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Petitioner: AMIR ALI VS Respondent: GUL SHAKER AND 10 OTHERS
Court Name: Sindh High Court Judge(s): Abdul Hayee Qureshi, Abdul Razzaq A. Thaim Title: AMIR ALI vs GUL SHAKER AND 10 OTHERS Case No.: Civil Miscellaneous Appeal No, 6 of 1985 High Court Appeal No, 54 of 1976 Date of Judgment:1984-12-22 Reported As: PLD 1985 Karachi 365 Result: Order accordingly
JUDGMENT
JUDGMENT ' ABDUL HAYER KURESHI, C. J.-This is an appeal tinder section 3 of the Law Reforms Ordinance of 1972, whereby the judgment of the learned Single Judge in Suit No, 240/1971, decided on 23-12-1976, on the original side of this Court, is being challenged. The suit was filed by Hussain for administration of the properties belonging to late Mohtarma Fatima Jinnah, the sister of Quaid-e-Azam Muhammad Ali Jinnah. The case of the plaintiff is that he is the son of one Gangjee Walji, who again was the son of Walji Poonja, the paternal uncle of Mohtarma Fatima Jinnah. Defendant Jafferali (defendant No, 2) is stated to be the real brother of the plaintiff, whereas defendants Amirali and Wazirali (defendants 3 and 4) are stated to be the sons of Ghulamali Gangjee, who was again the son of Walji Poonja. One son and two daughters of Muhammadali Gangjee Walji were also arrayed as defendants 1 (a), 1 (b) and 1 (c). Mohtarma Shairinbai Jinnah, the sister of Mohtarma Fatima Jinnah, was arrayed as defendant No, 5. One Mst. Jenabai, widow of Jan Muhammad, had also claimed the share in the estate of Mohtarma Fatima Jinnah, and she had been permitted to be joined as one of the defendants under Order I, rule 10, C. P. C. ' Mohtarma Fatima Jinnah died on 10-7-1967, leaving considerable properties, which were disclosed in Annexure 'A' to the plaint. On 6-2-1968, Mohtarma Shirinbai filed an application under section 370 of the Succession Act on the original side of this Court to obtain a Succession Certificate in respect of the assets of Mohtarma Fatima Jinnah. This application was registered as Miscellaneous Application No, 11/1968. The plaintiff in the suit, as also defendant 1 (a) objected to the grant of Succession Certificate in favour of Mohtarina Shirinbai Jinnah. This application was dealt with by Mr. Justice Abdul Kadir Shaikh, and a detailed reference will be made to the order that was passed in a latter part of this judgment.
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' According to the plaintiff, a necessity had arisen for the filing of the suit, because Shirinbai Jinnah, the defendant No, 5, had been allowed the use of some of the properties belonging to Mohtarma Fatima Jinnah. ' In the plaint, the sectarian faith of Mohtarma Fatima Jinnah was adverted to in paragraphs 7, 8 and 9 of the same. It was stated that Mohtarma Fatima Jinnah was following and practised Sunni/Hanafi faith. It will be profitable to reproduce the said three paragraphs :-- "7. The plaintiff states that the deceased Mohtarama Fatima Jinnah, during her lifetime practised the Sunni/Hanafi faith and continued to practice and observe the said Sunni/Hanafi faith uptil the time of her death and as such the deceased was governed by the Sunni/ Hanafi law of inheritance. 8. The plaintiff and defendants Nos. 1 and 2 being Mohatrama Fatima Jinnah's paternal uncle's sons' sons and defendants Nos. 3 and 4 being the paternal uncle's sons' sons are residuaries under the Sunni Law of Inheritance by which the deceased was governed during her lifetime and at the time of her death. 9. The plaintiff and defendants Nos. 1 to 4 being residuaries are entitled to half of the estate of deceased Mohtarams Fatima Jinnah. The applicant states that their shares in the said properties, movable and immovable are being used, and enjoyed, by the defendant and her son and are consequently being wasted and are deteriorating." ' In paragraph 11 of the plaint, shares which each one of the heirs were to inherit have been stated, and for conveying a clearer picture of the claim, the said paragraph 11 is also reproduced. It reads as follows :- "11. The plaintiff submits that by reason of the premises the plaintiff as a residuary is entitled to 1/8th share in the estate left by the deceased and that the