Tuesday, 21 October 2014

Inheritance is distributed according to Sect

PLJ 2003 Lahore 995
Present nasim sikandarJ. MstAISHA BIBI (deceased) through Legal heirs and others-Appellants
versus MUHAMMAD MALIK and others-Respondents
R.S.A. No. 499 of 1979, decided on 11.3.2003. (iMuhammadan Law-
—-Inheritance-Determination of sect of a deceased Muslim for purposes of
Inheritance-Demanding documentary evidence to support faith ofdeceased was not necessary-Ample evidence on record would suggestthat deceased professed shia faith at time of his death-Mere fact thatmajority living on village belonged to Sunni sect was not of muchrelevance~Any person can change his sect during his life time and suchchange always does not need support from documentary evidence-Mostimportant witness was person who was himself claiming share in estate
of deceased on account of being distant kindred of deceased-During
mutation proceedings he deposed against his own interest by saying that
deceased was a shia by faith-Revenue Authorities thus, rightly weight to
his statement and sanctioned mutation in favour of daughters and widow
of deceased.                                                      [Pp. 999 & 1000] A & B
(ii) Qamm-e-Shahadat Order, 1984 (10 of 1984)-
—Art. 46-Statement of a family member of deceased with regard to his faith-Statement of such witness that deceased belonged to a particular faith, person denying same would be under veiy heavy burden to
. establish opposite especially when witness so stating was to lose his entitlement to inheritance-Evidence on record was sufficient to establish that deceased professedshia faith—Judgment and decree of Appellate Court to effect that deceased was sunni by faith were set aside while that of Trial Court to effect that deceased professed shia faith was restored.
[P. 1000] D

996 Lah.              MstAiSHA BiBi v. muhammad malik                        PLJ
(Nasim Sikandar, J.)
(lii) West Pakistan Land Revenue Act, 1987 (XVII of 1967)--
—S. SB-Controversy relating to entitlement to inheritance and impugned
mutation-Trial Court had taken into consideration evidence in support
by sect of parties-Appellate Court was not right in holding that those
proceedings before Revenue Officer could not be considered by Trial
Court, in view of fact when presence and participation of close relatives ofparties and his statement against his interest that deceased (Ms uncle)was to shia by faith was not disputed by plaintiff,               [P. 1000] C
AIR 1936 P.C. 60; 1989 CLC 2412; 1989 CLC 1591; 1989 CLC 1712; 1994
CLC 1942; 1990 MLD 2399; 1998 MLD 1857; PLD 1994 SC 291; PLD 1996
SC 267; 1997 SCMR 1139 and 1989 MLD 1013 ref.
Ch, Khurshid Ahmed, Advocate for Appellants.
Mian Farzand Alt, Advocate for Respondents Nos. 4, 6 to 7.
Mr. Zafar Iqbal ChaudhryAdvocate for Remaining Respondents.
Date of hearing: 17.2.2003.
judgment
In this second appeal an order of the learned Add!. District Judge, Gujranwala dated 3,5.1979 is assailed. Through that order learned First Court of Appeal reversed the findings of the trial Court earlier recorded on 6.4.1975 while dismissing the suit filed by the present respondents Muhammad Malik etc.
2.          The present respondents on 9.6.1966 filed a suit for declarationthat Mutation No. 770 attested on 29.7.1965 was ineffective against their
rights. Also prayed for joint possession to the extent of 5/24 share in the suitland measuring 511 Kanals 12 Marias.
3.          According to the plaintiffs before the Civil Court at Gujranwala
one Shukar son of Piran Ditta was owner of the suit land who was stated to
have died in the year, 1941. He was survived, by the defendants before the
Civil Court namely MstAisha BibiMstSharifan Bibi, daughters and Mst.
Hayat Bibi, widow. At the time of death of Shukar the land left by him was
mutated in favour of his widow MstHayat Bibi as life estate. However, inpursuance of West Pakistan Personal Law (Shariat Act) 1962 as amended inthe year, 1964 the life estate of MstHayat Bibi came to an end and MutationNo,   770   dated   29.7.1965   was   sanctioned   by   Assistant   Collector-II,Gujranwala in favour of the two daughters and widow of the deceased afterholding him to be a Shia by faith. That mutation assigning 1/8 share to thewidow and. remaining 7/8 to the two daughters of the deceased wasunsuccessfully challenged before the Collector Gujranwala by the presentrespondents.
4. Thereafter the plaintiffs Muhammad Malik etc. now respondents,approached the Civil Court at Gujranwala by way of the aforesaid plaintcontending that late Shukar was a Sunni and that Shahab Din, father ofPlaintiffs Nos. 1 to 7 and husband of Plaintiff No. 8 and Taj Din, husband ofPlaintiff No. 9 who were alive at the time of death of Shukar and being co

