IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MRS. JUSTICE AYESHA A. MALIK
(Ac/t)
Civil Appeals No.10-0 and 1273 of 2021, CMA No. 0780
of 2021 and Criminal Appeal No.4-0 of 2021.
(On appeal against the judgment dated 30.06.2021 passed by the High Court of
Balochiston, Quetia in RFA Na41 of 2014 and Contempt Application No.62 of 2018)
Zakia Begum and another.
fiq CA. 10  & CrI.A.4.Q12021)
Shams-ui-Islam Khan and others.
(in CA. 1273/2021 & CMA.10780/21) 
Appellant(s)
Versus
1.
S
Nash--ui-Islam Khan and others.
fin CA.JO-Q/21)
Shams-ui-Islam Khan and others.
(in CrLA.4-Q1202 I)
Zakia Begum and another.
(in CA. 727312021 & CMA. 70780/21)
For the Appellant(s):
For the Respondent(s)
Respondent(s)
Mr. Azhar Ahmed Khan, Attorney.
(in CA. 1O-Q/21, CrLA.4-Q/21 & respdts.#1-
2 in CA. 1273121)
Mr. Naeem Bukhari, ASC.
([orrespdts. in CA. 1273121 for respdts.#1(a-
e, g, h), 2 in CA. I O-Q/21 & 2-3 in CrLA.04-
Q121).
Date of Hearing:
Mr. M. Qasim Khan, ASC.
(for respdts.i9-14 in CA. 10-Q121 & 10-15 in
CA. 7273121)
Mr. Gui Hassan Tareen, ASC.
(for respdt.# 15 in CA.) 0-Q121)
Mr. M. Munir Paracha, ASC.
(for respdL#5 in CA. 1273121)
31.03.2022. (Judgment Reserved)
JUDGMENT
IJAZ UL AESAN, J-. Through this common
judgment, we intend to decide Civil Appeal No. 10-Q of 2021
It • CfltMLJ4 .(fl% 27/2I f)cnALMwAL fl 2GflI MDCk N 7O7T)f2I 
2
and Criminal Appeal No.4-Q of 2021 (filed by Zakia Begurn,
etc) and Civil Appeal No. 1273 of 2021 (filed by Shams-ui-Islam
Khan and others) as they arise out of the same impugned
judgment of the High Court.
2.
Through these Appeals, the respective Appellants
have challenged the judgment of the High Court of
Balochistan at Quetta dated 30.06.202 1 (hereinafter referred
to as "impugned judgment") passed in RFA No.41 of 2014
and Contempt Application No.62 of 2018. By the impugned
judgment, an Appeal filed by Zakia Begum, etc was accepted
and the judgment and decree of the Senior Civil Judge-II,
Quetta dated 21.03.2014 was set aside and the suit of the
Appellants was decreed. She is however aggrieved of certain
portions of the impugned judgment as well as the fact that
her Contempt Application filed against the Respondents was
dismissed. On the other hand, Shams-uI-Islam and others are
aggrieved of the impugned judgment on the basis that by
setting aside the judgment and decree of the Senior Civil
Judge-11, Quetta, the suit of Zakia Begum, etc has been
decreed by the High Court.
3.
