1984 PLP 2141 (CLC)

‑‑S. 100‑Question of fact‑Question as to whether or not respon dent is daughter of deceased, held, a question of fact‑Courts below discarding appellant's version‑Concurrent finding of fact‑ supported by material on record, could not be disturbed in second appeal. ‑‑S. 68‑Secondary evidence‑Trial Court permitting appellant to prove a registered will by secondary evidence‑One of marginal witnesses examined to prove same‑Requirements of S. 68, held, satisfied and execution of will stood established. ‑‑S. 19 ‑Tenant holding merely tenancy rights in Government land‑Executing will in favour of plaintiff without consent from authorities concerned under S. 19‑Held : S. 19 expressly prohibited transfer of rights by tenant without consent from officer empo wered‑Will executed in respect of tenancy land, in violation of S. 19, held, was void even as between parties to the deed. Allah Ditta v. Jhanda P L D 1951 Lab. 244 ref. Ghulam Rasul v. Muhammad Anwar 1969 S C M R 254 fol. ‑‑Will‑Will held valid in respect of testators property other than Government's land‑Suit, held, cannot be dismissed in its entirety --Will effective to extent of 1/3rd of estate of deceased other than Government land. The dispute relates to the land measuring 43 kanals 3 marlas bearing Khasra Nos. 3 to 7 of Square No. 56 situate in Chak No. 222/G.B. Tehsil Samundri District Faisalabad which belongs to the Provincial Government but was held by one Lal Din, as a tenant under it, in pursuance of the Ejected Tenants Scheme. According to the appellant, by means of a registered 'will' dated 19th October, 1969, Lal Din bequeathed to him his entire movable and immovable assets. He died on 19th July, 1970. The respondent claimed to be the daughter of the deceased and denied the execution of the will by him. The appellant, therefore, filed a suit for declaration that under the will he was the sole heir of the deceased and entitled to the rights enjoyed by the deceased in the suit land. It was further averred in the plaint that the respondent was not the daughter of the deceased. An injunction restraining her from interfering in the appellant's possession over the land in dispute, was also prayed for as consequential relief.

2. The respondent contested the suit inter alia on the ground that as the deceased had not obtained proprietary rights, the alienation of the property was hit by section 19 of the Colonization of Government Lands (Punjab) Act 1912. Issue No. 5 was formulated to cover the con troversy regarding the validity of the will. The learned trial Court by its judgment dated 27th January, 1976 upheld the respondent's claim that she is the daughter of the deceased. With regard to the question of the validity of the will, so far as the land is concerned, the trial Court declared it as illegal and void being violative of section 19 of the Act. The will was, however, treated as valid, to the extent of 1 /3rd of the testators' other properties. Despite this finding, the trial Court proceeded to dismiss the appellant's suit in toto.

3. The judgment and decree of the trial Court were called in question by the appellant through first appeal. It may be observed that the original will was not tendered in evidence and the appellant led secondary evidence of this document. In this connection, the learned first appellate Court took the view that the loss of the original deed was not proved, to entitle the appellant to lead secondary evidence and that the execution of the will itself was also established. The Court, therefore, reversed the trial Court's finding on these points. Under issue No. 5, the learned first appellate Court upheld the findings of the trial Court and came to a finding that even if the will was held as proved Lal Din who was merely an allottee, did not obtain the consent of the authorities concerned under section 19 of the Act and that, therefore, the will was void. The judgment of the trial Court was thus, upheld but on different reasoning.

4. I have heard the learned counsel for the parties and examined the record. The first submission made on behalf of the appellant was that in the will Exh. P. 1 itself, the deceased unequivocally stated that he was issueless. It, was thus, submitted that in the face of such asser tion of the deceased, the Courts below were wrong to record a finding that he is survived by a daughter.

5. The question as to whether or not the respondent is the daughter of the deceased is a question of fact. In this behalf, the Courts below in discarding the appellant's version, relied upon the oral as well as documentary evidence adduced by the respondent. Such a concurrent finding of fact which is supported by material on the record, cannot be disturbed in second appeal.

6. It was next argued that the will is a registered document. The record of the Registration Office was produced by Zafar Mahmood (P.W. 3) and its execution proved by evidence of one of its attesting witnesses namely Muhammad Ishaque (P. W. 4). It was further contended that the trial Court after attending to the relevant facts of the case, by its order, dated 30th January, 1973 permitted the appellant to lead secondary evidence. The finding of the first appellate Court that the will was not proved were thus, vehemently assailed.

7. It is correct that the learned trial Court on 30th, January, 1973 permitted the appellant to produce the secondary evidence and one of its marginal witness namely Muhammad Ishaque was also examined by him to prove the will. Its execution thus stood established, in con templation of section 68 of the Evidence Act. It being so, the learned counsel for the respondent rightly concede these points and did not contest the execution of will and the validity of tendering the secondary evidence. The findings of the first appellate Court in this respect, are, therefore, set aside and that of the trial Court restored.

8. As regards the validity of the will, it was urged that the question of implementation of the will would arise only when the proprietary rights would be conferred on the deceased or for that matter, his heirs. In the submission of the learned counsel for the appellant as this stage has not yet arrived, the Court below acted illegally in declaring the will as void. For his these contentions he relied upon Allah Ditta v. Jhanda (P L D 1951 Lah. 244).

9. I am unable to agree with the appellant's learned counsel. It is not disputed that Lai Din held merely tenancy rights and during his life time he neither acquired proprietary rights nor did he obtain the consent of the authorities concerned under section 19 of the Act. Thus, upon his death, when the succession opened, the deceased was possessed of merely tenancy right and nothing more than that. The will become effective on the death of the testator and the property comprised therein, unless prohibited by some other law, stood alienated to the appellant to the extent of 1/3rd thereof. Section 19 expressly prohibits transfer of his right by a tenant to any person, without the consent of the Commissioner or other officer empowered by him in this behalf. Such being the position in law, obviously, the will on becoming operative, so far as the deceased's tenancy is concerned clashes with the provisions of section 19 and, there fore, to that extent is liable to be declared as void. The argument that the question of validity of the will, would emanate on acquisition of the proprietary rights, is absolutely devoid of substance. It has been held in Ghulam Rasul v. Muhammad Anwar (1969 8 C M R 254) that a transfer prohibited by section 19 is void even as between the parties to the deed. The respondent who claims through the deceased, therefore, can agitate against the vali dity of the will ; even if the authorities under the Act do not appear on the scene. In the precedent referred to by the learned counsel the first agreement was executed when the tenancy was governed by the Government Tenants (Punjab) Act, 1893 which did not contain any provision analo gous to section 19 of the Colonization of Government Lands (Punjab) Act, 1912. However, when the second agreement was entered into between the parties, proprietary rights had already been conferred on the tenant. This precedent, therefore, does not advance the appellant's cause in any manner.

10. It may be observed that the will covers all the movable and immovable properties of the deceased. The learned trial Court having come to the conclusion that the will was valid in respect of the testators' property other than the Government's land, the appellant's suit could not have been dismissed in its entirety. In this view of the matter, as the execution of the Will has been proved, it will be effective to the extent of 1/3rd of the estate of the deceased other than the land in dispute. The impugned judgment and decree are, therefore, upheld in respect of the land aforesaid but as regards the rest of the property of Lai Din, if any, the suit is decreed to the effect that the 'Will' will be operative to the extent of 1/3rd of said estate. The parties are left to bear their own costs. M. B. A. Order accordingly.