1980 PLP 562 (CLC)

Muhammad Hanif Khan for Appellant. Kh. Muhammad Saeed for Respondents. Date of institution : 14th June 1979. The appellant is the real brother of Mst. Arsha Begum respondent No. 2 who sold the land to suit :o her son named Muhammad Bashir respondent No.

1. The land in suit was originally owned by Sher Ali father of the plaintiff-appellant, proforma-respondent No. 4, Arsha Begum respondent No. 2 and Mst. Shahi Begum respondent No.

3. On the death of Sher Ali, land in suit was inherited by Mst. Arsha Begum as one of the heirs who transferred the same to her son through a sale-deed. The sale of the land in suit was challenged by the plaintiff appellant and his brother Sher Khan, another plaintiff-proforma-respondent on the ground that according to a deed of will Exh. `PA' the land in suit alongwith the remaining land fell exclusively to the share of the sons and daughters were not to 'inherit any landed property left by their father, Sher Ali as some movable property in shape of money and cattle was awarded to them by there father. The suit of the plaintiff was resisted by the defendants-respondents numbers 1 and

2. It was denied by them that there was any will ever made by Sher Ali deceased. The passing on of any movable property in lieu of immovable property to be left by Sher Ali was also denied. The learned counsel for the parties were heard and the perusal of record was also made. The main issue in this case is issue No. 3 which relates to the will allegedly made by Sher Ali deceased. The trial Court found this issue in favour of the plaintiff thereby holding that on basis of this will Exh. PA the daughters were not entitled to inherit any hate from the landed property left by Sher Al; and consequently the land in suit was not inherited by Mst. Arsha Begum so as to make her owner of the carne which could then be transferred by her and thus the sale-deed of the land in suit executed by Mst. Arsha Begum in favour of her son was declared void and ineffective. On appeal to the District Court, the District Judge came to the conclusion that deed of will in question was forged by the sons of Sher Ali in order to deprive their sisters of the landed property left by their father. Msr. Shahi Begum respondent No. 3 did not question the execution of the will in question. She went in favour of her brothers. Both the Courts below dealt with the case on the evidence of the parties one way or the other but absolutely ignored the legal aspect of the will. The will deed was to be looked into according to law. If it was found to have its origin from Sher Ali deceased, the trial Court was to see its validity in view of law. Law of wills in relation to Muslim Law is that a Muslim major by age being of sound mind can make will ef his property only to the extent of 113rd of it to a non-heir and not in excess of the legal third without the consent of the heirs after the death of the testator. Again will in favour of an heir can only be carried out with the consent of other heirs who are supposed to give their consent after the death of the testator. Will in question may be wrong or right, it will not have any sort of effect on the suit land. inherited by Msr. Arsha Begum from her father, unless it could be established by the plaintiff-appellant that will in question was assented to by Mst. Arsha Begum after the death of her father. There is nothing on record to show that there was any consent on the part of Mst. Arsha Begum in respect of will in question after the death of her father and as such shed cannot legally be bound by it, so as to affect her share i.e. the suit land inherited be her as one of the heirs of Sher Ali deceased. That being so the plaintiff had no cause of action on the bass of the alleged will to bring the suit against respondents Nos. 1 and 2 challenging the sale of land in suit made by Mst. Arsha Begum in favour of her son Muhammad Bashir by name. Consequently the joint landed property left by Sher Ali one inherited by all his heirs who are arrayed before the Courts through the instant suit and this is then the case of both sides. Sub-para. (iii) of para graph 6 of the plaint is to be read with the stand of the contesting defendant respondents in view of which there was hardly any need of striking issue No. 4 because it was specifically alleged by the plaintiffs that property in suit is the joint property of the parties and thus no question of the land in suit falling in division to the share of the plaintiffs could have alleged]\ arisen at all. Both the Courts below have dealt with the case as some `Panchayvat' would go to decide the case arising between the parties on the strength of evidence adduced by them, because `Petnchurut' may not be in a position to weigh the legal aspect of the ca? e and so is to simply resort to the bare evidence of the parties devoid of legal points so as to decide the case this way or that way. That being so, for the reasons above, there is no force in this appeal which is hereby dismissed with costs. S. A. H Appeal dismissed.