ASIM HAFEEZ, J. This Civil Revision challenges concurrent decisions, passed in the backdrop of following facts; where petitioners, on 18.09.2001, brought an action seeking declaration, cancellation, partition and permanent injunction against will deed No.24 dated 21.05.1946 (the 'will deed') , and gift deed (the 'gift deed') dated 01.08.1996. In essence, bequeath is the nub of the controversy; executed by one Fazal Elahi ('Testator'), in favour of daughters, namely Mst. Sardar Begum and Mst. Mukhtar Begum (the 'Legatee(s)'), from his wedlock with one Feroza Begum.
Testator died in the year 1965, whose estate comprised of two properties; one which was subject of the will deed and other, identified as an agricultural land measuring 16-Kanal [in short referred as 'Chur Harpal property']. One of the legatee, namely Mst. Sardar Begum, gifted property subject of the will deed to her son [respondent No.1] in the year 1996, she claimed that her sister, the other legatee, had orally gifted her half share. Petitioners brought action to question the legality of the will deed and the gift deed, through suit in 2001. Claim of the petitioners, claiming inheritance of Fazal Elahi, the Testator, was contested by the beneficiaries of will deed-cum-gift deed, whereupon Trial Court proceeded to frame issues and recorded evidence - parties had produced one witness each; Noor Muhammad appeared as PW-1 from petitioners and respondent No.7 testified as DW- 1,for himself and as special attorney of his mother / respondent No.1]. Trial Court dismissed the suit to the extent of the will deed and allowed it to the extent of the gift deed, declaring it ineffective and invalid. Appellate Court upheld the reasoning and rational of the decree of the trial court and dismissed the appeals vide judgment of 31.10.2013. Now, only the validity of the will deed to the extent of share of respondent No.1 is the only triable question - respondent No.1 and respondent No.7 have not challenged the declarations against oral gift favouring Mst. Sardar Begum and recorded gift in favour of the latter.
RESPECTIVE SUBMISSIONS: Learned counsel for the petitioners contends that bequeath to an heir is not valid unless other legal heirs' consent to alleged transaction, after the death of the Testator - reliance is placed on para 117 of the Muhammadan Law by D. F. Mullah. Further submits that the Testator cannot bequest property in excess of 1/3 of the properties, accounted for at the time of testator's death. She elaborates that no explicit consent / endorsement was extended by the legal heirs, who in fact objected to and instituted subject matter suit. Adds that the will deed was not enforceable in law and property subject thereof is liable to be distributed amongst the legal heirs in accordance with the settled principles of inheritance of the deceased - the Testator. Explains that no defence of limitation is attracted vis--vis claim of inheritance by the heirs, who, for all intent and purposes, become co-sharers at their predecessor's death. Reference is made to the decisions reported as Shabla and others V. Ms. Jahan Afroz Khilat and others (2020 SCM R 352), Mst. Farida Khatoon V.
Dr. Masood Ahmed Butt and others (2009 PSC 714), Ihsan Ilahi and others V. Hukam Jan (PLD 1967 Supreme Court 200) and Muhammad Sulaiman Malik and another V. Royal Trust Corporation of Canada and others (1979 CLC 48).
Conversely, learned counsel for contesting respondents objects to the maintainability of the suit in the context of Order-II Rule (2) of the Code of Civil Procedure 1908 (the 'Code') on the ground that petitioners - legal heirs of deceased-cum-testator - had previously instituted suit seeking partition of Chur Harpal property, which suit was decreed and said property was accordingly divided amongst heirs, including the petitioners and beneficiary of the will deed. Emphasizes that once legal heirs had consciously elected and acted to exclude the property, subject of the will deed from inheritable share, they were estopped from raising claim subsequently with respect to said property in terms of statutory bar in terms of Order-II Rule (2), supra. Elaborates that factum of earlier suit and exclusion of the property, subject of the will deed, was not denied, let alone disputed. And this conspicuous conduct constitutes an unqualified acknowledgment-cum consent to the rights created through declaration of bequeath. Further submits that no cancellation of will deed was sought till 2001, despite having knowledge of the instrument since inception, which attracts bar of limitation. Cited cases reported as Chief Executive Officer NGPCL, GENCO-II, TPS Muzaffargarh V. Khalid Umar Tariq Imran and others (2024 SCMR 518), Zahoor Ahmad V. Master Mushtaq Ahmad (2016 CLC 937), Province of Punjab through Secretary, Population Welfare Department, Lahore and others V. Shehzad Anjum and others (2024 SCMR 766), Trustees of the Port of Karachi V. Organization of Karachi Port Trust Workers and others (2013 SCMR 238) and Ahmad Din (deceased) through L.Rs. and others V. Khushi Muhammad and others (2020 CLC 817).
