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Petitioner: HUSSAIN VS Respondent: MANSOOR ALI AND 5 OTHER
Court Name: Sindh High Court Judge(s): Zaffar Hussain Mirza Title: HUSSAIN vs MANSOOR ALI AND 5 OTHER Case No.: Suit No, 240 of 1971 petition No, 54/1948 Date of Judgment:1976-12-22 Reported As: PLD 1977 Karachi 320 Result: Suit dismissed
JUDGMENT
JUDGMENT ' This is a suit for administration of the estate of Late Mohatrama Fatima Jinnah the sister of the founder of Pakistan Quaid-e-Azam Muhammad Ali Jinnah. The plaintiff is the grandson of Walji Poonja who was the paternal uncle of the deceased. The defendants except defendant No, 6 are also agnates of the deceased. Defendant No, 1 was the brother of the plaintiff and upon his death during the pendency of suit his legal representatives have been brought on record. The second defendant is also the brother of the plaintiff whereas defendants 3 and 4 are the sons of Ghulam Ali who was also the brother of the plaintiff. Defendant No, 5 Mst. Shirin Bai is the only surviving sister of the deceased and is the only contesting defendant in the suit. Defendant No, 6 Mst. Jenna Bai was impleaded as co-defendant in this suit on her own application but has neither filed written statement nor adduced any evidence. No representation for her was made at the hearing of final arguments. 2. Mohatrama Fatima Jinnah expired at Karachi on 10th July, 1967 and was possessed at that time of properties, movable and immovable, details whereof are mentioned in the schedule annexed to the plaint. On 6-2-1968, defendant No, 5 filed an application in the High Court of West Pakistan at Karachi, bearing No, 11 of 1968, under section 370 of the Succession Act, 1925 for grant of a succession certificate in respect of the debts and securities standing in the name of the deceased. The plaintiff and defendants Nos. 1 to 4 appeared in the aforesaid proceedings and objected to the grant of succession certificate in favour of defendant No, 5. By order dated 2.3-1970 my Lord the Chief Justice sitting then as a Judge on the Original side granted a succession certificate to defendant No, 5 in respect of the debts and securities of the deceased. It would appear that the question of the right of the plaintiff and defendants Nos. 1 to 4 to a share in the estate of the
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deceased by inheritance as lawful heirs alongwith defendant No, 5 was raised in those proceedings but since no final and binding adjudication could appropriately be made of this question in the proceedings, it was left undecided and the succession certificate was granted to defendant No, 5 on condition that she furnishes a bond with one or more sureties to the extent of value of the properties for rendering an account of the debts and securities received by her, and for the indemnity of the persons who may be entitled to the estate left by the deceased. (3)This suit was thereafter, filed on 29-10-1970 seeking a decree for administration of the estate of the deceased, for accounts by defendant No, 5 of the estate and part thereof which come to her hands, for payment of all debts and liabilities and for partition of estate of the deceased between the plaintiff and defendants 1 to 5. The plaintiff has alleged that although under the orders of this Court, the defendant No, 5 was allowed payment of Rs, 3,000 per month for the purpose of renting a house and the convenience of a car, she illegally and wrongfully obtained possession of a part of the immovable property of deceased known as Kasr-e-Fatima (Mohatta Palace) situated at Clifton, Karachi together with the furniture, fixtures and fittings. It was further alleged that said defendant also illegally and wrongfully obtained possession of four motor-cars of the deceased, all which properties were being used and enjoyed by her and her son. The plaintiff further contended in the plaint that the deceased Mohatrama Fatima Jinnah, during her lifetime practiced the Sunni/Hanafi faith and continued to do so until the time of her death and as such the inheritance to the estate left by the deceased was governed by the Sunni/Hanafi Law of Inheritance. The plaintiff claimed that he and defendants 1 to 4 were residuary under the Sunni Law of inheritance which governs the succession to her estate. Thus the plaintiff and defendants Nos. 1 to 4 were alleged to be entitled to the half of the estate and the remaining half devolved upon the defendant No, 5 being the surviving sister of the deceased. On this basis the plaintiff claims 1/8th out of the total estate for himself. 