P L D 1972 Supreme Court 84
Present : Hamoodur Rahman, C. J., Muhammad Yaqub
Ali, Sajjad Ahmad and Salahuddin Ahmed, JJ
Civil Appeal No. K-89 of 1964
Mir BALUCH KHAN AND OTHERS–Appellants
versus
Mst. LAL BIBI AND OTHERS-Respondents
Civil Appeal No. K-90 of 1964
Mir BALUCH KHAN AND OTHERS-Appellants
versus
Mir IBRAHIM KHAN AND OTHE its -Respondents
Civil Appeal No. K-91 of 1964
Mir BALUCH KHAN AND OTHERS–Appellants
versus
Mir SHAHBAZ KHAN AND OTHERS-Respondents
Civil Appeals Nos. K-89, K-90 and K-91 of 1964, decided on 15th December 1971.
(On appeal from the judgment and decree of the High Court of West Pakistan, Quetta Circuit, dated the 2nd November 1961, in Second Appeals Nos. 8 and 10 of 1960).
Riaz Hashmi, Advocate Supreme Court instructed by Ali Akbar, Advocate-on-Record for Appellants (in all the Appeals).
S. M. Sadiq, Advocate Supreme Court instructed by G. A. Memon, Advocate-on-Record (Absent) for Respondents 1-7 (in C. As. Nos. K-89 and K-90 of 1964).
A.H.Peerzada, Advocate Supreme Court instructed by M. I. Memon, Advocate-on-Record (Absent) for Respondent No. 1 (in C. A. No. 91 and Respondents Nos. 8 to 10 in C. As. Nos. 89 and 90 of 1964).
I.H.Rahimtullah, Advocate Supreme Court instructed by Mujahid Hussain, Advocate-on-Record for Respondents Nos. 11-23.
Dates of hearing : 30th, 31st August, 1st and 2nd September 1971.
JUDGMENT
MUHAMMAD YAQUB ALI, J.-These appeals arise out of several Civil Suits filed by the respondents for possession by partition of their shares fn the movable and immovable properties left by their ancestors Sardar Mir Nauroz Khan and his son Sardar Mir Yaqub Khan, the erstwhile Rulers of the defunct State of Kharan. In the suits filed up to the end of 1958 Nawab Mir Habibullah Khan, the last Ruler of Kharan, was impleaded as the sole defendant. He put in appearance only in three suits and confessed judgment in favour of the plaintiffs. In the other suits he was served, but did not put in appearance. Ex parte proceedings were eventually taken against him.
In the remaining suits filed after the demise of Nawab Mir Habibullah Khan, his nineteen sons and daughters and a widow were impleaded as defendants. Of these heirs Mir Baluch Khan, Mir Ali Ahmad Khan, Mir Muhammad Tahir Khan, Mir Ghaus Bakhsh Khan and their sisters Bibi Mahal, Bibi Rahm Bibi and their mother Bibi Gulatoon alone contested the suits. It was maintained by them that the properties claimed in the suits belonged to Nawab Mir Habibullah Khan and the plaintiffs had no shares in them.
The other sons and daughters of Nawab Mir Habibullah Khan including Nawab Mir Gaulam Mustafa Khan Nausherwani did not controvert the plaintiffs’ claim. In one of the suits they made a joint statement acknowledging the plaintiffs’ claim for distribution of the suit properties, but maintained that so long as they were under the management of a Receiver appointed by the Government, the question of dividing them did not arise.
The suits were in the first instance dismissed by the Qazi of Kharan on the grounds : (i) that enough particulars of the properties claimed by the plaintiffs were not furnished ; (ii) that in Shariat ex parte decrees could not be passed against absentee defendants ; and (iii) that the plaints were not properly stamped.
On appeals filed by the plaintiffs the Majlis-i-Shura set aside the orders passed by the Qazi and directed him to give a fresh opportunity to the plaintiffs to file particulars of the properties left by Sardar Mir Nauroz Khan and Sardar Mir Muhammad Yaqub Khan and to pay the court-fee stamp. It was further held that ex parte proceedings could take place against absentee defendants as provided in the Dasturul Amal Diwani (Kalat) which governed trial of the civil suits.
In the second round the Qazi decreed all the suits with regard to immovable properties. The claim for movable properties was rejected as their particulars were not sufficiently given by the plaintiffs. Further the properties gifted in their lifetime by Sardar Mir Nauroz Khan and Sardar Mir Yaqub Khan to their relatives were excluded from the decrees as they were no longer available for distribution among the parties.
