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Civil Revision No.750 of 1986, decided on 4th May, 1987.

-- Mutwalli--Appointment of Mutwalli through Will, by dying Mutawalli--Execution and validity of Will--Quantum of proof Where contents of Will showed that maker of Will although a literate person, was weak and sick, lying on death bed, extra precaution of obtaining his thumb-impression, held, could not cast any shadow on the valid execution of Will, especially where execution of Will and contents thereof, were witnessed by sons and brother of executant and strongly corroborated by evidence on record.

---Appointment of successor by regular Mutwalli--Validity of--Mutwalli for the time being, held, could appoint through Will, a successor, if he himself was lying on death bed.

Mahomedan Law by Mulla, 1980, S.204ref.

---S.115--Revisional jurisdiction, exercise of--Where concurrent findings of Courts below did not suffer from irregularity or illegality and were in accord with evidence on record, High Court declined to interfere in revisional jurisdiction.

R . A . Ghori for Petitioners.

Ch. Abdul Ghani for Respondents.

There is a mosque known as Masjid Haji Ghulam Rasool Wali situated in Mauza Gogran, Tehsil Lodhran, District Multan. Obviously the mosque was built and set up by Haji Ghulam Rasool. He died on 1-5-1950, but before his death he had appointed his son Haji Rahim Bakhsh as Mutawalli of the said mosque on 27-4-1950. Haji Rahim Bakhsh died on 27-1-1968, but before his death he executed a Will on 25-1-1968 through which he appointed Haji Muhammad, respondent No.1 as Mutawalli of the mosque. The petitioners disputed the appointment of Haji Muhammad as Mutawalli and for that matter they also disputed the said Will dated 25-1-1968 and as such prevented respondent No.1 from performing his duties as a Mutawalli. Respondent No.1, therefore, filed a suit for declaration that he was a Mutawali and Manager of Masjid Haji Ghulam Rasool Wali alongwith its Dars Gah and prayed for a perpetual injunction restraining the petitioners/ defendants from interfering in the performance of his duties. The suit was contended by the petitioners. Ultimately it was decreed in favour of respondent No.1 by the learned Civil Judge, Lodhran, District Multan, vide judgment dated 20-3-1986. An appeal filed by the petitioners was dismissed by the learned Additional District Judge, Multan vide judgment dated 20-10-1986. This revision petition has been filed to challenge the said judgments and decrees. I have perused the record and have heard arguments.

2. The only contest before me relates to the execution and validity of the said Will dated 25-1-1968, Exh. P.2: There is a concurrent finding of the learned Courts below that the Will was duly executed by Rahim Bakhsh, the previous Mutawalli and that the same was valid. The learned counsel for the petitioners contends that there has been misinterpretation of the evidence that has come on record. His main plea is that Haji Rahim Bakhsh was a literate person but the Will was thumb marked by him in addition to putting his signatures thereon. He contends that it was not an extra precaution but it shows that the document in itself was a fake document. The contents of the said Will show that Haji Rahim Bakhsh was an old, weak and sick person lying on the death bed. In such circumstances the extra precaution of obtaining his thumb impression cannot cast any shadow on the valid execution of the Will. Apart from that there is lot of evidence and strong too, to prove the execution of the Will. . Faiz Bakhsh, the scriber of the Will, has appeared as P.W.3 and has amply proved the writing of the Will and execution of the Will. Similarly Abdul Haq, a marginal witness has appeared as P.W.4 and has likewise supported the Will. Abdul Wahid, P.W.3 one of the marginal witnesses) has stated that the Will was scribed by Haji Abdul Subhan although it was scribed by Faiz Bakhsh. It is this contradiction on the basis of which the learned counsel for the petitioners wishes that whole of the evidence oral and documentary produced by the respondents should be disbelieved due to this minor contradiction which has occurred due to the passage of time. Where were so many witnesses of the said Will, out of whom three i.e. P.W. 2, P.W. 3 and P.W. 4 have appeared in evidence. The evidence of all the three P.Ws. is corroborative of each other and is also corroborated by the Will Exh.P.2, in all material aspect. Such a strong evidence can not be undone by the minor discrepancy that has occurred in the statement of P.W.3. There is no rebuttal of this so strong evidence and, therefore, the making of the Will and the execution of the Will have been proved beyond doubt. It may be pointed out that Haji Rahim Bakhsh was so conscious towards his duty before Allah the Almighty and the Mosque that to avoid a contest, in regard to the appointment of Mutawalli, by his brother and sons he made all of them to witness the said Will. Malik Wahid Bakhsh is the son of Ghulam Rasool, the founder of the mosque. Abdul Haq, P.W.4, Abdul Samad, Abdul Qadir and Hafiz Abdul Malak his sons, are all marginal witnesses of the said Will. Exh. P.2. There is no dispute and at least there is no, evidence to rebut the contents of the Will that Rahim Bakhsh was an old and sick man and was lying on death-bed. This also is proved and admitted that he died only two days later i.e. on 28-1-1968. In these circumstances the making and the execution of the Will can in[ no way be doubted and the finding of the learned Courts below in respect thereof are correct and are confirmed.

3. The learned counsel for the petitioners has argued that under section 204 of Mulla's Mahomedan Law (1980) Rahim Bakhsh deceased could not appoint another person as Mutawalli. Under clause (c) subsection (2) of section 204 ibid a Mutawalli for the time being can appoint a successor on his death-bed. The learned counsel contends that the use of words for the time being refer to a Mutawalli who is acting as a Mutawalli just as a stopgap arrangement and not as a Mutawalli. This argument has no force. "Mutawalli, for the time being" means a person who is Mutawalli at the relevant time. This means that a Mutawalli can appoint a successor if he himself is at that time Mutawalli and is lying on his death-bed. Rahim Bakhsh was undisputedly a regular Mutawalli on 25-1-1968 when .he executed the said Will and he executed the same while he was lying on the death-bed. Therefore, even legally the Will is quite valid. There is no irregularity or illegality in the findings of the learned Courts below. The revision petition is dismissed in limine.

A. A./N-62/L Revision dismissed.

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