1989 PLP 2028 (CLC)

(2) Whether the defendants Nos.5 to 10 are tenants at Rs.35 in the suit property and are defaulter for a period of three years? (3) Whether defendants Nos.l to 4 have no cause of action about the suit property? (4) Whether the plaintiff has got a cause of action? (5)Whether the plaintiff has forgone his right in the suit property? (6) Whether the defendants are in adverse possession of the suit property for more than twelve years and effected improvements in it and in case of decree they are entitled to it? (7) Whether the plaintiff is estopped to sue by his own conduct? (8) Whether the suit is not within time? (9) Whether agreement deed dated 6‑3‑1953 is genuine and binding on the parties? (10) Whether the defendants are regular in payment of rent to the true owner? (11) Whether the plaintiff is entitled to the decree as prayed for? (12) Relief. After recording evidence as produced by the parties the learned Senior Civil Judge Mardan held in issues Nos.5 and 9 that the relinquishment deed, photo copy Exh.P.W.2/DI, was not registered and it was not binding on the plaintiff‑respondent No.l and so there was no legal relinquishment of his share in the property in dispute. The learned trial Judge also held in issues Nos. 4 and 11 that the plaintiff‑respondent No.l was also entitled to inherit his shari share from the share of his mother Mst. Shahzadgai which she had inherited from her husband Mian Dad. The learned trial Judge, therefore, passed a preliminary decree for possession of 4th share in the suit property by way of partition and a decree for recovery of Rs.1,327 from the amount of rent in favour of the respondent No.l by judgment dated 18‑9‑1982. Zardad defendant No. l petitioner feeling aggrieved challenged the aforesaid judgment by an appeal. The learned District Judge Mardan, who heard the appeal, agreed with the findings of the learned trial Judge and dismissed the appeal by judgment dated 28‑4‑1984. Still feeling aggrieved Zardad came to this Court with the revision petition in hand.

2. I have heard learned counsel for the parties at length who also led me through the record of the case.

3. The admitted facts of the litigation between the parties are that the petitioner and respondents Nos.l to 3 are sons of Mian Dad and Mst. Shahzadgai defendant No.4 in the suit, since deed, was his wife. Ali Akbar respondent No.l had also executed the alleged agreement deed on 6‑3‑1953 wherein he had inter alia narrated that his father Mian Dad had spent an amount of Rs.1,200 in connection with his marriage and in consideration of that he had relinquished his share in the property which was to be left by his father and had agreed not to claim any share there from. There is yet another document, photo copy Exh.P.D.1/1, which is a Will executed by Mst. Shahzadgai on 12‑9‑1979, according to which Mian Dad predecessor of the aforesaid parties died on 26‑i1‑1969 and Ali Akbar had not spent any amount in connection with the funeral expenses of his father which were entirely borne by the other three brothers Zardad, Ali Asghar and Mohammad Yunis. This Will further narrates that after her death her share from the suit property would only be inherited by Zardad her son and so she made a bequest of her share in the suit property in favour of her son Zardad. The suit was filed on 20‑3‑1979 when Mst. Shahzadgai was alive but the order sheet of the learned trial Judge shows that she had died during the pendency of the suit and her legal representatives were impleaded on 29‑1‑1980.

4. It shall thus be seen that there are two documents on the record, one executed by Ali Akbar respondent No.1 herein on 6‑3‑1953, according to which he had relinquished his share in the suit property which he was likely to inherit after the death of his father. The other document is Will by Mst. Shahzadgai mother of Ali Akbar according to which she had bequeathed her share from the property, which she had inherited from her husband, in favour of her son Zardad. The entire case depends upon the legal value of both the aforesaid documents.

