1. ' This order will dispose of the question of maintainability of the suit, noticed by the Court, whether the plaintiff has any cause of action to bring a suit based on will during the lifetime of the testator.
2. ' The relationship of the parties are as follows:--- ' The plaintiff is son of defendant No,1, whereas, defendants Nos.3 and 4 are daughter-in-law and son of defendant No,1, so sister-in-law and brother of plaintiff, whereas, defendant No,2 is brother of defendant No,3 and thus, brother-In-law of defendant No,4.
3. ' The facts stated in the plaint, briefly, are that defendant No,1, (father) owns Shop No,G/3 on Plot bearing Survey No,51, Sheet No,MR-6, Market Quarter, Rambharti Street, Jodia Bazar, Karachi, measuring about 45125 Sq. Feet and other movable properties such as share, Bank Account, Stock in business etc. It is the case of the plaintiff that father executed a will on 10-6-1996, whereby he bequest the above immovable property as well as of moveable properties, Bank Account, investment; Stock, shares in the business with a view to avoid any dispute, adverse claim and misunderstanding. The will Annexure "A" its relevant portion are reproduced as under:--- "Whereas I being an old man aged about 7V years and chronic heart patient 'and diabetic may breathe my last at any moment and day, therefore, with a view to avoid any disputes, adverse claims, and misunderstanding amongst my legal heirs, I intend to devise give, and bequeath my immovable property consisting of a Shop No,G-3, on Plot bearing Survey No,51, Sheet No,MR.6, situated in Market Quarters, Rambharti Street, Jodia Bazar, Karachi, admeasuring 451.25 Sq. Fts, which I have acquired from The Settlement Department, Government of Pakistan through P.T.O.
4. No,00656, dated 13-2-1960 and P.T.D. No,Kyc 12310, dated 27-1-1968 as well as my all movable properties in the shape of Bank Accounts, Investments, Stocks, Shares and Profits in any business.
5. ' And whereas I have the following heirs and I make this will that the said properties may be divided/distributed amongst my legal heirs in accordance with Hanafi-Law of Inheritence detail whereof is given below:--- {{DATA MISS ARANGE}} Name Ratio of of Heir Share.
6. Mst. Shahnaz wife 1/8 Begum Kh. Basir son 7/36 Ahmed Kh. Tauqeer son 7/36 Ahmed Mst. Nadira daughter 7/72 Iqbal Mst. Abida daughter 7/72 Khalid Mst. Nasira daughter 7/72 Tariq Mst. Shaista daughter 7/72 Khan Mst. Nargis daughter 7/72 Shahid ' That, the above properties shall vest/devolve on my aforementioned heirs in the abovementioned manner and proportion.
7. ' That I divest myself of the right of alienating my immovable property in whatsoever manner as such this will of mine is irrevocable. However, I shall exclusively retain the possession of my immovable property i,e, shop and the business therein and shall enjoy the benefit of this property during my lifetime. I shall also be responsible to pay all taxes, levies, and dues in respect of the said property during my life time.
8. ' That, I do hereby appoint and nominate, my elder son Kh. Basir Ahmed to be the executors of this will of mine who shall be responsible to ensure the distribution of legal heirs share as mentioned above."
9. ' It is the case of the plaintiff that on 16-10-2000 when he visited the shop, he was surprised to see change of sign board of the shop from Amratsar Chemicals to B.B. Chemicals Corporation. He came to know that shop has been transferred to Bilam Basir, defendant No,3, wife of Kh. Basir Ahmed. It also came to his knowledge that earlier the shop was transferred in the name of defendant No,2 for Rs,3,00,000, by under valuing who sold/transferred the same to defendant No,3 wife of Kh. Basir Ahmed for consideration of Rs,.7,00,000, though the shop's worth is between the Rs,80,00,000 to Rs,90,00,000. The suit is based on the cause of action accrued to the plaintiff on 10- 6-1996, when the defendant/father executed the will in favour of the legal heirs including the plaintiff and on various dates when the plaintiff was looking after the business jointly in disputed premises and on 16-10-2000, when transfer of the shop through sale deeds came to his knowledge.
