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Civil Revision No. 449‑D of 1981, decided on 7th December, 1981.

‑‑ Will‑‑Extent of validity‑M executing registered deed of will giving his entire property including land in dispute to his mother S ‑ After death of M, only one heir K consenting to will in favour of S but other heirs not consenting ‑ Held, will in favour of heir S valid up to her own share and of K giving her consent but S could not get share of heirs not consenting.

Holy Qur'an Sura Al‑Baqarah, V. 180 ref.

Hassan Ahmad Khan Kanwar for Petitioner.

Malik Noor Mohammad Awan for Respondents.

Date of hearing : 7th December, 1981.

The events and 'circumstances leading to the filing of the present petition under section 115 of the Code of Civil Procedure seeking revision of the judgment and decree of the learned District Judge, Mianwali, dated the 11th March, 1981, modifying on appeal the judgment and decree of the learned Civil Judge, Mianwali, dated the 1Ith January, 1978 whereby the petitioner's suit for a declaration that she was the owner and in possession of 300 kanals 16 marlas of land in dispute; situate in the area of village Kalri, tansil and District Mianwali, and asked for relief of permanent injunction restraining the respondent from interfering with her possession was decided, may be shortly stated as follows. By means of the registered deed of will, dated the 27th May, 1949, Exh. P‑1, the late Maula Bakhsh willed away his entire property, including the land in dispute, in favour of his mother, Msr. Sahib Khatun, petitioner Maula Bakhsh expired on the 8th January, 1973. His son, Aman Ullah respon dent 1, got mutation (No. 3635, copy Exh. P‑2) regarding inheritance of the land left by him sanctioned in the names of his heirs according to Muslim Personal Law: On the 20th March, 1976, the petitioner, on the basis of the aforementioned will, instituted suit to assert her right of ownership over the land in dispute and asked for the relief of permanent injunction restraining the respondents from interfering with her possession.

2. Maula Bakhsh's daughter, Mst. Sonar Khatuu, respondent 5, alone consented to the bequest in the petitioner's favour. The other heirs, namely, Inayat Ullah Khan, Aman Ullah and Zafar Iqbal, respon dents 1, 2 and 4, sons of the testator, did not give their consent to the will in question: As, Aman Ullah, respondent failed to put in persona appearance before the learned trial Civil Judge the latter took him to have consented to the bequest so as to bind his share. The learned Civil Judge formed the view that the request to the extent of 1/3rd of the disputed land in favour of the petitioner's was valid and out of the remaining 2/3rd share she would get her 1 /6th share as. mother of the testator as well as the share of Aman Ullah, respondent 1, and Mst. Sonar Khatun, respondent 5. He allowed the petitioner to retain 10/14th share in the suit land.

3. 1n appeal the learned .District Judge concluded that Aman Ullah, respondent I, had not given his consent to the will in the petitioner's favour and that she could get only the share of Mst. Sonar Khatun, respondent 5, in addition to her legitimate 1/6th share in the property. He was of the view that as the consent of other heirs. to the will was not forth coming she could not get more than her own share and that of Mst. Sonar Khatun which totaled up to 13/42th. Accordingly he modified the decree passed by the learned trial Civil Judge. Feeling aggrieved she has invoked the revisional jurisdiction of this Court.

4. When the learned counsel for the petitioner was confronted with the legal situation that according to settled Islamic Law applicable to Sunni Muslims bequest to an heir is not valid unless the other heir consent to the bequest after the death of the testator and that a legatee cannot inherit the share of any other heirs who does not consent to the bequest, he questioned the validity of this form of law as had been developed by jurists and Courts. Referring to verse 180 of Sura Al. Baqarah of the Holy Qur'an he maintained that there was no limit placed by the divine word on the bequest made in favour of one's father and mother. However, the said verse simply states that it is prescribed for you when one of you approach the death, if he leave wealth that he bequeath unto parents and near relatives in kindness. (This is) a duty for all those who ward off (evil). It does not speak of the limits or the conditions appertaining to the bequest. According to law as settled and administered by the Courts in this country the bequest in favour of the petitioner was valid to the extent of her own share and that of her daughter, Mst. Sonar Khatun, who consented to the bequest. The petitioner could not get the shares of other heirs who did not consent to the bequest. In this view of the matter, the decision of the learned District Judge holding the petitioner entitled to 13/42th share of the estate of the testator is quite correct and does not demand any interference in revision by this Court. This petition is without any force and is dismissed. The parties are left to bear their own costs.

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