Aggrieved by the decrees passed by the Qazi, Mir Baluch Khan and others filed appeals before the Majlis-i-Shura which were allowed and the suits again remanded to the Qazi for trial on the finding that there was not enough material on the record to sustain the decrees. The plaintiffs thereupon filed second appeals being Second Civil Appeals Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11, 14 of 1960 and 17 of 1959 in the High Court of West Pakistan Quetta Seat, under section 24 of Dasturul Amal Diwani impleading all the nineteen sons and daughters of Nawab Mir Habibullah Khan and one of his widows as respondents.
During the pendency of the appeals Nawab Mir Mustafa Khan Nausherwani, the eldest son, was recognized by the Government of Pakistan as the Ruler of the Kharan State. He thereupon resisted the appeals on the ground that under section 87-A read with section 86, C. P. C. no suit lay against him without the previous permission, in writing, of the Govern ment of Pakistan.
A Division Bench of the High Court overruled the objection to the competence of the appeals, and on merits found enough material on the record of the various suits to sustain the decrees passed in them by the Qazi. Reference was made to the Instrument of Settlement executed by Nawab Azad Khan on 1-1-1884 and the statements of the parties recorded by the Qazi in various suits.
The appeals were accordingly allowed on the 2nd November 1961, and the remand orders passed by the Majlis-i-Shura were set aside.
Mir Baluch Khan and his aforementioned three brothers and two sisters applied for leave to appeal in only three of the suits brought by Mst. Lal Bibi, Mir, Ibrahim Khan, and Mir Shahbaz Khan, respectively. As properties involved in the suits were of very high value and a number of intricate questions of law including questions of interpretation of constitutional instruments were involved, leave to appeal was granted on 29-5-1962.
Nawab Mir Mustafa Khan Nausherwani on his part applied to the High Court for certificate of fitness to appeal to this Court under Order XLV, rule 3, C. P. C., in four of the suits filed by Bibi Aiysha Bibi, Bibi Mah Bibi, Bibi Rabia and Bibi Naz Jan, respectively. Later on, he abandoned those proceedings and under the order of the Court was joined as co-appellant with Mir Baluch Khan and others in these appeals.
Before we advert to the questions falling for decision in these appeals, it may be briefly stated that the Kharan State acceded to Pakistan in 1948. In 1952 it became a Member of the Baluchistan States Union which was ruled by a Council of Rulers headed by the Khan-i-Azam of Kalat. The Union merged in the Province of West Pakistan on the 14th October 1955. Under the Covenant of Merger, the Titles ; personal privileges; and private properties of the Rulers of the Merged States were assured to them. It was further provided that the private properties of the Rulers and the State properties will be separated by the Government of Pakistan and that on the demise of a Ruler the devolution of his personal estate amongst his heirs will also be determined by the Government of Pakistan. A Presidential Order was later on promulgated to Implement this clause of the Code.
Nawab Azad Khan, the de facto Ruler of Kalat State was the common ancestor of the parties. He had three sons Nawab Mir Nauroz Khan, Sardar Amir Khan and Sardar Azeem Khan. The parties to the present dispute are the descendants of Sardar Mir Nauraz Khan. Their relationship inter se is shown in the pedigree-table incorporated in the judgment of the High Court.
On the 1st of January 1884, Nawab Azad Khan executed a Settlement Deed which was witnessed among others by the then Agent to the Governor-General whereby he distributed all his immovable properties among his three sons in equal shares. On the death of Nawab Azad Khan, Sardar Mir Nauroz Khan succeeded him as the Ruler of Kharan. In turn, he was succeeded by his eldest son Sardar Mir Yaqub Khan who was, two and a half years latter, killed by his uncle Sardar Mir Amir Khan. The case was tried by the Shahi Jirga which convicted Sardar Amir Khan and awarded all his immovable properties as blood money to the heirs of the deceased. On the death of Sardar Yaqub Khan, his eldest son Mir Habibullah Khan, succeeded him as the Ruler of Kharan State. He was formally recognised by the British Government in the year 1940. All the movable and immovable properties left by Sardar Mir Nauroz Khan and Sardar Mir Yaqub Khan including the share of Sardar Mir Amir Khan were taken into possession by Nawab Mix Habibullah Khan, ‘the respondents thereupon filed many as twelve suits against him and his legal representatives for possession by partition of their share in the joint properties according to Shariat. The history and particulars of these suits are set out in a chart prepared by the counsel for the appellants which appears at pages 87-97 in the Supplementary Paper Book.
