P L D 1975 Supreme Court 624 (PLP)

As we have found that the learned Judges of the Letters Patent Bench were in error in thinking that the plaintiff's appeal under clause 10 of the Letters Patent had become infructuous owing to the promulgation of paragraph 10 of Martial Law Regulation 64, and that the learned Single Judge, who decided the plaintiff's second appeal in the first instance, was also in error in taking the view that her suit was barred by limitation under Article 91 of the Schedule to the Limitation Act, both these judgments have to be set aside. As a result, the only operative judgment in the field would be that of the first appellate Court, without there being any finding by the High Court on the questions in issue between the parties. It was submitted by the learned counsel for the respondents that, in these circumstances, the case should be remitted to the High Court for decid ing afresh the plaintiff's second appeal on merits. Learned counsel for the appellant, on the other hand, opposed this suggestion and submitted that such a course would cause great hardship to the plaintiff who had already spent the best part of her life, almost twenty-five years, in pursuing this litigation. He contended that all the material evidence, on the issues arising in the suit being already available on the record, it was a fit case where this Court ought itself to decide these questions finally so as to do complete justice between the parties, without forcing them to another round of litigation in the High Court, and possibly again in the Supreme Court. In support of his submission that the case be remanded to the High Court, Raja Muhammad Anwar drew our attention to Karamat All v. Muhammad Younas (P L D 1963 S C 191), Ataullah Malik v. Custodian, Evacuee Property (P L D 1964 S C 236) and Abdul Salam v. Alah Miah Serang (P L D 1971 S C 189). It appears to us, however, that these cases are clearly distinguishable. In the first case, the Supreme Court allowed certain amendments to be made in the plaint and remanded the suit to the trial Court for further disposal in accordance with law. In the second case, the minority view was that the matter should be remitted to the Custodian of Evacuee Property for deciding certain questions which did not appear to have been considered by that authority in the original proceedings. In the last case relied upon by Raja Muhammad Anwar, the matter was remanded to the High Court for disposal of the second appeal in terms of section 103 of the Code of Civil Procedure on the ground that the learned Judge had failed to examine the relevant evidence before reaching certain, conclusions on facts. In none of these cases was the Court called upon to consider whether the case ought to be disposed of finally by this Court in view of the time that had already elapsed since the litigation was commenced, and the fact that all the material evidence was already available on the record. In a situation like the present, where the High Court has failed to examine the plaintiff's second appeal on merits on account of an erroneous view on the question of limitation, the rule laid down by this Court in Muhammad Yousuf v. S. M. Ayoob (P L D 1973 S C 160) appears to be directly applicable. While examining the scope of the jurisdiction exercised by this Court in appeal, it was observed as under:- " . . But once leave has been granted and the appeal is before this Court, this Court has vested in it, by clause (1) of Article 189 of the Interim Constitution itself, all the powers necessary for doing complete justice in any cause or matter pending before it. In the exercise of this power, it certainly has the jurisdiction to do all that the Court, from whose decision the appeal is brought, could do. Thus, in an appeal from a judgment of a High Court in a proceeding, brought before it, under Article 201 of the Interim Constitution, the Supreme Court while considering whether the High Court has pro ceeded upon correct principles keeps in view the nature and scope of the jurisdiction given by that Article to the High Court, and where it becomes necessary to correct the High Court, the Supreme Court proceeds on the basis that it too has the same jurisdiction as the High Court. Similarly, in appeals, from judgments delivered by the High Court in a second or first appeal, the Supreme Court proceeds on the basis that it too is vested with the same powers of doing complete justice, which the High Court had." Similar observations were made in Abdul Jabbar v. Abdul Waheed Khan (P L D 1974 S C 331) while dealing with a case of judicial review of an order made by a statutory tribunal. It was stated that "the principle is well established that if a statutory tribunal fails to exercise jurisdiction vested in it by law, such a failure would be open to correction in the exercise of the, power of judicial review vesting in the superior Courts under the Constitution. The Court may, in appropriate circumstances, remit the case to the tribunal concerned for deciding the question left undecided or it may itself proceed to determine the matter if the relevant material is already present on the record, and such determination does not entail any inquiry into disputed questions of fact." As to the scope of the power enjoyed by the High Court in second appeal, it would suffice to mention that under section 103 of the Code of Civil Procedure the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower appellate Court, or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect, such as is referred to in subsection (1) of section

100. Instances of such cases are where the finding is based upon inadmissible evidence, or where evidence has not been considered, or where the finding is based upon wrong presumptions. The object underlying the section appears to be to avoid the necessity of remanding a case where the relevant evidence is already available on the record. As observed in Pramatha Nath Choudhry v. Kamir Mondal (P L D 1965 S C 434) a remand should not be lightly ordered if the evidence on the record is sufficient for the appellate Court to decide the question itself. There can be no bar to the Court doing so." Keeping in view the powers available to the High Court under section 103 of the Code of Civil Procedure and consequently to this Court in the present appeal, as well as the fact that this litigation involving, inter alia, the rather sensitive question of the personal status of the appellant, has been pending in the Courts for nearly twenty-five years, we consider that this is indeed a fit case where we should not remand the matter to the High Court but should ourselves proceed to determine the questions in controversy on the basis of the ample material already brought on the record by the contending parties. Learned counsel for both sides agree that the evidence adduced at the trial is sufficient for this purpose. It will be recalled that the two main questions touching the merits of the case are:- (a) Whether the plaintiff is a legitimate daughter of the late Sh. Mehar Din; and (b) Whether the two wakf deeds in question are voidable on account of having been executed by the plaintiff's father under undue influence of his latest wife Mst. Murad Begum. Both these questions have been answered in favour of the plaintiff by the learned Senior Subordinate Judge at Rahimyar Khan, acting as the first appellate Court. Learned counsel appearing for the respondents has challeng ed both these findings. On the question of the legitimacy of the plaintiff, it was submitted by Raja Muhammad Anwar that the lower appellate Court had erred in decid ing the question under section 112 of the Evidence Act, instead of applying the rule of Muslim Law to the effect that any child born within six months of the marriage is presumed to be illegitimate. He contended that with the repeal of section 2 of the Evidence the rule of Muslim Law stood revived and had to be applied in the present case. He further submitted that the learned Senior Subordinate Judge had completely ignored the defendant's evidence which clearly established the fact that the plaintiff was born on 19-10-1916. i.e, within six months of the marriage of the late Sh. Mehar Din with the plaintiff's mother Mst. Ghulam Zainab or 9-5-1916. Before we examine the mass of evidence adduced by the parties on the question of the legitimacy or otherwise. of the appellant, it is necessary to decide whether the matter is governed by the provisions of section 112 of the Evidence Act, or by the rules of the Muslim Law. Section 2 of the Indian Evidence Act, as originally enforced on the 1st of September 1872, provided that:- "On and from that day the following laws shall be repealed:- (1) All rules of evidence not contained in any Statute, Act or Regulation in force in any part of British India; (2) all such rules, laws and regulations as have acquired the force of law under the 25th section of Indian Councils Act, 1861, in so far as they relate to any matter herein provided for; and (3) the enactments mentioned in the schedule hereto, to the extent specified in the third column of the said schedule; But nothing herein contained shall be deemed to affect any provision of any Statute, Act or Regulation in force in any part of British India and not hereby expressly repealed." On that day the Punjab Laws Act (IV of 1072). enacted on 2 3-1872,. was in force. Section 5 of this Act provided, inter alia, that where the parties were Mohammedans, the Muhammadan Law shall be the rule of decision in questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is