1993 PLP 1552 (CLC)

Mirza Ehsanul Haq for Petitioner. K.N. Kohli for Respondent No.1. Date of hearing: 11th March, 1993 Briefly the facts of the case are that on 19th October, 1991, respondent Moulvi Luqman son of Barahmat filed a civil suit before Qazi,.Bori Sinjavi at Loralai, for declaration and permanent injunction to the extent of 1/3rd share of landed property, owned by late Muhammad Rasool, description whereof has been given in the plaint, on the averments that said owner during his lifetime executed a Will in his favour bestowing his property to the extent of 1/3rd on the condition that after his death he will perform spiritual acts on his behalf, etc. The suit was contested by the petitioner and other respondents repudiating the claim of respondent No.f. The petitioner specifically staled in his written statement that he himself is in possession of a Will executed by late Muhammad Rasool in his favour as back as on 20th May, 1991, and denied that beside the Will which is in his favour, any other: Will, was executed by late Muhammad Rasool. The learned trial Court on the completion of other legal formalities started recording evidence. It seems that during examination of one Feroze son of Rozai, produced by respondent No.1, petitioner submitted an application mentioning therein, that if the witness makes the statement on HOLY QUR'AN, then the suit be decreed. The offer was accepted by respondent No.1 and said witness got recorded his statement on HOLY QUR'AN. Accordingly on the same day i.e. 7th July, 1992, the suit was decreed as prayed for, in favour of respondent No.1 and against the petitioner

2. The petitioner preferred an appeal before Majlis‑e‑Shoora, Loralai, which was dismissed vide judgment and decree dated 29th August, 1992, as such, present proceedings have been initiated challenging both the judgment and decree passed by trial as well as Appellate Court.

3. Mr. Ehsan Mirza, Advocate appeared on behalf of petitioner and argued that in view of the provisions of sections 211 and 213 of the Succession Act the Court of Qazi, functioning under the Balochistan Shariat Application Regulation, 1976, had no jurisdiction to adjudicate upon the matter. It was also urged by the learned counsel that section 213 of the Succession Act has been amended by Act XII of 1974, whereby subsection (ii) was substituted and the Amending Act has not been extended to Loralai area being a Tribal Area within the scope of Article 247 of the Constitution of Islamic Republic of Pakistan. It was next argued that the Courts below have failed to take into consideration that the witness produced by respondent No.1 i.e. Feroz son of Rozai, has not made the statement on HOLY QUR'AN strictly in accordance to the offer made by petitioner, contained in the application dated 7111 July, 1992, therefore, the suit has been decreed contrary to facts and law.

4. On the other hand, Mr. K.N. Kohli, the Advocate of respondent No.1, contended that sections 211 and 213 of the Succession Act are not at all applicable in the cases where the parties are Mohammadans, because their cases are to be decided according to the Personal Shariat Law. Moreover section 213 stands applicable in Tribal Area as originally it was amended whereby subsection (ii) was enacted in the main section as back as in the year 1928‑

29. As far as Act XII of 1974 is concerned, that although has substituted the previous subsection (ii) of section 213 of the Succession Act, with an addition of clause (b) which has conferred a right to Executor or Lagatee, where a Will has been made by a Parsi. It was further emphasised by him that the Courts below have given full effect to the statement of witness Feroz and granted the decree in favour of respondent No.1, strictly in accordance with law which may not be interfered with, in ~ exercise of the revisional jurisdiction.

5. As far as Wills executed by Mohammadans are concerned these are not be enforced or regularised under the various provisions Of Succession Act, 1925, in view of section 58 of the said Act, because under the principles of Muslim Personal Law a. Mohammadan has been authorised to make a Will in any form i.e. oral or written and if it is in writing it need not be attested nor a probate thereof is required to be obtained from the competent Court of jurisdiction. In this behalf, in the case of Haroon Ayoob Abdul Karim v. Sulleman Ahmad and 4 others (1983 CLC 162) it has been held as follows:‑ "The learned counsel further contended that in view of the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 Muslim Personal Law shall apply to all Muslims. He has, therefore, contended that it was not necessary for the plaintiff to obtain a probate of the will. After promulgation of the said Act in spite of custom and usage, where parties are Muslims all questions regarding will shall be governed by Muslim Personal Law (Shariat). The Muslim Personal Law in its application to Muslims overrides custom and usage in respect of matters specified in section 2 of the said Act. The Muslim Personal Law shall govern the Muslims and as Muslims are not required to obtain a probate of the will the bar imposed by section 213 of the Succession Act is not applicable to Muslim Wills. This contention has, therefore, no force:" In the light of above discussion, it is held that sections 211 and 213 of the Succession Act have no relevancy in the matters where a Will has been executed by a Mohammadan, therefore, I feel no necessity to discuss the second limb of the argument of learned counsel for petitioner, concerning the application or non‑application of section 213 of the Succession Act in Tribal area, after its amendment by Act, XII of 1974.

6. Now reverting towards the merits of the case, it suffices to observe that petitioner during the proceedings, in his application dated 7th July, 1992, in unequivocal terms himself offered that if witness Feroz son of Rozai makes statement on Holy Qur'an, whatever he has stated otherwise in the Court, then in that case, suit be decreed. On perusal of the copy of application available on record, it is manifestly clear that on Holy Qur'an, he stated that late Muhammad Rasool was in fit state of health, when he gave 1/3rd share out of his property to Moulvi Luqman. The Trial and the Appellate Courts have given full effect to such evidence treating, it to be conclusive one within the meaning of section 9 of the Oaths Act. Therefore, in view of the facts and circumstances of the case, petitioner cannot be allowed to back out from his own offer/stand, merely on a technical ground. Accordingly I see no illegality, irregularity or impropriety in the impugned orders/decrees, warranting interference in the revisional jurisdiction. The upshot of the above discussion is that the Revision has no force, which is dismissed, leaving the parties to bear their own costs. A.A./440/0 Revision dismissed.