plaintiff is entitled to the administration of the estate of the deceased by and under the direction of this Hon'ble Court. Defendants Nos. 1 and 2 are also entitled to 1/8th share each on the estate and defendants Nos. 3 and 4 are jointly entitled to 1/8th share in the estate and defendants Nos. 3 and 4 are jointly entitled to 1/8th share in the estate. Defendant No, 5 is entitled to the other half of the estate left by the deceased." ' Separate written statements were filed by Mst. Shirinbai, defendant No, 5, and by defendants 1 to 4. Mst. Shirinbai (defendant No, 5), and the plaintiff admitted the parentage and proximity of the defendants with deceased Mohtarma Fatima Jinnah. She also admitted that she was in possession of some of the property belonging to deceased Mohtarma Fatima Jinnah, who claimed that she was the original heir. In regard to the religious beliefs of Mohtarma Fatima Jinnah, which were stated in paragraphs 7, 8 and 9 of the plaint, Mst. Shirinbai (defendant No, 5) had submitted a reply in paragraphs 7, 8 and 9 of the written statement. These read as follows : "7. Contents of paragraph 7 of the plaint are mere fiction and imagination. The late Mohtrama Fatima Jinnah was and remained an Asna Ashri Shia Muslim. She lived and died as an Asna Ashri, as such she was subjected to the doctrines of Asna Ashri School and her succession would be governed strictly according to the special laws of the Asna Ashri School. 8. In paragraph 8, the relationship claimed is totally irrelevant for purposes of this suit. The class of relations to which the plaintiff and defendants 1, 2, 3, 4 belong may have a claim under the Sunni Law. They have no right or interest in the assets and properties of the deceased who, not being a Sunni Muslim was not governed by the Sunni Law of Inheritance relied upon by the plaintiff in this paragraph of the plaint. 9. In reply to paragraph 9 it is submitted that no residuaries can claim any right or interest in the estate of Mohtrama Fatima Jinnah. The claim set up by the plaintiff for self and defendants 1, 2, 3, 4 is misconceived and untenable. This defendant being the only surviving real sister of the late Mohtrama Fatima Jinnah is her sole heir. This defendant, to the exclusion of all other remote relations, whether residuaries or otherwise is the only legitimate claimant of all the estate left by the deceased."
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' It may be stated that, in the written statement of defendants 1 to 4, paragraph 3 states that Mohtarma Fatima Jinnah practised the Sunni/ Hanafi faith. ' In the nature of pleadings, the main dispute centered around the sectarian belief of Mohtarma Fatima Jinnah, and by consent of all parties, the following four issues were framed :- "(1) Whether the late Mohtarma Fatima Jinnah practised Sunni/ Hanafi faith during her lifetime and remained a Sunni until the time of her death as claimed by the plaintiff in paragraph 8 of the plaint. (2) Whether the plaintiff and defendants 1 (a) to 1 (c) and 2 to 5 have any interest or share in the property left by the deceased, if so, to what extent and in what proportions. (3) Whether the suit as framed is misconceived and merits dismissal. (4) What should be the decree." ' In 1968, ,tist. Shirinbai (defendant No, 5) had made an application on the original side of this Court for grant of a Succession Certificate in respect of the debts and securities belonging to her deceased sister, Mohtarma Fatima Jinnah, who had died in July, 1967. It seems Mst. Shirinbai had made averments in those proceedings that Mohtarma Fatima Jinnah, who was her full sister, was a Shia, and she had made no will. It appears that there was contest in this case. This contest was also related to the sectarian belief of Mohtarma Fatima Jinnah. Evidence had also been recorded in those proceedings, so that, since the issues in the suit related to the sectarian beliefs of Mohtarma Fatima Jinnah, an application was made under section 151, C. P. C. By the Advocate for the plaintiff in the suit that the depositions of ten witnesses recorded in the proceedings under the Succession Act may be taken on record. Such application was granted, by consent. The ten