GHULAM ALI Versus HASHUM ALIAS HUSSAINI

This order will dispose of the following applications:‑

(a) C.M.A. No. 5 891/84 filed in Suit No. 316/77 under Order I, rule 10, .P.C. by Intervenors Kasim Fida Hussain, Dr. Razia and Mst. Mariam, legal heirs of Fida Hussain son of Dr. Haji, seeking joinder as defendants in the suit;

(b) C.M.A. No. 3498/85 filed by plaintiff. Ghulam Ali in Suit No. 7 under her XL, rule 1 read with section 151, C.P.C.;

](c) C.M.A. No. 926/84 filed by plaintiffs Kasim Fida Hussain, Dr. Razia and Mst. Mariam in Suit No. 160/84 under Order XXXIX, rules 1 and 2 read with section 151, C.P.C.;

(d) C.M.A. No. 927/84 filed by plaintiffs Kasim Fida Hussain, Dr. Razia and fist. Mariam in Suit No. 160/84 under Order XL, rule 1 read with section 151, C.P.C. in Suit No. 160/84.

The three Intervenors in Suit No. 316/77 are also the plaintiffs in Suit No. 160/84. Kassim Hamir, the ancestor, and his descendants are Shia Asna Asheri Khojas.

Suito No. 316/77 was originally filed by Ghulam All son of Ghulam Hussain Kassim against Hashu alias Hussani and Mrs. Zainab Bai widow of Fida Hussain Moosaji. During the pendency of this suit, an application (C.M.A. No. 3523/77) Was filed by the plaintiff for joinder of certain other legal heirs of Fida Hussain Moosaji which was allowed by order, dated 25‑1‑1978, and as such, 'apart, from Hashu and Mrs. Zainab Bai, Muneera wife of Ali Asghar, Durayya wife of Ali Asghar, Shabbir son of Mulls Saifuddin and Jumana daughter of Mulls Saifuddin were impleaded as defendants Nos. 2(a), 2(b), 2(c) and 2(d) respectively. Suit No. 316/77 has been filed for partition, accounts and recovery of taxes in respect of the following properties:‑

(i) Plot of land with buildings standing thereon bearing old numbers 2, 3 and 11 Sheet A‑12, new survey No. 47, Survey Sheet GK. 3, Rampart Rao, Machi Miani Quarters, now Ghulam Hussain Kassim Quarters, Karachi measuring 322 square yards;

(ii) Plot of land with 'buildings standing thereon bearing old survey No. 32 Sheet, A‑27, new survey No. 107, survey N.P.‑14, Napier Quarters, Karachi measuring 130 square yards; and

(iii) Plot of land with building standing thereon bearing old survey Nos. 14 and 15 Sheet No. A‑11, new survey No. GK‑4/48, Machi Miani Quarters, now Ghulam Hussain Kassim Quarters, Karachi measuring 104 square yards.

In Suit No. 160/84 filed by Kassim Fida Hussain and others for declaration, partition, possession and cancellation also the same three properties are involved.

2. The aforesaid three properties which are involved in the two suits were the subject‑matter of a will, dated 17‑2‑1903 made by one Kassim Hamir (hereinafter referred to as "the ancestor"). By his will he bequeathed certain properties to his son Ghulam Hussain. Amongst his legal heirs, there was one daughter Mariam Bai who was married to his nephew Suleman. In respect of the first two properties mentioned hereinabove, tht; ancestor made a bequest to his daughter Mariam Bai and husband Suleman for the use and enjoyment of rents for their support and maintenance and a further direction was given in the will that on the death of either of them, the use and enjoyment of rents of the said properties shall belong;

(a) to the survivors of them or his or her male descendants jointly, and

(b) on the death of both (of them) to their sons and their male descendants jointly.

It was further provided in his will by the ancestor that if at; any time after the death of Suleman and Mariam Bai, no son or male descendant of theirs be found to exist, these properties. shall go absolutely to his son Ghulam Hussain and his heirs and legal representatives. In the will there was also a restriction against alienation of the aforesaid properties by the legatees.

3. In 1904, Mariam Bai daughter of the ancestor died. Then in 1907 the ancestor died. In 1937 Suleman also died and according to the terms of the will, dated 17‑2‑1903 of the ancestor, the enjoyment of the rents of the properties devolved on Juma and Hashu, sons of Mariam Bai and Suleman. Juma and Hashu mortgaged the property number (ii) mentioned hereinabove in favour of Mercantile Co‑operative Bank Limited in 1940. The said property was purchased by Fida Hussain Moosaji in execution of the decree passed by the Bank. Ghulam Hussain, father of Ghulam Ali, plaintiff in Suit No. 316/77, filed a civil Suit No. 74140 against. Hashu, Juma and Fida Hussain Moosaji, predecessor‑in‑interest of defendants Nos. 2 to 2(d) in Suit No. 316/77, in the then Chief Court, of Sind for possession and mesne profits of the first two properties mentioned hereinabove. The suit was dismissed but then First Appeal No. 18/49 was filed and by judgment, dated 22‑10‑1958 of a Bench of the erstwhile High Court of West Pakistan (Karachi Bench) it was held that late Juma and Hashu were entitled to a life estate and the properties on the demise of each of them revert to Ghulam Hussain and his descendants and that the mortgage was limited to life estate only. It was further observed in the judgment, dated 22‑10‑1958 as follows:‑

"We are further of opinion that the will when it extends the benefits of the demised estate beyond the sons of Suleman, is within ambit of section 114 of the Succession Act. The will is invalid with respect to the enjoyment of properties by their male descendants. In relation, .to them it violates the rule of perpetuity."