2003                      '    MstAlSHA BlBI v. MUHAMMAD MALIK                   Lah. 997
(Nasim Sikandar, J.)
descendants of Buddha, great grand father of Shukar were entitled to inherit the land left by him to the extent of 5/24 share, Accordingly it was alleged that the revenue authorities wrongly attested the mutation in favour of Shukar as Shia because he was Sunni by faith and, therefore, the defendants could not be transferred whole of the estate left by him.
5. The defendants in their reply contested the suit and maintained that Shukar deceased. being Shia by faith the mutation was rightly sanctioned and that the appeal of the plaintiffs was correctly dismissed by the Collector. On the pleadings of the parties following issues were framed.
1.                  Whether the suit is bad for non-joinder of necessary party?OPD.
2.                  Whether the deceased Shukar Din was Shia and remained soup till his death? OPD.
3.                  Whether Mst Bhulan was sister of deceased Shukar Din andshe died after him? OPP.
4.                  Whether the plaint is incorrectly valued for the purposes ofCourt-Fee and jurisdiction? OPD.
5.                  To what share, if any, th«J plaintiffs are entitled to inherit from
the suit land? OPP.
6.                  Relief.    -
6.  The learned trial Court after recording the evidence of the parties
decided Issue No. 1 against the defendants while Issue No. 3 was foundagainst the defendants holding that MstBhulan sister of deceased Shukarhad died before him. The issue if the plaint was   correctly valued for thepurposes of Court-Fee and jurisdiction was also decided in favour of theplaintiffs while Issue No. 5 was found against the plaintiffs in the light of thefindings recorded on Issue No. 2 as to the entitlement of the plaintiffs toshare the inheritance of Shukar deceased. Accordingly, in view of thefindings on Issues Nos. 2 and 5 the suit was dismissed.
7.   Learned first appellate authority, however thought otherwise.While reversing the findings on Issue No. 2 it was opined that the oralevidence produced by the defendants to discharge the burden of proof was
insufficient to establish that deceased Shukar was a Shia by faith. Also, the
, learned First Appellate Court disapproved the consideration of the evidence by the trial Court which was earlier produced by the parties before the revenue officer during mutation proceedings. The learned trial Court had noted that Muhammad Sharif son of late Bhulan initially appeared before the revenue authorities making a request to participate in the mutation proceedings and to claim a share in the estate of the deceased Shukar but ended up by withdrawing his claim and at the same time deposing before the revenue authorities that his uncle Shukar deceased was Shia by faith. Learned First Appellate Court also found that Ex. P-8, copy of the pedigree

