One Barkat A.I son of Ghulam Farid was owner of the following lands (i) 42 Acres in village Kot Mehmood (ii) 26 Acres and 16 Marlas in village Sharqpur and (iii) 9 Acres and 4 Kanals in village Gowinda Tehsil Ferozewala, District Sheikhupura. The said Barkat A.I was admittedly issuless and died on 21-9-1957. On 24-9-1952 by means of a document (Exh.3 and also Exh.D.16) executed on the said date he proceeded to settle the land in villages Kot Mehmood and Gowinda to his brothers, namely, Hassan A.I, Gohar A.I and Muhammad A.I and a sister, namely, Chiragh Bibi. The land in village Sharqpur was so settled on wife who was the name--sake of his sister i.e. Chiragh Bibi.
Thereafter, vide a Mutation No.312 attested on 16-8-1954 (Exh.P.7) the said Barkat A.I proceeded to sell the land in village Gowinda to Ghulam Haider and Hussaina sons of Allah Dad. After the death of said Barkat A.I Mutation No. 1513 was taken up on. 6-6-1958 (Exh.P.5 and also Exh.3). . The land in Kot Mehmood was mutated in favour of the said brothers, sister and widow. The land in village Sharqpur was, however, mutated in favour of widow vide a Mutation No.4124 attested on 30-9-1958.
This mutation was termed as mutation of gift. Vide Mutation No.1545 attested on 14-2-1959 (Exh.P.18 and also Exh.D.4), the share of Mst. Chiragh Bibi (widow) in village Kot Mehmood was transferred in favour of said brothers and sister of the deceased. This mutation had been attested pursuant to an agreement between the parties registered on 4-10-1958 (Exhs.P.4 as well as D.4) whereby the widow agreed to transfer her share in village Kot Mehmood in favour of brothers and sister of her husband. The said brothers and sister of the deceased partitioned the property in Kot Mehmood vide a Mutation No.1615 attested on 20-3-1962 (Exh.D.7). The said widow died on 10-2-1984. She made a registered will on 8-10-1972 giving away some land to three Mosques in Sharqpur. The will was implemented vide mutation, dated 21-3-1984 (Exh.P.11 and Exh.P.13). The remaining land was mutated in favour of Muhammad Ibrahim the son of the brother of said Mst. Chiragh Bibi widow of Barkat A.I vide Mutations Nos.716 and 983 attested on 21-3-1984 (Exh.P.9 and Exh.10). The said Muhammad Ibrahim vide Mutation No. 784 attested on 4-4-1984 (Exh.P.12) sold some land in favour of Mehmood.
2. On 23-7-1985 respondents Nos. l to 8 who are successors-in-interest of Muhammad A.I brother of said Barkat A.I filed a suit. In the plaint it was stated that after the death of Barkat A.I the heirs did not accord their consent to the will, dated 24-9-1952 and it was for this reason land in Kot Mehmood was mutated in favour of all the heirs while the widow of Barkat A.I managed to get the mutation of gift attested on 30-9-1958 on the basis of said will. Thereafter, the said heirs were pressurized to accord their consent to the said will which they accordingly gave by means of agreement, dated 4-10-1958. It was specifically stated in the plaint that the heirs (reference to the brothers and sister and widow of the said Barkat A.I) at the time of execution of agreement, dated 4-10-1958 were not aware of the fact that Barkat had already alienated the land in village Gowinda.
According to the plaintiffs because of the said alienation the will, dated 24-9-1952 stood revoked and result was that all the. Heirs came to inherit the estate of the said Barkat in accordance with their Muslim Personal Law share. Muhammad A.I, co-sharer died 'on 16-10-1958 and his share was inherited by the plaintiffs and they are continuing in possession. The validity of Mutation No.2545 attested on 14-2-1959 was also challenged on the ground that agreement, dated 4-10-1958 was void ab initio as there was no will in existence there was no question of giving any consent to the same. It is stated in the plaint that said mutation was sanctioned as an exchange, mutation, Further, the alienation in the form of will and then by a Muhammad Ibrahim the present petitioners were also questioned. The suit was contested by the petitioners. He objected that his suit is barred by time . On merits the document, dated 24-9-1952 .Was described as (taqseem nama ) and it was stated that parties became owners of the land as settled in the said document. The written statement, however, is silent regarding the specifically alleged fact that land in village Gowinda had been sold by Barkat .A.I after executing the document, dated 24-9-1952. The learned trial Court framed the issues. Evidence of the parties was recorded. Vide a judgment and decree, dated 2-4- 1989 the learned trial Court decreed the suit as against the petitioners and respondents Nos. 10 to 12 and dismissed the same against respondents Nos. 13 to 17. A first appeal filed by the petitioners was heard by a learned Additional District Judge, Sheikhupura, who dismissed the same vide a judgment and decree, dated 16-2-1991.
3. Learned counsel for the petitioners contends that document, dated 24-9-1952 executed by Barkat A.I was consented by all the heirs vide an agreement, dated 4-10-1958 and as such the parties were bound by the same and the said widow held exclusive title in the land located in the village Sharqpur. Alternatively contends that even if it be admitted the document, dated 24-9-1952 was void or that it stood revoked, suit in any case was barred by time. Relies on case of Zil Muhammad and 3 others v. Mst. Hayat Bibi and 2 others (1971 SCMR 514). Mian Nisar Ahmad, learned counsel for the respondents on the other hand contends that the document, dated 24-9- 1952 cannot be termed anything but a will and in view of the admitted fact that Barkat A.I proceeded to alienate the land -in village Gowinda, the will stood revoked. Further, contends that it stands established on record and it has not even been denied that the respondents were not aware of factum of alienation of land in the said village Gowinda at the time of agreement, dated 4-10-1958. According to the learned counsel the parties were under a mistake of fact arid as such contract was void. Relies on the case of S. Sibtain Fazlie. v. Star Film Distributors and Muhammad A.I Khan (PLD 1964 SC 337). As to the objection of limitation his case is that the parties being admittedly co-heirs are in joint possession and there is no question of the suit being barred by time.