4. Ghulam Hussain Kassim had filed another Suit No. 461/44 later on renumbered as Suit No. 845/59 against Juma and Hashu for possession and mesne profits. During the pendency of that suit in the Court of I Sub‑Judge First Class, Karachi, Ghulam Hussain Kassim died and his son Ghulam Ali (plaintiff in Suit No. 316/77) became the plaintiff and two other sons and one daughter of Ghulam Hussain Kassim, namely, Ali Dina, Dr. Haji and Shireen Bai, were impleaded as defendants Nos. 3, 4 and 5 in Suit No. 845/59. On being joined as defendants in Suit No. 845/59, Ali Dina and Dr. Haji filed their written statements and disputed Ghulam Ali's claim that he was the only heir and legal representative of deceased Ghulam Hussain Kassim, and also claimed to be the heirs and legal representatives of the deceased. They challenged the will and also took up the stand that Ghulam Ali alone would not be entitled to the property absolutely and all the legal heirs of Ghulam Hussain would inherit. In view of these pleadings, the following two additional issues were framed by the Sub‑Judge First Class, Karachi in Suit No. 845/59:‑

(1) Whether the will of Kassim Hamir is valid?

(2) Whether the defendants Nos. 3 to 5 (Ali Dina, Dr. Haji and Shireen Bai) are heirs and legal representatives of Ghulam Hussain Kassim?

By judgment, dated 26‑11‑1960, the learned First Sub‑Judge, First Class, Karachi, dismissed Suit No. 845/59 holding that the plaintiff Ghulam Ali could not disturb the possession and enjoyment of Juma and Hashu in respect of the suit property during their life time and that, the property shall revert to the plaintiffs only after their deaths. On the additional issues, the learned Sub‑Judge decided that the plea of the defendants that the will of Kassim was invalid was untenable, and on additional issue No. 2, he observed that defendants Nos. 3 to 5 in that suit were the sons and daughter of Ghulam Hussain Kassim but in view of the will of Ghulam Hussain Kassim, according to which Ghulam Hussain had bequeathed the suit property to his son ,Ghulam Ali exclusively, defendants Nos. 3 to 5 had nothing to do with the suit property and Ghulam Ali alone was ultimately and absolutely entitled to the same.

It may he observed here that the aforesaid two snits had been filed by Ghulam Hussain against Hashu and Juma claiming the possess of the suit property on the ground that Juma and Hashu had violates the restriction placed in the will, dated 17‑2‑1903 of the ancestor about alienation of the suit property. The High Court as well as the Sub‑Judge decided that during the life times of Juma and Hashu the bequest; were valid and only after their deaths the property would revert to Ghulam Hussain. .

5. Juma, one of the two life estate holders, died on 19‑8‑1961, Ghulam Ali son of Ghulam Hussain filed Suit No. 316/77 claiming partitioner of the said properties with separate possession of I share in each them which, according to Ghulam Ali, reverted to him on the death Juma under the aforesaid judgments. He also claimed accounts. Hasht has also now died at Karachi on 22‑1‑1984 and according to Mr. Iqbal Kazi, plaintiff Ghulam Ali in Suit No. 316/77 is now entitled to the entire suit property as the remaining J portion of the said property also reverts to him in terms of the said two judgments.

6. In Suit No. 316/77, C.M',A. No.5891/84 has been filed by Kassin Fida Hussain, Dr. Razia and B:st. Mariam, who are the children/widow of Fida Hussain who was the son of Dr. Haji son of Ghulam Hussain. As observed earlier, these three Intervenors, who want to be joined defendants in Suit, No. 316/77, are also the plaintiffs in Suit No.160/84. Kassim Fida Hussain and others rely upon the provisions the West Pakistan Muslim Personal Law (Shariat) Act, 1962 and the proposition advanced by Mr. J.H. Rahimtoola, their learned counsel, that on termination of the last valid life estate created by will, dated 17‑2‑1903 of the ancestor (i.e. on the death of Hashu, on 22‑1‑1984) further operation of the said will, dated 17‑2‑1903 ceased and the properties in suit devolve upon all the legal heirs of the ancestor as if he had died intestate. According to Mr. J. H. Rahimtoola, Ghulam Ali son of Ghulam Hussain plaintiff in Suit No. 316/77, therefore, cannot become the sole and exclusive owner of the suit properties and all the other legal heirs of the ancestor inherit the properties according to Muslim Personal Law of inheritance and these include all the parties to Suit No. 160/84 except defendant No. 12, the widow of Fida Hussain Moosaji, purchaser of one of the suit properties in execution.

I have heard Mr. Iqbal Kazi, learned counsel for Ghulam Ali son of Ghulam Hussain and Mr. J.H. Rahimtoola, learned counsel for Kassim Fida Hussain, Dr. Razia and Mst. Mariam. Mr. Muhammad Zaki Ahmed, Advocate for Hashu, and, after his death, his legal heirs, was present during the arguments but did not address the Court.

7. Mr. J.H. Rahimtoola, learned counsel appearing for Kassim Fida Hussain and others, contended that the Intervenors have 1/3 share in all the three properties in suit: He based his submission on the provisions of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 and the main reliance was placed on the following judgments:

(i.) Muhammad Ishaque v. Federation of Pakistan P L D 1981 FSC 278.

