P L D 2023 Balochistan 40
Before Muhammad Ejaz Swati and Gul Hassan Tareen, JJ
Mst. KHAN BIBI (widow) and 4 others ---Appellants
Versus
BIBI RAHIMA and 5 others ---Respondents
R.F.A. No. 147 of 2014, decided on 13th December, 2022.
(a) Qanun -e-Shahadat (10 of 1984) ---
----Art. 71---Specific Relief Act (I of 1877), Ss. 42, 8 & 54---Oral Will- --Proof ---Suit for
declaration, correction of mutation entries, partition, possession and permanent injunction---
Oral evidence must be direct ---Inter ested witness ---Scope ---Plaintiff filed a suit for seeking
her share in the legacy of her predecessor ---Claim of plaintiff was that the names of female
legal representatives were not inserted in the revenue record ---Defendants contested the suit
on the ground that their predecessor had made an oral will regarding property---Trial Court decreed the suit ---Validity ---Two witnesses were produced to prove oral will of the
predecessor ---One of the witnesses disclosed that the other witness came and narrated that
the predecessor had told him that he had given the share of daughters in the ancestral properties in the form of cash and jewelleries ---Statement of said witness was inadmissible
under Art. 71 of the Qanun- e-Shahadat, 1984, as the same was hearsay--- Cross -examination
of the second witness transpired that there was a property dispute between him and the husband of plaintiff; that criminal cases were pending between the son of plaintiff and his brother and that his age was 12/13 years when the predecessor ha d made an oral will ---Said
witness was partial towards the plaintiff, therefore, his statement was not admissible for the purpose of proof of oral will ---Impugned judgment was well reasoned, therefore, the same
did not warrant interference by the High Cour t---Appeal was dismissed.
(b) Transfer of Property Act (IV of 1882) ---
----S. 6 ---Specific Relief Act (I of 1877), Ss. 42, 8 & 54--- Suit for declaration, correction of
mutation entries, partition, possession and permanent injunction---What may be trans ferred --
-Scope ---Plaintiff filed a suit for seeking her share in the legacy of the predecessor ---Claim
of plaintiff was that the names of female legal representatives were not inserted in the revenue record ---Defendants contested the suit on the ground tha t the share of female legal
representatives was given by the predecessor in the shape of cash and jewelleries ---Validity --
-Defendants could not prove that the daughters of predecessor had received their share in his
life time ---Anything given by a father t o his daughter in his life, at the most could be
considered as a gift because the right in the legacy of a deceased accrued at his death ---
Expected share of a presumptive legal heir, given by a predecessor in his life, did not deprive
the legal heir from g etting share in the legacy in view of doctrine embodied in Para. 54 of the
Muhammadan Law and S. 6(a) of the Transfer of Property Act, 1882--- Impugned judgment
was well reasoned, therefore, the same did not warrant interference by the High Court ---
Appeal w as dismissed.
Mst. Hameeda Begum v. Mst. Murad Begum and others PLD 1975 SC 624 ref.
(c) Qanun -e-Shahadat (10 of 1984) ---
----Art. 71---Oral evidence must be direct ---Scope ---Oral evidence must, in all cases, be
direct ---Where it refers to a fact which could be heard, it must be proved by the evidence of a
person who says he himself heard it.
Ajmal Khan Kakar for Appellants .
Mumtaz Hanafi Baqri for Respondents Nos. 1 to 4.
Attaullah Kharoti for Respondent Nos. 6 to 22, 24 and 25
and Shahid Baloch, Additional Advocate General for Official Respondents.
Date of hearing: 29th November, 2022.
JUDGMENT
GUL HASSAN TAREEN J. ---Through this regular first appeal preferred under
section 96, the Civil Procedure Code, 1908 ("the Code"), the appellants have assailed
judgment and decree dated 29th August, 2014, whereby the Court of Senior Civil Judge -I,
Quetta ("Trial Court") has decre ed the suit instituted by the respondent No. 1 against the
appellants and the respondents Nos. 2 to 6.