On behalf of Nawab Mir Ghulam Mustafa Khan Nausher wani, Mr. Riaz Hashmi contended that the suits filed by the respondents against Nawab Mir Habibullah Khan and his successor Nawab Mir Mustafa Khan Nausherwani ‘ were not competent in law for the reasons : firstly that in general law a Ruler cannot be sued in a municipal Court within his own domain ; secondly that under the Interim Constitution of the Baluchistan States Union, no legal process could issue to any of the Rulers of the Merged States which privilege was assured to them by the Government of Pakistan in the Covenant of Merger of 1955 under which the Baluchistan Stares Union was incorporated in the Province of West Pakistan ; and thirdly that section 87-A read with section 86, C. P. C. which had taken effect from the 14th October 1953, previous consent, in writing, of the Central Government was necessary to sue a Ruler of any merged State. The word “sued” used in sec tion 86(1) was said to include both the institution of a suit and continuation of a suit which had been filed earlier. The appeals filed by the respondents in the High Court were also claimed to be hit by the bar contained in section 86(1).
The first two grounds can be disposed of shortly. Before Kharan State was merged in the Baluchistan States Union in 1952 there were no written laws in the State. Shariat was the only rule of law in all disputes civil and criminal in nature. Shariat does not embrace the concept of the British common law that a sovereign can do no wrong and cannot be sued in a municipal Court in his own domain. On the contrary in Shariat a sovereign can be sued in the Court of a Qazi and like any other citizen is subject to his jurisdiction and bound to carry out any decree or order passed against him by the Qazi. No statement of law to the contrary was cited by Mr. Riaz Hashmi.
As to the personal privileges of the Rulers assured by the Covenant of Merger of 1955, we find that after the creation of the Baluchistan States Union in 1952 Dasturul Amal Diwani governed the trial of civil suits throughout the States of Kalat, Lasbella, Makran and Kharan. There was no provision in the DASTUR under which a Ruler could not be sued in a municipal Court within the Union. Nor was any such privilege conferred on the Rulers by the Covenant of Merger of 1952. None of the Rulers of the Merged States of Baluchistan States Union, was, therefore, immune from being sued in the Court of the Qazi. Mr. Riaz Hashmi relied on section 86 of the Interim Constitution of the Baluchistan States Union which provided;
“No proceedings whatsoever shall lie in, and no process whatsoever shall issue from, any Court in the Union against the Council of Ruler, or its members or against the consorts of Heir-apparents of its members whether In a personal capacity or otherwise . . . . . “
The Interim Constitution, however, did not take effect because the Central Government had not given approval to it which was a pre-condition for its enforcement. This fact is borne out by letter No. F. 18/SI/Sec. VII/70 from Mr. S. Wasiq Shah, Section Officer, Government of Pakistan, Ministry of Home & Kashmir Affairs and States & Frontier Regions to Mst. Lal Bibi, daughter of Nawab Nauroz Khan which is reproduced below;
“Islamabad, the 16th March 1970.
Subject : Baluchistan States Union Interim Constitution Act, 1952.
Respected Madam,
I am directed to refer to your letter dated the 23rd January 1970, addressed to the Secretary, Ministry of Home & Kashmir Affairs and States & Frontier Regions (States & Frontier Regions Division) on tile above subject and to state that the Baluchistan States Union (Interim Constitution) Act, 1952, was not finalized and is, therefore, not a legally complete document.
Yours truly, (Sd. )
S. Wasiq Shah, PCS., Section Officer.”
The first two grounds raised by Mr. Riaz Hashmi to non-suit the plaintiff-respondents do not therefore, hold good.
Elaborate arguments were addressed by the learned counsel for the parties on the third ground. It was argued by Mr. Riaz Hashmi that under section 87-A which made section 86, C. P. C. applicable to Rulers of merged and acceding States no suit could be filed or continued against his heir Nawab Mir Ghulam Mustafa Khan Nausherwani without the consent, in writing, of the Central Government. Stress was laid on the fact that the Code of Civil Procedure (Amendment) Ordinance XXII of 1960, which had added section 87-A though promulgat ed on the 16th June 1960, was given retrospective effect from 14th October 1955, the date on which the Baluchistan States Union was merged in the Province of West Pakistan. Sec tion 87-A reads as under;
“87-A.-(1) In this section—
(a) ‘Merged State’ means a State which being Immediately before the fourteenth day of October 1955, an Acceding State, was on that day incorporated into the Province of West Pakistan ; and
(b) ‘Ruler of an Acceding State or of a Merged State’ means the person who for the time being is recognized by the President as the Ruler of an Acceding State, or who imme diately before the fourteenth day of October 1955, was the duly recognized Ruler of an Acceding State.
