P L D 1966 (W (PLP)

Akbar=Mst. Sadiq Kaniz Mehr Bibi Bakhat Bakht Bano | Fiza Defendant Begum Defendant | Defendant No. 5 Defendant No. 3 | No. 4 No. 6 | | |

| Ata Shabir Hafizullah | Plaintiff No. 1 Plaintiff No. 2 |

Zebun Nisa Muhammad Tufail Defendant No. 2 Defendant No. 1 Subah Sadiq had pre‑deceased his father Allahdad. The latter, who was admittedly a Shia and governed by Shia Law, owned 2,365 Kanals and 3 Marlas of land. By a will dated the 10th of June 1954, which was registered on the 12th of July 1954, Allahdad, bequeathed the whole of his landed property in favour of his son Ghulam Akbar and his grandsons, Ata Shabir and Hafizullah. The will (copy Exh. P. 1) recites that the female heirs of the testator (Allahdad) had taken away considerable property from him of different kind and were disobedient and disloyal. He was for this reason bequeathing the whole of his agricultural and residential property to Ghulam Akbar, Ata Shabir and Hafizullah. It seems that Ghulam Akbar himself had presented this document for registration It may be noted here that the will does not give any specified shares to any of the legatees but gives the whole of the landed property collectively to all three of them. The suit of Ata Shabir and Hafizullah was dismissed by the learned trial Judge (Civil judge 2nd Class, Campbellpur) on the ground that the will exceeded one‑third share of the property of the deceased testator and, therefore, it was void in its entirety. It was observed that according to Shia Law a testator may leave a legacy to an heir to the extent of one‑third which would be valid even if the other heirs do not give their consent to it. Ghulam Akbar was admittedly an heir of the testator and the other two legatees were non‑heirs, being the sons of a pre‑deceased son of the testator and the will in their favour was void as a whole as it exceeded one‑third of the estate of the testator. The finding described above which resulted in the dismissal of the suit related to issue No. 1, struck in the case, namely, whether Allahdad executed a valid will in favour of Ghulam Akbar and the plaintiffs. The only other issues which need to be mentioned are issues Nos. 4 and 5, namely:‑

(4) Are the plaintiffs entitled to inherit 2/7th share from the estate of Allahdad Khan, if the will is not proved? (5) Whether Ghulam Akbar was the only person to inherit under the will as first‑named legatee?

2. Issue No. 4 was also decided against the plaintiffs. On this issue, reliance was placed by the plaintiffs on section 4 of Ordinance VIII of 1961 which enabled a son of a pre‑deceased son to inherit his due share on the death of his grandfather, but the plaintiffs could not make use of it as the Ordinance was promulgated after the death of Allahdad and the Ordinance had not been given retrospective operation. The finding on issue No. 5 was adverse to the defendants which was that Ghulam Akbar or his descendants could not derive benefit from the will in spite of his being the first‑named legatee.

3. Ata Shabir and Hafizullah went in appeal against the order of the Civil Judge to the District Judge, Campbellpur. Mst. Zebun Nisa or any other heir' of Ghulam Akbar did not prefer an appeal against the judgment of the trial Judge. The District Judge, by his order dated the 1st of December 1961, affirmed the findings as given by the trial Court on all the issues and dismissed the appeal.

4. Two second appeals have been preferred against this order, as already stated above, and the first question which has been canvassed at the Bar and which requires determination is whether the appeal filed by Mst. Zebun Nisa, who had not challenged the judgment and decree of the trial Court before the learned District Judge, is competent. The learned counsel for Ata Shabir and Hafiz Ullah argued that as Mst. Zebun Nisa had not filed an appeal in the lower appellate Court, her second appeal is not competent. This objection is met by a reference to the provisions of subsection (2) of section 100 of the Code of Civil Procedure, which reads as follows:‑