referred to earlier in the section. The question is whether clause (1) of section 2 of the Evidence Act had the effect of repeal ing the provisions of the Muslim Personal Law on the subject of legitimacy and bastardy. There appears to be a considerable conflict of judicial opinion on this point. As early as 1884, it was held by the Punjab Chief Court in Rehmat Ali v. Mst. Allahdi (1), that although the rules of Muslim Personal Law can the subject of legitimacy were a part of substantive law, yet with reference to the definitions of the terms "proved" and "disproved" in section 3 of the Evidence Act and the rule embodied in section 112 thereof they had to be regarded as rules of evidence, and, therefore, stood repealed by clause (I P R 1884 ) of section 2 of the Evidence Act. This view was followed in Warms Muhammad v. Ali Bakhsh (76 P R 1891), Umra v. Muhammad Hayar (79 P R 1907), Nurul Hassan v. Muhammad Hasan (78 P R 1910), Mst., Hajira Khatoon v. Mst. Amina Khatoon (A I R 1923 All. 570), Syed Sibt Muhammad v. Muhammad Hameed (A I R 1926 All. 589), Ghulam Mohy-ud-Din Khan v. Khizar Hussain (I L R 10 Lah. 470), Mt. Rahim Bibi v. Chiragh Din (A I R 1930 Lah. 97) and Mst. Sampatia Bibi v. Mir Mahboob Ali (A I R 1936 All. 526). A contrary view was expressed in Muhammad Allahabad v. Muhammad Ismail Khan (I L R 10 All. 289) by a Full Bench of the Allahabad High Court, observing "the rules of the Muhammadan Law relating to acknowledgement by a Muhammadan of another as a son are rules of the substantive law of inheritance." The question whether these rules stood superseded by section 112 of the Evidence Act was, however, not finally decided, as would be apparent from the following observations appearing in the judgment of Mahmood, J. "Such being my view of the facts of the case, it is not necessary to enter into any elaborate discussion as to how far the provisions of section 112 of the Indian Evidence Act as to birth during wedlock being conclusive proof of legitimacy, would affect a case as this . . . . . it may some day be a question of great difficulty to determine how far the provisions of that section are to be taken as trenching upon the Muhammadan Law of marriage, parentage, legitimacy, and inheritance, which departments of law under other statutory provisions are to be adopted as the rule of decision by the Courts in British India .... . . ." In the two Allahabad cases, mentioned in the preceding paragraph, the learned Judges of the same High Court did not, however, subscribe to this view, and held that the provisions of section 112 of the Evidence Act applied in supersession of the relevant rules of the Muslim Law. In Mst. Bibee Fazilatunnessa v. Mst. Bibee Kamarunnessa ((1905) 9 Cal. W. N 352), the observations made in the case of Mohammad Allahabad Khan by the Full Bench of the Allahabad High Court were referred to with approval, and it was held that the doctrine of acknowledgement was not a mere rule of evidence, but an integral portion of Muhammadan family law with the result that the question of legitimacy must be determined with reference to Muhammadan Jurisprudence rather than to the Evidence Act. The same view was adopted in Zakirali v. Bograli (A I R 1918 Nag. 32) and Abdul Ghani v. Mst. Talib Bibi (P L D 1962 Lah. 531). The views expressed by some of the eminent writers on Muhammadan Law on this question may also be noticed at this stage. On page 179 of Muhammadan Law by Syed Amir Ali (1965 Uri. by Raja Said Akbar), it is, stated that "section 112 of the Indian Evidence Act embodies the English rule of law, and cannot be held to vary or supersede by implication the rules of Muhammadan Law." The conclusion is not supported by any reasoning or authority. The statement of the law appearing on page 161 of Anglo-Muhammadan. Law by Wilson (5th Edn.) is more elaborate:- "The rule of the Indian Evidence Act, section 112, that legitimacy is, conclusively presumed from birth during the continuance of a valid marriage or within two hundred and eighty days after its termination unless it be shown that the married partners had no access to each other at any time when the alleged child could have been begotten, is really, notwithstanding its place in the Statute book, a rule of substantive marriage law, rather than of evidence, and, as such, has no application to Mohammedans, so far as it conflicts with the Muhammadan rule that a child born within six months after the marriage of its parents is not legitimate." The view expressed by Ameer Ali and Wilson is, however, not shared by Mulla and Tayyabji. Section 340 of Mulla's Principles of Muhammadan Law (13th Edn.) merely reproduces the contents of section 112 of the Indian Evidence Act of 1872, and the notes thereunder appear to cite with approval cases which apply these provisions in supersession of the rules of the Muslim Law. ' While stating the rules having a bearing on the determination of the paternity of a chili, Tayyabji rematks, in subsection (2) of section 215 of his Book 'Muhammadan Law' (3rd Edn.) that "the rules stated in this ..section are subject to the Indian Evidence Act, section 112, so far as it is ,.applicable." On page 259, the point is elaborated as under:- "The rules in sections 215-221 must be taken to be repealed by the Indian Evidence Act, section

112. The general intention of the Legislature seems clearly to be that section 112 should govern questions arising with reference to persons of every- denomination. That section gives effect to the same principles, on which the rules of Muhammadan law are grounded, but on the basis of present day information. Its general application has the additional advantage of removing difficulties about the choice of law that would arse if the Muhammadan law were to be applied in cases between parties both of whom are not governed by the same school of law. The policy underlying these presumptions equally of Muhammadan Law, of English law, and of the rules laid down in the Indian Evidence Act, and the reasons why some of the Muslim exponents of law stretched the length of the period of gestation to two and four years, are not difficult to surmise. There was, no doubt, an initial want of scientific knowledge, though the latest scientific authorities show that the period of gestation is always subject to doubt. Added to this was the desire not to take any risk of bringing down on the head. It even of an erring woman, the extremely severe punishment that adultery involved. English law abounds in cases in which the rigour of the law is lessened by fictions and technicalities." In a comparatively recent publication, namely, Islamic Law in Africa by J. N. D. Anderson, it is stated while dealing with the administration of Muslim law in Aden and East Africa, that "it has been held in Zanzibar that while the status of legitimacy is a matter of substantive law as is also the rule that a legitimate child is one born, or presumed to be born, of a valid marriage, yet the rules governing the means by which that presumption is to be arrived at are not so. Such cases therefore are now covered in Zanzibar by sections 2, 112 and 114 of the Evidence Decree, and a child is conclusively proved legitimate if born within 280 days of the dissolution of its mother's marriage, provided she has not re-married . . . . . ." The sections of the Evidence Decree, as operative in Zanzibar, are identical with the relevant sections of the Evidence Act applicable in Pakistan. On a consideration of the authorities noticed in the preceding paragraphs, the views expressed by well-known writers on Muslim law, as well as the scheme of classification of the rules of Muslim law as adopted in well-known texts like Fatawa Alamgiri. Hedaya had Durrul Mukhtar, we are inclined to the view that rules of Muslim law on the question of legitimacy are a part of the substantive family law, dealing with the subjects of validity of marriage, paternity, guardianship, succession and inheritance. In no authoritative text book on Muslim law have the rules regarding legitimacy been included in the Chapters dealing with adjective law comprising procedure and evidence. "Kitab al-shahadat" constitutes a separate part of all these texts, and contains elaborate discussion on the questions of admissibility of evidence, the rules for testing the credibility of witnesses, and instructions relating to the conduct of cases, but there is no mention anywhere of the legal presumptions relating to paternity and legitimacy. In his excellent discussion on the subject of procedure and evidence in Chapter 10 of his book Muhammadan Jurisprudence, Abdur Rahim has not apt all touched the subject, thus showing that in the scheme of Muslim law it is not regarded as a rule of evidence. This conclusion is, however, not decisive on the question whether clause (1) of section 2 of the Indian Evidence Act, as originally promulgated in 1872, had the effect of repealing the rules of Muslim law on the subject of legitimacy in view of the specific provisions contained in this behalf in section 112 of that Act. The preamble to that Act states "Whereas it is expedient to consolidate, define and amend the law of evidence." The object of the repealing provisions included in section 2 of the Act was clearly to pave the way for the application of the rules of evidence embodied in she Act in supersession of those mentioned in the several clauses of the section. The phrase, "all rules of evidence" as employed in clause (1) of this section must, therefore, be interpreted in the sense in which it is employed in this Act, and not under