2021 C L C 1788
[Balochistan]
Before Rozi Khan Barrech, J
ABID ALI and another ----Petitioners
Versus
MUHAMMAD TAHIR and 3 others ----Respondents
Civil Revisions Nos.528 and 529 of 2019, decided on 4th September, 2020.
Islamic Law ---
----Will ---Validity ---Scope ---Will, in favour of legal heirs ---Principle ---Plaintiffs claimed to
be owners of suit property on the basis of 'Will Deed' executed by their deceased father
during his life time ---Defendants were also legal heirs of deceased wh o were denied
execution of any such deed ---Trial Court and Lower Appellate Court concurrently dismissed
the suit and appeal filed by plaintiffs ---Validity ---Legal heirs had not consented rather
contested the suit and alleged 'Will Deed' was not according t o Islamic Law ---When other
legal heirs did not assent to bequest to plaintiffs, the property was to be devolved in inheritance by way of inheritance mutation attested in favour of parties to all legal heirs as per law and "Will" could be valid to the exten t of 1/3rd of the property ---"Will Deed" could
only be enforceable as the bequeath of deceased if it was assented to by other legal heirs, who did not assented to the will as such the same was not enforceable ---High Court in
exercise of revisional jurisdic tion declined to interfere in concurrent judgments and decrees
passed by two Courts below as there was no illegality or misreading or non- reading of
evidence could be pointed out ---Revision was dismissed, in circumstances.
Muhammadan Law by Aamir Ali Chapt.20 P.589; Mahomed Hussain Haji Ghulam
Mahomed Alam v. Alshabai and others AIR 1935 Bombay 84; Muhammad Aslam Rashid and 2 others v. Dr. Muhammad Anwar Saeed and 4 others 1997 CLC 2012; Ihsan Ilahi and others v. Hukam Jan PLD 1967 SC 2000; Abdul Razzaq and eight others. v. Shah Jehan and 5 others 1995 SCMR 1489 and Zakirullah Khan and others v. Faizullah Khan and others 1999 SCMR 971 ref.
Shahid Javed Nagi for Petitioners.
Abdul Sadiq Khilji for Respondents Nos.1 to 3.
Shahid Baloch, Additional Advocate General ("A.A.G.") for Respondent No.4.
Date of hearing: 13th August, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---This judgment will dispose of Civil Revision Petition
Nos.528, and 529 of 2019, as both arises out of the judgment dated 25.09.2019 (hereinafter
"the impugned Judgment") passed by learned Additional District Judge -V, Quetta,
(hereinafter "the appellate Court") wherein the appellate Court while dismissing the appeal
filed by the petitioners upheld the judgment and decree dated 24.06.2019 passed by learned Civil Judge -VI, Quetta, (hereinafter "the trial Court").
2. Epitomized facts necessary for adjudication of the Petition No.528 of 2019 are that
the petitioners/plaintiffs filed Civil Suit No.97 of 2014 for declaration and permanent injunction again st the respondents/defendants Muhammad Tahir and others before the
learned trial Court with the following prayers: -
"(a) declaring that plaintiffs are the legal and lawful more than particularly described in para- I and defendant Nos.1 and 2 had no legal and lawful share or entitlement in the
said property which is left by the predecessor of the panics.
(b) declaring that after settlement of inheritance during lifetime of predecessor and execution of agreement by the defendants Nos.1 and 2 and receip t of share in shape of
more properties mentioned in para -1 as such they ceased to be a co -sharer in the
property in dispute, therefore, mutation entries No.220, Khasra consisting upon 2 Khatta, total measuring 0 Rod 7 Poles situated in Mahal Karez Shero, M ouza Hudda,
Tappa Saddar -I, Tehsil and District Quetta and shop situated in Mahal and Mouza
Ward No.36, Tappa Urban- III Tehsil and District Quetta bearing Khasra No.241, total
measuring 150 is liable to be cancelled to the extent of defendants Nos. I and 2 and
their name be excluded from the mutation entries.
(c) by means of permanent injunction, defendants be restrained not to interfere or claim any right over the properties mentioned in para -1.
(d) further they be directed not to transfer, alienate mortga ge, or in any manner deal
within the property in dispute mentioned in para -I till pending disposal of this suit, in
the interest of justice, fair play and equity".
3. The respondents resisted the suit, being the defendants. While submitting their written
statements, they controverted the assertions contained in the plaint. From the divergent
pleadings of the contested parties following multiple issues were frame: -
1. Whether through separate agreement executed between defendants Nos.1 and 2 and Ghulam Sabir (predecessor -in-interest of plaintiffs Nos. 1 and 2 and defendants Nos.1
to 3) the share of defendants Nos.1 and 2 in suit properties were given to them?
