1986 PLP 1829 (MLD)

Mst. Akhtari Begum (respondent 1) 1/12 Mst. Razia Sultana (respondent 2) 5/9

2. Feeling aggrieved with the above distribution made by the Colony Officer and asserting that the shares according to Muslim Law of inheritance ought to have been given to the parties, the appellants instituted suit on the 25th October, 1971, to secure recognition of their demand. They denied that Syed Altaf Hussain Shah had made any will in favour of respondent 2 and contended that such a will in favour of an heir, as respondent 2 was, not valid.

3. The respondents contested the suit and described the impugned order of the Colony Officer to be correct. They pleaded that Syed Altaf Hussain Shah had bequeathed 1/3rd of his property by means of will to respondent 2 and that the appellants were bound by the same.

4. The learned Civil Judge, Bhakkar, seized with the trial of the suit, formed the view that the evidence produced by the respondents was not sufficient to reach the conclusion that Syed Altaf Hussain Shah had in fact executed a will in favour of respondent

2. However, he held that the alleged bequest was not valid as the other heirs had not given their consent thereto after the death of the testator` Therefore, he decreed the appellants' suit wherein the shares of the parties were claimed in the following manner. Syed Iqbal Hussain Shah (appellant 1) 7/24 st. Qudrati Begum appellant 2) 7/24 Mst. Akhtari Begum (respondent 1) 1/8 Mst. Razia Sultana, (respondent 2) 7/24

4. In appeal the learned District Judge, Mianwali, after surveying the evidence brought on the record, concluded that Syed Altaf Hussain Shah had executed the will, Exh.D 4, on the 31st December, 1959, which had been scribed by Qazi Manzoor Ahmad, Advocate of Sargodha and which had been assented to by Syed lqbal Hussain Shah, appellant 1, by putting his signature thereto as also at the time of the death of the testator. In Exh. D‑4, Syed Altaf Hussain Shah gave good reasons for bequeathing to respondent 2 1/3rd share of his property in addition to her Sharai share in his property which she was to inherit. He apprehended that he would die before the solemnisation of marriage of respondent 2 who was minor and to make provision for meeting expenses of her marriage he bequeathed 1/3rd of his property in her favour. The concluding portion of the will states that thinking that lest his heirs should interfere with the will after his death he had secured their signatures thereon. The signatures of Syed lqbal Hussain Shah, appellant 1, in addition to those of others appear on Exh.D‑

4. Qazi Manzoor Ahmad, Advocate of Sargodha, bore out that he had scribed the will, Exh.D‑4, at the instance of Syed Altaf Hussain Shah, whom he had read over and made to understand the contents thereof and further that he had signed it in his presence. He added that he had known Syed Altaf Hussain Shah before and that the other attesting witnesses had signed and thumb marked the will, in his presence. Though Syed lqbal Hussain Shah, appellant 1, while apearing as P.W.1, denied having signed Exh.D‑4 yet the learned District Judge rightly concluded that he would be taken to have given his implied consent to the will after the death of Syed Altaf Hussain Shah because right from 1964, when he died till the institution of the suit on they 25th October, 1971, he did not raise any objection to the will. His silence for no fewer than seven years could very well be interpreted as his consent to the will. There is no reason to disbelieve Qazi Manzoor Ahmad, Advocate, in matter of execution of the will by Syed Altaf Hussain Shah. The finding of the learned District Judge in this behalf, based as it is on proper reading and appreciation of evidence, is confirmed.

5. By virtue of the will respondent 2 would straightaway take 1/3rd share of the land in dispute. Out of the remaining 213rd respondent 1, as widow, would get 1/8th and 2/3rd would be equally divided between appellant 2 and respondent 2 as daughters. Thus, appellant 2 would have 2/9th, respondent 1 1/12th and respondent 2 5/9th share of thek land in suit. The residue of 5/36th share would go to appellant 1 who would inherit it as residuary. These are precisely the shares settled by the Colony Officer. In the circumstances the appellants' suit seeking alteration of these shares could not succeed. The decision of the learned District Judge accepting the appeal against the decree passed bye the learned Civil Judge and dismissing the suit made on the 3rd April, 1975, is upheld. This appeal is dismissed with costs throughout. H.B.T. Appeal dismissed.