1982 PLP 366 (SCMR)

MUSHTAQ HUSSAIN, J. The petitioners filed a suit for a declaration that Mst. Noor Elahi, respondent No. 2, is not the widow of Ahmad Bakhsh deceased as she was divorced and Muhammad Hussain, respondent No. 2, is not the son of Ahmad Bakhsh and, therefore, not entitled to inherit property left by the deceased. In the alternative a declaration was sought to the effect that the plaintiff's are owners of the property on account of a gift made by the deceased on. 5‑7‑1973. Ghulam Sarwar claimed that he was entitled to inherit as a brother of Ahmad Bakhsh.

2. The civil Court treating the document Exh. P. 1 as a will decreed the suit to the extent of 1/3rd on 17‑5‑1976.

3. Both the parties filed appeals which were dismissed by the District .Judge, Bahawalpur on 27‑1‑1977.

4. The petitioners then filed Civil Revision No. 38‑77/BWP which was dismissed by the Lahore High Court, Bahawalpur Circuit on 26‑3‑1980.

5. Hence this civil petition for special leave to appeal.

6. The only point raised before us is whether the document is a gift or will, and it was the question which was agitated before the High Court in the civil revision petition.

7. The Privy Council held in P L D 1949 P C 26 that‑ "Section 115 applies only to cases in which no appeal lies, and where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters; (a) that the order of the subordinate Court is within its jurisdiction; (b) that the case is one in which the Court ought to exercise jurisdiction; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however, profoundly from the conclusions of the subordinate Court upon question of fact or law. There can be no justification whatsoever for the view that section 115(c) was intended to authorize the High Court to interfere and correct gross and palpable errors of subordinate Courts. It would indeed be difficult to formulate any standard by which the degree of subordinate Courts could be measured. Where the High Court interfered on the ground that the subordinate Court has made a serious mistake in the construction of a will. Held, that the order of the High Court was without jurisdiction and must be set' aside." The civil revision, therefore, was not competent and should have been dismissed out of hand.

8. We have, however, looked into the document also and have no difficulty in coming to the conclusion that it was not a deed of gift but will. It has been clearly stated in paragraph 4 of the document.

9. There could have been no clearer indication of what the document was. The petition therefore, holds no water, is dismissed and leave to appeal refused. Petition dismissed.