P L D 1965 (W (PLP)

Nemo for other Respondents. Date of hearing : 11th January 1965. This is a plaintiff's second appeal. His suit was dismissed by the trial Court and that decision was affirmed on appeal by the District Judge, Montgomery on 17th of January 1959.

2. The property in suit is comprised of 428 kanals 5 marlas of agricultural land, a residential house and a Ihata situated Chak No. 100/12‑L, Tehsil and District Montgomery. It belong to Captain Khuda Dad Khan, who died on 2nd of June 1947 Before his death on 16th of June 1947 he made a will by which he bequeathed the property in dispute to his two widows M Begum Jan and Mst. Tawazuh Begum, respondents 1 and 2 for their lives or ill their remarriages and gave the reversion the appellant for hold as full owner after their termination of their life interests. On the death of Captain Khuda Dad the properties in dispute were mutated on 24th of February 1954, in favour of the respondents, the heirs of the deceased under the Muslim Personal Law (Shariat) Application Act, 1948. Thereafter on 4th of March 1957, the appellant‑plaintiff brought the suit for declaration in respect of 1/3rd share in the properties in dispute as a legatee under the will of the deceased alleging that the bequest to the two widows who were the heirs of the deceased under Muhammadan Law having failed, he was entitled to the share in the estate of the deceased under the will. It may be mentioned that the appellant is a nephew of the deceased and is a non‑heir.

3. The suit of the plaintiff was dismissed by 'the learned Senior Civil Judge, Montgomery on 24th of April 1958, who refused to give effect to the will. On an interpretation of the will he has held that the demise to the appellant was postponed till after the death or remarriage of the two widows and that the immediate bequest to the widows was rendered void and ineffective with the application of the Shariat Law as it could not be made in favour of the heirs. The intention and "the scheme of the will to benefit the widows as the first legatees having failed, it cannot entire for the remoter benefit of the appellant. Dissatisfied with the decision, the appellant preferred an appeal which was rejected by the learned District Judge, Montgomery on 17th of January 1959, who substantially affirmed these findings by the trial Court. According to the lower appellate Court it was expressly laid down in the will that the plaintiff shall receive the bequest only after the death of the two widows and that contingency not having arisen the plaintiff could not claim 1/3rd share under it. As the will was invalid in respect of the prior legatees, the plaintiff was not entitled to the reversion either.

4. Before me it has been rightly admitted that on the death of Captain Khuda Dad in 1953, the bequest in favour of his two widows, who were his heirs under the Muhammadan Law, was 'void and ineffective in the absence of the consent by the other heirs. However, it is stressed on behalf of the appellant that on the failure of the bequest in favour of the two widows, the demise to him was accelerated and he became entitled to succeed to the extent of 1/3rd share in the estate under the will. I have carefully considered this contention advanced for the appellant but I see no force in it.

5. By the will in question, Captain Khuda Dad Khan gave the whole of the property in dispute to respondents 1 and 2 for their lives, and the bequest to the appellant was postponed till after the termination of their life interests. He was vested with no immediate interest in the estate of the testator on his death. Reliance has been placed for appellant on Mst. Chanobee and another v. Muhammad Riaz and another (P L D 1956 Lah. 786) to support his contention that the appellant cannot be deprived of the benefit of the will on the ground that the bequest in favour of the prior legatees has failed. After a careful perusal of this authority I find that it goes against him. According to this authority the answer to that question depends on the true intention of the testator. "In cases where a previous bequest fails, the will becomes inoperative if the intention of the testator was to benefit the previous legatee as much as the subsequent one". The learned Judges to that case have relied on paragraph 596 of Tyabji's Muhammadan Law, Third Edn. with approval. This is as follows:‑ " Where a bequest of a limited estate in favour of an heir is followed by a bequest to another legatee of the reversion, and the other heirs do not consent to the prior bequest to' the heir, so that it fails, in that case the bequest of the reversion does not necessarily fail, but may be accelerated, unless an intention is indicated that the reversioner shall not take till after the death of the prior legatee, or unless such acceleration would wholly defeat the intention of the testator. Semble the same rule applies wherever the prior of the two successive bequests fail." In Mst. Chanobee's case the bequest in favour of the daughter's son, the subsequent legatee, was upheld on the ground that the main object of the testator in making the will was to benefit him. That case is distinguishable from the facts of the present case. Here the scheme of the will is to directly and immediately benefit the widows in the first instance and leave the reversion for the appellant upon whom a duty was case to serve the two widows like a real son. Clearly the intention of the testator in making the will was to benefit the widows as well as the appellant in their turns. The‑first bequest was as important to the testator as the subsequent one. Therefore, in the light of the law enunciated above, on the failure of the bequest to the widows the entire will including the bequest to the appellant is rendered ineffective. In support of this view Amina Khatoon and another v. Siddiq-ur-Rehman Dihideor and others (P L D 1960 Dacca 647) is another authority. It lays down that under the Muhammadan Law if A bequeathed a life interest to B, and thereafter the remainder to C, a non‑heir, the bequest to C, will fail if the life estate to B is invalid for want of consent of the heirs. The learned nudge in that case quoted Wilson's Anglo 'Muhammadan Law, Third Edn. p. 304, Article 273 with approval. This reads as under:‑ "If a testator bequeathed a property to one of his heirs for life, or to two or more of his heirs for their joint life, and the life of the survivor, with remainder to some stranger to whom he lawfully bequeathed it or to some to be lawful charitable purpose, then the failure of the original bequest, for want of the assent of the other heirs will involve then failure of the subsequent bequest also."

6. On the authority of Fatima Bibi v. Arif Isinadjee ((1881) 9 C L R 66), Mulla in his " Principles of Muhammadan Law", Fifteenth Edn. on page 116, has observed that if "A bequeathed the rents of a house to one of his sons for life, and after his death to a charitable society for the benefit of the poor, and the other sons do not consent to the legacy. The bequest to the son being void for want of assent of the other sons; the subsequent bequest to the charity also fails. In Allah Din and another v. Abdul Ghafoor (A I R 1922 All. 383), under the terms of a will in that case the testator's wife was to succeed to a life 'estate and a stranger was to obtain the residue, it was, held that the will was unenforceable in respect of the subsequent bequest also. The wife was an heir but the other heirs did not consent to the will. The bequest would not be good in respect of 1/3rd of the property because the will shows a distinct intention that the reversioner should take nothing until after the death of the wife.

7. In the light of the above discussion, this appeal has no force in it and must fail. It is accordingly dismissed with costs. K. B. A. Appeal dismissed.