2. Whether through family settlement defendants Nos.1 and 2 were ceased to be the shareholders in the suit properties?
3. Whether through the will dated 11.01.2012, the predecessor -in-interest of the parties
had determined the shares of each shareholder?
4. Whether plaintiffs. are the exclusive owners of suit properties in view of the will?
5. Whether the will is effective and is in line with law and Sharia?
6. Whether plaintiffs are entitled for the reliefs they have claimed.
7. Relief?
4. Brief facts of the Petition No.529 of 2019 are that the respondents/plaintiffs filed a
Civil Suit No.76 of 2017 for partition, possession and mense profit against the
petitioners/defendants and others before the learned trial Court with the following prayer: -
"a. Declaring that being legal heirs of late Ghulam Sabir plaintiffs and defendants are entitled for their s haria shares in realm of late Ghulam Sabir.
b. Defendant be directed to partition properties in question among all the legal heir of late Ghulam Sabir.
c. Defendant No.2 may be directed to enter the shop mentioned in para No.1 (ii) in the names of all the legal heirs of Ghulam Sabir as per their sharia shares.
d. Defendant No.1 may also be directed to pay mense profit to all legal heirs as per their sharai shares, received by him in shape of rent of house mentioned in para No.1(i) and revenue generated from business of shop mentioned at para No.1 (ii)
e. Any other relief which this Hon'ble Court deems fit and appropriate may also be awarded.
5. The petitioners resisted the suit, being the defendants. While submitting their written
statements, they controvert ed the assertions contained in the plaint. Out of the pleading of the
parties, the following multiple issues were frame:-
1. Whether late Ghulam Sabir in his lifetime had settled dispute of inheritance through family settlement deed and the same was duly acted upon?
2. Whether moveable and immovable properties as mentioned in para No.1 of plaint have been partitioned between the private parties of suit?
3. Whether the plaintiffs have received their shares in the properties in lieu of amount?
4. Whether the mutation of inheritance entered in the name of plaintiffs regarding house i.e. property mentioned at S.No.1 in para No.1 of the plaint is void in the light of family settlement deed?
5. Whether the predecessor in interest of plaintiffs and defe ndant No.1 late Ghulam
Sabir in his lifetime has revoked will deed dated 11.01.2012 by written Iqrar Nama dated 16.08.2014?
6 Whether the plaintiffs are entitled for their sharai shares in the realm of late Ghulam Sabir i.e. properties mentioned at S.No.1. of plaint?
7. Whether the plaintiffs are entitled for mense profit of properties as mentioned in
prayer clause D of plaint?
8. Whether the properties of deceased father of parties are required to be partitioned
amongst all the legal heirs as per sharai?
9. Whether the plaintiffs are entitled for the releifs they have claimed?
10. Relief, if any?
After framing of issues, the parties to the suit produced their respective evidence and on
completion of the same, Civil Suit No.97 of 2014 filed by the petitione rs/plaintiffs (Abid Ali
and another) against the respondent/defendant (Muhammad Tahir and others) was dismissed. The Civil Suit No.76 of 2017 filed by the respondent/defendant (Muhammad Tahir and
others) against the petitioner/plaintiff (Abid Ali and anoth er) was a decree in a common
judgment dated 24.06.2019 by the learned trial Court.
7. Being aggrieved from the judgment and decree dated 24.06.2019, the
petitioners/plaintiffs (Abid Ali and another) filed a separate appeal, under section 96, C.P.C.
before the learned appellate Court which was dismiss vide common judgment and decree
dated 25.09.2019.
8. I have heard the learned counsel for the petitioner as well as respondents and learned
A.A.G at considerable length and also perused the record.
9. The claim of the petitioners/plaintiffs (Abid Ali and another) in Civil Suit No.97 of
2017 are that the predecessor of the parties was the owner of the two properties in Quetta city, one house bearing No.8, situated at Al -Hamza Housing Society, the second property
was a shop, situated in Mahal and Mouza Ward No.36, Tappa Urban- III, Tehsil and District
Quetta, bearing Khasra No.241, Total measuring 150 sqft in which the predecessor was carrying out business in the name and style of Sabir Homoeo Pharmacy along with an
account bearing No.PL -1157- 1 in Muslim Commercial Bank, Toghi Road, Quetta, having an
amount of Rs.1,43,000/ -. Unfortunately, the predecessor of the parties died at Quetta on
17.09.2014 leaving behind the petitioners/plaintiffs and private respondents/def endants as
legal heirs. It is further averred in the plaint that the predecessor of the parties during his lifetime settled the share of each legal heirs through family settlement agreement by means of 7 which two of the legal heirs, i.e. defendants Nos.1 and 2 who demanded their shares as such the value of both the properties were assessed and on the basis of said assessment, the
share from both the properties was pay to respondent/defendants Nos.1 and 2 in the shape of
cash through various cheques.