(ii) Federation of Pakistan v. Muhammad Ishaque P L D 1983 S C 273.

(iii) Zafar Khan v. Roshan Jan P L D 1984 S C 394.

According to Mr. J.H. Rahimtoola, the last life estate was that of Hashu and he died, on 22‑1‑1984. It was submitted that at the time when the Act of 1962 came into force this was the life estate which was in operation and in view of sections Nos. 2, 4 and 5 of the Act of 1962, further operation of the will, dated 17‑2‑1903 cases and inheritance opened again on the death of the last life estate owner, namely Hashu, on 22‑1‑1984, and the property then devolved upon the legal heirs of the ancestor Kassim Hartnr as if he died intestate. According to Mr. J.H. Rahimtoola, section 5 of the Act 1962 comes into operation on the death of Hashu, on 22‑1‑1984. It was submitted that the three Intervenors accordingly have 15/45 i.c. 1/3 share in the suit property and they are necessary parties to the present suit.

As regards the two judgments of the High Court of West Pakistan Karachi Bench and Sub‑Judge First Class Karachi referred to above are concerned, it was argued that these do not make the transactions as past and closed and in so far as any observation or dictum that was made in the two judgments about the property reverting to Ghulam Hussain and thereafter Ghulam Ali, this reversion was to take effect after the death of the last life estate owner and before the death of the last life estate owner, West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, came into operation and the inheritance will now open according to the provisions of that Act.

8. Mr. Iqbal Kazi has opposed the application made by Kassim Fida Hussain and others to be impleaded as defendants in Suit No. 316/77 on the ground that these 3 intervenors have no right, or interest whatsoever in the suit property which belongs exclusively to plaintiff Ghulam Ali son of Ghulam Hussain. Learned counsel relied upon the aforementioned two judgments of the High Court of West Pakistan, Karachi Bench and Sub‑Judge First Class, Karachi. Mr. Iqbal Kazi made the following submissions:‑

(i) Before 31‑12‑1962, which is the date of coming into force of the West Pakistan Muslim Personal Law (Shariat) Act, 1962, rights of the plaintiff Ghulam Ali son of Ghulam Hussain stood crystallized by the aforesaid two final judgments and accordingly, on 31‑12‑1962 there was no will in operation. The contention was that before the coming into operation of the West Pakistan Muslim Personal Law (Shariat) Application Act., 1962, the said judgments/decrees had‑ already been passed and had become final and as such plaintiff Ghulam Ali son of Ghulam Hussain became the sole owner, to the exclusion of other legal heirs of Ghulam Hussain, on the basis of the aforesaid judgments and not on the basis of any will in operation, on 31‑12‑1962. According to learned counsel, the will, dated 17‑2‑1903 had merged in the judgments and rights of plaintiff Ghulam Ali flow from the judgments.

(ii) The decisions of the two Courts namely the High Court of West Pakistan, Karachi Bench and Sub‑Judge First Class, Karachi became final prior to the enactment and coming into force of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. According to learned counsel, these became past and closed transactions and even if sections 4 and 5 of the Act of 1961 may have retrospective operation, the provisions of 1962 Act cannot be deemed to affect judgments and decrees of Courts unless there is a , specific provision in the statute to that effect which admittedly is not to be found in the Act of 1962.

(iii) The two judgments are judgments in rem affecting status of the property in suit.

(iv) Suit No. 160/84 and the attempt made by Kassim Fida Hussain and others to become parties to Suit No. 316/77 are hit, by the principles of res judicata. It was contended by Mr. Iqbal Kazi, learned counsel for Ghulam Ali, Ghulam Hussain, that Kassim Fida Hussain and others are claiming through Dr. Haji son of Ghulam Hussain Kassim, their grandfather, who was a party tp both the suits and no appeals were filed by Dr. Haji and as such the decision in the two suits, which are binding on Dr. Haji are also binding on Kassim Fida Hussain and others who claim their rights in the suit property through Dr. Haji.

(v) The final submission was that at the time when West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 was enacted and came into force, on 31‑12‑1962, only one of the life estates created by the will, dated 17‑2‑1903 remained in the field and was in operation and that was the life estate of Hashu, who died much later in 1984, and the other legatee, namely, Juma had already died on 19‑8‑1961 and further life estates created by the will, dated 17‑2‑1903 were void on account of the rule against perpetuity contained in section 114 of the Succession Act, 1925, as was held by the judgment, dated 22‑10‑1958 of the erstwhile High Court of West Pakistan, Karachi Bench) in First Appeal No. 18/49. It was submitted by the learned counsel for Ghulam Ali, Ghulam Hussain that section 4 of the 1962 Act refers to wills providing for more than one legatee succeeding to the testator's property one after the other being in operation at the commencement of the Act, 1962 and as at the time the 1962 Act came into operation, on 31‑12‑1962, there was only one life estate, which remained, section 4 of the Act, would not be applicable. According to the learned counsel, therefore, the Act 1962 in any case has no application.

The following judgments were cited by Mr. Iqbal Kazi, learned counsel for plaintiff Ghulamali Ghulam Hussain, in support of his submissions that the three intervenors have no right/interest in the suit property and as such they are neither necessary nor proper parties to the present suit:‑

(i) Rashid Rayon Mills v. Amin Yousuf Nizami P L D 1978 Kar. 82.

