2/27/24, 12:02 PM P L D 1970 Karachi 450

P L D 1970 Karachi 450

Before Abdul Qadir Shaikh, J

SHIRIN BAI-Petitioner

Versus

MUHAMMAD ALI AND OTHERS-Respondents

Miscellaneous Application No. 11 of 1968, decided on 2nd March 1970.

Muhammadan Law-Will-No special form prescribed-Written document not

essential-Oral will valid-Intention of testator in respect of property (subject-matter of
will) must, however, be clear and ascertainable.

As to the form of a "Will", it is well-settled that a Muslim is not obliged to observe any
special formality in making his `Will', the Muhammadan Law not having prescribed
any form in this regard. The `Will' of a Muslim need not even be in writing; an oral
`Will' is perfectly valid ; but the intention with respect to the property which the
testator desires to be carried out after his death must, in whatever form they are
declared, be with sufficient clarity, so as to be capable of being ascertained. If the 'Will'
is in writing, it need not even be signed by the testator or attested by witnesses, because
the verse in the Holy Quran regarding witnesses is considered nearly as a
recommendation, and is not mandatory. However, in majority of cases, 'Wills' are, for
obvious reasons, in writing.

In the instant case the hand-written document purporting to have been written by the
testator consisted of a few notes indicating some amounts which the testator wanted to
be paid to certain persons after her death. The paper contained mutilations and over
writings and the document neither made the intention of the writer clear nor did it give
any clue as to what and how much money she wanted to give finally to the persons
concerned. The document, in circumstances, held, could not be treated as a valid will.

Baboo Beer Partab v. Maharajah Rajender Pertab (1867) 12 M I A 1 rel.

M. N. Kotwal for Petitioner.

Fakhruddin with Ahmedullah Farooqui and Sultan Ahmed for Respondents.

Date of hearing : 24th February 1970.

JUDGMENT

The petitioner Shirin Bai has prayed for the grant of Succes sion Certificate in respect
of the debts and securities belonging to her deceased sister, Mohterma Fatimah Jinnah
who died at Karachi on the 10th day of July 1967. According to her, the deceased died
as a 'Shia', without leaving a `Will', and being the only surviving full-sister, she is
entitled to the whole estate left by the deceased.

The petition is opposed by six persons, namely, Mohamedali G. Waljee, Hussain G.

Waljee, Jafferali G. Walji, Amirali G. Walji, Wazirali G. Walji and Ismail Jan
Muhammad, who claim half of the estate as the residuaries of the deceased. According
to them, the deceased till the time of death was a Sunni, and the petitioner as a
full-sister is entitled to only one-half of the estate, and the balance estate must devolve
upon them. At the later stage, it was further asserted that the deceased left a valid `Will'
and therefore the petition itself is incompetent in law. The documents purporting to be
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`Will' were sent for, and these are before me; the first question for determination,
therefore, is whether the deceased left a valid `Will'.

It may be stated that originally reference was made to 3 documents, Exhs. 12, 13 and
14, but at the final stage of the arguments it was conceded by the learned counsel for
the objectors, and rightly so, that the first two documents are only the draft Wills, and
neither of the two can be treated as a valid `Will', and the only relevant document in
this connection is Exh. 14, which is said to be in the handwriting of the deceased.
Although this document purports to be the notes made by the deceased in respect of
certain cash amounts, yet it was urged that these notes do constitute a valid 'Will',
under the Muhammadan Law.

As to the form of a `Will', it is well-settled that a Muslim is not obliged to observe any
special formality in making his 'Will', the Muhammadan Law not having prescribed
any form in this regard. The 'Will' of a Muslim need not even be in writing, an oral
'Will' is perfectly valid ; but the intention with respect to the property which the testator
desires to be carried out after his death must, in whatever form they are declared, be
with sufficient clarity, so as to be capable of being ascertained. If the A `Will' is in
writing, it need not even be signed by the testator or attested by witnesses, because the
verse in the Holy Quran regarding witnesses is considered nearly as a recommendation,
and is not mandatory. However, in majority of cases, 'Wills' are, for obvious reasons, in
writing, for as observed by their Lordships of the Privy Council as long as the 19th
December 1867, in the base of Baboo Beer Partab v. Maharajah Rajender Pertab
((1867) 12 M I A 1).

"He who rests his title on so uncertain a foundation as the spoken words of a
man, since deceased, is bound to allege, as well as to prove, with the utmost
precision, the words on which he relied, with every circumstance of time and
place."

