Dated of hearing : 06/03/2009

Mr. Abdul Karim Khan, advocate for appellant

Mr. Nasrullah Awan, advocate for respondent.

JUDGEMENT

KHILJI ARIF HUSSAIN: Aggrieved by Judgment and decree in Suit No.119/98 while dismissing the Suit No.120/1998, Appellant preferred this appeal.

Brief facts to decide the appeal are that Respondent in Suit No.120 of 1998 had filed SMA No.168/95 for issuance of Succession Certificate of deceased Alexander Edward for Rs.530,236/- the amount lying in his account with the employer M/s. Siemens Company being legal heirs of the deceased. The appellant filed SMA No. 26/1996 for the issuance of Letter of Probate of the Will executed by the deceased before two witnesses in favour of the appellant.

The deceased Alexander Edward was residing with the appellant since 1982 till 9/7/95 when the deceased was admitted at Karachi Seventh Day Adventist Hospital. Deceased executed his Will in favour of the appellant on 26.07.1995 before two witnesses, thereafter died on 3.8.1998.

The appellant filed objection in SMA filed by the respondent. In view of the objection filed by the appellant SMAs filed by the respondent was converted into suits bearing No.119/98 and SMA 26/96 filed by the appellant was converted and registered as Suit No.120/98. Commissioner was appointed to record evidence in the matter and after recording of evidence Commissioner has returned Commission along with his report. After submitted report by the Commissioner on 19.01.1998 it was ordered that SMA filed by the respective parties i.e. appellant and respondent may be registered as suit in view of the fact caveat has been filed in each of them and once this has been done, the suit on the basis of evidence already recorded on commission shall be led in Court for arguments where issues may be framed during course of arguments. On 14.05.1998 following issues were framed:

“(1) Whether the Will is valid?

(2) Which of the two nominations for payment of provident fund made by the deceased is enforceable

After hearing the arguments learned Judge decreed Suit No.119/98 filed by the respondent and dismissed the suit No.120/98 filed by the appellant.

Heard Mr. Abdul Karim Khan learned advocate for the appellant and Mr. Nasrullah Awan learned advocate for the respondent.

Mr. Abdul Karim Khan learned advocate for the appellant, argued that on 26.07.1995 deceased Alexander Edward executed will in favour of the appellant while he was admitted in Karachi Seventh Day Adventist Hospital in presence of two witnesses. The witness appeared in the witness-box that made a statement on Oath that the deceased has executed Will in question. It was further argued by the learned advocate that for execution of the Will deceased visited his office i.e. Seamen (Pvt) Limited for the purpose of getting the name of the appellant recorded as his nominee. It was argued that at the time of execution of the Will deceased was mentally fit and learned Judge committed error of law in dismissing the suit. It was further argued by the learned advocate for the appellant that though learned Judge has dismissed the suit filed by the appellant but no finding has been recorded that the deceased has not executed Will in question or that the deceased was not mentally and physically fit to understand consequence of the Will he (deceased) executed.

In support of his contention learned advocate relied upon the case of Alok Kumar Aich vs. Asoke Kumar Aich and others, AIR 1982 Calcutta599, Chiragh Bibi and another vs. Mst. Rashida Begum and others, PLD 1958 SC(Pak) 209, Mst. Gomtibai vs. Kanchhedilal and others,PLD 1949 Privy Council 156, and Muhammad Aboo Abdullah vs. (1) The Province of East Pakistan,(2) The Chief Secretary, Government of East Pakistan, PLD 1960

On the other hand Mr. Nasrullah Awan learned advocate for the respondent argued that respondent was sister of the deceased and deceased belongs to a Christian community cannot execute Will in favour of Muslim appellant. It was argued by the learned counsel that at the time when the Will in question was allegedly executed that the deceased was not mentally fit to understand the consequence of it and further that Will produced by the appellant contained number of cuttings and corrections, significant change has been made and such document can be relied upon. Learned advocate argued that at best appellant was appointed as nominee to collect amount and distribute the same among the legal heirs of the deceased. In support of his contention learned advocate relied upon in (C.A. No. K-19 of 1967) Mst. Amtul Habib And Others vs. Mst. Musarrat Parveen And Others And (C.A. No.K-1 of 1971) Josepeh And Others vs. Mst. Teressa Jona Andrews And Another, PLD 1974 SC 185.

We have taken into consideration respective arguments advanced by the learned advocate for the parties, perused the record.

The Issue in the matter appears to be about the validity and authenticity of the documents being Ex.2/A.

Whether said document is Will or nomination of the appellant or whether said document executed by the deceased after fully understanding the same.

The learned Judge not accepted Ex.2/A as Will and held:

“I am thus convince that this alleged Will filed by the objector was either never signed by the deceased or the signature on it were obtained either through coercion or threat I therefore hold that the alleged Will cannot be regarded as Will in law and cannot be recorded and it is not a valid document at all”.

