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Petitioner: AKBER ALI VS Respondent: VAZIR ASHIQUE ALI
1998 C L C 859
1998 C L C 859
[Karachi]
Before Rasheed Ahmed Razvi, J
AKBER ALI and 5 others‑‑‑Plaintiffs
versus
VAZIR ASHIQUE ALI and 2 others‑‑‑Defendants
Civil Suit No.331 and Civil Miscellaneous Application No.4006 of 1986, decided on 12th January, 1998.
Specific Relief Act (I of 1877)‑‑‑
‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), S. 9 & O. VII, R. 11‑‑‑Rejection of plaint‑‑‑Essentials‑‑‑Suit for declaration and injunction wherein plaintiffs claimed to be entitled to offer their prayers in "Jamaat Khana" of Ismaili Sect and for restraining defendants not to deny them access to their place of worship‑‑‑Defendants claimed that "Jamaat Khana" being exclusive place of their worship, plaintiffs were not entitled to offer their prayer, in such place and, thus, prayed for rejection of plaint‑‑‑Competency of suit‑‑‑While considering application for rejection of plaint, only plaint should be looked at and contents thereof have to be treated as correct‑‑‑Where after such presumption, plaint failed to disclose any cause of action or was found barred by any law, then plaint was liable to be rejected‑‑‑Courts for such purpose were competent to look into documents, filed by plaintiff alongwith their plaint‑‑‑Provisions of O. VII, R.11, C.P.C. being not exhaustive any incompetent suit which was abuse of process of law must be buried at early stage‑‑‑Ismailis generally offer their "Doowa" in their "Jamaat Khana"‑‑‑Plaint did not disclose whether defendants or their other co‑followers also follow the same faith and belief as of plaintiffs‑‑‑In order to grant relief as prayed in suit, which would include offering of prayer; Court was required to look into question of public order; it would also to be seen whether such "Jamaat Khanas" were dedicated to God or were private property in order to treat "Jamaat Khanas" at par with mosques‑‑‑All such matters would require evidence‑‑‑Such questions tentatively being of civil nature, suit to try such issues was not barred tinder S. 9, C.P.C.‑‑‑Plaintiff's case, prima facie, would not appear to be barred by any specific provision of law, therefore, plaint could not be rejected in terms of O. VII, R.11, C.P.C.
Shorter Islamic Shia' ite Encyclopaedia by Hasan‑ul‑Amine, Beirut, 1969; Encyclopaedia of Islam, Vol. IV, edited by C.E. Bosworth, E. Van Donzel, B. Lewis and Ch. Pellat, 1978; Shorter Encyclopaedia of Islam, South Asian Publishers, Karachi, 1981; Encyclopaedia of Britannica Volume 12; His Highness Aga Khan‑I, on The Memoirs of Aga Khan‑‑‑World Enough and Time, Cassell & Company Ltd., London, First Edn., 1954, p.179; The Encyclopaedia of Religion, edited by Mircea Eliade, Vol. 13, published. by Macmillan Publishing Company, New York; Sheikh Hasansab and others v. Mohidinsab and another AIR 1923 Bom. 42(2); Muhammad Yusuf and others v. Muhammad Shafi and others AIR 1934 All. 1013; Musaheb Khan and others v. PT. Raj Kumar Bakshi and another AIR 1938 Oudh 238; Sri Sinha Ramanuja Jeer alias Sri Vanamalia Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer and others AIR 1961 SC 1720; Ata‑Ullah v. Azimullah (1890) 12 All. 494; Adam Sheikh v. Isha Sheikh (1897) 1 CWN 76; M. Ahmed Shah Mubarak Shah v.. Atta Khan AIR 1934 Pesh.57; Kaniz Mehdi Begam v. Mirza Rasul Beg AIR 1918 Oudh. 379; Principles of Mahomedan Law by D.F. Mulla, edited by Dr. M. A. Mannan para. 218; P. Majllissae Islamia v. Sheikh Muhammad AIR 1963 Ker. 49; Muhammad Fazil v. Mst. Resham Jan and another 1983 CLC 1165; M. Moosa v. Muhammad and others PLD 1954 Sindh 70; L. Collins v. Charles Booth & Co., Ltd. AIR 1921 Sindh 106; Burmah Eastern Ltd. v. Burmah Employees' Union PLD 1967 Dacca 