1. IFTIKHAR MUHAMMAD CHAUDHRY,J---Appellants and private respondents are the legal heirs of late Malik Muhammad A.I, who died at Quetta on 18th February, 1983. He left behind him a house bearing No.3-9/40 situated at Tahir Khan Road, Quetta. On the opening of succession of his legacy in revenue record, the house was mutated on the names of his legal heirs, according to their proportionate shares vide Mutation Entry No.235, dated 4th March, 1993. Respondent No. 1, feeling aggrieved from the transfer of house in the name of all legal heirs, challenged the Intiqal in appeal filed under section 161 of the Baluchistan Land Revenue Act. 1967, before the Collector, Quetta on the averments that the house exclusively belongs to him, because late Malik Muhammad A.I had executed a will in his favour on 6th November, 1989 (mark P/2) which was duly registered with the Sub-Registrar, Quetta. All his legal heirs had knowledge about it, because document was executed with their consent. Appeal was opposed by appellants on the grounds that Testator was not competent to execute will beyond 1/3rd of the total share and that too with the consent of all his legal heirs. In addition to it, specific plea concerning revocation of will was also raised, pointing out that subsequently by means of letter (mark P/1) will was revoked. However, appeal was allowed on 25th October, 1983. Thus, appellants instituted second appeal before the Additional Commissioner, which was dismissed on 8th August, 1994, with observations that any of the party feeling aggrieved from mutation entries may avail recourse to the civil remedy before the competent Court of jurisdiction. With this back--ground, appellants filed a suit for declaration through partition and injunction on 4th October, 1994, in the Court of Civil Judge, claiming following relief:-- "It is, therefore, prayed that decree may be passed in favour of plaintiffs and against the defendants in terms as follows:--
(i) Declaring that private parties are successors of late Malik Muhammad A.I and entitled to inherit the property described in para. 1 above according to shares determined by Shara.
(ii) Declaring that entry made in the Revenue Record in respect of property in dispute was rightly attested by lower Revenue Officer and Collector vide his order dated 25-10-1993 and Additional Commissioner vide his order dated 8-8-1994 acted illegally in setting aside the mutation entry;
(iii) Declaring that will dated 6-11-1989 and registered on 9-11-1989 is illegal or invalid or having been superseded by the testator.
(iv) Perpetual injunction be granted against the defendant No.3 directing him that Entry No.235 attested on 4-3-1993 be restored.
(v) Decree of possession through partition in favour of plaintiffs as per their share i.e. 6 shares out of 9 of property in question and one share to defendant No.2 or in the alternative, a decree of possession of total property With directions to plaintiffs to pay the price of share of private defendants;
(vi) Permanently restraining the defendants Nos. l and 3 not to alienate the property and not to pass on the possession of property to anybody else;
(vii) Any other relief which the Court may deem fit and proper in the circumstances of the case may also be granted.
(viii) Costs of the suit may also be granted The suit was contested by respondent No. 1, repudiating the claim of appellants. His consistent stand was that he is the exclusive owner of the property, in pursuance of the will. As far as respondent No.2; Mumtaz Begum was concerned, suit against her was dismissed on 14th December, 1994, because the appellants did not deposit process fee, etc. The trial Court framed following issues for determination on 12th March, 1995:-- (1)Whether the suit of the plaintiff is not maintainable in view of preliminary objections 'A' to 'C' of the written statement?
2. (2)Whether the defendants had managed to get execution of disputed will in their favour by misrepresentation and fraud?
3. (3)Whether the plaintiff is entitled for the relief claimed for?
4. (4)Relief?
5. Appellants except recording their own statements, did not produce any other witness. On the other hand, respondent No. 1, entered himself in witness-box and also led evidence of D. Ws. Malik Jawad, Azizullah, Abdul Hakim, Yar Muhammad, Niaz Muhammad, and Mumtaz Begum (respondent No.2, who appeared as witness of respondent No. l) Mst. Razia Saeed, Chaudhry Abdul Karim, Mst. Aziz Begum and Mst. Jamila. On completion of recording of evidence, suit was dismissed by the Court on '31st July, 1997. As such, instant appeal has been filed.
6. Mr. Muhammad Aslam Chishti, learned counsel for appellants contended that will (mark P/2) is not capable of implemention for the following reasons: - (i)The will (mark P/2) has been revoked in writing by late Malik Muhammad A.I vide letter mark P/1.
7. (ii)All successors of late Malik Muhammad A.I had not consented for the transfer of house in favour of respondent No.1, on the basis of this document.