the scheme of classification adopted in other systems of law. It may be mentioned that section 112 is included in Chapter VII of the Act, which deals with the subject of "the burden of proof". This Chapter also includes another important section, namely, section 114 containing certain presumptions as to the existence of certain facts. The subject of presumptions is itself dealt with in section 4 of the Act. Certain special presumptions as to documents are contained in sections 79 to 90 of the Act. It appears to us, therefore, that the Evidence Act adopts an elaborate scheme of its own by treating the subject of presumptions and the burden of proof as regards the question of legitimacy as a part of the law of evidence, and it is in this light that the scope of the repealing provisions contained in section 2 of the Act must be judged. It follows, therefore, that although under the classification adopted by writers on Muslim law, the subject of legitimacy and paternity is treated as a part of the substantive law, yet in view of the scheme underlying the Evidence Act, 1872, the rules governing legitimacy must be regarded as rules of evidence, for otherwise the legislative intent underlying the promulgation of the Evidence Act, namely, "to consolidate, define and amend the law of evidence," was likely to be defeated, by excluding from its purview several subjects which have been specifically dealt with in this Act, but are not described as rules of evidence under other systems of law which were then in operation under the Punjab Laws Act of 1872 and corresponding laws obtaining in other Provinces of India. On this view of the matter, we consider that the rule enunciated by the Punjab Chief Court as early as 1884 in the case of Rehmat All v. Mst. Allahdi, and since followed in a large number Of cases, was indeed correct, namely, that for the purposes of section 2(i) of the Evidence Act the rules of Muslim law on the question of legitimacy must be treated as rules of evidence, and accordingly repealed by it, with the consequence that the matter would be governed by section 112 of the Evidence Act even in those cases where the parties were Muslims. This position continued to prevail until 1938 when section 2 of the Evidence Act was repealed by the Repealing Act, 1938 (Act I of 1938). The preamble to this Act stated as under:- "Whereas it is expedient that the enactments specified in the Schedule which are spent or have otherwise become unnecessary or have ceased to be in force otherwise than by express or specific repeal, should be expressly and specifically repealed: it is hereby enacted as follows." In the case of Capt. T. W. King v. Mrs. F. E. King (A I R 1945 All. 190), while considering the question of admissibility in divorce cases of evidence regarding non access by husband or wife, it was observed that the English rule did not apply in India because it was a rule of evidence and was subject to the provisions of the Indian Evidence Act, 1872. It was, further observed that the repeal of section 2 of the Evidence Act by the amending and Repealing Act of 1938 did not make any difference because it did not have the effect of re-enacting the rules which the said section had earlier repealed. This, judgment has been cited with approval by Mr. Mohammad Munir in his Principles and Digest of the Law of Evidence. It is, however, interesting to, observe that neither in the judgment in question, nor in Mr. Munir's book is there any discussion of the reasons on which this conclusion is based. It is not shown whether this conclusion flows from the saving clauses contained in the Repealing Act itself or in the relevant sections of the. General Clauses Act which was then in force. This question came up for direct examination by a Division Bench of the High Court of West Pakistan in the case of Abdul Ghani, to which reference has already been made in another context. It was held that "as a result of repeal of section 2, by virtue of section 6-A of the General Clauses Act, the rules, laws, regulations and enactments mentioned in clauses (2) and (3) of section 2 would not be revived, but the rules of evidence mentioned is clause (1) of section 2 of the Evidence Act being not part of a Central Act. or Regulation, the same would not stand repealed after the Repealing Act, namely. section 2 of the Evidence Act, bad itself been repealed. On this view of the matter . . . . . after the repeal of section 2 of the Evidence Act the rules of Muhammadan Law which had been repealed by clause (1) have been revived and are now part of the law of evidence." It seems to us that the view taken by the High Court of the West Pakistan is correct. In the Repealing Act of 1938, the reason given for the repeal of the enactments mentioned in the Schedule to that Act is that these enactments have either spent themselves or have otherwise become unnecessary or have ceased to be in force otherwise than by express or specific repeal. According to Mr. Munir, "the repeal was necessitated by the textual modifications effected in the existing statute law by the Government of India Act (Adaptation of Indian Laws) Order, 1937, in pursuance of section 293 of the Government of India Act, 1935". While this reason may apply to some of the enactments and regulations mentioned in the Schedule to Act It of 1938, it does not appear to have any application to the said section 2 itself or to the rules of Muslim law which we are considering here. These rules have not in any manner been affected by the legislative changes or adaptations necessitated by the Government of India Act, 19x5, or the adaptation Orders issued thereunder. We also find that the Repealing Act contains saving clauses in the 3rd and 4th sections which deal with previous enactments. No provision appears to have been made in regard to the body of rules mentioned in clause (I) of section 2 of the Evidence Act, namely, "all rules of evidence not contained in the statute, Act or Regulation in force in any part of British India". It is, therefore, fair to conclude that the repeal of section 2 of the Evidence Act would ordinarily have the elect of reviving these rules of evidence, unless there is anything in the General Clauses Act to the contrary. It may be mentioned that, according to Maxwell, until the passing of the Interpretation Act of 1850, the common law rule was that where an Act was repealed and the repealing enactment was repealed by another which manifested no intention that the original Act was to continue repealed, then the repeal of the second Act revived the first ab initio and not merely from the passing of the reviving Act. This rule, however, ceased to apply on account of a specific provision having been made to the contrary in the Interpretation Act of 1850. In the case of Abdul Ghani, the High Court confined its attention to the effect of section 6-A of the General Clauses Act, 1897, which was in force at the time the Repealing Act of 1938 was enacted. It reads as under:- "Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal." 'This section is not directly applicable in the present context, for the reason that section 2 of the Evidence Act had not amended the rules of Muslim Personal Law; on the contrary, clause (1) of that section had repealed all rules of evidence not contained in any statute, Act or Regulation in force in any part of British India. This being not a case of amendment of the previous law, by the repealed enactment, namely, section 2 of the Evidence Act, the question arising here has to be answered witty reference to section 7 of the General Clauses Act, which is directly relevant. This section reads as under:- "7.--(1) In any Central Act or Regulation made after the commencement of this Act, it shall be necessary, for the purpose of reviving, either wholly or partially, any enactment wholly or partially repealed, expressly to state that purpose. (2) This section applies also to all Central Acts made after the third day of January 1868, and to all Regulations made on or after the fourteenth day of January 1887." It will be seen from clause (1) of this section that it deals with the question of the revival of a repealed enactment. On this point, the rule is clear, namely, that the repeal of a repealing Central Act or Regulation would not automatically revive, wholly or partially, any enactment which had been repealed by such Central Act or Regulation. (See Mohammad Safi v. State of West Bengal (A I R 1951 Cal. 97), Municipal Board, Lucknow v. Ram Autar (A I R 1960 All. 119) and. Abdul Majid v. The Custodian of Evacuee Property (P L D 1962 Kar. 306). The question, therefore, is whether the rules of evidence of Muslim Personal Law can be regarded as falling within the definition of an "enactment". If so, then they will not stand automatically revived, unless, the repealing enactment expressly states that purpose. The term "enactment" is defined in clause (17) of section 3 of the General Clauses Act as including "a Regulation and any Regulation of the Bengal or Bombay Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid." The term "Regulation" itself is defined in clause (46) of the same section as meaning a Regulation made by the Central Government under the successive Government of India Acts of 1870, 1915 or 1935. In other words, the term "enactment" connotes something which has been formally promulgated or enacted by an authority having the power to make laws in respect of the subject-matter of the law as well as its territorial operation. To put it differently, the term "enactment" can only refer to a formal