4. Defendants Nos. 1 to 4 filed a joint written statement supporting entirely the case of the plaintiff and joined him in the reliefs claimed in the suit. As stated earlier, defendant No, 5 is the only defendant who resisted the suit. She, in her written statement strongly repudiated the assertion that the plaintiff was a rightful heir of the deceased along with defendants 1 to 4 and contended that she was the sole heir of deceased to inherit all the properties of the deceased in her own right. She controverted the allegation that Late Mohatrama Fatima Jinnah was a Sunni Muslim and characterized the allegation as "mere fiction and imagination". According to her the deceased was and remained until her death an Asna-Asharia Shia Muslim. Accordingly the succession to her property was governed by the Sectarian Law of the Asna-Asharia Shia School. Defendant No, 5 also repudiated other allegations made by the plaintiff regarding the illegal and wrongful takeover of the properties and averred that the house at Clifton was offered to her by the Government of Pakistan through the Commissioner of Karachi, who broke the seals and put the defendant in possession of a part of the ground floor after preparing a complete and full inventory of all the furniture, fixtures and household effects that were spared "after the loot and pilferage soon after Miss Jinnah's death while this defendant was still in India". As regards the cars mentioned by the plaintiff, defendant No, 5 averred that two were old and unserviceable and that all the cars have been preserved and would be donated to the Relics Committee by this defendant at the appropriate time. In short the defendant No, 5 contended that the plaintiff and defendants 1 to 4 have no right to the estate of the deceased as heirs and that she was the sole surviving heir excluding all other relations of the deceased under the Shia Law. 5. On the pleadings of parties the Court framed the following issues :- (1) Whether the Late Mohatrama Fatima Jinnah practiced Sunni/Hanafi faith during her lifetime and remained a Sunni until the time of her death as claimed by the plaintiff in para. 8 of the plaint.
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(2) Whether the plaintiff and defendants 1(a) to 1(c) and 2 to 5 have any interest or share in the properties left by the deceased, if so, to what extent and in what properties. (3) Whether the suit as framed is misconceived and merits dismissal. (4) What should be the decree. 6 By consent of the parties the evidence recorded in Misc. Application No, 11 of 1968 in this Court was treated and exhibited as evidence in these proceedings. The witnesses whose evidence has thus come on record of this suit are (1) Mr. M. A. H. Ispahani (Exh. 9), (2) Syed Anisul Hussain (Exh. 10), (3) Moulana Mohammad Hussain Baray (Exh. 11), (4) Mr. M. M. Kotwal (Exh. 12), (5) Mr. G. A. Khan (Exh. 13), (6) Mr. Muhammad Hanif Manias (Exh. 14), (7) Mina Akhter Hussain (Exh. 15), (8) Moulana Ehtashamul Haq (Exh. 16), (9) Syed Saharifuddin Pirzada (Exh. 17) and Syed Inayat Ali (Exh. 18). 7. From the gist of the pleadings and the issues framed by the Court it will be observed that the only question at issue between the patties is as to what were the sectarian beliefs of the deceased, that is to say, whether in the matter of religious faith, she adhered to Shia or Sunni discipline. The fact in issue means any fact from which either by itself or in connection with other facts the existence, non-existence, nature, or existence of any right, liability or disability, asserted or denied in any suit or proceedings necessarily follows. Upon the decision of this issue would depend as to what law would govern the succession to the estate of the deceased. 8. It was conceded at the bar by Mr. Liaquat Merchant. Learned counsel for the plaintiff that if this Court comes to the conclusion that the deceased was a Shia, then the plaintiff would be out of Court and will not be entitled to any share in the property of the deceased. Under the Shia law the defendant No, 5 being the sole surviving sister of the propositus would succeed to the entire estate as sole heir. But if the Sunni law is applicable then she would be entitled as a sharer to half of the estate and the other half would be jointly inherited by the plaintiff and defendants 1 to 4 as residuaries. 9. The word 'fact' has been defined in the Evidence Act to mean and includes :- (1) anything, set of things, or relation of things, capable of being perceived by the senses ; (2) any mental condition of which any person is conscious. Facts, therefore, are either physical or psychological. A physical fact is anything, set of things, or relation of things capable of being perceived by the senses. On the other hand a psychological fact is any mental condition of which a person is conscious. Facts sho sling state of mind as for instance a person's religious faith are relevant when such state of mind is in issue. It has been said that the state of a man's mind is as much a fact as the state of his digestion. Although the proof of such a fact presents considerable difficulties but it can be ascertained as much as anything else. These psychological facts are incapable of direct proof, hence their existence can be ascertained either by confession of a person's own mental condition or by presumptive inferences from the surrounding circumstances of other physical facts. It is, therefore, considered that the most cogent evidence consists of circumstantial evidence of other external or collateral facts. Section 14 of the Evidence Act expressly deals with the relevancy of facts showing the existence of any state of mind and Explanation (1) appended thereto provides as under :- "A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally but in reference to the particular matter in question!! 