MANSOOR AHMAD, J. -- I propose to dispose of these two Civil Revisions No. 1338 of 1998 and No. 1478 of 1998 through this consolidated judgment as both the civil revisions arises from the same judgment and decree of the Appellate Court. Parties and subject-matter of the suit is also common. The main judgment is recorded in C.R. No. 1338 of 1998.
2. This civil revision arises out from a judgment and decree dated 23.7.1978 awarded by the Addl.
District Judge, Shorkot whereby the appeal of the petitioner was dismissed and the judgment/decree dated 24.6.1996 rendered by the Trial Court was upheld.
3. Controversy relate to the partition of the property left by Khurshid Muhammad Chishti. The said Khurshid Muhammad Chishti died on 14.9.1993. During his lifetime he contracted two marriages.
First with Mst. Firdous Begum and second with Mst. Razia Bibi.
4. The present petitioners Nos. 1 and 2 are sons of Khurshid Muhammad Chishti from his first wife and petitioner No. 3 is sister of Khurshid Muhammad Chishti deceased and other petitioners are legal heirs of Mst. Aziz Fatima the other sister of Khurshid Muhammad Chishti. Respondent No. 1 is the widow of Khurshid Muhammad and respondents Nos. 2 to 5 are his sons and daughters.
5. Khurshid Muhammad Chishti, deceased left behind an agricultural land measuring 155 kanal and one marla in village Kaki Nau Chak Doim, 100 kanals of agricultural land in Kaki Nau Chak Soim and 74 kanals, 19 marlas of agricultural land in village Rakh Kotla. Also half share in Bungalow No. 131, Autangzaib Block, New Garden Town, Lahore. After the death of Khurshid Muhammad Chishti mutation of inheritance was entered into by the Revenue Department. The respondents filed a civil' suit and claimed the entire landed property and half share in Bungalow on the basis of a Will. The suit was contested by the defendants/respondents. The Trial Court keeping in view the contentious pleadings of the parties settled issues in the following terms:- "(1) Whether Khurshid Muhammad deceased bequeathed the property in dispute to the plaintiff? If so with what effect? OPP
(2) Whether defendants assented to the Will made by the deceased in favour of the plaintiff? OPP
(3) Whether the Wasiyyat Nama dated 22.12.1991 is the result of the fraud and forgery? OPD
(4) Whether the plaintiffs have got no cause of action to bring this suit? OPD
(5) Whether the plaintiffs are estopped to bring this suit by their words and conduct? OPD
(6) Whether the suit has not been properly valued for the purpose of Court-fee and jurisdiction?
OPD
(7) Whether the suit is not maintainable in its present form?
(8) Whether the description of suit land is wrong if so, its effect?- OPD
(9) Whether the defendants are entitled to special costs, if so, to what extent? OPD
(10) Whether Mst. Firdous Begum was divorced by Khurshid` Muhammad Chishti in the year 1985?
OPP
(11) Relief."
6. Parties led their evidence and after completing the hearing the Trial Court decided the suit in favour of the plaintiffs/respondents and awarded a decree dated 24.6.1996. The Trial Court partially decreed the suit and held that the plaintiffs/respondents are entitled for 1/3rd share of legacy of their father according to Will Exh.P-1 and rest 3/4th of the suit property would be distributed among all the legal heirs of Khurshid Muhammad Chishti.
7. The judgment and decree of the Trial Court was assailed by both the parties.
Plaintiffs/respondents filed a Civil Appeal No 44/13 of 1996. This set of the legal heirs of deceased Khurshid Muhammad were aggrieved from the judgment and decree of the Trial Court as they laid the claim to the entire property left by the deceased on the basis of Will. The other Appeal No. 81/13 of 1997 was filed by the present petitioners. They were aggrieved from the acceptance of the Will to the extent of 1/3rd share by the Trial Court. Two civil revisions were filed in this Court. One in C.R. No. 1338 of 1998, this was filed by the legal 'heirs from the first wife and sister. The other C.R. No. 14'78 of 1998 was filed by the other set of legal heirs from the second wife.
