' This revision petition has arisen out of a suit for declaration, filed by the petitioner-plaintiff, against respondent No,1, which was dismissed by the trial Judge vide judgment and decree, dated 30-4- 1988. Appeal filed by the petitioner also failed on 12-5-1993. Hence this petition.
2. Briefly stated the facts of the case are that the petitioner and respondent No,2, are real sisters, being daughters of Mirza Badarud-Din Ahmed; the petitioner in the year 1984, filed a suit for declaration to the effect that "Wasiatnama", dated 22-8-1960 and order, dated 17-10-1962, passed by D.S.C.(E), amending P.T.O. And issuing P.T.O. No,1329, dated 6-8-1964 in respondent's favour, were illegal and unlawful, based upon fraud and misrepresentation. As a consequential relief, it was claimed that the petitioner is co-owner of the suit property to the extent of her share of inheritance, and asked for joint possession.
3. Further background of the case, is that Mirza Badar-ud-Din, was allotted property No, SE-III-38-S- 6 situated at 79-Mecleod Road, Lahore by the Settlement Department and P.T.O. Mentioned above, dated 14-1-1960, was issued in his name. Mirza Badar-ud-Din died on 25-8-1960, leaving behind him, the parties and a widow Mst. Said Begum, who died on 17-5-1978. It is claimed by the petitioner that Mirza Badarud-Din, was the P.T.O. Holder of the aforesaid property, however, respondent No,1, through fraud and misrepresentation, manufactured a "Wasiatnama", dated 22-8-1960, on the basis whereof, she had obtained the permanent transfer deed of the property in her favour. It is asserted that she had good relations with respondent No,1 and she and her children have been visiting and staying in the disputed house till May, 1983, where after, the attitude of respondent No,1, towards the petitioner became indifferent and hostile, and she for the first time, disclosed and claimed to be the exclusive owner of the property on the basis of above Wasiatnama and P.T.D.
From the Settlement Department.
4. This suit was contested by respondent No,1 who took up the plea that "Wasiatnama" was duly executed by Mirza Badar-ud-Din in her favour and P.T.D. Was rightly issued. She also claimed that she has made certain improvements in the property as an exclusive owner at her own expenses and costs. Besides, the above factual position, suit was, inter alia, resisted being barred by time; the respondents also claimed to have acquired the title to the property by virtue of section 28 of the Litigation Act.
5. Learned Civil Judge, framed as many as 12 issues; parties led their evidence and the Trial Court by giving his findings on issues Nos.1, 3, 9, 10 and 11, against the petitioner, dismissed the suit.
Petitioner filed an appeal against the aforesaid judgment and decree, which was also dismissed on 12-5-1993.
6. Learned counsel appearing on behalf of the petitioner has stated that both the Courts below while deciding the aforesaid issues, have grossly misread the evidence on the record; particularly, the "Wasiatnama" which is the basis of entire controversy between the parties, was not legally and validly proved by the respondent No, 1 .
' Further contends that in the facts and circumstances of the case, the suit was not barred by time.
Learned counsel has severely criticized the judgments of both the Courts below on issue No,9.
According to him, the original "Wasiatnama" was not produced on the record and the requirements for leading the secondary evidence were not fulfilled. Only a photo copy of said 'document, was placed by the respondent No,2, as Mark-A. He argued that as the original "Wasiatnama" was not before the Court, this document has not been proved to have been validly executed by late Mirza Badar-ud-Din, consequently, it was liable to be declared as illegal and invalid. Moreover, P.T.D.
Based upon said document, which even otherwise was issued without any notice to the petitioner was also bad in law.
7. It has also been forcefully argued that the "Wasiatnama" allegedly contemplates the bequeath of whole of the property in dispute in favour of respondent and no valid consent on part of the petitioner or her late mother has been established on the record, therefore, such "Will" without consent of the heirs after the death of the testator was void ab initio and did not create any right in respondent No,1. It is the case of the petitioner, that both the Courts have committed serious errors and illegalities in recording the evidence and drawing inferences on the basis thereof.