2. Briefly stated, facts of the case are that the respondent No.1 instituted a Civil Suit No.
65/2011, for declaration, correction of mutation entries, partition, possession and permanent
injunction against the appellants and the respondent Nos. 2 to 6. According to the averments
of the suit, the parties are the successors in interest of Pir Muhammad ("the predecessor"),
who passed away in 1982. The predec essor had left behind the suit properties as his legacy,
specifically described in para No. 5 of the amended suit. Some properties were entered in the names of parties to the suit through mutations of inheritance Nos. 486 and 148, whereas one property from legacy of predecessor, described in para No. 5 sub- para No. (a), was got
entered only in the names of the appellants by excluding the shares of female legal
representatives of the predecessor vide mutation entry No. 404. The respondent No. 1 also
claimed in the suit, that apple gardens exist upon the suit properties whereas, the appellant
No. 2 used to receive average Rs. 300,000/ - every year from selling of the fruits of the
gardens. The share of respondent No. 1 in the sale proceeds of the
fruits was as sessed @ of Rs. 20192/ - per year. In the prayer clause,
the respondent No. 1 has sought declaration of joint ownership, possession through
partition, in respect of the suit property, insertion of the names of female legal
representatives in the revenue record of the suit property described in para No. 5 sub- para (a)
of the amended suit and all other properties of the predecessor and recovery of Rs. 121,152/ -
as income of share of gardens of the last six years and perpetual injunction.
3. The appellants and the respondent No. 5 submitted a common contesting written
statement. The respondents Nos. 2 and 3 submitted common contesting written statement, whereas the respondent No. 4, submitted a conceding written statement. On such pleadings,
the Trial Court fra med as many as five issues. The respondent No. 1, brought on record the
mutation entries Nos. 148 and 486 as Ex: P/1- 1 and Ex: P/1- 2, respectively and the impugned
mutation entry No. 404 as Ex: P/3- 1. The respondent No. 1 examined two oral witnesses as
PW-3 and PW -4 and finally through her husband/attorney, appeared on oath. The appellants
and the respondents Nos. 2, 3 and 5 examined two oral witnesses as DW -1 and DW -3 and
also bring on record the impugned mutation entry as Ex: D/1 and finally appeared on oath through attorney, the appellant No. 2. On conclusion of the trial, the Trial Court decreed the
suit, however, the recovery of Rs. 121,152/ - was not granted vide impugned judgment and
decree.
4. We have heard Mr. Ajmal Khan Kakar, Advocate for the appellants and Mr. Mumtaz
Hanafi Baqri, Advocate for the respondents Nos. 1 to 4 and have gone through the record of the case. The respondent No. 1 has claimed that the portion of the legacy of the predecessor devolved upon all the legal representatives vi de mutations of inheritance Nos. 148 and 486,
however, the appellants are not ready to partition the suit properties. The respondent No. 1 also claimed, that vide impugned mutation entry, the names of the female legal representatives of the predecessor wer e not inserted and also demanded share in the income
of the sale proceeds of the apples of the gardens. The appellants defended that the shares of the female legal heirs, in respect of the suit properties bearing mutation Nos. 148 and 486, were satisfied i n the life time of the late predecessor by paying huge amounts to them. They
also defended that the late predecessor made an oral will regarding property of the impugned
mutation. According to the will, the late predecessor declared that the 1/4th portion ( ), after
partition with other share holders, would be given to his daughters (respondent Nos. 1 to 5) and his widow (appellant No. 1).
5. We have gone through the record and framed the following points for determination:
(i) whether the late predecessor of parties made an oral will?
(ii) whether the shares of the respondents in the suit properties were given in the life time of the predecessor in shape of cash amounts?
(iii) whether the Trial Court has rightly passed the impugned judgment and decree?
6. The burden of proof of the alleged oral will of the predecessor, was on the appellants.
They examined two oral witnesses as DW -1 and DW -3. The DW -1 deposed that one day,
Abdul Hadi came and disclosed that the late Pir Muhammad had told him that he has given
the shares of daughters in the ancestral properties in the form of cash and jewelries and his daughters would have share in the forth Band. The statement of DW -1, is inadmissible under
Article 71, the Qanun -e-Shahadat Order 10, 1984 ("Q.S.O"), as the same is hearsay.
According to Article 71, the Q.S.O, oral evidence must, in all cases, be direct. Where it refers to a fact which could be heard, it must be proved by the evidence of a person who says
he himself heard it. Therefore, the statement of DW- 1 is si mply inadmissible regarding proof
of oral will of the predecessor. Since, the said Abdul Hadi appeared as DW -3, therefore, his
statement does not fall within the statutory exception of hearsay evidence as prescribed by
Article 46, the Q.S.O. The DW -1 also, appears to be an interested witness. He during his
cross -examination has stated as under:
"1. It is correct that property dispute is pending between us and the husband of the
plaintiff."
