' JAWWAD S. KHAWAJA, J.---Theappellants-defendants are the L.Rs, of Bashir Ahmad, who, it is claimed by them, was bequeathed movable and immovable property vide registered will (Exh.D- 5), dated 24-6-1946 executed by Noor Hussain. Noor Hussain himself was issueless. The purported legatee Bashir Ahmad was the son of Zainab Bibi, sister of Noor Hussain. The respondents-plaintiffs, who dispute the aforesaid will, filed a suit out of which this second appeal has arisen. They claimed to be the collaterals of Noor Hussain and asserted a right of inheritance in his estate. This fact, however, is denied by the appellants.
2. The appellants - defendants impugn the concurrent decrees of the learned trial Court, dated 17- 11-2000 and of the learned appellate Court, dated 15-10-2005, whereby a declaratory suit filed by respondents Nos. 1 to 3 (L.Rs, of MuhammadNazir) seeking partition and separate possession by way of consequential relief, has been decreed.
3. Learned counsel for the appellants has, firstly, contended that thesuit was time-barred. To support this contention, he has drawn the attention of the Court to an earlier suit, which had been filed by respondent No,5, namely, Najam-un-Nisa against Bashir Ahmad, which was dismissed as withdrawn on 22-5-1971 (Exh.P-17). It is pointed out that in the said suit Muhammad Nazir (predecessor-in-interest of the respondents-plaintiffs) had appeared as P.W.3. From his testimony, it is evident that he was aware of the assertion to title made by Bashir Ahmadon the basis of the disputed will and was also aware of Mutation No, 3389 (Exh. P-6) sanctioned on the basis of the will on 25-10-1957, whereby the property of Noor Hussain deceased was devolved on Bashir Ahmad in its entirety. The suit of the respondents-plaintiffs was filed on 6-4-1995.
4. It was argued on behalf of the appellants that in view of the fact that the father of the respondents-plaintiffs became aware of the disputed will, at the latest, in 1970 when his testimony was recorded, the suit of the respondents was patently time-barred. According to learned counsel, the provisions of Article 120 of the Schedule to the Limitation Act are attracted in the present case wherein the period of limitation is six years from the date on which the cause of action accrues.
5. Learned counsel for the plaintiffs-respondents Nos. 1 to 3 has,however, drawn the attention of the Court to Exh.P-3 which is the decision, dated 13-5-1970 of the Court in the earlier litigation wherein Muhammad Nazir had appeared as P.W.3. In Exh.P-3, it has been held by the Court that the will in dispute in invalid. The testimony of Muhammad Nazir as P.W.3 in the earlier suit is to the same effect. In these circumstances, there can be no question of limitation being pressed against the respondents-plaintiffs because of the aforesaid finding recorded by the Court. Learned counsel for the appellants argued that the said finding was only made while deciding a preliminary issue as to limitation and therefore, did not constitute an adjudication that the will was not genuine. This submission, however, has little relevance in the present case because it does not help the appellants on the question of limitation.
6. Here it may be added that Qaiser Nazir (respondent No,1) appeared as P.W.1 and testified that the respondents-plaintiffs were in possession of a part of the property which originally belonged to Noor Hussain. The assertion of the title of the respondents-plaintiffs in the suit property from the very beginning stands established. I am, therefore, of the opinion that the defence raised by the appellants-defendants on the ground of limitation is without merit and was rightly repelled by the learned Courts below.
7. Secondly, learned counsel for the appellants contended that thesilence of the respondents/plaintiffs and their failure to take any action to impugn the disputed will itself amounted to acceptance of the will and they, therefore, were estopped from asserting title in the suit property on the basis of inheritance. For the reasons which have been noted above while examining the question of limitation, no inference in favour of the appellants-defendants or against the respondents-plaintiffs can be drawnfrom the fact that they did not file their suit earlier in time. I may add here that the suit was for partition of common property as co-owner and, C therefore, could have been filed at any time.
8. Lastly, learned counsel for the appellants argued that the respondents-plaintiffs have failed to prove on record their link with the common ancestor of Noor Hussain, namely, Amir Bukhsh and, therefore, the respondents, even otherwise, have failed to prove that they are collaterals of Noor Hussain, entitled to inheritance in his estate.
9. The, above contention was controverted by learned counsel for the respondents-plaintiffs who drew the attention of the Court to the testimony of Qaiser Nazir respondent who appeared as P.W.1 and Humayun Kabeer appellant-defendant who appeared as D.W-1. This witness admitted that.
The respondents-plaintiffs were the children of Muhammad Nazir who was the son of Hashim and Hashim was the son of Muhammad Bukhsh. However, while answering the question as to the name of Muhammad Bukhsh's father, he stated that it may be that his name was Ameer Bukhsh. This testimony shows D.W.1 to be less than truthful. It is clear that he deliberately avoided giving a complete and correct answer to the question put to him. His statement supports the respondents- plaintiffs and goes towards proving the pedigree-table relied upon by them. Both Courts below were, thus justified in coming to the conclusion that Muhammad Nazir (predecessor-in-interest of the respondents-plaintiffs) was a collateral of Noor Hussain.
10. In the foregoing circumstances, I find the impugned decrees to be based on the record. There only needs to be made one clarification before parting with this judgment. The learned trial Court has held that the pedigree-table produced in the case titled Qaiser Nazir and others. v. Humayun Qureshi is correct. It follows from this pedigree-table that the predecessor-in-interest of the respondents-plaintiffs, namely, Hashim was a first cousin (chachazad) of Noor Hussain son of Badar Din and Muhammad Akbar son of Ghulam Haider. The father of the appellants-defendants, namely, Bashir Ahmad was the son of Muhammad Akbar. In the circumstances, Hashim and Muhammad Akbar were related to Noor Hussain in the same degree i.e, they were first cousins (chachazad). It is also an admitted position that Zainab Bibi sister of Noor Hussain survived him and she was, therefore, entitled to one half share in the estate of Noor Hussain under Islamic law.
The other one half was, therefore, to be shared equally between Hashim (predecessor of the respondents-plaintiffs) on the one hand and Muhammad Akbar father of Bashir Ahmad on the other. In this view of the matter, the respondents-plaintiffs are entitled to 1/4th share in the estate of Noor Hussain and not 1/2 as claimed in the plaint.
11. Subject to the above clarification the concurrent decrees of the learned Courts below are affirmed.