1

P L D 1982 Supreme Court 367

Present : Muhammad Haleem, Actg.
C J, Naslm Hasan Shah,
Shafi-ur-Rehman, Zaffar Hussain
Mirza and Mian Burhanuddin, .IJ
Civil Appeal No. 128/78

GOVERNMENT OF
PAKISTAN-Appellant versus

Brig. -HIS HIGHNESS NAWAB

MUHAMMAD ABBAS KHAN ABBASI
AND others-Respondents
Civil Appeal No. 129/78

BRIG. HIS HIGHNESS NAWAB

MUHAMMAD ABBAS KHAN
ABBASI-Appellant

versus
2

THE GOVERNMENT OF PAKISTAN

AND OTHERS-Respondents Civil
Appeals Nos. 128 and 129 of 1978,
decided on 7th April, 1982.
(On appeal from the judgment and
order of the Lahore High Court,
Lahore dated 4-12-1973 in Writ
Petition No. 346 of 1969).

JUDGMENT

NASIM HASAN SHAH. J.-This

judgment will dispose of Civil
Appeals Nos. 128 and 129 of 1978,
as both of them are directed
against the judgment of a Division
Bench of the Lahore High Court
dated 4-12-1973, passed in Writ
Petition No. 346 of 1969. This writ
3

petition was filed by Brigadier H. H.

Nawab Muhammad Abbas Khan
Abbasi, Ameer of Bahawalpur,
calling in question the validity of
the Devolution and Distribution of
Property (Ameer of Bahawalpur)
Order, 1969, made by the Central
Government of Pakistan, published
vide the President's Secretariat
(States and Frontier Regions
Division) Notification No. S. R. O. 34
(H)/69, dated the 19th of February,
1969, whereby the personal
properties left by H. H. Al-Haj late
Sir Sadiq Muhammad Khan Abbasi,
Ameer of Bahawalpur State, were
distributed among his personal law
heirs in the manner specified
therein. Brig. H. H. Nawab
Muhammad Abbas Khan Abbasi
4

considering that all the personal

properties of late Ameer of
Bahawalpur devolved upon him to
the exclusion of all others on
account of law and customs of the
State, namely, the rule of
primogeniture be, as the eldest son
of the deceased, was solely entitled
to them. Consequently, he felt
aggrieved by the award of a part of
the properties of the late Ameer to
his other personal law heirs.

To properly appreciate the claim of

H. H. Nawab Muhammad Abba
Khan Abbasi it appears necessary to
recount briefly the historical
development of the State of
Bahawalpur from the emergence of
the State up to its accession to the
5

Dominion of Pakistan and its

ultimate merger in the Province of
West Pakistan, the position of the
Ruler of the State in this period and
the manner in which succession to
the Gaddi and to the property of
the State was regulated.

At the time of the Constitutional

Reforms leading to the Government
of India Act, 1935, the geographical
entity known as India was divided
into two parts-British India and the
Indian States. While British India
comprised the 9 Governor's
Provinces (which were increased to
eleven after the coming into force
of the aforementioned Government
of India Act, 1935) and some other
areas administered by the
6

Government of India itself, the

Indian States comprised some 562
States which were mostly under the
personal rule of Rulers or Chiefs. All
the 562 Indian States were not of
the same order. Some of them were
States under the rule of hereditary
Chiefs, which had political status
even prior to the conquests of India
by the Muslims ; others (about 300
in number) were Estates or Jagirs
granted by the Muslim Rulers as
rewards for services or otherwise,
to particular individuals or families.
But the common feature that
distinguished these 562 States or
there about from British India was
that the Indian States had not been
annexed by the British Crown. So,
while British India was under the
7

direct rule of the Crown through its

representatives and according to
the statutes of Parliament and
enactments of the Indian
Legislatures, the Indian States were
allowed to remain under the
personal rule of their Chiefs and
Princes, under the `suzerainty' of
the Crown, which was assumed
over the entire territory of India
when the Crown took over
authority from the East India
Company in 1858. Lord Canning
then made the pronouncement :-

"The Crown in England stands forth

the unquestioned ruler and
paramount power-in all India."
8

The relationship between the

Crown and the Indian States since
the assumption of suzerainty by the
Crown came to be described by the
term 'Paramountcy'. The Crown
was bound by engagements of a
great variety with the Indian States.
A common feature of these
engagements was that while the
States were responsible for their
own internal administration, the
Crown accepted the responsibility
for their external relations and
defence. The Indian States had no
international life, and for external
purposes, they were practically in
the same position as British India.
As regards internal affairs, the
policy of the British Crown was
normally one of non-interference
9

with the monarchical rule of the

Rulers, but the Crown interested
itself in cases of misrule and
maladministration, as well as for
giving effect to its international
commitments. So, even in the
internal sphere, the Indian States
had no legal right against
non-interference, and so Lord
Reading explained to the Nizam of
Hyderabad

"The Sovereignty of the British

Crown is supreme in India, and,
therefore, no Ruler of an Indian
State can justifiably claim to
negotiate with the British
Government on an equal footing."
10

Nevertheless, the Rulers of the

Indian States enjoyed certain
personal rights and privileges and
normally carried on their personal
administration unaffected by all
political and constitutional
vicissitudes within the neighbouring
territories of British India.

The Government of India Act, 1935,

envisaged a federal structure for
the whole of India, in which the
Indian States could figure as Units,
together with the Governor's
Provinces. Nevertheless, the
framers of that Act differentiated
the Indian States from the
Provinces in two material respects.
The two points of difference were-
11

(a) while in the case of the

Provinces accession to the
Federation was compulsory or
automatic, in the case of an Indian
State, it was voluntary and
depended upon the signing by the
Ruler of an Instrument of Accession,
and its acceptance by the Crown ;

(b) While in the case of the

Provinces, the authority of the
Federation over the Provinces
(executive as well as legislative)
extended over the whole of the
federal sphere delineated by the
Act,-in the case of the Indian States,
the authority of the Federation
could be limited by the Instrument
of Accession and all residuary
powers belonged to the State. It is
12

needless to elaborate the details of

the plan of 1935, for the accession
of the Indian States to the proposed
Federation never came about and
this Part of that Act was finally
abandoned in 1939, when World
War II broke out.

When Sir Stafford Cripps came to

India with his plan in 1942, it was
definitely understood that the Plan
proposed by him would be confined
to settle the political destinies of
British India, and that the Indian
States would be left free to retain
their separate status. This was later
made clear by the Cabinet Mission
(in 1966)
13

"When a new fully self-governing or

independent Government or
Governments came into being in
British India, His Majesty's Govern-
ment's influence with these
Governments will not be such as to
enable them to carry out the
obligations of paramountcy . . . . . . .
. . Thus as a logical sequence and in
view of the desires expressed to
them on behalf of the Indian States,
His Majesty's Government will
cease to exercise the powers of
paramountcy. This means that the
rights of the States which flow from
their relationship to the Crown will
no longer exist and that all the
rights surrendered by the States to
the paramount power will return to
the States."
14

But the Cabinet Mission supposed

that the Indian States would be
ready to co-operate with the new
developments in India. So, they
recommended that there should be
a Union of India, embracing both
British India and the States, which
would deal only with Foreign
Affairs, Defence and
Communications while the States
would retain all powers other than
these.

When the Indian Independence Act,

1947, was passed, it declared the
lapse of suzerainty and
paramountcy of the Crown, vide
section 7 (1) (b) of the Act, which is
worth reproduction
15

"7.-(1) As from the appointed day-

(b) the suzerainty of His Majesty over

the Indian States lapses, and with
it, all treaties and agreements in
force at the date of the passing of
this Act between His Majesty and
the rulers of Indian States, all
functions exerciseable by His
Majesty at that date with respect
to Indian States, all obligations of
His Majesty existing at that date
towards Indian States or the
rulers thereof, and all powers,
rights, authority, or jurisdiction
exerciseable by His Majesty at
that date in or in relation to
Indian States by treaty, grant,
16

usage, sufferance or otherwise :

and
Provided that notwithstanding
anything in paragraph (b) . . . . . . . of
this subsection, effect shall, as
nearly as may be, continue to be
given to the provisions of any such
agreement as is therein referred to
which relate to customs, transit and
communications, posts and
telegraphs, or other like matters,
until the provisions in question are
denounced by the Ruler of the
Indian State . . . . . . on the one
hand, or by the Dominion or
Province or other part thereof
concerned on the other hand, or
are superseded by subsequent
agreements."
17

But though paramountcy lapsed

and the Indian States regained the
position which they enjoyed prior
to the assumption of suzerainty by
the Crown, most of the States soon
realised that it was no longer
possible for them to maintain their
existence independent of and
separate from the rest of country
and that it was in their own
interests necessary to accede to
either of the two Dominions of
India or Pakistan.

Thus, on the 15th August, 1947, the

Ruler of Bahawalpur, His Highness
Alhaj Sir Sadiq Muhammad Khan
Abbasi, was faced with the decision
as to which of the two Dominions of
18

India or Pakistan he should accede

to.

On 3-10-1947, the Ruler of the

Bahawalpur State made his choice
to accede to Pakistan and executed
an Instrument of Accession under
section 6 of Government of India
Act, 1935 whereby the State of
Bahawalpur acceded to the
Federation of Pakistan (as adopted
by the Pakistan Provisional
Constitution Order, 1947).
Subsection (4) and subsection (9) of
section 6 of the Act of 1935 are
relevant for the purposes of this
case and may, therefore, be
usefully reproduced hereunder :-
19

"(4) Nothing in this section shall be

construed as requiring (the
Governor-General) to accept any
Instrument of. Accession or supple-
mentary Instrument unless he
considers it proper so to do or as
empowering (the
Governor-General) to accept any
such Instrument if it appears to him
that the terms thereof are
inconsistent with the scheme of
Federation embodied in this Act :

Provided that if any instrument has

in fact been accepted by (the
Governor-General) the validity of
that Instrument or of any of its
provisions shall not be called in
question and the provisions of this
Act shall, in relation to the State,
20

have effect subject to the

provisions of the Instrument."