998 Lah.                Mstaisha BiBi v. muhammad malik                    PLJ
(Nasim Sikandar, J.)
table show that plaintiffs/appellants were descendants of Ghulam Muhammad and Shukar was descendant of Piran Ditta. Also that defendants/respondents in their written statement had admitted that Shukar deceased was son of Piran Ditta and that Piran Ditta was son of Gohar while Ex. P9, a copy of Jamabandishowed that Budha and Gohar were sons of Mohkam Din while Ex. P-ll proved the fact that Fazla, Allah DittaGhulam Muhammad and Ali '.Muhammad were sons ofBudhaTherefore, in the view of the learned Court of first appeal from Ex. P9 and Ex. P-ll it stood proved that Ghulam Muhammad ancestor of plaintiffs and Piran Ditta, father of Shukar Din had a common ancestor by the name of Mohkam. Accordingly, finding the plaintiffs/appellants as collaterals of Shukar Din deceased held them to be entitled to inheritance of 5/24 share. Earlier the learned Court of first appeal while dealing with the cross-objections with regard to-the findings on issues 1 and 3 approved the findings recorded by the trial Court.
8. Heard the learned counsel for the parties. Learned counsel for the appellants states that neither of the two pedigree tables were properly proved inasmuch as none of the witnesses of the plaintiffs made even a reference to the same. Also that no evidence whatsoever including oral evidence was produced on record to prove that plaintiffs were collaterals of deceased Shukar Din. Also states that on Issue No. 3 the statements of PW-5 and 6 were not considered. Also that the contradiction in the statements of the PWs as noted by the learned trial Court were not considered by the learned first Court of appeal while reversing the findings en Issue No. 2.
9-. By relying upon the ratio settled in re. Bhojraj v. Sita Ram and others, (A.I.R. 1936 P.C. 60) learned counsel claims that the learned first Court of appeal ignored the basic principle that the real test for either accepting or rejecting an evidence was how consistent was it with the story, how it stood the test of cross-examination and how far it fit in with the rest of the evidence and the circumstances of the case. Also relies upon re. Malik Khan Muhammad v. Haji Sikandar Khan,(1989 CLC 2412) wherein the golden principle of law of evidence was reiterated that civil matters are decided on preponderance of evidence.
10.    Learned counsel for the respondents, however, support thefindings recorded in the impugned order. He claims that the pedigree tablewas prepared by the revenue authorities in accordance with record and thatnone of the defence witnesses raised a finger to its authenticity or the claims
of the plaintiffs made in the plaint of their being collaterals of deceasedShukar. It is stated that the whole of the village in which deceased Shukarspent his life belonged to Sunm faith and, therefore a strong presumptionarose that he professed the same faith. That presumption, in their view, wasnot rebutted by the oral evidence of the defendants.
11.  In support of the submissions they rely upon re. Sabir Hussainand others v. Afrasayyab and others, (1989-CLC 1591), re, SyedMuhammad
Nawaz Shah and others v. Amir Hussain Shah and others, 
(1989 CLC 1712),

2003                     Mstaisha EiBl v. muhammad malik             Lah. 999
(Nasirn SikandarJj
re. Allah Bakhsh and others v. MstBhagan(1994 CLC 1942), re. Muhammad Ashraf v. Muhammad Tahir(1990 MLD 2399) and re. Zainul Hassan Mian and othersy. MstKhuwand Naka and others, (1989 MLD 1857). Also rely upon re. Haji Muhammad Din vs. Malik Muhammad Abdullah, (PLD 1994 S.C. 291), re. Muhammad Amir vs. Khan Bahadur and another, (PLD 1996 S.C. 267) and re. Abdul Hakeem v. Habib Ullah(1997 SCMR 1139) to contend that concurrent findings of the Courts below on Issues Nos. 1 and 3 cannot be interfered with in second appeal.
12. After hearing the learned counsel for the parties I have come to the conclusion that the learned trial Court correctly appreciated the evidence on record. On the other hand learned Add! District Judge was not right in demanding documentary evidence to support the faith of the deceased. In re. MstSattan and others v. MstSahiban (1989 MLD 1013), a case relied upon by the learned counsel for the respondents, it was found that faith of a person at the time of his death was determinative of mode of inheritance to his estate.
13 In the first place there was ample oral evidence that daceased Shukar professed Shia faitli at ins time of Ms death and, therefore, mere fact that majority living in the village belonged to Sunni sect was not of much relevance. It hardly needs emphasis that a person can very well change his sect during his life time and the said change always does not need support from documentary evidence.
14.           DW 1 claimed that funeral of Shukar was performed by Mr.Muhammad Hussain Shah'who was dead and that the body of the deceasedwas given last bath by Zahoor Ahmad who appeared as DW-3. He is not a
resident of that village. In his statement DW-3 claimed that he v/ent to the
village of deceased Shukar to give bath to his body. DW-1 Nazar Hussain
belongs to the village of Shukar deceased who claimed that the deceased wasShia by faith and that his funeral prayer was offered by MuhammadHussain Shah of another village who had since died. Also that funeral bath
to the body of late Shukar Din was-given by Zahoor Ahmad. He stated that
both Muhammad Hussain and Zahoor Ahmad were Shia and that hehimself was Shia and had offered funeral prayer of Shukar deceased. In hiscross-examination he claimed that there were 4/5 Shia families in thevillage.
15.           DW-2 also supported the fact that late Shukar was a Shia byfaith, though he himself claimed to be a Sunni. This witness who is theimmediate neighbourer of deceased Shukar Din confirmed that 3 to 4families in the village professed Shia faith, DW-3 Zahoor Ahmed earliermentioned by DW-1 as Shia by faith claimed to have given funeral bath tothe body of late Shukar Din, DW-4 Mian Shamsher Ali, DW-5 Inayat Ullah,DW-6 Allah Bakhsh, DW-7 Ghulam Muhammad and Defendant No. 1 Mst.Alsha Bibi as DW-8 remained consistent in their cross-examinations that
late Shukar Din professed Shia faith. The four witnesses examined by the