10. It is common ground that the deceased was born in a Khoja Ismaili family which is a sub-sect of the Shia sect of Muslims and there is no controversy over the fact that sometime after she attained the age of discretion she renounced the doctrines of that sub-sect. The dispute is only as to what sectarian denomination whether Shia or Sunni she adopted and belonged to at the time of her death. 11. Each side has produced number of witnesses some of whom enjoyed prestigious positions in the affairs of the State and took prominent part in the struggle for achievement of Pakistan and some
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have had close personal association in the course of their dealings either with Quaid-e-Azam or Mohtarma Fatima Jinnah herself as members of their personal staff. 12. The evidence adduced by the parties to a great deal touches the religious faith of the Quaid-e- Azam. But all the learned counsel appearing in the case have categorically stated that since the Quaid-e-Azam's religious faith is not a material issue between the parties, no decision as regards that question is called for in this case and that therefore such evidence as deals with the Quaid's religious beliefs can be safely excluded from consideration. 13. The plaintiff's evidence including the evidence recorded in the previous proceedings consists of ten witnesses who are : (1) Moulana Muhammad Hussain Baray (Exh. 11) ; (2) Mr. G. A. Khan (Exh. 13) ; (3) Mr. Muhammad Hanif Muniar (Exh. 14) ; (4) Mirza Akhtar Hussain (Exh. 15) ; (5) Moulana Ehteshamul Hag (Exh. 16) ; (6) Syed Sharifuddiu Piraada (Exh. 17) ; (7) Syed Inayat All (Exh. 18) ; (8) Mr. Muhammad Jaffar Pirbhai (Exh. 19) ; (9) Mr. Hussain (Exh. 20) and (10) Mufti Muhammad Shafi (Exh. 21). 14. On the side of the plaintiff, the first witness examined was Moulana Muhammad Hussain Baray (Exh. 11), the Ex-Khatib of the Jamia Mosque, Bombay. He deposed that he remained the Khatib of the Jamia Mosque, Bombay from 1932 to 1934 and again from 1942 to 1947. Besides speaking about the Quaid-e-Azam having participated in Sunni Congregational Prayers he spoke about his association with the deceased. He says that he used to go to the house of the deceased for Fateha on the death anniversary of Quaid-e-Azam and used to lead the same from 1950 up to the death of the deceased. He is a Sunni and performed his religious rites according to the Sunni discipline. He has introduced the name of Muhammed All Manias as the person who used to take him for attending the Fateha-Khwani. He has further stated that sometimes the deceased used to call him by speaking on the telephone. It is contended that this was an overt act on the part of the deceased disclosing her faith. 15. The next witness for the plaintiff is Mr. G. A. Khan, who was in the employment of the deceased as her Private Secretary. This witness was naturally in close contact with the deceased and has categorically stated that from his personal knowledge gathered from close association with her, he cannot say that "the deceased was not associated or connected with any religious or social organization of Shias exclusively." He has further stated 'Miss Fatima Jinnah never told me in clear words that she belongs to any sect of Islam, Shia or Sunni". He has, however, stated that whenever the deceased used to receive correspondence from Shia community asking for patronage or association, she would be annoyed and would say : "What do these people think I am", and would direct him to put these letters away. Another material statement by this witness is that the deceased never observed Moharram as Shias do and further that on every occasion it was her practice to send for Sunni Moulvi for the purpose of Quaid-e-Azam's yearly FatehaKhwani. Once or twice, the witness asserted, she mentioned that Sunni Moulvis should be sent for and Shia Moulvis should not be sent for. Lastly the witness has stated that no Moharram Majlis was ever held by the deceased. It was argued on behalf of the plaintiff that the above instances and facts reveal clearly that even in private while issuing instructions or communicating with her own Secretary, she made it clear that she had nothing to do with Shia sect and that she did not want to be bracketed with Shias in matters of religion but was rather inclined towards the Sunni religious observances. 16. Mr, Muhammad Hanif Maniar (Exh. 14) is the next witness for the plaintiff. His father was a close friend and political associate of the Quaid-eAzam and the witness stated that ho had occasion to visit the house of the Quaid at Bombay and thus came in close contact with the family. The material part of his evidence consists of the following statements : (i) that he never saw the deceased wearing black clothes during Moharram days, (ii) that the deceased never attended any Shia ceremonies or Shia Majlis, (iii) that from her conduct otherwise he formed the impression that she was a Sunni and (iv) that on one occasion he suggested to deceasei that Moulana Ibn-e-