It is with this background that I have examined the handwritten document, Exh. 14,
purported to have been written by Mohterma Fatima Jinnah. I find that all that can be
said about this document is that the deceased made a few notes of the sums of moneys
which she wanted to be paid to certain persons after her death, but it is clear that she
had not finally made up her mind in this regard. On the first page of Exh. 14, she wrote

Rs. Rs.
175 8,00,000
175 3,50,000
350 4,50,000

3,50,000 interest of 300 per month to

sisters after their death the
capital of 3,50,000 to be
divided equally between my
niece Sherbanoo, my grand
nieces Zaira Gulshan Rohina
and grand nephew Abbas
equally

1,00,000 to Khatoon-e-Pakistan Girls High School.

10,000 Dr. Cassum.
10,000 Dr. Alvi.
10,000 Col. Shah.
5,000 Gulam Ahmad
Secretary. 5,000 Jamiluddin
Ahmed.
1,00,000 Jinnah Hospital.
2/27/24, 12:02 PM P L D 1970 Karachi 450

She then appears to have changed her mind, and wrote on the next page as follows

Rs.
5,000 Jamiluddin.
5,000 G. Ahmed.
2,00,000 K. P. G. H. School
2,00,000 Jinnah College.
10,000 Peshawar
10,000 Dacca
1,00,000 Punjab.
20,000 T. B. Sanatorium."

The last page contains the following notes which show the change in her mind again

175 350 Income to sisters and after

175 their death, money to go
350 into the residue.

3 Nieces and grand nieces.

25,000 Kotwal
10,000 Dr. Alvi.
10,000 Dr. Cassim."

In respect of Dr. Alvi, she first wrote the figure 25,000, which is scored of and
re-written as 10,000. Similarly, there are mutilations in the sums written on the first as
well as second page. It is, therefore, obvious that Exh. 14 neither makes the & intention
of the writer clear, nor does it give any clue as to what and how such money she
wanted to give finally to the persons concerned.

In this connection, it would be relevant to state that Mr. M. N. Kotwal, Advocate, was
examined by me as a Court-witness, as he stated at the Bar that he had prepared the
two drafts of the Wills, Exhs. 12 and 13. According to him, Mohterma Fatima Jinnah
sent for him in about June 1961 and gave him sketchy instructions for preparing a draft
will. He stated that he accordingly prepared Exh. 12 and gave it to her, but
subsequently in the same month she called him again and gave him fresh instructions,
and he prepared another draft Will, Exh. 13. He stated that after the promulgation of
the West Pakistan Muslim Law (Shariat Application) Act V of 1962, he sent to
Mohterma Fatima Jinnah a written opinion as to how she was to make a Will, if she
chose to do so, because of the changes brought about by that enactment in this regard.
Although the two documents, Exhs. 12 and 13 bear no date, yet it is clear that these
were typed in June 1961. I have no reason to disbelieve Mr. M. N. Kotwal, Advocate;
in fact his testimony has not even been assailed in material particulars. It is, therefore,
clear that sometime in June 1961, Mohterma Fatima Jinnah desired to execute a Will,
and in this connection she got the two documents, Exhs. 12 and 13, prepared. It further
appears that during this period she made certain notes on the paper which is now Exh.
14 before me. She, however, never came to put on paper what she definitely wanted to
be done as to her estate after her death. I have, therefore, no hesitation in reaching the
conclusion that Exh. 14 is not, and cannot be treated as a valid Will.

The next question is whether the petitioner Shirinbai is entitled to the full share of the
estate left by her sister Mohterma Fatima Jinnah. In this connection the position of the
learned counsel for the parties at the final stage of the arguments was that in these
proceedings this question can neither be gone into nor can it be determined because of
2/27/24, 12:02 PM P L D 1970 Karachi 450

the specific provision in the Succession Act under section 387, which clearly lays
down that no decision on any question of right between the parties shall be held to bar
the trial of the same question in any suit or any other proceeding between the same
parties. The learned counsel for the objectors, therefore, stated that in view of this clear
position in law, the objectors will agitate their claims and titles to the estate left by
Mohterma Fatima Jinnah by way of a regular civil suit or other r legal proceedings as
advised.