8. All these submissions have been controverted by learned counsel for the respondents. I have heard learned counsel for the parties and perused the record.
9. Before discussing and considering the evidence and judgments of both the Courts below, it may be pointed out that the original "Will", dated 22-8-1960 was admittedly in possession of the respondents which she has failed to bring on the record. There is no explanation whether that document has been lost or destroyed; no attempt was even made to produce the secondary evidence thereof. Even the respondents have failed to lead any positive evidence to prove the validity of this document. Anyhow, according to respondents' case, this document Mark-A was executed by her late father Mirza Badar-udDin and the time when he had thumb-marked the same, Dr. Qudarat Ullah was present. But no witness including scribe of this document has been produced to establish that this Will was written by some one on the specific instructions of late Badar-ud-Din; same was read over to him, who in token of its correctness had thumb-marked the same. Because according to her own case, while appearing as D.W.8 respondent No,1, has accepted that at the time of his affixing his thumb-mark, Mirza Badar-ud-Din was so weak that he could not write. In her same statement, it is claimed by respondent No,4 that on the Qul Ceremony of the deceased "Wasiatnama" was opened by Aziz-ud-Din, uncle of the parties; it was read by Master. Matiullah and signatures were affixed by Zafar Ali Baig, Matiullah, Hadiyat Ullah and N.D.
Dost on that date. It is not her case that any of these persons were present at the time when "Wasiatnama" is claimed to have been executed by Mirza Badar-ud-Din. Matiullah has appeared as P.W.1, who in unequivocal terms has stated that he was not present at the time of execution of this document. This document for the first time, was seen by him on the Qul Ceremony of the deceased and he signed the same. P.W.2 is Hidayatullah who in the examination-in-chief, has stated that he had signed this document 15 days after the death of Mirza Baddar-ud-Din, at the time when he affixed his signature, no one else was present and it was respondent No,1 who had asked him to sign this document. It is stated by this witness that Mirza Badar-udDin was ailing around the time when the document as stated to have been executed and respondent No,1 told him that at the relevant time, Ch. Fazal Haq and Dost Jalandhri were present. It is also stated that as Mirza Badarud-Din was quite unwell and one of his thumb-mark on this document could not be procured, thus, on the request of respondent No,1, he had attempted to obtain his signature but Mirza Badar-ud-Din had resented and withdrew his hands to thumb-mark it. In view of the above evidence on the record, it is not fully proved that "Wasiatnama" on the basis whereof respondent No,1 is claiming exclusive title to the property was executed by the deceased. Both the Courts below have not only misread the evidence on the record in that behalf, rather this is clear case of non- reading and drawing illegal inference. Finding of the Court below that the petitioner's own witnesses have acknowledged the existence of "Wasiatnama", thus, no formal proof was required, is also not legally tenable. None of the petitioner's witnesses has admitted the execution of this document by Mirza Badur A Din in their presence.
10. The "Wasiatnama" was the most important and pivotal document between the parties. It was inter alia, alleged by the petitioner that such document was fabricated, thus, under the circumstances it was most important for the respondents to prove the - validity of this document beyond doubt. Not only that the needful has not been done, respondent has also not been able to satisfactorily explain as to where the original document has gone. The persons who according to respondent No,1, had signed this document as witnesses themselves claimed that document was not signed by them at the time when it was allegedly executed by Mirza Badur-ud-Din, but thereafter, therefore, these persons cannot be said to be witnesses for proving that document, rather their statements go against the respondent No, 1 .
11. There is another important aspect of the matter, which has not been legally considered by the Courts below i,e, regarding the validity of this "Wasiatnama" due to lack of consent by the petitioner and her mother, who admittedly were legal heirs of the deceased. There is no significant discussion by the Trial Court on the subject, however, the Court in appeal while construing whether petitioner gave her consent to this document has relied upon certain circumstances and conduct of the petitioner. Significantly that the petitioner was present when the document was read-over, she did not object to it; certain constructions have been raised by respondent No,1, again not objected.
