' ABDUL LATIF KHAN, J.---. This civil revision has been filed against the judgment and decree dated 30-3-2013 passed by the learned Additional District Judge/Izafi Zilla Qazi-VI, Swat, whereby the appeal filed by the respondents against the partial judgment and decree dated 6-3-2012, passed by the learned Civil Judge/Illaqa Qazi-III, Swat was accepted, while appeal filed by the present petitioners was dismissed.
2. Arguments heard and record perused.
3. A perusal of the record reveals that plaintiffs/petitioners have instituted a suit for declaration to the effect that the property in dispute, originally owned by predecessor of the parties namely Muhammad Amin Khan was privately partitioned between them vide partition deed dated 10-6- 1985 and the parties were in possession of the property as per their shares and subsequently will- deed No. D-365 dated 10-6-2006 was executed by the said Muhammad Amin Khan in his lifetime in favour of plaintiffs and defendants have got no nexus with the suit property and inheritance mutation No.1101 attested on 23-5-2008 is wrong and the result of collusion and ineffective upon the rights of plaintiffs, which is liable to be set aside. On the other hand, the defendants Nos.1 and 2 contested the suit by filing written statement whereas defendant No.3 filed cognovits, who happens to be second wife of said Muhammad Amin Khan.
4. The plaintiffs have relied upon two documents one is partition deed and the other one is will- deed. So far is the partition deed is concerned, the same is un-registered and has not been proved and being un-registered document was liable to be proved by the plaintiffs by A producing cogent and confidence inspiring evidence. Admittedly, Muhammad Amin Khan and father of defendants Muhammad Khan were brothers inter se, Muhammad Amin Khan was issueless. He had two wives, the first wife of Muhammad Amin Khan, mother of respondent No.1 died during pendency of the suit. The private partition deed was allegedly executed in the year 1985 when the settlement proceedings were in progress in District Swat, which were started from 1980 and finalized in December, 1986, had there been any partition between Muhammad Amin Khan and Muhammad Khan, the predecessors of the parties, they would have definitely incorporated the entries in the revenue record, whereas the revenue record available on file reveals that the property is still joint and has not been partitioned, meaning thereby, that both the brothers were consented at the time of settlement that no partition had ever taken place. The temporary arrangement of partition for the purposes of produce would not amount to permanent private B partition or a legal partition.
Even after the settlement, the parties have applied under section 135 of the Land Revenue Act for legal partition of the property and up to the revisional isional Court the partition proceedings were carried out between the parties, which have attained finality, during those proceedings the plaintiffs have not brought on record, the alleged will-deed executed by Muhammad Amin Khan, predecessor of the parties. Partition deed dated 10-6-1985, Exh.PW-1/2 reveals that CNIC Nos. Of the parties as well as witnesses and their father's names are not found mentioned over it. The description of the property i.e. Khasra, "khata/khatooni" are also not mentioned in it. The parties have accepted the inheritance mutation and on the basis of shares devolved upon them their inheritance were asked to be partitioned through revenue hierarchy and the same was partitioned by the D.D.O.J., Charbagh, appeal against which was also dismissed and the revision petition filed before the Additional Commissioner met the same fate and has attained finality and, as such, the first plea of the plaintiffs regarding partition of land between Muhammad Amin Khan and Muhammad Khan has not been proved with the aid of cogent and convincing evidence.
5. So far is the Will-deed No.D-365 dated 10-6-2006 is concerned, the fate of it also hinges upon the fact and to be taken into consideration from the date of alleged agreement for partition, which was allegedly executed way-back in the year 1985, when the settlement proceedings were in progress and finalized in the year 1986. The inheritance mutation No.1101 was attested on 23-5-2008. It is pertinent to mention that revenue record available on file speaks about the joint ownership of both the brothers i.e. Muhammad Amin Khan and Muhammad Khan, predecessors-in-interest of the parties and on the basis of revenue record both the parties have litigated before the revenue hierarchy for partition ' of land, wherein, the factum of execution of will-deed has not Ileen brought into the notice of revenue hierarchy by the present plaintiffs. The plaintiffs were under bounden duty to prove the execution of deed through confidence inspiring evidence. The will-deed was posted as1 Exh.PW- 1/10, the perusal of the same would reveal that it was executed in favour of Alamgir Khan and others, who happens to be the legal heirs of Muhammad Amin as his nephews and the same is not valid unless assented by the other legal heirs. In the instant case, the legal heirs have not consented rather contested the suit and termed the alleged will-deed as fraudulent and an afterthought document. As the other legal heirs do not assent to bequest to the plaintiffs, therefore, the property has to be devolved in inheritance as done in the instant case by way of inheritance mutation attested in favour of the parties, to all the legal heirs in accordance with law. The will would be valid to the. Extent of 1/3rd of the property and sections 117 and 118 of the Muhammadan Law are relevant to this effect, which are reproduced for guidance as under:--- ' Section 117, Bequests to heirs:--- "A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share."