The necessary facts giving rise to this Us are that
on 13.12.2005, Zakia Begum and the legal heirs of
Mehmooda Begum filed a Suit for Declaration, Possession,
Partition, Rendition of Accounts & Permanent Injunction
against the Respondents with respect to suit properties and
businesses fully described in the plaint (hereinafter referred
to as the Suit Properties'). In the fourth and final plaint of
cflM'JzNQS.4oa 1273121 
y'LAPPELm nI DCA4f2flYL4A
the Appellants, it was averred that the Appellants as well as
Respondents No.1 & 2 were the legal heirs of the late Abdul
Salam Khan. On 02.06.1977, Abdul Salam Khan died and left
behind an estate which included various agricultural,
residential and revenue-generating properties/ businesses. At
the time of Abdul Salam Khan's death, his legal heirs were:
his widow Jameela Begum; his two Sons Saif-ul-Islam Khan
and Shams-ul-Islam Khan; and his four daughters
Mehmooda Begum, Razia Begum, Zakia Begum, and Samina
Saeed. Jameela Begum passed away on 24.08. 1982 and as a
result, a bungalow as well as some agricultural land were
added to the pool of inheritable properties between the two
brothers and four sisters. It was further averred that despite
multiple requests, the brothers refused to partition the estate
between the brothers and sisters according to their Quranic
shares. The suit was contested by the Respondents and after
pro and contra evidence was led, the suit of Zalcia Begum was
dismissed by the Senior Civil Judge-11, Quetta (hereinafter
referred to as the "Trial Court") vide his judgement & decree
dated 21.03.2014. An appeal was filed by Zakia Begum
against the judgement & decree dated 21.03.2014 before the
Balochistan High Court. The High Court, vide its judgement
dated 17.08.2020, allowed the appeal of Zakia Begum,
remanded the matter back to the Trial Court and permitted
Zakia Begum to file an amended plaint before the Trial Court.
Aggrieved of the judgement of the High Court dated
17.08.2020, Zakia Begum filed C.P. No.202-Q/2020 before
this Court which was allowed, vide order dated 06.01.2021.
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4
The matter was remanded to the High Court with a direction
to decide the matter itself. The High Court, vide the impugned
judgement dated 30.06.2021, allowed the appeal of Zakia
Begum, reversed the judgement & decree of the Trial Court
dated 21.03.2014 and decreed the suit of Zakia Begum. The
Court while decreeing the suit, also preserved the rights of
Respondents No. 9 to 15 who claimed to be bona fide
purchasers without notice qua the suit properties. The High
Court held that the Appellants were entitled to recover their
Quranic shares from the sale consideration received for the
properties sold to Respondents No.9 to 15. It is against this
factual backdrop that Appellants filed C.A.s No. 10-Q & 1273
of 2021 respectively before this Court. Zakia Begum has also
filed Crl.A No.4-Q against the same impugned judgement
passed by the High Court in Contempt Application
No.62/20 18.
4. The main argument advanced by the Attorney for
the Appellants in C.A.No.10-Q & Crl.ANo.4-Q of 2021 is that
the High Court had erred in Jaw by not decreeing the suit of
Zakia Begum as prayed for when passing judgement in the
Appellants favour. He also argued that the bona fide
purchasers had, in fact, been aware of the litigation pending
between the parties with respect to the suit properties. This
knowledge had, as a result, disentitled them from the
protection of Section 41 of the Transfer of Property Act, 1882.
He has relied on judgements passed by this Court in Zohra
Bibi us. Hali Sultan Mahmood (2018 SCMR 762), Sahib Jan
cjVTLAptt4L)OsI-O& 27S/21 /sCRoEv4LAPnAL.'fl Io2Ern MDcMAdflO/21
vs. Mst. At,'esha Bthi (2013 SCMR 1540), Municipal Committee
of Chakwal vs. Ch. Fateh Khan (2006 SCMR 688), 2002
SCMR 1345 and Mst. Raj Bibi vs. Province of Punjab thr.
District Collector, Okara (2001 SCMR 1591).
5.
The Learned counsel for the Appellants in C.P.
No.1273 of 2021/Respondents No.1 & 2 in C.P. No.10-Q
(hereinafter referred to as the Brothers) has argued that the
suit of Zakia Begum ceased to be maintainable for lack of
necessary parties when she failed to implead all the legal
heirs of the late Abdul Salam Khan and Jameela Begum as
either plaintiffs or defendants in her subsequently amended
plaints. He contends that the estate had already been
distributed by the late Abdul Salam Khan and Jameela
Begum during their life times through two registered wills
dated 24.12.1970 (hereinafter referred to as "The Wills'). The
High Court, while passing the impugned judgement, had
omitted to consider the fact that none of the legal heirs of the
late Abdul Salam Khan and Jameela Begum had denied the
two registered wills dated 24.12.1970 nor had they denied
their signatures on the registered wills which were duly-
signed in the presence of witnesses. He further argues that
the two wills were in complete harmony with the Injunctions
of Islam and were not violative of any of the legal heirs'
Quranic shares.
