1987 PLP 7 (CLC)

Ma Khatoon v.Ma Mya and others (1036) 165 I.C. 232 ref. (e) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S. 100‑‑Second appeal‑‑Appellate jurisdiction of High Court, exercise of‑‑Concurrent finding of fact with regard to nature of deed, held, could not be re‑opened in second appeal. (f) Muhammadan Law‑‑ ‑‑‑Bequest‑‑Consent after death of testator by heirs‑‑Such consent, held, need not be express, but could be inferred from conduct of heirs. S. Muhammad Shah Badshah for Appellants. Haji Maqsood Ahmad and Muhammad Latif for Respondents. Dates of hearing:12th and 13th April, 1986. Abdul Ghafoor and others sued Mst. Wadduha and others for a declaration that they were in possession as owners of 123/192 share in the estate of Abdul Manan and the preliminary partition decree passed in Suit No.41/1 decided on 3‑7‑1968 and affirmed in appeal on 19‑2‑1969 was based on fraud and was ineffective against their rights. They prayed for 123/192 share by petition in the urban property and same share in the village immovable property of the deceased besides same share in the agricultural land. The suit was contested on various grounds and was partially decreed. The plaintiffs as well as Haji Murad Khan and others the legal representatives of Mst. Wadduha (defendant 1), preferred appeals but could not succeed. They have now brought R.S.As. No. 3 of 1980 and No. 7 of 1980, respectively. Since common questions are involved, I propose to dispose of both the appeals per this judgment.

2. I need not reproduce the pedigree‑table of the parties appearing in the plaint and the judgments of the learned Courts below. It is common ground between the parties that originally Abdul Manan was the owner of the entire property in suit. It comprises of (i) two houses and two shops situate in Peshawar city, (ii) one house situated in village Pawaka and (iii) agricultural land situate in village Pawaka as detailed in the plaint. The allegations of the plaintiff‑appellants were that Abdul Manan who was the owner of the suit property died in 1942 and was survived by his sons Abdul Ghafoor (plaintiff 1) and Abdul Sattar (succeeded by defendants 2 to 8), daughters Mst. Zafro (plaintiff 2), Mst. Khairul Wara (plaintiff 3), Mst. Noorul Huda (succeeded ljy plaintiffs 4 to 6) and Mat. Wadduha (defendant 1), besides widows Mat. Radifa and Mst. Zarira. On the death of Mst. Zarira the plaintiff Abdul Ghafoor succeeded her solely. Mst. Radifa died on 2‑3‑1969 and was inherited by plaintiffs 2 to 6 and defendants 1 and 3 to

8. When calculated the share of the plaintiffs comes to 123/192 and that of defendants 1 to 8 to the remaining 69/192. A collusive Suit No.41/1 decided on 3‑7‑1968 between the heirs of Abdul Sattar and Mst. Radifa was brought but the plaintiffs were not made a party to it deliberately. The decree passed in the suit and affirmed in the appeal was not binding upon the rights of the plaintiffs. The contesting defendants in their written statements inter alia averred that Abdul Manan had divorced his wife Mst. Zarira and had alienated the entire suit property in favour of his wife Mst. Radifa during his lifetime. Mst. Radifa had transferred the urban property in favour of her son Abdul Sattar and agricultural land in favour of her daughter Mst. Wadduha per registered deeds. After recording such evidence as the parties wished to adduce the learned lower Court, held, that Abdul Manan had validly bequeathed the land and the house in village Pawaka only as life estate of Mst. Radifa and on her death the property reverted to his legal heirs. The plaintiffs were held entitled to 35/64 share therein and a decree was passed in their favour accordingly. Their claim with regard to the remaining property was turned down as the deed about it was held to be unconditional will and the suit was partially decreed.

3. The principal controversial issue between the parties pertains to the construction of the disputed deed. Both the learned Courts below have recorded a unanimous finding about the deed and have held the first part of it pertaining to the rural property as will for life estate and the second part relating to urban property as unconditional will. It has been emphatically contended before me by one of the parties that the entries deed was a will whereas the other averred that it was a gift. It would be appropriate to reproduce the deed verbatim and it reads as under:‑

4. Before dealing with the deed I may dispose of a preliminary point raised by the learned counsel for the respondents. He contended that a finding on fact could not be recorded in the second appeal under section 100, C . P. C . inasmuch as the conclusion arrived at by the learned Courts below with regard to the deed could not be interfered with. A number of authorities were cited the Bar regarding the competency of second appeal but I need not recapitulate them. Now it is well‑settled that where construction of a deed is involved a second appeal is competent. It is observed in Haji Muhammad Hayat Khan v Subedar Yar Muhammad Khan P L D 1966 SC 612 that the question of the proper legal effect of a document or of a proved fact is always a question of law. In Gulzar v. Mst. Shahzad Bibi and another P L D 1974 SC 204 the question of proper construction of a document was held to be a question of law and not of fact and the High Court was held competent to interfere in second appeal and to give its own interpretation. In Ahmad Khan v. Rasul Khan and others P L D 1975; SC 311 the observation made was that the right construction of documents and in particular in a revenue record had always been regarded as question of law which the High Court was not precluded from considering in second appeal. In view of the law laid down in these precedent cases the preliminary point raised by the learned counsel for the respondents would not prevail.