' Section 118. Limit of testamentary power:--- "A Muhammadan 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."
6. The plaintiffs/petitioners have claimed the entire property of Muhammad Amin by way of will- deed, but legally the testator cannot bequest his entire property, however, can bequest only 1/3rd of his entire property that too under the consent to a known heir and without consent of the other legal heirs no property can be bequested in favour of legal heirs. So far is the proof of will-deed, Exh.PW-1/10 is concerned, the scribe of the deed is neither mentioned in it nor has been produced by the plaintiffs. Admittedly the revenue record was there at the time of deed dated 10-6-2006, as the settlement in the area was completed in the year 1986, but neither "khata/khatooni" or khasra numbers has been mentioned in it nor description of the property has been identified in any manner. The contents of deed would reveal that it is against the Quranic version, Sunnah and the dictates of law. Muhammadan can exercise his right to utilize his property as he wish in his lifetime by alienating the same in any manner but has no right to bypass the dictates of Quran, Sunnah and prevailing law, wherein shares have been determined to bedevolved upon the legal heirs out of the legacy of the deceased. Admittedly, the inheritance mutation was attested in the year 2001 whenthe original owner Muhammad Amin Khan, testator has died but he hadno authority to deprive the legal heirs of their sharait shares through alleged will-deed executed in the year 2006.
Though the marginalwitnesses of the deed were produced by the plaintiffs but there statements are full of contradictions. They even do not know about the name of the scribe of the document.
The notary public, who attested the E document, has not entered the same in his register and was unable to produce copy of the same. A legal right bestow upon the heirs through Quranic version, Sharia and the provisions of Muhammadan Law cannot be jeopardized by executing an unregistered deed and that too, was not in the knowledge of any legal heirs nor was retained with any responsible person and has been produced by the plaintiff, the beneficiary, and that too at an improper time creates no right in his favour. Especially when no consent of the other legal heirs have been obtained in this regard. In this regard reliance can be safely placed on the case of Zardad v. Ali Akbar and 8 others reported as 1989 CLC 2028 wherein his Lordship held as under:--- "Now the question arises about the validity of the will executed by Mst. Shahzadgai on 12-9-1979, copy Exh.D.W.1/1.This request was executed after the death of Mian Dad. Obviously Mst. Shahzadgai had inherited 1/8th share from the property left by Mian Dad in the capacity of his widow. The perusal of this will deed show that she had made a bequest of her entire share in favour of Zardad petitioner herein. According to section 117 of the Principles of Muhammadan Law by D.F. Mullah (15th Edition, 1967) a bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. According to section 118 of the same book a Muslim cannot by Will dispose of more than 1/3rd of the surplus of his estate after payment of funeral expenses and debts and bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator. Two things are quite clear from the aforesaid principles of Islamic Law: firstly, that a Muslim cannot by Will dispose of more than a 3rd of the property left by him/her; and secondly, even this 1/3rd share will not be valid if the Bequest is made to a heir and the other heirs do not agree."
7. As the will-deed has not been proved nor it contained the description of the property, therefore, the legal rights of the defendants to the extent of their sharai shares out of the legacy of their predecessor-in-interest cannot be disturbed and inheritance mutation attested in their favour in accordance with law is not liable to be annulled and, as such, is maintained.
8. The Courts below have decided the "lis" pending with conscious and application of independent mind; interference.
' For the aforementioned reasons, the instant petition of merit is hereby dismissed.