(5) .
……………………………………………………
……………………………………………………
………..
(6) ……………………………………………………

……………………………………………………
…………
(7) ……………………………………………………

……………………………………………………
…………
(8) ……………………………………………………

……………………………………………………
…………

(9) As soon as may be after any

Instrument of Accession or
supplementary Instrument has
21

been accepted by (the

Governor-General) under this
section, copies of the Instrument
and of (the Governor-General's)
Acceptance thereof shall be laid
before (the Federal Legislature),
and all Courts shall take judicial
notice of every such Instrument and
Acceptance."

Several other supplementary

Instruments of Accession were
executed thereafter, but mention
may be made of the Instrument
executed by Ameer of Bahawalpur
and the Governor-General of
Pakistan on 11-4-1952, whereby in
consideration of the Ameer's
accepting for his State the
Constitution of Pakistan to be
22

adopted by the Constituent

Assembly of Pakistan, the Ameer
agreed to receive a privy purse of
Rs. 29,50,000 annually. In this
Instrument, the question of
succession to the personal rights,
privileges, dignities and titles
enjoyed by the Ameer as well as the
question of how dispute with
regard to any item of property,
succession to the personal rights,
privileges, dignities of Ameer of
Bahawalpur were also dealt with in
Articles II to IV, which may usefully
be reproduced hereunder :-

Article II.--His Highness the Ameer

shall be entitled to the full owner-
ship, use and enjoyment of all the
jewels, jewellery, ornaments,
23

shares, securities and other private

properties, movable as well as
immovable, not being State
properties, belonging to him on the
date of this agreement.

2. His Highness the Ameer shall

furnish to the Government of
Pakistan within three months of the
date of this Agreement lists of the
movable and immovable property
held by him as such private
property.

3. If any dispute arises as to

whether any item of property is the
private property of His Highness or
State property, it shall be decided
by the Governor-General of
24

Pakistan whose decision shall be

final and binding on all concerned.

Article III.-His Highness the Ameer

and the members of his family shall
be entitled to all the personal
privileges, dignities and titles
enjoyed by them whether within or
outside the territory of the State
immediately before the date of this
agreement. _

Article IV.-The Government of

Pakistan guarantees the succession
according to law and custom of the
State of Bahawalpur to the Gaddi of
the State and to the personal rights,
privileges, dignities and titles of His
Highness the Ameer of Bahawalpur.
25

The next important agreement,

indeed, ,the crucial one for the
decision of this case, which requires
mention in the `Bahawalpur Merger
Agreement'. On 17-12-1954, shortly
before the establishment of the
unified Province of West Pakistan
(commonly known as One-Unit) the
Ameer of Bahawalpur State and the
Government of Pakistan executed
an agreement known as the
"Bahawalpur Merger Agreement".
This agreement provided as
hithertofore for the accession of
the State of Bahawalpur to the
Dominion of Pakistan and further
for the merger of the same in the
proposed One-Unit of the said
Dominion to be known as West
Pakistan. By virtue of this
26

agreement, which was in

abrogation to all the previous
Instrument of Accession and
Agreements, the Ameer of
Bahawalpur ceded to the
Government of the Dominion of
Pakistan, his sovereignty and all
rights, authority and powers as
Ruler of the State of Bahawalpur
and as a result of this cession, the
Government of Pakistan acquired
jurisdiction and control over the
territory which was previously
vested in the Ruler of the State of
Bahawalpur. The Government of
Pakistan on and from the date of
Merger Agreement undertook
responsibility for the governance of
the said State and territory and
solemnly guaranteed to the Ameer
27

of Bahawalpur certain inviolable

rights which are fully described in
the Merger Agreement. As the
terms of Articles II to V will need
interpretation, the text of the said
Articles may, therefore, usefully be
reproduced hereunder :-

"Article II.-His Highness the Ameer

of Bahawalpur shall be entitled to
receive annually from the
Government of Pakistan for his
privy purse a sum of Rs. 32 lacs (Rs.
thirty-two lacs only) free of all
taxes. The amount is intended to
cover all the expenses of His
Highness the Ameer of Bahawalpur
and his family, bodyguard, tours,
hospitality, maintenance of his
residence, marriage and all family
28

ceremonies. The said amount shall

be payable to the Ameer of
Bahawalpur in four equal
instalments at the beginning of
each quarter in advance.

The payment of said amount as

herein provided is guaranteed by
the Government of Pakistan.

Article Ill.-His Highness the Ameer

shall be entitled to the full owner-
ship, use and enjoyment of all the
jewels, jewellery, ornaments,
securities and other private
properties, movable as well as
immovable, not being State
properties, belonging to him on the
date of this agreement.
29

If any dispute arises as to whether

any item of property is the private
property of His Highness or State
property, it shall be decided by the
Governor-General of Pakistan
whose decision shall be final and
binding on all concerned.

Article IV.-His Highness the Ameer,

Her Highness and His Highness's
children shall be entitled to all the
personal privileges, dignities and
titles enjoyed by them whether
within or outside the territory of
the State immediately before the
date of this agreement.

Article V.-The Government of

Pakistan guarantees the succession
according to law and customs of the
30

State of Bahawalpur to the personal

rights, privileges, dignities and titles
of His Highness the Ameer of
Bahawalpur, as specified in Articles
lI to IV above.

A reference to the above

agreement shows that in the
second paragraph of Article III, it
was specifically provided that if any
dispute arises as to whether any
item of property is the private
property of His Highness or State
Property, it shall be decided by the
Governor-General of Pakistan
whose decision shall be final and
binding on all concerned.

A list of palaces and buildings etc.

recognised by the Government of
31

Pakistan as the personal property of

His Highness the Ameer of
Bahawalpur was also prepared
which was duly signed on behalf of
the Government of Pakistan on
8-6-1955 and a copy thereof was
supplied to the Ameer of
Bahawalpur.

On 3-10-1955; the Establishment of

West Pakistan Act, 1955 was
passed. By virtue of section 10 (1)
of this Act read with the First
Schedule thereto, section 6 of the
Government of India Act, 1935 was
omitted, but all laws in force in
West Pakistan, immediately before
the appointed date, were to
continue to apply to the areas and
the persons to whom they would
32

have applied if the Act had not

been passed.

On 29-2-1956, the Constitution of

the Islamic Republic of Pakistan was
enacted. Article 224 of this
Constitution provided that all laws
including the legal Instruments in
force in Pakistan immediately
before the Constitution Day were,
in so far as applicable to continue in
force until altered, repealed or
amended by the appropriate
Legislature. By virtue of Article 202
(3) of the 1956-Constitution, a
provision was made in respect of
the rights, privileges, etc. of the
Rulers of the existing States in the
following words :-
33

"(3) In the exercise of any power to

make laws, and in the exercise of
the executive authority of the
Federation or a Province, due
regard shall be had to the
guarantees or assurances given
under any such agreement as is
referred to in clause (1) with
respect to the personal rights,
privileges and dignities of the Ruler
of any such State as is referred to in
that clause."

By Article 231 of the same

Constitution, a provision was made
for the succession to the rights,
liabilities and obligations of the
Federal Government or the
Government of a Province, arising
out of contract or otherwise.
34

The Constitution of 1956

unfortunately was only shortlived
and on 7-10-1958, Martial Law was
promulgated and the Constitution
of 1956 was abrogated. However,
on 10-10-1958, the Laws
(Continuance in Force) Order, 1958,
was promulgated and by Article 1V
thereof, a provision was made for
the continuance of laws other than
the Constitution. On 16-6-1960
President's Order No. 15 of 1960
was promulgated, called the Rulers
(Recognition of Successors) Order,
1960, wherein it was provided that
any reference to the Ruler of a
State would be construed as
including a reference to the
35

person recognised, for the time

being, by the President as a
successor to that Ruler. On
2-9-1961, another Order, which is
of importance in this case, was
promulgated by the President of
Pakistan, namely, President's Order
No. 12 of 1961, called "Acceding
State (Property) Order, 1961". In
this Order it was laid down that
where any question arises directly
or indirectly between persons
claiming to be the heirs and
successors 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.
36

On 1-3-1.962, the President

promulgated the Constitution of
the Islamic Republic of Pakistan,
1962, which came into force on
8-6-1962. Article 225 of this
Constitution provided for
continuance of "existing laws" while
Article 232(3) provided for the
continuance of rights, liabilities and
obligations of the Government
arising out of the contract or
otherwise.