10. In Civil Suit No.76 of 2017 the claim of the plaintiffs/respondents in Civil Revision
Petition No.529 of 2019 as a respondents are that the predecessor -in-interest of the parties
during his lifetime from 2008 to 2011 had given Rs.44,27,014/ - to plaintiff No.1 for his
domestic expenses in piecemeal. But later on, on the instigation of defendant No.1 father of
parties executed a Will Deed whereby he deposed that such amount was given as share of plaintiff No.1 in the realm of the predecessor of parties. Because , such amount was not
proportionate to the legal and sharai share of plaintiff No.1; therefore, predecessor in interest
of parties subsequently written an Iqrar Nama dated 16.08.2014 whereby he revoked
previous Will Deed dated 11.01.2012 and further depose d that his entire realm should be
distributed among his all legal heirs as per their sharia shares.
11. The petitioners and private respondents are legal heirs of late Ghulam Sabir who died
at Quetta on 17.09.2014 leaving behind him movable properties at Q uetta. On the opening of
the succession of his legacy in revenue record, the house and shop were mutated on the names of his legal heirs, according to their proportionate shares vide mutation Entries No.1273 dated 14.10.2014. The petitioner / plaintiff (Ab id Ali) feeling aggrieved from the
transfer of house in the name of all legal heirs, challenged the mutation entries in the Suit Civil No.97 of 2014 with the averments that the house and shop exclusively belongs to him because late Ghulam Sabir had executed a Will in his facour on 11.01.2012 which was duly registered with Sub -Registrar, Quetta. All his legal heirs had knowledge about it.
12. In view of the pleading and evidence produced by the parties the important question
for consideration would be two- fold;
(i) Whether the Will has been revoked and if so, what would be its effect?
(ii) If for the sake of arguments it is presumed that it has not been revoked, then what would be its effect in view of Muslim Personal Law?
13. Before dilating upon these quest ions, the execution of revocation of Will (Ex.D/1) is
unregistered documents, whereas the Will (Ex.P/3- A) registered one. Under the Registration
Act, neither the Will nor the Revocation Deed is required to be registered compulsorily. At this juncture, a re ference to Article 102 of the Qanun- e-Shahadat, 1984 would not be out of
context. This Article provides that when the terms of the contract or of grant or any other disposition of property have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to the form of a document no evidence
shall be given in proof of the terms of such contract, grant or other disposition of property or of such matter except the document itself or secondary evidence of its con tents in cases in
which, secondary evidence is admissible under the provisions hereinbefore contained.
14. As it has been observed hereinabove, execution of both the documents has not been
disputed. As far as the Will is concerned, it was reduced into writ ing on 11.01.2012 whereas
deed of revocation of Will Deed was executed subsequently dated 16.08.2014.
15. Both the parties produced the marginal witnesses of the above documents; however,
the Will was registered with Sub -Registrar Quetta on 19.01.2012. The name of the marginal
witnesses Khurram Shehzad and Jaffar Iqbal are mentioned, and both were produced as PW -
2 and PW -3, both of them stated in their statements that on 11.01.2012 late Ghulam Sabir
called them in his shop and told them that he had written his Will and in the said Will he had given a share of Muhammad Tahir and his daughter but the said witnesses neither stated a single word that in their presence the said Will was registered with Sub -Registrar Quetta nor
indicated in their statement that th e Will was prepared in their presence or in the presence of
the legal heirs.
16. From the statements of the above witnesses, it is clear that the Will Deed was not
prepared in the presence of the respondents/defendants and none of the witnesses states a
single word that any consent was taken from the parties. It is worthwhile to mention here that
after perusal of the Win Deed dated 11.01.2012 of the late predecessor of the parties it is not noted the exact shares of each party and does not describe the one -third of the estate of the
Testator. It is a settled principle of Muhammadan Law that a bequeath would be void for
want of consent of all legal heirs, after the death of Testator. It is also an admitted principle
of law that where the Will has been executed in favour of one of the legal heirs, then the assent of remaining legal heirs is essential, after the death of testator, as it has been in Muhammadan Law by Aamir Ali (Chapter 20 page 589). Relevant para therefrom is reproduced herein below: -
"(2) According to all the schools a bequest to any one of the heirs is invalid without the consent of the others. (1) whether the person in whose favour the device is made is an heir or not must be determined not at the time of the Will but the testator's death. A grandson whose father has died in the lifetime of the Testator is a non- heir when he
co-exists with a son; and a bequest to him not exceeding a third is valid".
