' CH. SHAHID SAEED, J.---The petitioners through Civil Revisions Nos.1424, .1425 and 1426 of 2004 have assailed the judgment and decree dated 24-3-2004 passed by, learned Additional District Judge, Depalpur whereby he accepted the appeal of the respondents, set aside the judgment and decree dated 27-9-2001 passed by learned trial court to the extent of respondent whose suit was decreed. Through this judgment, all the above mentioned civil revisions will be disposed of simultaneously, as common questions of law and facts are involved therein.
2. Brief facts of the case are that three suits were filed regarding the suit property fully described in the plaint. Respondent Muhammad Ramzan filed a Suit No.85 of 2000 for declaration with permanent injunction while petitioners Izzat Baig etc. Filed two Suits Nos.84 and 83 of 2000 for partition of property and declaration with permanent and mandatory injunctions. The cause of action as contained in respondent's suit is that Faiz Muhammad was owner of the suit property; that Faiz Muhammad died on 1-7-1993 leaving behind a widow Mst. Noor Bibi, daughter Mst. Bibi Rani and two sons Izzat Baig and Muhammad Ramzan; that during his life time, Faiz Muhammad executed a Deed No.58 dated 28-10-1974 (Exh.P1) whereby he distributed his entire property aniongst his legal heirs through certain adjustments including payment of cash to defendant No.2 (daughter Mst. Bibi. Rani) and defendant No.3 (widow Noor Bibi) and Rs.20,000 and a House No.V- 11303, Kot Murad Khan, Kasur to the predecessor-ininterest of the petitioners Izzat Baig vide Cheque No.121057; that the partition as per Exh.P1 was accepted vide Deed No.59 by the predecessor-in- interest of the present petitioners Izzat Baig and the possession of respective shares was also given to the parties; that in view of Exh.P-1, the respondent is owner of the suit property but the petitioners have refused to admit the same.
3. The suit was hotly contested by the petitioners who also filed written statement. The main plea taken by the petitioners was that Deed No.58 (Exh.P-1) was revoked by Fiaz Muhammad vide registered document dated 10-12-1979. Out of divergent pleadings of the parties, the learned' trial Court framed issues. After recording oral as well as documentary evidence adduced by the parties, the learned trial Court vide consolidated judgment and decree dated 27-9-2001 proceeded to dismiss the suit of the respondent as well as the suit of the petitioners for declaration with permanent and mandatory injunction, while in other suit of the petitioners for partition of the property, the plaint was rejected under Order VII, Rule 11, C.P.C. Feeling aggrieved, both, the parties filed appeals before the learned lower appellate court who vide consolidated judgment and decree dated 24-3-2004 accepted the appeal of the respondent and decreed his suit but dismissed both the appeals of the petitioners. Hence these civil revisions.
4. Learned counsel for the petitioners has mainly contended that the document deed 58, dated 28- 10-1974 (Exh.P-1) was a "will" of Faiz Muhammad for partition of the property between the parties to avoid any conflict between them at a later stage but later on, he revoked the same vide registered document dated 10-12-1979 and advertisement to this effect was also made in the newspaper. He further contends that in absence of any will or private partition, the property after death of Faiz Muhammad is open to inheritance among all the legal heirs of Faiz Muhammad as per Shariat law, therefore, the civil revisions in hand be accepted, the impugned judgments and decrees passed by both the learned courts below be set aside, the suit of the respondent be dismissed while both the suits of the petitioners be decreed.
5. Conversely, learned counsel for the respondent vehemently opposes these civil revisions and supports the judgment and decree passed by learned lower appellate court. He avers that the revocation deed is a fake, bogus and fabricated document and actually the suit property has been partitioned through Deed No.58 which is a gift deed and not the will, therefore, civil revisions in hand merit dismissal.
6. I have heard the arguments advanced by learned counsel for the parties and also perused the record with their able assistance.
7. Issue No.10 is vital in this case which is regarding private partition through family settlement vide document No.58, dated 28-10-1974. The onus to prove this issue is upon the respondent Muhammad Ramzan.
8. Faiz Muhammad executed a deed dated 28-10-1974 whereby he tried to satisfy his legal heirs by giving them certain portions of his property. But he did not make any share for his daughter Mst.
