' The revision petition is directed against the order dated 12-12-1982 of Additional District Judge, Lahore whereby the learned Additional District Judge dismissed the appeal filed by the petitioner against the order dated 23-1-1982 of Civil Judge, Lahore.
2. Qazi Zahoor Hussain father-in-law of the petitioner, father of some of the respondents, grandfather of others and predecessor-in-interest of the remaining died on 6-1-1963. The respondents and predecessors-interest of other respondents filed a suit for partition of the property in dispute against Qazi Anwar Hussain husband of the petitioner in 1969. A preliminary decree was passed by the learned Civil Jude vide order dated 21-3-1972. The petitioner filed an application under Order I, rule 1Q of the Code of Civil Procedure for being impleaded as a party somewhere in 1975 on the ground that she is the owner of the property on account of the Will executed by Qazi Zahoor Hussain in her favour. This application was dismissed by the learned Civil Judge vide order dated 1841-1975. The revision filed against the order by the petitioner was also dismissed by the High Court. The learned Civil Judge while dismissing the application under Order I, rule 10 of the C. P. C. Had observed that if advised, the petitioner can file a suit claiming property on the basis of Will. After the dismissal of revision petition the petitioner filed a suit claiming ownership of the property in dispute on the basis of Will on 26-1-1976 against the respondents and against the predecessors-in-interest of some of the respondents (on the death of some of the respondents their legal heirs were brought on record). On appearance of the respondents and after the receipt of written statements, learned trial Court framed the following issues :-
(1) Whether the plaintiff is estopped to file this suit ? 0. P. D.
(2) Whether the suit is not maintainable ? 0. P. D.
(3) Whether the suit is barred by time ? 0. P. D.
(4) Whether the suit is barred under section 47, C. P. C. 7 0. P. D.
(5) Whether Qazi Zahoor Hussain, deceased made a valid will of the disputed house in favour of the plaintiff ? 0. P. P.
(6) If the above issue is proved, whether the plaintiff has become owner of the disputed house ? 0.
P. D.
(7) Whether defendants 1, 2 and 4 are entitled to special costs, if so to what extent 0. P. D,
(8) Relief.
3. The claim of the petitioner in the suit was that Qazi Zahoor Hussain had executed a Will in her favour on 7-12-1962 and that as she remained unaware of the same and had learnt of the same after havin, found the Will in the documents left by Qazi Zahoor Hussain while looking for some other papers in 1975, she could not lay claim to the property earlier to 1975. In support of her claim she produced six witnesses and also appeared herself. Farrukh Hussain Kazmi P. W. 1 is the son of the petition-writer who, according to the petitioner had written the Will Exh. P.
1. Meraj Din P. W. 5 is the marginal witness of the Will who has deposed that he had signed the will which was executed by Qazi Zahoor Hussain. P. W. 6 Mr. M. A. Nomani is the Handwriting Expert who after comparison of the signatures of the deceased on Exh. P. 1 with the signatures on the documents produced by Nisar P. W. 4, an employee of Model Town Society, gave the opinion that the signatures of Qazi Zahoor Hussain on Exh. P. I. Tally with the signatures on the documents produced by P. W.
4. P. W. 2 Parvez A. Dastoor, Manager of the Bank who had been summoned to produce the record of the accounts opened by the deceased, stated that the record had been destroyed and as such could not be produced. Zafar Din P. W. 3 had prepared the site plan of the property. The petitioner while appearing as her own witness as P. W. 7 repeated the claims on the basis of which she had filed suit.
4. From the respondents side Dr. Imdad Hussain (respondent No, 6) Mst. Atia Begum special attorney of respondent No, 2, and Ahmed Hussain wog* uncle of ho4hand of the petitioner and of respondents was sons of Qazi Zahoor Hussain, appeared as D. W. 1, D. W. 2 and D. W. 3 respectively.
All the D. Ws. Have stated that the deceased being close blood relation, used to consult them in family matters and that he never mentioned that he had executed any Will in favour of the petitioner. Some of the D. Ws. Have also deposed that the relations between the deceased and the petitioner were never cordial. The burden of proof of issues Nos. 1, 2, 3, and 4 was on the respondents. They did not produce any evidence in this regard and as such these were decided against the respondents. Issue Ne. 7 was also not pressed and so was decided against the respondents. In fact the whole case rested on the evidence of the parties on issue No, 5, the onus of which was on the petitioner-plaintiff.
5. It may be of interest to mention here that Qazi Zahoor Hussain was a literate person and had been holding eminent positions. He retired as Chairman of the Pakistan Railway Board and also served as a Member of Public Service Commission.
6. Learned counsel for the petitioner has contended that the petitioner had sufficiently discharged the onus of proving Issue No, 5 by producing the son of the scribe of Will Exh. P. 1 and by producing the marginal witness, and further by examining the Handwriting Expert who has given the opinion that the signatures on Exh. P. 1 and on the documents which bore the signatures of the deceased produced by P. W, 4, tallied with each other and that the learned trial Court and so also the learned appellate Court have on insufficient grounds discarded their evidence. The contention of the learned counsel, exactly is that the learned trial Court has drawn inferences the basis for which are not available on record. He has argued that the petitioner had given sufficient reasons for not having laid the claim earlier to 1975 by saying that she never came to know of the Will, having been executed in her favour prior to that.