5. In so far as the document which is relinquishment deed, copy Exh.P.W.2/D1 is concerned, two things are borne out there from. Ali Akbar relinquished his share from the property of his father on account of the fact that the latter had spent an amount of Rs.1,200 in connection with his marriage. Both the learned lower Courts admitted the execution of this document but they came to the conclusion that it was compulsorily registrable under section 17 of the Registration Act because it purported to extinguish any right, title or interest of the value of more than 100 rupees in immovable property which was left by Mian Dad and for that reason it was not admissible in evidence nor it could be acted upon. I am afraid both the learned lower Courts acted under erroneous interpretation of the provisions of section 17 of the Registration Act. The very contents of this document disclose that the respondent No.l herein had not yet inherited any property from his father. Actually it was a question of spes successions. The respondent No.l had not at that time inherited any property because his father was still alive. At the most it was a right to inherit property in future. No property had at that time come into his possession over which he could lay his hands. In this document the interest involved was nothing more than a mere spes succession is and the document did not go further than merely reciting a fact or other legal effect of the transaction which was already a fait accompli (amount spent in connection with marriage), its registration was not compulsory under the Registration Act. Moreover a deed purporting to relinquish or assign the chance of a Muslim to inherit in future or to succeed to an estate did not require registration, the reason being that the heir has only a chance of succession and has no right or interest in the property vested or contingent. I will, therefore, hold that document, copy Exh.P.W.2/Dl, reciting a mere chance to inherit and not creating any interest in favour of respondent No.l was not compulsorily registrable. It is also an accepted principle of Islamic Law that a Muslim heir may I by his conduct be estopped from claiming the inheritance he has agreed to I relinquish if the release was part of a compromise or family settlement and if he had benefited from the transaction. At the costs of repetition I would again say that since the respondent No.1 had derived benefit of Rs.1,200 from the property which he had yet to inherit, so he could validly execute the relinquishment deed in question. The said deed was, therefore, quite legal and it also did not require any registration and the respondent No.1 was bound by it and he was estopped from claiming any share from the property left by his father. Both the learned lower courts obviously arrived at an erroneous finding with regard to this document and the same is set aside and the respondent No.l is held not entitled to claim any share from the property left by Mian Dad.

6. Now the question arises about the validity of the will executed by Mst. Shahzadgai on 12‑9‑1979, copy Exh.D.W.l/1. This request was executed after the death of Miart Dad. Obviously Mst. Shahzadgai had inherited 1/8th share from the property left by Mian Dad in the capacity of his widow. The perusal of this deed will show that she had made a bequest of her entire share in favour of Zardad petitioner herein. According to section 117 of the Principles of Mohammadan Law by D.F. Mulla (15th Edition, 1967) a bequest to a heir is not g valid unless the other heirs consent to the bequest after the death of the testator. According to section 118 of the same book a Muslim cannot by Will dispose of more than 1/3rd of the surplus of his estate after payment of funeral expenses and debts and bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator. Two things are quite clear from the aforesaid principles of Islamic Law: firstly, that a Muslim cannot by Will dispose of more than a 3rd of the property left by him/her; and secondly, even this 1/3rd share will not be valid if the bequest is made to a heir and the other heirs do not agree. The fact that Ali Akbar respondent No.l had filed a suit for possession of his share of the property left by his father and mother would clearly indicate that he did not agree to the bequest made by his mother. She was entitled to inherit 1/8th share from the property in dispute and she left behind four sons. This would mean that each of the sons would get 1/4th share out of the share of Mst. Shahzadgai. As such Ali Akbar respondent No.l herein would be entitled to inherit 1/4th share of 1/8th share, that is, 1/32 share from the entire property in dispute in the suit. Although Mst.Shahzadgai was alive when the suit was filed but she died during its pendency and her inheritance also opened during the pendency of the suit and in order to avoid multiplicity of suits the devolution of her property upon her heirs could also be adjudicated upon in the suit in hand. Both the learned lower Courts also arrived at a wrong conclusion in respect of the inheritance of the share of Mst. Shahzadgai by her sons.

7. The net result of the above discussion is that I will partially accept this revision petition and by modifying the impugned judgments of both the learned lower courts I will grant a preliminary decree for possession by partition of 1/32 share out of the immovable property in dispute as well as the same share from the amount of rent of the suit shops as may be calculated by the learned trial Judge in the proceedings for the final decree. Since the revision petition has partially succeeded there shall be no orders as to costs. A.A./845/P Revision partly accepted.