1. ' This is a revision petition against the order dated 4-12-1975 of the Commissioner, Hyderabad, whereby he rejected the appeal of the petitioner and maintained the order of the Deputy Commissioner, Thaparkar, directing the Mukhtiarkar, Digri, that land viz. 60-19 acres in deh 301 of taluta Digri belonging to deceased Tahir Hussain be mutated in the Revenue Record according to the mutual agreement as mentioned in the petition of the petitioner dated 15-8-1973.
2. ' Facts of the case are that Syed Tahir Hussain was allotted 60-19 acres of land in deh 310 Taluka Digiri under Permanent Settlement Scheme. He also purchased 210 acres surrendered land on installment basis under M. L. R. 89/ 91, on 26-2-1973 khata in respect of 60-19 acres of land was mutated in the names of his legal heirs. The respondent filed appeal before the Deputy Commissioner, Tharparkar, against the order dated 26-2-1973 of Mukhtiarkar, Digri. The Deputy Commissioner, Tharparkar, upheld the appeal and ordered that the parties had patched up; therefore entry in the record may be made in accordance with the contents of the will, i,e, in favour of respondent. Petitioner being aggrieved with the order passed by the Deputy Commissioner filed appeal before Commissioner who rejected the same. Hence this revision.
3. ' The counsel for the petitioner mainly contended that "Will" was inoperative and void because entire property had been given through will. That the testator belonged to Shia Sect, and as such he was entitled to execute will to the extent of 1/3 of the property. Besides the consent of all the legal heirs was not obtained. He further contended that orders of the lower Courts were ex parte.
4. ' The counsel for the respondent on the other hand contended that the property given in the "will" was less than 1/3 share of the property of testator. That he had 210-00 acres of land in addition to the area given in the will. Entire land was Kabuli. That according to section 499 of Muhammadan Law (by Aziz Ahmed) the consent of the heirs was not necessary when the "Will" was executed in favour of non-heirs. Hence the question of consent was immaterial. He also contended that petitioner had given application to the Deputy Commissioner admitting the contents of the will.
5. Therefore the arguments of the counsel for the petitioner that the respondent was condemned unheard was untenable.
6. ' I have heard the parties and perused the relevant record. Tahir Hussain had 210-00 acres of land in addition to the land given in the will. The perusal of the "will" would show that the testator had mentioned that land was given in will to heirs of his brother on the consideration that his brother was co-sharer with him in India. However the claim of both the brothers was satisfied against the claim of the Testator. He was therefore both legally and morally bound to give land to the heirs of his deceased brother. The will under law operate up to 1/3rd of the entire holding. The deceased left in all 270/19 acres. Therefore the area that he bequeathed to the heirs of deceased brother was less than even 1/3rd. The contention of that petitioner that the land that he bequeathed was kabuli land retained MI satisfaction of the claim, the balance of 210 acres was re-purchased under M. L. R.
7. 89/91, hence this could not be called 1/3rd of the area, is not tenable. During the course of arguments, it transpired that even for that land i. e. 210 acres full payment had been made by the petitioner. The grounds given for the "will" are quite convincing and appeal to reason. In view of these facts I find no force in the arguments of counsel for the petitioners and reject the revision petition.