P L D 1966 (W (PLP)

Bashir Ahmad for Respondents. Dates of hearing: 9th and 10th March 1966. This is a second appeal against the judgment and decree passed in appeal by the Additional District Judge, Lahore at Sheikhupura in Civil Appeal No. 6/56, whereby he set aside the judgment and decree passed by the Senior Civil Judge, Sheikhupura who had granted the declaration sought for by the plaintiffs in the suit. The dispute relates to the question of inheritance to the property of one Ajmana who died on 4‑12‑48 in his village Baghiari, tehsil Nankana, District Sheikhupura. On his death a mutation was made in which the defendants Mst. Nawab Bibi and Mst. Salmar alias Sardar Bibi were also recorded as the heirs of the said Ajmana, the former as his widow and latter as his only daughter. Ajmana had left behind two more widows, the defendants 1 and 2, Mst. Bakhan and Mst. Muhammad Bibi. The plaintiffs to suit were the two brothers of Ajmana, namely Haji Illahl Bux and Mali sons of Bakhu and three sons of a deceased brother Fateh Din. In the array of defendants were the two contesting defendants, namely Mst. Nawab Bibi and Mst. Salman besides the other two widows Mst. Bakhan and Muhammad Bibi. The latter too supported the case of the plaintiffs The other defendants were the widow and the married daughters of Fateh Din. They were joined as pro forma defendants, The plaintiffs in the suit had claimed a declaration that the land described in the plaint and which was the property of Ajmana was owned, by them and the other defendants except Mst. Nawab Bibi and Salman who, it was claimed, were not the heirs of Ajmana and not entitled to any share and the mutation sanctioned on 10‑6‑63 was ineffective, and void. The sole question of dispute in the case was whether Mst. Nawab Bibi was the wife of Ajmana and Sardar Bibi their daughter. Both these things were denied by the plaintiffs. The following issue was framed:‑ "Is Mst. Nawab Bibi defendant, the widow and Mst. Sardar Bibi defendant, the daughter of Ajmana?" The learned Senior Civil Judge found in favour of the plaintiffs and in doing so discarded not only a mass of oral evidence showing the relationship of Nawab Bibi as the wife of Ajmana and Salman as his only daughter but also an entry in the birth register showing one Salman as the daughter of Ajmana and the admission of the other two widows Mst. Bakhan and Muhammad Bibi in the first instance in the mutation proceedings in which they had accepted that Nawab Bibi was the widow of Ajmana and Salman alias Sardar Bibi his daughter.

3. The learned Additional District Judge in appeal after a very exhaustive examination of the oral evidence held that the reasons for which the Senior Civil Judge had rejected all that evidence was inadequate if not flimsy and the persons who had given evidence in support of the fact that Nawab Bibi was the legal wedded wife of Ajmana and the defendant Salman alias Sardar Bibi was his daughter, had given true evidence which should have been accepted. He further observed that their evidence found support from Exh. D. 1, the birth entry and the admission of the two widows in the mutation proceedings.

4. Mr. Khalilur Rehman, the learned counsel for the appellants, before me has contended: firstly, that the oral evidence in regard to the relationship of the contesting 'defendants was neither relevant nor admissible and should have been completely overlooked. With regard to the birth entry, Exh. D. 1, his contention was that this entry did not relate to the defendant who has been merely named as Sardar Bibi in the plaint and that it related to some Salman who was not the daughter of the deceased Ajmana. With regard to Exh. D. 2 which were the admissions of the other two widows in the mutation proceedings he con tended that in so far as these admissions were not put to these widows they should not have been made use of either against them or the collaterals. With regard to the first point the contention was that in order that all this evidence could be admitted or treated as relevant the requirements of section 50 of the Evidence Act should have been fulfilled and this could only be done if the witnesses, who deposed to the relationship, gave adequate reasons in their examination‑in‑chief for forming the opinion as to the relationship. It was urged that otherwise oral evidence had to be direct and the opinion as to relationship not being direct evidence could not be admissible unless it came within the exception of section

50. This argument of the learned counsel was based almost entirely upon the judgment of Muhammad Akram, J. in the case of Ghulam Muhammad v. Allahyar (P L D 1965 Lah. 482.): The learned Judge in that case had, with reference to section 50 of the Evidence Act, observed that in the two illustrations to that section the opinion of friends and members of the family who have special means of knowledge is relevant because it is based on the conduct and treatment of the persons concerned. It was further observed that generally speaking the opinion cannot be a substitute for evidence of facts in issue and is irrelevant, but this section was amongst the few exceptions to the general rule. It was then added that "it is, therefore, all the more necessary that in order to lay the foundation for the admission of evidence of this kind all the necessary ingredients of this section must be brought out positively". It was this last passage upon which reliance was particularly placed by the learned counsel and it was urged that the foundation for the admission of such indirect evidence relating to relationship has to be laid in the examination‑in‑chief, that is every such witnesses must depose to the relevant circumstances upon the basis of which he formed the opinion as to relationship and, it was argued, that unless such a foundation was laid the evidence would be inadmissible.