law made by the State in accordance with the relevant Constitutional procedures applicable to law-making; it cannot extend to anything in the nature of rules, whether of evidence or substantive law, not contained in any statute, Regulation or Act formally promulgated or enacted. Rules of Muslim Personal Law derive their authority and sanction from the Quran and Sunnah, and they have been developed, over a long period of time, by the deliberations of Muslim jurists, but they have not been formally enacted or promulgated as municipal law in Pakistan, save to a limited extent in the matter of succession and dissolution of marriage etc. The only other legislation, promulgated in this behalf froze time to time, has been to declare the application of these rules of Muslim Personal Law to parties who are Muslims. It follows, therefore, that the rules of Muslim Personal Law are not included in the term "enactment" as used in clause (1) of section 7 of the General Clauses Act. It was precisely for this reason that the original section 2 of the Evidence Act of 1872 contained a separate clause for dealing with such rules. Section 7 of the General Clauses Act having no application to these rules, their revival shall be governed by the ordinary principle of law, namely, that the repeal of a repealing Act has the effect of reviving the original rules or law, as if the repealing Act had never intervened. We consider, therefore, that, on the repeal of section 2 of the Evidence Act by Act I of 1938, the rules of Muslim Personal Law stood revived, and would apply in matters of legitimacy etc. where the parties are Muslims. It seems to us that it is an appropriate case where mention may be made of the directives enshrined in the Constitution of the Islamic Republic, of Pakistan (1973), regarding the enforcement of Muslim law. The preamble to the Constitution enjoins, inter alia, that the Muslims of Pakistan "shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah." This directive is then repeated in Article 31 of the Constitution as one of the Principles of Policy. Finally, it is provided in clause (1) of Article 227 that "all existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah . . . . . and no law shall be enacted which is repugnant to such injunctions." The subsequent Articles contained in this Part of the Constitu tion, namely, Part IX, proceed to provide a machinery for implementing these directives and Principles of Policy. While the responsibility for bringing the existing laws in conformity with the Injunctions of Islam, and ensuring that no law shall he enacted which is repugnant to such Injunctions, must rest with the executive and the legislative organs of the State, responsibility also devolves on the Judiciary to implement the spirit underlying these provisions of the Constitution. If, therefore, in any given situation, two interpretations are possible, one of which is conducive to the application of the laws of Islam, then the Courts ought to lean in favour of its adoption. On the basis of this principle as well, we would be inclined to hold, in the present case, that with the repeat of section 2 of the Evidence Act, the rules of Muslim Personal Law stood revived as the General Clauses Act does not contain any provision applicable to these rules which are not contained in any formal enactment. This result also reems to be in accord with the intention underlying the various laws promulgated from time to time for the purpose of the application of the Muslim Personal Law to Muslims in India and Pakistan. 'I he first in the field is Act No. XXVI of 1937, called the Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of this Act provided for the application of the Muslim Personal Law in all questions, save questions relating to agricultural land, regarding intestate succession, special property of i' males, marriage, dissolution of marriage, maintenance, dower, guardianship, gifts, trust properties and wakfs, notwithstanding any custom or usage to the contrary. These provisions were supplemented by the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, (Punjab Act IX of 1948) as amended by Act XI of 1951. Section 2 of this Act did away with the previous exemption granted in respect of agricultural land, and also enlarged the scope of questions to which Muslim Personal Law was to apply by including subjects like minority, legitimacy or bastardy. The 1948 Act was followed by the West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, West Pakistan Muslim Personal Law (Shariat) (Amendment) Ordinance, 1963, another Ordinance in 1964 and finally, the Punjab Muslim Personal Law (Shariat) Application (Removal of Doubts) Ordinance, 1972. Now, what are the rules of Muslim law relevant to the present case. As the parties before us are Sunnis, they are governed by Hanafi law and the case was argued on that basis. Learned counsel on both sides have referred us to the statements of law, appearing in the well-known textbooks on Muslim law, namely, Fatawa, Alamgiri, Radd-ul-Mukhtar, Baflie's Digest of Muhammadan Law, Institutes of Mussalman Law by Nawab A. F. M. Abdur Rehman, Muhammadan Law by Syed Ameer Ali, Muhammadan Jurisprudence by Abdur Rahim, and Prin ciples of Muhammadan Law by Mulla. It is not necessary to quote separately, from these authoritative writings on Muslim law, as the rules enunciated, therein are identical. They may be summarised as follows:- Under the Muhammadan Law, as in all civilised systems of law, the child follows the bed (firash), that is, the paternity of a child born in lawful wedlock is presumed to be in the husband of the mother without any acknowledgement or affirmation of parentage on his part and such child follows the status of the father. According to the Sunni schools the presumption of legitimacy is so strong that in cases where a child is born after six months from the date of marriage and within two years after band or by divorce, a simple denial of paternity on the part of the husband would not take away the status of legitimacy from the child. Of course, presumption based on the bed is subject to the right of disavowal on the part of the husband for want of access. This right has to be exercised in accordance with the custom of the locality either on the day of the child's birth or at the time of purchasing articles necessary in view of its birth or during the period of rejoicing. If the husband is absent, he must disown the child immediately he is informed of its birth. The shortest period of gestation, according to all the schools, is six months. If, therefore, a child is born within six lunar months of the marriage, no affiliation would take place unless the man acknowledge it to be his issue. In other words, it is the right of the man to legitimate a child born within this time by acknowledging expressly or impliedly that the` conception look place in wedlock. According to the Hanafis, contrary to the Shafi'is, the husband is entitled to claim the child born in wedlock as his, even if he had no access to the wife. If the husband wishes to repudiate a child so born, he can only do so by the procedure of laan that is to say, if he swears before the Qadi that the child is illegitimate and fruit of adultery, in which case the Court will pass a decree not only dissolving the marriage but declaring the child to be illegitimate. As observed by their Lordships of the Judicial Committee in Syed Habibur Rehman Choudhry v. Syed Altaf Ali Choudhry (A I R 1922 P C 159) legitimacy is a status which results from certain facts, whereas legitimation is a proceeding which creates a status which did not exist before. This proceeding becomes necessary where either the existence of a valid marriage cannot be expressly proved or where the child is born within six months of the marriage as stated above. In such cases, acknowledgment of legitimacy in favour of the child may be either express, or by necessary implication from the course of treatment by the man of the mother and the child, or from the evidence of repute and notoriety amongst the members of the family, community and respectable members of the locality. Such an acknowledgment raises a presumption of a valid marriage and legitimate birth. (See Khajah Bidayatoolah v. Rai Jan Khanum ((1844) 3 Moors I A 295), Muhammad Backer Hussain Khan Bahadoor v. Sharfoon Nissa Begum ((1860) 8 Moors I A 136), Ashrufood Dowalah Ahmed Hussain Khan Bahadoor v. Hyder Hussain Khan (1866 Moors I A 94), Muhammad Allahdad Khan v. Muhammad Ismail Khan (I L R 10 All. 289), Abdul Razzaq v. Agha Muhammad Jaffar Bindanim (I L R 21 Cal. 666), Mst. Bibee Fazilat-un-nessa v. Mst. Bibee Kamar-un-nessa ((1905) 9 C W N 352), Sadiq Hussain Khan v. Hashim Ali Khan ((1916) 43 I A 212), Zakirali v. Soqrabi (A I R 1918 Nag. 32), Zamin Ali v. Aziz-un-nisa (I L R 55 All. 139) and Bibi Amu v. Mst. Asiat (P L D 1958 Kar. 420). We may now proceed to examine the facts and evidence of the present t case in the light of these rules. It is common ground between the parties that the appellant Mst. Hamida Begun was born during the subsistence of marriage between her mother Mst. Ghulam Zainab and the late Sh. Mehar Din. In accordance with the principle that "the child follows the bed", the plaintiff would be presumed to be a legitimate child of Sh. Mehar Din, unless it was proved that no valid marriage could take place between Sh. Mehar Din and cost. Ghulam Zainab, or that the plaintiff was born within six lunar months from the date of the marriage, and that she was not acknowledged as a legitimate child by Sh. Mehar Din on