ROZI KHAN BARRECH, J.---This judgment will dispose of Civil Revision Petition Nos.528, and 529 of 2019, as both arises out of the judgment dated 25.09.2019 (hereinafter "the impugned Judgment" ) passed by learned Additional District Judge-V , Quetta, (hereinafter "the appellate Court ") wherein the appellate Court while dismissing the appeal filed by the petitioners upheld the judgment and decree dated 24.06.2019 passed by learned Civil Judge-VI, Quetta, (hereinafter " the trial Court ").
2. Epitomized facts necessary for adjudication of the Petition No.528 of 2019 are that the petitioners/plaintif fs filed Civil Suit No.97 of 2014 for declaration and permanent injunction against the respondents/defendants Muhammad Tahir and others before the learned trial Court with the following prayers:- "(a) declaring that plaintiffs are the legal and lawful more than particularly described in para-I and defendant Nos.I and 2 had no legal and lawful share or entitlement in the said property which is left by the predecessor of the panics.
(b) declaring that after settlement of inheritance during lifetime of predecessor and execution of agreement by the defendants Nos.] and 2 and receipt of share in shape of more properties mentioned in para-1 as such they ceased to be a co-sharer in the property in dispute, therefore, mutation entries No.220, Khasra consisting upon 2 Khatta, total measuring 0 Rod 7 Poles situated in Mahal Karez Shero, Mouza Hudda, Tappa Saddar -I, Tehsil and District Quetta and shop situated in Mahal and Mouza Ward No.36, Tappa Urban-III Tehsil and District Quetta bearing Khasra No.241, total measuring 150 is liable to be cancelled to the extent of defendants Nos. I and 2 and their name be excluded from the mutation entries.
(c) by means of permanent injunction, defendants be restrained not to interfere or claim any right over the properties mentioned in para-1.
(d) further they be directed not to transfer , alienate mortgage, or in any manner deal within the property in dispute mentioned in para-I till pending disposal of this suit, in the interest of justice, fair play and equity".
3. The respondents resisted the suit, being the defendants. While submitting their written statements, they controverted the assertions contained in the plaint. From the divergent pleadings of the contested parties following multiple issues were frame:-
1. Whether through separate agreement executed between defendants Nos. 1 and 2 and Ghulam Sabir (predecessor -in-interest of plaintiffs Nos. 1 and 2 and defendants Nos.1 to 3) the share of defendants Nos.1 and 2 in suit properties were given to them?
Whether through family settlement defendants Nos.1 and 2 were ceased to be the shareholders in the suit properties?
3. Whether through the will dated 11.01.2012, the predecessor -in-interest of the parties had determined the shares of each shareholder?
4. Whether plaintiffs. are the exclusive owners of suit properties in view of the will?
5. Whether the will is effective and is in line with law and Sharia?
6. Whether plaintiffs are entitled for the reliefs they have claimed.
7. Relief?
4. Brief facts of the Petition No.529 of 2019 are that the respondents/plaintif fs filed a Civil Suit No.76 of 2017 for partition, possession and mense profit against the petitioners/defendants and others before the learned trial Court with the following prayer:- "a. Declaring that being legal heirs of late Ghulam Sabir plaintiffs and defendants are entitled for their sharia shares in realm of late Ghulam Sabir . b. Defendant be directed to partition properties in question among all the legal heir of late Ghulam Sabir . c. Defendant No.2 may be directed to enter the shop mentioned in para No.1 (ii) in the names of all the legal heirs of Ghulam Sabir as per their sharia shares. d. Defendant No.1 may also be directed to pay mense profit to all legal heirs as per their sharai shares, received by him in shape of rent of house mentioned in para No.1(i) and revenue generated from business of shop mentioned at para No.1 (ii) e. Any other relief which this Hon'ble Court deems fit and appropriate may also be awarded.
5. The petitioners resisted the suit, being the deferfdants. While submitting their written statements, they controverted the assertions contained in the plaint. Out of the pleading of the parties, the following multiple issues were frame:-
1. Whether late Ghulam Sabir in his lifetim e had settled dispute of inheritance through family settlement deed and the same was duly acted upon?