6.
The Learned Counsel for Respondent No.5 in C.A.
No.10-Q/2021 has argued that the wills dated 24.12.1970
were invalid in light of the fact that they were made in favour
• 
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CRThCWAL tfl4L !) GO r A D cp4 b& !Q7V 
6
of the legal heirs as well as the fact that they were wills in
excess of one-third of the total estate that constituted the
legacy/estate of the late Abdul Salam Khan and Jameela
Begum. Therefore, the wills, prima-facie, went against the
principles of Sharia. He has relied on Sections 117 and 118
of Mullahs Muhammadan Law as well as Section 189 and
190 of B.J. Vermas Commentaries of Muhammadan Law.
7.
The learned Counsel for Respondents No.9 to 14
in C.A. No. 1O-Q/2021 (hereinafter referred to as the
"Purchasers") on the other hand has defended the impugned
judgement of the High Court. The Learned Counsel has also
relied on an unreported judgement of this Court passed in
C .A. No. 2688/2006 titled Mst. Alokzai and others vs. Allah
Dad and others,
8.
We have heard the learned counsels for the parties
at length and gone through the case record with their
assistance.
9.
The issues that need to be determined by this
Court are:-
i.
Whether the registered will dated 24.12.1970
was in consonance with Sharia/injunctions
of Islam?
ii.
If the registered will dated 24.12. 1970 went
against the injunctions of Islam, what
bearing would it have on the rights of the
Quranic legal heirs inter se?
iii.
Whether Sharia-ordained inheritance rights
will take precedence over the protection
provided in Section 41 of the Transfer of
Property Act (hereinafter referred to as the
"TPA 1882)?
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£..U.Zq S4&& 
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10. Before we discuss the merits of the appeals in
hand, it may be prudent to first define what a will is. Wills are
defined in the Succession Act of 1925 under Section 2(h). It is
reproduced below for reference:-
"will" means the legal declaration of the intention
of a testator with respect to his property which he
desires to be carried into effect after his death.
A will can therefore be considered as a formal document
drawn up by a natural person wherein he expresses his wish
as to how he would want his estate to be distributed after
their death. By virtue of the fact that wills operate after the
death of the donor, they are considered testamentary
instruments i.e. instruments that come into effect after the
death of the donor/testator. A will, therefore, ceases to be a
will if it is executed and acted upon during the lifetime of the
testator. Instead, a will executed in the lifetime of a donor
takes on the guise of an inter-vivos instrument i.e. an
instrument which is executed within the lifetime of a person
which can take the form of a gift which has its own
requirements and different standards of proof. It is not the
case of any of the parties that the instruments in question
were gift deeds. It is admitted in the pleadings of the brothers
that the wills were executed and acted upon during the
lifetimes of the late Abdul Salam Khan and Jameela Begum.
This facturn alone brings into question the validity of the wills
in light of Section 2(h) of the Succession Act, 1925. However,
the veracity of the wills have not been questioned in the light
of their legality per se but have instead been challenged with
respect to their incongruity in light of Sharia.
C&rAF4L\4-O& 3m'?: &CLW AL4LWI 16-O2I AvDcMAsJ97221 
8
11. In order to ascertain whether the wills in this case
are compliant with Sharia, it is necessary to discuss the
sections of various treatises relied on by the learned counsel
for parties. Section 117 of Mullahs Mohammadan Law is
reproduced as follows:-
'A bequest to an heir is not valid unless the other
heirs consent to the bequest after the death of the
testator. Any single heir may consent so as to bind
his own share.
Explanation - In determining whether a person is or
is not an heir, regard is to be had, not to the time of
the execution of the wilt, but to the time of the
testator's death. (Underlining is ours)
Section 118 of Mullahs Mohammadan Law is reproduced as
follows:-
"A Mahomedan cannot by will dispose of more than
a third of the surplus of his estate after payment of
funeral expenses and debts. Bequests in excess of
the legal third cannot take effect, unless the heirs
consent thereto after the death of the testator."
