Will

Will can be considered as a formal document drawn up by a natural person wherein he expresses his wish as to how he would want his estate to be distributed after his death

By virtue of the fact that wills operate after the death of the donor, they are considered testamentary instruments i.e. instruments that come into effect after the death of the donor/testator

Will, therefore, ceases to be a will if it is executed and acted upon during the lifetime of the testator

Instead, a will executed in the lifetime of a donor takes on the guise of an inter-vivos instrument i.e. an instrument which is executed within the lifetime of a person which can take the form of a gift which has its own requirements and different standards of proof.

Appellants/ plaintiffs claimed to be owners in properties left by their parents and had assailed Will Deed and agreement relied upon by respondents/defendants who had already transferred some property to some other buyers

Suit filed by appellants/plaintiffs was dismissed by Trial Court

Validity

Properties in question initially belonged to predecessor-in-interest of parties and subsequently by means of Will were transferred in the names of respondents/ defendants in revenue record

Subsequent buyers after getting their satisfaction from revenue record bonafidely purchased the same

Subsequent buyers paid sale amount to respondents/defendants and revenue record was transferred to their names in accordance with law who had been enjoying their peaceful possession and business over property in their possession

High Court maintained findings of Trial Court to the extent of such transfer to subsequent buyers who were bona fide purchasers, whereas appellants/plaintiffs were entitled to receive their proportionate shares from sale amount as on the date of sale transaction

Bequest to an heir under Islamic Law was not valid unless other heirs consented to the same after the death of testator

Any single heir could consent as to bind his own share

High Court declared that appellants/plaintiffs were co-sharers of properties left by their deceased parents to the extent of their shares except the properties sold out to subsequent buyers but they were entitled to receive their shares from sale consideration amount as it was on sale date

High Court declared that Will Deed and agreement were null and void and directed to cancel revenue record entries, transactions and business carried out in pursuance to two documents

High Court set aside judgment and decree passed by Trial Court

Appeal was allowed accordingly.

Testator could not bequest his entire property, however he could bequest only 1/3rd of his entire property with the consent of legal heirs

Property could not be bequested in favour of legal heirs without the consent of other legal heirs

Scribe of will deed in the present case, was not mentioned nor had been produced by the plaintiffs

Contents of will deed were against Quranic version, Sunnah and law

Muslim could exercise his right to utilize his property as he wished in his lifetime by alienating the same in any manner but he had no right to by-pass the dictates of Quran, Sunnah and prevailing law

Testator had no authority to deprive the legal heirs of their shari shares through will deed

Inheritance mutation had been attested prior to execution of will deed

Statements of marginal witnesses of will deed were full of contradictions

Notary public who attested the will deed had not entered the same in his register

Legal right which had bestowed upon the heirs could not be jeopardized by executing an unregistered deed which was not in the knowledge of legal heirs

Consent of other legal heirs had not been obtained while executing the will deed

Said will deed had not been proved nor the same contained the description of property

Legal rights of defendants to the extent of their 'shari' shares could not be disturbed

Inheritance mutation attested in accordance with law was not liable to be annulled which was maintained

Plaintiffs were bound to prove partition deed by producing cogent and confidence inspiring evidence

Partition deed was unregistered document which had not been proved

Temporary arrangement of partition for the purpose of produce of land would not amount to permanent private partition or a legal partition

Both the courts below had decided the lis with conscious and application of independent mind

Revision was dismissed in circumstances.

Scope stated.

Plaintiff had claimed legacy under the will, in the suit for declaration filed four months after the death of the testator claimed to be issueless Shia against the defendants collaterals and the widow and challenged inheritance mutations

Inheritance mutations had shown that widow was excluded by applying the Shia Law

Defendants filed written statement and denied the execution of the will; widow in her written statement urged that her husband was a Sunni and she was entitled to inherit the estate as neither the plaintiff nor the defendants were the heirs of the deceased

Trial Court decreed the suit and both appeals, one filed by the widow and the other by the defendants, were dismissed

Widow was not impleaded as she had not filed the revision

Validity

Widow was held to be a necessary party, she had contested the suit with her own version

Suit property was admittedly owned by the deceased, relationship of the widow and collaterals was admitted, deceased died issueless, plaintiff was not an heir of the deceased and the document stated to be a will was dated one month prior to the date of death of the deceased

Reading of the said document showed that it was not a "will" but a complete disposition of property

Deceased was sole owner of the property, the document could not take effect as a gift as there was no acceptance thereof by the plaintiff and it could not take effect as a release deed for the reason, that plaintiff was not a co-owner

Witnesses produced were the first cousins of the plaintiff, while. the stamp vendor and the scribe was not produced

Evidence in the light of the contents of the said document showed that the Courts below had not cared to read the same in proper perspective

Execution of the alleged `will', in circumstances, was not proved.

Will made by deceased in favour of non-heir(s) would be effective even without consent of heir(s) of the deceased.

Muslim under Islamic Law, cannot dispose more than 1/3rd of the surplus of his estate after payment of funerwa'1 expenses and debts

Bequest in excess of the one-third cannot take effect unless the heirs consent thereto, after the death of the testator

Half of the property, in the present case, was bequeathed to other persons and half of the property was left for legal heirs

If the will was in violation of the principle of Islamic Law, same was illegal and bequest abated ratably,-if the legal heirs refused to give their consent.

Testator/father who was alive, had every right to deal with the property in respect of which the will was made by him and if he would sell the bequeathed property, it would amount to implied revocation and he need not file a case for cancellation of the documents

Contention that revocation should be express and through intervention of the Court, was not tenable and was against the concept of Islamic Law, which permitted revocation either expressly or by implication.