A similar view was expressed in Mahomedan Law by Mullas. Relevant para. From there is reproduce d hereinbelow: --
"117. Bequests to heirs.--A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share.
Explanation.--In determining whether a pe rson is or is not an heir, regard is to be had,
not to the time of the execution of the Will, but to the time of the testator's death".
Above proportion came for consideration in the case of A.E. Salayjee v. Fatima Bibi before Hon'ble Privy Council reported in (71 Indian Cases 753) wherein it was held as
under: --
"The Muhammadan Law does not allow a testator to leave a legacy to any of his heirs unless the other heirs agree, but any single heir may so agree as to bind his own share, and therefore wh en it appeared in the course of the suit that the other heirs had agreed
the only contest was as regards the plaintiff and the three minors. As regards the three minors, there could be no question of their consent and the dispute, therefore, turned on the question whether the plaintiff had consented or not".
17. In view of the above, an important question which arises is, as to what should be
nature of the consent required for the validity of the will to legal heirs. The ideal situation would be if the cons ent is express and in unequivocal terms, either in writing or even oral;
the person should accept, acknowledge and endorse the Will definitely, unambiguously but if the above is lacking and the consent is to be inferred as being implied substantial evidenc e
and circumstances are needed for that purpose because a legal heir on account of such consent would lose 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 parties, it has not been established that the petitioners and the private respondents ever gave their consent to this "Wasiatnama (Will)". Even it is not proved from
the evidence that at the time when late Ghulam Sabir wrote this document, the petitioners
and private respondents were also present in that very gathering or assembly.
18. The legal heirs have not consented rather contested the suit and termed the alleged
Will Deed has not according to Muhammadan Law. As the other legal heirs do not assent to bequest to the petitioner Abid Ali, therefore, the property has to be devolved in inheritance as done in the instant case by way of inheritance mutation attested in favour of the parties, to all the legal heirs as per the law. The Will would be valid to the extent of 1/3rd of the property and sections 117 and 118 of the Muhammadan Law are relevant to this effect, which is reproduced for guidance as under: -
"Section 117, Bequests to heirs: -
"A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share".
Section 118. Limit of testamentary power: --
"A Muhammadan 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 legal third cannot take effect unless the heirs consent thereto after the death of the senator".
19. The petitioners/plaintiffs have claimed the entire property of late Ghul am Sabir by
way of Will Deed, but legally the Testator cannot bequest his entire property, however, can bequest the only 1/3rd of his entire property that too under the consent to a known heir and without consent of the other legal heirs no property can be queath in favour of legal heirs.
20. In Case of Mahomed Hussain Haji Ghulam Mahomed Alam v. Alshabai and others
(AIR 1935 Bombay 84), the principle, that a bequeth 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 v. Dr. Muhammad Anwar Saeed and 4 others (1997 CLC 2012), a Division Bench of this Court held that if a Will had been executed in favour of one of the legal heirs, the assent of remaining heirs were essential after the death of Testator. In the absence of consent of all legal heirs, the Will was held not capable of enforcement. In the case of Ihsan Ilahi and others v. Hukam Jan (PLD 1967 SC 2000). The same principles were authoritatively affirmed by the Hon'ble Supreme Court of Pakistan. It was held that in order
to make a Will enforceable in favour of an heir consent of other heirs was imperative and more than 1/3rd share could not be bequeathed by testator. In another case Abdul Razzaq and eight others. v. Sha h Jehan and 5 others (1995 SCMR 1489). The same principle was
affirmed and followed.
21. In the case of Zakirullah Khan and others v. Faizullah Khan and others (1999 SCMR
971) in the said case the Hon'ble Supreme Court held as under: -
"Under the Islamic law, Saadullah Khan could not make any will in favour of any heir unless the other prospective heirs had consented such will and despite the Islamic law of inheritance being clear on this point, as the Appellate Court had illegally confirmed the will made b y Saadullah Khan in favour of the appellants to the extent of 1/3rd of
the suit land, the Appellate Court's illegal finding to the effect could be corrected by
the High Court."
22. I have examined the record of the case, and the judgment referred hereinbef ore and
did 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.
23. Accordingly, the Will dated 11.01.201 2 would only be enforceable as the bequeath of
the deceased if it is assented to by other legal heirs. The petitioners and private respondents are son and daughter of late Ghulam Sabir have not assented to the Will as such the same is not enforceable.
In view of the above, the observations and concurrent findings of both the Courts
below the learned counsel for the petitioners/plaintiffs have failed to point out any illegality or irregularity, misreading and non- reading of evidence in the impugned judgment s and
decrees passed by the trial as well as appellate courts; thus, the petitions being devoid of any merits are dismissed with no order as to cost.
MH/193/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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