witnesses are "(1) Mr. M. A. H. Ispahani. (2) Syed Anis-ul-Hassan. (3) Maulana Muhammad Hussain Baray. (4) Mr. M. N. Kotwal. (5) Mr. G. A. Khan. (6) Mr. Muhammad Hanif Maniar. (7) Mr. Mirza Akhtar Hussain. (8) Maulana Ehtishamul Hag Thanvi. (9) Mr. Syed Sharifuddin Pirzada, and (10) Mr. Syed Inayat Ali." ' The evidence of these ten persons recorded in S. M. A. No, 11/1968 was, therefore, treated as evidence in the suit. In addition, some more witnesses were also examined during the suit, who are :- "(1) Mr. Muhammad Jafar. (2) Mr. Hussain. (3) MuftiSuhammad Shafi. (4) Haji Kaloo. (5) Fatima Bai. (6) Raja Maqbool Hussain. (7) Mr. Mirza Mahmood Beg. (8) Mr. M. N. Kotwal, and (9) Mr. Matloob-ul-Hassan Sayed." ' By a judgment, dated 23-12-1976, the suit filed by plaintiff Hussain was dismissed. This judgment has been recorded in PLD 1977 Kar. 320. ' In paragraphs 25 to 51 of the judgment of the learned Single Judge, the evidence of the witnesses has been summarised, and, in paragraph 52 of the same, the learned Single Judge, on the state of evidence, came to hold that the following facts had been established :
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"(1) That the deceased was born in Ismaili Khoja family ; (2) that she renounced Ismail faith ; (3) that she was never seen saying her prayers ; (4) that she never generally wore mourning clothes during Moharram ; (5) that she attended Shia Majlises whenever she was invited by friends; (6) that she did not observe usual Moharram ceremonies like visiting Alam or Imam Baca ; (7) that she never held Moharram Majlis herself ; (8) that on the death anniversary of Quaid-e-Azam she always called a Sunni Moulvi ; (9) that her funeral rites were performed according to Shia faith ; (10) that her renal prayers were held both according to the Shia as well as the Sunni manner ; (11) that she declared that she was neither a Shia nor a Sunni but only a Muslim." ' In the rest of the judgment, the learned Single Judge has discussed the evidence, and arrived at the conclusion that Mohtarma Fatima Jinnah was a Shia, so that the plaintiff could not inherit her property. Some reference was also made to the sectarian beliefs of the Quaid-e-Azam himself, and in paragraph 70 of the judgment, the learned Single Judge adverted to some statements made by Mohtarma Fatima Jinnah in relation to Succession Certificate pertaining to the debts and securities of Quaid-e-Azam, and stated as follows :- "70. In view of the above I have no doubt that the statements made by the deceased in the said petition made by her in regard to Succession Certificate relating to Quaid-e-Azam's securities, are admissible pieces of evidence. I have also no doubt that these statements have been legally proved. The fact that in spite of the categorical assertions made by the Quaid-e-Azam on various occasions in his lifetime, that he was a Muslim above sectarianism, the deceased chose to assert in her petition to this Court that he was governed by Shia law, irrespective of the validity of the assertion so far as the religious faith of the Quaid-e-Azam, has, in my reckoning, great probative force that on the same analogy, her own assertions of similar nature were not intended to displace the application of personal law of the sect in the matters governed by personal law. Her declaration therefore, that she was neither a Sunni nor a Shia but a pure Mussalman cannot be construed to mean that she intended to disown the application of the personal law of both schools of law. In this way, to my mind, this circumstance tends to neutralize the effect of the assertion of the deceased under consideration and leaves the matter to be considered on the basis of other circumstances. In some degree this circumstance tends to support the plea that the deceased regarded herself also to be governed by the Shia Law on a parity of reasoning vis-a-vis her assertions about the application of Shia Law to the succession of Quaid-e-Azam." ' On a consideration of the "cumulative effect of all the circumstances", the learned Single Judge held that the preponderance of evidence adduced at the trial leaned in favour of the conclusion that the deceased chose to be governed by the