8. Plaintiff/respondent Mst. Razia Bibi filed a suit in 1993 alongwith her four minor children and sought a declaration that the plaintiffs are the owners of the suit property. Detail whereof were given in para-1 of the plaint and half share in House No. 131, Aurangzaib Block, New Garden Town, Lahore. It was pleaded in the suit that Khurshid Muhammad had died about 1-1/2 month before filing of the suit. According to the averments made in the plaint the deceased had made a Will on 22.12.1991 and he bequeathed his entire estate to Mst. Razia Bibi his wife and four minor children. It was also averred in the plaint that Mst. Firdous Begum was the wife of Khurshid Muhammad and he gave 1/2 share to her in house No. 131, Aurangzaib Block, New Garden Town, Lahore. The plaint proceeded to describe that on 13.10.1985 Khurshid Muhammad divorces Mst. F,irdous Begum. Regarding two sons namely Muhammad Shoaib and Muhammad Shahbaz from the first wife it was stated in the plaint that three acres of land to each son was given by Khurshid' Muhammad during his lifetime which was disposed of by them. It was also pleaded in the suit that Muhammad Shoaib and Muhammad Shahbaz sons and Zubada Bibi mother of the deceased had accepted the will which was acted upon and the impediment was created when the Will was given effect to in the revenue record.
9. The suit was resisted by the defendants/petitioners. The plea set up by the defendants were that the Will dated 22.12.1991 was fraudulent and ineffective. It was not a registered document.
Ownership, of the deceased in respect of half share in House No. 131 was repudiated. It was further stated in the written statement that the plaintiffs and defendants were entitled to their respective shares as heirs of the deceased.
10. The mother of deceased namely Zubada Bibi had also filed a written statement. She conceded the suit filed by the plaintiffs/respondents. She died during the pendency of the suit and her two daughters filed the written statement. The sister of. Khurshid Begum as legal heir of Mst. Zubada Bibi refuted the claim based on Will.
11. Both the parties led their respective evidence. From the side of the plaintiffs as many as 13 witnesses' were produced and Mst. Razia Bibi herself appeared as PW-1. Documentary evidence in the form of Exh.P-1 to Exh.P-12 was also produced. The evidence on the other side comprised of DW- 1 to DW-4 and documentary evidence Exh.D-1 to Exh.D-, was produced. After recording the evidence in the first round the Trial Court vide its judgment and decree dated 13.6.1996 decreed the suit of the plaintiffs/respondents. On appeal the Additional District Judge set aside the order of the Trial Court and framed an additional issue No. 9(a) relating to the divorce of Mst. Firdous Begum and remanded the case to the Trial Court. After remand further evidence was recorded and PW-9 to PW-12 were produced. From the side of the plaintiff and DW-5 to. DW-8 appeared for defendants. Mst. Razia Bibi re-appeared as PW-13: The Trial Court vide its 'judgment and decree dated 24.6.1996 partially decreed the suit.
Through the cross appeals, the judgment and decree of the Trial Court was put to chalk the parties.
12. Although there is a chequered history of litigalenge and the Appellate Court vide its judgment and decree dated 23.7.1998 dismissed the appeals of bottion but the crucial issues are only two fold. Main issue relate to the validity of the instrument of Will dated 22.12.1991. Second issue relate to the divorce of Mst. Firdous, the first wife of the deceased. Learned counsel for the petitioners argued that true spirit of Islamic law is that a testator does not possess a right to make a bequeath in favour of one of the legal heirs- to the exclusion of others. According to the learned counsel such Will is against the spirit of Islam and it is not enforceable. On the premises of his argument he assailed the judgments and decrees of two Courts below to the extent of 1/3rd share awarded in favour of the plaintiffs/respondents. In support of his arguments the learned counsel referred to pages 122 to 123, 321 o 327 of Zia-ul-Quran (Tafseer) Volume-I, Pages 140 to 141 and 324 to 331 Tahfeemul Quran (Tafseer), Pages 209 to 211 of Tafseer-e-Naeemi, Pages 496 to 498 Sharahsahim Muslim Volume-V, Pages 569 to 570 of Sunan Nisai, Pages 661 to 662 Mota Imam Malik, Pages 1652 to 1653 Majmooa Qanoon-e-Islam Volume-V and Page 680 of Islami Fiqah. Advancing his argument the learned counsel for the petitioner submitted that any Will which carry a sole intention to deprive the heirs to inherit property of their predecessor-in-interest was not approved.
Reference was made to a case titled Raja Muhammad Yasin Vs. Zaitoon Begum and others, reported as 1993 CLC 2448. The learned counsel for the petitioners next argued that the written statement filed by Mst. Zubada cannot be taken as a piece of evidence and the presumption of undue influence is to be drawn in her case. He made a reference to a case titled Ghulam Ali, etc. Vs. Mst. Ghulam `Sarwar NaqVi, reported as PLJ. 1990 SC 139. The learned counsel also highlighted certain aocuments like forms submitted for obtaining the identity cards, etc. and argued that the divorce to Mst. Firdous was not proved. He relied on judgment Raja Muhammad Yasin Vs. Zaitoon Begum, etc. (1993 CLC 2448). Lastly he argued that the High Court was not precluded from re-appraising the evidence in exercise of its revisional jurisdiction under Section 115, CPC. He relied on the case titled Haji Rahan Vs. Province of Balochistan and others, reported as 1999 SCM R 1060.
