' The brief facts are that Ch. Abdul Rashid, predecessor-in-interest of the respondents, filed suit for administration of property and rendition of accounts and demanded possession through partition against Mst. Rafique Begum and Mst. Ghazala Nasreen, petitioners herein, in respect of properties consisting of residential house bearing Property No,SW-IV-32-S-5 situate in Ramnagar, Lahore, and quarters/shops bearing Property No,SW-XII-27-S-10, situate in Mohajar Abad, Multan Road, Lahore.
According to the plaint, these properties were owned by Abdul Majid who died issueless on 17-3- 1976. Mst. Rafique Begum was his widow whereas Ch. Abdul Rashid was his brother and claimed 3/4th share in the suit property. The present respondents are the successor-in-interest of Ch. Abdul Rashid. The suit was contested by the defendants, the present petitioners. Petitioner No,2 claimed that she was the exclusive owner of the entire suit property under the 'Will' executed in her favour by late Abdul Majeed. Alternatively, the defendants, i,e, present petitioners, claimed that the residential house was exclusively owned by them which was transferred in their names by the Settlement Department vide Transfer Order.No,74824 dated 29-1-1979 on payment of transfer price by them to the Settlement Department.
2. On the pleadings of the parties, many issues were framed, but the suit was decided mainly on the following three issues:-- "(1) Whether Abdul Majid executed a valid will in favour of defendant No,2 and delivered possession thereof. If so, its effect? OPD (7-A) Whether Property No,SW-IV-10-5 owned by the defendant exclusively? OPD.
(7-B) Whether Property No,SW-IV-10-5 was got transferred by the defendants through fraud and misrepresentation? OPD."
3. The learned Trial Court passed preliminary decree on 27-10-1984. Issue No,1 was decided affirmatively, declaring the will (Exh. D-1) in favour of petitioner No,2 as valid to the extent of , 1/3rd share in the properties. With regard to the remaining 2/3rd share in the suit property, the learned Trial Court divided the same amongst petitioner No,1 and the respondents in accordance with the Shariat Law shares. For the rendition of accounts, the learned Trial Court held that the plaintiffs were entitled to rendition of accounts and, accordingly, directed the defendants to produce the accounts regarding the income of the property. Although it was found that the transfer price of the residential house was paid by the present petitioners and it was transferred to them by the Settlement Department, yet it was held that the plaintiffs were the shareholders in all the properties, including the residential house in question.
4. Both the parties challenged the preliminary decree in two separate appeals which were decided by a single judgment dated 29-1-1989 by Rai Muhammad Zafar Bhatti, learned Additional District Judge, Lahore, whereby the appeal of the present petitioners was dismissed but that of the respondents was accepted and, accordingly, the judgment and decree passed by the learned Trial Court, was modified. As a result of the impugned appellate judgment, the will (Exh. D-1) was held not be valid in, its entirety and, accordingly Mst. Ghazala Nasreen (petitioner No,2) was held not to be entitled to any share in the suit property, and the whole property was ordered to be divided amongst the petitioner No,1 and the respondents, as legal heirs of deceased Abdul Majeed.
5. Mst. Rafique Begum and Mst. Ghazala Nasreen, the present petitioners, have challenged the judgments and decrees passed by the learned lower. Courts. Learned counsel for the petitioners submits that the will (Exh.D-1) was validly executed and was legally proved before the learned Trial Court. Accordingly, the entire property left by Abdul Majeed deceased was owned by Mst. Ghazala Nasreen as declared in the will. Learned counsel for the petitioners, however, conceded that without consent of the legal heirs the will was not valid for more than 1/3rd share of the property owned by Abdul Majeed deceased. Learned counsel, however, half-heartedly argued that consent was given by Mst. Rafique Begum, petitioner No,1 and Ch. Abdul Rashid, the only legal heirs of Abdul Majeed, at the time of execution of the will.
