' AMIN-UD-DIN KHAN, J.---Through this revision petition petitioner has challenged the judgment and decree dated 31-1-2004 passed by learned Additional District Judge, Lahore, whereby in appeal, with some modification in some properties in the shares of the plaintiffs-respondents, the judgment and decree passed by the learned trial court have been confirmed and against the judgment and decree dated 2-12-2000 whereby preliminary decree in a suit for partition has been passed.
2. Brief facts of the case are that plaintiff/respondent No. 1 on 5-2-1989 filed a suit for partition of House No. 2494, House No. 2521 and land measuring 16 marlas and 62 square feet falling in Khasra No. 367, detail of the properties is mentioned in Para-2 of the plaint. According to the pleadings all these properties were owned by their father. In his written statement defendant No. 1/petitioner raised the preliminary objection that entire properties left by the deceased Mufti Zain-ul-Abedin have not been included in the suit. He has mentioned that another property bearing No.F-2429 situated in Khizri Mohallah inside Sheran Wala Gate, Lahore also belonged to late Mufti Zain-ul- Abedin, which has not been included in the suit. With regard to the land it was stated that Mufti Zain-ul-Abedin left 50 marlas of land as mentioned property No. 3 in the plaint and not 16 marlas 62 square feet. This is the only written statement filed by the defendants on the file. Learned trial court after framing the issues invited the parties to produce their respective evidence. Both the parties produced their evidence. Learned trial court vide judgment and decree dated 2-12-2000 passed a preliminary decree. Defendant No. 1/petitioner preferred an appeal, which was decided vide judgment and decree dated 31-1-2004. Hence, this civil revision.
3. Learned counsel for the petitioner states that Mufti Zain-ulAbedin died in the year 1952. At the time of his death'his 5 sons, 4 daughters and a widow namely Mst. Sughran succeeded him. Mst.
Sughran died in the year 1980. On Court query learned counsel for the parties admitted, the dates of death mentioned supra and stated that one of the sons of Mufti Zain-ul-Abedin namely Ikram- ud-Din predecessor of defendant Nos. 7 to 11 was from'the first wife of Mufti Zain-ul-Abedin and the mother of said Ikram-ud-Din died in the year 1916. Learned counsel for the petitioner states that it was the duty of the learned trial court to ascertain the share of each and every heir of Mufti Zain- ulAbedin while passing the preliminary decree. States that even both the learned courts below failed to ascertain the specific shares receivable by , each legal heir, therefore, states that the judgments and decrees passed by both the learned courts below are defective. While referring Para-6 of the judgment passed by the learned first appellate court states that the findings with regard to property No. F-2429 of the learned first appellate court that the same property was given to Mst. Mahmooda Begum and she sold the said property after obtaining power of attorney from the legal heirs of the propositus Mufti Zain-ul-Abedin. States that when Mst. Mahmooda Begum appeared as PW-3 she stated that she claimed the property No.F-2429 as a "will" from her father, therefore, states that even Mst. Mahmooda Begum has stated that she will not claim share of her father from the other properties except the share of her mother, therefore, states that as the one property which Mst. Mahmooda Begum claims to have been given to her through "will" and she has sold the same, therefore, she is not entitled to again receive the share from the other properties left by father of the parties.
4. On the other hand, learned counsel representing plaintiff/ respondent No. 1 states that some property has been surrendered in her favour by Abdul Sami Mufti. Further that some portion of property No. F-2429 hat been purchased by plaintiff/respondent No. 1 from Taki Mufti; that even Yasmin Itehman has also surrendered her share. It is qn the record that Mst. Mahmooda Begum contracted marriage in the year 1939 and Mufti Zain-ul-Abedin died in the year 1952 and the property F-2429 was sold by Mst. Mahmookla Begum after taking power of attorney from all the legal heirs of Mufti Zain-ul-Abedin in the year 1966. The suit was filed in the year 1989. Learned counsel for the respondents/legal heirs of Mst. Mahmooda Begum has referred the statement of petitioner, who appeared as DW-3. In cross-examination he has admitted that Mst. Mahmooda Begum sold the said house in the year 1966 and none of the brothers and sisters of Mst. Mahmooda Begum raised any objection and further while relying upon "Muhammad lqbal and 5 others v. Allah Bachaya and 18 others" (2005 SCMR 1447) argues that any oral surrender, even if proved, cannot take effect. Further while relying upon "Abdul Rehman and S others v. Amrat" (PLD 2003 Lahore 186) and "Zafar lqbal and 5 others v. Province of Punjab through Collector Gujrat and 10 others" (2005 CLC 1571) prays that this appeal be dismissed.
5. I have considered the arguments advanced by learned counsel for the parties at full length and have also gone through the record with their able assistance.
6. The points determinable before this Court are that the learned trial court has passed a preliminary decree but missed to determine the specific shares of the legal heirs of Mufti Zain-ul- Abedin and further that what is the effect of statement made by Mst. Mehmooda Begum as DW-3 whether on the basis of her statement she can be disinherited from the property left by her father.
