MUHAMMAD ASHRAF LEGHARI, J.-- The appellant through this succession appeal has challenged the order dated 20.12.1989 passed by learned 1st Additional Sessional Judge, Karachi East in consolidated S.M.A. No. 590/1982 and SMA No. 8/1983, whereby the SMA No. 590/1982 was dismissed whereas SMA No. 590/1982 was dismissed whereas SMA No. 8/1983 filed by the appellant was partly allowed to the extent of share of appellant.
2. The brief facts of the case are that late Muhammad Murtaza Khan died at Karachi on 9.11.1978.
The deceased left behind immovable property bearing Quarter No. 493, 3-A, Landhi Colony Karachi measuring 802 square yards and the other estates G.P. Fund, Provident. Fund, Group Insurance, Gratuity and other benefits worth Rs. 5, 000/-.
3. The respondent Mst. Hayat Bibi filed SMA No. 590/1982 wherein she prayed for grant of letter of administration in respect of estates mentioned above. She claimed to be the daughter of deceased Muhammad Murtaza. The deceased was employee of Post & Telegraph Department Government of Pakistan. He owned one quarter as mentioned above. The Provident Fund and Gratuity etc. Were due to him from the Government of Pakistan and the aforesaid quarter was recorded in his name in the record-of-right. She stated that deceased due to his prolonged illness made a will in presence of office bearers of the Madras Muslim Anjuman Karachi on 6.4.1978 in favour of following persons:--
(1) Syed Abdur Razzak S/0 Syed Adam
(2) Syed Akhtar s/o Syed Abdur Razzak 25%
(3) Liaquat and Saleem sons of Muhammad Anwar Khan 25%
(4) Mst. Hayat Bi. WD/D Allauddin 40%
(5) The Madras Muslim Anjuman 10% The applicant alleged that after 20 days of the death of Muhammad Murtaza, Liaquat and Saleem forcibly occupied the quarter after breaking open the lock. The deceased during has last days was residing in her house and she used to bear her medical expenses. She also borne his burial expenses.
4. On the application moved by Mst. Hayat Bi, the appellant Liaquat All and Muhammad Saleem filed their objections wherein they stated that the will was forged as the deceased was an educated man and he instead of putting his signature on the will had affixed his thumb impression. They claimed that Liaquat All was adopted as son by the deceased and was living in disputed quarter along with deceased. The said quarter was gifted to him by way of oral gift. They claimed that the application under section 192 of the Succession Act, 1925 was not maintainable.
5. Abdul Aziz President of Madras Muslim Anjuman filed his affidavit wherein he stated that the documents of title were kept with him by the deceased about 2/3 months before the death of deceased. Liaquat Ali and his companions kidnapped the deceased to an unknown place and demanded the documents from him. On his refusal they maltreated him. Thereafter the deceased started living with his steps daughter Hayat Bi. And executed will. The other beneficiaries of will residing in India and did not come to pursue the case.
6. Liaquat Ali also filed SMA No. 8/1983 for the grant of letter of administration and succession certificate claiming himself as legal heir of deceased being his nephew. He claimed that the quarter in dispute was gifted to him and his were, by the deceased during his life-time and he was in continuous possession of quarter since then.
7. The said applications were consolidated vide order dated 29.4.1984 and it was ordered that SMA No. 590/1982 shall be the leading petition.
8. Out of the pleadings the following issues were framed:--
(i) Whether will dated 6.11.1978 filed in SMA No. 590/1982 is a forged document, if not what is its effect?
(ii) Whether petitioner in SMA No. 8/1983 is entitled to the relief claimed on the basis of gift declaration dated 6.1:1975 and 2.6.1975?
(i.e) Whether the gift declaration dated 6.1.1975 and 2.6.1975 are genuine and valid, if not what is its effect?
(iv) What is the exact amount of debts, cash and securities left by the deceased?
(v) Whether the two petitions are time-barred and are maintainable?
(vi) What is the effect of the pendency of Civil Suit No. 73/1983?
The parties adduced their respective evidence in support of their case. Mst. Hayat Bi examined herself and produced the original will and power-of-attorney and examined witnesses Shahabuddin and Nasir Khan. Witness Liaquat Ali examined himself, Muhammad Saleem, Muhammad Nabi and Shabbir.
9. Ultimately on 20.12.1989 learned 1st Additional Sessions Judge Karachi East dismissed the SMA No. 590/1982 and granted SMA No. 8/1983 partly.
10. Mst. Hayat Bi petitioner in SMA No. 319/1982 did not challenge the said order but the present petitioner assailed the order through this appeal.
11. It is contended by Mr. Raja Muhammad Khan learned counsel appearing for the appellant that the impugned judgment is perverse and illegal as the evidence adduced by the appellant has not been considered properly. It is stated that alleged will said to have been executed by deceased has not been accepted to be true, therefore, the letter of administration and succession certificate could have been issued in favour of appellant. Muhammad Saleem the brother of petitioner has filed his no objection to the grant of succession certificate. It is pleaded that the judgment in Suit No. 2006/1985 (Old No. 73/1983) has not been taken into consideration. The evidence on record has been misread and mis-appraised by the learned Trial Court. The learned Trial Court has taken an erroneous view by rejecting the oral gift made in favour of petitioner. The reliance is placed upon the case of MUHAMMAD ISHAQUE In re: PETITION FOR THE GRANT OF LETTER OF ADMINISTRATION IN RESPECT OF IMMOVABLE AND MOVABLE PROPERTIES, (1991 CLC 1150).
