1. SYED ZAWWAR H. JAFFARY, J.--- This petition under Section 278 of the Succession Act has been filed for C.L.R. grant of Letters of Administration in respect of the properties and credits left by deceased Ch. Badruddin son of Jawa Khan, who expired at Karachi on 8.12.1973 as per the Death Certificate (Annex-A). The deceased had left immovable properties within the jurisdiction of this Court as disclosed in Schedule (Annexure-B) alongwith its value. The deceased died intestate and due and diligent search was made to trace out a Will but no document was found. The deceased left behind the following legal heirs:--{{TABLE}} Mst. Rahim Begum Ch. Mushtaq Ahmed Ch. Ishaque Ahmed Ch. Muhammad Arsahad Ch. Ishtiaq Ahmed Ch. Muhammad Sharif ' widow son
(vii) Mst. Nasreen Begum daughter
(viii) Mst. Nazeeran Begum daughter.
2. All the above legal heirs were major at the time of death of the deceased. Mst. Rahim Begum had also died after death of the deceased Ch. 'Badruddin. The name of legal heirs of deceased Mst.
3. Rahim Begum are disclosed in Annex-D. Deceased Nazir Begum also died at Karachi on 16.1.2003 leaving behind the following legal heirs disclosed in Annex-F:--{{TABLE}} Abdul. Mujeeb Muhammad Saleem Mrs. Shabana Mrs. Rahat Mrs. Rubina lmran Rizwan husband son daughter son son His son Ch. Muhammad Sharif also died on 5.4.1997 leaving behind the legal heirs as disclosed in Annex-F. The petitioner .Being one of the legal heir of the deceased is entitled to her lawful share in the estate. It is prayed that the petitioner may be granted Letters of Administration in respect of the immovable properties shown in Annex-B.
4. After filing of this petition before this Court, notices were issued to all the legal 'heirs through Bailiff.
5. Notice was also published in daily "Jang" dated 18th May, 2004. After publication and service of notice all other legal heirs have filed affidavits, so also the next kin No. 4 filed affidavit alongwith a photocopy of a Wasiatnama dated 11.12.1967. It is disclosed in the affidavit that the deceased had left a Will duly executed in the presence of two witnesses in respect of his immovable property and according to the contents of the Will, the immovable property is to be distributed amongst all the sons of the deceased only as shown in Schedule-B of the petition. It is further urged by the learned counsel for Next of Kin No. 4 that as per Will the daughters were specifically excluded from inheriting any share in the said immovable properties left by the deceased. As according to Will the deceased had paid their share during his life time in cash. It is further argued that this petition is not maintainable as petitioner has no locus standi to file the present petition for the grant of Letters of Administration. The petitioner has not approached this Court with clean hands and deliberately concealed the facts regarding the Will of the deceased. Learned counsel for the next of Kin No. 4 was directed by this Court to bring the original Will as there were interpolation and correction in the photocopy of the said Will. On the last date the original Will was placed before the Court and after verifying the same was returned to the Advocate. Mr. Kiyani has relied upon the cases of Muhammad Atta Hussain Vs. Hussain Ali Khan (AIR (13) 1944 Oudh 139), Haji Murad and others Vs. Abdul Ghafoor (1987 CLC 7), S. Lqbal and others Vs. Akhtari Begum (1986 M LD 1829) and Attaur Rehman Vs. Aisha Jabeen (1986 MLD 858).
6. C.L.R.
7. Mr. Arif Khan, learned counsel for the other legal heirs has no objection for the grant of Letters of Administration-to the petitioner. He has relied upon the cases of A.E. Salayji Vs. Fatima Bibi (AIR 22 PC 391), Liaquat Ali Vs. Hayat Bibi (2002 CLC 208), Muhammad As/am Rashid and others Vs. Muhammad Anwar Saeed and others (1997 CLC 2012) and Chief Administrator Aukar West Pakistan Vs. Khan Muhammad Sher Nawab Khan (PLD 1967 Lah. 672).