13. The learned counsel appearing for the plaintiffs/ respondents argued that there is no rule or principle ever enunciated authoritatively whereby fetter is provided that a testator can only bequeathed his property to the extent of 1/3rd share. According to the learned counsel a Will made in favour of one or some of the legal heirs would be completely a valid Will in respect of entire estate left by the deceased when the same is accepted/ratified by other legal heirs. It was maintained by the learned counsel for the respondents that from the evidence on record to which he made extensive references the petitioners Nos. 1 and 2 had accepted the Will. He also sought support from the written statement filed by mother of the deceased Mst. Zubada Bibi which was a consenting written statement. Arguing further the learned counsel made reference to verses No. 108 of Surah Baqrah of Holy Quran in respect of his argument. He relied on Fatavva Alamghiri translated by Syed Amir Ali published by Dar-ulIshaat, Karachi. He referred to Badiah-ul-Asna by Allama Abu Bakar Ala-ud-Din Alkasani translated by Prof. Khan Muhammad Chawla published by Dial Singh Trust Library, Lahore, Volume-7, Page 775. In support of his argument the learned counsel relied on Sunan Ibna Maja Sharif translated by Allama Nawab Waheed-udZeman Khan published by Mehtab Company, Volume-II, P-461. Reference was also made to Kitab-ul-Fiqa by Abdul Rehman AlJareeri translated by Manzoor Ahsan Abbasi published by Auqaf Department, Vol-II, P-
423. Precepts of Imam Abu Hanifa and principle laid down in Hedaya translated by Charles Hamilton were also referred. Reference was also made to principle of Muhammaden Law by Mulla and its Articles 117 and 115. The learned counsel for the respondents placed reliance on a judgment in case titled Ghu/am Muhammad Vs. Ghulam Hussain, etc., reported as AIR 1932 Privy Council 81, case titled Muhammad Aslam Rashid, etc. Vs. Muhammad Anwar Saeed, etc., reported as 1997 CLC 2012, case titled lhsan Elahi, etc. Vs. Hukan Jan, reported as PLD 1967 SC 200 and case titled Mst.
Rafique Begum, etc. Vs. Muhammad Rafique, etc., reported as 1996 CLC 667, case titled Muhammad Saleh, etc. Vs. M/s.' United Grain & Fooder Agencies, reported as PLD 1964 SC 97.
14. Verse No. 180 of Surah-tul-Baqra and Verse No. 11 of Surah-un-Nisa, Verse No. 12 of Surah-un- Nisa and Verse No. 13 of Surah-un-Nisa were taken as a source in authority for bequeathing the property as a Will. In the light of Hadith of Holy Prophet (Peace Be Upon Him) the principle relating to. Will by a Muslim testator was settled.
15. From the original Arabic text leading authority on the subject of Will were translated into Persian and the guide is commonly known as Hedaya and it was translated into English by Charles Hamilton. Another book of authority is a Fatawa Alamgiri. It was compiled in the 17 Century under command of Emperor Aurangzeb Alamgir. Both the Hedaya and Fatawa Alamgiri deal with all topics of Muslim Law except the Law of lnheritence was not dealt with in Hedaya. D.F. Mulla another celebrated Author collected the principle of Islamic Laws from various source and published his celebrated book known as 'principle of Muhammadan Law'. Fatawa Alamgiri, Hedaya and principle of Muhammadan Law by D.G. Mulla are taken as authorative text containing the principles of Islamic Law.
16. Whether it is commentary of a Taleemul Quran by Syed Abu-Ala-Ali Mudoodi o Ziaul Quran by Pir Muhammad Karam Shah or Sunan Nisal or Mota Imam Malik or Sharah Sahih Muslim, the principle which is discernible are as under:- A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator (i) Any single heir may consent so as to bind his own share (ii) A Muslim cannot by Will dispose of more than a third 'of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the one third cannot take effect unless the heirs consent thereto after the death of the testator.
Remaining principle of Will are not related in the present case as such they are omitted for the sake of brevity.