190; Pakistan State Oil v. KESC PLD 1991 Kar. 190; Trustees of the Port of Karachi v. Gujranwala Steel Industries and another 1990 CLC 1997; Ibrahim v. Muhammad Hussain PLD 1975 SC 457; Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCMR 1908; Abdur Rahman Mobashir and 3 others v. Syed Amir Ali Shah Bokhari and 4 others PLD 1978 Lah.113; V. Ramalinga Mudaliar v. E. Sundara Sastrigal and others AIR 1929 Mad. 526; Sri Emberumanar Jeer Swamigal v. Board of Commissioners for Hindu Religious Endowments AIR 1936 Mad. 973; Aiyanachariar v. Sadagopachariar AIR 1939 Mad. 757; Thiruveng Adachariar v. Krishanasami Thathachariar AIR 1915 Mad. 877; Devchand Totaram v. Ghanashyam AIR 1935 Born. 361; Maine Mailor v. Islam Ahmanath ILR 15 Mad. 355; Sri Tinha Ramanuja Jeer v. Sri Ranga Ramanuja Jeer AIR 1961 SC 1720; Sarfuddin Saleh v. State of Bombay AIR 1962 SC 853; Hassanali v. Mansoorali PLD 1947 PC 223; Ratansey Virji and another v. Meghji Harji Janqeali and others AIR 1934 Bom. 431; Devchand Totaram Kirange v. Ghanethyam Sakharam Chaudhari and others PLD 1935 Born. 361; Abdul Razzak Haji Mahomed v. Adam Haji Usman Noorani and others AIR 1935 Bom. 367, Appaya and another v. Padappa ILR 23 Bom.122; Naraindas Assanmal and others v. Valabdas Vishandas and others AIR 1929 Sindh 1; Rangal Shah and others v. Mula Jadal PLD 1960 (W.P.) Kar. 512; Maula Bakhsh v. Amir‑ud‑Din ILR 1 Lah.317; Jiwan Khan v. Habib ILR 14 Lah. 518; Amir Hussain Shah v. Hafiz Ghulam Rasul AIR 1936 Pesh. 65; Ugam Singh and another v. Kesrimal and others AIR 1971 SC 2540; Sir Seth Hukam Chand v. Maharaj Bahadur Singh AIR 1933 PC 193; District Council of United Basel Mission Church and others v. Salvador Nicholas Mathias and others (1988) 2 SCC 31; Ugamsingh and Mishrimal v. Kesrimal SCC p.837, para.16; Haji Bibi v. H.H. Sir Sultan Mahomed Shah, The Aga Khan 1909 BLR Vol.XI, p.409; The Isma'ilis, their History and Doctrines by Farhad Daftary (Cambridge University Press, U.K., 1992 and Hedaya by Charles Hamilton, Premier Book Shop, Lahore, 1975 Edn., p.239 ref.
Ismail Padhiyar, Muhammad Asar Hussain and Khaliq Humayun for Plaintiffs.
Ali Ahmed Fazeel and J. H. Rahimtoola for Defendants.
ORDER
This is an application (C.M.A. 4006/1966), filed by the defendants under Order VII, Rule 11, C.P.C., praying for rejection of plaint, on several grounds. Surprisingly, this application was heard on previous several occasions but remain un-disposed of. Lastly, on 6‑2‑1994, it was heard by my learned brother G.H. Malik, J. (as he then was), when Mr. Muzzafarul Haque, advocate, then appearing for plaintiff No.4, stated that the right which plaintiff seeks to enforce in this suit is the right to offer prayers in Jamaat Khana in accordance with the Farman of Aga Khan. On the said date, it was observed by this Court that the prayers in the suit is wider than the relief mentioned by the plaintiff. In view of these observations, Mr. Muzzafarul Haque, agreed that it is necessary to amend the plaint to reflect more accurately the reliefs, actually sought by the plaintiffs and requested for time to do the needful. Therefore, no amendment was sought by the plaintiffs. Mr. Muzzafarul Haque, Advocate, has filed his statement, dated 3‑3‑1994, which reads as follows:‑‑‑
"Statement at Bar
The undersigned counsel was permitted to apply for amendment in the plaint and in the best interest of plaintiff No.5, namely, Muhammad Rafiq, I have persuaded him to do the needful but the said plaintiff No.5, Muhammad Rafiq, is not agreeable to apply for amendment of plaint on the plea which had been argued by the undersigned counsel at the time of hearing of application under Order 7, Rule 11, C.P.C., therefore, the undersigned counsel is not in a position to apply for amendment.
