1990 SCMR 72 (PLP)

Muhammad Munir Peracha, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Appellants. Hartz S. A. Rahman, Advocate Supreme Court and Manzoor Elahi, Advocate‑on‑Record for Respondents. Date of hearing: 31st May, 1989. ALI HUSSAIN QAZILBASH, J.‑‑This is an appeal by leave against the judgment of a learned Single Judge of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 29‑4‑1987.

2. Land measuring 92 kanals 2 marlas bearing Khasra Nos. 124‑min west, 1638/131‑min west, 132‑min west, 1638‑1‑min east, 132‑(nin east, 2477/128, 124 min east, situate in the area of village Akwal, Tehsil Talagang, was owned by Noor Khan, the last male‑holder, who died issueless. On his death, the property was mutated in favour of his widow Mst. Badshahan on 31‑3‑1928. Mst. Badshahan died in November, 1957 and treating her as limited estate‑holder, mutation No. 3573 was attested on 20‑8‑1958 allotting 1/4 share to her which was further divided between her sons Muhammad Bakhsh and Muzaffar. The remaining 3/4 share was divided equally between Mst. Saidan Bano and Ghulam Muhammad as heirs of the last male‑holder. The above mutation was challenged by Muhammad Bakhsh through Suit No. 424/211/79 on 29‑9‑1958 alleging that he was entitled to the entire estate of Noor Khan as the same had been bequeathed to him by means of a will dated 1st January, 1927. Another suit bearing No. 595/1958 was also brought by Allah Yar, Ghulam Muhammad, Muzaffar, Muhammad Khan and Jangli who claimed to be the Mohammadan law heirs of the last male‑holder. They claimed 1/2 share out of the entire estate left by Noor Khan.

3. Both the suits were consolidated and the proceedings were taken in suit No.424/211/79. The pleadings of the parties resulted in the framing of as many as six issues. The issue which was contested between the parties was issue No. 2 which was to the effect: "Whether Nur Khan deceased in fact executed any will in favour of the plaintiff, if so, what was its effect?" The learned Civil Judge after recording the evidence dismissed the suit filed by Muhammad Bakhsh but decreed the one filed by Allah Yar and others, as per judgment and decree dated 27‑4‑1962. The appeal filed by Muhammad Bakhsh was accepted and the case remanded to the trial Court for opinion of the fingerprint expert about the thumb impression appearing on the will Ex. P.

1. The Court of the first instance then decided the case in favour of Muhammad Bakhsh and dismissed the suit of Allah Yar and others vide judgment dated 9th October, 1968. The appeal filed by Allah Yar and others was dismissed by the learned Additional District Judge, Campbellpur, on 14‑11‑1969 and their Regular Second Appeal was also dismissed by the learned Single Judge on 29‑4‑1987.

4. Leave in this case has been granted to consider the operation of section 3‑A of the Punjab Muslim Personal Law (Shariat) Application Act 1948 as amended by the Punjab Act XI of 1951 and that of section 2A of the West Pakistan Muslim Personal Law (Shariat) Application Act 1962 inserted by Muslim Personal Law (Shariat) Application Act (Amendment) Ordinance, 1983.

5. We have heard the learned counsel for the parties. The learned counsel for the appellants contended that the will provided for two legatees succeeding the testator's property one after the other. Mst. Badshahan, the first legatee, died in 1957 after the insertion of section 3A in the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act 1951. Thus by operation of law, the property left by the last male‑holder shall devolve on the heirs of the testator under the Shariat as they would have inherited the property had the testator died intestate. He further submitted that under the provision of section 2A of the West Pakistan Muslim Personal law Shariat) Application Act 1962, the last male‑holder was competent only to make a will of 1/3rd of his property, the remaining devolving on his Muslim law heirs. In support reliance was placed by him on Muhammad Akram v. Noor Ahmad (1989 S C M R 755).

6. The above contentions were hardly controverted by the learned counsel for the respondents and rightly too because the above propositions have correctly been propounded by the learned counsel for the appellants.

7. As a result the appeal is allowed to the extent that Muhammad Bakhsh (respondent No.l) will get 1/3rd of the property under the will and the rest 2/3rd of the property will devolve upon the heirs of Noor Khan, as provided for under the Shariat including, of course, Muhammad Bakhsh (respondent'1 No.1). A.A./G‑225/S Appeal accepted.