' AJMAL MIAN, J.---This is an appeal with the leave of this Court against the judgment dated 13-3- 1991 of the Lahore High Court passed in Civil Revision No, 120 of 1979 filed by the respondents against the appellate judgment/decree dated 11-6-1978 of the learned Additional District Judge, Sialkot, upon the appellant's appeal, whereby the judgment/decree dated 13-3-1975 of the learned Civil Judge, First Class, Daska, decreeing the respondents' suit for their share in the estate of Naqash Band Khan and set aside, allowing the same by setting aside the above appellante judgment/decree and restoring the trial Court's judgment/decree.
2. The brief facts are that Naqash Band Khan, hereinafter referred to as the testator, had two brothers, Abdul Majid Khan and Ghulam Ghaus. It appears that Abdul Majid Khan had seven sons including Saeedullah Khan, father of the present appellant, whereas Ghulam Ghaus had one son Daud. It further seems that the testator executed a will in favour of the appellant in June, 1960, in respect of 1/3 share of his suit property. It appears that on 4-5-1962, the testator purported to effect gift of the entire suit property in favour of the appellant; but the Revenue Authorities declined to attest the above gift by order dated 17-9-1992. Appeal filed against the above order also failed through the order dated 27-12-1963. The testator died issueless in 1966. It further seems that respondents Nos.1 and 2, who are sons of Abdul Majid Khan, i,e. Brother of the appellant's father Saeed Ullah Khan, filed Civil Suit No, 525 of 1969 for possession of 1/3 share of the suit land. The above suit was resisted by some of the defendants. On the basis of pleadings of the parties, as many as 12 Issues were framed. Issue No,9 was as follows:- "9. In case the execution of the Will deed is proved then whether Naqshband Khan had even revoked the Will during his life time? 0.P.P."
' After recording the evidence and hearing of the parties, the learned Civil Judge recorded the following finding on the above Issue No, 9:- "The answer to this question is not very difficult. A bequest can be revoked either expressly or by implication. It is mentioned in para 129 of Mulla's Muhammadan Law that a bequest can be revoked expressly or by implication By making an effort to gift the suit land to the defendant. Nod., the deceased owner impliedly revoked the impugned Will. It was held in PLD 1952 Lahore 294 that the Will will stand revoked impliedly by testator's gifting away the property the subject of Will. This authority is fully applicable to the facts of the present case.
' For the reason above I hold that the testator Naqshband Khan had evoked the impugned Will. The issue is decided accordingly."
' After having recorded the above finding, the learned Civil Judge decreed respondents Nos.1 and 2's suit to the extent of 2/7 share. Thereupon, the appellant through his father filed Civil Appeal No, 641 of 1977, which was allowed by the learned Additional District Judge, Sialkot, by his judgment dated 11-6-1978 and the judgment/decree of the trial Court was set aside. It was held that since there was no valid gift effected by the testator in respect of the suit property, the above Will was not revoked. Against the above judgment/decree, respondents Nos.1 and 2 filed above revision in the High Court, which was allowed in the above terms. The appellant filed a petition for leave to appeal, which was granted for the reason that the admitted position was that the Courts have found that the testator first made a Will in favour of the appellant, then he got mutation of gift entered in his favour and if the gift was incomplete, the Will will remain intact.
3. In support of the above appeal, Mr. Taki Ahmed Khan, learned ASC appearing for the appellant, has vehemently contended that since no valid gift was made by the testator in respect of the suit property, the Will executed by the testator earlier remained intact and that the learned trial Court and the learned Judge in chambers erred in holding that by execution of the gift, the Will was impliedly revoked. In furtherance of his above submission, he has relied upon the following extract from Hedaya by Hamilton at page 675:- "A bequest to one person is annulled by a subsequent bequest of the same article to another. If a person says, "I will that a particular slave, which I formerly bequeathed to Zeyd, be given as a legacy to Amroo," in that case a retraction from the first will is established, as the tenor of his speech evidently shows that it was not his intention they should both partake of the legacy. It is otherwise where a person first leaves a particular article to one man, and then leaves the same thing to another; -- as if he should say, "I will that this thing be given to Zeyd," and afterwards make a bequest of the same thing in favour of Amroo;-- for in that case retraction of the first will does not take place; the subject being capable of division, and the separate sentences bearing that construction."
4. In our view, the above passage is not relevant to the facts of the present case as it relates to the execution of Will by a testator in favour of more than one person consecutively. The learned trial Court as well as the learned Judge in chambers has relied upon para 129 from Mulla's Muhammadan Law, which reads as follows:- "129. Implied revocation.--A bequest may be revoked by an act which occasions an addition to the subject of the bequest, or an extinction of the proprietary right of the testator.
(a) A bequest of a piece of land is revoked, if the testator subsequently builds a house upon it.
(b) A bequest of a piece of copper is revoked, if the testator subsequently converts it into a vessel.
(c) A bequest of a house is revoked, if the testator sells it, or makes a gift of it to another. This principle has been applied in the Pakistani case of Sardar Bibi v. Abdul Latif PLD 1952 Lah. 648, PLD 1952 Lah. 294)."
' The above proposition of law was reiterated by a Division Bench of the Lahore High Court in the case of Mst. Sardar Bibi v. Abdul Latif (PLD 1952 Lah. 294).
5. The factum that the testator attempted to effect the gift of the entire suit property was in fact manifestation of his intention that he was revoking the Will. The appellant, instead of producing any reliable evidence to show that the testator did not intend to revoke the gift, in fact reinforced the above conclusion as to the implied revocation through the admission of the appellant's father Saced Ullah Khan in his cross-examination to the effect that after the gift was not attested, the testator had executed the second Will. A certified copy of the above statement was produced by the learned counsel for the appellant during the arguments. The above second Will was not produced nor was it proved. In any case, the factum that the first Will was revoked, stood proved by the above admission of the appellant's father. In this view of the matter, no exception can be taken to the judgment under appeal. Appeal is, accordingly, dismissed. However, there will be no order as to costs.