(2) The provisions of sections 85 and 86 shall apply In relation to the Ruler of an Acceding State, or of a Merged State as they apply in relation to the Ruler of a foreign State.”
Under section 86(1): Any Ruler of a foreign State, and any ambassador or envoy of a foreign State, may, with the consent of the Central Government, certified by the signature of a Secretary to that Government, but not without such consent, be sued in any competent Court. Subsection (2) deals with the procedure for grant of consent while subsection (3) provides that no such Ruler, ambassador or envoy shall be arrested under this Code, and, except with the consent of the Central Government, certified as aforesaid. no decree shall be executed against the property of any such Ruler, ambassador or envoy.
This issue was disposed of by the High Court on the short ground that the State of Kharan having merged in the Baluchistan States Union lost its separate entity and its erstwhile Ruler was not the Ruler of a Merged State within the ambit of section 87-A, C. P. C. The question involved was of political nature and since the: High Court gave its decision the Govern ment of Pakistan has declared that Nawab Mir Ghulam Mustafa Khan Nausherwani is the recognized Ruler of the Merged State of Kharan in accordance: with Article V of the Merger Agree ment of January 1955. The ground on which the High Court judgment rests on this point has thus disappeared.
This, however, is not the end of the matter. Our analysis of the Central Laws (Statute Reform) Ordinance XXI of 1960 has revealed that section 87-A, C. P. C. did not apply to the suits as well as the second appeals filed by the respondents before the promulgation of the Ordinance on the 9th June 1960. Sec tion 3 of the Ordinance provides as under ;
“3. (1) Save’ as otherwise expressly provided in any Central Act or Ordinance, the Central Acts and Ordinances specified in the Second Schedule shall extend to the whole of Pakistan, and shall be amended in the manner indicated in the fourth column thereof, and shall be deemed to have been so extended and amended on the fourteenth day of October 1955.
(2) Nothing in subsection (1) shall be deemed to extend, or ever to have had the effect of extending the operation of, any Central Act or Ordinance so extended or amended, to—-
(a) any scheduled District to which, immediately before the fourteenth day of October 1955, such Act or Ordinance did not extend, or is not otherwise extended-or applied there after ; or
(b) any of the Special Areas to which, immediately before the fourteenth day of October 1955, such Act or Ordinance did not extend, or is not otherwise extended or applied there after or
(c) any Acceding State, not being an Acceding State incorporated, on and from the fourteenth day of October 1955, into the Province of West Pakistan, whose Instrument of Accession does not authorize, nor is deemed to authorise, the Federal Legislature to make for that State such law as is contained in any such Act or Ordinance ;
nor shall the extension of any Central Act or Ordinance by this Ordinance be deemed to have or ever to have had the effect or retrospectively creating any offence, or of retrospec tively enhancing the punishment for any offence provided in any law for the time being in force.”
The effect of section 3 is that among other laws the Dasturul Amal Diwani which governed the trial of civil suits in the territories of the former Baluchistan States Union was repealed with effect from the 14th October 1955, and replaced by the Code of Civil Procedure. As the laws included in the Second Schedule were applied to Merged States and Acceding States with retrospective effect it was imperative to save the validity of the action already taken and to secure the rights and liabilities already accrued and suffered. The next succeeding section accord ingly provided as under ;
“4. (1) Subject always to the provisions of sub-section (2) of section 3, where the operation of any Central Act or Ordinance has teen extended by an amendment indicated in the Second Schedule to any area which before the fourteenth day of October 1955, formed part of the territories of an Acceding State, any law in force in that area before that date and corresponding to the provisions of such Act or Ordinance shall stand repealed, and shall be deemed to have been re enacted by such Act or Ordinance, as amended by this Ordinance as if such law were a Central Act, and the provisions of the General Clauses Act, 1897 (X of 1897), shall apply accordingly.
(2) Notwithstanding the provisions of subsection (1), any thing done, action taken, right accrued, or liability, penalty, forfeiture or punishment incurred, under any such law as aforesaid during the period commencing on the fourteenth day of October 1955, and ending with the commencement of this Ordinance, shall be deemed to have been validly done, taken, accrued or incurred, as the case may be, and the Central Act or Ordinance by which such law is deemed to have been re-enacted shall, to that extent, be deemed not to have come into force during the said period in the area to which such law applied immediately before the commencement of this Ordinance.”