I
D

1000 Lah.              Mstaisha Bmi v. muhammad malik                    PLJ
(Nasim Sikandar, J.)
plaintiffs namely Faqir Muhammad, Umar Din, Muhammad Khan and Sana Ullah alongwith Muhammad Malik, Plaintiff No. 1 simply affirmed that late Shukar Din was a Sunni by faith.
16.    In my view even if the oral statements of the witnessesconfirming and denying the sect of late Shukar Din are held to be equal, thepreponderance of evidence can still be considered to be in favour of thepresent appellants in view of the statement made by Muhammad Sharif son
of Bhulan before the revenue authorities. Most important fact to be noted is
that at the relevant time Muhammad Sharif was himself claiming a share in
the estate of the deceased oh account of being the son of the real sister of thedeceased. During these proceedings he deposed against his interest by sayingthat the deceased was a Shia by faith. Therefore, the revenue authoritiesrightly gave due weight to his statement and accordingly not only sanctionedthe impugned mutation but also rejected the appeal filed by the plaintiffs(now respondents) before the Civil Court.
17.         It is also my considered view that the learned trial Court did notmisread and evidence. The appellate Court rejected the claim of ZahoorAhmad DW-3 of his having given funeral bath to the deceased merely for thereason that he belonged to another village. His opinion that DW-3 and 4could not be interested in the burial of Shukar Din, in absence of anysuggestion in the cross-examination to these witnesses, is also not wellbased. Also the learned Addl. District Judge was not correct in suggestingthat the trial Court ought to have ignored the proceedings before therevenue authorities. It will be seen that the centre of controversy wasMutation No.  770  dated  29.7.1965  and the  plaintiffs  had  sought  itscancellation. Therefore, to suggest that these proceedings could not be takeninto consideration at all by the learned, trial Court appears unjustified,particularly in view of the fact when the presence and participation ofMuhammad Sharif son of Bhulan and his statement that his deceased unclebelonged to Shia faith was not disputed by the plaintiffs (now respondents).
18.         The faith or sect of a person is so personal in nature that itcannot always be insisted upon to be supported by documentary evidence.There can also be no doubt, as observed earlier, that a Muslim may changeits sect during his life time and that fact, can very well be supported by thosewho lived around him. One of the defence witnesses is neighbourer of thedeceased who claimed that the deceased used to arrange Majalis Aaza in hishouse. That assertion was not effectively controverted by the plaintiffs. Also Iam of the view that the most relevant witnesses with regard to the faith of aperson are his immediate family members. When the family members of a
person state that their relation belonged to a particular sect then the person
denying the same is under a heavy burden to establish the opposite. The factthat by claiming a particular sect a member of the family of the deceased
may gain some financial benefit is offset by the strong feelings which peoplegenerally have for their faith in our society.
2003                 ali enterprises v. tehsil municipal                   Lah. 1001
administrator faisalabad
(Ch. Ijaz Ahmad, J.)
19.         Therefore, I will hold that the defendants sufficiently dischargedthe onus to establish that deceased Shukar was Shia and remained so till hisdeath. The findings of the learned Addl. District Judge, Gujranwala on the
Issue No. 2 are, therefore, set aside. Issue No. 2 being the core issue rest of
the issues need not be discussed to accept this appeal.
20.         Accordingly, this appeal is allowed. The impugned judgment ofthe learne^ Addl. District and Sessions Judge, Gujranwala dated 3.5.1979 isset aside. Resultantly, the judgment and decree of the learned trial Courtdated 5.4.1975 dismissing the suit filed by the present respondents shall berestored.     ,
(A.A)    .           Appeal accepted.

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