P L D 1993 Peshawar 200 (PLP)

(9) Whether the suit of the plaintiffs is ambiguous? (10) Whether the rights of defendant No.9 are protected under section 41 of T.P. Act? if so, its effect. (11) Whether the plaintiffs are entitled to the decree for declaration as prayed for? (12) Whether the plaintiffs are entitled to the decree for possession as prayed? (13) Relief. On the above issues parties led their evidence. The learned Civil Judge, Kohat, in the light of the evidence and arguments addressed before him decided issue No‑11 against the plaintiffs‑respondents. He was of the view that Sadullah Khan during his lifetime gifted the property to defendants 1 to

8. Plaintiffs were held not entitled to decree prayed for and issue No.12 was decided against them. Defendant No.9 was the bona tide purchaser from the real owner and was thus protected under section 41 of the Transfer of Property Act. Issue No‑10 was decided in his favour. Issues Nos.3, 4, 6 to 9 were not pressed and as such were not discussed. Issue No.5 was decided against the defendant‑petitioners. The plaintiffs' suit was held within time and issue No.2 was decided in their favour. In view of his findings on issue No.11 the plaintiffs had no cause of action and issue No.l was decided against them. Consequently, vide judgment and decree, dated 20‑1‑1990, the plaintiffs‑respondents' suit was dismissed.

3. Dissatisfied with the judgment and decree of the trial Court, the plaintiffs preferred an appeal before the learned Additional District Judge, Kohat who vide judgment and decree, dated 15‑9‑1991 set aside the judgment and decree of the lower Court and granted the decree to the extent of 1/3rd share in the suit property to the plaintiff‑respondents herein and dismissed their remaining claim. The defendant‑petitioners were held entitled to 1/3rd of the property as bequeathed to them by Sadullah Khan while the 'remaining 2/3rd was jointly owned by the parties as heirs of Sadullah Khan.

4. The defendant‑petitioners have now come in revision to this Court challenging the judgment and decree, dated 15‑9‑1991 of the learned Additional District Judge, Kohat declaring plaintiff‑respondents as owners of 1/3rd share in the suit land.

5. Haji Muhammad Zahir Shah, Advocate, for the defendant‑petitioners contended that Saadullah Khan predecessor‑in‑interest' of the parties had in fact gifted the suit property and the Courts below were mistaken in their view that he had bequeathed the property vide deeds Exh.D.W.l/2, Exh. D.W.1/3 and Exh.D.W.l/5. He, therefore, contended that trial Court had rightly dismissed the suit of the plaintiffs‑respondents.

6. Mian M. Younis Shah, Advocate for the plaintiff‑respondents, in reply, said that when defendant‑petitioners in the written statement as well as in their evidence had all along taken the plea that Saadullah Khan had bequeathed the property to them, they cannot be allowed to take a different plea that the property was gifted to them. The learned counsel was of the view that under Muslim Law, a will to the heir cannot be made without the consent of the other heirs. The learned counsel also referred to his cross‑objection No.3/92 and argued that although the provision of Order XLI, Rule 2, C.P.C. is not applicable to revision, but in view of the reported cases, the High Court can entertain questions raised by the respondents. AIR 1960 Jammu and Kashmir 22 was referred. The learned counsel contended that the appellate Court committed illegality in granting the decree to the extent of 1/3rd share to the plaintiff‑respondents and the appeal should have been accepted as a whole as no will under the Muslim Law could be made without the consent of the other heirs. He therefore prayed that the judgment of the appellate Court may be modified and the plaintiffs be granted (heir legal share in the disputed property.

7. Before I proceed to discuss the issues involved in the revision and cross‑objections, I deem it necessary to reproduce the relevant portion of the impugned judgment hereunder:‑‑ "Yet in view of section 118 of the Muslim Personal Law (Muhammadan Law), a Muhammadan cannot by will dispose of more than the third of the surplus of his estate after payment of funeral expenses and that bequest of excess of the aforesaid 1/3rd cannot take effect unless the heirs consent thereto after the death of testator. In view of the aforesaid section of law, the plaintiffs‑appellants even have denied the very existence of the will deeds executed by Saadullah Khan deceased in favour of defendants/respondents during his lifetime what to talk of its consent by them so far its operation after his death is concerned. Therefore, in view of record and evidence produced from both the sides and law on the subject it is but obvious that the will deeds are properly executed by the deceased during his lifetime in favour of the defendant‑respondents and therefore, can operate against the rights of the plaintiffs‑appellants yet the aforesaid testamentary power is controlled by the law to the extent of 1/3rd share. Therefore, defendant‑respondents are entitled to the 1/3rd share of the property owned by the deceased during his life‑time while the remaining 2/3rd share of property of deceased still is jointly owned by the plaintiff‑appellants and by defendant‑respondents, in the absence of any express consent to the operation of will deeds by the plaintiffs‑appellants. As a result of the foregoing discussion, I find substance in the present appeal and am of the opinion that the learned lower Court has fallen into error by not appreciating the evidence brought before him and law on the subject. Therefore, I accept this appeal and set aside the impugned judgment and grant the decree to the extent of 1/3rd share in the suit property in favour of the plaintiff‑appellants while dismiss their . claim with regard to the remaining claim because the defendants/respondents have become the owners of 1/3rd share at the strength of the will deeds while have become owners of 1/3rd share at the strength of inheritance. There shall be no order as to costs." From the above it will be seen that the appellate Court has validated the will in favour of heirs. This question can be resolved in the light of injunctions of Qur'an and Sunnah. Sura Albaqra‑verses 180 to 182 makes it obligatory to make a will in favour of parents and relatives, but when the shares of a Muslim‑law heir were prescribed in Sura AI‑Nisa, the Holy Prophet (p.b.u.h.) said that after the shares of inheritance were prescribed no body could transfer his property by way of will in favour of the heirs and will could not be made of more than 1/3rd share. It would be of advantage to reproduce the text of the interpretation of the above verses as given in Tafheemul Qur'an by Abul A'ala Maudoodi;