that account. As there is no evidence to show that there was any obstacle in the way of a valid marriage between Mst. Ghulam Zainab and Sh. Mehar Din, the whole controversy centres round the date of birth of the plaintiff, and the assertion of the defendants that Sh. Mehar Din had repudiated the plaintiff arid never acknowledge her as his legitimate daughter. According to Nikah Nama (Exh. D. Z.) the marriage between Mst. Ghulam Zainab and Sh. Mehar Din was solemnised on 9-5-1916. It is the defendant's assertion that the plaintiff was born ors the 150, of October 1916, i.e. after five months and six days of the marriage. In support of this assertion they have relied on the birth certificate Exh. D. J. This birth certificate was accepted as genuine by the trial Court, but has been rejected by the first appellate Court. The question is whether the learned Senior Subordinate Judge, acting in first appeal, has erred in this behalf, and whether his finding is liable to be set aside in second app eat. We find that he has fully discussed the question of the genuineness of the register of births which was said to contain the relevant entry regarding tide plaintiff's birth at serial No. 67 dated the 15th of October 1916, before coming to the, conclusion that the register was not reliable. It was produced in Court by Reham Shah (P. W. 19), Executive Officer of the Municipal Committee, Khanpur, who admitted that there were several blank pages in the said register, that two pages of entries had been inserted subsequently, and that the monthly statements from the 3rd of April 1916 to the 29th of October 1917 did not bear the signatures of any clerk or officer of the Municipal Committee. It also transpired that there was no register for the years 1917, 1918, and the register produced in Court had been closed after the month of October 1917 although blank pages were still available in it, On the basis of these glaring defects in the births register, the learned Senior Subordinate Judge came to the finding that "the entry of such a register carries no weight". We have ourselves examined the register and we do not see any reason to differ from the finding arrived at by the lower appellate Court. It is true that at the time of its production in Court the register purported to be more than thirty years old and, therefore, ordinarily under section 90 of the Evidence Act a presumption of genuineness would attach to it. However, as observed in Tikamadas v. Abdul Wali (P L D1968 S C 241) the presumption would stand negatived if there was internal evidence of forgery. Now, in the case of this register the official producing it hat to admit that it suffered from material defects, namely, that the relevant entries were not authenticated by any Municipal official, that two pages had been inserted subsequently an 4d that there were several blank pages available at the end of entries relating to October 1917 and yet no further entries were made in this register. Our examination of the register confirms the existence of these defects. In the circumstances, no presumption of genuineness can attach to this register under section 90 of the Evidence Act, and the authenticity of the entry relating to the plaintiff's birth as appearing in this register has been rightly rejected by the lower appellate Court. There does not appear to be any other direct evidence as to the date of the appellant's birth except the statement made by her at the trial, as P. W. 17, that she had been told by her father that she was born on the 30th of March 1917. She has added that her father had shown to her a note-book in which this date was recorded. This note-book has, however, not been brought on the record by either side. From the plaintiff's side the only other document having a baring on her date of birth is her Nikah Narna (EXIT. P. L.), drawn up on the 23rd of April 1934. In this document she is described as aged 18 years. She has explained in her evidence that she was described as eighteen years because she bad entered the eighteenth year of her age. We shall have occasion to notice some other aspects of this Nikah Nama later when we deal with the question of acknowledgement. The defendants have sought to rely on a number of documents as providing indirect proof of their assertion that the plaintiff was born only five months after her mother's marriage with Sh. Mehar Din. The earliest of these documents in point of time is Exh. CD/K, which has been described by the defendants as a muafinama executed by the plaintiff's mother Ma. Ghulam Zainab, daughter of Ataullah Khan, on the 17th of February 1917. By this document Mst. Ghulam Zainab purports to forego her right to the agricultural land gifted to her by Sh. Mehar Din in lieu of her dower, and she also adds that "I have obtained forgiveness from my husband for my dereliction." The precise words in Urdu are:- This document was proved at the trial by Mst. Bhagan (D. W. 4), whereas Mst. Murad Begum (D. W. 10) only proved the handwriting of Mst. Ghulam Zainab. The evidence of Mst. Bhagan makes interesting reading. She is a near relation of the defendant Mst. Murad Begum, being the wife of Mst. Murad Begum's uncle. At the time of the birth of the plaintiff she was a young woman of about 20/22 years of age and happened to visit the house of Sh. Mehar Din on the day the plaintiff was born, nearly six months after the marriage of the plaintiff's mother with Sh. Mehar Din. In her presence, Sh. Mehar Din had an altercation with Mst. Ghulam Zainab, demanding to know as to why was the girl born only five months after the marriage. He also declared that the girl was not from his "Nutfa". According to Mst. Bhagan, Mst. Ghulam Zainab thereupon confessed her sin and asked for forgiveness from Sh. Mehar Din, and executed the Muafi Nama (Exh. CD/K). She has deposed that this document was written in her presence, and she also identified Mst. Ghulam Zainab's handwriting and signatures thereon. If Mst. Bhagan's evidence is correct, then it does appear to be somewhat strange that an elderly and experienced man of nearly sixty years of age, as Sh. Mehar Din was at the time of the plaintiff's birth, should have kept quiet at the condition of his new wife Mst. Ghulam Zainab for several months, and then suddenly raised the question of the illegitimate birth of the plaintiff on tire very day she was born, and that too in the presence of a young woman still in her early twenties. Assuming, however, that Mst. Bhagan was indeed present at the time the document Exh. CD/K was executed, then her evidence clearly establishes the fact that the plaintiff was born on the 17th February 1917, as the document bears this date, and was executed on the day of the plaintiff's birth. This fact is sufficient to negative the story put forward by the defendants to the effect that the plaintiff was born in October 1916. On this evidence the plaintiff must be found to be a legitimate child of Sh. Mehar Din. It appears that later on, during cross-examination it dawned on Mst. Bhagan that she bad not done the right thing by deposing to the execution of this muafi nama on the date of the plaintiff's birth, and accordingly, she changed her position several time, by saying that the document was written on the day of the plaintiff's birth, five or six days after the birth, and five or six months after that event. In view of these contradictory statements made by Mst. Bhagan and the admitted close-relationship which she had with toe defendants, it is clear that no reliance could be placed on the testimony of this woman. Apart from this, the document itself does not establish that the deceased mother of the plaintiff was dealing with the question of the illegitimate birth of the plaintiff. She had agreed to forego her dower for the reason that she had asked for forgiveness from her husband for some dereliction on her part, which was not specified in the document itself. It is clear that the legitimacy of a child could not be put in jeopardy on the basis of a document which is couched in such dubious and ambiguous terms, even if it were otherwise satisfactorily proved to be a genuine writing of the plaintiff's mother. If the plaintiff had already been born in October 1916, there is no explanation why the drafting of this document was left over for another five months after the birth. Contemporaneously with Exh. CD/K, Mst. Ghulam Zainab also appears to have signed a relinquishment deed on the 18th of February 1917, in respect of agricultural land which had been gifted to her in lieu of dower. This document is Exh. C. D. As no reason is mentioned for relinquishing the dower, this document is of no avail on the question we are considering here. The defendants have also brow-ht on the record some documents showing repudiation of the plaintiff by her father Sh. Mehar Din. Exh. D. G. is a will said to have been executed by Sh. Mehar Din on 4-4-1918, which recites at some length the disappointment suffered by him on the first night of his marriage with Ms t. Ghulam Zainab when he discovered that she was not a virgin. He goes on to state that on his insistence Mst. Ghulam Zainab confessed that she was pregnant owing to illicit intercourse with a cousin, and that she should be forgiven. In order to save his fair name and position in Khanpur society he forgave Mst. Ghulam Zainab, but made it clear that he would not be responsible for bringing up this illegitimate child. He goes on to add that when Mst. Hamida Begum was born, he informed Mst. Ghulam Zainab that as the girl was not from his "Nutfa" she will not be brought