2. Whether moveable and immovable properties as mentioned in para No.1 of plaint have been partitioned between the private parties of suit?
3. Whether the plaintiffs have received their shares in the properties in lieu of amount?
4. Whether the mutation of inheritance entered in the name of plaintiffs regarding house i.e. property mentioned at S.No. I in para No.1 of the plaint is void in the light of family settlement deed?
5. Whether the predecessor in interest of plaintiffs and defendant No.1 late Ghulam Sabir in his lifetime has revoked will deed dated 1 1.01.2012 by written Iqrar Nama dated 16.08.2014? Whether the plaintiffs are entitled for their sharai shares in the realm of late Ghulam Sabir i.e. properties mentioned at S. No. 1 of plaint?
7. Whether the plaintiffs are entitled for mense profit of properties as mentioned in prayer clause D of plaint?
Whether the properties of deceased fathe r of parties are required to be partitioned amongst all the legal heirs as per sharai?
9. Whether the plaintiffs are entitled for the reliefs they have claimed?
10. Relief, if any?
After framing of issues, the parties to the suit produced their respective evidence and on completion of the same, Civil Suit No.97 of 2014 filed by the petitioners/plaintif fs (Abid Ali and another) against the respondent/defendant (Muhammad Tahir and others) was dismissed. The Civil Suit No.76 of 2017 filed by the respondent/defendant (Muhammad Tahir and others) against the petitioner/plaintif f (Abid Ali and another) was a decree in a common judgment dated 24.06.2019 by the learned trial Court.
7. Being aggrieved from the judgment and decree dated 24.06.2019, the petitioners/plaintif fs (Abid Ali and another) filed a separate appeal, under section 96, C.P.C. before the learned appellate Court which was dismiss vide common judgment and decree dated 25.09.2019.
8. I. have heard the learned counsel for the petitioner as well as respondents and learned A.A.G at considerable length and also perused the record.
9. The claim of the petitioners/plaintif fs (Abid Ali and another) in Civil Suit No.97 of 2017 are that the predecessor of the parties was the owner of the two properties in Quetta city, one house bearing No.8, situated at Al Hamza Housing Society , the second property was a shop, situated in Mahal and Mouza Ward No.36, Tappa Urban-III, Tehsil and District Quetta, bearing Khasra No.241, Total measuring 150 sqft in which the predecessor was carrying out business in the name and style of Sabir Homoeo Pharmacy along with an account bearing No. PL-1157-1 in Muslim Commercial Bank, Toghi Road, Quetta, having an amount of Rs.1,43,000/- . Unfortunately , the predecessor of the parties died at Quetta on 17.09.2014 leaving behind the petitioners/plaintif fs and private respondents/defendants as legal heirs. It is further averred in the plaint that the predecessor of the parties during his lifetime settled the share of each legal heirs through family settlement agreement by means of 7 which two of the legal heirs, i.e. defendants Nos.1 and 2 who demanded their shares as such the value of both the properties were assessed and on the basis of said assessment, the share from both the properties was pay to respondent/defendants Nos.1 and 2 in the shape of cash through various cheques.
10. In Civil Suit No.76 of 2017 the claim of the plaintif fs/respondents in Civil Revision Petition No.529 of 2019 as a respondents are that the predecessor-in-interest of the parties during his lifetime from 2008 to 2011 had given Rs.44,27,014/- to plaintif f No.1 for his domestic expenses in piecemeal. But later on, on the instigation of defendant No.1 father of parties executed a Will Deed whereby he deposed that such amount was given as share of plaintif f No.1 in the realm of the predecessor of parties. Because, such amount was not proportionate to the legal and sharai share of plaintif f No.1; therefore, predecessor in interest of parties subsequently written an Iqrar Nama dated 16.08.2014 whereby he revoked previous Will Deed dated 11.01.2012 and further deposed that his entire realm should be distributed among his all legal heirs as per their sharia shares.