8. The principles of Muhammadan Law by D.F. Mulla and Hedaya by Charles Hamilton based on sources of Muslim Law also provide guidance to us. Para. 118 of the Principles of Muhammadan Law reads as under:‑‑‑ "Limit of testamentary power.‑‑‑A Mahomedan 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 testator." In Book LII of the Hedaya by Charles Hamilton, it is laid down: (i) A bequest of any amount exceeding the third of the testator's property is not valid. (2) Where a person makes a will in favour of part of his heirs, the same rule holds as in the case of bequeathing more than a third to a stranger, in other words, the deed is not valid, unless the other heirs give their consent to the disposition after the death of the testator and their consent previous to his death will have no effect."

9. In the light of the above injunctions and provisions we can say that Saadullah Khan could not bequeath the property to his heirs in his lifetime and when other heirs had not consented to the bequest that is not valid under the Muslim Law. Notwithstanding the fact that the revision by the defendants petitioners has been filed against the judgment and decree, dated 18‑9‑1991 of the learned Additional District, Judge, Kohat, I allowed the learned counsel for the plaintiff‑respondents to raise the question as to whether under Islamic Law will could be made to an heir as it was the moot point wrongly decided by the appellate Court. The High Court in revision has the power to correct the findings under section 115, C.P.C. in AIR 1960 (J&K) 22; it is held that: "No doubt, Rule 22 under which a memorandum of objections can be preferred by a respondent in an appeal does not extend to revision petition. But the High Court has sufficient powers, when it is seized of a competent revision and when all the parties are before it, to entertain questions which may be raised by the respondent and deal with these questions as it thinks fit. But in order to succeed, the respondent is bound to show that the grounds on which he attacks the findings of the trial Court fall within the purview of section 115 of the Code of Civil Procedure. This requirement applies to him as much as it applies to the petitioner."

10. The dispute between the parties is with respect to the suit property owned by late Saadullah Khan. Saadullah Khan had two wives. Mst. Bilqees Begum and Mst. Sofia Begum. The plaintiff‑respondents are the issues from his first. wife Mst. Bilqees Begum while defendant‑petitioners are the issues from his second wife Mst. Sofia Begum. The defendant‑petitioners claim the suit property on the basis of will deeds dated 13‑6‑1980, 13‑11‑1980 Exh. D.W.1/3 and Exh.D.W.1/5 whereas the plaintiff‑respondents disputed their claim. The trial Court accepted the claim of the defendant‑respondents and dismissed the plaintiff‑petitioners' suit. The appellate Court modified the judgment and decree of the trial Court on the ground that will deeds to the extent of 1/3rd share could only be effective and decreed the suit to that extent. Now, the question for determination would be whether the deeds Exh.D.W.l/2, Exh.D.W.1/3 and Exh.D.W.l/5 are the gift deeds as held by the trial Court and argued by the learned counsel for the defendant‑petitioners and secondly whether Saadullah Khan could bequeath the property in favour of his heirs without the consent of the other heirs. In so far as the first part of the question is concerned, it is pertinent to note that defendant‑petitioners have throughout the proceedings claimed the suit property as having been bequeathed to them by Saadullah Khan and never claimed it as donees. The contention of the learned counsel for the defendant‑petitioners is devoid of force that the land was gifted to them. The parties to the suit cannot be allowed to raise the plea which they had not raised in the pleadings. In so far as the second part of the question is concerned, that has been discussed and answered in the foregoing paragraphs.

11. As a result of the discussion made above, Revision No.445/91 is dismissed and while accepting cross objection No. 3/92, the judgment and decree dated 15‑9‑1991 of the appellate Court is modified to the extent that the plaintiff‑respondents are also entitled to their legal share in the remaining of 1/3rd of the disputed property. The parties are, however, left to bear their own costs. A.A./1483/P Order accordingly,