I cannot part with this judgment without making certain observations in respect of a
serious controversy that arose in this case as to the secular faith of the Founder of our
Nation, the Quaid-e-Azam Muhammad Ali Jinnah. This controversy was wholly
unnecessary, in fact it was admitted so at the final stage of the arguments ; I only wish
this should have been realised earlier. However, since evidence on this question had
been led from all possible quarters, it would only be appropriate to record a finding
thereon, to place on record the faith of the Quaid-e-Azam, so that this unhappy
controversy must be put to an end, as far as possible.

The controversy arose because the petitioner Shirinbai wished to prove that her sister
Mohetrma Fatima Jinnah was a Shia, and she therefore was entitled to the whole of her
estate. To prove this, she produced Mr. M. A. H. Ispahani as her witness ; for reasons
best known to her, she chose not to examine herself as a. witness. M. A. H. Ispahani,
instead of speaking of the deceased Mohterma Fatima Jinnah straightaway talked about
the privilege of his association with the Quaid-e-Azam since the age of 17/18 years,
when he was an undergraduate at the Cambridge University. As to the sect of the
Quaid-e-Azam, this is what he said "I did not put any questions to him about his sect,
but her happened to volunteer, and state these facts to me. In 1890, the Quaid-e-Azam
returned from England after calling to the Bar, and after considering the question of
continuing to belong, to the Agha Khani Ismail sect, decided to leave it, and to adopt
the Asna Ashari faith. He informed me that he subsequently induced the other
members of his family to do the same."

As against this, several witnesses examined by the objectors stated that from their close
association with the Quaid-e-Aaam, they got the clear impression that he did not like to
be associated with any particular sect. Syed Sharifuddin, the Attorney -General of
Pakistan, who spoke of the close association with the Quaid-e-Azam as his Honorary
Secretary from 1941 to 1944, and whose evidence has gone unchallenged on record,
referred to certain personal conversation with the Quaid and also produced several
documents which clearly prove that the Quaid-e- Azam was free from any sectarian
strings. In the speech delivered at the concluding Session of the Punjab Muslim
Students' Federation Conference, Lahore on March 19, 1944, he is said to have
declared, amid cheers, that Islam did not recognize any kind of distinction of various
classification of castes, and the Prophet was able to level down all castes and create a
national unity among Arabs in Arabia. In this connec tion, extract from Volume II of
"Some Recent Speeches and writings of Mr. Jinnah", by Jamiluddin Ahmed, was
produced in which the Quaid-e-Azam is said to have added further :-

"Our bedrock and sheet-anchor is Islam. There is no question even of Shias and
Sunnis. We are one and we must move as one nation, and then alone we shall
be able to retain Pakistan. At the time of Census of Population in 1941,
Quaid-e-Azam is said to have issued instructions to the Muslims of the
Undivided India which appear at page 8 of "The Light" dated February 1, 1941.
The extract produced as Exh. 11/13 is to the following effect "I wish to
emphasise particularly the following question Question No. 3 : Race, Tribe or
Caste.-The answer by every Muslim should be that he is a Muslim."

In the month of January 1948, at the meeting held in the compound of this High Court
Building presided over by Mr. Justice Hasanally G. Agha, the Quaid-e-Azam made a
2/27/24, 12:02 PM P L D 1970 Karachi 450

speech and spoke of the unity of Muslims as one nation. An extract from the cutting
from the "DAWN" of 26th January 1948, Exh. 11/8 may be reproduced

The Quaid-e-Azam asked the Muslims to banish sectionalism from their ranks.
`I want the Muslims to get rid of the discease of provincialism,' he said. The
Quaid-e-Azam added that it was a `curse of the Muslims of the Indian
sub-continent' that they thought in terms of Sindhi, Punjabi, Pathan and Delhi
Muslims.

Really undesirable.-What was still worse was that some of the Muslims who
had embraced Islam still retained the legacy of the caste system in their social
fabric. By saying this he did not wish to hurt the sentiments of the non-Muslim
brethren, but only to point out the existence of un-Islamic ways among
Muslims.

He said that it was really undesirable that there should be community distinctions
among Muslims like Khojas, Bohras and Memons.

He went on to emphasize :-

A nation can never progress unless it marches in one formation. We are all
Muslims and all Pakistanis, and citizens of the State serve, sacrifice and die for
the State to make it a glorious and sovereign State in the world.

Syed Sharifuddin Pirzada stated that the Quaid-e-Azam personally told him of an
incident of the workers of the Muslim League at Meerut. He said that he was asked a
question whether he was a Shia or a Sunni, to which he put a cross question

"What was the Prophet?"