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Hassan Jarchavi, a Shia Moulvi be called to lead Fateha, whereupon, the deceased observed t "I do not want a Shia Alim". In the cross-examination this witness, however, admitted that on no occasion he enquired from the deceased if she was a Sunni or Shia and that he had never come across any public statement of her to the effect that she belongs to Sunni Sect. 17. Mr. Mirza Akhtar Hussain (Exh. 15) is the next witness of the plaintiff. This witness was practicing as an Advocate in Bombay before his migration to Pakistan and was associated with the Quaid-e- Azam in the Muslim League Movement. He published a book at the instance of the Quaid known as the "History of the Muslim League". He has very fairly conceded that although he was very close to the Quaid-e-Azam, he never got close to the deceased. The only material part of his evidence is that the funeral prayers held for the deceased were according to the Sunni rites and that no Majlis was held or attended by the deceased of either the Sunnis or Shias. In his cross-examination, the witness has conceded he had never seen any public utterance or in the press, books or articles to the effect that the deceased had adopted the Sunni faith but, the witness went on to say, that the conduct of the deceased for about 10 years before her death, convinced him that she was following the Sunni faith. The witness was asked to clarify what conduct he referred to and in reply he stated that every year on the death anniversary of the Quaid-e-Azam the Quran-Khwani was arranged through a Sunni Moulvi. 18. Moulana Ehteshamul Haq Thanvi (Exh. 16) was also examined by the plaintiff. He is a noted Sunni divine and, a scholar. He was also associated with the Pakistan Movement led by the Quaid-e- Azam. This witness has also very honestly stated that he never had a chance of any association or personal contact with the deceased. He, however, stated that he used to be called upon to say Fateha at the Fateha-Khwani of the Quaid-e-Azam. Learned counsel for the plaintiff has rightly conceded that his evidence does not help either side materially. 19. The next witness relied upon, on behalf of the plaintiff is Mr, Sharifuddin Pirzada (Bah, 11), Advocate of this Court and former Attorney-General for Pakistan and Foreign Minister, Government of Pakistan. This witness was summoned to give evidence for the plaintiff in the succession certificate proceedings but before his evidence was recorded, the witness stated that he would like to make the statement as an independent witness and accordingly was treated as a Court witness. Most of the statement of this witness concerns his association with Quaid-e-Azam with whom he claimed to have worked as a Private Secretary. But the material part of his evidence so far as the fact in issue in this case is concerned, was that he had close and cordial relations with the deceased and that she consulted him on a number of occasions with regard to her private and legal affairs. He even represented the deceased in two suits filed in this Court. He has, however. Categorically stated that he cannot say personally anything about the faith of the deceased he had no occasion to discuss this matter with her. One important fact which this witness has deposed to, which is significantly relevant for the issue under consideration, relates to the circumstances under which the Quaid-e-Azam left the fold of the Ismalia. The witness stated : "It is true that the Quaid-e-Azam was a Ismaili Khoja by birth. It is also true that he had fallen out with Ismailia. This was perhaps in the year 1901. This happened on the occasion of the marriage of his sister Rehmat Bai with Kazzim Bhai Jamal, who was a Sunni Muslim." 20. The next witness for the plaintiff is Syed Inayat All (Exh. 17), an Advocate of this Court. He has spoken of an incident in the year 1939 when he offered Ramzan-Eid Prayers at Azad Maiden, Bombay where the Quaide-Azam was also present. He states that he saw the Quaid-e-Azam say his prayers with his hands folded which is the Sunni manner of prayers. The evidence of this witness is not material for the present purposes. 21. The next witness for the plaintiff Mr. Muhammad Jaffer Pirbhai (Eali. 19), in my opinion, is the most important witness in the case as he is not only a relation of the deceased but seems to have had quite informal and close association with the deceased. Both learned counsel have strongly relied