8. Mr. Shakeel Ahmad, learned counsel for respondent No.1, urged as under:-- (i)Arguments now being raised on behalf of appellants are not available to them, because in the plaint, they have pleaded that the will is the product of fraud/misrepresentation, therefore, in view of their plea, IssueNo.2 was framed by the trial Court which appellants have failed to prove. Thus, the conclusion would be that they abandoned their earlier plea, as such, new plea being raised for the first time, by the counsel for appellants, cannot be allowed to be agitated; (ii)Before the trial Court on behalf of respondent No. 1, application for amendment/framing of additional issue under Order XIV, rule 5, C.P.C. Was moved, wherein request was made that Issue No.2, needs amendment, in view of the averments and circumstances that Will was executed in favour of respondent No. l only. It was further stated in the application that in view of the contention of plaintiffs, denied by defendant No. 1, that the Will was revoked by the Testator, an issue be framed namely; whether the Will was revoked by the Testator? The application was contested by appellants and ultimately it was dismissed on 26th April, 1995. Thus, under these circumstances, the argument concerning revocation of Will cannot be raised; and (iii)The will has not been revoked by late Malik Muhammad A.I, because he cancelled the letter Mark P/1 during his lifetime, as it has been proved by the witnesses produced before the trial Court.
9. Mr. Abdul Wadood, learned counsel for respondent No.2, submitted that appeal against her is not maintainable, because to her extent, the suit has already been dismissed on 14th December, 1994 and said order has not been challenged before the higher forums, therefore, appeal may be dismissed.
10. We have heard the parties' counsel at length and also considered their arguments carefully.
11. It is an admitted fact that in the plaint Will executed by the predecessor---in-interest of parties was challenged on the ground that respondent No. l had managed to get it executed in his favour by misrepresentation and fraud as he made his father to believe that he wanted to donate the property to some mosque after his death. However, when afterward Testator came to know that he had no such intention and was migrating to U.S.A., he revoked the said will and bequest the property in favour of all legal heirs. This averment in plaint actually covers the issue which respondent No 1, had proposed to frame, in his application, dated 22nd March, 1994. It may be observed that although this application was rejected, but even then parties being conscious of this fact led evidence, because execution of the Will as well as its revocation by means of letter mark P/1, written by late Malik Muhammad A.I has not been denied by respondent No. 1, during his cross- examination. Thus, it suggests to hold that in absence of a specific issue, parties in litigation on account of their knowledge about the revocation, led the evidence. It is also most important to note that neither appellants nor respondent No. 1, abandoned Issue No.2, which speaks, whether the defendant has managed to get execution of disputed Will in his favour by means of misrepresentation and fraud. As on this issue evidence has come on record from the side of respondent No. 1, that because he was looking after to his ailing father, as he was coming from time to time from U.S.A., to attend him and on his assurance that house will be donated to the mosque, after his death, the Will was executed. The contents of letter mark P.I, indicates that these facts were recorded by late Malik Muhammad A.I, therein and finally he concluded that as he intends that respondent No, l , Will not donate the property to the mosque, therefore, he is revoking the Will already executed by him. Respondent No. 1, by means of overwhelming evidence, attempted to prove that the letter mark P.I, was also withdrawn subsequently by his father, therefore, the property now vests in him. There is no necessity to discuss the evidence led by respondent No. 1, but on its cursory survey one can conveniently conclude that object of producing the witnesses was not else except to prove that even this letter was cancelled by the father, when he was appraised that his son Dr. Muhammad Anwar who had been looking after him during his lifetime and had also been making payment of expenditures, will donate the property to the mosque. Therefore, in view of such evidence on record, arguments raised by learned counsel for respondent No. l with regard to abandoning the plea by appellants, has no substance.
12. Now the next important question for consideration would be two-fold; (i)Whether the Will has been revoked and if so, what would be its effect? And (ii)If for sake of argument it is presumed that it has not been revoked, then what would be its effect in view of Muslim Personal Law?
13. Before dilating upon these questions, we may mention here that learned trial Court had not considered the execution of revocation letter mark P/1, for the reason that it is an unregistered document whereas the will mark P/2, is registered one. In our opinion such reasonings are not plausible, because under the Registration Act, neither the Will nor the Revocation Deed is required to be registered compulsorily. At this juncture, reference to Article 102 of the Qanun-e-Shahadat, 1984, would not be out of context. This Article provides that when the terms of contract or of grant or of any other disposition of property have been reduced ,to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter except the document itself or secondary evidence of its contents in cases in which, secondary evidence is admissible under the provisions hereinbefore contained.
14. As it has been observed hereinabove, execution of both the documents has not been disputed. As far as the Will is concerned, it was 'reduced into writing on 6th November, 1989, whereas deed of cancellation (letter mark P/1) was executed subsequently. The plea of respondent No. 1, is that later on this letter was also cancelled, but no documentary evidence has been produced to substantiate the same. As far as oral evidence in this behalf 'is concerned that would not be of any help to him, in view of the previsions of Qanun-e-Shahadat, 1984, discussed hereinabove. Thus, in such view of the matter, it is held that Will was revoked by late Malik Muhammad A.I.