In this case respondent's suit for recovery of damages for personal injuries suffered by him in an accident due to the negligence of the appellant's managing director was decreed in the sum of Rs.29,200. The appellants filed a Letters Patent Appeal, and, during the pendency of the appeal, the respondent died and his real heirs were brought on record. The submission made on behalf of the appellant company that the appeal had abated under Order XXII, rule 1,‑ C.P.C. upon the death of the respondent pending appeal on the ground that the right to sue did not survive, the cause of action being personal to the respondent, was rejected by the L.P.A. Bench. It was held that a decree creates a judgment debt and enures for the benefit of the estate of decree‑holder. The L. P. A . Bench agreed with the proposition of law advanced on behalf of the respondents that after a decree has been passed, the cause of action changes into a matter of record and merges in the decree.

(ii) Commissioner of Sales Tax v. Krudd Sons Lid. r L U 1919 and 180.

In this judgment reference was made to a passage at page 580 of "Statutory Construction" by Crawford, 1940 Edition, which reads as follows: ‑

"While pending litigation may be exempted from the operation of curative statutes, in many instances it is not. But, in either case, however, a number of problems arise. Moreover, there is also considerable confusion in the decisions pertaining to their solutions. For instance, where pending litigation is not exempt, some Courts have held that the curative act will apply even after the case has been appealed, and others that it will not apply to any case wherein judgment, has been rendered in the lower Court. Perhaps the best rule in that a final judgment cannot be affected. Or stated conversely, until the judgment is final, it is subject to the power, of the Legislature to enact curative‑legislation. "

(iii) Ghulam Sarwar v. Imtiaz Nazir P L D 1966 S C 559.

In this case, the minority judgment was authorised by Kaikaus, J. and Mr. Iqbal Kazi, referred to the observations made at pages 586 and 587 in the judgment of Kaikaus, J.

(iv) Sher Muhammad v. Rajada P L D 1981 S C 591.

Reliance was placed on the observations in this judgment to the effect that it is in conformity with the rule of interpretation that where past and closed transactions are sought to be affected retrospectively, the effect is restricted to the express language and scheme of the Act and is not carried a step further.

(v) Ghulam Hyder Shah v. The Chief Land Commissioner 1983 CLC 1585.

It was observed in this judgment of a Division Bench of this Court that the competency of the Legislature to enact laws retrospectively and to provide that they will also affect the vested rights and transactions, which are past and closed, cannot be doubted but in order to produce that effect the statute must be expressed in a language which is capable of only one meaning. It was observed that If the language of the statute is capable of being interpreted in two ways, one preserving the vested rights and obligations and the other impairing them, then the Courts will adopt the construction which preserved the vested rights and lean against the construction which impaired the vested rights and affected transactions which are past and closed.

(vi) S.M. Ilahi v. West Pakistan Government 1971 S C M R 708.

The Supreme Court of Pakistan, while considering the powers of the Government to revise rate of cotton fee every year under section 30 of the West Pakistan Cotton (Control) Act, 1949, observed that the Government was not entitled to. revise such rate with retrospective effect in respect of past and closed transaction.

(vii) Ahmed Ali Khan v. Muhammad Raza Khan 1977 S C M R 12.

It was held in this case that a subsequent change in law cannot affect past and closed transactions.

(viii) Shahul Hamid v. Tahir 1980 S C M R 596.

While dealing with the plea of res judicata, it was observed by the Supreme Court of Pakistan that the principle of res judicata laid down in section 11, C.P.C. is mandatory and as such a party to a former suit decided by a Court of competent, jurisdiction can avoid this provision only by taking recourse to section 44 of the Evidence Act on the ground of fraud or coercion or by saying that the previous judgment was a nullity or non‑existence in the eye of law and that in the absence of any such thing a party cannot be estopped from pleading a law as contained in section 11, C.P.C. on the well‑known principle that there can be no estoppel against statute and neither any Court of law nor any agreement can estopped a party to plead law which has inalienable right under Article 4(1) of the Constitution.

(ix) Allah Wasaya v. Sardar Shah P L D 1984 Lah. 59.

It was held in this case by a learned Single Judge of the Lahore High Court that a Court while deciding an application for grant of temporary injunction could proceed to reject a plaint of a suit if the same discloses no cause of action. This judgment was cited by Mr. Iqbal Kazi for the proposition that if this Court comes to the conclusion that Kassim Fida Hussain and others have no right, in the properties the Court can rejected the plaint in Suit No. 160/84.

(x) Burmah Eastern Limited v. Employees Union P L D 1967 Dacca 190.

It was held in this judgment that even in a case where suit is not prohibited by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court .has inherent jurisdiction to reject the plaint and, therefore, Order VII, rule 11, C.P.C. is not exhaustive.

Mr. Iqbal Kazi also referred to the provisions of the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972. Section 2(2) of the said Ordinance reads as follows:‑

"All decrees, judgments or orders passed in any suit, appeal, or other proceedings by any Court or other authority which are inconsistent with the provisions of subsection (1) shall be of no legal effect and such suits, appeals or other proceedings shall be decided afresh on the application of any person affected by such decree, judgment or order."

This provision was referred by Mr. Iqbal Kazi, learned counsel for plaintiff Ghulamali Ghulam Hussain, for the submission that the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, has no such provision, and if the intention had been to affect decisions already given that is given prior to 31‑12‑1962, a specific provision to that effect would have been made in the 1962 Act.

Learned counsel also referred to the Black's Dictionary for explaining the terms "judgment‑in‑rem" and "judgment‑in‑personem".

