P L D 1957 (W (PLP)

AKHLAQUE HUSAIN, J.‑

This second appeal arises out of a suit by the respondent Ditta for possession of 3/4th share of the lands specified in the plaint. The following pedigree will be helpful in appreciating the controversy between the parties : | ________________________|________________________ | | | Mast Waris Gohar | | | Ditta | Boota plaintiff‑respondent 1 | | | Gulab | | | Muhammad Aslam | defendant 1‑ | Appellant, Saif Ali=Mst. Rakhi=Muhammad | Allah Ditta defendant 3= Respondent 3 The following facts were admitted by the parties counsel at the hearing of the appeal before me: Muhammad, who was possessed of some land, including that which is the subject- matter of the present suit died on the 12th of February 1948 and on his death all his property was mutated in the name of his widow Mst. Rakhi, who had a son Allah Ditta, defendant No. 3, from her former husband, Saif Ali. Rakhi made a will on the 10th of May 1949 whereby she gave, out of Muhammad's property in her possession, Khasra Nos. 491, 492, 493 and 707/ 612 and 3/9th share of Khasra No. 285, situate in Mohra Hans, Tehsil and District Rawalpindi, to Muhammad Aslam, defendant No.

1. On her death on the 6th of October 1949, the Khasra numbers just mentioned were mutated in favour of Muhammad Aslam on the 11th of April 1951. The remaining property of Muhammad was mutated in the names of Painda, Faqir and Muhammad sons of Nawa, Bostan son of Qutab and Allah Ditta, defendant No. 3, son of Saif Ali. On the 30th of September 1951, Muhammad Aslam sold Khasra numbers 491, 492 and 493 to Rahm Ali, defendant No. 2 and delivered possession to the vendee. On the 8th of April 1952 two documents, Exhs. P‑1 and D. W. 1/1, were executed by Gulab, father of the defendant Muhammad Aslam, and the plaintiff Ditta respectively. After reciting in Exh. P‑1 that in spite of his having spent much time and money a portion of the property left by Mst. Rakhi was mutated in favour of Allah Ditta, Bostan etc., Gulab undertook to file, along with the plaintiff, a suit for the re covery of that property and to fight out the case right upto the High Court at his own expense and to give on success, half of it to the plaintiff Ditta on payment of half of the costs incurred in the suit. Gulab undertook not to claim any expenses already incurred by him before the execution of Exh. P‑1 and to pay Ditta a penalty of Rs. 1,000 if he failed either to prosecute the suit properly or to give half of the property to Ditta as agreed upon. In Exh. D. W. 1/1 the plaintiff stated that he had "put up" with the will made by Muhammad deceased of 11 kanals and 12 marlas of land to the wife of Gulab and the will made by Rakhi in favour of Muhammad Aslant on account of close relationship; but was not ready to "put up" with the attempt of Gulab to obtain for himself alone the remaining property of Muhammad from Bostan etc. and had, therefore, settled it with Gulab to sue, along with him, for the property. As regards the expenses of the litigation the same terms have been repeated as those mentioned in Exh. P‑