up in his house, nor she will inherit anything out of his property. The girl was then handed over to Sh. Mehar Din's second wife bearing the name Mst. Zainab Bibi, who was childless at that time and was living separately in Amritsar. According to the averments made in this will, Mst. Hamida Begum was accordingly brought up at Amritsar. Sh. Mehar Din has also mentioned that Mst. Hamida Begum's mother Mst. Ghulam Zamab bad relinquished her dower on this account and executed a relinquishment deed as well as a Muafi Nama on the 17th and 18th of February 1917, which documents were in his custody. He then proceeds to declare that for this reason, Mst. Hamida Begum could not inherit his property. Finally, he bequeaths his property to his only living son Nur Din directing him to look after his step-mothers Mst. Zainab Bibi and Mst. Ghulam Zainab, i.e. the plaintiff's mother. The genuineness of the will Exh. D. G. has been seriously questioned on behalf of the plaintiff appellant. In the first place, it is submitted that the contents of the will have not been satisfactorily proved fur the reason that the marginal witness Khuda Bakhsh son of Ladhe Khan, who appeared at the trial as D. W. 6, is not worthy of credit, as he is a man of no substance and appears to have been procured by Mst. Murad Begum to give evidence against the plaintiff. He had merely stated that "it seems to me that signatures Exh. DG/1 are those of Mehar Din". He tried to clarify the position later by saying that these were the signatures of Mehar Din, but it is clear that being a man of nearly ninety years of age on the date he was giving evidence, he was not in a position to correctly identify the signatures of the executant of this document, nor hiss own signatures thereon. It is submitted by Sh. Muhammad Shafi that on the basis of the evidence of this witness it cannot be said that the document stands proved. It is next submitted that in any case there is inherent evidence that this particular document is a forgery, as in the schedule of property the very first item is shown as agricultural land situate in Tehsil Shahdara of district Sheikhupura, which averments are factually incorrect as in 1918 neither Shahdara was a tehsil nor Sheikhupura was a district. This point was not contradicted on behalf of the defendants, but it was asserted that this interpolation had been made by or on behalf of the plaintiff while the document was in the custody of the trial Court. This allegation was refuted by the learned counsel for the plaintiff by submitting that after the original of this document had been filed in Court by the defendants they had applied for a certified copy of the same, and bad then applied for the return of the original on 2-2-1952, which request was granted on 5-2-1952, and the will was later refiled in Court. It seems that it is not necessary for us to go into this controversy, for the reason that the authenticity of the document Exh. D. G., as placed on the record by the defendants, has been thrown into serious doubt by the evidence of Munshi Abdul Aziz Khan (P. W. 11), Nazir of the Court of Additional District Magistrate, Rahimyar Khan. He produced in Court two registers bearing the title "Execution of Registration" commencing from 1890 to the date of evidence, namely, the 2nd of December 1951. The first register was from 1890 to 1920 and the second commenced from 1921 up-to-date. Both the registers were in form No. V and contained particulars of wills which are kept under seal in the department of the Registrar. The first register showed that on the 2nd of April 1918, the late Sh. Mehar Din deposited a will with the Registrar in favour of his son Nur Din, his wife Mst. Zainab Bibi, daughter of Nizam Din resident of Amritsar, his minor daughter Mst. Hamida Begum, his wife Mst. Ghulam Zainab and his nephew (sister's son) Ghulam Hussain resident of Amritsar, and latter's son Nabi Bakhsh caste Kakazi resident of Lohari Gate. Before the trial Court the admissibility of this evidence was questioned on behalf of the defendants, but the learned trial Judge allowed this evidence to be brought on the record on the ground that the evidence was being given out of a public document. It appears that the original register was seen by the trial Court and returned to the witness, as the same is not available on the record. Bat the evidence of Munshi Abdul Aziz Khan is in detail, and it clearly establishes that in the relevant register there is an entry of a will dated the 2nd of April 191.8, deposited with the Registrar by Sh. Mehar Din, and in this will the plaintiff Mst. Hamida Begum was clearly described as a daughter of Sh. Mehar Din and entitled to inherit as an heir along with her mother Mst. Ghulam Zainab and others. This official was cross-examined at great length, but his credibility was not damaged in any manner. The learned lower appellate Court appears to have rightly placed reliance on his evidence. The extract contained in the register produced by Munshi Abdul Aziz Khan does not support the contents of the will Exh. D. G. From the date mentioned in Exh. D. G., and the date appearing in the register produced by Munshi Abdul Aziz Khan, it is reasonable to infer that there was indeed a will deposited with the Registrar by Sh. Mehar Din on or about the 2nd of April 1918, but that will did not repudiate or disinherit Mst. Hamida Begum; on the contrary, it recognised her as a daughter of Sh. Mehar Din and mentioned her as one of the heirs under the will. We would accordingly reject Exh. D. G., and instead place reliance on the extracts from the register as proved by Munshi Abdul Aziz Khan in favour of the plaintiff. Exh. D. G. has obviously been forged at a later date. The evidence of Munshi Abdul Aziz Khan (P. W. 11) further makes it clear that the will of 1913 was withdrawn by Sh. Mehar Din on the 6th of November 1920, and subsequently another will was deposited by him in a sealed cover on the 3rd of May 1921. This will was also withdrawn on the 10th of January 1923, and a third will was then deposited by him on the 25th of November 1925, which was also withdrawn on the 19th of August 1930. As the witness was not questioned as to the brief extracts of the contents of the subsequent wills it is not possible to say anything on this point, nor is any other evidence available in this behalf. The next document, which, according to the defendants, contains a repudiation of the plaintiff by her father is Exh. D. B. dated the 13th of December 1941, described as a codicil to the will of Sh. Meher Din dated 2nd/4th April 1918. In this will there is a brief sentence: This document was sought to be proved at the trial by Haji Abdul Sattar and petition-writer, Allah Wasaya. While the evidence of Haji Abdul Sattar relates only to the identity of his own signatures as a marginal witness, Allah Wasyaya proves the execution of this document by Sh. Mehar Din and also the identity of his signatures. Learned counsel appearing for the appellant has criticised the integrity and impartiality of Allah Wasaya on the ground that this man was, in fact, a domestic servant of the appellant's step-mother Mst. Murad Begum and was deposing falsely at her instance. These questions were put to this witness but he denied the suggestions. It is, therefore, not possible for us to hold that the execution of Exh. D. B. is not proved on the record. It is, however, significant to note that the repudiation of the plaintiff's legitimacy contained in just one sentence appearing in Exh. D. B. was made twenty-five years after her birth. In no system of law such a repudiation has any value. Next in point of time is Exh. D. H. dated the 14th of December 1941, which is described as a pedigree table said to have been prepared by Nur Ahmed (D W. 11) at the instance of Sh. Mehar Din. It was proved by Haji Abdul Sattar, Nur Ahmed and Allah Wasaya. As in the case of Exh. D. B., Haji Abdul Sattar has simply proved his own signatures as a marginal witness on this document, but the other two have spoken of the identity of Sh. Mehar Din's signatures thereon. This pedigree table shows that Sh. Mehar Din bad only two daughters named Mumtaz Begum and Zubaida Begum. Even if this document is accepted as having been executed by Sh. Mehar Din, it has no value for the purpose of proving the legitimacy or otherwise of Mst. Hamida Begum. The mere omission of the name of a child from a pedigree table, deliberately prepared in undisclosed circumstances cannot lead to the inference that the omitted child is not legitimate. Exh. D. H., therefore, is of no consequence as against the plaintiff. The last three documents falling in this category are the two impugned wakf deeds namely, Exh. D. E. dated the 4th of October 1944 and Exh. D. D. dated the 11th of June 1945, as well as an explanatory memorandum Exh. D. C. dated the 22nd of June 1945. In the two wakf deeds, there is no mention at all of the plaintiff-appellant Mst. Hamida Begum. Apart from the fact that the question whether they were executed by Sh. Mehar Din under the undue influence of his young wire Mst. Murad Begum, has yet to be considered, these documents, by the mere omission of the plaintiff from the list of beneficiaries, do not constitute a repudiation of her legitimacy; they only seek to deprive her of her inheritance. The third document Exh. D. C. dated the 22nd of June 1945, really forms part of the two wakf deeds, and its validity is similarly subject to the consideration of the question of undue influence at the time of its execution. However, at the present stage, it is of some