9. In reply, Mr. J.H. Rahimtoola, learned counsel for the intervenors, reiterated his submissions made on the basis of the provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. It was further argued that the two judgments of the High Court of West Pakistan, Karachi Bench and the Sub‑Judge First Class Karachi are not judgments in rem. It was submitted that the first judgment of the High Court of West Pakistan, Karachi Bench is not res judicata, as there was no issue on the point as to whether plaintiff Ghulam Ali Ghulam Hussain was the only legal heir entitled to inherit the property of Ghulam Hussain. According to Mr. J.H. Rehimtoola, there was no decision against the applicants Kassim Fida Hussain and others or their predecessor‑in‑interest in the judgment, dated 22‑10‑1985. As regards the second judgment i.e. of Sub‑Judge First Class, Karachi, it was submitted by Mr. J. H . Rahimtoola that the suit filed by Ghulam Hussain in which Ghulam Ali got substituted as plaintiff after the death of Ghulam Hussain, had been dismissed and the decree that had been prepared in that suit does not say anything as regards the right of intervenors Kassim Fida Hussain and others. It was argued that decree can be the basis for an objection that the suit is bad on account of res judicata, and not the judgment. Learned counsel cited the following judgments in support of this proposition:‑

‑(a) Sanaullah v. Ghulam Qadir P L D 1958 Pesh. 213.

It was held in this case that decision on a point which was not necessary for giving relief to the plaintiff does not operate as res judicata and that the finding of the Court which was not incorporated in the decree is not res judicata.

(b) Muhammad Anwar v. Chief Settlement and Rehabilitation Commissioner P L D 1975 Lah. 1463.

It was held in this case by a learned Single Judge of Lahore High Court that if the party, against whom an issue had been decided, could have gone into an appeal and did not do so, then it would be estopped to challenge the decision on that issue, but if on the other hand, it could not have gone in an appeal for the reason that the final. judgment was in its favour then, the decision on that issue would not operate as res judicata.

It was further argued by Mr. J.H. Rahimtoola in reply that the questions that he was raising were pure questions of law and, therefore, the plea of res judicata could not be raised. Learned counsel cited the following judgments in support of this provision:‑

(i) Nalik Chandra Shah v. Dudu Mia A I R 1925 Cal. 1193.

It was observed in this judgment that cases must be decided upon law as it stands when the judgment is pronounced and not upon the law at the date of a previous suit and if the said law has been altered in the meantime and the effect of the law has been differently interpreted by judicial decision or altered by the statute, the decision on a particular question of law in an earlier suit would not operate as res judicata with regard to the same question in a subsequent suit.

(ii) Salik Ram v. Subaidar Singh A I R 1948 Oudh 270.

It was observed in this judgment that every case must lie decided on the law that prevails at the time of decision and not according to the law at another previous time and that any decision in a previous suit on a particular question between particular parties will not operate as res judicata on the same question between the same parties when a different law is in force. , ,

(iii)Taliaman v. Mohammad Din A I R 1930 Lah. 904.

It was held in this case that where as decision proceeds on certain view of law and that view is found to be erroneous, it cannot have the force of res judicata in a subsequent proceedings for a different relief on the principle that decision cannot alter law of the land.

(iv) Lal Din v. Sardar Bibi P L D 1959 Lah. 616.

In this judgment, Kaikaus, J. observed:‑

"I am quite prepared to accept and I would lay down myself that on a pure question of law, apart from the right which was in dispute in a particular suit, there can be no res judicata, but it does not follow that rights in respect of particular property which is in dispute in a particular case can be reagitated on the ground that the decision proceeds on a wrong view of law. Suppose a suit is filed for inheritance on the death of a particular person between the sister and a distant collateral and it is held that the sister is entitled to the whole of the property in accordance with the Muslim Law even in the presence of that collateral. If the question of inheritance arises again in respect of the death of another person, the pure question of law as to whether the sister is entitled to succeed to the whole property in the presence of a collateral will not be res judicata but this is something entirely different from saying that even in respect of the property which was the subject‑matter of the first, litigation a question can ever be raised that the sister was entitled not. to the whole of it but to a part. So far as a particular cause of action is concerned, reagitation of the right in respect of it is closed for ever as between the parties by the decision of the suit which is based on that cause of action."

10. As observed earlier, Mr. J.H. Rahimtoola, Advocate relied upon the provisions of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962. If the provisions of the said Act are applicable to the instant case, the intervenors, namely Kassim Fida Hussain and other, apparently will have interest in the properties in question and as such will be necessary parties to Suit No.316/77. Apart from the question of application of the 1962 Act, one of the other main questions for consideration here is whether the aforesaid two judgments of the High Court of West Pakistan, Karachi Bench and the Sub‑Judge First Class, Karachi come in the way of the intervenors as res judicata. As has been seen, both these judgments had been passed prior to 31‑12‑1962, which is the date of coming into operation of the 1962 Act. It has been argued by Mr. Iqbal Kazi, Advocate, who had opposed the application made by Kassim Fida Hussain and others to be joined as defendants in Suit No.316/77, that the rights of plaintiff Ghulam Ali son of Ghulam Hussain stood crystallized by the aforesaid two final judgment. It had been argued that the will dated 17‑2‑1903 of the ancestor had merged in the two judgments and the rights of plaintiff Ghulam Ali flow from the said judgment. According to Mr. Iqbal Kazi, after the aforesaid judgments, it is not the will but the two judgments, which confer rights on plaintiff Ghulam Ali son of Ghulam Hussain.