1. A suit as contemplated by Exhs. P‑1 and D. W. 1/1 was filed jointly by the plaintiff and Gulab in 1952. The present suit was instituted on the 13th of Novem ber 1952 for recovery of 3/4th share of the property which was mutated 'in favour of Muhammad Aslam on the basis of Mst. Rakhi's will. It was alleged in the plaint that according to the custom which governed the family Mst. Rakhi had only a life estate in the property and had no power to make a will in respect of it and that on her death the plaintiff became entitled to th share under the Muslim Law in accordance with the Muslim Personal .aw (Shariat) Application Act of 1948 and Allah Ditta to the remaining th as the son of Mst. Rakhi. Muhammad Aslam, defendant No. 1 replied that the will was valid according to custom and law and that in any case the plaintiff had admitted he will after the death of Rakhi. The main plea raised by the second defendant was that he had purchased the property with the plaintiff's knowledge and consent. The third defen dant did not put in a written statement and the trial was ex parte against him. The trial Court framed the following seven issues :‑ (1) Was. Mst. Allah Rakhi competent under custom to make the will in suit and is the same binding on the reversioners ? (2) Did the plaintiff give his consent to the said will after Mst. Allah Rakhi's death ? (3) Was the sale in favour of defendant No. 2 made with the plaintiff's consent ? (4) Who are entitled to inherit the land in suit as heirs under section 3 of the Shariat Act of 1948 and what are their sharks (5) What is the effect of the Shariat Act of 1948 on the will in suit (6) Is defendant No. 3 estopped from claiming any share as an heir in the land in suit by his conduct and how ? (7) Did one Painda file a suit for contesting the will in suit and what is the effect of the same? The second issue was answered in favour of the defendant but as the remaining issues were found in favour of the plaintiff, the suit was decreed. An appeal against the decree of the trial court was dismissed by the learned Senior Civil Judge, Rawalpindi. It might be observed that although the learned lower appellate Court noted in its judgment that "the learned counsel for the appellant has urged the same grounds which his client had taken in the lower Court", he disposed of the entire appeal in one short paragraph. As regards the first issue there can be no doubt that at Mst. Allah Rakhi held only a life estate her will is invalid and ineffective as such. The findings on the 3rd 4th, 5th, 6th and 7th issues oh the face of them are unassailable and no serious effort was fade (and in my opinion rightly) by the appellant learned counsel to dispute any of them. Two matters in the judgment (If the learned trial Court. however, require notice Although the second issue was found in favour of the defendants yet to serious effort was made to consider the effect o that finding beyond stating that the consent did not validate the will. he alleged consent had been given by the plaintiff by means of the agreement, Exh. D. W. 1/1. Exh. P‑1 executed by the father of the defendant on the same day and a the same time in favour of the plaintiff, and scribed any attested by the same persons, must be read along with Exh. D. W. 1/1; and both of them are obviously parts of the same transaction. The effect of these two documents repre senting by far the most important pieces of evidence on the record, was not at all considered by the learned judge. Again, although the 6th issue raised the question whether the defen dant No. 3 was estopped from claiming any share (which he was in fact not claiming at all) the learned Judge in his finding under that issue observed as follows :‑-- "The plea of estoppel has been raised by defendant No. 1 only. It is true that plaintiff consented to the will, but there is nothing to show that defendant No. 1 was led by that consent to change his position in any way to his detriment. Therefore, so far as defendant No. 1 is concerned, plaintiff is not estopped from suing." The bare assertion that there is nothing to show that the defendant No. 1 was led by that consent to change his position is obviously due to the fact that the learned Judge did not seriously apply his mind to Exh. D. W. 1/1 and P‑

1. The point to be noted in this connection is that the question of estoppel was agitated by the defendant No. 1 in the trial Court without objection by anybody. Similarly the learned lower appellate Court also dealt with the question of estoppel against the plaintiff in favour of the defendant No. 1 and the effect of Exh. D. W. 1/1 cursorily in the following words:‑-- "The agreement Exh. D. W. 1/1 cannot operate as an estoppel against the plaintiff as it has no effect whatsoever on the will in question. The agreement was executed after the death of Mst. Rakhi. The appellant could very well find out, if he had been vigilant enough to do so, that the agreement does not carry any value. Moreover, the agree ment was only for financing certain litigation." Like the trial Court the appellate Court also failed to notice Exh. P‑

1. The contents of Exh. P‑1 and D. W. 1/1 have already been stated earlier in this judgment. I am clearly of the opinion that the plaintiff is estopped from bringing the present suit because on account of the representation made by the plaintiff in Exh. D. W. 1/1 Gulab, both on behalf of himself as well as his son defendant No. 1, altered his position to his detriment, and also because the two documents essentially amount to a family arrangement between the plaintiff and Gulab and his son, the defendant No.

