1986 PLP 372 (CLC)

‑‑‑Ss. 115 & 100‑‑Revisional jurisdiction‑‑Exercise of‑‑Ex parte proceedings against respondent‑‑While accepting second appeal, High Court in exercise of suo motu revisional jurisdiction, could, grant relief to ex parte respondent who was found entitled to such relief. S.S. Hamid for Appellant. Nemo for Respondents. Date of hearing: 7th February, 1985. These appeals arises out of the judgments and decrees of Vth Additional District Judge, Karachi, who had dismissed Civil Appeal No 403 of 1976 filed. by the respondent Akbar as well as Civil Appeal No 410 of 1976 filed by the appellant. These appeals also challenge the judgments and decrees in Suit Nos. 1490 of 1972 filed by the responder Akbar and 1783 of 1972 filed by Mst. Batool. The two suits had bee consolidated together and it was found that House No. 3‑D‑41/10, Landhi Colony, Karachi had been gifted by deceased Karim Bux to Akbar respondent, while the amount of Rs.5,000 lying in the postal saving bank accounts of Karim Bux belonged to Mst. Batool exclusively. Mst Batool is the daughter of Karim Bux while respondent Akbar is a relation of Karim Bux, who was married to Mst. Batool for sometime but later on he divorced Batool. Karim Bux had died in 1970 leaving behind Mst. Batool as her only heir. However, respondent, Akbar ha made a claim upon the entire property left by Karim on the ground that Karim Bux had left a Will in his favour by which the entire property had been left to him. It was further urged by Akbar that Karim Bux had made an oral gift of the disputed house in his favour in 1967 when he came out of the office of Chairman, Union Council. Batool had claimed the house as well as the saving deposit amount on the basis of her being the sole heir of her father and she had denied that there was any Will made by her father in favour of Akbar or that there was any gift made by Karim Bux in favour of Muhammad Akbar in respect of the disputed house.

2. Eleven issues were framed, Akbar examined himself in support of his claim and produced document Exh. 6 which is entitled as Mukhtiarnama but it shows that Karim Bux had desired to give all the powers in respect of this property to Akbar after his death. Words in Urdu are as under: He stated that the house in dispute was gifted to him by his father‑in‑law and he was handed over the lease papers of the said house by the deceased. He, however, admitted in cross‑examination that he used to collect rent as attorney of Karim Bux. Akbar also produced the letters which he had written to Officer Incharge, Saving Bank Branch G. P.O, Karachi, where he made a claim to the saving account on the basis of the deed which had been executed in his favour by Karim Bux. He also produced letter which he had written to D.I.‑G., Karachi on 18‑7‑1970 through his counsel where it was stated that the deceased had executed the document on 29‑9‑1962 entitling Akbar to inherit all his property and assets. No mention was made in this letter of any gift made by the deceased and this letter had been written because on 17‑7‑1970 the Landhi Police had made Akbar to hand over the lease deed of the Quarter No.5‑D‑41/10 to Mst. Batool under pressure. Another letter, dated 21‑7‑1970 written by Akbar to Mst. Batool Exh.11 had alleged that Akbar had been in possession of the house in question since 29‑9‑1962 when Karim Bux had executed a document in his favour nominating him to be his sole heir of all his property including bank balance and the grievance was made that she had secured the lease deed of the said house through Police illegally. There was no suggestion made in this letter of the gift having been made by the deceased Karim Bux in his favour. Akbar had also produced order of District Judge ,Karachi, dated 31‑7‑1971 in S.MA. . 162 of 1970 where it had been stated that Akbar claims the entire property of .the deceased on the stength of a Will executed in his favour by the deceased which was not registered. Again there is no mention of any allegation of oral gift having been made by Akbar before the District Judge in this matter. Execution of Exh. 6 was proved through P .W. 2 Agha Amir Mirza and P.W.4 Abdul Saleem. The oral gift was sought to be proved through P‑W‑ 3 Ali Muhammad who stated that Karim told him that he had gifted all the property to the plaintiff as he had disinherited Mst. Batool. In cross‑examination he expressed his ignorance of any writing in respect of the gift. Ali Hussain P. W. 6 stated that in 1967 when the deceased was alive on the day that Akbar had divorced Batool, Karim had collected some persons and had disclosed in their presence that he had gifted the house in suit to Akbar and disinherited the defendant and Karim had further stated that he had made such statement before Chairman, Union Council No.3, Landhi to this effect, Mst. Batool had denied that she had strained relationship with her father or that the property was gifted to Akbar. She stated that the lease deed had been given to her by her father. Shaikh Nathoo stated that the father of Batool had not gifted the house to Akbar in his lifetime. He further stated that father of Batool was living since last 4 years with her. In this state of evidence the two learned Courts below have come to the finding that gift of the house had been made in favour of the respondent Akbar by Karim Bux. I would have been bound by the concurrent findings of fact of the two lower Courts below if they had considered the relevant facts in the matter. But it appears to me that they lave failed to consider the statement of Akbar in cross‑examination there he admitted that he had been collecting rent as attorney of ,grim Bux. He never made a statement that he had collected the rent his own right before the death of Karim. It is correct that two statements had been made in respect of the oral gift made by Karim Bux in favour of Akbar but the statement of Ali Muhammad was a mere hearsay from Karim Bux and, ,therefore, there was only one statement of Ali Hussain who had stated that the father of Batool had made a gift in favour of Akbar. But unfortunately this statement of Ali Hussain in conflict with conduct of Akbar who never acted as owner till 1971 in spite of the fact that Akbar is alleged to have received the gift from Karim in 1967 but he never alleged in the letters which he had written in 1970 and 1971 to different authorities or to Mst. Batool that a gift had been made in his favour by Karim Bux of the said house. All along till 1971 he was basing his claim upon the alleged will‑cum power‑of‑attorney executed in his favour by Karim Bux in 1962. Even in a judicial proceedings in S.M.A. No. 162/70 he made the same claim and never alleged that he was a donee of the said house. Akbar has even admitted that he collected rent as attorney. It, therefore, appears to me that the two lower Courts below have failed to consider the relevant material and have, therefore, reached incorrect conclusions.