On 24th May, 1966, H. H. Sir Sadiq

Muhammad Khan Abbasi, Ameer of
Bahawalpur passed away. Brig.
Nawab Muhammad Abbas Khan
Abbasi (appellant in Civil Appeal No.
129 of 1978) succeeded as the
37

Ameer of Bahawalpur and the

recognition to the aforesaid
succession was accorded by the
Government of Pakistan vide order
dated the 4th June, 1966. However,
shortly (hereafter, a majority of the
heirs of the late H. H. Sir Sadiq
Muhammad Khan Abbasi
approached the Government of
Pakistan claiming succession to the
personal properties of the late
Ameer. The appellant H. 1-I. Nawab
Muhammad Abbas Khan Abbasi
disputed their claim on the ground
that in accordance with law and
customs of the State of
Bahawalpur, which were
guaranteed by the Merger
Agreement, the appellant having
already succeeded to the Ameerate
38

of Bahawalpur was also entitled to

succeed exclusively to all the
personal properties of the late
Ameer of Bahawalpur as a part of
his status as Ameer. This position
was not accepted by-the
Government of Pakistan on the
ground that the customary law
even if it was assumed to have been
applicable to the Ruling family of
Bahawalpur had lost its application
by section 2 of the West Pakistan
Muslim Personal Law (Shariat
Application) Act, 1962, and that this
dispute came within the purview of
the provisions of the Acceding State
(Property) Order, 1961, and was
applicable in relation to the
distribution of the property left by
the Late Ameer of Bahawalpur.
39

Accordingly, a Commission
consisting of two Senior Members
of Board of Revenue was appointed
under Article 3 of the Acceding
State (Property) Order, 1961, to
make inquiry and submit its
recommendations with regard to
the devolution of distribution. of
the private properties left by the
late Ameer. The Members of the
Commission, therefore, made a
detailed inquiry to discover all the
property left by the late Ameer of
Bahawalpur and also submitted its
recommendation with regard to its
distribution among the heirs of the
late Ameer. These
recommendations were accepted
by the. President of Pakistan and
40

given effect to through an order

called "The Devolution and
Distribution of Property (Ameer of
Bahawalpur) Order, 1969"
promulgated by the Government of
Pakistan on 19-2-1969 and
published in the Gazette of
Pakistan, Extraordinary Issue, dated
the 20th February, 1969. Under this
Order, the movable and immovable
properties fully described in the
First Schedule attached to the said
Order were held to belong and to
vest in H. H. Nawab Muhammad
Abbas Khan Abbasi as the Ameer of
Bahawalpur in his capacity as
Ameer and for so long as he was
the Ameer. The rest of the
properties, movable and
41

immovable, were distributed in

severality between H. H. Nawab

Muhammad Abbas Khan Abbasi and

the remaining personal heirs of the
late Ameer of Bahawalpur, as set
out in the Second Schedule of the
Order. It was also stipulated in this
order that H. H. Nawab Muhammad
Abbas Khan Abbasi shall from out of
the properties mentioned in the
First Schedule vested in him in his
capacity as the Ameer of
Bahawalpur, discharge all the debts
and liabilities of the late Ameer. In
this connection, an embargo was
placed on him that he shall not
without the previous approval of
the Central Government transfer by
sale or otherwise any of those
42

properties mentioned in the First

Schedule or create any
encumbrance on them. Under this
Order, all heirs of late Ameer were
held to be liable for the estate duty
payable in respect of the properties
that had devolved on them.

Feeling aggrieved of the aforesaid

Order i. e. the Devolution and
Distribution of Property (Ameer of
Bahawalpur) Order, 1969. H. H.
Nawab Muhammad Abbas Khan
Abbasi filed a writ petition (W. P.
No. 346169) in the Lahore High
Court, Lahore, calling in question its
validity. Before the High Court, it
was contended on behalf of H. H.
Nawab Muhammad Abbas Khan
Abbasi that the merger agreement
43

of 1954, was a Constitutional

Instrument and was not subject to
the ordinary law of the land and
that the Government of Pakistan
was bound by the guarantees and
assurances extended to the late
Ameer of Bahawalpur in the said
Merger Agreement; hence the
provisions contained in the
Acceding States (Property) Order,
1961 (President's Order No. 12 of
1961), did not have the effect of
overriding them. It was further
asserted that President's Order No.
12 of 1961, was not applicable to
this case and, at any rate, even
under President's Order No. 12 of
1961, read with the Merger
Agreement the Government of
Pakistan was bound to decide this
44

dispute regarding succession to the

personal properties of the late
Ameer of Bahawalpur in accordance
with law and custom of the State,
under which, by virtue of the rule of
primogeniture H. H. Nawab
Muhammad Abbas Khan Abbasi
alone was entitled to succeed to
the entire properties. The validity of
the President's Order No. 12 of
1961 was also challenged on the
ground that it did not lay down any
norms and conferred unguided and
uncontrolled powers to the Central
Government for its decision in such
matters. It was also contended on
behalf of respondent No. 1 that the
Government of Pakistan acted
illegally in delegating its own
function by appointing the
45

Commission for Inquiry into this

dispute which was within its own
exclusive competence. It was
asserted on behalf of the appellant
(in Civil Appeal No. 129 of 1978)
and neither the Commission, during
the course of the enquiry before it
nor the Central Government before
passing the impugned order
allowed any reasonable opportunity
to the appellant (H. H. Nawab
Muhammad Abbas Khan Abbasi) to
represent his case and as such
acted against the principles of
natural justice. It was further
argued on -his behalf that the
Central Government had failed to
pass a speaking order which, in fact,
was altogether arbitrary. It was
lastly contended that he was not
46

liable for the Estate Duty on the

estate which was found to have
devolved upon him.

In response, the Government of

Pakistan (Appellant in Civil Appeal
No. 128 of 1978) contended that
the Merger Agreement of 1954 was
a treaty arrived at between two
Sovereign States and was
essentially an Act of State and as
such it could not be called in
question in any of the municipal
courts in the country and their
jurisdiction was altogether barred
in the matter. Alternatively, it was
contended that the Merger
Agreement was not sacrosanct and
it was itself subject to the ordinary
law of the land and could not
47

prevail over it and that it could,

therefore, be modified and altered
by the provisions contained in the
President's Order No. 12 of 1961. It
was further asserted that the
jurisdiction of the High Court to
entertain this dispute was also
barred under section 7 of the
President's Order No. 12 of 1961,
and that, at any rate, the
contractual obligations incurred
between the parties under the
Merger Agreement of 1954, could
not be enforced by invoking the
extraordinary jurisdiction of the
High Court under Article 98 of the
Constitution (of 1962). It was
further contended that the decision
of the Government to take
cognizance of this dispute in
48

accordance with the provisions of

President's Order No. 12 of 1961
was quite lawful and the Devolution
and Distribution of Property (Ameer
of Bahawalpur) Order, 1969, passed
by the Government was a fair and
equitable distribution of the Estate
left on the demise of the late
Ameer of Bahawalpur among his
heirs. It was also contended on
behalf of the Government of
Pakistan that it was not a fit case
for interference by the High Court.
The respondents Nos. 2 to 23,
namely, the other heirs of the late
Ameer supported the contention of
the Government of Pakistan raised
before the High Court to the effect
that the Devolution and
Distribution of Property (Ameer of
49

Bahawalpur) Order, 1969, was

lawfully passed by the Central
Government by way of an equitable
and fair administration of the estate
left by the late Ameer of
Bahawalpur among his heirs. The
said respondents however,
supported the appellant H. H.
Nawab Muhammad Abbas Khan
Abbasi in his contention that the
Estate was not liable for payment of
Estate Duty. On behalf of
respondent No. 24 (Controller of
Estate Duty) it was contended
before the High Court that in the
absence of any express exemption
allowed to the late Ameer of
Bahawalpur the private properties
belonging to him were not immune
from the provisions of the Estate
50

Duty Act, 1951. It was further

contended on his behalf that the
writ petition instituted by the,
appellant (H. H. Nawab Muhammad
Abbas Khan Abbasi) was not
competent to challenge the
proceedings initiated against the
heirs of the deceased in accordance
with the law under the Estate Duty
Act.

The High Court, in a detailed and

elaborate judgment passed on
4-12-1973, wherein all the
questions raised before it, were
fully considered, care to the
conclusion that the Central
Government was competent to
decide the dispute concerning the
Devolution and Distribution of the
51

property of the State of late Ameer

under section 3 of the President's
Order No. 12 of 1961 and the
Acceding State (Property) Order,
1961, which was a valid piece of
Legislature. However, while passing
the Devolution and Distribution of
the Property (Ameer of
Bahawalpur) Order, 1961, several
errors were committed and it was
therefore not passed in accordance
with law and, consequently, was of
no legal effect. The learned Judges
of the High Court, therefore,
ordered that "the matter shall go
back to the Central Government for
fresh disposal of the dispute before
it in accordance with law". The writ
petition filed by H. H. Nawab
Muhammad Abbas Khan Abbasi
52

was, accordingly, accepted to the

above extent.

The Government of Pakistan feeling

aggrieved by the above judgment
has, therefore, challenged it by
filing an appeal (Civil Appeal No.
128 of 1978). H. H. Nawab
Muhammad Abbas Khan Abbasi
also felt aggrieved by certain
findings recorded in the impugned
judgment which, he considers
might prejudice his case before the
Central Government, while taking
its decision in pursuance of the
remand order.

Before dealing with the contention

raised by the appellant in both the
appeals it would be profitable to
53

mention the findings recorded by

the learned Judges in the High
Court on the various issues raised
before them.

The High Court, by its judgment

passed on 4-12-1973 in Writ
Petition No. 346 of 1969, recorded
the following findings:-

(a) On the point of the character

and the weight to be attached to
the Bahawalpur Merger Agreement
executed on 17-12-1954 between
the then Governor-General of
Pakistan and the late Ameer of
Bahawalpur State, it was held that
after the promulgation of the 1962
Constitution the umbrella of the
Constitution and its backing in
54

support of the Merger Agreement

was altogether withdrawn and was
no longer available. Nor did it (the
Constitution) by itself, provide any
constitutional safeguard to the
guarantees and assurances
contained in the Agreement.
Although the Merger Agreement
continued to remain in force
without this additional
constitutional backing under
sub-Articles (1) and (7) of Article
225(1) of the 1962 Constitution but
merely as a "legal instrument" and
not as a "Constitutional Instru-
ment". It was, thus, relegated to the
position of and became an ordinary
"existing law" and could not be
equated with the Constitution itself.
55

. ' Consequently, the Legislature ordinarily compete

Agreement in question nor were its
powers to make laws under the
Constitution curtailed and
controlled by the provisions
contained in the Merger
Agreement.