11. The petitioners and private respondents are legal heirs of late Ghulam Sabir who died at Quetta on 17.09.2014 leaving behind him movable properties at Quetta. On the opening of the succession of his legacy in revenue record, the house and shop were mutated on the names of his legal heirs, according to their proportionate shares vide mutation Entries No.1273 dated 14.10.2014. The petitioner / plaintif f (Abid Ali) feeling aggrieved from the transfer of house in the name of all legal heirs, challenged the mutation entries in the Suit Civil No.97 of 2014 with the averments that the house and shop exclusively belongs to him because late Ghulam Sabir had executed a Will in his facour on 11.01.2012 which was duly registered with Sub-Registrar , Quetta. All his legal heirs had knowledge about it.
12. In view of the pleading and evidence produced by the parties the important question for consideration would be two-fold;
(i) Whether the W ill has been revoked and if so, what would be its effect?
(ii) If for the sake of arguments it is presu med that it has not been revoked, then what would be its effect in view of Muslim Personal Law?
13. Before dilating upon these questions, the execution of revocation of Will (Ex.D/1) is unregistered documents, whereas the Will (Ex.P/3-A) registered one. Under the Registration Act, neither the Will nor the Revocation Deed is required to be registered compulsorily . At this juncture, a reference to Article 102 of the Qanun-e-Shahadat, 1984 would not be out of context. This.Article provides that when the terms of the contract or of grant or any other disposition of property have been reduc ed to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter except the docum ent itself or secondary evidence of its contents in cases in which, secondary evidence is admissible under the provisions hereinbefore contained.
14. As it has been observed hereinabove, execution of both the documents has not been disputed. As far as the Will is concerned, it was reduced into writing on 11.01.2012 whereas deed of revocation of Will Deed was executed subsequently dated 16.08.2014.
15. Both the parties produced the marginal witnesses of the above documents; however , the Will was registered with Sub-Registrar Quetta on 19.01.2012. The name of the marginal witnesses Khurram Shehzad and Jaffar Iqbal are mentioned, and both were produced as PW-2 and PW-3, both of them stated in their statements that on 11.01.2012 late Ghulam Sabir called them in his shop and told them that he had written his Will and in the said Will he had given a share of Muhammad Tahir and his daughter but the said witnesses neither stated a single word that in their presence the said Will was regis tered with Sub-Registrar Quetta nor indicated in their statement that the Will was prepared in their presence or in the presence of the legal heirs.
16. From the statements of the above witnesses, it is clear that the Will Deed was not prepared in the presence of the respondents/defendants and none of the witnesses states a single word that any consent was taken from the parties. It is worthwhile to mention here that after perusal of the Win Deed dated 11.01.2012 of the late predecessor of the parties it is not noted the exact shares of each party and does not describe the one-third of the estate of the Testator . It is a settled principle of Muhammadan Law that a bequ eath would be void for want of consent of all legal heirs, after the death of Testator . It is also an admitted principl e of law that where the Will has been executed in favour of one of the legal heirs, then the assent of remaining legal heirs is essential, after the death of testator , as it has been in Muhammadan Law by Aamir Ali (Chapter 20 page 589). Relevant para therefrom is reproduced herein below:- "(2) According to all the schools a beque st to any one of the heirs is invalid without the consent of the others. (1) whether the person in whose favour the device is made is an heir or not must be determined not at the time of the Will but the testator's death. A grandson whose father has died in the lifetime of the Testator is a non-heir when he co-exists with a son; and a bequest to him not exceeding a third is valid".
A similar view was expressed in Mahomedan Law by Mullas., Relevant para. From there is reproduced hereinbelow:-- "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.
Explanation.-- In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the W ill, but to the time of the testator's death".
Above proportion came for consideration in the case of A.E. Salayjee v. Fatima Bibi before Hon'ble Privy Council reported in (71 Indian Cases 753) wherein it was held as under:-- "The Muhammadan Law does not allow a testator to leave a legacy to any of his heirs unless the other heirs agree, but any single heir may so agree as to bind his own share, and therefore when it appeared in the course of the suit that the other heirs had agreed the only contest was as regards the plaintif f and the three minors. As regards the three minors, there could be no question of their consent and the dispute, therefore, turned on the question whether the plaintif f had consented or not".