5. The learned counsel for the appellants Haji Murad Khan and others who are the legal representatives of Mst. Wadduha, defendant No.l, strenuously contended that the deed was, in fact, a gift (Tamleek) and that its first part pertaining to rural property had the condition of life estate which was bad in the eye of law. He referred to a number of authorities in support of his contention and amongst them were Mst. Khan Bibi v. Mst. Safia Begum and others P L D 1969 Lah. 338, Farid v. Mst. Nur Bibi P L D 1970 Lah. 502, Fateh Muhammad v. Adalat Khan 1979 C L C 587 and Ghulam lqbal Khan v. Abdul Jalil and others P L D 1985 Pesh.

43. He added that the gift with regard to the urban property was a complete one. The authorities referred to by him are of little assistance to him inasmuch as the deed, in my view, is not gift but is will.

6. The guiding principle in construing a bequest is to ascertain the intention of the testator relected in the language of the deed and the surrounding circumstances. The discovery of the intention of the testator is of paramount importance and the conduct of the legatee is a relevant factor in this context. A look at the deed shows that Malik bdul Marian had intended to make a will in favour of his wife Mst. Radifa. The words and underlined by me in the contents of the deed reproduced above are significant. The opening sentences show that he had attained the age of 80 years, had no trust in the cunning life and decided to make H, will. It is stipulated in the deed that he bequeathed the agriculturally land and the house situate in village Pawaka to her for life, transferr his proprietary and possessory rights in the said property and she was to become owner thereof after his death. The proprietary anal possessory rights were to vest in her after his death and on her death the property was to be distributed amongst his heirs. No such condition) was attached to the urban property mentioned in the deed and she was to be deemed as an owner of it. In the concluding sentence the whole deed was described. No where in the deed mention had been made of Tamleek or gift. It is manifest from the terms and conditions of the deed that the intention of Malik Abdul Marian was to make a will in favour of his wife. Moreover, he had described this deed as a will in the divorce deed Exh.D.W.119 dated 15th May, 1941. Furthermore, the other party to the deed, namely, the legatee Mst. Radifa described the abovementioned deed as will more than once. She had executed a registered sale‑deed, dated 17th July, 1965 in favour of her son Malik Abdul Sattar with regard to the suit urban property and in it she had described the disputed deed as a will. She had transferred to her daughter Mst. Wadduha 18 Kanals out of the land per registered deed, dated 11th May, 1946 and in it the disputed deed had been described as a will. Thus, both Malik Abdul Marian and Mst. Radifa had treated the disputed deed as a will and their intention cant be gathered from the recital referred to above. There is no manner of doubt into my mind with regard to the nature of the deed and l am ofl the considered view that it is a will.

7. In Institutes of Mussalman Law by A.F.M. Abdur Rehman 1907 Edition Article 488 shows that movable or immovable property can be bequeathed as well as the use or produce of such property for a definite period or in perpetuity. A similar view has been expressed in Mahomedan Law by Syed Ameer Ali 1976 Edition at page

646. The question came up for consideration in Achiruddin Ahmad alias Achiruddin Muhammad v. Sakina Vewa and another (1946) 222 IC 585 wherein it was observed that both as a matter of construction and on principles of general as well as Muhammadan Law, the bequest to the wife for the period of her life was not merely of the usufruct of the property during her life but of a life estate. It was further observed that the will clearly created a simple life estate directly and without circumlocution. It follows that the bequest made by Malik Abdul Marian created a life estate in favour of his wife Mst. Radifa and it was a valid one. On her death the life estate came to an end and under the terms and conditions of the bequest the rural property devolved on the heirs of the testator.

