. Fazl‑un‑Nisa and though he did not say in so many words that the executrix was in a sound disposing state of mind when executing it, it is clear from the discussion of the relevant issue that that was his conclusion. He also found that though under custom only one‑third of the property could be bequeathed, yet defendants 2 to 4 had no locus stand to challenge disposition as under section 6 of the Punjab Custom (Power to Contest) Act II of 1920 the right to contest an alienation was limited to the collaterals within the fourth degree and that too only if the property is ancestral qua them, while the property in question was the self‑acquired property of Nabi Bux. The two sets of defendants filed appeals which the District Judge dismissed agreeing with the findings of the Subordinate Judge except those of res judicata and the scope of the will of Nabi Bux. According to the District Judge the decision in the previous suit could not operate as res judicata as the suit was dismissed and the defendants to that suit had no right of appeal against that judgment. As regards the right conferred by the will of Nabi Bux on Mst. Fazl‑un‑Nisa the view taken by the District Judge was that she was given an absolute estate and the directions given by Nabi Bux were not binding on her, while the Subordinate Judge had held that she was made the full owner except to the extent of those directions. On the question of the validity or otherwise of the will of Fazl‑un‑Nisa dated 29th January 1944, the District Judge agreed with the trial Court and as regards the will of 13th January 1944 he held that even if it was valid it was of no effect in view of the latest will of the 29th January. The two sets of defendants filed separate second appeals in the High Court. The learned Judges disagreed with the District Judge on the question of res judicata, but they nevertheless fully considered the questions regarding the validity of the will of Nabi Bakhsh and the two wills of Mst. Fazl‑un‑Nisa as in their opinion the approach of the District Judge was that of a verifying officer' and not that of appellate Court in first appeal. They however did not come to a different conclusion. The second appeals were dismissed and these are appeals by special leave from the judgment of the High Court.
Mr. Mahmud Ali for the appellants in Appeal No. 15 (Mst. Chiragh Bibi and her husband the principal beneficiaries under the will of 13th January) contended that the original of the will was deliberately kept back as it bore traces of being a forgery, that the fact that in the report made to the police about the alleged loss of the original will the name of the scribe is that of a person other than P. W. 3 who was examined as the actual scribe, indicated that the version that it was lost was not true; and that the learned Judges did not consider this aspect of the matter. But it was not shown that the witness who reported to the police was questioned in this connection. The trial Court discussed the question of the loss of the original will and the learned Judges considered that discussion satisfactory. When a photographic copy of the will was produced there could have been no reason for suppressing the original. The expert deposed that on a scrutiny of the thumb‑impression in the photographic copy and the thumb‑impression proved to be of Mst. Fazl‑un‑Nisa he found that those impressions were of one and the same person. It has not been shown that the expert could not have scrutinised the impression in a photographic copy. It does not appear that such a suggestion was made to the expert. The Courts below did not accept the theory that the original of the will was a forgery and we have not been shown any reason for this Court to interfere with this concurrent finding of fact.
It was then argued that with regard to the state of mind of Mst. Fazl‑un‑Nisa at the time the will of the 29th January 1944, was executed, the evidence of Dr. Tek Chand which is the most important evidence on this point should not have been believed. It was also contended that P. W. 3 had admitted that he was given a printed paper and he wrote the will according to it, and that this showed that Mst. Fazl‑un‑Nisa did not herself indicate the recitals of the will. We see no force in these arguments also. No reason was given as to why Dr. Tek Chand should not have been believed. It was not established that he was an interested witness. He was a doctor by profession and he prescribed medicine for Mst. Fazl‑un‑Nisa and attested her will. His evidence was that the testatrix was in possession of her senses, that she admitted the will as correct and affixed her thumb‑impression in his presence and that she asked him to give her a certificate that she was in the enjoyment of her senses. As regards her illness the evidence of this witness was that she was suffering from an ordinary attack of influenza. As for P. W. 3, he no doubt stated that he wrote according to the printed paper but he also added "she got some two or four further things also written", and later in cross‑examination he explained that the printed paper was the will of Nabi Bux. As already stated, the directions in the will of Nabi Bux were first carried out in the will of the 29th January and then dispositions to her own relatives were added. The burden of proving that the will was executed by Mst. Fazl un‑Nisa while in sound disposing state of mind was on the plaintiff and the issue on this point was found in her favour by the Courts below. We see no reason to interfere with this concurrent finding also.
