1. ABDUL LATIF KHAN, J.--- Through the instant revision petition, the petitioners have called in question the judgment and decree dated 27-9-2011 passed by learned Additional District Judge-V, D.I. Khan vide which the appeal filed by respondent No.1 against the judgment and decree dated 30-11-2010 of learned Civil Judge-VIII, D.I. Khan was partially allowed.
2. 2.Brief facts giving rise to the instant revision petition are that respondent No.1/plaintiff brought a suit for declaration-cum-permanent injunction to the effect that he is owner in possession of the suit property, fully described in the heading of the plaint, donated to him by Qadir Bakhsh through will dated 18-2-1976 and petitioners and pro forma respondents/defendants have got no concern with the same and thatinheritanceMutationofQadirBakhshbearingNo.65dated19-3-1999 in favour of defendants Nos.1 and 2 and other mutation in respect of the suit property are against law and facts, void and thus liable to be cancelled and the revenue record is liable to rectification in favour of respondent No.1/plaintiff.
3. 3.The suit was contested by the petitioners/defendants by submitting their written statement. The learned trial Court framed issues arising out of the pleadings of the parties. The parties produced their respective evidence as they wished to adduce. After hearing the argumentsoflearnedcounselfortheparties,thelearnedCivilJudge-VIII, D.I. Khan dismissed the suit of respondent No.1/plaintiff vide judgment and decree dated 30-11-2010.
4. 4.Aggrieved of the judgment and decree dated 30-11-2010, the respondent No.1/plaintiff preferred an appeal. The learned Additional District Judge-V, D.I. Khan vide judgment and decree dated 27- 9-2011, partially allowed the appeal, set aside the impugned judgment and decree and decreed the suit of respondent No.1 /plaintiff to the extent of 1/3rd of the suit property, hence the instant revision petition.
5. 5.Learned counsel for the petitioners argued that the learned appellate Court has wrongly appreciated the evidence available on file. It was contended that will deed has not been proved as required under the law. It was further contended that decree passed in favour of respondent/ plaintiff by the appellate Court was the result of misreading and non-reading of evidence available on file. He argued that defendants Nos.1 and 2 became owners by dint of Mutation No.66 to the extent of landed property measuring 18 kanals, 19 marlas and vide Mutation No.67, property measuring 9 kanals, 7 marlas was transferred to defendant No.5, Peer Muhammad, who transferred to Mauladad, respondent/ plaintiff vide Mutation No.74 on 17-5-2001 and is estopped by his own conduct. He contended that the trial Court has dismissed the suit but Court of appeal has granted decree to the extent of 1/3rd as will, which is not in accordance with law and is liable to be reversed.
6. 6.As against that, learned counsel for the respondent/plaintiff contended that the appellate Court has rightly decreed the suit to the extent of 1/3rd as well. He argued that Mutation No.74 attested in his name was not correct and has specifically denied the same and termed it as fraudulent. He contended that Gul Zaman has sold out the property and left with no interest in it whereas Allah Bakhsh has never appeared in the Court and his brother has no authority on his behalf to act on his behalf in the proceedings. He contended that will deed executed in the year 1976, which is thirty years old document and presumption is attached to it under Article 100 of Qanun-e-Shahadat Order, 1984.
7. 7.I have given my deep thought to the arguments of learned counsel for the parties and perused the record with their valuable assistance.
8. 8.A perusal of record reveals that Mauladad, respondent/plaintiff instituted suit for declaration to the effect that Khata No.49, Khasra Nos.288 and 269, is owned by him to the extent of 19 kanals, 12 marlas, on the basis of will deed executed by Qadir Bakhsh, on 18-2-1976 and defendants have no nexus with it and inheritance mutation of Qadir Bakhsh and subsequent mutation, including that allegedly attested in his favour, are wrong, illegal and ineffective upon his rights. The suit was contested by defendants and will deed was termed as fraudulent and fictitious.
9. 9.P.W.1 to P.W.3 were the official witnesses produced by the respondent/plaintiff, who brought on file the Revenue Record. Petition writer, who scribed the deed, is since dead, his grandson, Muhammad Saeed affirmed the writing of his grandfather and produced the relevant entry of register as Exh.P.W.4/1. One Mitha examined as P.W.5, who fortified the stance of plaintiff, Ellahi Bakhsh, marginal witness examined as P.W.7 and plaintiff deposed as P.W.6, who reiterated his version taken in the pleadings. This shows that plaintiff has proved the execution of deed through reasonable and tangible evidence. The deed has not been specifically denied in the evidence. The property remained in possession of the plaintiff. It was executed in the year 1976 and remained unchallenged till date.
10. 10.On the other hand, the petitioners/defendants produced none in support of their stance. Solitary statement of Gul Zaman recorded and also as attorney of defendant No.4, but not able to rebut the stance of plaintiff, who has successfully proved the deed through documentary and oral evidence.
11. It is pertinent to mention that the petitioners claim to be the purchasers and had no knowledge about the pre-purchased time and affairs, with special reference to Qadir Bakhsh, original owner and his son-in-law, Mauladad. They can at the most depose about the post-purchase affairs, which could not effect and rebut the previous incidents including scribing of will deed.
12. 11.The original claimants, from whom the petitioners have allegedly purchased the disputed property, have not turned up at any stage before the Court and suit of the plaintiff goes unrebutted and only resistance made by purchasers who can only defend their claim subject to the right of their vendor and could not claim better title than that owned by their vendors.
13. 12.The respondent/plaintiff has claimed the entire property of Qadir Bakhsh, by dint of will deed but legally the testator can bequest only 1/3rd of his entire property and is barred to bequest more than 1/3rd without consent of the legal heirs. Admittedly, there is no consent given to the will by his legal heirs, therefore, the will can be held valid only to the extent of 1/3rd share of his holding.
14. Section 118 of the D.F. Mulla's Principles of Mohammadan Law, has provided the mandate of law in this regard, which is reproduced below for ready reference:--- "Limit of testamentary power... A Mohammadan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator."
15. 13.So far Mutation No.74 attested in favour of plaintiff is concerned, he has specifically denied its entry and attestation and has termed it as fraudulent, hence, reversed. The other Mutations bearing Nos.65, 66 and 67 attested on one and the same day, depict malice on the part of defendants, beneficiaries of these mutations, have avoided to come forward and prove the same as validly attested, hence, are reversed to the extent of rights of the plaintiff, bestowed upon him by dint of will deed and remaining 2/3rd share of the property of Qadir Bakhsh would devolve upon all the legal heirs according to their respective shari shares, in accordance with law.
16. 14.For the foregoing reasons, no exception can be taken to the judgment and decree passed by learned Additional District Judge-V, D.I. Khan, which is maintained and the instant petition being devoid of merits, is hereby dismissed. No order as to costs.