The suits filed under the Dasturul Amal Diwani which stood repealed were in the first instance protected by section 6 of the General Clauses Act which provides;
“6. Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enact ment hitherto made or hereafter to be made, then, unless a different (intention appears, the repeal shall not—–
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder ; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed ; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed ; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid ;
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.”
The provisions of section 6 were not considered as compre hensive enough to meet the situation created by retrospective extension of the laws mentioned in the Second Schedule to Ordinance XXI of 1960. Subsection (2) of section 4, therefore, further provided that during the period commencing on the 14th day of October 1955, and ending with the commencement of the Ordinance i.e. 9th June 1960, any action taken . . . . shall be deemed to have been validly taken and the re-enacted laws which includes the Civil Procedure Code shall be deemed not to have come into force during this period. It follows that the suits and appeals filed by the respondents between 14th October 1955, and 9th June 1960, were governed by the provisions of Dasturul Amal Diwani and not the provisions of the Civil Procedure Code. Section 87-A which was added to the Code on the 16th June 1960, by the Code of Civil Procedure (Amendment) Ordinance XXII of 1960, did not, accordingly, come to apply to suits and appeals filed by the respondents before that date. This disposes of completely the principal ground raised in the appeals on behalf of Nawab Mir Ghulam Mustafa Khan Nausherwani.
Mr. Niaz Hashmi relied on the decision of the Supreme Court of India in Mohanlal v. Sawai Man Singhji (A I R 1962 S C 73) for the proposition that the word “sued” in section 87-A, C. P. C. includes not only the institution of a suit against a Ruler of a Merged State or an Acceding State, but also to the continuation of a suit which had been filed before the 14th October 1955. He further argued that as an appeal is only the continuation of a suit applied the bar contained in section 87-A read with section 86, C. P. C. equally to the Second Appeals filed by the respondents in the High Court from the judgment and remand orders passed by the Majlis-i-Shura.
The view expressed by the learned Judges has commended to us, but the second contention that the word “sued” in section 86 includes an appeal does not necessarily hold good. 61 We are, however, not called upon to express any considered opinion on either point as in our view section 87-A did not apply to the suits and appeals filed by the respondents against Nawab Mir Habibullah Khan and his legal heirs before the 9thl June 1960.
Coming to the merits we find that the dispute, if any, related to the identity of the properties in the hands of Nawab Mir Habibullah Khan and his legal heirs which the plaintiffs claimed had devolved from Nawab Mir Nauroz Khan and his son Sardar Mir Yaqub Khan. The relationship of the parties as indicated in the pedigree table reproduced in the High Court judgment was not disputed. It was also conceded that succession to the estates of Nawab Mir Nauroz Khan and Sardar Mir Yaqub Khan was governed by Shariat. In the suits filed by Bibi Lai Bibi and Bibi Rahm Bibi, the Qazi had allocated the following shares to the heirs of Sardar Mir Nauroz Khan and Sardar Mir Yaqub Khan Estate of Sardar Mir Nauroz Khan;
Sardar Mir Yaqub Khan (son) … 2/9
Mehrab Khan (son) … 2/9
Bibi Lal Bibi (daughter) … 1/9
Shah Bibi (daughter) … 1/9
Aisha Bibi (daughter) … 1/9
Jannat Khatcon (daughter) … 1/9
Murad Bibi (daughter) … 1/9
Estate of Sardar Mir Yaqub Khan
Nawab Mir Habibullah Khan (son) … 2/12
Mir Shahbaz Khan (son) … 2/12
Dura Khan (son) … 2/12
Bibi Rabia Bibi (daughter) … 1/12
Bibi Mah Bibi (daughter) … 1/12
Bibi Nur Bibi (daughter) … 1/12
Zulekha Bibi (daughter) … 1/12
Bibi Naz Jan (daughter) … 1/12
Bibi Lal Bibi (daughter) … 1/12
Their shares were worked out according to Shariat and their correctness was not denied.