We have gone through the reasons recorded, but we fail to note that on what basis learned Judge came to the conclusion that the deceased never signed the Will or the signature on it was obtained through coercion or threat. This finding of learned Judge with respect is self-contradictory. Either deceased has signed will or either deceased had signed the Will or had not signed it. As regards the signature of the deceased on Ex.2/A, neither admitted signatures of the deceased were compared by the learned Judge nor documents were sent to handwriting expert for his opinion. In the absence of this it is not possible to record finding that deceased has not signed the document Ex.2/A. Only evidence on record in respect of signature of the deceased on Ex.2/A is that respondent in her examination-in-chief stated that signature purported to be of the deceased’s brother is not signature of the deceased.

On the other hand Ex.2/A the alleged Will appellant in his examination-in-chief stated that for executing Will at the request of the deceased he took the advocate to the hospital where deceased was admitted in hospital, and found Muhammad Zameer Khan and Ghulam Hussain there who came to see the deceased. The deceased got Will executed through advocate and on his instructions some amendments were made in the Will. Advocate read over the contents of the Will to deceased and the said witness who thereafter signed the said Will. The appellant denied the suggestion that signature on the Will is not of the deceased. Two witnesses of the Will also appeared in the witness-box made a statement that Mr. Abdul Karim Khan advocate read over the Will Ex.2/A to the deceased and the deceased after going through the Will instructed to make some amendments in the Will which amendment was made by the advocate. The name of the advocate also put in the Will at the request of the deceased. Witness Ghulam Hussain Ex.4 stated that advocate written Ex.2/A as deceased wanted to give his dues/benefit payable by the company to appellant and he singed the Ex.2/A as witness. Deceased also signed Ex.2/A. During cross-examination witness stated that ex.2/A has been written by advocate when appellant was present in the hospital where he went to see deceased on 26/7/1999.

In view of the evidence on record the appellant has discharged his burden that deceased has singed the document Ex.2/A.

Coming to the question, whether Ex.2/A was executed through coercion or threat as we have discussed hereinabove, Ex.2/A was executed by the deceased in hospital where apart from PW 2 to 3 & advocate who executed Will, hospital staff were available and it is not possible that in a hospital which is a public place one can extend threats or under coercion got document executed against will of the executor. As regards the mental capacity of the deceased at the time of execution of Ex.2/A Dr. Roohani Sattar (Ex.7) appeared in witness-box as a doctor from Karachi Adventist Hospital where deceased was under treatment, make a statement that deceased was his a patient since 1991 for high-blood pressure and in May 1995 deceased saw her with a complaint of shortness of breath and 9.07.1995 he was admitted through casualty with shortness of breath, pain in the chest and haemeptysis . She further stated in her cross-examination that he used to talk with her on her visits and was orientated in time and place and understood queries and was able to talk with her about the problems. She also confirmed in respect of certificate issued by her Ex.2/Q dated 13^th August 1995 by which deceased was permitted to go outside the hospital. In the said exhibit witness Dr. Roohani Sattar endorsed that she allowed the deceased to go outside the hospital to visit the Company on 27/7/1995 i.e. day after the execution of Will E.2/A. One Fahim Abbas personal officer in Siemens (Pakistan) Engineering Co. Limited Karachi where deceased was working also appeared in the witness-box (Ex.5) stated that he met the deceased in the company as he wanted to change his nomination. From these evidences it is established that Ex.2/A was exhibited by the deceased on 26/07/1995 and on the very next day deceased visited the company to appoint appellant as his nominee in place of the respondent in the office record, and there is no evidence on record to say that said document was executed under coercion or threat.

Now, we will deal with the question, whether Ex.2/A is a document by which deceased nominated appellant for the purpose to withdraw benefits, dues gratuity and provident fund etc. in credit of serves rendered or deceased want to transfer benefit to appellant.

It was alleged by the respondent that certain additions and alterations have been made in the document Ex.2/A like in the second part of the said part of the said document it was stated that “ as my nominee and authorize him to withdraw all my benefits, dues, gratuity, provident fund etc.” the correction was made in writing ‘draw” i.e. withdraw which makes senses that without phrase ‘draw’ no sense is made out to a sentence hereinabove. Document was written in handwriting of the advocate of this court duly attested by two witnesses, who appeared in the witness box, make a statement that document was executed on the direction of the deceased and necessary corrections were also made under his instructions. From heading of Ex.2/A letter addressed to Manager, Labour &Personnel, Siemens Pakistan Engineering Co. Ltd. Karachi “Will in favour of Hamid-dul-Haq Javed Mian nominee/beneficiary from this very heading it appears that the appellant was not appointed only as nominee for the purpose of collecting deceased dues from the company but also appointed as beneficiary of the amount lying in his account in he said company. If the intention of the executor was that the appellant should only collect the amount as nominee and then distribute the same among the legal heirs then there were no occasion for him to change the name of original nominee i.e respondent who is the only surviving legal heirs of the deceased.

For the foregoing reasons, impugned order is set aside and suit No.120/98 is decreed as prayed with no order as to costs and suit No.119/98 is dismissed.

JUDGE