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on the evidence of this witness. The witness at the time he gave evidence was the Chairman, Pakistan Banking Council Corporation and has remained Senior Executive Vice-President in the Habib Bank Limited. Prior to joining the Habib Bank, he was a Solicitor in Bombay and after coming over to Pakistan briefly practiced as an Advocate of the West Pakistan High Court. He is a Shia and had claimed association with the deceased for about 20 years, The deceased used to consult him often with regard to her personal and legal matters. His relationship with the deceased was not very close though, in so far as he is related by marriage to the family having married the sister of the husband of grand-niece of the Quaid-e-Azam. He speaks of several facts which are very material to the question at issue. He says, in 1964 the deceased at her residence had a very revealing conversation with him which was as follows : the deceased said "you Shies start mourning during Moharram", upon which the witness said "Miss Jinnah even you are born a Shia". Upon this she remarked, "I am not a Shia, I am not a Sunni, I am a Mussalman". She explained that the Prophet of Islam had given us Muslim Religion and not Sectarian Religion. The witness, being a Shia, stated categorically that the deceased always referred to the practice of mourning by Shias with disapproval. However, the witness conceded that she used to attend Shia Majlises in private houses whenever invited by her friends. But she had never visited Khoja Jamat Khans at Kharadar or Britto Road. Another significant fact mentioned by the witness was that once the deceased had told him that she and Quaid-e-Azam had been invited by His Highness Agha Khan at Poona where they sat with him as equals unlike Ismailis who had to be kept at respectful distance. She had explained that they were given better treatment because they were not Ismailia. Upon this premise the witness has ventured his own opinion that the deceased was "just a plain Muslim". According to the witness after giving up Ismaili faith the Quaid-e-Azam became Asna-Ashri but he could not say if the whole family including the deceased became Asna-Ashri with him. The witness admitted that some Khojas in Bombay and Karachi also belong to the Sunni faith. Finally, he has stated that the funeral prayers held opposite Mohatta Palace for the deceased were mostly attended by Shims. 22. Tte next to come in the order of witnesses is the plaintiff Hussain (Exh. 20) himself. The plaintiff has made a short statement in which although he said he had known the deceased as she was his aunt, he has not spoken a word about her religious faith except that she was not an Ismaili. The plaintiff himself admits that he is an Ismaili Shia. He has spoken of the funeral prayers held for the deceased at Quaid-e-Azam's Mazar led by Moulana Mufti Muhammad Shaffi. He has shown ignorance about any funeral prayers held at Mohatta Palace. The plaintiff states that he was born in Karachi and had seen the deceased for the first time after she came to Pakistan. 23. The last witness for the plaintiff is Mufti Muhammad Shaffi who was an acknowledged Sunni Divine. He has stated that he led the funeral prayers of the deceased according to the Sunni manner at the Polo Ground. The witness has very honestly admitted that he had no knowledge whether the funeral prayers were performed in the Sunni manner because of any desire or wish made by the deceased and he categorically stated that he cannot say as to whether the deceased belonged to the Shia or Simi Sect. Ho stated that he had not talked to the deceased about her sect nor anyone else had talked to him about her sect. He, however added, as the deceased was the sister of Quaid-e-Azam and his dominant impression about the latter was that he was a Sunni, he entertained the impression that the deceased was also a Sunni. This impression was further strengthened when the people came to him to lead her funeral prayers. 24. As stated in the earlier part of this judgment by consent of parties the evidence recorded in Misc. Application No, 11 of 1968 which related to the grant of succession certificate has been brought on record and is to be treated as evidence for the purposes of the present suit. There are in all eight witnesses whose evidence has been adduced on behalf of defendant No, 5. They are (1) Mr. A. H. Ispahani (Exh. 9), (2) Syed Anisul Hasnain (Exh. 10), (3) Haji Kaloo (Exh. 22), (4) Mst. Fatima
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Bai (Exh. 23), (5) Raja Maqbool (Exh. 24), (6) Mirza Mahrnood Beg (Exh. 25), (7) M. M. Kotwal (Exhs. 12 & 26), and (8) Matloobul Hassan Syed (Exh. 27). 25. Learned counsel for the plaintiff has challenged the evidence of these witnesses and has contended that their evidence does not establish that the deceased belonged to Shia Sect. I shall now take up the consideration of the evidence of each witnesses in the light of the submissions of the counsel. The first witness Mr. M. A. H. Lspahani (Exh. 9) is a well-known personality in Pakistan, having been associated with the Quaid-e-Azam in the political struggle for the achievement of…
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