In support of the identity of the properties left by Sardar Mir Nauroz Khan and Sardar Mir Yaqub Khan, the plaintiffs relied on the Settlement Deed executed by Nawab Azad Khan on 1st January 1884, in favour of his sons Sardar Mir Nauroz Khan, Mir Muhammad Azeem Khan and Mir Amir Khan, to which reference has been made earlier. An English Translation of the Deed appears at pages 64-66 of the Paper Book. Amongst others the Deed is witnessed by the then Agent to the Governor; General and its authenticity is beyond dispute. In the pening paragraph it is recited;
“Sardar Mir Azad Khan Nausherwani has divided among his sons, namely, Sardar Mir Nauroz Khan, Mir Muhammad Azeem Khan and Mir Amir Khan all his landed property, cultivable and uncultivable in his possession in equal shares as under”
Then follows the description of the properties allocated to each of the three sons who thereby came to possess and hold separately these properties as absolute owners. The list of the properties in the suit filed by the plaintiffs tallies verbatim with the properties allocated to Sardar Mir Nauroz Khan and Sardar Mir Amir Khan whose share also fell to the heirs of Sardar Mir Yaqub Khan.
Mir Baluch Khan and others did not lead evidence to indicate that any one of the properties claimed in the suits by the heirs of Sardar Mir Nauroz Khan and Sardar Mir Yaqub Khan was the personal property of Nawab Mir Habibullah` Khan or that it had not devolved from the said ancestor of the parties. On the contrary it is in evidence that Nawab Mir Habibullah Khan used to give cash allowances and grain to all the members of his family out of the income of the joint estate. In three of the suits he confessed judgment in favour of the plaintiffs.
In one of the suits Nawab Mir Ghulam Mustafa Khan Nausherwani appearing before the Qazi of Kharan on the 20th February 1959, made the following statement;
“It is submitted that I heard and know the subject-matter of the above case. There is no doubt that I am elder son of the late Nawab Sahib. I have already agreed that I have no objection if the rightful person gets the right according to the decision of Shariat. For the time being, my property is under the superintendence of the Court of Wards. Therefore I am not competent to give decision about the property, as it is not in my possession. It is, therefore, improper to call me for an explanation in the matter. It is now left at the discretion of the Government to take any action.”
The above statement was acknowledged as correct by his brothers Nawabzada Mir Sher Ali Khan, Mir Ghulam Farooq Khan. Mir Abdul Ghias, Mir Ghulam Dastgir Khan, Mir Muhammad Azam Khan, and his sisters Bibi Bek, Bibi Murad Bibi, Bibi Sabar Gul, Bibi Khan Bibi, and Bibi Ganj Bibi.
We further find that during the pendency of the suits Nawab Mir Habibullah Khan wrote letters to all the plaintiffs offering to give them lands, cash and date trees in satisfaction of their claims. One of the letters dated 24th December 1957, written to Mir Muhammad Ibrahim Khan, plaintiff-respondent, appears at page 140 of the typed Paper Book. It reads;
“To
Mir Muhammad Ibrahim Khan, Sarfraz Khan and brothers sons of Mir Mehrab Khan.
This has been considered and decided by me that I should present you the following articles, as has been given to the other heirs of Sardar Mir Nauroz Khan and Mir Mehrab Khan. It will be highly appreciated if your representatives receive the under-mentioned articles from my representative. The details of the articles are as under;
(i) 2200 maunds (Kharani) of wheat seed ; 1100 maunds at Jhallawan and the remaining 1100 at Sarkharan. And if the above-mentioned wheat seed do not satisfy the requirements then the remaining requirements be met from Bazgir Murad Khan.
(ii) Rs. 1,000 as aid.
(iii) 100 plants of different colours to be supplied at Washak.
Sincerely yours
(Sd.) Sardar Mir Habibullah Khan,
Nawab of Kharan, 24-11-1957.”
The English translation of the letter is rather loose. In Persian the word “Tukhum” means both seed and grain. In Item No. (i) “wheat seed” means `wheat grain’. Similarly, the sentence “wheat seed do not satisfy the requirements then the remaining requirements may be met from Bazgir Murad Khan” means that if the total quantity of 2200 maunds of wheat grains be not available from the lands at Jhallawan and Sarkharan, then the balance will be given out of the produce from the area known as Bazgir Murad Khan.
A similar letter written to Bibi Lai Bibi at page 63 of the Paper Book reads
“To
Mst. Bibi Lal Bibi.
This has been decided by me that I should present you the following as I have given to your other brothers and sisters ; the due share in the property. I hope that you will appoint your representative to receive the same from my representative. The details of the articles are as under
(1) The total wheat seed amounting to 1100 Kharani Maunds being wheat production from Tarati Sir Kharan 500 maunds and the rest 600 Kharani maunds obtained from Jhallawan from Kalagan Rind Mir Dad Rahim Bazgar.