(b) On the question whether the

stipulations contained in the
Instrument of Accession or the
Merger Agreement amounted to
the stipulations of a treaty between
the foreign powers and. therefore,
being an act of the State, the
jurisdiction of Municipal Courts of
this country was barred from
entertaining any dispute arising out
of it, it was held that the Courts in
this country are bound by the terms
56

of the Constitution of Pakistan and

the laws in force here. The Merger
Agreement in question was an
Instrument of Accession executed
by the late Ameer of Bahawalpur
and accepted by the Governor.
General of Pakistan in accordance
with section 6 of the Government
of India Act, 1935. The proviso to
subsection (4) of section 6 of the
Act laid down that if any Instrument
has, in fact, been accepted by the
Governor-General, the validity of
the Instrument or of any of its
provisions shall not be called in
question and the provisions of this
Act shall, in relation to the State,
have effect subject to the
provisions of the Instrument. Under
subsection (9) of this section all
57

Courts are bound to take judicial

notice of every such Instrument.
The validity of the Instrument or
any of its provisions cannot be
called in question in any Court. But
this bar of jurisdiction is restricted
to any attack against the validity of
the Instrument or any of its
provisions. It does not work in any
other direction and debar the Court
from enforcing the agreement or
any of its provisions between the
citizens of Pakistan. In fact, this
proviso itself expressly lays down
that the provisions of the Act shall
have effect subject to the
provisions of the Instrument. In
short by the terms of the proviso to
section 6(4) of the Government of
India Act, 1935, the validity of an
58

Instrument of Accession or of any of

its provisions shall not be called in
question. Short of that there was no
bar against any Court from
entertaining any dispute for the
enforcement of the Instrument of
Accession or any of the guarantees,
assurances and stipulations
contained therein. The Courts
cannot go behind the Instrument
and challenge its validity but this
does not debar these Courts to look
into the effect of the Instrument on
the rights of the main contesting
parties before the Courts who are
citizens of Pakistan in relation to a
cause of action which for the first
time accrued to them long
afterwards on the death of the late
Ameer on the 24th of May, 1966.
59

The contention raised to the effect

that the jurisdiction of the High
Court was barred to entertain the
dispute was, therefore, held as not
tenable.

(c) As to the effect of the Acceding

State (Property) Order, 1961-
(President's Order No. 12 of 1961)
on the Bahawalpur Merger Agree-
ment dated the 17th December,
1954, executed between late
Ameer of Bahawalpur and the then
Governor-General of Pakistan; it
was held:-

(i) Article 3 thereof simply provided

a forum of exclusive jurisdiction for
the settlement of disputes between
the rival claimants to the succession
60

to an acceding State or its Ruler

concerning the devolution and
distribution of their properties.

(ii) The provisions of the President's

Order No. 12 of 1961 are not at all
in conflict with the Merger
Agreement. The Merger Agreement
does not expressly specify the
forum for the settlement of any
dispute arising out of it. This aspect
is provided for in the President's
Order No. 12 of 1961. The
provisions of this Order do not
override any of the provisions of
the Merger Agreement and the two
are complementary to each other.
Indeed, on this view of the matter,
most of the contentions advanced
based on the supposition that the
61

provisions of President's Order No.

12 of 1961 have no overriding
effect as against the provisions of
the Merger Agreement were
besides the point.

(iii) Article 7 of the President's

Order does not bar the jurisdiction
of the High Court to entertain a
petition challenging the validity of
an order made under Article 3 of
the Order, became thereunder it is
only .orders made in compliance
with its provisions, substance and
form which are immune from
challenge before the High Court and
this immunity does not extend to
any order passed by the Central
Government which cannot properly
be brought within the four corners
62

of this Article and was in reality

made in excess of the powers
conferred by it. In support of this
view reliance was placed on Khair
Muhammad Khan v. The State (P L
D 1966 S C 604).

(iv) The Order, however, does not

repeal the substantive law that may be applicable to
the parties thereto, the Central
Government in deciding
these disputes must act judicially
as a quasi judicial tribunal or a sole
arbitrator constituted for their
settlement.

The Devolution and Distribution of

Property (Ameer of Bahawalpur)
Order, 1969, passed by the Central
Government under Article 3 of the
63

President's Order No. 12 of 1961, is

bad because-

(i) it is based on the report of a

Enquiry Commission consisting of
two Members of the West Pakistan
Board of Revenue, whereas under
Article 3 of the President's Order
No. 12 of 1961, the Central
Government was vested with the
power to decide the dispute in
question by an order. There is no
provision in this Order for the
Central Government to delegate its
authority and constitute a Commis-
sion or appoint any enquiry Officer
for holding an enquiry into the
matter in dispute before it. The
procedure followed is contrary to
the principle "delegatus non potent
64

delegare" and also against the

principle contained in section 73
read with the provisions contained
in Order XXVI of the Civil Procedure
Code dealing with issuance of
Commissions. The Central
Government in the discharge of its
functions under Article 3 of the
President's Order No. 12 of 1961,
could not, therefore, entrust the
entire enquiry to the Commission
appointed by it for the purpose.

(ii) the order passed by the

Government is not a "speaking
order": The distribution of the
properties between the appellant
(H. H. Nawab Muhammad Abbas
Khan Abbasi) and respondents Nos.
2 to 23 has been done at random
65

without disclosing any basis for

doing so. The properties
enumerated in the First Schedule
were vested in the appellant in his
capacity as the Ameer and for so
long as he was the Ameer. The
remaining properties in dispute
were divided between the appellant
and respondents Nos. 2 to 23 in
severality as set out in detail in the
Second Schedule. The parties were
held liable for their share of the
estate duty. There is no basis laid
down for the inclusion of the
properties in the First
Schedule -and to distinguish them
from the rest of the properties in
dispute included in the Second
Schedule.
66

(iii) the distribution of the property

in . the Second Schedule of the
impugned order cannot be justified
either on the basis of the applica-
tion of the alleged Customary Law
or the Shariat to this case. In the
absence of any valuation of these
properties it cannot be said that the
mode of division thereof was in
accordance with the respective
share of all the different heirs of the
late Ameer under the' Shariat Law.

(iv) the plea of the appellant that'

he 'was the sole heir and the entire
property in dispute was Ameerate
property attached to the Gaddi of
the Ruler and, thus, devolved on
him was rejected illegally, in limine,
vide its letter dated 10th July, 1967
67

without affording him any reason-

able and adequate opportunity for
hearing by the Central Government.

(v) the Central Government had not

allowed any reasonable opportunity
to the appellant to show cause
against the impugned order. The
Central Government did not hear
him before accepting the report
submitted by the Commission of
which he had no notice at all.

(e) As regards, the main contention

of the appellant on the merits that
under Article V of the Merger
Agreement dated the 17th
December, 1954, whereby the
Government of Pakistan had
guaranteed the succession
68

according to "law and customs of

the State of Bahawalpur" to the
personal rights, privileges, dignities
and titles of His Highness the Ameer
of Babawalpur, as specified in
Articles II to IV, which articles relate
back to the private properties,
movable as well as immovable, not
being the State properties
belonging to the late Ameer of
Bahawalpur on the date of the
Merger Agreement ; therefore, in
view of the law and custom of
Bahawalpur which was the rule of
primogeniture applicable to this
family the appellant succeeded to
the Gaddi as a Ruler and the
Ameerate and as the personal
properties were attached to the
Gaddi he was entitled to succeed to
69

them to the exclusion of the

respondents Nos. 2 to 23, it was
held that the Government of
Pakistan had merely guaranteed the
succession according to the "law
and customs of the Babawalpur
State" and it did not guarantee the
application of the custom in
preference to the other laws in
force in the State. This stipulation
only means that the succession
shall be according to rule of law in
general. It did not mean that this
rule of law was immutable for all
times and that the Legislature com-
petent to legislate in that matter
could not pass any law modifying
the law of succession in this behalf.
70

(f) On the question whether the

appellant was immune and exempt
from the payment of the estate
duty and application of the West
Pakistan Land Reforms Regulations,
1959 (MLR-64), it was observed
that according to the Bahawalpur
Merger Agreement, the late Ameer
of Bahawalpur was entitled to the
full ownership, use and enjoyment
of his private properties, not being
State properties. In this connection.
a list of those properties was also
drawn up and recognised by the
Government. By this, it was agreed
that these properties shall not be
treated as the State properties. But
it did not mean that these pro-
perties, in the private ownership of
the late Ameer of Bahawalpur,
71

were, in any manner, placed above

the law of the land and were not
subject to it like all other owners of
private properties. As a citizen of
Pakistan, the laws of land were
equally applicable to him, subject to
the immunities, if any, and the
personal privileges, dignities and
titles enjoyed by him and his family
members.

It was further observed that the

question as to whether the private
properties in dispute left, behind by
the late Ameer of Bahawalpur on
his demise on the 24th May, 1966,
were liable for the estate duty
under the Estate Duty Act, 1950
had come up only in directly. So far
none of the competent authorities
72

vested with jurisdiction in this

behalf under the Estate Duty Act
had passed any order against the
appellant and respondents Nos. 2
to 23. The provision made in the
devolution and distribution order
for the proportionate payment of
the estate duty that may be due
from the heirs of the late Ameer
was altogether gratuitous. The
eventuality for the payment of the
estate duty, if any, still remained to
be ascertained at the hands of the
competent authorities under the
Act. It shall be for the appellant and
respondents 2 to 23, after estate
duty has been levied to the satisfac-
tion of the competent authorities
that they were saved from the
operation of the Estate Duty Act.
73

Since this matter is already pending

before the Controller of Estate Duty
no further opinion can be expressed
at this stage.

In support of the appeal filed by the

Government of Pakistan (Civil
Appeal No. 128 of 1978) Syed
Iftikhar Ahmad, learned Deputy
Attorney General has submitted
that the .Bahawalpur Merger
Agreement dated 17-12-1954 was
made between the Sovereign Ruler
of Bahawalpur and the Sovereign
Dominion of Pakistan: The
Governor-General of the Dominion
of Pakistan executed the
Agreement as provided in section 6
of the Government of India Act,
1935 and it was duly laid before the
74

Federal Legislature as required by

subsection (9) of section 6 of the
said Act. 'Even though the
acceptance of this agreement by
the Governor-General was in
exercise of the powers under
section 6 of the Act, 1935 it was an
Act of State and as such, the
Municipal Courts of Pakistan
though required to take judicial
notice of it under subsection (9) of
section 6 could not enquire into its
validity nor could they issue any
process or order for the
enforcement of any provisions of
this Agreement.