"2. It is correct that criminal cases are pending before competent Courts between the son of plaintiff namely Muhammad Abid and his brother Nazir Ahmed."
Hence, the cross -examination of the DW -1 transpires his partiality towards the
appellants, which is, therefore, not admissible for the purpose of proof of ora l will.
Abdul Hadi appeared as DW- 3 and deposed that the late predecessor, Haji Pir
Muhammad made an oral will, that in the four Bands, he has 1/3rd share, which would be of
my daughters. During his cross -examination, the DW -3 stated as under:
"3. It is c orrect that in 1981, my age was 12/13 years."
"4. Pir Muhammad died in 1982."
The DW- 3 in his examination in chief has not stated that where and before whom, the
oral will was made by the predecessor. The attorney of the appellants' i.e. appellant No. 2 appeared on oath but he has not stated that their predecessor made an oral will in presence of
the DW- 3. The statement of DW -3 and his tender age, are quite improbable regarding proof
of the said oral will of the predecessor. The statement of the attorney of the appellants, being a self serving statement, is not admissible for proof of the alleged oral will. So far as, the stance of the respondents Nos. 2, 3 and 5, regarding, admission of will of the predecessor is
concerned, they have not preferred an appeal against the impugned judgment and decree of the Trial Court. The Trial Court has held that the oral will has not been proved. The respondents Nos. 2, 3 and 5, have not preferred an appeal from the impugned judgment and decree of the Trial Court, therefor e, they have conceded that their predecessor had not made
any oral will. Hence, the first point for determination is decided in negative.
7. The burden of proof of the second point for determination, was on the appellants.
They failed to prove that the res pondents were paid their shares in the form of cash and
jewelries by the late predecessor. They produced DW -1 and DW -3; however, both have not
uttered a single word regarding satisfaction of the shares of the respondents in the form of cash and jewelries. They only referred to an oral will of the predecessor. During their cross -
examination, they supported the version of the respondent No. 1, that is to say:
Cross -examination of DW -1:
"13. It is correct that the property of Pir Muhammad has not been partitioned between his heirs."
"19. It is correct that Bibi Rahima is entitled for her sharee share in the property of her father."
Cross -examination of DW -3:
"17. It is correct that the property of Pir Muhammad has not been partitioned between his
successors."
Hence, it is proved that the respondents have not been given their shares in the suit
properties by the appellants. The cross -examination of the attorney of the appellants also
supports the case of the respondent No. 1. The relevant is reproduced hereunder:
"18. I do not know that Pir Muhammad had not given cash or jewelry to any of his daughters in alternate for the property."
"20. It is correct that in four Bandat of mutation No. 404, one Band is in their possession, whereupon a garden exists of which he used to administer and receive sale proceeds of the fruits."
"22. It is correct that I do pay share to Bibi Rahima in the income of the garden. vol: stated that he pays her as a sister."
"24. It is correct that the partition of the property has not effected between the heirs of Pir Muhammad."
Hence, it has been proved that the daughters of the predecessor had not received their
shares in the life time of the late predecessor. Apart from the above, anything given by a father to his daughter in his life, at the most may be considered as a gift because, right in the legacy of a deceased accrues at his death. The expected share of a presumptive legal heir, given, by a predecessor in his life, would not deprive his said legal heir from ge tting share in
the legacy of his predecessor in view of the doctrine of spes successions as embodied by para No. 54, the Muhammadan Law and section 6(a), the Transfer of Property Act, 1882. The right of an heir apparent comes into evidence for the first ti me on the death of the ancestor
and is not entitled until then to any interest in the property to which he would succeed as an heir if he survives the ancestor. Reliance is placed on the case of Mst. Hameeda Begum v. Mst. Murad Begum and others reported in PLD 1975 SC 624. Hence, the second point of
determination is decided in negative.
8. We have gone through the impugned judgment which is well reasoned; therefore, the
same does not warrant interference by this Court.
Resultantly, the impugned judgment an d decree is upheld and the appeal is dismissed.
SA/34/Bal. Appeal 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,
let us know.