Karachi ?????????????????????? ??????????????????????????????????? (Sd ) Dated: 30‑3‑1994??????? ??????????????????????? (Muhammad Muzaffarul Haque), Advocate for Plaintiff No.5 (Muhammad Rafiq)."
2. Initially, this suit was filed by the two plaintiffs as a representative suit. Publication was effected and in response to the same several applications were filed under Order 1, Rule 8(2) read with Rule 10, C.P..C., for joining as plaintiffs as well as defendants. These applications were dismissed except two, which were granted and as a result plaintiffs Nos.3, 4 and 5 were joined vide this Court order, dated 17‑11‑1986. Plaintiff No.6, namely, Muhammad Rafique, was substituted in place of plaintiff No.5, namely, Ramzan, after the latter's death, vide order, dated 4‑10‑1989. Despite all such exercise, the plaint remains unamended.
3. The plaintiffs have filed this suit for declaration and permanent injunction claiming that they being Muslims belonging to Ismailiya Khoja community are entitled to offer Namaz (prayers), individually and Ba‑Jamaat as well as to say Azan in Jamaat Khana and for permanent injunction to restrain the defendants, their employees, agents, servants, etc. etc. from interfering in performance of their religious rites. In the plaint, it is averred that the plaintiffs are Muslims and have unfettered faith that Almighty Allah is the Rab‑ul‑Alamin and that Hazrat Muhammad Mustafa (Salallah‑o‑Alaih Wa Alehi Wasalluin) is his last messenger/prophet; that the Holy Qur'an is the devine book of Almighty Allah; that they are also followers of Sunnah and that no person has any right, title or authority to deny them from following any directions or instructions of Holy Qur'an or any directions, instructions or the practice of Holy Prophet Muhammad Mustafa (p.b.u.h.). It is the further case of the plaintiffs that like their forefathers they have also paid handsome amount, out of their well‑earned income to the defendants and to the predecessors of the defendants, who were Incharge of the Council and are at the helm of affairs of Agha Khan Community. The plaintiffs, as claimed in the plaint, believe that no Imam has ever given or shall give any instructions, directions, Farmans, etc., which is violative of the Injunctions of Islam, Holy Qur'an or sayings of Holy Prophet Muhammad Mustafa (p.b.u.h.) and with this believe they had always paid great respect to every Imam and have followed their Farmans faithfully. The grievance of the plaintiffs are that the only place to offer prayers for Agha Khani Muslims are the places commonly called "Jamaat Khana". Since the present controversy revolves against this question, it would be advantageous if the following paragraphs of the plaint are reproduced:‑‑‑
"4. That according to the procedure and system prescribed, since the days of Aga Khan the First, for Aga Khani Muslims the only place for all Ebadat‑e‑Ellahi, such as Namaz (Individually as well as five times Bajamat Namaz with Azan), and all religious performances are the Jamaat Khanas and no other separate Masajids (place for offering Namaz and doing other Ebadats) has been provided, constructed, raised, reserved or maintained (like other sects of Muslims such as Bohries, Isna Asharees and Sunnis) by the defendants anywhere within the whole Pakistan. The Jamaat Khanas are situated at many places and the chief/main Jamaat Khana is situated within the area of Garden East, Karachi, while the next big Jamaat Khanas are situated at Kharadar and Karimabad Areas apart from other small local Jamaat Khanas maintained in various localities of Karachi.
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8. That the plaintiffs whenever tried to offer individual prayer (Namaz) in the Jamaat Khanas, they were not allowed by the defendants to offer the prayer (Namaz) within the premises of Jamaat Khana. This happened many times. The defendants also restrained by force the plaintiffs and other Aga Khanee Muslims, whoever tried to speak Azzan and offer Namaz‑e‑Bajamat or even individual Namaz in any Jamaat Khana, on the false plea that the offering of Namaz has been dispensed with by the present Hazar Imam.