It was further submitted that the

Merger Agreement, according to
the High Court, when made had the
75

backing of the Constitution

provided by section 6 of the
Government of India Act but this
backing ceased to exist on
14-10-1955 when the Establishment
of the West Pakistan Act, 1955
came into force and section 6 of
Government of India Act, 1935
stood omitted in accordance with
the provisions of the First Schedule
to this Act. The view of the High
Court that thereafter the Merger
Agreement was continued in force
as a "legal instrument" by Article
224 (1) of the Constitution of
Pakistan, 1956 and subsequently by
the Laws (Continuance in Force)
Order, 1958 and the Constitution of
Pakistan (1973) is not correct
because if for keeping the Merger
76

Agreement alive as an instrument

of legal validity continued
Constitutional sanction is necessary
; the Merger Agreement ceased to
have any legal validity after the
omission of section 6 from the
Government of India Act, 1935, on
14-10-1955 and there was no
Constitutional sanction available to
keep this Agreement alive till 23rd
March, 1956, when the 1956
Constitution came into force.
Accordingly, if the reasoning of the
High Court was followed the
Merger Agreement even ceased to
exist as a "legal instrument" having
lost the Constitutional backing on
14-10-1955 and, therefore, the
Constitution of 1956 by its Article
224 (1) could not bring to life
77

something which was not in force in

Pakistan immediately before the
commencing day i.e. 23-3-1956.

The learned Deputy

Attorney-General further submitted
that Article 202 of the 1956
Constitution by its clauses (1) and
(2) gave Constitutional sanction
only to the payment to a Ruler of a
State, in accession with Pakistan,
the sum of money fixed in an
Agreement with him as a privy
purse free of tax but provided no
constitutional recognition-to other
rights and privileges of the Ruler
under the Agreement apart from
holding out the assurance in Clause
(3) of this Article that "due regard
shall be had to the guarantees or
78

assurances given under any such

agreement" with respect to the
"personal rights, privileges and
dignities of the Ruler" while
exercising any law-making power
and in exercising the executive
authority of the Federation. Con-
sequently, the Federal Legislature
was not prohibited from making a
law contrary to or modifying the
"personal rights, privileges and
dignities of the Ruler" if it wished to
make any such law. However,
neither in the Constitution of 1962
nor in the 1973 Constitution there
was provision similar to Article 202
of the 1956 Constitution. Thus, the
Merger Agreement made between
the late Ameer of Bahawalpur and
the Governor-General of Pakistan
79

had no binding force and the

Government of Pakistan was only
under political and moral obligation
to observe its terms as far as public
interest permitted it.

It was further submitted that the

Government of Pakistan in order to
discharge its obligations under this
and other similar Agreements with
the Rulers enacted two statutory
enactments :-

(a) Rulers (Recognition of

Successors) Order, 1960 (P. O. No.
15 of 1960) ; and

(b) Acceding State (Property) Order,

1961 (P. O. No. 12 of 1961).
80

The first dealt with the question of

succession to office of Ruler of a
State ; while P. O. No. 12 of 1961 in
its Article 3 dealt with question
concerning devoultion and
distribution of the property of a
Ruler on his death when there is a
dispute between persons claiming
to be heirs and successors of the
Ruler. The Distribution Order of
1969, impugned by the appellant in
the other appeal, could, therefore,
validly be made thereunder.

Coming to the Acceding State

(Property) Order, 1961 it was
submitted that Article 3 which
alone is material in this case,
empowers the Federal Government
to decide a question arising
81

between persons claiming to be the

heirs and successors of a Ruler of a
State concerning devolution and
distribution of any property of that
State or of the Ruler. The absence
of any clear direction as to the law
to be followed by the Federal
Government in deciding the
question of devolution and
distribution of the property of the
Ruler among the heirs, indicates
that the intention of the law-maker
was to give the Federal
Government a free hand in
determining as to who are the
persons among the claimants, who
are entitled to succeed and what
share in the property may be
allocated to each one of them This
was necessary to enable the
82

Federal Government to discharge

its obligations under the Merger
Agreement which guarantees
protection to the personal titles,
dignities and privileges of the Ruler
for the time being. To enable the
successors of the Ruler to maintain
his status and position as Ruler, a
portion of the property left by the
late Ruler of Bahawalpur was set
aside, which the present Ameer
given, apart from his share in the
inheritance which he got alongwith
other heirs. The portion of the
property attached to the office of
the Ruler by the Distribution Order
of 1969 is to be held by the present
Ameer subject to the condition that
no part of it shall be alienated or
transferred without the prior
83

permission of the Federal

Government. The rest of the
property has been divided among
the heirs including the present
Ameer substantially in accordance
with the principles of Muslim Law.
Keeping in view the dictates of
policy necessitated by its
obligations under the Merger
Agreement, the division of property
as made in the Distribution Order,
1969 is just, fair and equitable and
it has been accepted as such by
almost all the heirs. The High Court
ought not to have interfered with
the division of the property as
made, especially as Article 7 of the
Order excludes the jurisdiction of
the Courts in this matter.
84

Coming to the question whether

the Central Government is to act as
a Judicial Tribunal deciding the
dispute of the kind herein
questioned it was submitted that
the High Court erred in holding that
the Federal Government in deciding
the question of devolution and
distribution of the property under
Article 3 of President's Order. No.
12 of 1961 must assume the role of
a judicial or a quasi judicial Tribunal.
It is true that the question falling
for decision under Article 3 must
necessarily involve rights to
property devolving on the claimants
by inheritance. The Central
Government in view of its
responsibilities appointed an
Inquiry Commission comprising of
85

two senior most officers of the

Provincial Government in the
Revenue side. They ascertained the
properties left by the late Ruler of
Babawalpur and got evaluations
made of urban properties, buildings
and. bungalows etc. by Engineers
and those of agricultural lands by
senior and subordinate Revenue
Officers. The claimants including
the present Ameer were issued
notices to appear before the
Commission and to present their
respective point of view. The
recommendations of the
Commission were thoroughly
scrutinised and examined by Senior
Officers of the Central Government
as is evident from the minutes of
the meeting of these officers dated
86

the 5th of August, 1968, which have

been filed in this Court. The
recommendations as finalized were
submitted to the President with a
summary for his approval. The
President approved the distribution
as recommended and thereafter
the Distribution order, 1969 was
issued. In the light of the provisions
of Article 3 of the Order, the
procedure adopted by the Central
Government was just and fair and
the report of the Inquiry
Commission and the other
documents filed in this Court clearly
show that adequate opportunity
was given to all concerned to place
their point of view before the
Commission.
87

Lastly, dealing with the question

whether the Central Government
had delegated its function to the
Inquiry Commission which was not
possible under Article 3 of the
President's Order No. 15 of 1961 it
is submitted that there was no
delegation of functions of the
Federal Government to the Inquiry
Commission. The Central
Government has to function
through its officers and the
Commissioner was entrusted with
the task of ascertaining the pro-
perties left by the late Ruler and of
suggesting division of the
properties among the claimants.
The final decision on the
recommendations was taken by the
Central Government after thorough
88

scrutiny and examinations of the

Commission's recommendations.
The ultimate approval was given by
the President.

Mr. A. K. Brohi, appearing on behalf

of the appellant in Civil Appeal No.
129 of 1978 (Nawab Mohammad
Abbas Khan Abbasi) submitted that
the accession of the State of
Bahawalpur into the Dominion of
Pakistan was accepted by the
Governor-General of Pakistan under
section 6 of the Government of
India Act, 1935, as amended by the
Pakistan Provisional Constitution
Order, 1947. The Instrument of
Accession having been accepted
under a constitutional power could
not be regarded as a treaty. In fact,
89

the Governor-General, who

accepted it, has no treaty making
powers. The Instrument of
Accession after acceptance was
fully incorporated into law, by force
of the provisions of section 6 (4) of
the said Act. Consequently, its
provisions can be scrutinized by a
Court of law. In these
circumstances, the Instrument of
Accession cannot be equated with
an Act of State on the principle that
what is done under the law cannot
be an Act of State.

However, the Instrument of

Accession dated 3-10-1947 as also
all the Supplementary Instruments
of Accession down to the ultimate
Merger Agreement of 17-12-1954
90

executed by the Ameer of

Bahawalpur whereby the State of
Bahawalpur lost its identity and
agreed to its absorption into one of
the Provinces of the Dominion of
Pakistan (West Pakistan) are
Constitutional Instruments.
Accordingly, they continued to exist
as such and can be undone only by
the method by which the
Constitution can be amended and
its stipulations cannot be
overridden by ordinary law. The
omission of section 6 of the 1935
Act (by the West Pakistan
Establishment Act of 1955) did not
affect the situation. The said
provision had served its purpose
and become redundant because all
the States in the region had by then
91

acceded to Pakistan. However,. the

Instruments already accepted
under section 6 continued as
Constitutional Instruments until
they were rescinded in a formal and
constitutional way. The provisions
of the Merger Agreement of 1954,
therefore, could not be modified or
overridden by any ordinary law.
According to Article V of the said
Agreement, the Government of
Pakistan had guaranteed the
"succession" according to law and
customs of the State of Bahawalpur
to the "personal rights, privileges,
dignities and titles of His Highness
the Ameer of Bahawalpur, as
specified in Articles 11 to IV of the
said agreement". The effect of this
provision was to confer juristic per-
92

sonality to the Ameer and to make

him a corporation sole. The office of
the Ameer of Bahawalpur had been
kept intact and signified the
continuance of the concept of
Ameerate. It was pointed out that
after the merger the Ameer became
a Ruler without any territory over
which he could rule and the
Ameerate was the symbol of his
status. The succession to the
personal rights of the Ameer was an
aspect of his status and it embraced
proprietary rights. The State
Property went to the Government
of Pakistan. However, the entire
personal property being Ameerate
property devolved on the Ameor.
Private property was an adjunct of
the office of the Ruler and
93

devolved upon the persons

succeeding to that office. Mr. Brobi
emphasised that personal rights
and personal properties are
interchangeable expressions and
personal rights embrace all the
rights mentioned in Article 3 of the
Merger Agreement. Accordingly,
the succession to the office of the
Ameer also included the rights to
succeed all the private properties of
the Ameer. Accordingly, the
appellant was entitled to succeed to
all the properties left by the late
Ameer, save that property which
was treated as State property.