7. I have examined the contentions of the learned counsel and have gone through the judgments of the learned lower Courts. The admitted position in this case is that the respondents and predecessors-in-interest of some of the respondents who were heirs of Qazi Zahoor Hussain (deceased) had filed a suit for partition of the property in 1969 against the husband of the petitioner, and a preliminary decree had been passed in their favour on 21-3-1972, and the first time that the petitioner claimed her entitlement on the basis of will Exh. P. 1 was in 1975 when she moved an application under Order I, rule 10, C. P. C. For being impleaded as a party, claiming title of the property on the basis of the Will. It is petitioner's own case that till 1915 she was not aware of the Will having been executed in her favour. The learned Civil Judge and the learned appellate Court while recording findings on Issue No, 5 have taken this fact also into account. The evidence produced to prove the Will Exh. P. 1 has been critically examined by both the learned lower Courts. The reasons for discarding the evidence of the marginal witness are unquestionable. He was the only person alive who knew regarding the execution of Will. It is the petitioner's own case that he was a casual visitor to the deceased, and that the deceased at that time was residing with her husband. It would mean that the witness knew the family. It does not appeal to reason to believe that if the Will had been executed in his presence and if he had really been a witness to the same, he would have kept silent for more than 12 years and would have only come up with this information when the document came do the knowledge of the petitioner. After all, why should he have kept silent? The only reason which can be advanced is that he might not have approved the execution of Will and might be-feeling interested in the other heirs. If that was the case, he could have disclosed the fact to the other heirs. The other thing is that, had he any interest in them, he would not have come up as a witness for the petitioner. If the Will had really been executed and he had approved the same as a good thing, he would have disclosed this fact either to the petitioner or her husband and would not have kept mum for such a long time. The evidence of the Handwriting Expert has been rlued out, keeping in view the fact that he had compared the signatures of the decased on the documents which pertained to 1953. No signatures pertaining to the years 1951 and 1962 were made available for comparison. The learned trial Court has taken into account the fact that Qazi Zahoor Hussain (deceased) has suffered from Parkinson in 1961, and as such if he had ever signed in ,1962, the vibrations in the signatures put by a person suffering from Parkinson would have been obvious, which according to the learned trial Court, is not the position of the signatures allegedly appearing on Will Exh. P. I. The learned Additional District Judge has also made some observations regarding the basis of the opinion of P. W.
6. And has recorded that he had blown hot and cold while giving the basis and that a perusal of his report was sufficient to convince anybody that he was all out to support the plaintiff (the petitioner). The learned appellate Court has also made some observations regarding efforts which appeared to have been made to make the Will (Exh. P. 1) look as genuine. It has been observed that although it was the petitioners' own case that the Will had been found by her in the first week of June, 1975, while it lay in the documents of the deceased, yet the document was found tonne at so many points of folds. The learned appellate Court has observed that if the document had remained lying in other documents, how should have the document been tonne at the folds. The other important factor which has been taken into consideration by both the learned lower Courts is that it does not appeal to reason to believe that a person of the status of Qazi Zahoor Hussain, so widely read and so highly placed, would have kept this fact a secret and not disclosed to anyone that he had executed the Will. The list of the respondents shows that he had a good number of sons and daughters and it seems doubtful, whether in the presence of all of them he would have made a choice of one of his daughters-in-law for conferment of title of the property by way of Will!
I have examined the contention raised by the learned counsel that the petitioner's case before the learned trial Court was that the property was given in Will to her as her husband was a cripple and so her father-in-law wanted to support the family of his son Qazi Anwar Hussain. If that had been the position, the deceased would have been bold enough to tell other heirs and he is doing that for the sake of his crippled son and nobody could have stopped him. Moreover, he could have easily executed the Will in favour of his son.
8. The contention of the learned counsel that the defendants-respondents had not produced any evidence, is not of consequence as the whole case mainly depended upon the proof on Issue No, 5 in which the petitioner-plaintiff has failed.
9. Although, according to the views expressed by the High Courts and the Supreme Court, in civil revision evidence has not to be re-appraised, particularly in cases in which there are concurrent findings of fact, still I have considered the case on facts as the learned counsel had raised contentions in this regard pertinently. Reference in this regard may be made to Shahzada Muhammad Umar Beg v. Sultan Mahmud Khan and another (1), Umar Dad Khan and another v. Tila Muhammad Khan and 14 others (2) and Kanwal Nain and 3 others v. Fateh Khan and others (3 ' There is neither any misreading or mis-appreciation of the evidence nor any illegality appears to have been committed by any of the learned lower Courts. No case for interfence by way of exercise of revisional powers has been made out. Dismissed in limine. {{FOOT NOTE}}
(1) PLD 1970 SC 139 (2) PLD 1970 SC 288
(3) PLD 1983 SC 53 {{FOOT NOTE}} THE END