2003 PLP 898 (MLD)

JAWWAD S. KHAWAJA, J.

This appeal impugns the preliminary decree dated 10-10-2000 passed by the learned Civil Court at Lahore.

2. The facts of this case are straightforward. One Muhammad Ahmed Butt was the owner of Property No.27-B, New Muslim Town, Lahore comprising of land measuring 2 Kanals, 9 Marlas 76 sq. ft. together with a residential house constructed thereon. The appellant Mst. Farida Khatoon is the widow of Mahmood Ahmed Butt. Respondent No. 1 is the brother of Mahmood Ahmed Butt while the remaining four respondents are his sisters.

3. Mahmood Ahmed Butt died issueless on 18-5-1989. As a result his widow named above and the respondents- are his legal heirs entitled to inherit his estate in accordance with the Islamic Law of Inheritance. The respondents filed a suit seeking administration of the estate of Mahmood Ahmed Butt and also seeking rendition of accounts. It was among other things alleged in the plaint that Mst. Farida Khatoon widow of Mahmood Ahmed Butt had taken over exclusive possession of the properties owned by Mahmood Ahmed Butt and was enjoying the usufruct of the same to the exclusion of the plaintiffs/respondents. The suit was resisted by Mst. Farida Khatoon, who filed a written statement. On the basis of the pleadings of the parties, the learned trial Court framed the following issues: (1) Whether Mahmood Ahmed Butt deceased was owner of the suit properties mentioned in para. No.2 of the plaint at the time of his death? (2) Whether Mahmood Ahmed Butt was Sunni or Shia by faith? OP Parties. (3) Whether the plaintiffs have got no locus standi to bring this suit? OPD. (4) Whether the plaintiffs are entitled to get any share in the suit properties, if so, what are their legal shares? OPD. (5) Whether the plaintiffs are entitled to get decree for mesne profit, if so, to what extent? OPD. (6) Relief.

4. Before us, learned counsel for the appellants confined his arguments to Issues Nos. 1 and

5. In this behalf also he limited his arguments to the above-referred Property No.27-B, New Muslim Town, Lahore. It was his contention that the said property had been conveyed in its entirety by Mahmood Ahmed Butt in favour of his wife Mst. Farida Khatoon. In support of this submission, he firstly, referred to a Hibanama dated 7-3-1989 (Exh.D.2), whereby one-half of the said property was conveyed by way of gift to Mst. Farida Khatoon (appellant/defendant). We have examined the Hibanama. It is duly stamped and has also been registered under the provisions of the Registration Act with the Sub-Registrar, Model Town, Lahore. We therefore, find that the late Mahmood Ahmed Butt had divested himself of title in one-half of the aforesaid property and had conveyed the same to Mst. Farida Khatoon inter vivos. As such Mst. Farida Khatoon is the owner of the one-half gifted to her. The respondents, therefore, cannot have any claim in respect of the said one-half of the above-referred property. This position was not contested by learned counsel for the respondents. It was also pointed out that vide statement dated 16-5-1992 learned counsel for the respondents had admitted the fact that one-half of the property had been gifted to Mst. Farida Khatoon and title therein stood vested in her.

5. Learned counsel for the appellant then contended that even the other half of the above property stood vested in the appellant. This submission was made on the basis that Mahmood Ahmed Butt had executed and registered another instrument, which though termed as Wasiyatnama, in actual fact constituted a gift in favour of Mst. Farida Khatoon. We have examined the said document, which is executed on Rs.10 stamp paper and has been registered with the Sub-Registrar, Model Town, Lahore. The contents of the said Wasiyatnama clearly show that it cannot, by any stretch of reasoning, be construed as a gift in favour of Mst. Farida Khatoon. It is obviously and clearly meant to operate after the death of Mahmood Ahmed Butt and does not convey any right, title or interest in favour of Mst. Farida Khatoon inter vivos.

6. Learned counsel referred to portion of the said document appearing at page 2 thereof, which reads as under:-- Based on the above contents of the Wasiyatnama, learned counsel for the appellant firstly contended that it was possible for a Muslim to create a Will of the usufruct of any immovable property and if this was done the other conditions applicable to Wills would not apply to such Will. In support of this contention, he referred to the law encapsulated in section 249 of the Book titled 'A Code of Muslim Personal Law' compiled by Dr. Tanzil-ur-Rehman, This said section 249 is reproduced as under:-- "

249. A Will made regarding usufructs permanently or for a fixed period, shall be valid."

7. There is nothing in the aforesaid text, which can even remotely suggest that the restrictions otherwise applicable to Wills will not apply in the case of a Will of the usufruct of immovable property.

8. Learned counsel for the appellant next referred to the case titled Abdul Hameed and 23 others v. Muhammad Mohiyddin Siddiqui Raja and 3 others (PLD 1997 SC 730). We have gone through the said precedent and note that it is hardly applicable to the circumstances of the present case. Firstly we note that the cited precedent does not pertain to a Muslim Will at all. It only holds that a condition attaching to a girt made by a Muslim donor is not operative and the donee takes the gift without the condition attached to it. The said precedent, therefore, does not advance the case of the appellant in any manner.

9. Finally, it was argued by learned counsel that Issue No.5 has been decided by the learned trial Court in favour of the respondents/plaintiffs, who have been held entitled to 3/4th of the mesne profit of the property of Mahmood Ahmed Butt mentioned in the Wasiyatnama. This finding has been given even though, according to the learned trial Court itself, the plaintiffs/respondents have not produced any evidence to support their claim. This contention does appear to be well founded and is apparent from the impugned judgment also. The finding of the learned trial Court on Issue No.5 is, therefore, reversed.

10. The result of the above discussion is that the finding of the learned trial Court on Issue No.1 is upheld. However, the appeal succeeds partially, as we have reversed the finding of the learned trial Court on Issue No.5. H.B.T./F-149/L Order accordingly.