The Devolution and Distribution

Order of 1969 was criticised on the
ground that it did not disclose the
94

principles on which it was made. It

not being a legislative act could not
impose the conditions that it
purported to impose on the
appellant in respect of the property
awarded to him under Schedule I to
the Order. The question of
succession could only be regulated
by the rule laid down in Article V of
Merger Agreement and on no other
principle. If effect was given to it,
the entire private property ought to
have been awarded to the
appellant.

Mr. A. R. Sheikh, appearing on

behalf of the legal heirs of
respondents Nos. 2 and 13 in both
the appeals provided us with the
factual background, accompanied
95

by the dates of the relevant acts

and events in the perimeters of
which the matters in dispute fall to
be decided. He generally supported
the judgment of the High Court and
strongly controverted the
arguments of Mr. Brohi that
proprietary rights are included in
personal rights. According to Mr. A.
R. Sheikh personal rights do not
include the right to property. The
property of the late Ameer
according to him was to be
distributed amongst the heirs
according to Shariat Law. He
conceded that the decision
regarding the succession to the
Gaddi was to be made by the order
of the Governor-General, but so far
as succession to the Private
96

Property of the Ameer was

concerned it was to be decided
according to Muslim Law.

Mr. Abdul Hakim Khan, on behalf of

respondents Nos. 3 to 12, 14 to 19
and 21 to 23 in both the appeals,
also supported the judgment of the
High Court. According to him, the
disputed property is the private
property of the late Ameer and the
Merger Agreement did not give any
assurance with regard to the
devolution of this kind of property.
This property is to be inherited in
accordance with the provisions of
the Muslim Personal Law (Shariat
Application) Act, 1962. He refuted
the contention of Mr. Brohi that the
institution of toe Ameer was a
97

corporation sole and pointed out

that such an institution can be
created in Pakistan only by statute
and could come into existence only
expressly and not by implication;
that there was no statute to the
effect that the Ameer of
Bahawalpur will be a corporation
sole and, therefore, the argument
that the Ameer of Bahawalpur
could be deemed to be a
corporation sole was not valid. He
also challenged the argument of the
learned Deputy Attorney-General
that after the omission of section 6
from the Government of India Act
on the enforcement of the
Establishment of West Pakistan Act,
1955, on 14-10-1955, there was no
constitutional sanction available to
98

keep the Merger Agreement alive

till 23rd March, 1956, when the
1956-Constitution came into force,
by submitting that "omission" of a
provision was equivalent to its
"repeal".

Mr. Inayat Hussain,

Advocate-on-Record, appearing for
respondent No. 20 adopted the
arguments of Mr. A. R. Sheikh and
invited our attention to Article 187
of 1973-Constitution, empowering
this Court to do complete justice in
a cause:

We have given our earnest

consideration to the submissions
made before us and have very
carefully considered the entire
99

matter. We cannot accept the

argument of the learned Deputy
Attorney-General that the
Instrument of Accession entered
into by the Ameer of Bahawalpur
with the Government of Pakistan
amounted to an Act of State and,
therefore, no proceedings can be
initiated before the Courts of law in
the country to enforce any of its
terms. This question has been dealt
with very elaborately and we may
say so with respect most ably by the
High Court who found the above
contention to be unsustainable.
Though there is hardly anything we
can add to the elaborate discussion
of this question by the High Court
we may perhaps mention that this
Court has in two judgments
100

explained connotation of the

phrase "Act of State" namely, in The
Superintendent, Land Customs,
Torkham (Khyber Agency) v. Dewar
Khan and others (1) and Special
Reference under Article 187 of the
Interim Constitution of the Islamic
Republic of Pakistan by President
Zulfiqar Ali Bhutto (2).

In fact, in the second judgment, the

connotation of this expression given
in the first judgment has merely
been reiterated. In these judgment
it was said that the expression "Act
of State" in its wider sense denote
"those acts of the Crown which are
done in the exercise of its
prerogative powers in the sphere of
foreign affairs, such as, the making
101

of war o B peace, the accession or

cession of territory, the recognition
of a new State or the new
Government of an old State. Acts of
the latter kind are no justiciable in
the Municipal Courts. (Underlining*
is ours).

According to Stephens "an act done

by a Sovereign authority indepen-
dently of the ordinary law of the
land is not cognizable by the
ordinary municipal courts. It is an
act injurious to the person or to the
property of some person who is not
at the time of that act a subject of
His Majesty which act is done by
any representative of His Majesty's
authority, civil or military, and is
either previously sanctioned or
102

subsequently ratified by His

Majesty". (Underlining* is ours).

Halsbury defines an act of State in

his Laws of England, fourth edition,
volume J 8, as-
"1413. Meaning of "act of
state".-An act of state is a
prerogative act of Policy in the field
of foreign affairs performed by the
Crown in the course of its
relationship with another state or
its subjects. Typical acts of State are
the making and performance of
treaties, the annexation of foreign
territory, the seizure of land or
goods in right of conquest,
declarations of war and of blockage.
The detention of an enemy alien in
103

wartime or his deportation may be

regarded as an act of state."

"1414. Acts of state outside the

Court's jurisdiction.-An act of State
is essentially an exercise of
sovereign power and hence cannot
be challenged, controlled or
interfered with by municipal Courts.
Its sanction is not that of law, but
that of sovereign power, and the
municipal Courts cannot question
it: it is a catastrophic change,
constituting a new departure, and
the municipal law has nothing to do
with the act of change by which the
new departure comes about.

Hence the Courts have no

jurisdiction to question the validity
104

of an act of state, and an individual

cannot rely upon an act of state in
order to found a cause of action.
1418. Acts of state and British
subjects.-In general there can be no
act of state with respect to a British
subject. Hence the defence of act
of state cannot be
pleaded by the Crown, nor whether
if act of state is no defence against
a British subject in such a case, act
committed upon him in Her
Majesty's dominions. For this
purpose "British subject" includes
friendly aliens resident within
British territory It has not been
clearly decided whether act of state
can be pleaded as a defence to an
action brought by a British subject
for a tort committed outside the
105

dominions of the Crown, nor

whether if act of state is no defence
against a British subject in such a
case, who is a British subject for this
purpose."
(1)PLD1969SC485 (2)PLD1973SC

*(Here in italics)
It is clear from Halsbury that the
Government cannot plead an act of
State against the subject.

Wade 8t Phillips in Constitutional

and Administrative Law, Ninth
Edition observe at page 299 :-

"An act of State has been described

as "an act of the Executive as a
matter of policy performed in the
course of its relations with another
106

state, including its relations with

the subjects of that state, unless
they are temporarily within the
allegiance of the Crown". As this
description suggests, the term act
of state rosy be used in a number of
senses . . . . . . Where an Executive
act occurs within the territories of
the Crown act of state may be
pleaded only against very limited
categories of litigant. It will not
succeed against a British subject or
a resident friendly alien .... The
extent to which act of State is
available in respect of Executive
action taken abroad against British
subjects is however unclear."

Salmond in his Law of Torts,

Sixteenth Edition, writes-
107

"A British subject owes allegiance to

the Crown in whatever part of the
world he may be; it seems,
therefore, that the Crown cannot
plead act of State as against him,
wherever the wrong may have been
committed. On the other hand
those who owe no allegiance to the
Crown may, save in British territory,
be dealt with by the Crown as it
pleases."

But Winfield in his Law of Torts,

Tenth Edition, writes-

"There is no doubt that no action

may be brought either against the
Crown or anyone else in respect of
an act of State, but there is little
108

agreement on the meaning .of this

phrase. Certainly an injury inflicted
upon a foreigner abroad which is
either authorised or ratified by the
Crown is for this purpose an "act of
State" and cannot be made the
subject of an action in the English
Courts, but it is doubtful whether,
as an answer to a claim for tort, act
of state goes any further than that.
It will probably not avail a
defendant to plead act of state in
respect of an act done within British
territory, whether against a British
subject or a friendly alien, and it
may well be unavailing against a
British subject wherever he may
be."
109

It will thus be seen that all the

learned authors draw a distinction
between the position of an alien
and of a citizen and whilst Winfield
has some doubts on the question
whether an act of State can be
pleaded by the Government as a
defence against a citizen, the other
learned authors have answered this
question in the negative without
any hesitation,

It is, thus, manifest from the

discussion made above, that the
Government cannot plead an Act of
State against the subject. In any
case, the Instruments of Accession
executed by the Am,3er of
Bahawalpur and accept by the
Governor-General of Pakistan in
110

exercise of a constitutional power,

conferred on him by section 6 of
the Government of India Act,
cannot possibly be categorised as
Acts of State.

By the terms of the aforementioned

provision (section 6 of the Act of
1935), no doubt, the Courts cannot
go behind the Instrument and
challenge its -validity, but the same
provision lays down that the
provisions of the Act (of 1935) shall,
in relation to the State, have effect
subject to the provision p of the
Instrument. Thus, these provisions
acquire the force of law and the
Courts are not debarred from
examining the effect thereof on the
right of the main contesting parties
111

before it and construing the

meaning and import of its
provisions.

The main submission of the

appellant in Civil Appeal No., 129 of
1978 is that under the terms of the
Merger Agreement he is, by the law
and customs of the State of
Bahawalpur, which according to
him prescribes the rule of
primogeniture in matters of
succession, entitled to succeed to
the private properties of the late
Ameer.