4. I have gone through record. I have already stated the relevant fact with reference to the evidence on record while making narration in the opening para. Of this judgment. The chain of events as stated by me is admitted. Points needed to be determined in this civil revision are as to what was the nature and intent of document, dated 24-9-1952 (Exh.P.3) and what is the effect of the agreement, dated 4-10-1958 (Exh P.4). The petitioners has opted to describe the said document as (taqseem nama) and while according to the respondents it was will. I have examined the said document which has been titled as (ikrar nama). The document narrates that executant has distributed his entire land on his heirs who are his widow, three brothers and a sister. However, the` executant then says.
With this preamble the document proceeds further and narrates that the land of the executant is in villages Gowinda, Kot Mehmood and Sharqpur. He then states that land in Sharqpur will be given to his widow and he will be entitled to transfer the same in favour of his wife in his lifetime while the land in the other two villages will be given to his brothers and sister and that they will become owners of the said land after his death, however; the document states that the possession of the land in village Gowinda has been given to said brothers and sister.
5. A bare reading of the said document would show that it does not transfer airy title or right in presentic. It is for all purposes a will and expresses the desire of executant that the same shall take effect after his death. I, therefore, agree with the learned counsel for the respondents that the document (Exh.P.3. Exh.D.16) is was a will. Now the law is well-settled that a testator cannot make bequest of all his property in favour of his heirs without the consent of all the said heirs and that the consent is to be expressed both in his lifetime as also after his death. The second principle applicable is that in case the testator after making the will proceeded to alienate the said property or any part thereof then the said act of alienation constituted revocation of a will. It is admitted position that testator proceeded to alienate the land in village Gowinda vide a Mutation Exh.P.7 on 16-5-1954. Vide a death entry Exh.P.18 Barkat A.I died on 21-9-1957.
Thus, the land subject-matter of the will stood alienated by Barkat A.I in his; lifetime and as such the will stood revoked. Reference be made to the case of Mst. Sardar Bibi etc. v. Abdul Latif etc. PLD 1952 Lah..294.
6. Coming to the agreement, dated 4-10-1958 (Exh.P.4 and Exh.D4), this document was executed with reference to will Exh. P.3 and it was executed by Mst. Chiragh Bibi widow wherein she stated that as under the: said will she was not to get anything in Kot Mehmood, therefore, she agreed that the share mutated in her favour in the said village be transferred to other heirs. Mutation No. 1545 was taken up as an exchange mutation on the basis of said agreement and attested accordingly on 7-2-1959. I may here refer to, the statement of Akhtar A.I one of the plaintiff as P.W. Who has stated that they were not aware of the sale of the land in Gowinda by Barkat A.I and that it was only after execution of said agreement that it came to their-- knowledge that land in village Gowinda had been sold. This witness has been. Cross-examined at length but nothing has been brought therein to raise any inference that the witness or his father was aware of the said sale at the time of agreement. This statement has not been rebutted otherwise. The petitioner did not enter witness- box. However, Bashir Ahmad his son and attorney, appeared as D.W.6. He was confronted and he stated that he does not know that who sold the land in Gowinda and to whom it was sold; that he cannot, tell as to whether Barkat had sold the land in Gowinda in his lifetime. Them he was put a direct question and he answered that he does not know as to). Whether before or at the time of writing of agreement, dated 4-10-1958 parties were aware that Barkat A.I had sold land in village Gowinda. Fact remains that the land had in fact been sold by him. The agreement, dated 4-10-1958 therefore, has no legal effect. Firstly because the agreement was executed with reference to will Exh.P.3 which already stood revoked in the year 1954 as the part of subject-matter thereof stood sold by Barkat and secondly because it stands established on record that none of the parties to the said agreement Exh.P.4 were aware of the fact that the land in village Gowinda stood sold and as such the will with reference whereto document: was being written is no longer in existence.
Section 20 of the Contract Act, 1872, lays down in mandatory terms that where both the parties to an agreement, are under a mistake as to a matter of fact essential to the: agreement, the agreement is void. I, therefore, hold that the said agreement, dated 4-10-1958 Exh.P.4 was void.
7. Coming to the said second contention of the learned counsel for the --petitioners as to the suit being barred by time. Once it is found that the will Exh.P.3 was non-existent having been revoked and the said agreement Exh.P.4 being void, in view of the admitted fact that Barkat A.I was survived by a. Widow, three bothers and a sister including father of the, plaintiffs/respondents, the land owned by Barkat A.I devolved upon the parties in accordance with their Muslim Personal Law shares immediately upon his death and they because co-sharers. It shall, therefore, be deemed that all the heirs are in joint possession of the suit property as co-sharers and actual possession of the 'one or the other in the absence of any plea or evidence of ouster would be of no relevance.
Reference be made to the case of Ghulam A.I etc. v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1. The objection, therefore, is overruled.
8. No other point has been urged. I do not find any ground being made out within the meaning of section 115, C.P.C. Enabling this Court to interfere with the impugned judgments and decrees. This Civil revision is accordingly dismissed leaving the parties to bear their own costs.