Shia Law, and not by the Sunni Law. It was in these circumstances that the suit had been dismissed. ' Having stated the points of controversy, it would be profitable to appraise the evidence that, was led by the parties during the trial. ' Mr. M. A. H. Ispahani was witness No, I for the plaintiff. He was in the diplomatic service of Pakistan, but he stated that, when he was aged seventeen, or, eighteen years, he came in contact with the Quaid-e-Azam. He stated that, one evening, he had conversation with respect to the sect to which Quaid-e-Azam belonged, and he was told that he had all along been Agha Khani Khoja. This, according to the witness, was a voluntary statement of Quaid-e-Azam. However, in the very next sentence, the witness stated that Quaid-e-Azam told him that he had decided to leave that sect for adoption of Asna Ashari faith. The witness went on to state that he attended the ceremonies on the death of Mohtarma Fatima Jinnah, who, according to the witness, was given her last bath according to the Shia rites, and the Nimaz-e-Jenaza was led by Maulana Ibne Hassan Jarchavi. He
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went on to state that she was buried after following the Shia rites. To a Court question, he replied that the Quaide-Azam, in his public speeches, always discouraged sectarian distinction, and, on all public occasions, avoided making reference to himself as belonging to one sect, or, another. He, however, stated, in the very next sentence, that it was correct that he called himself a Muslim, pure and simple, and as a result of that policy, he discouraged situations, which could be termed as Tabarrah, or, Madhe Sahaba. This witness, to another Court question, answered as follows :- "It is also correct that he offered his prayers in congregation of Muslims, irrespective of the sects of those congregations. He did this wherever he was, whether, in England or in India, or any other country." ' The witness went on to state that, whenever he met Quaid-e-Azam on occasions of political importance and urgency, he was not in a position to state that he ever manifested, either privately or in public, any indications, which could be ascribed to his sectarian faith. The next fact, which this witness stated, was that, on the death of Quaid-e-Azam, Mohtarma Fatima Jinnah had invited Syed Anis-ul-Hasnain Rizvi for giving the last bath, but, to that extent, he went on to state that he did not see it himself and was told so by many people. Such people have not been named. Curiously, thereafter, the same witness went on to state as follows : - "Miss Fatima Jinnah told me that the Quaid was buried according to the Shia rites. Miss Fatima Jinnah did not tell me all this, but I came to know this additional fact from many others that his Nimaz-e-Jenaza was read according to the Shia rites, and thereafter by the general congregation consisting of all sects of Muslims." ' This witness was cross-examined at some length, and he stated that he was a Shia by birth, although he never attended Majlis, because he thought that it was equally pious to stay at home and offer prayers. He also stated that he had never attended any congregation in a Shia mosque, or in an Imambara, either before partition or after partition, with Quaid-e-Azam. When he was asked, if the Quaid-e-Azam had ever become a Member, or, dorm:, or, advisor of a Shia institution, he replied in the negative. He admitted that two of the sisters of Quaid-e-Azam were married to Sunnis, and, in regard to Mohtarma Shirinbai Jinnah, he stated that she belonged to Asna Ashari sect. Since this witness had stated that Mohtarma Fatima Jinnah was buried in accordance with the Shia rites, he was asked if any relative of hers had objected, and he stated that no relative was present, and therefore there was no objection, so that he was free to do what he liked with the dead body. This witness went on to state that Matam was compulsory on Shias, but, in that context, he stated that Mohtarma Fatima Jinnah did not observe Muharram ; nor did she make any arrangement in her house during Muharram. He want on to state that the Quaid-e-Azam had always aimed at achieving unity of all the Muslims, and he could