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12. That the plaintiffs have vested right to speak Azan and offer prayers individually as well as collectively in the Jamaat Khanas and the defendants, any of them or any other person claiming through under or in the trust for them or any of their employees, servants, scouts or volunteers has no right, title or authority to restrain, disallow or prevent the plaintiffs or any of them or any other Aga Khani Muslim from entering the Jamaat Khana and from offering Namaz (individual or Bajamat) and/or speaking Azan. The defendants have also no right or authority to force the plaintiffs or any other Aga Khani Muslim to do, perform or cause to be performed or done by plaintiffs or any other Aga Khani Muslim inside or outside of any Jamaat Khana, anything not permitted by Qur' an, Sunna or any Farman of any Imam and/or to refrain them from doing or causing to be done any act, deed or thing, which is permitted, allowed or declared as Raraz, Wajib, Sunnat, or Nafil in Islam, according to Qur'an and Sunna and not prohibited by any Farman issued by any Imam. "
4. It is further stated in the plaint, that the plaintiffs strongly "apprehend" that the defendants are planning to ban the entry of the plaintiffs and their colleagues, whenever they desire to offer Namaz in Jamaat Khana; that on 20th April, 1986 when the plaintiffs tried to enter one Jamaat Khana at Lea Market, Karachi, to offer Namaz‑e‑Asr, they were not allowed to enter the premises by the scouts, posted at the said Jamaat Khana. It is pertinent to note that despite this specific allegation against these scouts none of the said scouts or such group was impleaded as defendant in the suit. In the end the plaintiffs have claimed that there are thousands of Agha Khani Ismaili Muslims, who have the same views as of the plaintiffs and who also desire to offer prayers, individually as well as Ba‑Jamaat and to offer Azan and to be relieved of "the un‑Islamic customs, Rusooms and performances, enforced upon them by the defendants illegally and unauthorisedly, and in violation of the Farmans of Imam". In view of these alleged facts, the plaintiffs have prayed for the following relief:‑‑‑
" 1. Declaring that the plaintiffs and all other Aga Khani Ismailia Muslims have full right, complete title and vested interest to offer prayer (Namaz) either individually or Bajamat and to speak Azan before every Namaz‑e‑Bajamat, within the premises of each and every Jamaat Khana and the defendants or any of them, their employees, servants, scouts, volunteers or any other person or persons claiming through, under, or in trust for them or any of them has no right, title, interest or authority to restrain, refrain, neglect, ban or prohibit the offering of Namaz individual as well as Bajamat and speaking Azan before every Namaz‑e‑Bajamat every day within the premises of Jamaat Khanas.
2. Issue permanent injunction restraining the defendants, their employees, servants, scouts, volunteers or any other person or persons claiming through, under, or in trust for them or any of them from restraining the plaintiffs or any other Aga Khani Muslims from offering prayer (Namaz) either individual or Bajamat and to speak Azan before every Namaz‑e‑Bajamat, within the premises of the Jamaat Khanas.
3. To issue permanent injunction restraining the defendants, their employees, servants, scouts, volunteers or any other person of persons claiming through, under, or in trust for them or any of them from restraining, banning or prohibiting the entry in any of the Jamaat Khanas of the plaintiffs or any of them or any other Aga Khani Muslim who believes in offering prayers and/or is not agreeable to the customs, Rusooms and performances adopted by the defendants against the Qur' an, Sunna and the Farmans of Imam.
4. ----------------- 5. -----------------
5. I have heard Mr. Ismail Padhiyar, Mr. Muhammad Asar Hussain and Mr. Khalique Humayun (now deceased) for the plaintiffs and Mr. Ali Ahmed Fazeel and Mr. J.H. Rahimtoolah, for the defendants. Before considering arguments of all the parties, it would be advantageous to consider the emergence and the present set‑up of this popular sect of Shia faith, namely, Khoja Ismaili.
