MUHAMMAD SAJID MEHMOOD SETHI, J.- Through this single judgment, I intend to decide instant revision petition and connected petition i.e. C.R No.41325 of 2021 as common question of law and facts are involved in both the petitions.
2. Through these petitions, the petitioner has assailed vires of orders dated 02.05.2019 and judgments dated 06.10.2020 passed by learned Civil Judge and Additional District Judge, Chiniot, respectively, whereby plaints of petitioner's suits have been rejected under Order VII Rule 11 of CPC.
3. Brief facts of the case are that the petitioner filed two separate suits for declaration with the averments that he as well as respondents No.1 to 4 were owner in possession of the suit properties (as detailed in plaints) on the basis of Will dated 07.01.2004 executed by their father Allah Dia, which were contested by respondents No.3 & 5 to 7 through written statements. Respondents No.1, 2 & 4, however, submitted conceding written statements. Respondents No.3 & 5 to 7, filed applications under Order VII Rule 11 of CPC for rejection of plaints, which were contested by the petitioner by way of written replies. Learned Trial Court, after hearing arguments of learned counsel for the parties, proceeded to reject the plaints vide separate orders dated 02.05.2019 while accepting applications under Order VII Rule 11 of CPC, which were kept intact by learned Appellate Court vide judgments dated 06.10.2020. Hence, the revision petitions.
4. Learned counsel for the petitioner submits that the Will was executed by the father of the parties and respondents No.3 & 5 to 7 remained failed to rebut the same through any admissible evidence.
He further submits that respective shares of the inherited properties have already been given to respondents No.1 to 7 as per the Will made during the life time of their father, and respondents No.3 & 5 to 7 have not disputed this fact in their written replies. He adds that contents of the plaints as well as Will were not appreciated while rejecting the plaints, rather the suits ought to have been decided on merits after framing issues and inviting evidence of the parties.
5. Heard. Available record perused.
6. The controversy in these cases revolves around Will dated 07.01.2004 executed by Allah Dia, in favour of his five sons and three daughters. One son (respondent No.3) and three daughters (respondents No.5 to 7) have disputed the said Will. As per Para 117, Chapter 9 of the Principles of Muhammadan Law by D.F. Mulla, a Will in favour of an heir cannot be considered valid unless the other heirs consent to it after the death of the testator, especially when it has not been registered. It is well-settled principle of law that bequest to an heir under Islamic Law was not valid unless it is consented to by the other heirs specifically after the death of testator. Needless to add 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 or in favour of any one or more of the legal heirs, but such bequeath shall only be valid and enforceable if the same is assented to by other legal heirs after the death of the testator. Reliance in this regard may safely be placed on cases reported as "Zakirullah Khan and others v. Faizullah and others" (1999 SCMR 971), "Sikandar Hayat Khan through L.Rs and others v. Mst. Khatoon alias Ameer Khatoon through L.Rs and others" (2017 CLC 664), "Abid Ali and another v. Muhammad Tahir and 3 others" (2021 CLC 1788), and "Zakia Begum and another v. Nasir-ul-Islam Khan and others" (2022 YLR 2015).
7. It is noted by learned courts below that prior to institution of suit for declaration, respondent No.2 filed a suit for partition, which was decreed upon statements of the parties made under oath of the Holy Quran, whereby said respondent was declared as co-owner, however, the fact of existence of Will was not brought on record at that time. And, suits in question were filed during execution proceedings, which appear to be an after-thought. In view of admission on the part of petitioner during proceedings in suit for partition, he has no cause of action or locus standi to institute suits for declaration.
8. The observation of the learned Appellate Court that registration of the Will was mandatory in terms of Section 42 of the Registration Act, 1908 is legally misconceived. Section 17 of the Act ibid outlines the documents that require compulsory registration, however Will is not included in the list.
Section 18 provides that any document not required to be registered under section 17 may also be registered, thus, registration of a Will is optional. Section 42 does not impose any mandatory requirement for the registration of a Will. It only authorizes the testator to get it registered by presenting it in a sealed covered, with a statement of the nature of the document [Section 42(1)].
Sub-section (2) of Section 42 ibid requires the testator to endorse the name and address of the person, on the cover, to whom the original document would be delivered after registration.
Therefore, under the Registration Act, 1908, the registration of a Will is not mandatory but optional.
Resultantly, the observation of the lower court that a Will must be registered under Section 42 of the Registration Act, 1908 is incorrect and not supported by the law. Reference can be made to Mst.
Batool v. Akbar and another (1986 CLC 372) and Abid Ali supra. The same is the position in Indian jurisdiction. I am fortified from the dictum laid down in V. Prabhakara v. Basavaraj K. (Dead) by Lr.
(LL 2021 SC 556), (O&M) Gurdial Singh v. Prithi Singh and Ors (2023 PHHC 147979), S. Sarvothaman v. The Sub-Registrar (AIR 2019 MADRAS 125), Jahan Singh v. State of U.P. and 4 others (AIR 2017 ALLAHABAD 247), George v. Varkey [2004(1) KLT 21], V. K. Thanikachalam v.
Parameswari Ammal and 2 Ors. [1997 (2) CTC 746], Padala Satyanarayana Murthy v. Padala Gangamma and Ors. (AIR 1959 AP 626) and Ramanandi Kuer v. Kalawati Kuer [(1928) 30 BOMLR 227].
9. So far as conceding written statements filed by respondents No.1, 2 & 4 are concerned, the same only bind them to the extent of their shares. Both the learned courts below rightly rejected the plaints of the petitioner by invoking the provisions of Order VII Rule 11 of CPC. Learned counsel for the petitioner remained unable to point out even a single circumstance suggesting illegal assumption, non-exercise or irregular exercise of jurisdiction by the learned courts below while passing the impugned decisions. Where concurrent findings of both the courts below on a question of law are based on proper appreciation of material available on the record and do not suffer from any illegality or material irregularity affecting the merits of the case, the same cannot be taken to any exception at revisional stage. Reliance in this regard may safely be placed on cases reported as "Muhammad Sarwar and others v. Hashmal Khan and other" (PLD 2022 SC 13), "Mst.
Zarsheda v. Nobat Khan" (PLD 2022 SC 21), and Salamat Ali and others v. Muhammad Din and others (PLJ 2023 SC 8).
10. Resultantly, instant revision petition and connected petition i.e. C.R No.41325 of 2021, being devoid of any merits, are dismissed in limine. No order as to costs.