First Appeal No.18/49 decided by the Appellate Bench of the High Court of West Pakistan, Karachi Bench, arose out of the judgment given by the learned Chief Judge of the Sind Chief Court in a suit, which was brought by Ghulam Hussain, father of plaintiff Ghulam Ali, for possession and means profits of the properties in question on the ground that the allenations made by Juma and Hashu in favour of the other parties were in contravention of the terms of the will and as such the properties were to revert to Ghulam Hussain as his absolute estate. In the suit, the decision of the learned Chief Judge was that the bequest in favour of Suleman, Maryam and their sons and male descendants was of absolute estate and the alienations made by Juma and Hashu in favour of the third parties were valid and binding and the suit was dismissed. In the appeal filed by Ghulam Hussain, the Appellate Bench of the erstwhile High Court of West Pakistan, Karachi Bench, however, held that the bequest in favour of the legatees was not that of absolute estate of but only life estate in all the properties in suit and that the properties had ultimately to revert to Ghulam Hussain and his male descendants. It was further held that the mortgages created by Juma and Hashu were the mortgages created by them in respect of their limited interests in suit properties and the said mortgages would continue to subsist for the life time of their creators. It was further held that since under section 114 of the Succession Act the bequest could not be extended beyond the life time of Juma and Hashu, on the death of each of the two legatees (Juma and Hashu) his share of the life estate in the properties in suit will revert to Ghulam Hussain or his descendants. I have perused the judgment and decree passed by the Appellate Bench of the erstwhile High Court of West Pakistan, Karachi Bench, in First Appeal No.18/49 and I find that Mr. J.H. Rahimtoola is correct in submitting that the judgment and decree in First Appeal No.18/49 does not declare or hold that the properties, subject‑matter of First Appeal No.18/49, would revert to Ghulam Ali son of Ghulam Hussain. What was observed was that on the death of Juma and Hashu the properties would revert to Ghulam Hussain or his descendants. The three intervenors are the descendants of Ghulam Hussain. Deceased Dr. Haji was the brother of plaintiff Ghulam Ali and the three intervenors are the grand‑children of Dr. Haji. Both Dr. Haji and Ghulam Ali were sons of Ghulam Hussain. In my view, therefore, the judgment, dated 22‑10‑1958 of the Appellate Bench of the High Court of West Pakistan, Karachi Bench, is no hurdle in the way of three intervenors in making a claim in respect of the properties, which were the subject‑matter of the First Appeal No.18/49.

Even if the contention of Mr. Iqbal Kazi, learned counsel for the plaintiff Ghulam Ali, that the right: of the parties had crystallized in the judgment of the High Court of West Pakistan, Karachi Bench, is accepted, it would not have helped the case of the plaintiff Ghulamali that through judgment, dated 22‑10‑1958 he became the sole owner of the entire properties, which were the subject‑matter of First Appeal No.18/49 upon the deaths of Juma and Hashu. The judgment, dated 22‑10‑1958 does not say that on the deaths of Juma and Hashu the properties will revert to Ghulam Ali absolutely. As observed earlier, the judgment says that on the deaths of Juma and Hashu the properties will revert to Ghulam Hussain or his descendants. If at all the rights of the parties had been crystallized by the judgment, dated 22‑10‑1958 on the deaths of Juma and, Hashu, the properties were to revert tp Ghulam Hussain or his descendants, and his descendants include the three intervenors, who are the grand‑children of Dr. Haji son of Ghulam Hussain.

11. Coming now to the judgment, dated 26‑11‑1960 of the learned First Sub‑Judge First Class, Karachi, passed in Suit No.845/59 (previous No.461/44), it was seen that this suit had also been filed by Ghulan Hussain but during the pendency of this suit, Ghulam Hussain died and Ghulamali continued the suit as his legal representative. Other sons/daughters of deceased Ghulam Hussain were made defendants. Dr. Haji, grandfather of the intervenors, and Alidina, another son of Ghulam Hussain, in their written statements had claimed under the orzgj$,a: plaintiff Ghulam Hussain. However, there was a will and codicil made by deceased Ghulam Hussain, whereby the entire suit property was left by him to his son Ghulamali exclusively and in the circumstance the learned Sub‑Judge observed that the other children of Ghulam Hussain had nothing to do with the said property and that plaintiff Ghulamali alone was ultimately absolutely entitled to the suit property. However, it has been noticed that this Suit No.845/59 filed by Ghulam Hussain and later on continued by Ghulamali, was dismissed, as the learned Sub‑Judge came to take conclusion, on the basis of the judgment of the High Court of West Pakistan, Karachi Bench in First Appeal No.18/49, that Ghulam Hussain and later on Ghulamali could not disturb the possession and enjoyment of Juma and Hashu of the suit property during their life time. The decree in the suit shows that Suit No.845/59 had been dismissed and the decree no mention is made about the will of Ghulam Hussain and the fact that Ghulam Hussain had left his property to Ghulamali exclusively to the exclusion of his all other children including Dr. Hap, grandfather of intervenors. Here also 1 agree with Mr. J.H. Rahimtoola that the judgment and decree in Suit No.845/59 do not come in the way of the intervenors in making a claim in respect of the properties in suit. As noticed, the suit filed by Ghulam Hussain, which was later on continued by Ghulamali had been dismissed. The relief that was being claimed by Ghulam Hussain and later on by Ghulamali was on the basis of mortgages /allenations made by Juma and Hashu and the learned Sub‑Judge came to the conclusion that the said alienations/ mortgages were valid during the life time of Juma and Hashu and the suit for possession and mesne profits filed by Ghulam Hussain was dismissed. The suit. was not decreed in favour of Ghulamali. It had in fact been dismissed. Ghulau.3li did not file any appeal against; the judgment and decree, dated 26‑11‑1960 passed by the learned Sub‑Judge First Class, Karachi, in Suit No.845/59.