3. In fact the admission by respondent Akbar in cross‑examination that he had been collecting rent as attorney of the deceased clearly showed that the deceased had never handed over the constructive possession of the disputed house to Akbar by informing .the tenant that they should pay the rent to Akbar in his own right as the property had been. gifted to him and hence an important factor of delivery of possession had not taken place. In fact the omission of Akbar, to claim any gift till 1971 has completely damaged the claim of any gift having really been made in his favour by Karim Bux.

4. It, therefore, appears to me that the concurrent finding of facts of gift having been made in favour of respondent Akbar by Karim Bux deceased in 1967 arrived at by the two Courts below appears to be absolutely unjustified and negatived by the admission of Akbar and the circumstance of omission of the said claim till 1971. The said finding is, therefore, found to be wrong and is hereby set aside. However, that does not conclude the matter because I find that the alleged Will, dated 29‑9‑1962 which is entitled as Mukhtiarnama has been left out of consideration on absolutely illegal grounds. Both the Courts below have refused to give effect to the same. The Civil Judge had held that it was a power‑of‑attorney and it died on the death of deceased. In the alternative he held that if it was a Will then it could not have any effect because it was not registered. On the other hand, the lower appellate Court had held that the execution of Exh.6 had been clearly proved but he did not consider the said document as a Will as the deceased himself had not treated it as a Will in his life time and he, therefore, gifted the house to Akbar. He further held that the document is not registered.

5. I must say that the views of the two lower Courts are quite incorrect. I have perused the said document Exh. 6 and I find that it is undoubtedly a Will as it clearly states that after the death of Karim, Akbar Khan will be entitled to his property. The view that a Will requires registration is completely wrong. The Will by a Muslim does not require to be registered. In fact form of Will is completely immaterial, it can be made either verbally or in writing. (Muhammadan Law 123. 1968 edition). Registration Act does not require a Will to be registered and I am surprised that the two lower Courts have considered the registration of a Will as absolutely necessary. Section 17 of the Registration Act which is a relevant section in respect of the compulsory registration of document in subsection (b) clearly requires registration of other non‑testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent of the value of one hundred rupees and upwards, to or in immovable property. The bore reading of this subsection is enough to show that a testamentary document, namely the Will does not require to be registered. It is of course open to a party to get a Will registered if he chooses to‑do so but certainly a Will does not require to be registered. Therefore, all the views of the two lower Courts are completely wrong and, therefore, I hold that Exh. 6 was a valid Will made by Karim Bux in favour of Akbar Khan. It was also a power‑of‑attorney but Will it certainly was.

6. Since the Will was in respect of the entire assets to be left by Karim Bux, therefore, it cannot be given effect as a whole because a Muslim can only dispose of 1/3rd of his property by Will. In. section 118 of Muhammadan Law by Mulla 1968 Edition, it is provided as under:‑ "A Mohammedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses end debts. Requests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator."

7. I would, therefore, hold that Akbar Khan was entitled, as a legatee of the Will, from deceased Karim Bux to share of the property left by deceased to the extent of 1/3rd etc. He was entitled to share in respect of the disputed house as well as to share in respect of money left in the savings bank by Karim Bux. I would, therefore, partially accept these two appeals and modify the judgments and the decrees in Suits Nos. 1490/72 and 1783/72 passed by 17th Civil Judge, Karachi. In Suit No. 1490/72 the judgment and decree would be modified to read that Akbar Khan is entitled to 1/3rd share in the House No.5‑D‑41/10, Landhi as well as 1/3rd share in the amount which was lying in the saving bank account of Karim Bux in 1971. Similarly I will modify the judgment and decree in Suit No.1783 of 1972 to read that Mst. Batool is entitled to 2/3rd share in the House No. 5‑D‑41‑10, Landhi as well as to 2/3rd share of the amount in the postal saving bank account of deceased Karim Bux. The parties would be entitled to the rent of the said property to the extent of their share as declared by me today from the date of the suit till realization. Since Akbar Khan and his counsel were called absent, therefore, there will be no order as to costs.

8. I have modified the decrees in question and have allowed relief to the appellant and I have no doubt in my mind. that I could do so because the appellant had filed the appeal. I have however allowed same relief to the respondent Akbar as well on the basis of a document, benefit of which had been disallowed, to him on the basis of illegal decision. I have done so in spite of there being no appeal or cross‑objection from the respondent Akbar but I have done so in view of the fact that I consider Akbar Khan entitled to the same, although he was snot represented before me. It appears, to me that the facts and circumstances of the case amply justify the exercise of revision power by the High Court suo motu under section 115 of C.P.C. Both the appeals are disposed of. A.A. Order accordingly.