' MAULVI ANWARUL HAQ. J.---On 19-6-1989 the respondent filed a suit against the petitioners as also one Mst. Nasim Akhtar widow of Ghulam Taqi (not impleaded in this civil revision). In the plaint he stated that the suit property mentioned in the plaint was owned by Ghulam Taqi son of Jewan who died on 22-2-1989. He stated that he was a Shia and made a Will in his favour on 23-1-1989 and after his death he has become the owner of the entire estate of Ghulam Taqi. He felt aggrieved of the attestation of inheritance Mutations Nos.1023 and 497 of villages Dhingana and Jhangi Ram respectively whereby the land has been mutated in favour of the petitioners treating him as Shia. I may note here that the widow was excluded applying the said law. The petitioners in their written statement denied the execution of the Will by the said deceased person. Now the widow in her written statement urged that her late husband was a Sunni and she as a widow is entitled to inherit the estate, as neither the petitioners nor the respondent are the heirs of Ghulam Taqi. Following issues were framed by the learned trial Court: -
(1) Whether plaintiff is owner in possession of suit property through Wasiat Nama dated 23-1-1989 and is entitled to get decree as prayed for in the head note of the plaint? OPP.
(2) Whether Mutation No,1023 dated 21-2-1989 and Mutation No, 497 dated 28-2-1989 are, against law, without notice and fraudulent and as these are ineffective against the rights of plaintiff? OPP.
(3) Whether Ghulam Taqqi deceased son of . Jawan belonged to Shia sect? OPP.
(4) Whether the plaintiff has got no cause of action to bring the suit? OPD.
(5) Whether the suit is not maintainable in its present form? OPD.
(6) Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD.
(7) Whether defendants are entitled to receive special costs from plaintiff, if so to what extent? OPD.
(8) Whether defendants Nos.1 to 7 are not legal heirs of Ghulam Taqqi deceased? OPD No,8.
(9) Relief.
' Evidence of the parties was recorded. Vide judgment and decree dated 15-6-1991 the learned trial Court decreed the suit of the respondent. Two first appeals were brought by the petitioners and the said widow, namely, Mst. Nasim Akhtar respectively. Both the appeals were heard by a learned ADJ-I, Bhakkar, who dismissed both the appeals on 17-4-1994.
2. Learned counsel for the petitioners contends that the learned Courts below have completely misread the evidence on record while holding that a valid will was proved and its execution was proved in favour of the respondent. Learned counsel for the respondent, on the other hand, supports the impugned judgments and decrees.
3. Upon my query both the learned counsel inform that the widow is alive. I called upon the learned counsel for the petitioners to explain as to why he has not impleaded the said widow, the reply is that since her appeal was dismissed by the learned ADJ and she has not filed a revision, therefore, she has not been impleaded. To my mind, this is no reason for not impleading the said lady. Be that as it may, there can be no cavil that she is a necessary party to this lis and is 'already on record as such, contesting the suit with her own version. I accordingly proceed to examine the record in this case.
4. Some admitted facts of this case are that the suit property was owned by Ghulam Taqi son of Jewan. Mst. Nasim Akhtar is his widow and the petitioners are his collaterals. He died issueless. The respondent is not an heir of the said Ghulam Taqi. Now the document stated to B be a Will is on record as Exh.P.1 Ghulam Taqi admittedly died on 22-2-1989. This document bears the date 23-1- 1989. It narrates that Ghulam Taqi has no issue and that Allah Ditta has been serving him and no one else has served him; that he owns a house, which is in his possession. Thereafter, the document proceeds as follows:--- {{URDU TEXT}} ' The document purports to bear the thumb impressions of the said Ghulam Taqi and is attested by Ghulam Jaffar and Muhammad Bakhsh as witnesses.
5. A bare reading of the said documents would show that it is not a Will but a complete diposition of property. The said Ghulam Taqi was the sole owner of the property. The document cannot take effect as a gift as there is no acceptance thereof c by the respondent and it cannot take effect as a release deed for the reason that the respondent is not a co-owner. Now it is but apparent that both the Courts below have not even cared to read the document while decreeing the suit of the respondent.