No decree was passed against Dr. Haji, grandfather of the intervenors, and as such no appeal could be filed by Dr. Haji against the judgment, dated 26‑11‑1960 of the Sub‑Judge First Class, Karachi. The contention of Mr. J.H. Rahimtoola, that the judgment, dated 26‑11‑1960 of the learned Sub‑Judge Firsx Class, Karachi, is not res judicata in so far as the claim of the intervenors is concerned, is supported 'by P L D 1958 Pesh. 213 and P L D 1975 Lah. 1463.

12. I may further observe here drat the real controversy in the two suits, in which the aforesaid two judgments were delivered by the High Court of West Pakistan, Karachi Bench and the Sub‑Judge First Class, Karachi, was whether the violation of the conditions incorporated in the will, dated 17‑2‑1903 of the ancestor by Juma and Hashu terminated their interest/rights in the properties in question. There was no contest: that the suit properties belonged to Ghulamali or Dr. Haji. The question about the will and codicil of Ghulam Hussain had arisen before tire Sub‑Judge, Karachi on account of the death of Ghulam Hussain during the pendency of the suit before the Sub‑Judge and for deciding the main issue in that suit it was not necessary to give any finding on the will and codicil of Ghulam Hussain. For this reason also the aforesaid two judgments of the High Court of West Pakistan, Karachi Bench, and Sub‑Judge First Class, Karachi, are not res judicata in so far as the claim of the intervenors in the suit properties is concerned.

13. I am, therefore, of the view that neither the application filed by the intervenors Kassim Fida Hussain and others in Suit No.316/77 for being joined as defendants nor Suit No.160/84 filed by them is barred by principle of res judicata. The aforesaid two judgments of the High Court of West Pakistan, Karachi Bench, and Sub‑Judge First Class, Karachi do not come in the way of Kassim Fida Hussain and others in claiming rights in the properties in‑the suits.

14. The contention of Mr. Iqbal Kazi that the will, dated 17‑2‑1903 has merged into the aforesaid two judgments so that the intervenors Kassim Fida Hussain and others have no right now to make any claim in respect ~ of the properties in these, suits cannot be accepted. The question of rights of intervenors Kassim Fida Hussain and others, who are descendants of the ancestor, had not become a past and closed transaction by the aforesaid two judgments of the High Court of West Pakistan and Sub‑Judge, Karachi. The two suits filed by Ghulam Hussain were neither administration suits nor suits to probate the will dated 17‑2‑1903 of the ancestor. As observed earlier the cause of action for the two suits of Ghulam Hussain was his allegation that Juma and Hashu had violated the terms of the will, dated 17‑2‑1903 resulting in the termination of the bequest in their favour. Both the Courts found that alienation /mortgages made by Juma and Hashu were valid for their respective life times and the bequests in their favour were not determined. The will, dated 17‑2‑1903 did not become merged in the, aforesaid two judgments. The will remained operative and was in operation when the West Pakistan Muslim Personal Law (Shariat)~ Application Act, 1962 came into effect. .

15. In his submissions that West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 is not application to the will in question i.e. the will, dated 17‑2‑1903 of the ancestor, Mr. Iqbal Kazi made reference to section 4 of the 1962 Act. According to the learned counsel, section 4 makes reference to more than one life estate remaining at the time the 1962 Act came into operation, and in the instant case, on 31‑12‑1962, when the 1'962 Act came into operation, there was only one life estate, which was in operation i.e. that life estate of Hashu and thereafter, there remaining no other life estate. It was, therefore argued that in the instant case, the 1962 Act will not apply. I have not been impressed by this argument. Section 4 of the West Pakistan huslim Personal Law (Shariat) Application Act, 196_2, reads as follows:‑

"4: Further operation of certain wills shall cease on the death of legatees‑in‑enjoyment.‑‑ Where a will providing for more one legatee succeeding to the testator's 'property one after the other is operative at the commencement of this Act, its further operation shall cease upon the death of the legatee in enjoyment."

In the instant case the will, dated 17‑2‑1903 provided for more than one legatee succeeding to the testator's property one after the other. Then this will was still in operation at the time of the commencement of the 1962 Act inasmuch as Hashu was still alive and he only died recently, on 22‑1‑1984. The words one after the other" employed in section 4 of the 1962 Act refer to the provision in a will about one legatee succeeding to the testator's property one after the other. The use of these words "one after the other" in section 4 did not imply that there should be more than one life estate remaining at the time of commencement of 1962 Act. The contention of learned counsel that as only Hashu was alive at the time of the commencement of the 1962 Act, the said Act. did not affect the provisions of the will, dated 17‑2‑1903, is therefore not accepted.