not have agreed to lend support to any particular sect. Almost at the close of his evidence, Mr. M. A. H. Ispahani accepted the suggestion that the Shia Political Conference in India had put up a candidate to oppose the Quaid- e-Azam, because the latter had declined to give any assurance to Shia community to safeguard and protect its separate rights. ' The next witness was Syed Anis-ul-Hasnain, a Shia Moulvi, who deposed in regard to the last Ghussal to the Quaid-e-Azam in accordance with Shia rites. He stated that he came and gave the last Ghussal to Quaid-e-Azam, and thereafter a Nimaz-e-Jenaza was held in the house, where there were only nine, or, ten persons, and thereafter, as is known to everyone, the Quaid-e-Azam was taken on a State carriage for burial, where lakhs of people had congregated. ' The next witness was Moulana Muhammad Hussain Baray. He stated that, in 1943 or 1945, he had seen Quaid-e-Azam attend the Jenaza prayer of a person in the Jamia Mosque of Bombay. This mosque, according to the witness, was a Sunni mosque, and prayer was led in a Sunni manner. He stated that he attended the residence of Mohtarma Fatima Jinnah for Fateha of Quaid-e-Azam every year, and Fateha used to be led by Moulana Ehtishamul Haq Thanvi in the Sunni form.
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' The next witness was Mr. N. M. Kotwal, an Advocate of this Court. He deposed that Mohtarma Fatima Jinnah had asked him to draft a will, and, for the purpose, some sketchy instructions were handed over to him, which he was unable to say were in the handwriting of Mohtarma Fatima Jinnah. To a question, he replied as follows :- "Question.-I assume that she told you that she was a Khoja, and she did not say whether she was a Shia or a Sunni ? Answer.-Yes, Sir. She never gave out that she was either a Shia or a Sunni Muslim." ' The other witness was Mr. G. A. Khan, who stated that he was the Private Secretary of Mohtarma Fatima Jinnah for about ten years. He went on to state that Mohtarma Fatima Jinnah was not associated, or connected with any religious, or, social organisation of Shia exclusively ; nor had she ever told him that she belonged to any sect of Islam, Shia or Sunni. He went on to state that often times some Shia organisacions used to address letters to Mohtarma Fatima Jinnah in connection with invitations by Shia organisations, and, whenever such letter was received, the Mohtarma would be annoyed and would say "what do these people think I am", and would direct the witness to put the letter away. The witness stated that Mohtarma Fatima Jinnah never observed Muharram as Shias do ; nor she ever wore black clothes, although on the first death anniversary of Quaid-e- Azam, and for a full year after the death of Quaid-e-Azam, she regularly wore black clothes. The witness stated that, thereafter, he had seen Mohtarma Fatima Jinnah wearing black clothes only once, or, twice on the death anniversary of Quaid-e-Azam. It was stated by the witness that, for Quaid-e-Azam's death anniversary, Sunni Moulvis used to be called by Mohtarma Fatima Jinnah, and she used to state so specifically, and used to give specific directions that Shia Moulvis should not be sent for. At the end of his evidence, he, stated that more persons of Sunni faith used to attend the death anniversary of Quaid-e-Azam, as compared to persons from Shia faith. ' The next witness was Muhammad Hanif Maniar, who stated that he and his father were the personal friends of Quaid-e-Azam in Bombay. This witness stated that the Quaid-e-Azam used to offer Eid prayers in Azad Maidan, and the prayers were in Sunni mode, viz. By folding hands. He deposed that he had never seen the Quaid-e-Azam, or, Mohtarma Fatima Jinnah wearing black clothes during Muharram days. He added that, when Quaid-e-Azam contested for Central Assembly seat in 1945, he was opposed by Mr. Lalji, who was a Shia, and was supported by Shia Political Conference. In that context, he stated that he had asked the. Quaid-e-Azam as to why were the Shias opposing him in the election, posing a question, whether Quaid-e-Azam himself was not a Shia, whereupon he replied, "I am not a Shia". The witness stated that, immediately after