5. With regard to most of the observations made by my learned brother with reference to section 50 I am in respectful agreement but the point where I have found difficulty in accepting his view, and I say so with great respect, is with regard to the general proposition that the evidence of relationship would be inadmissible unless foundation for the admission of such evidence is laid by the party who seeks its admission. That in many cases such a requirement would be necessary 'is true, but this cannot be laid down as a general proposition. For instance, if a brother of the deceased was to depose that A was the son of the deceased or B was his wife, I do not think it would be necessary, to ask questions of such a witness in the first instance regarding the means of his special knowledge. Such a means would be presumed in such a case. In my opinion, therefore, when a witness is shown either to be a relation or a friend of the family and he deposes to a fact of relationship there would be a pre sumption that he had the special knowledge of such relationship. It would not in such a case be necessary to preface his evidence of relationship with questions which must first lay down the foundation based on conduct with regard to such evidence. Munir in his Commentary on the Law of Evidence on section 50 of the Evidence Act has thus observed:‑ "Members and friends of the family will be presumed to have special knowledge of‑ the relationship and their conduct will not only be relevant under this section but Courts should attach considerable importance to it in determining the question of relationship." The learned author has in support of this view relied upon Muttuswamy v. Venkataswara (12 M I A 203); Khajah Hidayat v. Rai Jan (3 M I A 295) and Fazilatunnisa v. Bibi Qamarunnisa (9 C W N 352).

6. Mr. Khalilur Rehman' has also relied on the Privy Council case of R. L. Reddi v. R. V. Reddi (A I R 1937 P C 201) which case has also been relied upon by Muhammad Akram, J. In that case their Lordships after reference to section 32 and section 50 of the Evidence Act have observed that the said Act does not contain any provision making the evidence about the general reputation admissible as proof of relationship But. that was a case where evidence was sought to be admitted under the 5th clause of section 32, that is to say, oral evidence of verbal statement made by persons who are dead and who had special means of knowledge. That would bean entirely different situation and with respect to such witnesses the rigour of section 50 would have to be applied with full force and such an evidence would not be admissible unless foundation for it was laid by the party who had produced them. In the Privy Council case one witness who was aged 33 years had deposed about the events relating to relationship of 45 years or more. It was in that context that their Lordships had observed that "it cannot rightly be left to time or chance or cross‑examination to disclose whether a state ment has any basis which could give it value or admissibility". This observation could not be applied to witnesses who were speaking of contemporary events in regard to relationship and who by their position must be presumed to have the special knowledge to speak about it.

7. In order to see whether the evidence led on the side of the defendants in respect of the fact that Sardar Bibi was the daughter of Ajmana and Nawab Bibi was his wife fulfils on the test laid down above. I have myself gone through the evidence. Amongst these D. W. 2 Raju is related to the parties and his daughter was married to the son of one of the plaintiffs, namely Mali. D. W. 3 Ahmad was the nephew of one of the other widow Mst. Bakhan. D. W. 5 Muhammad is the father- in‑law of Sardar Bibi alias Salman. He was also the uncle of the deceased Ajmana. D. W. 6 Sultan is a collateral in third degree of Ajmana. D. W. 1 Dost Muhammad and D. W. 4 Mutalli are of the same Baradri. All these witnesses belong to the same village and considering that most of them were related to other members of the same Baradri and what they deposed to related to contemporary events of which they had direct knowledge. I have had no hesitation in holding that their evidence as to the said relationship was rightly admitted and believed by the learned District Judge.

8. The criticism as to the birth entry, Exh. D. 1, was feeble and was rightly rejected by the learned District Judge. This entry was made on 11‑11‑32 (33 is a copying mistake) in respect of the birth of the child which took place on 4‑11‑

32. Her name is shown as Salman Bibi. The name of the father is shown as Ajmana, son of Bakhtar. The maker of the report is Nizamuddin Chowkidar. The place of residence of the parents is shown as Baghiari. The criticism was that the name of the girl was not shown as Sardar Bibi and the name of the father was recorded as Azmana instead of Ajmana. However, there is evidence that there was no other Ajmana in the village and Ajmana was also pronounced as Ajmana. In any case, the name of the father is shown as Bakhtar, of which the short form would be Bakho which is the description of the father of Mali and Ilahi Bux, the brother of Ajmana. There is also evidence that the child was first named as Salman Bibi and it was at the time of her marriage that she was named as Sardar Bibi. But the more important point is that there was no evidence on the record to show that any other child was born to Ajmana. This entry, in my opinion, is almost conclusive of the fact that Sardar Bibi alias Salman was the daughter of Ajmana, born of the wedlock between Ajmana and Nawab Bibi. There is con siderable evidence as to the fact that Nawab Bibi had been married to Ajmana. Indeed, they lived for about 25 to 30 years together as husband and wife in the same house as the other two widows.

9. With regard to the third point relating to the admissions made by the other two widows, in the first instance in the mutation proceedings I have no doubt that these can be used against them. It would not be necessary for the defendants to call these widows to put those statements to them. They were not examined by the plaintiffs who should have done so. It was for them to disprove that admission and since they did not attempt to do so it can certainly be used against the makers.

10. In the result I agree with the conclusion reached by the learned Additional District Judge that Nawab Bibi is the widow of Ajmana and Sardar Bibi alias Salman is his daughter. The appeal is accordingly dismissed with costs. I may note here that two of the plaintiffs Mali and Illahi Bux died about 7 years ago and none of their legal representatives were brought on E record. However, in my opinion the appeal could not abate as the heirs of the third brother Fateh Din were party to this appeal. K. M. A. Appeal dismissed.