17. In view of the above, an important question which arises is, as to what should be nature of the consent required for the validity of the will to legal heirs. The ideal situation would be if the consent is express and in unequivocal terms, either in writing or even oral; the person should accept, acknowledge and endorse the Will definitely , unambiguously but if the above is lacking and the consent is to be inferred as being implied substantial evidence and circumstances are needed for that purpose because a legal heir on account of such consent would lose his right in the State and would be deprived of inheritance, therefore, mere silence would not be enough for such inference. From the above evidence produced on the record by the parties, it has not been established that the petitioners and the private respondents ever gave their consent to this "Wasiatnama (Will)". Even it is not proved from the evidence that at the time when late Ghulam Sabir wrote this docum ent, the petitioners and private respondents were also present in that very gathering or assembly .
18. The legal heirs have not consented rather contested the suit and termed the alleged Will Deed has not according to Muhammadan Law. As the other legal heirs do not assent to bequest to the petitioner Abid Ali, 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 as per the 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 is reproduced for guidance as under:- "Section 1 17, 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 1 18. 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 senator".
19. The petitioners/plaintif fs have claimed the entire property of late Ghulam Sabir by way of Will Deed, but legally the Testator cannot bequest his entire property , however , can bequest the 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 bequeath in favour of legal heirs.
20. In Case of Mahomed Hussain Haji Ghulam Mahomed Alam v. Alshabai and others (AIR 1935 Bombay 84), the principle, that a bequeth to the heir can only be rendered valid by consent of the other heirs was followed.
Similarly in case of Muhammad Aslam Rashid and 2 othe rs v. Dr. Muhammad Anwar Saeed and 4 others (1997 CLC 2012 ), a Division Bench of this Court held that if a Will had been executed in favour of one of the legal heirs, the assent of remaining heirs were essential after the death of Testator . In the absence of consent of all legal heirs, the Will was held not capable of enforcement. In the case of Ihsan Ilahi and others v. Hukam Jan (PLD 1967 SC 2000). The same principles were authoritatively affirmed by the Hon'ble Supreme Court of Pakistan. It was held that in order to make a Will enforceable in favour of an heir consent of other heirs was imperative and more than 1/3rd share could not be bequ eathed by testator . In another case Abdul Razzaq and eight others. v.
Shah Jehan and 5 others (1995 SCMR 1489 ). The same principle was af firmed and followed.
21. In the case of Zakirullah Khan and others v. Faizullah Khan and others (1999 SCMR 971) in the said case the Hon'ble Supreme Court held as under:- "Under the Islamic law, Saadullah Khan could not make any will in favour of any heir unless the other prospective heirs had consented such will and despite the Islamic law of inheritance being clear on this point, as the Appellate Court had illegally confirmed the will made by Saadullah Khan in favour of the appellants to the extent of I/3rd of the suit land, the Appellate Court's illegal finding to the effect could be corrected by the High Court."
22. I have examined the record of the case, and the judgment referred hereinbefore and did not find any difficulty in holding that a Muslim testator enjoys the power to bequeath his property to the extent of 1/3rd share of his estate in favour of any other person except his legal heirs. However , he may bequeath the 1/3rd share in favour of any one or more of the legal heirs, but such bequeath in favour of one or more legal heirs shall only be valid and enforceable if the same is assented to by other legal heirs after the death of the Testator .
23. Accordingly , the Will dated 11.01.2012 would only be enforceable as the bequeath of the deceased if it is assented to by other legal heirs. The petitioners and private respondents are son and daughter of late Ghulam Sabir have not assented to the Will as such the same is not enforceable.
In view of the above, the observations and concurrent findings of both the Courts below the learned counsel for the petitioners/plaintif fs have failed to point out any illegality or irregularity , misreading and non-reading of evidence in the impugned judgments and decrees passed by the trial as well as appellate courts; thus, the petitions being devoid of any merits are dismissed with no order as to cost.