6. Now coming to the matter of execution, both the said witnesses are the first cousins of the respondent. Now the story narrated by all the three of them including the respondent is that Ghulam Taqi was ill. He was brought to Jhang from Bhakkar for some treatment and while at Jhang during the course of said treatment he proceeded to execute the said document Exh.P.1 in favour of the respondent. A further impression which one gets from the reading of the statements is that Ghulam Taqi was brought to Jhang by all the said three persons closely related to each other.
Neither the Scribe was produced nor Stamp Vendor. I may here refer to the statement of the respondent as P.W.3. The widow confronted him and he admitted that Ghulam Taqi was being treated by Hakim Noor Hussain at village Dhingana. He then stated that he took him to Hakim Sultan of Jhang and the Hakim made a chit of the medicines which he gave. When called upon to produce the chit he responded that if the said chit is in existence it will be present in the house of Ghulam Taqi. A further significant aspect of the matter is that the continuous possession of the widow over the house and the land has not been seriously questioned by the parties before me. I am conscious of the fact as is pointed out by the leaner counsel for. The respondent repeatedly, that both the learned Courts below have held that the execution of Exh.P.l stands proved. However, a bare reading of the said evidence in the light of the contents of the said documents goes to E show that the learned Courts below have, not cared to read the same in proper perspective. I, therefore, do hold that the execution of Exh.P.1 does not stand proved, even otherwise as held by me above, the documents does not at all has the effect of a transfer by way of a Will or otherwise.
7. Now in the same manner the learned Courts below have proceeded to hold Ghulam Taqi to be a Shia. It will be seen from the tenor of issue No,3 that the onus to prove said fact was upon the respondent as well as the petitioners. Needless to State that in our country there is a presumption that every Muslim citizen unless proved to the contrary shall be deemed to be a Sunni. Now both the learned Courts below have relied upon Mutation No,1023 attested on death of Ghulam Taqi.
While doing so, they simply forgot that this mutation is not only being challenged by the said lady but also by the plaintiff in the case i.e, the respondent. There is no other evidence on the record and I am being told to day by both the learned counsel for the parties that the said mutation has already been cancelled and set aside in the revenue hierarchy. There is no evidence worth its name on the record that Ghulam Taqi was a Shia. P.W.1 Ghulam Jaffar has not even asserted in his examination-in-chief that Ghulam Taqi was a Shia. However, he denied a suggestion given to the said effect in his cross-examination by the widow. Similarly, Muhammad Bakhsh has only said this much that Ghulam Taqi was a Shia and has denied a suggestion to the contrary in his cross- examination. Allah Ditta respondent as P.W.3 also simply stated that Ghulam Taqi was a Shia. This evidence was rebutted by the said widow by producing Muhammad Faazil D.W.4 and Rab Nawaz D.W.5 and appearing herself as D.W.6. C The said presumption was not at all displaced either by the respondent or by the petitioners. I, therefore, reverse the finding of the learned Courts below on issue No,3 and do hold that Ghulam Taqi was a Sunni.
8. Now as stated by me above, both the said mutations have been set aside and are yet to be decided. Now there is no dispute whatsoever that Mst. Nasim Akhtar is the widow of said Ghulam Taqi. She had questioned the fact that the petitioners are the heirs of said Ghulam Taqi. Issue No,8 was framed on this point and again the sole reliance has been placed by the learned Courts below on the said Mutation No,1023 to hold that the petitioners are the collaterals. However, I find that it has come in the statement of Ghulam Hassan alias Hassna petitioner DW-3 that he is a Chachazad of deceased Ghulam Taqi. This statement has not been questioned in the cross- examination. Further I find that Mst. Nasim Akhtar as DW-6 has stated that she does not know as to whether the petitioners were related to her husband or not. In this view of the matter, the estate of said Ghulam Taqi is to devolve upon the widow Mst. Nasim Akhtar (defendant No,8 in the suit) to the extent of 1/4th while the remaining is to go to the. Collaterals.
' In view of what has been discussed above, the civil revision is allowed. The judgments and decrees of both the learned Courts below are set aside and a declaration is granted that Mst.
Nasim Akhtar (defendant No,8 in the original suit) being the widow of Ghulam Taqi shall inherit 1/4th share in the suit property which is the estate of Ghulam Taqi while the residue goes to his collaterals. No orders as to costs.