P L D 2003 Quetta 53 (PLP)

(iv) Restraining the defendants permanently not to interfere into 1/3rd share of the plaintiff, in the property left behind by her father in any manner whatsoever. (v) Any other relief deemed fit and proper in the circumstances of the case may also be awarded. (vi) The costs of the suit may also be granted. "

3. The suit filed by petitioner was contested by the respondents by filing of written statement leading to following issues:-- "(i) Whether the suit is properly valued for the purpose of jurisdiction and court-fee? If not what be its value? (ii) Whether the suit is not maintainable in its present form in view of P.Os 1 to 4 of Ws.? (iii) Whether the defendants Nos.3 to 5 are also legal heirs of late Muhammad Hassan? If so, to what extent? (iv) Whether late Muhammad Hassan, has left a will dated 15-2-1992. If so, what is its effect? (v) Whether the plaintiff is entitled to the relief claimed? (vi) Relief?"

4. Both the parties in support of their respective claims produced evidence on which the suit was decreed by Senior Civil Judge, Sibi in favour of petitioner against which appeal was filed by the respondents which too was decided in favour of petitioner by Additional District Judge, Sibi, vide judgement dated 14-12-1999, which was challenged before this Court by means of Revision No.(S)5/2000. The revision was disposed of setting aside the Judgment of Additional District Judge, Sibi and appeal was remanded for re-writing of judgment after assessment of evidence/material available on the record and hearing the parties as soon as possible within 2 months. The learned Additional District Judge, Sibi, thereafter disposed of the appeal vide judgment dated 18-9-2001 (impugned) whereby the judgment and decree dated 11-8-1999 passed by Senior Civil Judge, Sibi, was set aside and the suit of plaintiff/petitioner was dismissed.

5. The learned counsel for petitioner Mr. Ikhtiar Khan, contended that Additional District Judge, Sibi, failed to appreciate the evidence available on the record and reached the conclusion which is contrary to fact and law. The will which has been made basis for refusing the claim of petitioner/plaintiff is not enforceable by law, therefore, the judgment of Additional District Judge, Sibi, being bad in law is stated to, be not sustainable.

6. On the other hand the learned counsel Mr. Hamayun Tareen, Advocate for the respondents contended that the judgment of Additional District Judge, Sibi, is well-reasoned and all the issues have been attended, therefore, there exists no ground to interfere in the same.

7. The submissions made by the parties considered and the record of the case examined. There is no dispute between the parties that petitioner alongwith respondent No. 1 and No.2 being daughters of late Muhammad Hassan, are his legal heirs. It is also not disputed that late Muhammad Hassan, left behind properties hereinabove mentioned. Petitioner being one of the legal heirs of Muhammad Hassan claimed her share in properties left by late Muhammad Hassan. Her claim was denied by the respondents on the basis that late Muhammad Hassan, executed will dated 15-2-1992 whereby the properties were bequeathed to respondent/defendant No. 1 and after her death the properties are to devolve on respondents/defendants No.3 to No .5 who are the nephews of late Muhammad Hassan. The will is available on record as Exh.D/1. The relevant clauses of the same relating to the properties subject of suit/petition read as under:--

8. The bare reading of the above will shows that late Muhammad Hassan, bequeathed his movable and immovable properties to his daughter Mst. Mai Shahzadi i.e. respondent/defendant No. 1 with condition that she will be entitled for the income of the properties only during her lifetime, whereafter, his nephews Allah Dina, Imam Bakhsh and Raza Muhammad, i.e. respondents/defendants No.2 to No.5 are to acquire the ownership of the whole of the properties.

9. Mahomedan Law by Mulla in para. 117 states about bequest to heirs which is reproduced hereinbelow:-- "Bequests to heirs.--A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator (1) Any single heir may consent so as to bind his own share (m)."