interest to point out that it recites exactly the same details of the disappointing experience of Sh. Mehar Din on the first night of his marriage with Mst. Ghulam Zainab, as are contained in the will Exh. D. G., which we have already discussed and discarded. This document opens with the recital that ha should have mentioned the detailed facts about Mst. Hamida Begum in the two wakf deeds, but he failed to do so and accordingly he thought it necessary to record these details in a separate document. There is an inherent contra diction in the contents of this document. While narrating that he was married to Mst. Ghulam Zainab on the 9th of May 1916 and he discovered on the first night that she was not a virgin, he has gone on to state that when she confessed her sin, she wrote out a document to that effect and relinquished her dower, and that he was in possession of both these docu ments. The narrative on the first page of this document leaves no doubt that the confession as well as the relinquishment deed were executed by Mst. Ghulam Zainab on the very first night of the consummation of her marriage with Sh. Mehar Din, but strongly enough, on the second page the dates of these two deeds are mentioned as 17th and 18th of February 1917. This document, therefore, provides inherent evidence that a man of eighty-six years of age was being made to sign this shameless document under an extraneous influence, and persuaded to attribute two documents of a much later date to a fact discovered by him on the nuptial night. As a result of the above analysis of documents, Exhs. D. G., D. H., D. B , D C., D. D. and D. E., relied upon by the respondents as evidence of the plaintiffs repudiation by her father, we have come to the conclusion that they are either not satisfactorily proved, or contained inherent evidence of contradictions and forgery, and that Exh. D. G. in particular stands fully contradicted by the evidence of Munshi Abdul Aziz Khan, who had the custody of the Register of Wills. Individually or taken together they do not at all establish that Sh. Mehar Din at any time declared the plaintiff to be an illegitimate child. In any case, the repudiation, if any, would be of no avail in view of the rule of Muslim Law that it must be made as soon as possible after the birth of the chill, either on the day of the birth itself, or at the time of purchasing articles necessary in view of its birth, or during the period of rejoicing. From the evidence produced by the defendants themselves, it appears that Sh. Mehar Din acquiesced in the child remaining in the house, and the earliest date on which he compelled the child's mother Mst. Ghulam Zainab to execute a self-condemnatory docu ment was the 17th of February 1917. His own repudiation was not made until April 1918, i.e, at least a year and a half after the alleged birth of the plaintiff. It is an established position in Muslim law, that a child cannot be bastardised by such a belated declaration. Besides producing this documentary evidence of repudiation by Sh. Mehar Din himself, the defendants have placed reliance on two other documents, which need to be noticed at this stage. One is a letter (Exh. D. W) said to have been written on 31-1-1925, by the plaintiff's father-in-law Sh. Mehar Ali, to late Sh. Mehar Din, stating that in spite of knowing that Mst. Hamida Begum was not the legitimate daughter of Sh. Mehar Din, he was still desirous of asking of her hand for his son Sit. Mohammad Rashid. The document was said to be proved at the trial, by the evidence of one Mohammad Kabir (D. W. 13). We cannot, however, help remarking that this is a very clumsy attempt at forgery. In the first place, it is to he noticed that on the day when this letter is said to have been written, Mst. Hamida Begum was not even ripe years of age, and her future husband was only studying in the sixth class. The writer of this letter, namely, Sh. Mehar Ali, was not related to the plaintiff's mother, Mst. Ghulam Zainab, but only to the plaintiff's father Sh. Mehar Din owing to the fact that Sh. Mehar Ali's wife was a cousin of Sh. Mehar Din. Keeping in view the ordinary course of human conduct, it would be most unusual for Sh. Mehar Ali to insist on demanding the hand of a girl for his son, when the girl's alleged father is openly declaring her to be illegitimate and the girl is not even of marriageable age. A still more damaging fact is that Sh. Mehar Ali has been demonstrated to be an illiterate person as when his son Mohammad Rashid got married in 1934, Sh. Mehar Ali was not able to sign the Nikah Nama Exh. D. L., instead he affixed his thumb-mark on it. It is unbelievable that a man who could write a detailed letter in January 1925 to Sh. Mehar Din became absolutely illiterate nine years later so as not to be able to sign the nikah nama of his own son. These facts leave us in no doubt that Exh D. W. is an utter fabrication. The other document is a letter (Exh. D. X.) written by the plaintiff herself to her step-mother Mst. Murad Begum, containing certain statements which the defendants want to construe as an admission of her own illegiti macy. Although the date of this letter is not apparent from the letter itself, yet :t is clear that it was written after Mst. Hamida Begum had got married in 1934. The letter contains an angry outburst by Mst. Hamida Begum against the activities and insinuations of Mst. Murad Begum and the latter's aunt (CHACHI) who apparently lived either in Lahore or Amritsar. The particular sentences relied upon by the defendants may be translated as follows:- "Look mother, I may repeat a hundred thousand times that Murad is not my mother you may say that Hamida is not my daughter, but the world does not say so. Similarly. Sh. Mehar Din may say that Hamida is not my daughter, and I may also say that I am not Sh. Mehar Din's daughter but the world will not say so." Reading the letter as a whole, as well as the particular sentences translated above, we find that it is indeed ridiculous to clam that this letter contains an admission by the plaintiff of her own illegitimacy; on the contrary she is emphasizing the fact that even if her step-mother arid her father declare that she is not their daughter, the world will not accept such a statement. There is no sentence at all to say that she knows that she is not the legitimate daughter of Sh. Mehar Din. The letter was put to the appellant in her cross-examination at the trial, and she explained that she bad written the same to protest against the activities of her step-mother. This is indeed a very plausible explanation of the contents of this letter. Besides the documents noticed in the preceding paragraphs, the defendants produced oral evidence to the effect that the late Sh. Mehar Din did not treat Mst. Hamida Begum as his legitimate daughter. These witnesses include Allah Wasaya, Ghulam Nabi Peon, Khuda Bakhsh and Mohammad Aslam Chishti, besides of course Mst. Bhagan whom we have already mentioned with regard to the Muafi Nama said to have been executed by the plaintiff's mother Mst. Ghulam Zainab. According to them, the late Sh. Mehar Din had declared at one time or the other that Mst. Hamida Begum was not his daughter, and that it was for this reason that he had sent her away to Amritsar to be brought up by his other wife Mst. Zainab Bibi, Mst. Bhagan and Mohammad Hussain have even gone to the extent of saying that Sh. Mehar Din had first refused to sign the Nikah Nama of the plaintiff-saying that he was not her father. We shall deal with this aspect of the matter a little later in this judgment, but suffice it to say at this stage that apart from the oral declaration attributed to Sh. Mehar Din these witnesses do not show that Sh. Mehar Din had refused to have any thing to do with Mst. Hamida Begum. They do not explain who paid for the maintenance and up-bringing of the plaintiff, nor do they explain as to why her Nikah was performed at the house of Sh. Mehar Din, seventeen or eighteen years after her birth, if indeed he had repudiated her right from the beginning. The evidence of these witnesses has been rejected by the learned lower appellate Court on the ground that these witnesses were men of no substance, and also appeared to be interested in Mst. Murad Begum. We have found no reason to disagree with this assessment. As against this mass of evidence adduced by the defendant, the plaintiff has also brought on the record a considerable number of documents, besides producing oral evidence, in support of her assertion that she had all along been treated by Sh. Mehar Din as his legitimate daughter, until the time he was persuaded to execute the impugned wakf deeds and the explanatory memorandum dated the 22nd of June 1945, under the undue influence of Mst. Murad Begum. Taking the documentary evidence first, we find that there is, in the first place, the will deposited by Sh. Mehar Din with the Registrar on the 2nd of April 1918 as proved by Munshi Abdul Aziz Khan (P. W. 11). We have already discussed the evidence of this witness while dealing with the defendant's document Exh. D. G., and had seen that according to the extract appearing in the Register of Wills, the late Sh. Mehar Din had stated in his will, deposited on the 2nd or April 1918, that his minor daughter Mst. Hamida Begum was one of his heirs. According to the evidence of Munshi blur Ahmed (h. W. 14), a licensed petition-writer of Khanpur, Sh. Mehar Din had driven up another will on 6th of June 1935. It was written by this witness, and a brief extract thereof was entered by him in his register at serial No.