10. Thus, he filed the suit for declaration, injunction and cancellation with the following relief:-- "(a) To declare that the will executed on 10-6-1996 by the defendant No,1 in favour of all his legal heirs without its revocation is subsisting valid in respect of the Shop No,G-III, Survey No,51, Sheet No,MR-6, Market Quarters Rambharti Street, Jodia Bazar, Karachi.
(b) To declare that during the subsistence of the valid and lawful will, dated 10-6-1996 without its Revocation all subsequent transactions, transfer, sale-deeds, etc. In respect of the subject-matter of the will are illegal void.
(c) To order the cancellation of conveyance deed No, 2819, dated 3-11-1997 executed by the defendant No,1 and conveyance Deed No,2191, dated 10-6-2000 executed by defendant No,2 being void illegal fraudulent and un enforceable and to direct the defendant No,5 to take necessary action accordingly.
(d) To declare that the conveyance deeds in dispute having been executed fraudulently by concealing the actual value source of consideration and without delivery of possession and usurping the property of the defendant No is criminal act and is liable to be punished according to law.
(e) To grant permanent injunction restraining the defendants through their subordinates, representatives/ assignees to enforce the conveyance deeds in any manner or to create any third party interest or to sublet, rent out Or to dispose off the said Shop No,G-3, Market Quarters, Jodia Ba7ar, Karachi and all other movable properties, shares, profits in the business."
11. ' I have heard Mr. Abdul Ghafoor Mangi, learned counsel for the plaintiff and Mr. Abdul Latif. A.
12. Shakoor, learned counsel for the defendants.
13. ' Mr. Abdul Latif A. Shakoor, learned counsel for the defendants, at the very out set, has urged that the Wasaya is the plural of Waseeat, which means an endowment with the property after the death, by referring page No,670 of Book No,LII of Hedaya by Himalton, Ilnd Edition, reprinted in Pakistan in the year 1975 and contended that the testator/father, defendant No,1 is alive, the plaintiff during the lifetime of the testator has no cause of action to bring a suit claiming a right under the will, which would accrue after the death of the testator, as such the suit filed on such a cause of action, which has not accrued is not maintainable and the plaint is liable to be rejected.
14. He further contended that without admitting the execution of will by the defendant No,1 under the Muhammadan Law bequest can be revoked either expressly or impliedly. He further contended that 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 and he referred the Monographs 116 and 117 of Mahomedan Law by Mullah (Pakistan Edition) with illustration, which are, as follows:--- "116. Revocation of bequest.---A bequest may be revoked either expressly or by implication.
15. Hedaya, 674; Baillie, 628. Revocation is express, when the testator revokes the bequest in express terms either oral or written. It is implied) when he does an act from which revocation may be inferred.
117. Implied revocation.---A bequest may be revoked by an Act which occasions an addition to the subject of the bequest, or any 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."
16. ' He further contended that as long as the testator is alive, he is competent to deal with property as owner, none can challenge his authority or disposition of the property by any way.
17. ' Mr. Abdul Ghafoor Mangi, learned counsel for the plaintiff has convassed the following points:--- 1 That the will executed by the defendant No,1 is in fact a settlement of the distribution of the property among the legal heirs.
2. During the subsistence of will, the bequest property could not be transferred or alienated by the testator unless it is revoked and revocation must be expressed.
3. The transfer made is mala fide and fraud and hit by clause (a) of section 6 of the Transfer of Property Act.
18. ' Mr. Abdul Ghafoor Mangi elaborating his arguments had contended that no doubt the will could be revoked but the revocation/cancellation should be through a suit in terms of section 39 of the Specific Relief Act, which empowers a person against whom a written instrument is void or voidable who has reasonably apprehension with such instruments if left outstanding, may cause him serious injury, may sue to have it adjust void or voidable and the Court may its discretion so adjudged it and ordered it to deliver upon and cancel.
19. ' It has been contended by him that in absence of revocation/cancellation of the will, the defendant No,1 cannot deal with the property in any way.
20. ' Will has been defined in clause (H) of section 2 of the Succession Act, 1925 as follows:--- ' will' means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."
21. ' According to Mahomedan Law as well, the will has to take effect after the death of the testator.
22. The will by Muslim is subject to revocation either expressly or by implication. Celebrated Author, D.F.
23. Mulla in his Book Principles of Mahomedan Law has given the illustrations of implied revocation of will under Monograph 117, reproduced hereinabove. Illustration (c) is relevant to the present case, which states that a bequest of a piece of land is revoked, if the testator subsequently sells it, or makes a gift of it to another.