6. "Ismailiya" or "The Ismaili" is the major branch of Shia sect, who traces the lines of Imam through Hazrat Ismail (AS) son of Hazrat Imam Jaffar Sadiq (AS), the last‑mentioned being the sixth Imam, who died on 148 AH/765 AD. The Shias, on the basis of some Qur'anic Verses and certain Hadith have maintained that the great Prophet has appointed a successor or an Imam as the Leader of the Umma and that Hazrat Ali (AS) son of Hazrat Abe Talib (AS) was the first such successor. In the subsequent period of history, on the basis of Imamat there emerges several groups claiming their respective leaders as Imams, which further bifurcated Shias into different communities. Presently, amongst them, are Bohras, Nizari, Ismailis, Druzes and Zaydiyya. (For further reference please see Shorter Islamic Shia'ite Encyclopaedia by Hasan‑ul‑Amine, Beirut, 1969, Encyclopaedia of Islam, Volume IV, edited by C.E. Bosworth, E. Van Donzel, B. Lewis and Ch. Pellat 1978 and Shorter Encyclopaedia of Islam, South Asian Publishers, Karachi, 1981 and Encyclopaedia of Britannica, Volume 12).
7. His Highness Aga Khan‑I, while writing his memoirs "The Memoirs of Aga Khan World Enough and Times", (Cassell & Company Ltd., London, First Edition, 1954, at page 179), define the sub‑division of Shia sect according to the beliefs of Ismailis, Nizaris in the following words:‑‑?
"Of the Shias there are many sub‑divisions; some of them believe that this spiritual leadership, this Imamat which was Hazrat Ali's, descended through him in the sixth generation to Ismail from whom I myself claim my descent and my Imamat. Others believe that the Imamat is' to be traced from Zeid, the grandson of Imam Hussain, the Prophet's grandson martyred at Kerbela. Still others, including the vast majority of the people of Persia, and Indian Shias, believe that the Imamat is now held by a living Imam, the twelfth from Ali, who has never died, ho is alive and has lived 1,300 years among us, unseen but seeing; those who profess this doctrine are known as the Asna Asharis. The Ismailis themselves are divided into two parties, a division which stems from the period when my ancestors held the Fatimite Caliphate of Egypt. One party accepts my ancestor, Nosar, as the rightful successor of the Caliph of Egypt Mustansir, while the other claims as Imam his other son the Caliph Mustalli. "
8. The rise of Ismailia Sect can be traced back to the year AH 286/899 AD after the succession of the view of Fatimid Caliph Ubaidullah Al Mehdi in Salamiwya, which resulted in the split of Shiaism. During the period of Fatimid reign Ismailism got its roots. However, at subsequent stage there was further division in Ismailis, resulting in formation of Dawoodi Bohras and Nizari Ismailis, the latter commonly known as Aga Khani Ismailis in the sub‑continent of Indo‑Pakistan. "The Encyclopaedia of Religion," edited by Mircea Eliade, Volume 13, published by Macmillan Publishing Company, New York, has summed up the growth and present status of Nizari Ismailis/Aga Khanis with reference to Indian Sub‑continent, in the following words:‑‑‑
" -----------------The Indian sub‑continent. The origins and early history of the Nizari Community on the Indian Sub‑continent are largely obscure. The Nizariyah they are often collectively referred to as Khojas, although there
are other; smaller Nizari groups such as the Shamsiyah and Momans, while some Sunni and Twelver Shi'i Khoja groups have split from the main body of the Nizariyah. According to their legendary history, the Nizari faith was first spread by Pir Shams AI‑Din, whose father is said to have been sent as a dal from Alamut. The community was ruled thereafter, by Pirs descended from Shams Al‑Din. Pir Sadr Al‑Din, who can be dated with some likelihood in the later fourteenth century, is credited with the conversion of the Khojas from the Hindu caste of the Lohanas and to have laid the foundation of their communal organization building their first Jamaat‑Khanas (assembly and prayer halls) and appointing their Mukhis (community leaders). The centre of his activity was in Ucch in Sindh. A substantial section of the community seceded in the sixteenth century under the Pir Nar (Nur) Muhammad Shah, who broke with the Imams in Iran claiming that his father, Imam Shah, had been the Imam and that he had succeeded him. This community, known as Imam‑Shahis or Satpan this, has further split on the issue of leadership and lives chiefly in Gujarat and Khandesh. It has tended to revert to Hinduism but shares much of its traditional religious literature with the Nizari Khojas.