4. Heard. Record perused.
5. It is portrayed that transaction subject of the will deed allegedly violates the mandate of paragraph 117 of the Muhammadan Law. Before answering this misconception, it is appropriate to reproduce said provision;
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 be time of the execution of the will, but to the time of the testator's death".
6. There are no disagreements with the conditionalities prescribed in aforesaid paragraph.
Effectiveness and enforceability of the bequest, to one or more of the legal heirs by the Testator, shall be subject to the consent of all the heirs, to be expressed or conveyed, after the death of the Testator. Questions requiring sharper focus arerd Whether consent by legal heirs must be in writing or even an oral consent, by way of conspicuous conduct and not mere silence, could contribute to the legality of the will deed? and Whether, in the facts and circumstances of the case, doctrine of cause of action estoppel is attracted?
7. It is not disputed that the Testator died in the year 1965, leaving two properties, one subject of the will deed and other subject matter of previously instituted suit for partition - Chur Harpal property.
Noor Muhammad appeared as PW-1 and acknowledged that the property, subject of the will deed was not part of earlier suit, who, during cross-examination, stated that there was no dispute with regard to property subject of the will deed. Factum of exclusion of property subject of will deed is a relevant fact and when such fact, inextricably linked with the principal fact, is admitted; does such conspicuous and an overt conduct lawfully qualifies as consent of all other heirs qua the legality, validity and enforceability of the will deed. Undeniably, conscious and conspicuous acquiescence, without any protest, constitutes a consent, by demonstrating an affirmative conduct. And an overt act as opposed to silence constitute an acknowledgment to the validity and effectiveness of the will deed. Simply by electing not to include the property, subject of the will deed, as part of previously instituted suit for partition of another property established an underlying intent, which is to treat property, subject of the will deed, not forming part of the estate of the deceased, this alone is sufficient to meet the requirement of having consent of all the heirs. Notably, paragraph 117 of the Muhammadan Law used the expression 'consent', without any qualification that consent should be and must always in writing. And instead, the consent can be expressed, communicated or ascertained upon evaluating an overt conduct. Hence, in view of the evidence available and conduct demonstrated, all the legal heirs had expressed acknowledgement of the will deed and consented to its enforcement, in wake of reasoning supra. This clinches the first issue against the petitioners and concurrently recorded findings are affirmed.
8. Now I take up second question, context being the scope of Order II Rule (2) of the Code. It is for the petitioners to prove that why the property subject of the will deed was conspicuously excluded from the ambit of an earlier suit, when cause of action, seeking distribution /succession of all the estate of the deceased was available. Exclusion of the property, part of the will deed, was a crucial question and it was for the petitioners to explain reasons and rational of excluding it. The obligation rested with the petitioners because PW-1 admitted factum of an earlier suit and factum of exclusion of property, subject of the will deed. Petitioners had not produced copy of the plaint / pleadings of previous suit and the judgment passed to show sustainability / survival of the cause of action for subsequent suit, which failure is fatal to the maintainability of subsequent lis. In the context of relevant facts, cause of action accrued to all the legal heirs to enforce it against the estate of the deceased, involving both the properties - one subject of the will deed and other subject of an earlier suit. Right to sue, inter-alia construed as a cause of action, was available, simultaneously against both the properties, irrespective of the will deed, but conspicuously exercising it with respect to one of the properties - Chur Harpal property -, clearly established that though cause of action was available but not exercised, hence, same stood extinguished upon passing of the judgment in the previous suit [merger of cause of action and enforceable but only in terms of the judgment passed - when in particular the judgment was not simplicitor a declaratory judgment but in fact directing partition of the estate of the deceased / Testator, only to the extent of Chur Harpal property. Doctrine, by which a cause of action merger with a judgment in the action was elaborately discussed in the case of "Nasir (Appellant) v. Zavarco plc (Respondent)" [2025 UKSC 5]. Now in these circumstances principle of merger, re-phrased as the rule of finality of cause of action, embodied in terms of Order II Rule (2) of the Code, is attracted, whereupon right of the legal heirs to seek partition of the property, subject of the will deed, stood extinguished and the right to sue / cause of action, for claiming share in the estate of the deceased matured / transformed into an enforceable judgment to the extent of property, not subject of the will deed.
