Judgment Sheet

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

R. A. No. S – 17 of 2003

 

Before :

Mr. Justice Muhammad Shafi Siddiqui

 

 

Date of hearing                    :           28.01.2019.

 

Date of announcement       :           12.02.2019.

 

 

Mr. A. M. Mobeen Khan, Advocate for the applicants.

Mr. Sarfraz A. Akhund, Advocate for the respondents.

 

 

J U D G M E N T

 

MUHAMMAD SHAFI SIDDIQUI, J. – This Revision Application impugns the judgments and decrees of the two Courts below. The findings are concurrent. The trial Court decreed the suit in respect of properties mentioned in paragraph 2, sub-para (i) to (iii), whereas, for the rest of the reliefs the suit was dismissed. The applicants, being aggrieved of it, filed an appeal bearing No.28 of 1991, which maintained the judgment and decree of the trial Court and dismissed the appeal on 12.12.2002. Aggrieved of the two judgments, concurrent in nature, applicants filed this Revision Application.

2.         Brief facts of the case, to understand the controversy, are that one Anwar Ahmed son of Muhammad Hashim Qazi filed suit for declaration and partition in respect of properties and assets left by his father Muhammad Hashim Qazi. The properties are described in paragraph 2 of the plaint, which are as under:

i)             A residential house with upper story at Moro Sindh;

ii)            Eight godowns in front of Mumtaz Cinema Moro Sindh;

iii)           An area of about 21087 Sq. Ft. from Sikni land in the north of office of DSP Moro Sindh;

iv)           Ornaments and house hold articles;

v)            Cash;

vi)           One third share in Sikni land jointly owned with his brother Kazi Muhammad Tayab and heirs of his another brother late Kazi Muhammad Kassim still lying disposed of; and

vii)          One third share in the amount still unpaid in respect of Sikni land jointly owned with his brother Kazi Muhammad Tayab and heirs of his another brother late Kazi Muhammad Kassim which was sold during his life time but the sale has not been finalized yet.

3.         The suit was contested by applicants. Applicant No.1 Aisha was the second wife / widow of Muhammad Hashim Qazi, whereas, applicants No.2 and 3 are daughters of Mst. Aisha / applicant No.1 from her first husband Muhammad Talib Soomro, hence, are out of the ambit of legal heirs of Muhammad Hashim Qazi.

4.         The suit was contested by the applicants on the strength of a document, which is a bone of contention and main controversy. It is claimed by the applicants that in the first instance it is a gift deed in respect of the properties mentioned in paragraph 2 of the plaint and in the second breath it is also claimed to be considered as a Wasiatnama / Will to the extent of 1/3rd of the properties of the deceased. Both the Courts below i.e. trial Court and appellate Court have neither considered it as a gift deed nor a Will and gave their respective reasoning to that effect by holding that applicant No.1, being widow of the deceased, was entitled to respective share under Muhammaden Law out of the assets left by the deceased.

5.         I have heard the learned counsel and perused the material available on record.

6.         The document, on the strength of which the applicants are contesting this matter, was exhibited as Ex.114-A. Same document is produced by both the parties but the applicants failed to prove it as required under the Evidence Act and/or Qanun-e-Shahadat Order, 1984. The document is claimed to have been registered in the year 1979 when the Evidence Act was operating. In the cases of Noor Muhammad v. Nazar Muhammad reported in 2002 SCMR 1301 and Muhammad Rafique v. Ashraf Din reported in 2006 SCMR 340, it has been held that the document executed prior to Qanun-e-Shahadat Order is to be proved in the light of provisions of Section 68 of the erstwhile Evidence Act, 1872. It is somehow pari materia to Article 79 of Qanun-e-Shahadat Order, 1984.

7.         Perusal of this document (Ex.114-A) itself reveals that the author had the intention to prepare a Wasiatnama / Will, as the alleged author / executor himself described it as a Wasiatnama / Will. In paragraph 5 of the document the author / executor disclosed that so long he is alive he shall have concern with the same and after his death the implementation will be made according to Wasiat. In the said document word “Wasiatnama / Will” is used in almost every paragraph and it is nowhere suggested by the alleged author / executor that this could be treated as a “Gift”.

8.         The other material document exhibited as Ex.120-B, which is claimed to be a confirmation, is also allegedly executed on 04.07.1982, which also described the earlier and the relevant document (Ex.114-A) as Wasiatnama / Will. Thus, I have no hesitation in my mind that the two Courts below have rightly held that this document cannot be read as a “Gift Deed”.

9.         Execution of above said documents is seriously contested by the respondent and the applicants were burdened with heavy onus to prove either of the two. Applicants examined one Shamshad Ahmed as their attorney as Ex.120. This witness was only 5 years old when the subject document was made in the year 1968 and 16 years old when Ex.114-A was executed.  Besides, this witness is admittedly grand maternal son of applicant No.1. Hence, besides being of tender age as the primary concern, he was an interested witness and thus the evidence was not confidence inspiring.

10.       Ex.114-A shows a number of witnesses as attesting witnesses but none of them was examined at the relevant time. As required by Clause (c) of Section 63 of the Succession Act, the Will is to be attested by two or more witnesses. According to Article 79 of Qanun-e-Shahadat Order which is framed under Section 68 of Evidence Act, if a document is required by law to be attested it shall not be used as evidence until two attesting witnesses have been called for the purpose of proving its execution. If no such attesting witnesses can be found, then under Article 80 it must be proved that the attesting witnesses have either died or cannot be found. Where no such evidence is brought on record to prove execution of the Will, the execution would not be proved.

11.       Looking at a document from the angle of a Will, Article 117 and 118 of Mullah’s Principles of Muhammaden Law provides that bequest to heir is not valid unless the other heirs consent to the bequest after the death of testator; one single heir may consent so as to bind his own share and the limit is prescribed under Article 118 of the Mullah’s Principles of Muhammaden Law. Bequest in excess of 1/3rd cannot take effect unless the heirs consent thereto after the death of testator. It is not the case of applicants / defendants that this Will may be read to the extent of 1/3rd of the assets of the deceased.

12.       It is their (applicants’) defence that this documents should either be read as a gift and in case it is not then at the least this could be read as a Will of testator. On both the counts the applicants would fail. Had it been contested by the applicants that this could be implemented to the extent of 1/3rd of the estate left by the deceased then it could have been viewed differently but that is not the case and evidence putforth by applicants. The Court is required and bound by the pleadings of the parties as they do not claim its benefit to the extent of Article 117 and 118 of the Muhammaden Law, therefore, the benefit cannot be delivered.

13.       The registration of a document does not help in proving the contents of the document. This burden is to be discharged separately under the Evidence Act, 1872 and/or the Qanun-e-Shahadat Order, 1984. Mere alleged registration does not prove the contents of the instrument. The quantum of evidence to establish a testamentary paper must always depend upon the circumstances of each case. Burden to prove execution lies on those propounding a Will to affirm positively execution of the Will. Opposite side should not be burdened with onus to prove that Will had not been executed or that it was a forged one.

14.       More importantly when the contents of the documents itself were not proved and in fact the appellate Court has doubted about the execution of the above referred documents, then there is no question of reading it down to the extent of benefit under Article 117 and 118 of Muhammaden Law.

15.       In view of the above, I do not find any reason to interfere in the concurrent findings of the two Courts below, resultant instant revision application is dismissed along with pending application.

 

 

 

J U D G E