Thus, according to Appellate Court, consent by conduct of the petitioner can be inferred. Anyhow, it is admitted by the counsel for the respondents that under the Principles of Muhammadan Law, in case of bequeath to a legal heir even to the extent of 1/3rd share of the estate, the consent of other heir is necessary.
' In view of the above, the important question which arises is, as to what should be nature of the consent required for the validity of the will to a legal heir. Obviously, ideal situation would be if the consent is express and in unequivocal terms, either in writing or even oral; the person should accept, acknowledge and endorse the Will definitely, C unambiguously but if the above is lacking and the consent is to be inferred as being implied very strong evidence and circumstances are needed for that purpose, because a legal heir on account of such consent would loose his right in the State and would be deprived of inheritance, therefore, mere silence would not be enough for such inference. From the above evidence produced on the record by the respondent, it has not been established that the petitioner or mother of the parties ever gave their consent to this "Wasiatnama". They are only stated to be present at the Qul ceremony, where the document was read and at the best respondent's case is that they kept silent and did not object to the same. I am afraid that this is not the proof of valid consent in law. Even it is not proved from the evidence that at the time when this document was read by Matiullah P:W.1, petitioner and widow were also present in that very gathering or assembly or the room where it was being read. In cross- examination, infact Matiullah states', D.W.1 Zafar Ali has simply stated that on the date of Qul ceremony, document was read, petitioner and her mother were present but they did not object. It is admitted by this witness that document was not signed by him at the time of execution by the deceased but later on the Qul ceremony. D.W.7 Liaqat Saeed, who is admittedly cousin of both the parties, produced by respondent No,1 has not said a word about the reading of this document at the Qul ceremony or the same having been heard by the petitioner. Even in her own statement, respondent has not said that at the time when this "Wasiatnama" was being readover by Matiullah, petitioner or the mother of the parties were present. She has only stated that this document was opened by Aziz-ud-Din, her uncle, Matiullah read it and there were other people also present and then Zafar Ali Baig, Master Matiullah, Hadiyat Ullah and N.D. Dost, signed this document.
13. It may be pertinent to state here, that though on the basis of this document P.T.D. Of the disputed house was got issued by respondent No,1, but at the relevant time, no notice was issued to the petitioner by the Settlement Department. It is argued that some notice was published in newspaper, but there is nothing on the record. On account of above, I feel that consent in such cases, where a person is being deprived of his valuable rights of property cannot be inferred by simple keeping silent or allowing a co-sharer of the property to make addition or improvement in the joint property. Petitioner where was being deprived of the valueable right, respondent No,1 should have established that she had consented to this "Wasiatnama" by some positive and overt act; and her mere silence was not enough. Possibility that on such mourning occasion, petitioner did not feel like creating a fuss and kept quiet cannot be taken as her consent.
' In the light of above, I am of the confirm view that the nature of consent as envisaged by law is seriously lacking in the present case.
14. On the question of limitation, as the petitioner is being held to be co-owner of the property and as also claims joint possession on the basis of being co-owner, therefore, her 1 suit is not barred under the provisions of limitation.
15. As regard submission made before me, that certain addition/improvement have been effected by respondent No,1 and she is entitled to the compensation thereof, suffice it to say that this point, if available can always be taken by the said respondent in case of any partition action between the parties. However, respondent No,1 states to have inducted tenant in the property from whom she is deriving benefit. She shall be entitled to the exclusive rent from such tenant until an appropriate legal proceedings between the parties in that behalf initiated.
In view of above, this revision petition is accepted; the judgment and decrees of both the Courts below are set aside and the findings on issues Nos.1, 3, 9, 10 and 11 are reversed.