6. This argument is not supported by the evidence on record. The learned Trial Court has held that consent of the legal heirs of the deceased Abdul Majeed could not be established, therefore, he held the will valid only to the extent of 1/3rd share of the property left by the deceased. However, even this finding was reversed by the learned appellate Court holding that the will was not legally proved on record.
7. While discussing Issue No,1, relating to Will, the learned Trial Court observed as follows:-- "To prove their contentions that deceased Abdul Majid made a valid Will in favour of defendant No,2, defendants have produced the Will deed in original as Exh. D-1 to prove its execution. They have produced two witnesses. D.W.1 is Manzoor Shad who has stated that he is scribe of the 'Will' dated 28-2-1976 Exh. D-1."
' He also held that, "I am unable to agree with the contention of the learned counsel for the plaintiff because execution of the will has been proved by the unshaken statements of its scribe and one marginal witness".
8. Under the law of Islam, a Will need not be in writing and even a written Will may or may not be attested by a witness. But the factum of the Will has to be proved. In the instant case the scribe and the marginal witness besides the petitioners, have proved the execution of the Will by late Abdul Majid, whose testimony could not be brushed aside by the learned appellate Court by saying that "the scrible and marginal witnesses were very closely related with the defendant". No particular form or writing is necessary to make a Will valid, as long as the intention of the testator is sufficiently ascertainable. In the present case the Will (Exh. D-1) clearly shows the intention of Abdul Majeed to make bequest of his entire property to Mst. Ghazala Nasreen who was his adopted daughter. I, therefore, set aside the findings of the learned appellate Court on issue No,1, uphold the findings of the learned Trial Court on Issue No,1 and hold that the petitioner No,2 is entitled to get 1/3rd share out of the bequeathed properties left by late Abdul Majeed, after deducting his funeral expenses and debts, if any.
9. The next contention of the learned counsel for the petitioners is that the residential house is exclusively owned by the petitioners. He submits that this was an evacuee house and was not transferred to late Abdul Majeed and that it was after his death that the house was transferred to the petitioners by the Settlement Department through Transfer Order No,74824, dated 29-1-1979 (Exh. D-4). He submits that the entire transfer price and the Settlement Fee in respect of this house was paid by the petitioners to the Settlement Department after the death of late Abdul Majeed vide Exhs. D-2 and D-3, the original receipts testifying the payment of the transfer price and the settlement fee. Both the petitioners have also deposed to the same effect.
10. Learned counsel for the petitioners also submitted that this Transfer Order was challenged by Ch. Abdur Rashid in this Court through Writ Petition No,378-R of 1980 which was subsequently withdrawn. An application for cancellation of the Transfer Order was also submitted to the Settlement Department, but the same was rejected on 6-5-1980. This order was also challenged in the same Writ Petition, i,e, Writ Petition No,378-R of 1980.
11. It is proved on record that the residential house bearing No,SW-IV-32- S-5, situate in Ramnagar, Lahore, was not owned by late Abdul Majeed as the same was not transferred in his name uptil his death, but was subsequently transferred to the petitioners by the Settlement Department. With regard to the residential house, the learned Trial Court has made the following observation:-- "But as it is held in abovementioned issue plaintiffs are sharers in all the disputed properties. Hence in spite of the payments made by the defendants they cannot be declared as sole owners."
' The learned appellate Court has not discussed this issue and has not recorded any finding with regard to the transfer of this residential house to the petitioners by the Settlement Department.
12. Through the amendment in the written statement, which was allowed by the learned Trial Court vide order dated 6-10-1981, it was specifically pleaded by the present petitioners in the written statement as follows:-- "Further Mst. Rafiq Begum and Miss Ghazala Nasreen are transferee of Property No,SW-IV-32-S-5, situated in Ram Nagar, Lahore vide transfer order dated 29-1-1979. Both of them have paid the price from their own pocket and from their own earned money, after the death of late Abdul Majid.
The defendants are exclusive owners of this property."
' These averments were proved on record by producing documentary evidence, i,e, the Transfer Order and receipts for payment of transfer price.