(Underlining is ours)
Section 188 of B.J. Vermas Commentaries of Muhammadan
Law is reproduced as follows:-
"A bequest to an heir is not valid except to the
extent to which the persons who are the heirs of the
testator at the time of his death, expressly or
impliedly consent to the bequest after his death."
Section 190 of B.J. Vermas Commentaries of Muhammadan
Law is reproduced as follows:-
"A Mohammedan is not entitled to dispose of his
property (which would otherwise devolve on his
heirs under Mohammedan Law) btj wilt in favour of
a person who is not a heir, in excess of one third
except in the following cases:-
(1) Where, subject to the provisions of any law for
the time being in force, such excess is permitted by
a valid custom;
(2) where there are no heirs of the testator;
cM1t4L Ic4n& 127312! /flauVALAflLXfl U.4122 MY JCM4 IO'12I
(3) where the heirs existin g at the time of the
testator's death, consent to such bequest after his
death;
(4) where the only heir is the husband or the wife
and the bequest of such excess does not effect his
or her share.' (Underlining supplied is ours)
The Rule behind Section 190 is reproduced as follows:-
"The limit of one third is prescribed in respect of
property, except in the cases given in Section 190.
This is based on a tradition of the Prophet and the
object is to prevent a person from so disposing of
his property as to leave the heirs destitute.
The second restriction with respect to person is
limited to heirs. The policy of Mohammedan Law is
to prevent a testator from interfering by will with
the course of devolution of property among his heirs
according to law although he may give a specified
portion, as much as a third, to a stranger. It
safeguards against a breach of the ties of the
kindred. It is intended to prevent the showing of
favouritism to any heir to the prejudice of the others
and thus defeating the policy of the Quranic
injunctions as to the division of heritage according
to fixed principles."
12. We have gone over the wills keeping in
consideration the aforementioned expositions of law which
have long been accepted as the correct meaning scope and
interpretation of the relevant principles of Sharia relating to
wills made by Muslims. We have noticed that the will of the
late Abdul Salam Khan has been drawn up with an obvious
bias in favour of the sons. The sons have been given the lion's
share in the inheritable pool of properties especially with
respect to lucrative revenue-generating properties/ businesses
to the complete exclusion of the daughters. A sharia-
compliant will would not act as an ex-ante instrument which
regulates the inheritable shares of any and all legal heirs
before the actual opening of the testator's estate. This would
2fl 
in.cv n p c.t &?p7Mw2J 
10
be the case even where the ultimate value received by all the
legal heirs is equivalent to what would have been their
receivable Quranic share at the time of the opening of the
estate. The daughters were just as entitled as their brothers
to a share in their fathers businesses and other properties at
the time the estate would have opened up. They were denied
that opportunity to become shareholders by virtue of their
Quranic rights of inheritance in the suit properties by virtue
of the wills in question. The wills had, in essence, ex-ante
deprived Quranic inheritors of their shares in properties
which they would have received at the time of the opening of
the estate for inheritance. The will of the late Abdul Salam
Khan therefore, to our minds, is an unconscionable
instrument that is not in consonance with Sharia since it
favours some legal heirs (the Sons) to the detriment of other
legal heirs' (the daughters) Quranic-ordained rights of
inheritance. With respect to the will of Jameela Begun, we
have noticed that one of the properties was to be transferred
to her nephew i.e. one Kaleem Khan whereas the other
property was to be divided amongst her sons equally. The
same will goes on to state that the will is to operate after the
death of Jameela Begum. Adverting to our reasoning above,
we cannot come to the conclusion that the will of Jameela
Begum is inconsonance with Sharia either since it was drawn
up to benefit the Sons. The nephew, Kaleem Khan, could not
benefit from Jameela Begum's will since the property
bequeathed to him was in excess of one-third of the total
inheritable amount. Even if the will was found to have been
CI APflflkL N 4.0 & 272La(w CWIA4L APPf,' , 
11
compliant with Sharia, his right to inheritance under the will
would not have taken precedence over the inheritance rights
of the Quranic inheritors of Jameela Begum's estate at the
time of Jameela Begum's death. We therefore find that the
wills drawn up by the late Abdul Salam Khan and Jameela
Begum are contrary to the principles of Sharia and are, as a
result, null and void.
