1. ' FAISAL ARAB, J.---The dispute in the present case is with regard to the inheritance of the properties left behind by the deceased Mirza Muhammad Shabbir Qizalbash who died issueless on 3-7-2001, in Montreal Canada. Plaintiff is the widow and defendants Nos. 1 to 3 are sisters of the deceased.
2. The defendant No.4 was step-sister of the deceased who died during the lifetime of the deceased.
3. Therefore, the children of defendant No.4 are entitled to inherit any share in the estate of the deceased. Thus deceased Mirza Muhammad Shabbir Qizilbash was survived by his widow who is the plaintiff in this suit and his sisters i,e, defendants Nos. 1 to 3.
4. ' It is the case of the plaintiff that under a written Will executed on 2-2-2001, the deceased bequeath the suit properties in favour of the plaintiff, her son Sarwat Hasan and daughter Saireena, who were born from her previous husband. The defendants Nos.1 to 3 on the other hand dispute the Will dated 2-2-2001 as forged and claim share in the estate of the deceased Mirza Muhammad Shabbir Qizilbash as heirs of an issueless brother.
5. ' The dispute whether the Will, dated 2-2-2001 is genuine or not can only be decided after the evidence is recorded in the matter. For the moment, the Court is to decide the application for appointment of receiver on the basis of admitted facts which have already come on the record.
6. ' The parties are followers of Shia sect. Under the Shia Law, any disposition of property in its totality by a testator is not ab initio void but its validity depends upon the consent of all the heirs. In absence of such consent, a testator can only validly bequeath his property to an extent which does not exceed one-third of his entire property. Where such disposition of property exceeds one-third and all the heirs have not given their consent to such disposition, either before or after the death of the testator, it is invalid only to the extent which is beyond one-third of testator's property. This rule of limiting the disposition of property through Will to the extent of one-third, which is also applicable to Sunni sect, is derived from the traditions of Holy Prophet [P.B.U.H.]. Holy Prophet [P.B.U.H.] wanted that none of the heirs of a person should be treated in a manner that he is totally excluded from inheriting any share in the estate of the deceased. At the same time Holy Prophet [P.B.U.H.] intended that none of the heirs of a deceased should get any undue share on the basis of a Will in his favour at the total exclusion of other heirs of a deceased. Thus complete exclusion from inheritance was considered by Holy Prophet [P.B.U.H.] as unfair treatment meted out to an heir and was prohibited. This was the object and wisdom behind imposing thelimit of one-third on testamentary dispositions. It may be reiterated here that a Will cannot be struck down in its entirety merely because the testator has intended to give away all or more than one-third of his property but such Will is to be treated as valid only to the extent of one-third of the testator's estate unless of course all the heirs give their consent to disposition of property as contained in the Will, which is not the case in the present case.
7. ' The above discussed principles of the testamentary disposition of property are elaborately discussed in the case of Muhammad Tufail v. Atta Shabir reported in PLD 1977 Supreme Court 220.
8. ' In the present case, admittedly, the defendants No.1 to 3 are contesting the validity of the Will and it is also not the case of the plaintiff that defendants Nos. 1 to 3 had given their consent to the disposition of property by the deceased under the said Will. In view of this admitted position and applying the above discussed Islamic principles with regard to testamentary dispositions of property, no evidence is required to hold that only 1/3rd of the suit property could have been validly given by the deceased under the said Will. The validity of Will to the extent of 1/3rd of testators properties also depends upon the evidence that is to be led by the parties. Therefore, even if it is presumed at this stage of the case that deceased did execute the Will, dated 2-2-2001, it cannot be considered effective beyond 1/3rd of the properties belonging to the deceased. This means that even at the present stage the defendant Nos. 1 to 3 stand to inherit their respective shares as heirs of their deceased brother in the 2/3rd of the suit properties. This right of inheritance entitles defendants Nos.1 to 3 to jointly own 75% share in the 2/3rd of the suit properties which is equivalent to 50% share in the entire suit property. The fate of 1/3rd share is only left to be decided in the suit.
9. In case defendants Nos. 1 to 3 succeed in establishing their plea that the Will is forged then their share in the suit property shall enhance from the present 50% to 75%.
10. ' Thus even at this stage defendants Nos. 1 to 3 are entitled to 50% share in the suit properties. In order to protect such right of the defendant Nos. 1 to 3 in the suit properties, some interim measures are required to be taken to protect their interests.
11. ' The suit properties are said to be on rent and are generating monthly rental income. The plaintiff has assessed the value of the suit properties in 2003 at Rs,30 million which is evident from paragraph 8 of the plaint. By now its value must have gone up. In these circumstances, Nazir is appointed Receiver who shall manage the suit properties, maintain their accounts and collect rental incomes. 50% of the net rental income, after meeting all expenses and taxes, shall be distributed byNazir in equal shares among defendants Nos.1 to 3. 25% of the net rental income shall be paid to the plaintiff in her capacity as widow of the deceased. The balance 25% share shall be retained by the Nazir and invested by him in some profitable government securities till the dispute with regard to the validity of the Will, dated 2-2-2001 is finally decided.
12. ' In case in the opinion of any of the parties, the rental income of the suit properties is considered not to commensurate with the current rental value of the suit properties, then the Nazir as receiver shall take appropriate steps under the law to get the rent of the suit properties enhanced. In view of preoccupation of Nazir, he is authorized to appoint some other person to initiate proceedings for enhancement of rent. C.M.A. No. 6326 of 2005 moved by defendants Nos.1 to 3 for appointment of receiver is allowed in the above terms.