16. In my view, sections 4 and 5 of the West Pakistan Muslim, Personal Law (Shariat) Application Act, 1962, will apply to the instant case. Section 6 provides that save as expressly provided by provisions of sections 3,4 and 5, the Act of 1962 shall have no retrospective operation. On a plain reading of sections 4 and 5 of the Act it follows that these two sections have retrospective effect in so far as they affect the wills, which were made prior to the coming into force of the 1962 Act. Section 4 refers to a will which is in operation at the commencement of the Act. Read with sections 3 and 5 of the 1962 Act, this obviously implies that wills which were made prior to 31‑12‑1962 and which created limited or life estate stand affected to the extent provided in sections 3, 4 and 5.

17. The will, dated 17‑2‑1903 of the ancestor provided for more than one legatee succeeding to some of the ancestor's property one after the other and this will was in operation on 31‑12‑1962. At' that time only Hashu, one of the legatees, was alive and by operation of section 4 of the 1962 Act, the life interest of Hashu continued but the further operation of the will, dated 17‑2‑1903 ceased upon the death of Hashu, the legatee‑in‑enjoyment. On 22‑1‑1984, when Hashu, the legatee in enjoyment, died, further operation of the will, dated 17‑2‑1903 ceased and further devolution of property has to take place according to section 5 of the 1962 Act which reads as follows:‑

"Section 5.‑Devolution of property on the termination of the life estate and certain wills.‑‑ The life estate terminated under section 3 or the property in respect of which the further operation of a will has ceased under section 4 shall devolve upon such person as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the last full owner or the testator as though he had died intestate and if any such heir has died in the meantime, the share shall devolve in accordance with the Shariat on such persons as would have succeeded him if he had died immediately after the termination of the life estate or the death of the said legatee:

Provided that the share to which a Muslim female holding a limited estate under customary law would have be n entitled under the Muslim Personal Law (Shariat) upon the death of the last full owner shall devolve on her."

In respect of the properties in suit the last full owner was the testator (that is the ancestor) himself and ;n view of the provisions of section 5 of the 1962 Act, on the death o: Hashu, who was the last legatee‑in‑enjoyment, the further operation of the will, dated 17‑2‑1903 ceased and the suit properties are to devolve upon such persons as would have been entitled to succeed under the Muslim Personal Law (Shariat) upon the death of the ancestor as though he had died intestate.

18. The intervenors Kassim Fida Hussain, Dr. Razia and Mst. Maryami' are the direct descendants of the ancestor being the grandchildren of Dr. Hap, who was the grandson of the ancestor. The intervenors have, therefore, interest in the properties in suit and as such are necessary parties to Suit No. 316/77. None of the judgments cited by Mr. Iqbal Kazi and referred to earlier in this order help the contentions raised on behalf of Ghulamali. Either these are not relevant or are clearly distinguishable. C.M.A. No. 5891/84 filed in Suit No.316/77 by the intervenors Kassim Fida Hussain, Dr. Raxia and Mst. Maryam, is allowed and they are impleaded as defendants. Amended plaint will be filed by the plaintiff within one month.

19(a) C.M.A No.3498/85 is an application filed under Order XL, rule 1, C.P.C. read with section 151, C.P.C. by the plaintiff in Suit No.316/77. By order, dated 16‑10‑1977, Nazir had been appointed receiver of 2 of the 3 properties in Suit. By this application the plaintiff prays for appointment of the Nazir as receiver of the third property also. This third property yeas ordered by consent to remain under the management of defendant No.2 subject to deposit of 50$ of the net income of the said property and filing half‑yearly statements of accounts. No statement of account has been filed by defendant No.2 according to the plaintiff and then Hashu has also died on or about 22‑1‑1984 which event terminates the interest of defendant No.2 in the said property acccrding to the judgment, dated 22‑10‑1958 of the High Court of West Pakistan, Karachi Bench in I Appeal No.18/49. No one has appeared for defendants Nos.2,2(a) to 2(d). Mr. J.H. Rahimtoola has not opposed this application. Mr. Zaki Ahmed, Advocate for legal representatives of Hashu, deceased defendant No.l has also not, opposed this application. In fact he did not address any arguments.

(b) C.M.A. No.926/84 in Suit No.160/84 has been filed by plaintiffs Kassim Fida Hussain and others under Order XXXIX, rules 1 & 2 C.P.C. 'kead with section 151, C.P.C. seeking a temporary injunction against the defendants in their suit from selling or alienating the 3 properties in suit.

(c) C,. M. A . No.927/84 is an application under Order XL, rule 1, C . P . C . read with section 151, C . P . C . filed by plaintiffs Kassim Fida Hussain and others in Suit No.160/84 praying for appointment of Nazir as receiver of the 3 properties in suit.

Nazir is already the receiver of two of the 3 properties in question. Hashu has since died. It is considered fit and proper that in the circumstances, Nazir be appointed receiver of the third property also. C.M.A. No.3498 of 1985 in Suit No.316/77 is granted and Nazit is appointed receiver of the third property also namely property bearing old survey No.32 Sheet A‑27, New Survey No.107, Survey N.P.14, Napier Quarters, Karachi. Nazir as receiver will have the same powers in respect of this property as were conferred upon him in respect of the other two properties by order, dated 16‑10‑1977 passed in Suit, No.316/77. In view of this order no further orders are necessary on the two applications filed by plaintiffs Kassim Fida Hussain and others in Suit No.160/84.

C.M.A No.926/84 and C.M.A. No.927/84 in Suit No.160/84 also stand disposed of.

In view of this order, it is directed that suits Nos. 316/77 and 160/84 be tried together.

M.Y. H Order accordingly.