(2) An amount of Rs. 500 as aid to you.
(3) 50 Nakhal Washak in different colours shall be given from different places.
All is O. K.
(Sd.) In Urdu
Nawab Sahib Bahadur, Kharan,
12-2-1959.”
Mr. Riaz Hashmi contended that the offer by Nawab Mir Habibullah Khan was confined to wheat grains and fruit of date trees, but did not include the land on which the date trees stood or on which the wheat was grown. The argument is ill-founded, but it is unnecessary to pursue it as the offer made was not accepted by the plaintiffs. These letters only serve the purpose that Nawab Mir Habibullah Khan Nausherwani did not in his lifetime deny the plaintiffs’ claim that they were co-sharers in the immovable properties in his possession. Besides the documentary evidence, mentioned above, some of the plaintiffs appeared in the witness-box Including Bibi Lai BIN, Mir Muhammad Ibrahim Khan and Mst. Bibi, widow of Mehrab Khan Nausherwani and supported their claim in the suits.
It has been mentioned above, that Nawab Mir Habibullah Khan did not put in appearance in any one of the suits to contest the plaintiffs’ claim. Out of his nineteen sons and daughters Mir Mohammad Tahir Khan, Mir Baluch Khan, Mir Ali Ahmad Khan, Mir Ghaus Bakhsh Khan, Mst. Bibi Lai Mahal, and Mst. Bibi Rehm Bibi alone contested the suits and filed appeals from the decrees passed by the Qazi before the Majlis-i-Shura. On the 14th of April 1959, Mir Mohammad Tahir Khan appearing as their Attorney before the Qazi made the following statement :—
“Statement of the defendants Mir Baluch Khan, Mir Ali Ahmad Khan, Mir Ghaus Bakhsh, Mst. Bibl Lai Mahal, Mst. Bibi Rehm Bibi, through special attorney Mohd. Tahir Khan son of late Mir Habibullah Khan is that there is no other property left by Nawab Mir Habibullah Khan except the property under dispute. At present the property is under dispute among the heirs of Mir Habibullah Khan and the said property is placed in the Mianjikhana nowadays. Until and unless the said property left by Mir Habibullah Khan is properly distributed among the heirs and the shares are ascertained therein we are not prepared to make any statement.
Dated : 14-4-1959.
Deponent
Mir Mohammad Tahir Khan son of late Mir Habib ullah Khan, Special Attorney of the above-mentioned defendants.”
It thus transpires that on the demise of Nawab Mir Habibullah Khan, a dispute arose between his sons and daughters for distribution of the properties left by him. One group was headed by Mir Mohammad Tahir Khan and the other by Nawab Mir Ghulam Mustafa Khan Nausherawani. In connection with this dispute the properties were entrusted to a Receiver under the order of the Government of Pakistan. While Nawab Mir Ghulam Mustafa Khan Nausherwani and his ten other brothers and sisters admitted the plaintiffs’ claim, Mir Mohammad Tabir Khan and others did not specifically deny that the properties claimed in the suits had devolved from Nawab Mir Nauroz Khan and Sardar Mir Yaqub Khan or that the plaintiffs did not have any share in them.
In the light of what has been said above there was enough material on the record to fix the identity of the properties left by Sardar Mir Nauroz Khan and Sardar Mir Yaqub Khan and to determine the parties’ shares in them. The decrees passed by the Qazi were accordingly well founded and the High Court was right in setting aside the remand orders passed by the Majlis-i. Shura.
Mr. Rehmatullah appearing for Mir Baluch Khan and others raised three-fold contentions in support of the appeals. Firstly that the suits filed by the plaintiffs were barred by time ; secondly that under the President’s Acceding State (Property) Order XII of 1961, the Government of Pakistan was alone competent to determine the distribution of the estate of Nawab Mir Habibullah Khan who was the recognized Ruler of the Merged State of Kharan ; and thirdly that under subsection (3) of section 96 the decrees passed by the Qazi before section 87-A was added to the Code of Civil Procedure could not be executed as provided in subsection (3) of section 86.
The first ground has no foundation and was only half-hearted ly raised by the learned counsel. The Limitation Act did not apply to the State of Kharan up to the 9th of June 1960. Under) the Central Laws (Statute Reform) Ordinance, 1960, its applica tion was extended to the acceding States with effect from 14th October 1955, but the suits which had been filed earlier were saved under subsection (2) of section 4 of the Ordinance to which reference has been made earlier. In Shariat there is no bar o limitation to the institution of a suit or other legal action for enforcement of a right in property or in personam.