15. Alternatively not conceding but assuming for sake of argument that the Will was not revoked then what would be its effect. It is a settled principle of Muhammadan Law that a bequeath would be void for want of assent of all legal heirs, after the death of Testator, as it has been held in PLD 1967 Lahore 672 and PLD 1967 SC 200. In the last-mentioned judgment, the hon'ble Supreme Court observed as under:-- "A Will in favour of an heir requires the consent of all the other heirs to be valid in Muslim Law and here no consent is shown. The sons were throughout opposed to any land being given to Mst. Mirza Nur. More than one-third of the estate of the testator cannot be validly bequeathed under Muslim Law, and here the whole was included in the bequest. Viewed in the light of Muslim Law, the Will could only be looked at as providing the basis of a tacit understanding to accept the orders made by the Mutation Officers respecting possession."
16. It is also an accepted principle of Muhammadan Law that where the Will has been executed in favour of one of the legal heirs then the assent of remaining legal heirs is essential, after the death of testator, as it has been held in Muhammadan Law by Aamir A.I (Chapater 20 page 589).
17. Relevant para. Therefrom is reproduced hereinbelow:-- "(2) According to all the schools a bequest to any one of the heirs is invalid without the consent of the others. (1) whether the person in whose favour the devise is made is an heir or not must be determined not at the time of the Will but at the testator's death. A grandson whose father has died in the lifetime of the testator is a non-heir when he co-exists with a son; and a bequest.To him not exceeding a third is valid."
18. Similar view was expressed in Mahomedan Law by Mullas. Relevant para., therefrom is reproduced hereinbelow:-- "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 (Ghulam Muhammad v. Muhammad Hussain (1932) 59 I.A.
19. 74, 54 All. 93, 136 I.C. 454, ('32) A.P.C. 81; Shek Muhammad v. Shek Imamuddin (1865) 2 B.H.C. 50; Ahmad v. Bai Bibi (1916) 41 Bom. 377, 39 I.C. 83 (Bhagdati property); Muharam A.I v. Barkat. A.I (1930)
20. 12 Lah. 286, 125 I.C. 886, (' 30) A.L. 695; Ghulam Muhammad v. Ghulam Hussain (1932) 59 I.A. 74, 54 All. 93, 34 Bom. L.R. 510, 136 I.C. 454, ('32) A.P.C. 81; Bafatun v. Bilaiti Khanum (1903) 30 Cal. 683; Ihsan Alahi v. Hukam Jan PLD 1967 SC 200. See also Muhammad Suleman Malik v. Royal Trust Corporation of Canada 1979 CLC 48; Dier and Momis on Conflict of. Laws, 8th Edn.; Fazal Muhammad v. Chohara 1992 SCMR 2182.). Any single heir may consent so as to bind his own share (Salayjee v. Fatima (1923) 1 Rang. 60, 63, 71 I.C. 753, ('22) A.P.C. 391; Muhammad Ata Hussain v. Husain A.I (1944) 216 I.C.
21. 276, ('44) A.O. 139.).
22. Explanation.--In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the Will, but to the time of the testator's death."
23. Above proportion came for consideration in the case of A.E. Salayjee v, Fatima Bibi before Hon'ble Privy Council reported in (71 Indian Cases 753) wherein it was held as under:-- "The Muhammadan Law does not allow a testator to leave a legacy to any of his heirs unless the other heirs agree, but any single heir may so agree as to bind his own share, and therefore, when it appeared in the course of the suit that the other heirs had agreed the only contest was as regards the plaintiff and the three minors. As regards the three minors there could be no question of their consent and the dispute, therefore, turned on the question whether the plaintiff had consented or not. "
24. We have gone through the statement of witnesses produced by respondent No. 1 carefully. There is not an iota of evidence to hold that all the legal heirs after the death of late Malik Muhammad A.I, assented that the house should be transferred in favour of respondent No. 1. Thus, for these reasons, we are inclined to hold that in absence of assent of all the legal heir the Will is not capable of enforcement.
25. Adverting to the contention raised by learned counsel Mr. Abdul Wadood, relating to maintainability of appeal, because according to him suit has been dismissed against respondent No. 2 on 14th December, 1994.
26. This objection can be considered on presuming that if no appeal has at all been filed against respondent No.2 then what would be the consequences. In this behalf Order XLI, rule 33, C.P.C.
27. Would come into play, according to which, Appellate Court is empowered to pass such order/decree, as the case may require and this power can be exercised by the Court, notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Therefore, challenging the decree as a whole even impleading respondent No.2 against whom no decree was passed, would not be fatal. Even otherwise no adverse order or decree is being claimed in the instant proceedings by appellants against her, therefore, no prejudice is likely to cause to her, if the appeal is allowed. Contrary to it, she would be benefited, because the property which is now being claimed exclusively by respondent No. l would also devolve to the extent of her share, which of course the respondent No.2 would be free to transfer in favour of respondent No. 1, if so desired by her. Thus, we are inclined to hold that appeal would not fail on the objection raised by learned counsel.
28. Office is directed to prepare the decree-sheet and thereafter the file be consigned to record.
29. No order as to costs.