Respondent/defendant claimed the exclusive ownership of the suit property on the basis of a "Wasiatnama (Will) " in her favour

Such Wasiatnama (Will) was neither placed on record, nor any explanation was given whether that document had been lost or destroyed and no attempt was even made to produce secondary evidence thereof

Suit was dismissed by Trial Court and appeal before lower Appellate Court also met the same fate

Validity

None of the witnesses of the petitioner/plaintiff had admitted the execution of the Will (Wasiatnama) in their presence

Execution of such "Wasiatnama (Will) " by the deceased in favour of the respondent/defendant was not fully proved

Both the Courts below had not only misread the evidence rather it was a clear case of non-reading and drawing illegal inference

Judgment and decrees of both the Courts below were set aside.

Granted to consider whether question of deceased testator being governed by custom was a mixed question of fact and law and whether deceased testator at time of execution of will was possessed of disposing mind or suffering from marzul maut.

[Custom (Punjab)

Muhammadan Law].

Ss. 232 & 259-Will-Letters of administration-Flagstaff House, Quaid-i-Azam s property, sale of-Flagstaff House to be sold out pursuant to Quaid-i-Azam s wishes reflected in his will and codicil, on principle, agreed to by Administrators; that it should not necessarily be disposed of at highest offer but while accepting offers consideration of immortalising memories of Father of Nation to be taken into account-Administrators also unanimously deciding non-acceptance of bids by parties intending to build a hotel lest part of premises be used as night clubs, for dancing, drinking, a cinema house etc. causing stigma to Quaid-i-Azam s name-Representatives of both beneficiaries under Qusid-i-Azam s will favouring acceptance of bid of National Bank of Pakistan for reason of other parties being practically unknown persons and not having shown any credentials extremely risky to trust them in matter of honouring their commitments particularly regarding prohibition placed on use of site-Two other Administrators and Att

Will?Ancestral property?Meaning ?Essence of ancestral property?Descent from an ancestor?Property descending to sons from father?Ancestral and got by way of inheritance?Will a mere pious wish of father regarding division of property?Mere fact of division being unequal could not alter nature and character of property.[Words and phrases].

Validity of endowment-Executant of trust divesting himself of property.

Note at foot of will stating "My son N . . . . . if he comes back, then all these lands and house (bequeathed by will) will be his property but if he does not come back they will belong to the legatees"-N, after long absence from country returning home-Will, held, conditional and N's claim on his re-appearance could not be disputed.

Hinda widow's right in property inherited from husband-Limited for life-Cannot be disposed of by will-Transferee of such property on basis of will executed by widow-Cannot file ejectment proceeding against tenants of property.

Principles relevant for dealing with wills. There are a few rules which are relevant while dealing with cases of "wills" and especially such a "will" in which there is involved a foreign element.

Muhammadan Law-Will in favour of heir-To be valid requires consent of all other heirs.

S. 59-Will-Affixing of signature to will by testator after same is read over to and approved by testator-Directions contained in will thereby become directions of testator himself.

Will -(Genuineness)-Testamentary capacity -Sound disposing mind-Not disproved by existence to some extent of brain affection-Question to consider is whether propositus was incapable of understanding nature and consequence of his act-State of mind on date of execution of will to be ascertained-Attack of paralysis may affect intellect to some extent but does not necessarily negative existence of sound disposing mind-Insane person may have lucid intervals-Sound and disposing mind means only "capacity to comprehend nature and effect of will"-[Sajid Ali v. Ibad Ali 23 Cal. 1. rel.]

Several contestants under three Wills, arriving at a family settlement and suing jointly a trespasser-Such settlement given effect to.

Question of fact-No hard and fast rule can be laid down as to meaning of expressions used in Will, unless such expressions have been used in particular sense from times immemorial.

Whether Will cannot be propounded unless party propounding discharges onus of proving it to be last Will of testator.

Will-Distinction. Gift and will are two distinct transactions but in certain respects the same rules will govern them both, because they are the gratuitous transfers of property by one person to another and that is the only common feature between the two.

Will Charitable bequest, definition-Persons to benefit "directly" by bequest being employees of a certain company-Bequest whether charitable-Plain words to be given their plain meaning-Consensus of opinion upon question of construction in Courts below-Judicial Committee would be reluctant to take a different view.

Will Will-Burden of proof-Sound disposing state of mind of testator-Burden on party propounding will-Undue influence Burden on party alleging. While the party propounding the will has to establish that it was executed in a sound disposing state of mind, the burden of proving that the will resulted from coercion and undue influence is on the party who alleges it.

Righteousness of transaction-Onus of proving.

Will Will-Bequest-Conditions in partial restraint of marriage of legatee-Held invalid in absence of a gift over-Rule of English law

Application in Malaya.

Testator governed by custom at time of making will-Testator dying after coming into force of West Punjab Muslim Personal Law (Shariat) Application Act, 1948-Will given effect only so far as permitted by latter Act.

Will-Registered-Upheld by Civil Court only in respect of house property not in respect of land-Will rightly ignored by Revenue Officer.

Will Construction-Bequest of a "sum of five thousand pounds of the capital I have invested in the partnership business.........Amount to specific legacy of five thousand pounds.

The testator after making certain specific devises and bequests devised and bequeathed the residue of his real and personal estate upon trust (subject to certain annuities thereinafter mentioned) in the following terms for my said two daughters Grace McDonnell and Emily Sarah McDonald for life in equal shares with remainder in fee to their issue in equal shares their grandchildren if any taking per stripe.

Will-Probate-Principles governing grant of the onus probandi lies on the person who propounds the will, and this onus is in general discharged by proof of capacity, and the fact of execution, from which the knowledge and the assent to its contents by the testator will be assumed.