Article 3 of the President’s Acceding State (Property) Order XII of 1961, provided that where any question arises directly or indirectly between persons claiming to be the heirs and suc cessors of the Ruler of a State or claiming to succeed to the State, concerning the devolution and distribution of any property of that State or of the Ruler, the question shall be decided by an order of the Central Government. Article 4 lays down whether any disposition of property, whether purporting to be the property of the State or of the Ruler, has been made in due exercise of power to make it or ought for any reason to be undone shall be deemed to be a question falling under Article 3. Article 7 lays down that no Court shall have jurisdiction to entertain any such question as is referred to in Article 3 and no Court shall call in question any order of the Central Government made under that Article.
Article 3 of the President’s Acceding State (Property) Order XII of 1961 has no application to the present suits as their subject-matter is the estates of Sardar Mir Nauroz Khan and Sardar Mir Yaqub Khan. Neither was the Ruler of an acceding State to attract the application of Article 3. Nawab Mir Habibullah Khan was the first recognized Ruler of Kharan. He was the Ruler of an Acceding State as well as the Ruler of a Merged State. A dispute among his heirs and successors concerning the devolution and distribution of his estate is, therefore, within the competence of the Central Government and no Court has the jurisdiction to entertain any such question. The dispute relating to the estates of Sardar Mir Nauroz Khan and Sardar Mir Yaqub Khan, how ever, could by no stretch of imagination be brought within the ambit of Article 3.
Our attention was drawn by Mr. Sadiq, learned counsel for the respondents, to the letter written by the Government of Pakistan on 16th March 1970, declining to enter upon the dispute between the parties to these appeals on the ground that this Court was already seized of the dispute. The decision taken by the Government is quite apt both for the reason that this Court was seized with the subject-matter of the dispute in these appeals and that the President’s Order XII of 1961 has no application to the dispute before us.
The third ground is based on the provisions of subsection (3) of section 86 which are to the effect :-
“(3) No such Ruler, ambassador or envoy shall be arrested under this Code, and except with the consent of the Central Government, certified as aforesaid, no decree shall be executed against the property of any such Ruler, ambassador or envoy.”
The word “Ruler” was added in subsection (3) by the Code of Civil Procedure (Amendment) Ordinance XXII of 1960. We do not see how the bar contained in this subsection is attracted. It provides that no decree shall be executed against the property of any such Ruler. For example, if a creditor obtains a money decree he cannot attach the property of the judgment-debtor if he be a Ruler without first obtaining consent of the Central Govern ment. But it does not follow that if a Ruler is found to be in wrongful possession of the property of another person the decree passed for recovery of possession by a competent Court against the Ruler cannot be executed. The protection extends to that property which is found to be the property of the Ruler and not otherwise. It has been found in the present suits that Nawab Mir Habibullah Khan and his legal heirs owned only a fraction in the estates left by Nawab Mir Nauroz Khan and Sardar Mir Yaqub Khan and decrees were passed in their favour for possession by partition of their respective shares. The execution of these decrees will not, therefore, be against the property of a Ruler of a Merged State to attract the bar contained in subsection (3) of section 86, C. P. C.
Lastly it was urged that one of the widows of Nawab Mir Habibullah Khan was not joined as a defendant in the suit. The objection was taken for the first time in this Court and is of no legal consequence. No part of the estate of Nawab Mir Nauroz Khan or Sardar Mir Yaqub Khan is alleged to be in her possession. She would have been a necessary party if the estate of her husband was in dispute between the parties. That, however, is not the case. In the present suits, the shares of the plaintiffs alone will be separated by partition while the rest of the estate of Nawab Mir Habibullah Khan will remain intact. Under the President’s Acceding State (Property) Order XII of 1961, the devolution of this part of the joint estate will be determined by the Central Government and the civil Courts have no jurisdiction to deal with it. The absence of one of the widows of Nawab Mir Habibullah Khan from the list of the defendants did not, therefore, affect the competence of the suits filed by the respondents for the distribution of the estates of Nawab Mir Nauroz Khan and Sardar Mir Yaqub Khan.
In the result we dismiss the appeals and maintain the decrees passed by the Qazi In favour of the respondents for possession by partition of their shares in the estates of Nawab Mir Nauroz Khan and Sardar Mir Yaqub Khan.
In view of the near relationship of the parties they are left to bear their own costs throughout.
K. S. A. Appeals dismissed.