8. So far as the bequest pertaining to the urban property is concerned it did not create life estate and it appears that this property was bequeathed to her as an absolute owner. Section 117 of the Principles of Muhamedan Law by D.F. Mulla 1967 Edition contemplates that a bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. A single heir may consent so as to bind his own share. The next section shows that a Muslim cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequest in excess of the legal D third cannot take effect, unless the heirs consent thereto after the death of the testator. It is observed by Mulla at page 117 that the power of a Muslim to dispose of his property by will is limited in two ways, namely, as regards the persons to whom the property may be bequeathed and, secondly, as regards the extent to which the property may be bequeahed. In both the cases referred to above the consent of the heirs after the death of the testator is of great importance. The question that arises now is whether the heirs of Malik Abdul Marian had consented to the bequest in favour of his wife with regard to the urban property.

9. In Me Khatoon v. Ma Mya and others (1936) 165 IC 232, it was observed about the consent of the heirs that it may be signified by conduct showing a fixed and unequivocal intention. The consent should be one given after the death of the testator and the consent once given cannot be subsequently withdrawn. There are certain facts brought on the record which indicate that almost all the heirs had given their consent to the bequest made by Malik Abdul Marian. Mst. Radifa, the legatee, had transferred the urban property to her son Malik Abdul Sattar, predecessor‑in‑interest of defendants 2 to 8, per registered deed dated 17th July, 1965 and in it mention was made of the bequest dated 14‑10‑1940. It shows that Malik Abdur Sattar had consented to the request in favour of his mother and, as such, his legal heirs were bound by his consent. Mst. Radifa had per registered deed, dated 11th May, 1946 transferred 18 Kanals of land to her daughter Mst. Wadduha and in the deed reference was made to the aforesaid bequest, It is in this deed that Malik Abdul Sattar on his own behalf and on behalf of his minor brother Abdul Ghafoor and Mst. Bibi Zafro admitted the factum of bequest and the ownership of their mother Mst. Radifa thereunder. Mst. Wadduha is dead and the appellants in R.S.A. No.3 of 1980 who are her legal representatives are bound by her consent. It is evident that the legal representatives of Malik Abdul Sattar and Mst. Wadduha are bound by their consent to the bequest. The appellant Abdul Ghafoor of R.S.A. No. 7 of 1980 was minor and his brother Malik Abdul Sattar, as remarked above, had given consent on his behalf. There is nothing on record to show that on attaining majority he objected to the validity of the bequest. His conduct, however, signifies his consent to the bequest. It is pertinent to note that Mst. Maroof and others, the legal representatives of Malik Abdul Sattar, had brought Suit No.41/1 on 12‑6‑1967 against Mst. Radifa and others for petition of 26/48 share in the urban property in dispute on the strength of a sale‑deed in favour of Malik Abdul Sattar on behalf of Mst. Radifa. Abdul Ghafoor submitted in an application for being made a defendant to the suit and he joined hands with Mst. Wadduha in contesting the suit and filing a joint written statement wherein they admitted the validity of deed dated 14‑10‑1940 whereby Malik Abdul Manan had transferred the property to Mst. Radifa. This fact goes a long way to indicate that Abdul Ghafoor had condescended to the bequest. The suit was decreed and his appeal had failed. The decree has been assailed by him in the instant suit on the ground of fraud but both the learned Courts below have recorded a concurrent finding of fact 1 about fraud against him and such a finding cannot be reopened in second appeal.

10. Mst. Bibi. Zafro., Khairul Wara and Noorul Huda (since dead) are the daughters of Malik Abdul Manan. Mst. Khairul Wara is one of the plaintiffs with Abdul Ghafoor whereas plaintiffs 4 to 6 are the legal representatives of Mst. Noorul Huda. It is remarked by Mulla at page 118 that the consent of the heirs need not be express; it may be signified by conduct showing a fixed and unequivocal intention. Mst. Bibi Zafro had admitted the validity of the bequest in the sale‑deed in favour of Malik Abdul Sattar. The tacit consent of both the sisters Khairul Wara and Noorul Huda can be inferred from their conduct inasmuch as they never objected to the bequest by their father in favour of their mother. They had the knowledge of the bequest and 1 the litigation between their brothers and sisters but never came forward to object to the bequest. Strangely enough, neither Mst. Khairul Wara nor the legal representatives of Mst. Noorul Huda assailed the bequest in the instant suit. It can, therefore, be said hat they had by their conduct consented to the bequest.

11. To sum up, the concurrent finding of both the learned Courts below with regard to the nature of the deed, namely, it was a will is well founded and merits no interference. The first part of it pertaining to rural property created life estate in favour of Mst. Radifa and on her death the legal heirs of the testator Malik Abdul Manan were entitled to inherit it. The second part of the will relating to urban property was consented to by all the legal heirs and the transfer in favour of Malik Abdul Sattar was a valid one. In the result, both the appeals fail and are dismissed. Since a legal point was involved I would leave the parties to bear their own costs. A.A. Appeals dismissed.