The crucial question, therefore, is

whether on a proper construction
of the provisions of the Merger
Agreement, the appellant in Civil
112

Appeal No. 129 of 1978 is right in

asserting that according to its terms
he is, indeed, entitled to succeed to
the entire private property of the
late Ameer, to the exclusion. of all
his other heirs. If the Court is
prepared to examine the matter on
this premises then the controversy
whether the Merger Agreement is a
"constitutional instrument", as
contended by Mr. Brohi, and cannot
be overridden by ordinary law or
whether its status is merely that of
a "legal instrument" at least after
the promulgation of the
1962-Constitution and, therefore,
could be overridden by ordinary
law, as held by the High Court or it
possessed no mere than political or
moral value, as submitted by the
113

learned Deputy Attorney-General

loses much of its importance.
We would, therefore, now proceed
to discuss how far the contention of
H. H. Nawab Muhammad Abbas
Khan Abbasi that he is entitled to
succeed to the entire private
property of the late Ameer is
correct, if the matter is decided on
the basis of the provisions of the
Merger Agreement of 1954 itself.

The bedrock of the case of the

appellant (in Civil Appeal No. 129 of
1978) to succeed to all the private
property of the late Ameer to the
exclusion of all his other heirs is
based on Article V of the Merger
Agreement. This Article lays down :-
114

"The Government of Pakistan

guarantees the succession
according to law and customs of the
State of Bahawalpur to the personal
rights, privileges, dignities and titles
of His Highness the Ameer of
Bahawalpur, as specified in Articles
II to IV."

Article II provides for privy purse,

free of taxes and Article IV relates
to "all the personal privileges,
dignities and titles enjoyed" by the
Ameer, Her Highness and their
children. Article III, however,
provides as follows :-

"His Highness the Ameer shall be

entitled to the full ownership use
and enjoyment of all the jewels,
115

jewellery, ornaments, securities and

other private properties, movable
as well as immovable, not being
State properties, belonging to him
on the date of this agreement.

If any dispute arises as to whether

any item of property is the private
property of His Highness or State
Property, it shall be decided by the
Governor-General of Pakistan
whose decision shall be final and
binding on all concerned."

The question, therefore, is whether

the guarantee regarding succession
to personal rights, privileges,
dignities and titles includes
succession to private property as
well. The Ameer, no doubt, has
116

been conferred the right of full

ownership over the private
property but the guarantee
regarding succession, according to
the law and custom of Bahawalpur,
is confined only t personal rights,
privileges, dignities and titles of His
Highness the Ameer of Bahawalpur,
as specified in Articles II to IV above
and no mention is specifically made
to succession to private property in
Article V. This would indicate that
the guarantee has not been
extended to succession to private
property in accordance with the law
and customs of the State. This
conclusion i9 reinforced by the
circumstance that once rights which
have been guaranteed have duly
been specified in Article V then any
117

further reference to the rights

mentioned in Article III, specially
those which are inconsistent with
the rights specified in Article V,
cannot be resorted to and in fact
must be ignored. In Article V, as
already pointed out, no reference is
made to private properties.
Consequently, Mr. Brohi was
constrained to argue that
succession to personal rights by the
law and customs of the State, which
is guaranteed by Article V, includes
succession to private properties as
well. Unfortunately: there is no
force in this submission because
personal rights do not include the
"proprietary rights". Paton in his
Text Book of Jurisprudence (Third
118

Edition Page 266) distinguishes the

two as follows :-
"Personal- rights can be defined
only as the residuary rights which
remain after proprietary rights have
been substracted."

Salmond on Jurisprudence (12th

Edition) also brings out this
distinction on pages 238 and 239 in
the following words :-

"The aggregate of a man's

proprietary rights constitutes his
estate, his assets, or his property in
one of the many senses of that
most equivocal of legal terms. The
sum total of a man's personal rights
on the other hand constitutes his
status or personal condition, as
119

opposed to his estate . . . . . If we go

outside the sphere of private into
that of public law, we find the list of
personal rights greatly increased.
Citizenship, honours dignities and
official position in all its
innumerable forms, pertain to the
law of status, not that of property."

Reference may also be made to two

judgments from the Indian jurisdic-
tion The State of Bihar v. Sir
Kameshwar Singh (A I R 1952 S C
252), wherein at page 306 it was
observed :-

"The guarantee or assurance to

which due regard is to be had is
limited to personal rights, privileges
and dignities of the Ruler 'qua' a
120

Ruler. It does not extend to

personal property which -is
different from personal rights .. . ."

The same view was reiterated in

Sudhansusekhar Singh Deo v. The
State of Orissa and another (AIR
1961 SC196), and it was found that
personal property is different from
personal rights.

This distinction appears to have

duly been kept in view in the Merge
Agreement because though private
property was specifically provided
for in Article III thereof, it is
conspicuously omitted in Article V.
A genera r reference to Articles II to
IV while guaranteeing succession to
personal rights, privileges, dignities
121

and titles only cannot enlarge the

guarantee, alter the concept or
efface the distinction between
personal rights and the personal
property which is clearly brought
out in books of jurisprudence
decisions of Courts and other legal
literature. It also appears from the
scheme of Article IV that only two
categories of property were
recognised, the State property and
the private property no third
category of impartible inalienable
property attached to the office of
the Ameer as such was envisaged.
Thus, whatever was not found to be
State property was the private
property of the Ameer. According
to section 9 of the Establishment of
West Pakistan Act, 1955, all State
122

properties were to vest for the

purposes of Government of
Pakistan while the remaining
properties were to be regarded as
the property of the Ameer. In fact,
this pattern of thought was consis-
tently followed in the agreements
entered into between the late
Ameer of Bahawalpur and the
Governor-General of Pakistan. For
instance, in the Agreement dated
11th April, 1952 regarding "Privy
Purse, Private Property and Rights
and Privileges" the guarantee
clause (Article 1V) therein was in
the following terms :-

"The Government of Pakistan

guarantees the succession
according to law and custom of the
123

State of Bahawalpur to the Gaddi of

the State and to the personal rights,
privileges, dignities and titles of His
Highness the Ameer of
Bahawalpur."

The Private Property was dealt with

in Article II of that document,
namely, "His Highness the Ameer
shall be entitled to the full
ownership, use and enjoyment of
all the jewels, jewellery, ornaments,
shares, securities and other private
properties, movable as well as
immovable, not being State
properties, belonging to him on the
date of this agreement."

Here also private property was

excluded from Article IV wherein
124

the Government of Pakistan had

guaranteed the succession
according to law and customs of the
State of Bahawalpur to the personal
rights, privileges, dignities and titles
of His Highness the Ameer of
Babawalpur.

It is, therefore, clear that under the

Merger Agreement there were only
two categories of the properties viz.
State Property and Private
Property. While State Property was
to be taken over by the West
Pakistan Govern merit the dispute
was only with regard to the
succession to the Private( Property
and Article V of the Merger
Agreement extended the guarantee
regarding succession according to
125

law and custom of the State of

Bahawalpur only to personal rights
which, as discussed above, did not
embrace private property.

Consequently, when the question

arose between heirs of the Ruler of
the State concerning devolution
and distribution of the property the
same could be decided by the
President of Pakistan according to
Article III of the Merger Agreement
or the Central Government under
section 3 of the President's Order
No. 12 of 1961 viz. Acceding States
(Property) Order, 1961. Here we
may observe that we are in
agreement with the view of the
High Court that President's Order
No. 12 of 1961 is not at all in
126

conflict with the Merger Agreement

and is only complementary to it. As
has been pointed out the Merger
Agreement does not expressly
specify the forum for the
settlement of any dispute, which
arise in implementing its terms. This
aspect is provided for in Article 3 of
the President's Order No. 12 of
1961. The provisions of this Order
do not override any of the
provisions of the Merger
Agreement and, in fact, the two are
complementary to each other.
We may now proceed to examine
the validity of the Devolution and
Distribution order, 1969 passed by
the Central Government under
section 3 of President's Order No.
12 of 1961. As has already been
127

noted that in the order the movable

and immovable properties of the
late Ameer have been divided into
two parts and dealt with differently.
A part of it has been included in the
First Schedule which were held to
belong to and vest in the appellant
(in C. A. No. 129 of 1978) in his
capacity as and for so long as he is
the Ameer. This was done to enable
the successor of the Ruler to
maintain his status and position as
a Ruler. However, he was to
discharge all the debts and liabilities
of the late Ameer out of this
property. Moreover, a further
restriction was placed on him that
he shall not transfer by sole or
otherwise any of the above
properties without the approval of
128

the Central Government or create

any encumbrance on them. The
other part, which was placed in the
Second Schedule, were distributed
in severalty among the appellant
and the remaining personal heirs of
the late Ameer (respondet01s Nos.
2 to 23) in the manner and the
extent indicated in the Schedule. All
the heirs of the late Ameer were
held to be liable for the estate duty
payable in respect of the properties
that devolved on them.

The High Court held that the

distribution of the property under
order of the Central Government
had been done at random without
disclosing any basis foe doing so
and the properties had not been
129

valued and it was not clear whether

the mode of division was in
accordance with the Customary Law
or Shariat Law.

In the course of the proceedings in

this Court, Syed Iftikhar Ahmad,
learned Deputy Attorney-General
placed the copy of the report
containing the entire proceedings
conducted by the Inquiry
Commission which made the
recommendations with regard to
the distribution of the property to
the heirs of the late Ameer of
Bahawalpur and formed the basis of
the Order of the Central
Government after approval by the
President of Pakistan.
Unfortunately, as the above copy of
130

this report was not placed before

the High Court, the High Court was
led to think that distribution of the
property had been made at random
and was not based on any principle.
A perusal of the report shows that
apart from the portion of the
property in Schedule I, which was
attached to the office of the Ruler
and to be held by the present
Ameer subject to the condition that
no part of it shall be alienated or
transferred without prior
permission of the Central
Government, the rest of the
property was divided among the
heirs including the present Ameer,
in accordance with the principles of
Muslim Law, justice and fairplay.
The report further shows that all
131

the heirs had an adequate

opportunity to represent their point
of view before the Commission,
which appears to have made
strenuous efforts to ascertain the
properties left by the late Ameer of
Bahawalpur and get them
evaluated, from Engineers (so far as
urban properties were concerned)
and Revenue Officers (as regards
agricultural property) and to make
as fair a distribution as was possible
in accordance with their rights.