24. ' In the present case, the testator/father is alive and it is the case of the plaintiff that first the bequest shop was sold to defendant No,2, who sold the same to defendant No,3, his own sister, the wife of defendant No,4. The sale of shop to defendant No, 2 by defendant No,1 amounts to revocation of will by implication. The similar view was expressed by Division Bench of Lahore High Court in Mst. Sardar Bibi and 2 others v. Abdul Latif and 7 others (PLD 1952 Lahore 294), wherein certain properties was made the subject of a bequest in favour of the testator's daughter, subsequently the testator gifted away the entire property to her. The will was, impliedly, treated as revoked and no longer in force.
25. ' Mr. Abdul Ghafoor Mangi has further argued that though the document was titled as a will but it is family settlement, whereby all the legal heirs were given their due shares and their entitlement was also mentioned in the document, which was also made irrevocable and contended that the test for determining as to whether a certain document is a deed of settlement or a will, the name by which the document is styled, the registration of it, the reservation of life estate, the reservation of power of revocation and the use of present or future tense, all circumstances have to be are taken into consideration in coming to one conclusion or the other and all these are indications to find out the intention coupled with the surrounding circumstances. The mere reservation of life estate does not necessarily indicate that the document is a will and that, therefore, the document is revocable.
26. ' I have examined the contents of the documents, I am of the view that it is a will as the document is titled as will and the testator has bequest his immovable property and movable properties to the legal heirs and appointed elder son, Khawaja Basir Ahmed to be the executor of the will. The case of the plaintiff as canvassed through the plaint is also of will. The document Annexure "A" to the plaint cannot be said to be a family settlement. Family settlement is agreement between the members amongst them or an agreement between the heirs of the deceased person by which they agreed on the distribution or management of the estate without intervention of the Court.
27. The testator/father is alive and he has every right to deal with the property and if he sells the bequest shop, it amounts to implied revocation, he need not to file a case for cancelation of the documents by presenting the plaint. Therefore, the contention of Mr. Abdul Ghafoor Mangi, Advocate that the revocation be expressly through intervention of the Court is not tenable and against the concept of Mahomedan Law, which permits revocation either expressly or by implication.
28. ' On the last leg of his argument, Mr.Abdul Ghafoor Mangi, learned counsel for the plaintiff contended that the sale by the father is against the provisions of clause (a) of section 6 of the Transfer of Property Act, 1882. Before consideting the submissions, it would be advantageous to reproduce the provisions of clause (a) of section 6 of the Transfer of Property Act, which reads as under:-- "6. What may be transferred.---Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred."
29. The bare reading of the above clause would show that a person, who has a chance to succeed an estate of his father cannot transfer his chance of succession, which is known in legal term "Spes Successions". It is undisputable law that no one can have any estate or interest at law or in equity, contingent or other in the property of a living person to which he hopes to succeed as heir at law or next of kin of such living person. During the life of such person no one can have more than a spes successionis, an expectation or hope of succeeding to such property, such an interest is not assignable in law.
30. ' In the instant case, the sale is not by the heir apparent but by father himself. A sale by father cannot be clocked by under clause (a) above, as contended by Mr. Abdul Ghafoor Mangi. It would also amount to negation of provision of section 7 of the Transfer of Property Act, which read as follows:--- "7. Persons competence to transfer.-- ' Every person competent to contract and entitled to transferable property, or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and the manner allowed and prescribed by any law for the time being in force."
31. ' Such contention would also be against the fundamtal right of a citizen enshrined in Article 23 of the Constitution of the Islamic Republic of Pakistan, where under every citizen has right to acquire, hold and dispose of property, subject to the Constitution and any reasonable restriction imposed by law in the public interest.
32. ' So far the plea regarding sale being mala fide and based on fraud is concerned, the defendant No,1 as owner of the property can deal with the same even by selling it at lower price. The plaintiff cannot challenge the sale on these grounds, having no interest in the property, during the lifetime of father.
33. ' Resultantly for what has been stated above, the plaintiff has no cause of action to bring the suit on a will in his favour during the lifetime of testator, therefore, the plaint of the suit is rejected with listed application, however, with no order as to costs.
34. Plaint of the suit rejected.