2006 PLP 465 (MLD)

MIAN SAQIB NISAR, J.

The dispute in this case is regarding the will of one Maley Khan, who died issueless; the respondents Nos.1 and 2, Muhammad Ashraf and Muhammad Aslam, who are the sons of Shabrati, respondent No.3, claim that the deceased on 15-6-1986 made a Will to bequeath his land measuring 128 Kanals to them and thus on the basis of above, they got a Mutation No.124 attested in their favour, on 28-8-1986. The petitioners, who are the collaterals of Maley Khan, claiming themselves, to be the sons and daughter of Nabi Khan, challenged the aforesaid mutations before the learned Collector and succeeded in getting the mutation cancelled vide order of the Collector dated 20-12-1986; appeal of the respondents Nos.1 and 2, also failed before the learned Additional Commissioner on 27-4-1987; thereafter, the respondents Nos.1 and 2, filed a suit claiming that Maley Khan had made a Will in their favour (Exh.P.1) and thus on account of the above, they are exclusively entitled to the estate left by him; they also denied that Nawaz and Chandari was related to Maley Khan, as being the son and daughter of Nabi Khan. The suit was contested by the petitioners; the parties were put to trial and the learned Civil Judge, vide judgment and decree dated 14-10-1998, dismissed the suit; however, on appeal of the respondents Nos. 1 and 2, this judgment and decree has been set aside with the result that the suit was allowed.

2. Learned counsel for the petitioners contends that the Will Exh.P.1 has not been proved by the respondents/plaintiffs; the said document is not on a stamp paper and is unregistered; it is allegedly scribed by Munawar Jang, Advocate, and there are two alleged marginal witnesses, one Ali Muhammad alias Boola and the second Dewan Masih (P.W.2); Ali Muhammad has not been examined, whereas P.W. and in his statement, has only stated that the Will is scribed by him and bears his signature but he has not stated, if Maley Khan executed the same in B his presence therefore, such statement has no value to prove the execution of the Will by the alleged testator. It is further stated that the sole statement of Dewan Masih (P.W.2) cannot be made the basis of the proof of the said Will, particularly when in the cross-examination, he has deposed that Maley Khan brought the stamp paper, which was seen by him and it bears the stamp of Moon and Star. But from Exh.P.1, it is clear' that the same has not been written or executed on the stamp paper.

3. I mayself read the statement of Dewan Masih (P.W.2), which is most unconvincing and on the face of it, this person has no clue about the execution of the Will Exh.P.1; moreover, it is claimed by the respondents/plaintiffs that Maley Khan had affixed his thumb-impression on the said documents, but no effort was ever made by the plaintiffs to get those compared with, by a Finger-print Expert. Therefore, the decision of the Court of appeal, which has overlooked the above aspects, cannot be sustained.

4. As regards the other question, involved in the matter, whether Nawaz Khan and Mst. Chandari, are the legal heirs of deceased Nabi Khan, suffice it to say that in the connected matter, Civil Revision No.1080 of 2001, while thoroughly examining the evidence on the record, as also considering the evidence in this case, I find that the learned Trial Court has rightly come to the conclusion, about the relation of the two with Nabi Khan, but for erroneous and flimsy reasons; such evidence has been ignored and misconstrued by the learned Court of appeal, therefore, the impugned judgment and decree is not sustainable C in the eyes of law. In the light of above, by allowing this revision, the judgment and decree of the Appellate Court is set aside and that of the Trial Court is restored with the result that the suit filed by the respondents Nos.1 and 2, stands dismissed. H.B.T./N-99/L???????????????????????????????????????????????????????????????????????????????????? Revision allowed.