ABDUL HAQ and another vs Mst. SURRYA BEGUM and others

' MUNIR A. SHEIKH, J.---The dispute in this case relates to the property owned by Samad Khan who died in the year 1960. This was an evacuee property which was allotted to Samad Khan in lieu of his verified claim.

2. On the death of Samad Khan in 1960, on 26-2-1961, mutation of his inheritance was sanctioned. It is an admitted position that at the time of his death, his one son Atta Muhammad was alive whereas the other son Ali Muhammad had predeceased him. The parties in the present case are heirs of Ali Muhammad but the petitioners' case was that they are sons of Ali Muhammad but the respondents were not his daughters. They were born out of the wedlock of Muhammad Bibi their mother from the previous husband Nazir Muhammad, therefore, they were not entitled to inherit any share in the property of Samad Khan.

3. It is clear from the mutation that the same was sanctioned on the basis of will allegedly made by Samad Khan. Atta Muhammad appeared before the Revenue Officer at the time of sanction of mutation but he objected to giving effect to the will. It was stated before the Revenue Officer that Atta Muhammad was dislodged by Samad Khan, therefore, being dislodged to him, he was deprived of right of inheritance in the property by Samad Khan. The said mutation was sanctioned in favour of .The present petitioners and respondents as daughters of Ali Muhammad predeceased son of Samad Khan.

4. The present petition has arisen from a suit filed by the petitioners in the year 1979 for declaration that they were entitled to inherit whole of the property of Samad Khan. The respondent according to the pleadings of the petitioners were the daughters of Nazir Muhammad who was previous husband of Muhammad Bibi their mother.

5. The trial Court through judgment dated 16-2-1983 dismissed the suit by holding that the respondents were the daughters of All Muhammad. The appeal filed by the petitioners was, however, accepted by the First Appellate Court. It was held that on the death of Samad Khan in 1960, Atta Muhammad the only son who was alive at that time was entitled to inherit whole of the property to the exclusion of heirs of Ali Muhammad, Samad Khan's other son who had predeceased him. It was also held that on the death of Atta Muhammad later, the property had devolved on the heirs of Ali Muhammad i,e, the petitioners.

6. In this view of the matter the appeal was accepted and the suit decreed through judgment dated 15-12-1996. It was held that on the basis of the will, the respondents could not claim any share, for Atta Muhammad did not give consent to the will when appeared before the Revenue Officer, assuming as if the same had been made in favour of one of the heirs of Samad Khan, therefore, it was not given effect to.

7. The revision petition filed by the respondents has been accepted by the learned Judge of the High Court through the impugned judgment dated 16-11-2001 and after setting aside the judgment of the First Appellate Court, the judgment and decree of the trial Court has been restored, against which leave is sought.

8. Learned counsel for the petitioners submitted that Muhammad Bibi, mother of the parties, appeared as witness and stated that the respondents were her daughters but they were born from her previous wedlock with Nazir Muhammad, therefore, on the basis of this direct evidence of a person who had special means of knowledge about the relationship of respondent with Ali Muhammad, it could not be held that the respondents were the daughters of Ali Muhammad.

9. The argument in our considered view in the peculiar facts and circumstances of this case had no force. Muhammad Bibi was certainly interested to support the petitioners who were her sons in order to retain the property in the family so that respondents-daughters may not have any share in it so that their husbands may not get it.

10. The findings of the First Appellate Court that will having not been consented to by Atta Muhammad as is clear from the proceedings in mutation, the same could not be given effect to as according to Muhammadan Law, disposal of property through will by a Muhammadan in favour of one of the heirs is not effective unless the other heirs after the death of the maker of will had consented to are not tenable as it was altogether ignored that none of the parties in the presence of Atta Muhammad son of Samad Khan were entitled to inherit the property from Samad Khan being heirs of his predeceased son at the time of his death in 1960, therefore, the will made in favour of respondents was not a will made in favour of any heir of Samad Khan as such the same was effective even without the consent of Atta Muhammad.

11. Atta Muhammad was deprived of right to inherit the property as a consequence of mutation in dispute but he did not challenge the same during his lifetime. The petitioners claimed the property through Atta Muhammad as his heirs who filed the suit as late in 1979 about nine years after the sanction of mutation which had already been given effect to in the record of rights. The petitioners, therefore, had no locus standi to challenge the mutation independently, for Atta Muhammad through whom they claimed inheritance himself had not challenged the same during his lifetime.

12. It may be added here that no evidence was led by the petitioners about inheritance of Nazir Muhammad, the previous husband of Muhammad Bibi/the alleged father of the respondents in order to show that after his death, mutation of his property by way of inheritance was sanctioned in favour of Muhammad Bibi or the respondents as his widow and daughters, respectively which direct evidence having been withheld, therefore, mere statement of Muhammad Bibi to support her sons was not sufficient evidence to deprive the respondents of their status as daughters of Ali Muhammad.

13. For the foregoing reasons, in our considered view, the findings of the trial Court and the High Court do not suffer from any legal infirmity calling for interference by this Court, therefore, this petition has no merits which is accordingly dismissed and .