Hence, right to sue or invoke cause of action, already extinguished, is not available against the property, subject of the will deed. Doctrine of cause of action estoppel, a rule of substantive law and embodied in Order II Rule (2), ibid, is fully attracted and rightly enforced by the courts.
There is another aspect of the matter. In the context of present controversy, one must not overlook difference in the scope and application of the concepts of burden to prove and onus to prove, former is static throughout the proceedings, which imposes an obligation on the claimant, who claims a cause of action, to prove existence of such right in terms of Chapter IX [Burden of Proof] of Qanun-e-Shahadat Order 1984. And latter, which oscillates during the trial, refers to the requirement of producing evidence on a specific fact or issue. In view of the above, petitioners failed to prove existence of alleged cause of action to re-claim and seek share in the estate of the deceased, regarding the property, subject of the will deed - a condition precedent for maintaining subsequent suit on the basis of an otherwise extinguished cause of action. At the expense of repetition, it is iterated that petitioners in order to avert application of Order II Rule(2) of the Code were required to establish that omission to sue, unless proved otherwise, constitute an intentional relinquishment qua the property subject of partition. In absence of any proof contrary thereto, omission is fatal to the maintainability of subsequent suit - in principle, having the same cause of action, previously pleaded, granted and extinguished upon judgment in previous suit, cannot be brought to the Court again. It is not for the beneficiaries of the will deed to prove that why property subject matter of will deed was excluded, but burden rests with the petitioners. - plaint of previous suit, though relevant but not produced suggests adverse inference and intent to withhold best evidence, attracting Article 129 (g) of Qanun-e-Shahadat Order 1984. Notably, lack of knowledge of will deed was neither pleaded nor alleged. Hence, it stood proved that decision to exclude the property, subject of will deed from the ambit of previously instituted partition suit, was an elective, thought-out and a conscious decision.
9. Last but not the least, and without diminishing portent effect of reasoning narrated above, non- filing of the suit till 2001, allowing 55 years to lapse after the execution of the will deed; 36 years after the death of the testator, and 17 years after the filing of suit for partition of the property of the testator-cum-deceased speaks volume about active and meaningful acquiescence on the part of the petitioners, qualifying such conduct as an obvious consent-cum-acknowledgment, higher in degree and effect than a mere silence or claim of tacitly ascertainable consent. Claim was not covered under Articles 91, 120 and 123 of the Limitation Act, 1908. Hence, suit is barred.
Judgments referred reiterates settled principle that bequest to a legal heir is valid only once consent of other legal heirs is extended, after the death of the Testator. Consent by explicit conduct was accorded to the will deed, point elaborated earlier, hence, the judgments have no application for the purpose of deciding the lis - principles governing application of Order II Rule (2) of the Code are clear and need no reiteration.
10. Now I address objection regarding limit of on bequeathing in excess of 1/3 of the property, which objection is otherwise misconceived and have no application to the case at hand. It is not disputed that daughters were declared legatee(s) of the will. In the case at hand number of the properties, which are two, is not relevant but valuation thereof. No evidence was led that property bequeathed was in excess of 1/3 of the cumulative value of the properties of the Testator - what is the cumulative value of the properties of the deceased and whether value of the property, subject matter of the will deed is in excess of the 1/3 of the cumulative value, all these are relevant issues but no evidence was led for attracting the limitations, prescribed and observed. This evidence was essentially required but wanting. It was not even alleged by the PW-1 during his testimony. Pertinently, relevance of 1/3 limit otherwise diminished when consent of the legal heirs to the will deed stood established. In terms of paragraph 118 of Muhammadan Law, bequest(s) inrd rd rd rd excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator. Guidance in this behalf of solicited from the ratio settled in the case of Zakia Begum and others V. Nasir-ul-Islam Khan and others (2022 SCMR 2130). Rule of Rateable proportion has no application since factum of share of the legatees in excess of 1/3 was not proved hence, there is no reason for reducing the share of each of the legatee, proportionately - validity of the will deed was affirmed by the Courts.
On the face of it, there appears no contradiction in the decisions of the courts, which protected the deed of will and rightly so, canceled the gift deed, latter otherwise being executed in the year 1997, after filing of first suit in the year 1984, hence, challenge to gift deed is not covered under Order II Rule (2) of the Code.
In view of the above, I find no reason or justification to show indulgence and upset concurrent findings. Civil Revision is meritless and same is, hereby, dismissed.