Finally Mr. Mahmud Ali argued that the approach of the learned Judges was wrong in this that in considering the questions of sound disposing state of mind and undue influence they did not keep in view the fact that the executrix was aged pardanashin and had no independent advice. But there was no allegation in the jawabdawa that she was pardanashin, nor was there an issue on the point. It was only in the High Court in the additional grounds of appeal that this point was raised, but it does not appear that the point was pressed before the learned Judges. However, the evidence of Dr. Tek Chand that she asked him to certify that she was in her senses clearly indicates that she knew about the affairs of the world especially the requisites of a valid will and was not in the habit of living in seclusion behind pardah. The scribe's evidence also discloses that she gave instructions to him and it is in the jawabdawa of Mst. Chiragh Bibi that Mst. Fazl‑un‑Nisa presented the will of 13th January before the Sub‑Registrar in person. The endorsement of registration on this document is to the same effect. Even if it is assumed for argument's sake that she was pardanashin there is, as indicated above, sufficient evidence to show that when she executed the will she knew and understood that was stated therein.
As regards undue influence it is significant that this again was not alleged in the jawabdawa though with regard to the will of the 13th January it was asserted that there was no coercion or undue influence. It was of course denied that Mst. Fazl‑un‑Nisa D executed the will of the 29th January 1944, of her own accord, but that is not a specific allegation of undue influence. The only attack on the will was that it was a forgery. While the party propounding the will has to establish that it was executed in a sound disposing state of mind, the burden of proving that the will resulted from coercion and undue influence is on the party who alleges it, There was no issue on this point, as the present appellants did not make such an allegation. Nor does it appear that the question of undue influence was raised in the arguments before the trial and the Ist appellate Courts. The point appears to have been raised only in the High Court and there too, as is seen from the following passage in the judgment of the High Court, the argument seems to have been only this that Mst. Fazl‑un‑Nisa must have been influenced by those around her to execute the will.
" She was then about 70 years of age and we were told by Mr. Yaqub Ali Khan that she could not but have been influenced by those around her. It is admitted that she was then surrounded by those relatives in whose favour she made the will, but it is also admitted that on the earlier occasion she was in Mst. Chiragh Bibi's house. Mr. Yaqub Ali Khan went to the length of conceding that even the earlier will had not resulted from a free disposing mind because at her age Mst. Fazl‑un‑Nisa would be easily influenced by those with whom she happened to be for the time being."
That mere influence and persuasion to make a will is not undue influence and that in respect of the charge of undue influence, there must be clear evidence that it was in fact exercised, an t that mere motive or opportunity for such exercise is not sufficient has been laid down by their Lordships of the Privy Council in Baudains and others v. Richardson and another 1906 A C 169 at p. 184. In that case two of the questions that had to be decided were 1906 A C 169 at p. 184 whether on the evidence the testratrix was of sound mind, memory and understanding and 6 H L C 2 whether there was evidence of undue influence. Having come to the conclusion that the testatrix was of sound mind memory and understanding their Lordships observed as follows with regard to other contention: ‑
" As regards undue influence, all that can be said is that undue influence is conspicuous by absence. Influence may be degrading and pernicious, and yet not undue influence in the eye of the law. The leading authority on the subject is the judgment of Cranworth L. C., in Boyse v. Rossborough 6 H L C 2. It was the experience of Sir James Hannen that there is no subject upon which there is a greater misapprehension'. The misapprehension arises', he says, from the particular form of the expression'. In his charge to a special jury in the case of Wingrove v. Wingrove (1885) 11 P D 81, where those remarks occur, the learned President explains, very much as Lord Cranworth had explained, what is and what is not undue influence. He speaks of influence' in its popular signification. He gives the instance of a young man caught in the toils of a designing woman or led astray by a profligate companion, with the result that under the influence by which he is surrounded he persuades himself to leave his property to his mistress or the man who has been his evil genius. However shocking the case may be, however cruel to his nearest relatives, that is not undue influence. To be undue influence, in the eye of the law', says the learned President, there must be to sum it up in a word coercion.
It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence'. Then his Lordship points out that there are different kinds of coercion, and concludes by saying that if the act is shewn to be the result of the wish and will of the testator at the time, then, however, it is brought about putting aside a case of fraud still it is not undue influence. There remains,' his Lordship adds, another general observation that I must make, and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. 1t is necessary also to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power that the will, such as it is, has been produced'."
