2017 PLP 422 (YLRN)

AMIN-UD-DIN KHAN, J.

Through this writ petition petitioners, who are plaintiffs of a suit, have challenged the order dated 28.10.2014 passed by the learned Additional District Judge, Arifwala as Revisional Court whereby revision petition filed by the respondents-defendants was accepted and plaint of the suit was rejected.

2. Brief facts of the case are that petitioners on 26.10.2009 filed a suit for declaration pleading therein that Mst. Mubarak Begum deceased was unmarried and being a political worker of Pakistan People Party she was elected as Member National Assembly. She was permanent resident of Sahiwal. Predecessor of the plaintiffs namely Manzoor Ahmad Chughatta husband of plaintiff No. 1 brother of plaintiff No. 2 and son of plaintiff No. 3 remained in service of said Mst. Mubarak Begum for whole of his life. He started serving Mst. Mubarak Begum at the age of 5 years and for 26 years he served Mst. Mubarak Begum. In order to recognize the services of said Manzoor Ahmad, Mst. Mubarak Begum made a Will written on 19.4.1981 in favour of Manzoor Ahmad to the effect that whole of the property of Mst. Mubarak Begum will devolve upon Manzoor Ahmad after her death and this Will was thereafter got registered on 25.4.1981. It is pleaded that said Manzoor Ahmad passed away on 27.5.1994 in the life of Mst. Mubarak Begum and Mst. Mubarak Begum passed away on 1.1.1996. Hence, the suit. Written statement was filed wherein it was contended that suit is not maintainable and an application under Order VII, Rule 11 of the C.P.C. was moved by the defendants. The application was decided in a way that learned trial court on 26.7.2013 framed a preliminary issue No. 1 "whether the suit is barred by law" OPD. Against the said order defendants-respondents preferred a revision petition which has been accepted vide judgment dated 28.10.2014 and suit of the plaintiffs was rejected under Order VII, Rule 11 of the C.P.C. Hence, this writ petition by the plaintiffs.

3. Learned counsel for the petitioners argues that after filing of revision petition by the respondents, petitioners moved an application for amendment of pleadings before the learned trial court, therefore, learned Revisional Court was not competent to reject the plaint when the application for amendment of the plaint was pending in the trial court. Prays for acceptance of the writ petition and setting aside the order passed by the learned Revisional court dated 28.10.2014.

4. On the other hand, learned counsel for the respondents argues that the order passed by the learned Revisional Court is absolutely in accordance with law and there is no defect in the said order. Further states that even through the proposed amendment sought through the application in the plaint is that said Manzoor Ahmad was follower of "Fiqah Jafaria". States that if this fact is admitted to be true even then it will make no difference as for distribution of estate of deceased the sect of deceased is relevant and not the person receiving the share in the estate of the deceased through inheritance or Will etc.

5. I have heard learned counsel for the parties at length and gone through the record with their able assistance.

6. So far as plaint is concerned, in the plaint there is nowhere mentioned about the sect of the alleged testator Mst. Mubarak Begum as well as alleged Legatee Manzoor Ahmad. Through the application for amendment, in the application it is mentioned that the plaintiffs by scrutiny of papers of Manzoor Ahmad found an affidavit of Manzoor Ahmad dated 13.4.1992 attested on 15.4.1992 to the effect that the deceased agreed to follow the Shia sect, therefore, amendment has been sought in the plaint that their predecessor Manzoor Ahmad was follower of Shia sect. The said application was contested by the defendants pleading that the plaintiffs have tried to resile from the admission. According to Para 121 of the Principles of Muhammandan Law by D.F. Mulla "If the legatee does not survive the testator, the legacy will lapse, and from part of the estate of the testator." In this case, admittedly, legatee died before the death of the alleged testator, therefore, subject of the Will become the part of the estate of testator. Same is the position of section 105 of the Succession Act, 1925, which is reproduced for ready reference:-- "(i). If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and from part of the residue of the testator's property, unless it appears by the will that the testator intended that it should go to some other person. (2). In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator." Para No. 294 of the Anglo-Muhammadan Law a digest by Sir Roland Knyvet Wilson revised by A. Yusuf Ali printed by the Law Publishing Company, Katchery Road, Lahore (Pakistan), is also relevant which is reproduced for ready reference:- "If the legatee does not survive the testator the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property, unless it appears by the will that the testator intended that it should go to same other person. In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator." Para 39 of the Muhammadan Law by D.F. Mulla states administration of the estate of the deceased, which is also reproduced for ready reference:- "The estate of a deceased Muhammadan is to be applied successively in payment of:- (1) His funeral expenses and death-bed charges; (2) Expenses of obtaining probate, letters of administration, or succession certificate; (3) Wages due for service rendered to the deceased within three months next preceding his death by any labourer, artisan or domestic servant; (4) Other debts of the deceased according to their respective priorities (if any); and (5) Legacies not exceeding one-third of what remains after all the above payments have been made. The residue is to be distributed among the heirs of the deceased according to the law of the sect to which he belonged at the time of his death, and the heir has a right of contribution against his co-heirs, if by the action of the judgment creditor under a decree under section 52 of the Civil Procedure Code against all the heirs, he was left with less than his proper share of the net estate of the deceased. Under Muhammadan law, the payment of the debts, of the deceased takes precedence over the legacies."

7. Resume of the above discussion is that learned Revisional Court has rightly exercised the jurisdiction and rejected the plaint under Order VII, Rule 11 of the C.P.C. when the legatee passed away before the death of testator and the application for amendment of the plaint stating that some affidavit was found in the papers of the deceased legatee that he will profess Shia faith, if this fact is admitted, even then, it does not give any benefit to the plaintiffs as the succession is to be governed in accordance with the faith of the testator or the propositus. I am further fortified by the judgment of learned Division Bench of this Court reported as "Farzand Ali v. Mst. Sughrah and 2 others" (2003 MLD 824) with regard to exercise of jurisdiction under Order VII, Rule 11 of the C.P.C. Further judgment of this Court reported as "Gulistan Textile Mills Limited v. Askari Bank Limited and others" (PLD 2013 Lahore 716) can also be relied.

8. For what has been discussed above, this writ petition being not maintainable stands dismissed. ZC/J-7/L Petition dismissed.