17. In case of Mahomed Hussain Haji Ghulam Mahomed Ajam Vs. Aishabai and others (AIR 1935 Bombay 84), the principle, that a bequeath to the heir can only be rendered valid by consent of the other heirs' was followed. Similarly in case of Muhammad Aslam Rashid and 2 others Vs. Dr. Muhammad Anwar Saeed and 4 others (1997 CLC 2012), a Division Bench of Balochistan High Court held that if a will had been executed in favour of one of the legal heirs, assent of remaining heirs were essential after the death of testator. In absence of assent of all legal heirs, the Will was held not capable of enforcement. In case of Ihsan Illahi and others Vs. Hukam Jan (PLD 1967 SC 2000).
The same principles were authoritatively affirmed by the Supreme Court of Pakistan. It was held that in order to rnake a Will enforceable in favour of an heir consent of other hairs was imperative and more than 1/3rd share could not be bequeathed by testator. In another case Abdul Razzaq and eight others Vs. Shah Jehan and five others (1995 SC 1489). The same principle was affirmed and followed. The afore-mentioned judgments are relied by the respondents. On the other hand the counsel for the petitioner relied on the Hedaya, principle of Muhammadan Law by D.F. Mulla and other text and summaries on the subject.
17. I have examined the extensive literature on the subject cited from both sides and the judgments referred herein before and do not find any difficulty in holding that a Muslim testator enjoys the power to bequeath his property to the extent of 1/3rd share of his estate in favour of any other person except his legal heirs. However, he may bequeath the 1/3rd share in favour of any one or more of the legal heirs but such bequeath in favour of one or more legal heirs shall only be valid and enforceable if the same is assented to by other legal heirs after the death of the testator.
18. .Accordingly the Will dated 22.12.1991 would only be enforceable as the bequeath of deceased if it is assented to by other legal heirs. Petitioners Nos. 1 and 2 who are the son from the first wife of deceased Khurshid Muhammad have not assented to the Will as such the same is not enforceable.
As regards the evidence relating to the assent of petitioners Nos. 1 and 2, I would deal with the same herein below.
19. The case set up by the plaintiffs/respondents was that petitioners Nos. 1 and 2 did not raise any objection to the Will made by the deceased rather they assented the Will on the occasion of 'Rasm-i-Soim and Rasm-i-Chehlum' of the deceased before Niaz Muhammad Khan, Iqbal Khan and lmanullah Khan, etc.
20. Khurshid Muhammad died on 14.9.1993. The suit was filed by the respondents on 23.11.1993. It was pleaded in the suit that the cause of action accrued to the plaintiffs-respondents two days before filing of the suit when defendants-petitioners declined to accept the Will. The plea taken in the plaint was that after the execution of Will, the defendants-petitioners had accepted the Will. No specific plea was taken in the plaint as to when the Will was accepted by the defendants- petitioners. However, in evidence an endeavour was made to prove on record that the defendants/petitioners Nos. 1 and 2 accepted the Will on Soim and on the Chehlum of their deceased father. On this score Mst. Razia appeared as PW-1. Noor Muhammad appeared as PW-2, Dost Muhammad deposed as PW-3, Allah Ditta and Jalal Din entered in witness-box as PW-5 and
6. PW-7 Amen Ullah was also produced, PW-8 Abdul Ghafoor and Saeed were examined as PW-9.
The story of acceptance of Will was stated by Mst. Razia. She is the second wife and the Will was executed in her favour and also the children borne to her. PW-3 is a maternal cousin of Mst. Razia, PW-8 is the father of Mst. Razia and PW-9 is maternal cousin of Mst. Razia. All these witnesses belonged to the family of Mst. Razia. They appeared and tried to corroborate her statement. The other set of the witnesses comprised of PW-2 who is stated to be Munshi and PWs-5 and 6 who are stated to be tenant in a part of land which is subject-matter of the suit.
21. At this juncture it would be proper to make a reference to Exh.P 1, the Will itself. Two of the marginal witnesses PW-3 and PW-2 testified and the scribe appearing as PW-4 proved the execution of the Will. The deceased testator has stated in his Will that Shahbaz who is son from his first wife has tried to kill him and his children from the second wife and he is determined to kill them and for this reason the testator made a Wlll. Firstly declaring son from his first wife as "Deprived" through the same document he stated in his Will that his second wife and her children would be the legal heirs of his entire property. The document which was relied by the. respondents-plaintiffs by itself shows that the defendants-petitioners were not having cordial relations with the testator as well as the respondents-plaintiffs. One of the pre- dominant reason for executing the Will as stated by the testator was that his second wife and her children were not secure and he apprehended threat to their lives from the son of his first wife particularly the Shahbaz. It was also stated by the testator in his Will that his sons from the first wife demanded the land from the deceased.