"An appeal may lie under this section from an appellate decree passed ex parte." It is contended that Mst. Zebun Nisa had not appeared in the appellate proceedings before the learned District Judge and the dismissal of the appeal of Ata Shabir and Hafizullah ended in an ex parte decree against her also, as it was against her interests, issue No. 5 having been decided against her and the other heirs of Ghulam Akbar on the finding that Ghulam Akbar was not entitled to any part of the property under the will even as a first-named legatee. On the wording of subsection (2) of section 100, we feel that the second appeal of Mst. Zebun Nisa is competent. But, apart from this provision, we find that the appellate Court has ample powers under Order XLI, rule 33, C. P. Code, to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Mst. Zebun Nisa could also invoke this provision for reversing the finding of the Courts below on issue No. 4 and we can give this relief to her if we felt it was justified.

5. The learned counsel for the appellant Mst. Zebun Nisa argued before us that under a rule of interpretation of Muhammadan Law in respect of wills, as noted at page 246 of Baillie's Digest of Muhammadan Law, Part Second, where a legacy is bequeathed to several persons absolutely, it is to be construed as divisible equally among them. On the basis of this, it is argued that the property bequeathed in this case would be divisible equally between the three legatees, with the result that each one of them will get one‑third of the property. It is further argued on the basis of paragraph 117 of Mulla's Muhammadan Law, at page 124, under the caption "Shia Law", that according to the Shia Law, a testator may leave a legacy to an heir so long as it does not exceed one‑third of his estate. Such a legacy is valid without the consent of the other heirs; but if the legacy exceeds one‑third, it is not valid unless the other heirs give consent thereto. Such consent may be given either before or after the death of the testator. Under the Sunni Law, a bequest to an heir is not valid at all to any extent unless the other heirs consent to the bequest after the death of the testator, but a will can be made in favour of a non‑heir to the extent of one‑third, which is the limit of the testamentary power of a Muslim under the Muslim Law. Bequest in excess of the legal one‑third cannot take effect unless the heirs consent thereto after the death of the testator. There is a rule of rateable abatement of legacies under the Sunni Law which means that if the bequest exceeds the legal one‑third and the heirs refuse their consent, the bequest abates rateably; but the Shia Law does not recognize the principle of rateable distribution. It is urged that under the Shia Law if a testator bequeaths one‑third of his estate to one person, one‑fourth to another and one‑sixth to yet another and the heirs refuse to confirm the bequest, the legatee first‑named would take one‑third and the rest would get nothing. But if instead of one‑third, one‑twelfth is bequeathed to one person, one‑fourth to another and one‑sixth to a third person, the first named would get one‑twelfth, the second one‑fourth but the third would get nothing because the legal one‑third is exhausted between the first two.

6. The present is a case of a composite will in favour of an heir and non‑heirs of the whole of the property of the testator without the consent of the other heirs. The will has therefore, to be struck down as void in its entirety. The principle of the first‑named legatee getting the property to the extent of one‑third as his divisible share, in our view, applies to a case where a valid will is created in favour of more than one person and where if the disposition exceeds one‑third, the respective shares of the different legatees are specified. In the present case, the bequest covers the whole of the property of the testator without any specification of shares. The principal thing in the interpretation of a document, including a will, is to gather the intention of the author. It could not possibly have been the intention of the testator in this case that under his will any of his legatees should get any share to the exclusion of the other. In other words, it was a case of the collective disposition by him in favour of his three legatees, and the integrity of the will cannot be broken to uphold the disposition of the legal one‑third in favour of the first‑named legatees. If the will could be upheld to the extent of one‑third, that one‑third must be shared equally between all the legatees, but as unfortunately the will is void as a whole, the testator having exceeded his legal bounds, no effect can be given to it. The result is that we uphold the judgments and decrees of the Courts below and dismiss both the appeals. In view of the complicated nature of the question involved we direct that the parties should bear their own costs. S. A. H./S. Q. Appeal dismissed.