This literature, which is known as Sat Panth (True Path) consists of ginans or gnans, religious poems composed in, or translated into, several Indian languages and meant to be sung to specific melodies in worship. Most of them are attributed to the early Pirs but cannot be dated accurately and may have undergone substantial changes in the transmission. They include hymns, religious and moral exhortation and legendary history of the Pirs and their miracles, but contain no creed or theology. Islamic and Hindu beliefs, especially popular Tantric ones, are freely mixed. While idol worship is rejected, Hindu mythology is accepted. Ali is considered the tenth avatar (incarnation of the deity), and the Imams are identical with him. The Qur'an is described as the last of the Vedas, which are recognized as sacred scriptures whose true interpretation is known to the Pirs. Faith in the true religion will free believers from further rebirths and open paradise, which is described in Islamic terms, to them, while those failing to recognize the Imams must go through another cycle of rebirths. (See Ginanj The Arabic and Persian Ismaili literature has been virtually unknown among the Khojas except for the Persian Pandiyat‑i-?Jawanmardi, a collection of religious and moral exhortations of the late fifteenth‑century Nizari Imam al‑Mustansir which was adopted as a sacred book. Khojas live chiefly in lower Sind, Cutch, Gujarat, Bombay, and in wide diaspora, particularly in East and South Africa, Arabia, Ceylon and Burma.
Further Nizari Communities are found in the mountains of Chitral, Gilgit and Hunza in parts of Afghanistan, and in the region of Yarkand and Kashgar in Chinese Turkistan. Organization, religious practices, and observance of Shari'ah rules vary among the scattered communities. The recent Aga Khans have stressed the rootedness of the Nizari Ismailiyah in Shi'i Islam and its continued bonds with the world of Islam . . .. "
9. Reverting to the arguments of Mr. Ali Ahmed Fazeel, who has strenuously argued that the plaint is liable to be rejected, being without cause of action, on the ground, inter alia, that the right to offer Namaz is a right, which, in law, can only be claimed or exercised in a mosque/masjid, which is dedicated in the name of Almighty Allah and not as of right in other places like Jamaat Khana, which is not a mosque/masjid but it is a place which exclusively belongs to and is owned .by present Hazir Imam i.e., Aga Khan, the Third. In support, he has referred to the following cases:‑‑‑
(i) Sheikh Hasansab and others v. Mohidinsab and another (AIR 1923 Bombay 42(2).
(ii) Muhammad Yusuf and others v. Muhammad Shafi and others (AIR 1934 Allahabad 1013).
(iii) Musaheb Khan and others v. PT. Raj Kumar Bakshi and another (AIR 1938 Oudh 238).
(iv) Sri Sinha Ramanuja Jeer alias Sri Vanamalia Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer and others (AIR 1961 SC 1720).
10. In the case of Sheikh Hasansab and others (ibid) the question before a Division Bench of Bombay High Court was whether a building with a Mehrab and Mimber is sufficient to make a mosque dedicated to Public Reference was made to the Baillie's Digest on Mohamedan Law and Amir Ali's Mohamedan Law, Volume I, Fourth Edition, whereafter it was held that mere existence of structure called Mehrab and Mimber are not sufficient to prove that the building in question was a mosque. It was further held that the question whether a particular building is a public mosque or not is a question of fact and for such determination existence of a Mehrab and Mimber may form part of evidence. In the case of Musaheb Khan and others (supra) again the question before a Division Bench of Oudh High Court was whether a mosque, which was situated in a graveyard and was being maintained by minor, under the guardianship of his mother, was a public Waqf, in which the Muslamans could offer their prayers. A representative suit was filed seeking declaration of such nature where one of the defence took by the defendants was that the building described in the plaint as a mosque had never been dedicated or used as a place of worship. Reference was again made to Baillie's and Aamir Ali's Mohamedan Law as well as to the cases Ata‑Ullah v. Azimullah (1890) 12 All. 494, Adam Sheikh v. Isha Sheikh (1897) 1 OWN 76, M. Ahmed Shah Mubarak Shah v. Atta Khan (AIR 1934 Peshawar 57), Muhammad Yusuf v. Muhammad Shafi (AIR 1934 Allahabad 1013) and Kaniz Mehdi Begam…
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