13. The contention of the Learned Counsel for
Respondents 9 to 1.5 that they are bona fide purchasers of a
property without notice and having acquired title in a lawful
manner on payment of consideration cannot be annulled or
extinguished if the right of the sellers at the time of the
purchase emanated from unchallenged wills can only be
appreciated after we have gone through Section 41 of the TPA
1882. The same reproduced below for ready reference:
'Transfer by ostensible owner. Where, with the
consent, express or implied, of the persons
interested in immovable property, a person is the
ostensible owner of such property and transfers
the same for consideration, the transfer shall not
be voidable on the ground that the transferor was
not authorised to make it:
Provided that the transferee, after taking
reasonable care to ascertain that the transferor
had power to make the transfer, has acted in good
faith.'
13. The essential ingredients that need to be present
before the equitable protection under Section 41 can be
claimed has already been elaborately laid down by this Court
in case of Mst. Alokzai and others vs. Allah Dad and others.
The relevant paragraph of the case is reproduced below:-
OV7L 4FZ S2 44) A 1272/21 I.. (flWNAJ O Ian 2 I MI) CM4 . IO7'.2L 
12
"5. Heard. In the instant case, the dispute inter
se the parties primarily revolves around the
rule/principle of 'bona fide purchasers", as this
equitable doctrine has been incorporated and
codified in Section 41 of the TPA. On the plain
reading of the provision, it postulates four essential
ingredients/ components for a litigant to seek
protection thereof i.e. (a) that transferor was
ostensible owner; (b)the transferis made bu the
express or implied consent of real owner (emphasis
supplied); (c) the transfer was made for
consideration; and (d) the transferee while acting in
good faith had taken reasonable care before
entering into the transaction. In our considered
view, all these four elements which are the obvious
mandate of law must co-exist, for enabling a
transferee to set up such a defence, to prove and
secure the protection of the section.'
It can be seen from the paragraph reproduced above that
there are four ingredients that need to be present before the
benefit of the equitable doctrine of bona fide purchaser
without notice can be claimed. In the present case, the
question whether the sons were ostensible owners is
answered in the affirmative for the reason that the mutations
in their name had been sanctioned pursuant to unchallenged
wills. Since the wills had not been challenged by Zakia Begum
or the other legal heirs at the time of the purchase, the wills
could reasonably have been construed as valid and title-
conferring documents. Since the wills were not challenged
and the Sons were the only ostensible owner(s) of the
purchased suit properties, it was not required of the
Purchasers to inquire into whether all the legal heirs of the
suit properties had consented to the purchase between
purchasers and the sons. Only the express consent and/or
acquiescence of the sons was required at the time of sale. The
transfers were made for consideration, satisfying the third
rna&.fl4L4flA W72/22 Jw!L4I 4fl&4LM2 0C202 Afi1LlA ' 
13
ingredient. The final ingredient i.e. acting in good faith and
taking reasonable care before entering into a transaction
would have required the purchasers to do due diligence when
purchasing properties from the Sons. No doubt when the
Purchasers exercised due diligence by approaching the
revenue records for ascertaining title of the properties being
the record would have shown that the sons were the owners
of the properties and had become owners by virtue of the
unchallenged wills. We therefore have no hesitation in coming
to the conclusion that Section 41 of the TPA 1882 applies to
case of the Purchasers and that they were entitled to the
equitable protection available to them under Section 41 of the
TPA 1882 as has correctly been held by the High Court.