Bibi Rani and wife Noor Bibi. The respondent asserts that they were given money in cash in lieu of their share in the property, however, there is nothing on the record to show that they were given anything on this account, as such, the .Factum as to whether any money was given to the said ladies could not be proved by the respondent. Furthermore, there is an abtaalnama dated 10-12- 1979 on the record which shows that Faiz Muhammad feeling dissatisfied with his earlier executed Exh.P-1 had revoked the same which revocation deed has been termed as fake and bogus document by the respondent. So, there is no dispute on execution of Exh. P-1 but on its nature and also regarding abtaalnama.
9. The bare perusal of Deed No.58 (Exh.Pl) makes it crystal clear that it by no means was a gift deed but a desire or will of Faiz Muhammad to divide his property among his sons amicably avoiding any conflict between them in future. Under the Muhammadan Law, no one can gift out his whole or more than one-third of his property to any one depriving his legal heirs. By the very document, Faiz Muhammad distributed his whole property amongst his sons depriving his widow and daughter which is against the injunctions of Islam. I am not convinced that it was a gift deed rather it was a will of Faiz Muhammad to distribute his property amongst his sons only enabling them to live happily and amicably though it was not according to Sharia.
10. The other important document on file is abtaalnama dated 10-12-1979 which is a registered document. According to this document, Faiz Muhammad feeling dissatisfied, revoked his will dated 28-10-1974 (Exh. P-1). An advertisement was also given in the newspapers. The respondent remained mum for a long period of more than 13-1/2 years during life time of Faiz Muhammad and instituted the suit on 8-7-1993 after death of Faiz Muhammad on 1-7-1993. It is astonishing that after C revocation of the will, Faiz Muhammad remained alive for about 19 years but no claim was made by any party over any portion of the disputed property during his lifetime. Furthermore, almost all the P.Ws. Have termed the Deed No.58, dated 28-10-1974 (Exh.P-1) as a will and not the gift deed. The record also highlights and also stated by the P.Ws. That possession of the suit property remained with Faiz Muhammad till his death. This fact is also evident from the sale of House No.V-11303 situated at Kat Murad Khan, Kasur by Faiz Muhammad himself and not by the predecessor-in-interest of the petitioners. It is noteworthy that the said house is part of the partition of the property intended to he given to predecessor in interest of the petitioners as per Exh.P-1.
11. The other important fact is that whether will was made in accordance with law or not. According to Sharia, no partition of property can take place without the consent of one or more legal heirs. In the will dated 28-10-1974, neither the daughter Mst. Bibi Rani nor Noor Bibi (alive at that time) has been given any share out of the immovable property as neither their signatures nor thumb- impressions are present on the said deed. It is also settled law that where a deed has been executed by exclusion of one or more legal heirs, then after death of the testator, the consent of all deprived legal heirs will be essential. In the present case, consent of daughter and widow neither appears on the will nor thereafter. As the consent of all legal heirs is missing in this case, rather the document has been disputed, it cannot sustain in the eye of law. I have already observed that under the Muhammadan Law, none can gift out more than one-third of his 'whole property, so will (Exh.P-1) cannot be considered a document in accordance with law and has no legal sanctity. The same has also been revoked by Faiz Muhammad vide registered deed dated 1-12-1979. If the Exh. P1 is presumed to be a gift deed and not the will, then, too, the requirements of gift were not fulfilled as the property was neither transferred nor the possession of the same was handed over to the doneessons by, the donor-father as required under the law. So, neither the requirements of will nor the necessities of gift are present in Exh. Pl. As such, I am of the considered view that Exh.P1 is neither a gift deed nor a will as the basic requirements of law in both the cases are missing.
12. The Hon'ble Supreme Court has held in a number of cases that when someone expires, its inheritance becomes open to all his legal heirs immediately and they are supposed to be the owner of the property left by the deceased jointly. In the circumstances, the petitioners cannot be deprived of their legal share out of the property left by Faiz Muhammad, which property is required to be distributed amongst all the legal heirs of Faiz Muhammad in accordance with Shariat- eMuhammadi.
13. Since the case of the respondent is totally based on Document No.58, dated 28-10-974 (Exh.P-1) which even if it was not revoked cannot sustain in the eye of law, therefore, I am of the considered view that the learned courts below have failed to appreciate the evidence available on record and have passed the judgments and decrees against the law and facts, therefore, all the three civil revisions are allowed, the impugned judgments and decrees passed by learned courts below are set aside, the Suit No.85 of 2000 filed by the respondent for declaration with permanent injunction is dismissed while the Suit No.84 of 2000 filed by the petitioners for partition of the suit property in accordance with law is decreed as prayed for. As a consequence, suit No.83 of 2000 of the petitioners for declaration with permanent and mandatory injunctions stands disposed of.