13. Since it is established on record that upon payment of the transfer price and the settlement fee by the petitioners to the Settlement Department vide Exh. D-2 and Exh. D-3, Transfer Order (Exh. D- 4) was issued in the joint names of the petitioners, they are the exclusive transferees and owners of this house. It is pertinent to mention that the respondents or their predecessor-in-interest did not challenge the transfer of the residential house nor did they get the Transfer Order issued in favour of the petitioners avoided through proper proceedings before any competent forum, after withdrawing the aforementioned writ petition. In this connection, the relief claimed in the suit by the respondents becomes important, which is reproduced below:-- "It is, therefore, respectfully prayed that Accounts of movable properties of Abdul Majid deceased be taken and same may be administered under the decree of Court granting plaintiff his legal share of 3/4th. It is further prayed that decree of partition may also be passed and separate possession of the share of the plaintiff may be delivered to him."
' Thus, it is clear that after the withdrawal of the writ petition, neither any appropriate proceedings were initiated nor was the Transfer Order got avoided/cancelled by the respondents.
14. However, the learned counsel for the respondents submitted that although the Transfer Order was not specifically avoided or got cancelled, yet the result of the impugned judgments and decrees was that the Transfer Order issued by the Settlement Department had been set at naught by issuing preliminary decree according to which the entire property, including the property covered under the Transfer Order, was declared to have been owned by deceased Abdul Majeed and accordingly had devolved upon his legal heirs, i,e, petitioner No,1 and the respondents. Learned counsel for the respondents also referred to the documentary evidence, namely, Exh. P-1, affidavit of Mst. Rafique Begum, and Exh. P-2, her statement given before the Deputy Settlement Commissioner. He also referred to Exh. P.W.1/1, which is a copy of the statement of Mst. Ghazala Nasreen, petitioner No,2, which was made by her on 10-11-1983 in divorce proceedings with Shafiq- ur-Rehman, Special Attorney of the original plaintiff and respondent No,3 herein. Learned counsel for the petitioners, however, submitted that these documents were not admissible in evidence as they were not proved in accordance with law, having been produced by Shafiq-ur-Rehman (P.W.1) during his examination as a witness. In any case, these documents cannot have the effect of conferring proprietary rights in the residential house upon late Abdul Majid, without having paid for the same and without having been transferred to him.
15. Be that as it may, the admitted position is that the Transfer Order (Exh. D-4) which was issued on 29-1-1979 in the joint names of the petitioners transferring aforesaid Property No,SW-IV-32-S-5 to the petitioners, has not been avoided/cancelled by the Settlement Authorities or the Courts. The W.P. No,378-R of 1980, challenging this Transfer Order was admittedly dismissed as withdrawn. This Transfer Order (Exh. D-4) confers title upon the petitioners in respect of the residential house, therefore, to the extent of the residential house, which the Settlement Department had transferred in the joint names of the petitioners, the judgments and decrees are not sustainable and are accordingly set aside. Similarly, under the will (Exh. D-1), petitioner No,2 is entitled to 1/3rd share in the Property bearing No,SW-XII-27-S-10, situate in Mahajirabad, Multan Road, Lahore. Consequently, this Revision Petition is accepted and preliminary decree is passed in respect of Property bearing No,SW-XII-27-S-10 (five quarters. And two shops with an area of ten Marlas) situated in Chowk Madina Masjid, Mahajirabad, Multan Road, Lahore, to the extent of 2/3rd shares out of which 1/4th share (i,e, 1/4th of 2/3rd) falls to the share of petitioner No,1 as widow of late Abdul Majid and 3/4th share (i,e, 3/4th of 2/3rd falls to the share of the respondents as successors-in-interest of late Ch. Abdul Rashid, the brother of late Abdul Majid, porosities. The decree for rendition of accounts in respect of the share of the respondents is also passed.
16. The record shall be sent back to the learned Trial Court for further proceedings in accordance with law, where the parties shall appear on 612-1995. No order as to costs.