In another case where similar questions had arisen for decision (Bur Singh and others v. Uttam Singh and others) 38 I A 13 at p. 22 , their Lord ships of the Privy Council observed as follows
" The onus of proving the testamentary capacity of Shib Singh, of course lies on those by whom the will is propounded, and in their Lordships' opinion they have discharged that obligation by the evidence indicated above. Such evidence is not displaced by mere proof of serious illness and of general intemperance, and yet that is as far as the evidence of the respondents can fairly be said to go. So far as the charge of undue influence is concerned, all that is shewn on the part of those attacking the will is that there was motive and opportunity for the exercise of such influence by the defendants, and that some of them in fact benefited by the will to the exclusion of other relatives of equal or nearer degree. Circumstances of that character may sometimes suggest suspicion, and would certainly lead the Court in the present case to scrutinize with special care the evidence of those who propound the will; but in order to set it aside there must be clear evidence that the undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property."
In the present case it has been already held that it was established that the testatrix was of sound disposing state of mind, when she executed the will in question. As regards the undue influence' far from there being proof of its exercise there is intrinsic evidence that she executed the will in question of her own accord and without coercion. As indicated already even in the will of 1941 she carried out the directions given by Nabi Bux in his will of 1.932. Those directions cover only a portion of the property and in respect of the remaining portion she was at liberty to do as she liked and the dispositions to her people were in respect of that portion. As already pointed out it was inherently improbable that having done so she of her own accord would have executed a will on the 13th January 1944, bequeathing to Mst. Chiragh Bibi a substantial portion of the property when Nabi Bux had definitely directed her exclusion and she, (Mst. Chiragh Bibi) had gone to the extent of not only filing a suit against Mst. Fazl un‑Nisa but also alleging in it that she was unchaste. That being so, the statement in the will of the 29th January 1944, that the earlier will was executed under threat to life is quite believable especially when it was admitted before the learned Judges that at the time that will was executed she was in Mst. Chiragh Bibi's house. At the time the will in question was executed she was with the persons in whose favour she made that will and it was therefore natural for her when she had left the hostile surrounding to restore the bequests made in the will of 1941. The will executed by her on the 13th January 1944, not only did not refer to the will of 1941 but on the other hand alleged that she had not executed any prior will which is another indication of coercion. In these circumstances, we see no ground for interfering with the concurrent findings of the lower Courts that the will of the 29th January which had repudiated that of the 13th January was genuine and valid. Mr. Mahmud Ali could not raise any point regarding the rights of Fazl‑un‑Nisa to the property, as in their Jawabdawa his clients had admitted that she was, under the will of Nabi Bux, the absolute owner of the entire property.
But Mr. Ghias Muhammad appearing for the appellant in the other appeal, namely, Aminuddin the third defendant, contended that the will of Nabi Bux did not confer on Mst. Fazl un‑Nisa an absolute estate and that this aspect of the matter was not considered by the learned Judges of the High Court, although the trial Court as well as the first appellate Court had recorded their findings on it. It was also argued by him that the view taken by the High Court with regard to the application of Punjab Act 11 of 1920 to the facts of this case was incorrect. Under section 6 of the Act "no person shall contest any alienation of ancestral immovable property or any appointment of an heir to such property on the ground that such alienation or appoint ment is contrary to custom, unless such person is descended in male lineal descent from the great‑grandfather of the person making the alienation or appointment", and section 7 of the Act is to the effect that no person shall contest any alienation of non‑ancestral immovable property on the ground that such alienation is contrary to custom. It was however contended before the High Court on the strength of the decision of the Lahore High Court in Radha Kishan and others v. Safdar Ali and another A I R 1939 Lah, 262 that the above‑mentioned Act was not applicable where the contest is not by the plaintiff, but only by defendant and that only a plaintiff was barred from contesting such an alienation. In rejecting this contention it was observed by the learned Judges that the view expressed in the above case was in conflict with the language of sections 6 and 7 of the Act as well as the decisions of the Lahore High Court in Mohamda v. Mst. Khetan and another A I R 1933 Lah. 680 and Muhammad Asghar v. Mst. Ghulam Fatima (2). The argument of Mr. Ghias Muhammad before us was that the view held in Radha Kishan and another v. Safdar Ali and another, was the correct view. Relying on the preamble to the Act that it‑ was expedient to enact certain restrictions on the power of descendants or collaterals to contest an alienation, it was contended that the word "contest" in the context referred only to institution of a suit.