' As all other points have been determined by the learned trial court or through the modified judgment by the learned first appellate court, therefore, first I would take the second point for determination.
In The admitted position is that the disputed property i.e. Property No. F-2429 was sold by Mst.
Mahmooda Begum after taking power of attorney from all the brothers and sisters. Though there is no record of power of attorney or the sale deed on the file but it is admitted by the parties that Mst.
Mahmooda Begum sold the same as attorney of brothers and sisters. In this eventuality when it is the position whether she can be disinherited from the other properties left by her father, in my view she cannot be disinherited, even if, the stand taken by the petitioner that she has admitted that, she claims her share of inheritance of her mother only. I have read her statement when she appeared in the witness-box, as DW-3 her statement in chief as well as cross-examination. By perusal of her whole statement it is clear that she is claiming share of inheritance from whole of the property left by her father and mother. In this eventuality if she has sold one of the properties left by her father after taking power of attorney from her brothers and sisters, on the basis of that the brothers and sisters in my view can claim the proceeds from Mst. Mahmooda Begum of the property sold but on this basis she cannot be disinherited from the other properties left by her father. Now this point stands decided that the property i.e. Property No. F-2429 sold by Mst.
Mahmooda Begum after taking power of attorney from her brothers and sisters, the brothers and sisters including the petitioner at the most can claim the proceeds of the house from the, legal heirs of Mst. Mahmooda Begum if they are so advised but on the basis of that sale Mst. Mahmooda Begum cannot be disinherited from the other properties left by her father.
7. There is no dispute between the parties with regard to property Nos. 1 and 2 i.e. Mentioned in the plaint. So far as property mentioned at Serial No. 3 of Para 2 of the plaint is concerned, on. Issue No. 4 the findings of learned trial court that only two properties mentioned at Serial Nos. 1 and 2 i.e. House No 2494 and House No. 2521 were the joint properties between the parties and are to be partitioned whereas the most of the portions of the suit land, mentioned at Serial No. 3 of the plaint, were sold to various persons who constructed the houses and that land was mutually partitioned between the parties and about 17 marlas of land is left, therefore, the learned trial court found that as the land has already been partitioned between the parties, therefore, there are only two properties to be further partitioned.
8. Now so far as the point determinable by this court that what is the share of the plaintiff and defendant. No. 1/petitioner in the land mentioned at Sr. No. 3 in the plaint is concerned, the share of all the legal heirs of properties will be determined in the latter part of the judgment, they will be entitled to receive the share from the properties mentioned at Sr. No.1, Sr.No.2 and Sr.No.3 and the findings of the learned first appellate court that property No. 3 was 50 marlas that most of the legal heirs have sold thief shares in the land i.e. Property No. 3 mentioned in the suit, therefore, the persons who have not sold their shares will be entitled to receive the share. So far as the surrender of their shares by the defendants in favour of plaintiff is concerned, findings of the courts below are also kept intact.
9. The shares are worked out as under:- ' At the time of death of Mufti Zain-ul-Abedin there was one widow, five sons and four daughters, therefore, share of widow is 1/8 whereas each son has to receive double of the share from his sister, therefore, each son will be entitled to 2/14 from residue after giving 1/8 share to the widow, meaning thereby 2/14 x 7/8 and each daughter will receive 1/14 x 7/8, therefore, the share of son becomes 14/112 and that of daughter 7/112. When the shares of daughters, sons and widow are mathematically equated, the share of widow becomes 2/16, share of each son 2/16 and share of each daughter 1/16.
' Now comes the inheritance of Mst. Ghulam Sughran as she also died in the year 1980 leaving behind all the legal heirs of Mufti Zain-ulAbedin except Ikram ud-Din as he was from the first wife of Mufti Zain-ul-Abedin, therefore, he cannot inherit Mst. Ghulam Sughran. Now share of Mst. Ghulam Sughran is to be distributed in her legal heirs. Admittedly, her legal heirs are four sons and four daughters. Each son has to take share from the inheritance of his mother i.e. 2/12 x 1/8=2/96 and each daughter has to inherit the mother by 1/12 x 1/8 = 1/96. Now when the total shares receivable by each son and daughter of Mufti Zainul-Abedin and Mst. Ghulam Sughran are combined shares, Anees-ud-Din will inherit 14/96, Abu Bakar 14/96, Muhammad Taki 14/96, Abdul Sami 14/96, Ikram- ud-Din 12/96, Shaheen Mufti 7/96, Yasmin Rehman 7/96, Masooda Mufti 7/96 and Mst. Mahmooda Begum 7/96.
10. The other findings recorded by the learned first appellate court are kept intact. The shares are determined. Parties are to inherit the suit properties in accordance with the above mentioned determination of shares. The outcome is that with the determination of the shares, the findings of the learned first appellate court are confirmed, therefore, this civil revision stands dismissed.