To this the questioner's reply was that he was neither, and the Quaid-e-Azam said that
his reply was that he followed the Prophet, and that he was a Mussalman.

Yet another incident narrated by Syed Sharifuddin Pirzada was that the Quaid-e-Azam
during the same conversation told him about a Hindu who had embraced Islam and
who on being asked as to what was he, replied that he was a Muslim. On again being
asked whether he was a Shia or a Sunni, the reply he gave was that he had given up
caste system and embraced Islam. The Quaid-e-Azam said of this convert that he was a
true Mussalman.

I may, however, mention that two affidavits, one of Mohterma Fatima Jinnah and the
other of Nawabzada Liaquat Ali Khan which were filed in this Court in connection
with Miscellaneous Application No: 54 of 1948 filed by Mohterma Fatima Jinnah for
the administration of the Quaid-e-Azam's property were produced on the file of this
case. In these affidavits the deponents stated that the Quaid-e-Azam was a Shia Khoja
Muslim. These statements are clearly inadmissible in law for the simple reason that the
deponents were not put to cross-examination, nor the faith of the Quaid-e-Azam was a
fact in issue in these proceedings. Moreover, no legal value can be attached to these
assertions in view of the clear provisions of section 387 of the Succession Act. I,
therefore, cannot attach any importance to these affidavits.

The clear position that emerges from the record before me is that the Quaid-e-Azam
was, as he always declared himself to be, a true Mussalman, free from any sectarian
feelings, senti ment and faith ; his ideal was the Holy Prophet ; and the Quran,
according to him, was a complete code of every aspect of life of a Mussalman. This
was, in the fitness of things and circumstances as it had to be in the role that the
Quaid-e-Azam was destined to play, and did in fact play, in the unchallenged position
that he acquired for himself as the leader of the Mussalmans of the undivided India,
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and in the fight for obtaining a separate and independent homeland for the Muslims of
this part of the world ; not only this, but in the subsequent events that took place, to the
marvel of the world leaders-the establishment of Pakistan as an independent State-the
very idea of which, at the time when conceived, was considered to be impossible for
achievement. This was possible, among other reasons, on account of the faith of the
Quaid-e-Azam that he was Mussalman first and the last, and that following the Holy
Prophet, he was neither a Sunni nor a Shia.

But this, as I have said earlier, does not affect the question of the grant of the
Succession Certificate. The admitted position before me is that the petitioner Shirinbai
is entitled to one-half of the estate left by her sister, Mohterma Fatima Jinnah, in case it
is held that the deceased left no Wilt. Since I have reached the conclusion that the
deceased left no Will, the controversy is confined to only one-half of the estate. It is
also the admitted position of the parties that in case Mohterma Fatima Jinnah is held to
be a Sunni, the disputed half of the estate must devolve upon the six objectors. It would
be of interest to point out here that had Mohterma Fatima Jinnah executed either of the
documents, Exhs. 12 or 13, or if Exh. 14 were to be treated as a valid Will, and any of
these documents could be legally enforce able, her sister, the petitioner Shirinbai,
would not have got anything beyond Rs. 150 per month for her lifetime, but in the
absence of a valid Will, I cannot deprive anyone what the Mohammadan Law
commands to be given. The position in law clearly is that even if the petitioner is held
to be entitled to one -half of the estate of her sister, the Succession Certificate can be
granted to her for the whole estate if the claims of the other persons entitled to the
estate are sufficiently safeguarded. In fact, section 375 of the Succession Act provides
for such a situation. I would, therefore, like to safeguard the rights that the six objectors
may have to the estate left by Mohterma Fatima Jinnah. In the circumstances, I direct
issue of the Succession Certificate to the petitioner in respect of the properties shown
in the amended Schedule "A", on the condition that she furnishes a bond with one or
more sureties to the extent of the 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. Until she has done so, she will be entitled to
receive the sum of Rs. 3,000 (three thousand) only, per month, according to the interim
orders passed already in the case. In case, however, any amount is payable to the
Government or any other authority as Income-tax, estate duty, Municipal taxes, etc.,
the petitioner will be authorised to collect the same from the outstanding balance to the
credit of Account No. 2335 of Mohterma Fatima Jinnah with the Foreign Exchange
Branch of the Habib Bank Limited, Karachi.

A. E./S. A. H. Orders accordingly.

2/27/24, 12:02 PM P L D 1970 Karachi 450

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