8. Mr. Shahanshah Hussain, learned counsel for the petitioner, submits that the Wasiatnama as filed before this Court was never disclosed at any time after death of the deceased and it was manufactured as there are certain interpolation in the original Wasiatnama and name of the objector was interpolated. The petitioner being legal heir of the deceased is entitled to her due share in the immovable property. He has relied upon Section 117 of Mohammedan Law that a bequeath to an heir is not valid unless the other heirs consent to the bequeath after death of the testator. He has objected on the ground that the silence cannot be termed as consent on behalf of the petitioner. Whereas this Will contains bequeath excluding the female heirs and no mutation of property had been made at any time. The mere silence on their part is no ground to deprive them from their share, The alleged Wasiatnama placed before this Court was never produced before the legal heirs of the deceased that it was gifted nor it was produced before the concerned Authorities for effecting mutation. All the other legal heirs except next of Kin No. 4 have not disclosed about the Wasiatnama nor they are signatories to such Wasiatnama.
9. Mr. Arif Khan, learned counsel for all the other legal heirs has supported this petition by saying that a Will is invalid for want of assent of other legal heirs of testator. The alleged bequeath as made Will also fail because it was made contrary to law. Mr. Arif Khan, while arguing the matter on behalf of other legal heirs, has pointed out that the alleged will cannot be acted upon as the petitioner and other legal heirs have been deprived of their due share. The stamp of Rs. 4/- was purchased on 9th December, 1967 and it was written on 11th December, 1967. The Oath Commissioner had attested the said document on 18.12.1967 and it was counter-signed by the Addl. City Magistrate, Karachi on 18.12.1967.
10. In support of the petition Mst. Nusrat w/o Muhammad Arshad, Mst. Rukhsana wife of Akbar, Abdul Majeed son of Ismail, Muhammad Saleem son of Abdul Majeed, Mrs. Shabana w/o Safyan, Mrs. Rahat w/o M. Younus, Mst. Rubina w/o Ashiq Ali, lmran son of Abdul Majeed, Rizwan son of Abdul Majeed, Husan Ara Begum w/o Ch. Muhammad Shareef have filed their affidavits in support of petition.
11. The objection raised by next of Kin No. 4 is that the proceedings for grant of Letters of Administration become contentious when caveat supported by affidavit is filed and it is not open to the Court to decide the said contentious matter in a summary manner.
12. Learned counsel for next of Kin No. 4 has filed an application under Section 286 of the Succession Act with the prayer that the petition may be dismissed for grant of Letters of Administration as 'Will' of the deceased is available with him and the deceased as per Will has specifically excluded his daughters Mst. Nazeer Begum and Nasreen Begum from inheriting any share in the above-said immovable property as the deceased had paid them their due share during his life time and as the petitioner was silent for more than 40 yeas by not claiming her share.
13. I have heard the learned counsel for the respective party and perused the case-law cited at the bar.
14. Admittedly under the Mohammedan Law bequeath to a heir is not valid without the consent of other heirs and such consent may be inferred from their conduct. The petitioner and other legal heirs of the deceased, except Next of Kin No. 4 have filed their affidavits in support of the petition and they have not stated that any Will was made by the deceased y excluding the shares of two daughters. Mere silence for a long time does not mean consent, where the Will, contains bequeath excluding female heirs and mutation of names takes place, it would be held that the consent of the heirs could not be implied from mere silence on their part. Next of Kin No. 4 kept the alleged Will with him for a long time and never approached any competent Authority for effecting the mutation. The conduct of next of Kin No. 4 is apparent that he deliberately withheld due share of the petitioner on the plea of Wasiatnama. The petitioner is not a signatory to the Wasiatnama nor other legal heirs are accepting the same but serious objections have been raised regarding its manufacturing of the said Will.
15. In view of this position, Next of Kin No. 4 may approach a competent Court having jurisdiction regarding the genuineness of the Wasiatnama if so made by the deceased in presence of the witnesses for seeking declaration. At present there are sufficient grounds available on the record that the petitioner being legal heir of the deceased, she has right to pray for grant of Letters of Administration in respect of the properties left by the deceased Ch. Badruddin. It is clear that this Court cannot interpret at this stage about the genuineness of the document .While considering the petition for the grant of Letters of Administration.
16. In view of the foregoing reasons, the petition is allowed as prayed. Therefore, the petitioner is entitled for grant of Letters of Administration in respect of the properties left by the deceased as mentioned in the Schedule-B. The application filed by next of Kin No. 4 as CMA 2326/04 stands dismissed.