14. There is another aspect of the matter insofar as it
relates to the property that was sold in favour of Respondents
No.9 to 15 for valuable consideration. In view of the fact that
we have held that the daughters of Abdul Salam Khan and
Jamila Begum being their legal heirs were entitled to their
respective shares in the entire estate of the said persons, they
were also held entitled to their respective shares in the
property that was sold by the sons in favour of Respondents
No.9 to 15. Having held that despite the fact that sale by the
sons was unauthorized and voidable, the sale per se could not
be set aside or annulled in view of the fact that Respondents
No.9 to 15 were bona fide purchasers without notice and for
valuable consideration. Therefore, the question arises how
would the daughters be compensated for their respective
rJvaAn,1,, W4-O& 22732I a/wcvmVMLA4LP*i OCI Anrw N W7/2I 
14
shares in such sold property. The only viable solution appears
to be that the sons be directed to pay for the equivalent of
respective shares of the daughters in the said property in
monetary terms. The sale price of the property when it was
sold is duly documented and none of the parties has argued
or alleged that the property in question was sold for a value
less than its market at the relevant time. However, the fact
remains that the sons received the entire sale consideration
and have since then used the same for their own benefit. We
therefore direct as follows:
i)
The respective shares of the daughters in the
total sale consideration shall be determined;
ii)
The sons will pay mark up from the date of
sale at the Bank rate to the daughters on
their respective shares till the time of
payment; and
iii)
We further declare and reiterate that all
other transactions relating to the properties
that constituted a part of the estate of late
Abdul Salam Khan and his widow Jamila
Begum shall devolve upon all their sons and
daughters in accordance with their
respective shares as provided in Sharia Law.
15. At the very end of his arguments, the learned
counsel for the Appellants in Civil Appeal No.1273 of 2021
argued that some of the properties were purchased by the
sons from their own resources. The Attorney for the
Appellants in Civil Appeal No.10-Q of 2021 has vehemently
contested the said assertion and submitted that all other
properties purchased by the sons were acquired by utilizing
272/2 &,cpALAnLMa O-o2IMnr1A tjO7121 
15
funds from joint family business and sale of joint properties.
Therefore, they constituted a part of divisible assets/estates
of their deceased parents. Further, despite our query, the
learned counsel for the Appellants in Civil Appeal No. 1273 of
2021 has not been able to place on record any documentation
indicating any independent source of income of the Sons
which they could have utilized for acquiring the additional
assets in their own respective names. Even otherwise, this
question was not raised before the lower fora therefore it is
unnecessary to rule on this issue which has so belatedly been
raised.
16. We find that the High Court has come to the
correct conclusions in decreeing the suit of the daughters of
Abdul Salam Khan and Jamila Begum. Further, we find
ourselves in agreement with the reasoning adopted by the
High Court in preserving the rights of Respondents N0.9 to 15
who were bona fide purchasers without notice and for
valuable consideration and giving them the benefit of Section
41 of the Transfer of Property Act, 1882. The learned counsel
for the Appellants in Civil Appeal No. 1273 of 2021 has not
been able to persuade us to hold that there is any illegality,
jurisdictional defect or perversity and misreading or non-
reading of evidence that may furnish lawful basis to interfere
in the well reasoned judgment of the High Court. We note that
the High Court has elaborately gone through all material
aspects of the case and assigned cogent, valid and legally
sustainable reasons in decreeing the suit of Zakia Begum, etc.
r 
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r,va v?4L fII) p 271/2; II:)Dd??V 4Pf&4L t '00 2ft21 kYOCUA fT 07s0J21 
16
I.
17.
On hearing the learned counsel for the Appellants
as well as the Respondents, we have reached the same
conclusions as the High Court and have no lawful reason,
basis or justification to take a different view. We therefore
affirm and uphold the judgment and decree passed by the
High Court dated 30.06.2021 subject to the aforenoted
modification to which extent the judgment and decree shall
stand modified.
18.
For reasons recorded above, Civil Appeal No. 10-Q
of 2021 is partly allowed to the extent noted above, Civil
Appeal No. 1273 of 2021 is dismissed and Criminal Appeal
No.4-Q of 2021 is also dismissed.
19.
Since the main appeals have been finally decided,
all miscellaneous applications filed fr(9 time to ti e
a1onith the appeals are also dismissed.
Announced in open Court on 0 . 
at Islamabad.
ot approved for Reporting'
Khalil Sahibzada, LC*/