22. Circumstances reveals that the Will was executed by the testator under fear and threat of defendants-petitioners Nos. 1 and 2. The deceased testator died on 14.9.1993 and suit was filed just after two months of the death of Khurshid Muhammad, testator. No mention \A, as made in the plaint as to when the consent by the defendants-petitioners was given. At the stage of evidence the consent of defendants-petitioners Nos. 1 and 2 was described to have been given on Soim and on Chehlum. There is no documentary evidence to this effect. The witnesses who have appeared to depose the factum of assent mostly belonged to the family of Mst. Razia respondent No. 1 and the other set is alleged to be a cultivators and Munshi who appears to be under the control of Mst.
Razia respondent No. 1. There was no evidence in respect of any overt act of defendants-petitioners No. 1 and 2 showing or reflecting any consent of their part. The essence behind the principle that a bequeath to an heir is not valid unless the other heirs consent to the bequeath after the death of testator conveys that there should be a tangible voluntary consent. It is lacking in the instant case.
Even the evidence in respect of consent produced by the plaintiffs-respondents firstly does not - inspire confidence and secondly it was improbable in the circumstances of the case. Although re- appraisal of the evidence. in the revisional jurisdiction is sparingly resorted to but as the case was contested from both the sides and the first Appellate Court - did not re-appraise the evidence in its entirety, therefore I have gone through the entire evidence appreciated it deeply and reach to the conclusion that consent of defendants-petitioners Nos. 1 and 2 was not proved. As such, the Will is not enforceable against their rights. As a proof of the consent by other legal heirs, the counsel for the petitioners has also relied on the written statement made by Mst. Zubada Bibi. She was the mother of testator and she has also died during the pendency of the revision petition and petitioners Nos. 3 to 12 are the legal heirs of Mst. Zubada Bibi. I do not see any force in the plea because the written statement of Mst. Zubada Bibi could not be used in evidence against the defendants-petitioners. A written statement of any of the defendants who does not appear as a witness cannot be treated as a substantive evidence. Reference is made to a case titled Malik Muhammad Ishaque Vs. M/s. Erose Theatre and other (PLD 1977 SC 109) and case titled Mst. Fakhr- un-Nisa Vs. Malik Muhammad Ishaque (PLD 1972 SC 25).
23. The other controversy related to the divorce by Khurshid Muhammad, deceased during his life time to Mst. Firdous Begum the first wife. It will be relevant to point out that she has also died during the pendency of the litigation and petitioners Nos. 1 and 2 are her sons. Issue No. 9-A related to divorce to Mst. Firdous. On this issue the plaintiffs-respondents produced oral evidence of PW10 to PW-13. Talaq Nama mark 'A' was produced. Exh.P-10 is a noice issued by the Chairman, Arbitration Council, Gulberg, Lahore. The notice was shown to have been received by Mst. Firdous on 2.2.1986.
Exh.P-1 1 is an order dated 15.7.1986 which was passed in the civil revision by the Collector, Lahore District. This revision was filed by the deceased Khurshid Muhammad against the order dated 13.12.1985 passed by the Chairman, Arbitration Council, Lahore who passed a decree of Rs. 1,14,000/- as maintenance allowance. Exh.P-9 was the cony of the revision petition filed by Khurshid Muhammad, deceased, in the said documents he also mentioned that he had divorced his wife Mst. Firdous Begum. In rebuttal the documentary evidence relating to the domicile certificate and identity card do not provide any help to the defendants-petitioners. The divorce in the-light of the Talaq Nama, notice issued by the Chairman, Arbitration Council and the admission contained in the revision by Khurshid Muhammad, deceased supported by the oral testimony of PW-10 to PW-13 stands proved. As such, both the Courts below rightly held that she was divorced by Khurshid Muhammad during his life-time.
24. The heirs of Khurshid Muhammad, deceased were Muhammad Shoaib and Muhammad Shahbaz, petitioners Nos. 1 and 2 his sons from the first wife, Mst. Razia respondent No. 1 as the widow of Khurshid Muhammad, Amna Bibi and Maria Bibi daughters of Khurshid Muhammad, Muhammad Tehseen and Muhammad Waseem sons of Khurshid Muhammad and Mst. Zubada Bibi mother of the deceased. As only the deceased mother had submitted written statement which even was disputed by her legal heirs therefore there was no consent by the other legal heirs, as such, the Will dated 22.12.1991 was not valid and enforceable in respect of the estate left by the deceased Khurshid Muhammad.
In view of my findings herein before the Civil Revision No. 1338 of 1998 is partially allowed to the extent of Will, however, to the extent of claim of Mst. Firdous the same is rejected. Civil Revision No. 1478 of 1998 is accordingly dismissed. Resultantly, the suit filed by. the defendants-petitioners stands dismissed.