1. By Exh. P‑1 Gulab agreed to file, along with the plaintiff, a suit for recovery of property in possession of Allah Ditta, Bostan and others at his own expense and undertook to pro secute the case himself diligently upto the High Court. In case of success the plaintiff was to have half of the property on payment of half of the expenses incurred from the date of agreement; but not those which had been incurred before presumably during mutation proceedings. In Exh. D. W. 1/1 the plaintiff, after reciting that he had acquiesced in the will of Mst. Allah Rakhi in favour of defendant No. 1, set out all these terms and expressed his agreement to them. It is admitted by the plaintiff that such a suit was filed after the agreement. The learned lower appellate Court was of the a opinion that "the agreement was only for financing certain litigation". Ordinarily this would have been so but in the particular circumstances of the present case the transaction cannot be considered as merely one for financing litigation. A perusal of the two documents leaves no doubt whatever that Gulab undertook to finance and prosecute the suit, and the plaintiff required him so to do, in return for the plaintiff's agreement to forego his claim against the property in possession of Gulab's son. The plaintiff is, therefore, clearly estopped from making that claim in the present suit. There is also no doubt that the transaction evidenced by Exhs. P‑1 and D. W. 1/1 amounts in law to a family arrange ment. This aspect of the matter was not considered by either of the two lower Courts; evidently because it was not brought to their notice by the defendant No.

1. In Exh. D. W. 1/1 the plaintiff expressly stated he was "putting up with" the will in favour of defendant No. 1 simply because the latter was his 'grandson'. The preservation of peace and amity between members of a family is the primary object of family settlements and is the true consideration upon which they are founded. It appears that at the time of the agreement the plaintiff and Gulab were under the impression that both of them were entitled to a half share of the property of the deceased Ditta and in order to avoid dispute regarding that portion of the property which had been devised by Allah Rakhi in favour of Muhammad Aslam the plaintiff agreed to the arrangement embodied in Exh. D. W.1/1. The plaintiff did thereby receive some benefit in return by Gulab agreeing to finance the liti gation against Allah Ditta etc., in the first instance, at his expense and to forego the plaintiff's share in the expenses already incurred by him during the mutation proceedings; but, as already pointed out, any consideration, beyond that of the peace and good relations of the family, was not necessary. In Thakur Umrao Singh and another v. Thakur Lachhman Singh and another (15 C W N 497) a father, who was on bad terms with his second son, executed a document in the following terms:‑-- "This sanad is executed by me. Thakur Kalka Bakhsh, Talukdar of Ramkote. For Pirthipal Singh, who is my son, I fix Rs. 300 annually, so that he may maintain himself. Besides this, whatever I may give I will give equally to the three sons, except provisions, which they may take from my godown (kothar). He may take 6 annas in kharif (crop) and 10 annas in rabi (crop) out of my treasury (tahwil). The marriage and gauna expenses of the sons and daughters shall be borne by me. After me the three sons are to divide the property, movable and immovable. This has been settled through the mediation of Thakur Jote Singh of Bihat and Thakur Ratan Singh of Rojah." It was held by their Lordships of the Privy Council that this amounted to a family arrangement. Nor does an error of the parties, due either to mistake or ignorance of fact as to what their rights actually are, or on the points on which their' rights actually depend, vitiate the family arrangement. (Vide) Mst. Hussain Bibi v. Fazal Qadir (1909 P L R 139). As I have already mentioned, the defendant No. 1 did not urge in either of the two lower Courts that Exhs. P‑1 and D. W. 1/1 really represented a family arrangement. Nor does the question of estoppel appear to have been presented in its true perspective. But since the true effect of a transaction is a pure question of law, I have taken notice of it in second appeal; especially as no real prejudice can conceivably be caused thereby to the respondent. In Thakur Umrao Singh's case the appellants relied upon a document in the Courts below as a will and yet their Lordships permitted them to argue before them that it was really a family arrangement. Lord Macnaghten, delivering the judgment of the Board remarked:‑-- "As regards the second question their Lordships must hold that they are not precluded by what took place in the Courts below from considering and determining the real question in the case . . . . . . Their Lordships think that, notwith standing the conflicting views presented by the Appellants in the Courts below, they are bound to give effect to the real character of the instrument." I, therefore, allow this appeal and, setting aside the decrees of the Courts below, dismiss the plaintiff's suit ; but on account of the failure on the part of the appellant to present the case in its true perspective in any of the Courts, I order that the parties should bear their own costs throughout. A.H. Appeal allowed.