12. The respondent Mst. Hayat Bi was served through publication but none has appeared for her.
13. The controversial points tetween the parties are that Mst. Hayat Bi was claiming her right on the basis of alleged will said to have been executed by decreased Muhammad Murtaza Khan in favour of five persons whose names are mentioned above. On the other hand Liaquat Ali was claiming his title for issuance of letter of administration on the basis of gift said to have been made in his favour by deceased. He also claimed his right, to be the nephew of deceased. Admittedly, the deceased was educated man but the alleged will bears L.T.I. Of deceased. Mst. Hayat Bi stated that during last days of deceased he was suffering from tremor and he was not in a position to sign the document. As such he affixed his L.T.I. In support of her version, she examined Iftikhar Iriam, the Accounts Superintendent from Post & Telegraph Department. He stated that the deceased received his pay for the month of October, 1978 on 1st November, 1978 by putting his L.T.I. On revenue stamp. He brought original register in the Court and produced the attested copy of the register. The Trial Court compared the L.T.Is. On the will and registered but they were appearing to be different from each other. Witness Iftikhar Raza stated that deceased was not on the medical leave during the month of October, 1978. Mst. Hayat Bi stated that the stamp paper on which the will was ascribed was purchased through some another person but this fact was contradicted by witness Ahmed Pasha which said that the stamp paper was purchased by Allauddin the husband of Hayat Bi.
14. The contents of will show that the quarter in dispute was allotted in the names of Muhammad Qadir Khan the brother of deceased, Anser Bi the were of deceased and Mst. Qadri Bi the younger sister of deceased and these above-said three person had already expired before the execution of will. Petitioner Mst. Hayat Bi was not the daughter of Muhammad Murtaza Khan but she was his step-daughter. She had admitted in her evidence that her mother had married with the deceased when she was already borne from her first husband of her mother. Hence, she was not the legal heir of deceased. If it is believed that Abdul Razzak, Liaquat Ali and Muhammad Saleem were nephews of deceased, then in that event Muhammad Qadir was their uncle, Qadri Bi was their paternal shunt and Ansar Bi was the were of their uncle in whose name the quarter was jointly allotted to Muhammad Murtaza Khan. In these circumstances it is unbelievable that Muhammad Murtaza Khan was the sole owner of the quarter. He was only the co-sharer and therefore he neither could make any will nor was competent to executed the will in respect of the entire property. Even otherwise under section 118 of Muhammadan Law a Muhammadan cannot dispose of more than 1/3rd of the surplus of his estate after payment of funeral expenses and debts. Bequest in excess of the one third cannot take effect unless the heirs consent thereto, after the death of the testator. In the instant case 40% of the property was bequest to Hayat Bi, 10% to Madrasi Anjuman, thus more than 1/3rd is given to other persons and 50% of the property is left for legal heirs. The will in violation of above-said provision is illegal and bequests abates ratably, if the legal heirs refused to give their consent. Abdul Aziz P.W. Who was President of Madrasi Anjuman and is witness to the will in his affidavit stated that deceased was forcibly taken away by Liaquat Ali and his companions 2/3 months prior to his death. He was beaten mercilessly and this fact was witnessed by the neighbours who brought the deceased to the house of Mst. Hayat Bi. Since he was beneficiary of will therefore, his evidence required some independent corroboration which was lacking in the case. Liaquat Ali in this regard adduced no evidence but he only filed the judgment of the Court of Vllth Civil Judge IInd Class, Karachi East, wherein the issues of gift and the will were not decided. Under such situation, the will cannot be held to be valid, even if admitted to have been executed by the deceased.
15. So far the alleged gift, said to have been made by the deceased in favour of Liaquat Ali is concerned, no evidence in support of this oral gift has been adduced by him. He only relied upon the judgment of Civil Court, which is silent on the point of gift. This point was not in issue in the Civil Court nor was any decision given on it. Mst. Hayat Bi was not legal heir of the deceased, therefore she was not entitled to inherit her property. The alleged will executed in her favour has not been believed to be valid. Similarly the oral fit made by deceased in favour of Liaquat Ali has also not been proved. The SMA No. 570/1982 filed by Mst. Hayat Bi was rightly dismissed by learned 1st Additional Sessions Judge Karachi East. The order on SMA No. 8/1983 filed by Liaquat Ali was partly allowed to the extent of share of Liaquat Ali as he was nephew of the deceased.
16. Admittedly, the quarter in question was jointly allotted to deceased Muhammad Murtaza Khan, Muhammad Qadir Khan the brother of deceased, Ansar Bi the were of deceased and Mst. Qadir Bi the younger sister of deceased. He was not the sole owner of property. The legal heirs of deceased have not given him no objection in his favour.
17.. In such circumstances, the issuance of letter of administration and succession certificate was rightly refused as he was not the only surviving legal heirs of deceased. The other legal heirs of the deceased had not conceded to his claim. The order dated 20.12.1989 passed by the Court of 1st Additional Sessions Judge, Karachi needs no interference and the present appeal stands dismissed with no orders as to cost.