10. In view of above-referred para. the bequest to heir is not valid unless the other heir consent to the bequest, whereas, any single heir may consent so as to bind her own share. Petitioner by filing suit expressed her non-acceptance of the will whereas the respondents/defendants contended that the will was made with the consent of the petitioner/plaintiff and she had been acting as per will after death of Muhammad Hassan, therefore, she is estopped to challenge the same. The contention of respondents/defendants regarding consent of petitioner/plaintiff totally rest on the statement of the attorney for the respondents/defendants whereas, D.W.1 Syed Anwar Shah, who claimed that the draft of the will was prepared by him on the instance of Muhammad Hassan and he purchased the stamp on which the will was written does not support the statement of the ` attorney for respondents/defendants regarding presence o-f petitioner/plaintiff and respondents/defendants No.1 and No.2 at the time of execution of the will, only respondent No.3 is stated to be present there. Hence, the contention of the attorney for the respondents /defendants that at the time of execution of the Will all the three daughters of Muhammad Hassan were present and the Will was written by their consent is found to be without any support, rather the statement of D.W.3 contradicted the said contention. Hence, there was no evidence whatsoever on the record to show that petitioner/plaintiff ever consented to the bequest expressly or even impliedly either at the time of execution of will or, after the death of her father, whereas, validity of Will in favour of heir is subject to the consent of other heirs and bequest has been held to be void in absence of assent of all legal heirs after death of the testator as it has been held in 1997 CLC 2012 and 2000 YLR 2937. In the last-mentioned judgment the Hon'ble Judge of Lahore High Court has observed as under:-- "Under the Muslim Law a Will cannot be made validly in favour of a heir unless and until the other heirs consent to the same. Both at the time of making of Will and also after the death of testator."

11. Hence, in absence of any evidence regarding assent of petitioner either at the time of execution of Will or even after death of testator Muhammad Hassan, the Will cannot be declared as valid. Therefore, finding of Additional District Judge, Sibi, that since the time of writing of the will till filing of the suit the petitioner/plaintiff did not agitate her claim meaning that she acted upon the said Will, is found to be based on mis-appreciation of the evidence, the same hence cannot be sustained.

12. Further para. 126 Mahomedan Law by Mulla bars conditional bequest in the following terms:-- "Conditional bequest.--A bequest with a condition which derogates from the completeness of the grant takes effect as if no condition was attached to it, for the condition is void."

13. The Will hereinabove referred is found to be conditional which derogates from the completeness of grant as Mst. Shahzadi, was not made absolute owner of the properties. She was allowed only to receive the proceeds/income of the properties only during her lifetime whereafter the properties are to devolve on respondents No.3 to No.5. The bequest with stated condition does not make respondent No. 1 owner of the properties even during her lifetime, therefore, with such condition the bequest cannot be considered to be bequest of property at all, therefore, removal of condition is essential to complete the grant of Will in view of para. 126 of Mahomedan Law by Mulla, the bequest is to be considered as if no condition was attached to it. Respondent No.1 is the beneficiary of the Will, respondent No.2 is also sister of petitioner but she raised no objection to the bequest in favour of respondent No.1, she rather consented to the same therefore, she bound herself to the bequest of her share in favour of respondent No.1, in the properties left by her father.

14. Respondent No.3 to No.5 also claimed to be heir of late Muhammad Hassan which has been accepted by petitioner as her attorney produced Exh.P/2 which specifies the shares of the heirs of late Muhammad Hassan, which includes his nephews i.e. respondent No.3 to No.5 as late Muhammad Hassan had no son; respondent No.3 to No.5 accepted the Will hence they are found to have consented to the same and by their consent they bound themselves to the bequest of their shares in favour of respondent No.1 in the properties left by late Muhammad Hassan, Thus after removal of condition attached to the bequest the properties of late Muhammad Hassan,, except the share of petitioner is found to be bequeathed to respondent No. 1 through the Will dated 15-2-1992 while the petitioner is entitled to receive her share.

15. The respondents/defendants raised objection regarding valuation of the suit but no evidence whatsoever was produced by the respondents/defendants in said behalf. So much so that the attorney for the respondents/defendants also remained mum regarding valuation of the properties which reflect that the respondents had abandoned the said objection but the Additional District Judge, Sibi made observation going beyond the evidence available on record. While there was no substance even to allow presumption in said behalf, thus the findings of Additional District Judge, Sibi in said behalf being erroneous is liable to be set aside.

16. In view of above discussion the bequest by late Muhammad Hassan, to her daughter Mst. Shahzadi, to the extent of petitioner is found to be not enforceable under the law, thus she is entitled to receive her share in the properties left by her father. Therefore, the judgment and decree dated 18-9-2001 passed by Additional District Judge, Sibi, being in violation of law is set aside. However, as the petitioner herself produced Exh.P/2 whereby she alongwith respondents are shown to have inherited the properties left by late Muhammad Hassan and her share has been specified alongwith share of other heirs including respondent No.3 to No.5. thereby reducing her share from 1/3rd to 1/4th. Therefore, the petitioner is found to be entitled to receive 1/4th share in the properties left by her father late Muhammad Hassan. Resultantly the judgment and decree dated 11-8-1999 passed by Senior Civil Judge, Sibi, is upheld with modification that the petitioner is entitled to inherit 1/4 share from the properties left by late Muhammad Hassan, with above modification in the judgment and Decree of Senior Civil Judge, Sibi, the petition is allowed with no order as to cost. M.B.A./142/Q Order accordingly.