We see no force in these contentions also. As regards the scope of the will of Nabi Bux it is true that the learned Judges of the High Court have not referred to it, but from the fact that the questions which they formulated as having arisen for their decision do not include this point, but only the question whether Nabi Bux did execute that will, it seems to us that this point was not pressed before them. However, it is clear from the terms of the will that Mst. Fazl‑un‑Nisa was given an absolute estate in the entire property. For instance after referring to the members of his family the testator stated as follows: ‑
" So long as I am alive, I shall be the sole owner and exclusive possessor of my immovable property of every description, lands, houses, etc., and also of my (sic) immovable property. I shall enjoy all sorts of right in respect of the alienation of my property. After my death the mutation entry in respect of my entire holding situate at Mauza Ganj, Sahuwari and Baghbanpura shall be sanctioned in favour of my wife Mst. Fazal Nishan and she shall be the absolute owner and possessor of the lands and houses owned by me in the said villages. Moreover, Mst. Fazal Nishan my wedded wife/alone shall also be the owner of my movable property".
Thereafter follow the directions with regard to the payment of Rs. 100 a year for the Urs of a specified shrine and the bequests to be made by Mst. Fazl‑un‑Nisa to some of the members of the family, and then occurs the following recital: ‑
" Mst. Fazal Nishan my wedded wife shall also be the owner of all the property after my death, which I shall purchase after the execution of this will, viz., from today till my death."
The question as to whether the directions contained in this will were binding on Mst. Fazl‑un‑Nisa or not is only of academic importance as in her will of 29th January 1944, these directions have been carried out only with this difference that in respect of the amount which had to be paid yearly for the purpose of an Urs (Rs. 100) the testatrix made a bequest of 10 bighas and 3 kothris to the concerned shrine; and it was not stated before us that this arrangement would not yield the said amount every year for the celebration of the Urs. As pointed out in the earlier part of the judgment the will indicated that Mst. Chiragh Bibi had no right in the property. The direction that 10 bighas and 3 kothris should be given to Hassan Bibi, the second defendant, that a similar extent of property plus 10 marlas of vacant site should be given to the issue of Bakhtawar who is represented in the suit by defendants 3 and 4 were carried out by Fazl‑un‑Nisa by making suitable bequests to defendants 2, 3 and 4 of the extents indicated in her husband's will. The property in dispute in the suit to which these appeals relate is the portion of the estate which undoubtedly was given absolutely to the testatrix. As has already been stated Nabi Bakhsh owned 60 bighas of land besides several houses, while the directions given by him covered only half of the property, and out of the other half the testatrix left 10 bighas and 3 kothris to the plaintiff in the suit and 20 bighas, the balance to Mst. Natho, sister of the plaintiff.
As regards Punjab Act 11 of 1920 we are unable to accept the contention that the restrictions imposed thereby apply only to a plaintiff and not to a defendant. There is nothing either in the preamble or in section 6 or section 7 indicating that the word "contest" does not apply to the defendant. If the intention) of the legislature was as contended for by Mr. Ghias Muhammad then as pointed out in Muhammad Asghar v. Mst. Ghulam Fatima on which the learned Judges have relied, section 7 would have been to the effect that no suit should be brought to contest any alienation of non‑ancestral property. The section, as it stands, is much more comprehensive and it is obvious that the intention was to debar the descendants and collaterals and other relations from questioning the alienation of self‑acquired property either by insti tuting or by defending a suit. In the decision of 1939 an observation occurs which supports the contention of Mr. Ghias Muhammad that the object of the Act in question was to impose restriction on the institution of suits, but the actual decision in that case rested on a different ground. There, validity of the will executed by an insolvent's father excluding the insolvent and bequeathing the property to his son and brothers was contested by the Official Receiver and the creditors in a declaratory suit brought by the legatees. One of the issues that arose for consideration was whether the official receiver had locus standi to put forward such a contest. It was held that he could contest the suit as under section 58 of the Provincial Insolvency Act he was entitled to institute, defend or continue any suit relating to the property of the insolvent for the purposes of realising the property of the debtor and distributing it among the creditors entitled thereto. However, the language of the Statute as pointed out above is clear and there is no force in this contention of Mr. Ghias Muhammad. A regards the claim of this appellant on the basis that he was the adopted son, permission to raise it before us was refused at the time of granting special leave. It was definitely stated in the order granting leave that that question could not be reopened. Mr. Ghias Muhammad applied for permission reopen the question, but we declined to grant it as there was concurrent finding of the Courts below that it was not proved 1 to It I this appellant was adopted by Nabi Bux as an heir.
We, therefore, dismiss both the appeals with costs.
A.H. Appeals dismissed.
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