In fact, respondents Nos. 2 to 23

were fully satisfied with the
distribution of the property in
Schedule II and did not object to it
by filing any writ petition and,
indeed, pressed for its acceptance
132

by the High Court in the written

statement filed by them. The
appellant (in Civil. Appeal No.
129/78) alone objected to it and
that to only on the ground that he
was entitled to the entire private
property on the rule of
primogeniture and not because he
was not given his Share under the
Muslim Law.

The question, therefore, arises

whether any interference is called
for in the Devolution and
Distribution Order passed by the
Central Government. We have
already found that the contention
of the appellant (in Civil Appeal No.
129 of 1978) to the effect that he
was under the Merger Agreement,
133

entitled to succeed to the entire

property of the late Ameer, on
account of the rule of
primogeniture, according to the law
and customs of the State, is without
force. The real question, therefore,
which arises is as to whether the
Central Government had unbridled
powers to distribute the property in
any manner it thought fit or
whether it was bound by any rule in
determining the dispute regarding
the succession to the private
properties of the late Ameer of
Bahawalpur. We agree with the
High Court that as valuable civil
rights of the parties were involved,
the decision could not be taken
arbitrarily but had to rest on some
principle. The rule of decision in the
134

absence of an compulsion to the

contrary could, we have no doubt,
be only the Muslim Law (Shariat).
No such compulsion exists as it has
already affirmatively been found
that the contention to the effect
that under the Merger Agreement
the question of succession is to be
governed by the law and customs of
the State is untenable. The State of
Bahawalpur, as we have mentioned
already, ,N acceded to the
Dominion of Pakistan on 3-10-1947.
Shortly, thereafter, the Pakistan
Citizenship Act was enacted, on
13th April, 1951 and by the
Bahawalpur (Extension of Federal
Laws) Order, 1953
(Governor-General's Order No. 5 of
1953) its operation was also
135

extended to the State of

Bahawalpur and, accordingly, the
appellant, as also Respondents Nos.
2 to 23, became citizens of
Pakistan. Thereafter, pursuant to
the Bahawalpur Merger Agreement
entered into on 17-12-1954, and
the coming into force of the
Establishment of West Pakistan Act,
1955, the State of Bahawalpur was
absorbed into the Province of West
Pakistan. On 31-12-1962, the
Muslim Personal Law (Shariat
Application) Act, 1962 was enforced
which extended to the whole of the
Province of West Pakistan, whereby
Muslim Personal Law (Shariat) was
to apply in all questions regarding
succession, where the parties are
Muslims. In fact,'the Bahawalpur
136

State had itself adopted in 1951

(1951-a-5~1 N_~)Q J.:; "l-U
~9.it9)- Consequently, in deciding
how the private property of the late
Ameer was to be distributed among
the heirs of late Ameer of
Bahawalpur, the Muslim Law
(Shariat) was to be the rule of
decision and ought to have been
applied. Indeed, the Central
Government, while deciding this
dispute, which involved a question
pertaining to succession to the
private property of the late Ameer
was expected to apply the same
rule that any ordinary Court of Law
would have applied. The Central
Government was burdened with
the onerous duty of deciding this
matter only because of the special
137

status of the parties. In view of the

high status of the contestants it
appears that it was considered
appropriate to create a special and
exclusive forum to decide their
dispute, so as to save the dis-
tinguished members of the late
Ruler's family from the rigours of a
trial before the Ordinary Court of
the land. Apart therefrom, the
dispute, touching as it did the civil
rights of the parties had to be
determined in accordance with the
law of the land which applied to
such matters, viz. Muslim Law
(Shariat):

However, the distribution of

property made in the Devolution
and Distribution Order is not in
138

accordance with the said rule. The

private property of the late Ameer
was divided into two parts and
dealt with in Schedule 1 and
Schedule II of the Order. As regards
the property in Schedule 1, this was
awarded, subject to certain
conditions. to the appellant (in Civil
Appeal No. 129 of 1978) on the
ground that he, being the successor
to the Ameerate, was entitled to
some property apart from what
was his rightful share in order
to enable him to maintain his status
as a Ruler. The award of any
property on this account, however,
was not justified. We have already
seen that only two categories of the
property viz. State Property and the
Private Property was envisaged in
139

the Merger Agreement of 1954 and

no third category of the property
which was attached to the office of
the Ameerate was envisaged
therein. The argument of Mr. Brohi
that the Ameer of Babawalpur was
a Corporation Sole and the entire
property belonged to the person
occupying the office of the Ameer,
is not correct. No statute was
shown to us which creates the
Ameer of Bahawalpur as a
Corporation Sole, nor can he
deemed to have become so by the
terms of the Merger Agreement. As
State property was to be taken over
by the West Pakistan Government
under section 9 of the
Establishment of West Pakistan Act,
1955 and possession thereof was
140

accordingly taken over by it, only

the private property was left and
this had to be distributed among all
the heirs in accordance with the
principles of Muslim Law. Here we
may mention that our attention
was drawn to the fact that with
effect from 20-12-1971 by the
President's Order No. 15 of 1972 on
the subject of "Ruler of Acceding
States (Abolition of Privy Purses and
Privileges) Order, 1972" the right of
a Ruler to a privy purse, and all
other privileges or titles guaranteed
or granted to a Ruler by or under
any instrument of accession,
agreement or under any law were
abolished and it was submitted that
in the present context there is no
point in reserving any property left
141

by the late Ameer of Bahawalpur

for maintaining the status and
position of his successor as a Ruler.
We may observe that as the
Instrument being relied upon in
support of this submission
(President's Order No. 12 of 1972)
was not to the field when the
impugned Order of 1969 was
passed by the Central Government
it could not affect the situation.

We have already noted that even in

the property exclusively reserved
for the appellant and included in
Schedule I stipulations were made
to the effect that this part of the
property could not he alienated or
transferred o in any way
encumbered. Limitations of this
142

kind can be imposed only by a

legislative act and not by an order
made in exercise of a power to
distribute the property among the
legal heirs and, therefore, the said
limitation could not be imposed
within the limits of the relevant
statute.

However, that may be, as already

explained above, no part of the
property could be kept apart and
given only to one of the heirs. The
whole of it was liable to be
distributed to all the heirs and that
too also in accordance with the
rules of Muslim Law.

Even the property covered by

Schedule 11 has not been
143

distribute' strictly in accordance

with Muslim Law, but only
"'substantially" with it. The other
factors being "justice" and
"fairplay". Thus, the criticism made
by the High Court that the
distribution made by Respondents
No. 1 (in Civil Appeal No. 129 of
1978 i. e. the Central Government)
in distributing the property to the
various heirs of the late Ameer is
not based on any principle or rule
or any law but on its own personal
notions is well founded. Though
some of the criticism against the
Distribution Order made by the
High Court to the effect, inter alia,
that the property was not got
evaluated, is not correct. But it is
Respondent No. 1 (in Civil Appeal
144

No. 129/78) who is to blame for

this, for failing to place the report
of the Enquiry Commission before
the High Court. Nonetheless, the
basic criticism against the validity of
the Devolution and Distribution
Order remains unaffected, namely,
that it illegally divided the private
property of the late Ameer in two
parts; awarding one part of it to
one heir only and the other part
alone to all of them and that the
distribution of the property made
to them too was not strictly in
accordance with the rules of
Muslim Law (Shariat).

On this view of the matter we

would agree with the High Court
that a the Devolution and
145

Distribution Order passed by

respondent No. 1 (in Civil Appeal
No. 129/78) is not within the limits
of the statute under which it
purports to have been made and
despite the ouster clause contained
in Article VII of President's Order
No. 12 of 1961, whereby the
jurisdiction of the Courts to
question orders made under Article
III thereof was ousted, could be
scrutinised by the High Court
because any order which is not
passed within the four corners of
the statute authorising the passing
of such an order is not immune
from challenge vide Khair
Muhammad Khan v. State (P L D
1966 S C 604). Consequently, the
High Court was right in remanding
146

the case to the Central Government

for decision afresh in accordance
with the law.

We may here clarify that we do not

agree with the High Court that the
Inquiry Commission appointed by
the Central Government could not
have been appointed for
ascertaining the properties left by
the late Ameer and to suggest the
mode of its distribution to his heirs.
In our opinion where a matter is to
be decided by the Central
Government, which can be
determined after making some
inquiry it can either itself hold the
inquiry in any manner that appears
to it to be necessary or justified or
get such an inquiry made through
147

its officers. If the latter course is

followed it does not imply that it
has delegated its powers in the
relevant regard because the power
throughout) remains with it. The
inquiry is only confined to fact
finding and to making
recommendations. The Inquiry
Commission, while conducting the
inquiry must hold it after giving a
fair opportunity to all concerned to
present their point of view, before
making their recommendations. It
may give notice to the heirs
requiring them not only to give
their views about the mode of
distribution of the property, but
also to indicate if any property
belonging to the late Ameer has
148

escaped notice and has not been

taken into account so far.

As for the question regarding the

liability for payment of estate duty
on the property devolving on the
heirs of the late Ameer we agree
with the finding of the High Court
that this issue is premature at this
stage. We may, however, make it
clear that the appellant (in Civil
Appeal No. 129 of 1978) nor the
other heirs of the late Ameer can be
regarded as above the law and to
be immune from the operation of
the Estate Duty Act, 1951. No such
immunity has been granted to them
under any provision of the Merger
Agreement of 1954 or any other
law. However, each heir will be
149

liable for the estate duty of only his

share of the property, which will be
payable as soon as the exact share
of each heir has been determined
by the Central Government.

The upshot is that both the appeals,

directed against the judgment of
the High Court remanding the
matter to the Central Government
for a decision afresh, passed in Writ
Petition No. 346 of 1969 fail and are
dismissed hereby. subject,
however, to the observations made
above. The parties, however, will be
left to bear their own costs.

s. A. H. Appeals dismissed.