partition in 1947, he met Quaid-e-Azam at the Eid congregation held in Eidgah Maidan, and he saw Quaid-e-Azam offering prayers there. Such prayers were led by Moulana Shabbir Ahmad Usmani, who was a Sunni. In regard to Mohtarma Fatima Jinnah, he stated that he had never seen her wearing black clothes during Muharram, and attending any Shia ceremonies, or, Majlis, so that his impression was that she was a Sunni. In regard to Mohrarma Fatima Jinnah, the witness stated that, when Quaid-elAzam had said that he was not a Shia, Mohtarma Fatima Jinnah was also present. To a question in cross-examination, the witness did state that the Quaid-e-Azam, or, Mohtarma Fatima Jinnah never stated in public that they belonged to Sunni sect. The witness also went on to state that, on an occasion when Mohtarma Fatima Jinnah had been asked to call Moulana Ibne Hassan Jarchavi, a Shia Moulvi, she clearly stated, "I do not want a Shia Alim." ' The next witness was Mr. Mirza Akhtar Hussain an Advocate from Bombay, who practised ultimately in Karachi. This witness claimed to be a close associate of Quaid-e-Azam, and he states that he had worked under him in the political field, because he was also the Joint Secretary in the Provincial Muslim League and provincial parliamentary Board at Bombay. He stated tnat the Quaid-e-Azam always offered his Eid prayers in Azad Maidan, and that was of Sunni Muslims, apart from Imam being a Sunni. He stated that he saw him offering his prayers as the Sunnis do, and
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never saw Quaid-e-Azam offering prayers in the mode of Shias, and, in fact, he never saw Quaid- e-Azam going to a Shia mosque. The witness stated that Quaid-e-Azam used to discourage as being identified, or, classified as a Shia. The witness recounted that, in 1942, or 1943, a Vaiz meeting was arranged on the 10th of Muharram, and Quaid-e-Azam had declined to attend that meeting, in spite of being told that quite a few lakhs of Muslims would be attending. The witness stated that he had attended the Nimaz-e-Jenaza of Mohtarma Fatima Jinnah, and such Nimaz was in accordance with Sunni rites. He deposed that, in the 1945 elections to the Central Assembly. Mr. Lalji had opposed the Quaid-eAzam, and he had the support of all the Shia leaders from all over India. He repelled the suggestion that any Majlis was ever held by the Quaide-Azam, or, Mohtarma Fatima Jinnah during Muharram ; nor did they ever attend any Majlis. In regard to Mohtarma Fatima Jinnah, he went on to state that her conduct about ten years before her death had convinced the witness that she was following Sunni faith. He explained that Quraan Khawani used to be held and Moulana Muhammad Hussain Baray, who was a Sunni used to conduct the prayers according to Sunni rituals. ' The next witness was Maulana Ehtishamul Haq Thanvi, who stated that he was a Sunni Alim. He deposed that Quaid-e-Azam had joined the Eid prayers at the Eidgah Maidan in 1947, and such prayers were according to Sunni faith. This witness volunteered to make a statement that the Quaid-e-Azam had not associated himself with any particular sect, Shia or Sunni. He stated that Moulana Shabbir Ahmad Usmani had led the Jenaza prayers of Quaid-e-Azam. He went on to state that, on the death anniversary occasion of Quaid-e-Azarn; he never saw any ceremony of the Shia sect. ' The next witness was Syed Sharifuddin Pirzada, the present Attorney-General of Pakistan. He had been summoned as a witness by a party, but he stated that he would like to depose as an independent witness. He stated that he had worked as Honorary Secretary with the Quaid-e-Azam. This witness produced several documents to prove his association with the Quaid-e-Azam. The witness also stated that he had close and cordial connections with Mohtarma Fatima Jinnah, who used to consult him in her private legal affairs, and he had represented her as a lawyer in two suits. He went on to state as follows :- "On the basis of my association with the Quaid-e-Azam, and having gone through his public statements which I had collected from 1906 to 1948 and having perused most of his correspondence, including…
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