659. According to this extract, Sh. Mehar Din had drawn up the will in favour of his wives Mst. Murad Begum and Mst. Zainab Begum and his daughters Mst. Hamida Begum, Mumtaz Begum and Zubaida Begum and placed it in a sealed -cover. It may be stated here that the plaintiff's mother Mst. Ghulam Zainab bad died in the meantime and Sh. Mehar Din had married the deceased -defendant, Mst. Murad Begum in 1925 and she had given birth to two daughters, Mst, Mumtaz Begum and Mst. Zubaida Begum who are the respondents before us. According to Munshi Nur Ahmed the will, after being placed in a sealed cover, was filed in the Court of the District Judge, Rahimyar Khan. Munshi Nur Ahmed has proved the execution of two other documents by Sh. Mehar Din, one being a Mukhtar Nama by him and the defendants in favour of one Munshi Allah Wasaya (D. W. 2), and the second being a document disinheriting the plaintiff which has not been placed on the record by the defendants, but the extract from the petition-writer's register shows that Sh. Mehar Din was doing so because of "an act of disobedience" by the plaintiff and not because he did not regard her as his legitimate daughter. This document is entered at serial No. 1056 in the register, and is dated the 11th of June 1945. Munshi Nur Ahmed has proved the signatures of Sh. Mehar Din in his register as they were appended there in his presence and he was also familiar with them. On this evidence, the legitimacy of Mst. Hamida Begum stands fully proved on the basis of acknowledgement by Sh. Mehar Din right up to 1945. As already stated, Mst. Hamida Begum was married to Sh. Mohammad Rashid on the 23rd of April 1934. Her Nikah Nama has been proved on the record as Exh. P. L. In this document, she is described as daughter of Sh. Mehar Din, who has signed under one of the columns, and it is also stated that "the father of the bride accepted personally after obtaining consent" It is true that one of the marginal witnesses of this Nikah Nama namely, Sh. Din Mohammad, appearing as P. W. 10 has stated that the late Sh. Mehar Din was hesitating to sign the Nikah Narna, saying that Mst. Hamida Begum was not his daughter, but later he was persuaded to act as the guardian. The same statement has been made by the defendants witness Mst. Bhagan, but it is significant that it is common ground between the parties that Mgt. Hamida Begum's carriage was performed at the house of Sh. Mehar Din and that in the Nikah Nama she was described as his daughter. The document also bears his signatures. In view of the contents of the Nikah Nama the oral evidence of Mst. Bhagan as well as of Sh. Mehar Din is obviously false, and procured by the defendants. If indeed Sh. Mehar Din did not acknowledge Mst. Hamida Begum to be his legitimate daughter there is no explanation why her marriage should be per formed at his house and she should be described as his daughter, and the docu ment should be attested by him. The fact that the marriage was not attended by a large number of persons is hardly material for determining the question of legitimacy. We consider that the Nikah Nama (Exh. P. L.) provides direct proof of acknowledgement of paternity by Sh. Mehar Din. The next document is Exh. P. A., which is a verification as well as an application written by Sh. Mehar Din on 14-1-1938 requesting for the grant Bahawalpur State domicile to Mst. Hamida Begum's husband, Sip. Mohammad Rashid. In this application, Sh. Mehar Din has declared that he has only daughters who are the inheritors of his property, that he regards his son-in-law Sh. Mohammed Rashid like his own son, and that he bad been bearing all the expenses of Sh. Mohammed Rashid, and, therefore, a domicile certificate may be granted to him as his heir. This document was proved on the record by Fazalur Rehman (P. W. 2) and Sh. Nazir Hussain (P. W. 3), who had occasion to deal with this application in their official capacities, the former having made an endorsement on it as Exh, P. B. in token of the verification of its contents by Sh. Mehar Din in his presence. The original was produced before the Court from a file maintained in the office of the Prime Minister of Bahawalpur State. This application contains a clear acknowledgment of the fact that Sh. Mohammed Rashid's wife Mst. Hamida Begum was a legitimate daughter of Sh. Mehar Din. The plaintiff has also proved some letters written by Sh. Mehar Din either to herself or to her husband Sh. Muhammad Rashid, which disclose the existence of an affectionate relationship of father and daughter or father- in-law and son-in-law between the correspondents. These letters could not have been written if Sh. Mehar Din did not regard Mst. Hamida Begum as his legitimate daughter. These letters are:- (1) Exh. P. A. A. dated 8th of May 1938, addressed by Sh. Mehar. Din to Mst. Hamida Begum; (2) Exh. P. F. dated 3rd of November 1938, written by Sh. Mehar Din to Munshi Muhammad Rashid: (3) Exh. P. H., without date, written by Sh. Mehar Din to Munshi Muhammad Rashid; (4) Exh. P. H/l, without date, but apparently written a few days before the 27th of January 1939, as disclosed by the text, from Sh. Mehar Din. to Sh. Muhammad Rashid. The closing part of this letter indicates that Sh. Mehar Din was intending to stay at the house of Sh. Muhammad Rashid on reaching Bahawalpur by train, for the purpose of attending to some litigation pending there. Then there is a second lot of letters, also proved on' the record, written by the defendaht Mst. Murad Begum to her step-daughter Mst. Hamida Begum. These letters also disclose a normal family relationship, making, particular mention of Mst. Hamida Begum's eldest child Ishfaq, and also showing that on different occasions Mst. Hamida Begum, alongwith her son Ishfaq had been staying at the house of Sh. Mehar Din as any other married daughter would do. These letters are:- (1) Exh. P. C., without date; which is particularly significant, as it mentions that Mst. Hamida Begum had been staying at her father's house immediately before this letter was written. and it also talks about the disposition of Sh. Mehar Din's property by stating that. "the rest you understand that you three sisters are the inheritors Don't worry. All this is meant for you three sisters." It is clear that three sisters are the appellant Mst. Hamida Begum and the two defendants Mst. Mumtaz Begum and Mst. Zubaida Begum. The envelope of this letter was also proved on the record as Exh. P D and appears to bear the date, 3rd November 1938. (2) Exh. P E dated the 20th of September 1938, in which Mst. Murad Begum has informed the appellant about an injury sustained by the appellant's father, but adding that he was now feeling better and the appellant should not worry She expresses affectionate feelings for Mst. Hamida Begum and her son Ishfaq Ahmed and the letter is sent to the appellant at the house of her father-in-law Sh. Mehar Ali is village Kalalwala in the district of Shiekhupura; and (3) Exh. P. F/1, without date, containing a mention of certain domestic matters, and conveying love of Mumtaz and Zubaida to their dear nephew Ishfaq Ahmed. Finally, there is the oral evidence of highly respectable witnesses like Fazalur Rehman (P. W. 2), Deputy Commissioner of the Bahawalpur district; Sh. Nazir Hussain (P. W. 3) Naib Tehsildar, Khanpur; Sh. Nur Muhammad (P. W. 4) Settlement Officer, Bahawalpur State; Saadullah (P. W. 5) a landlord of Khanpur; Mahboob Alam (P. W. 6) a businessman of Khanpur; and Maulvi Akhtar Ali (P. W. 7) a retired Deputy Rehabilitation Commis sioner, who were on visiting terms with Sh. Mehar Din, and had seen Mst. Hamida Begum being brought up at his house. Later on, Sh. Mehar Din spoke to them for the advancement of his son-in-law Sh. Muhammad Rashid, including the business of obtaining a domicile certificate for him so as to enable him to take up employment in the Bahawalpur State. The lower appellate Court has rightly placed reliance on the evidence of these gentlemen as showing continued acknowledgment of the appellant as a legitimate daughter by the late Sh. Mehar Din. The appellant also produced her Khalu, Sadiq Muhammad, as P. W. 8, but we need not dilate on his evidence on account of his close relationship with the appellant. Our conclusions on the question of legitimacy of the appellant may now be summed up. She was born during the existence of a valid marriage between her mother Mst. Ghulam Zainab and the late Sh. Mehar Din and, therefore, she must be presumed to be a legitimate child, unless it is shown otherwise. The defendants have failed to prove that the plaintiff was born within six months of the marriage. They have also failed to prove by reliable evidence that her paternity was repudiated by Sh. Mehar Din soon after her birth or within a reasonable time thereof. The only acceptable evidence of repudiation is Exh. D. B, which document was executed in 1941, clearly under the influence of Sh Mehar Din's youngest wife Mst. Murad Begum. By that time the appellant was 24/25 years of age and under the rules of Muslim Personal Law there could be no question of repudiation of any kind at that stage. A legitimate child could not be bastardised in this manner by an ageing father by means of a secret declaration in a document purporting to be a will. Many of the documents produced by the defendants appear to be forged, and would have ordinarily called for penal action, but for the fact that the main actor in the drama, namely, Mst. Murad Begum who went to such lengths to exclude her step-daughter from her rightful share in the property of her father, has since died. We do not think that her daughters could be burdened with any responsibility in this behalf. On the other hand, the appellant has succeeded in proving by satisfactory documentary as well as oral evidence that she was acknowledged as a legitimate daughter by Sh Mehar Din, her husband Sh. Muhammad Rashid was treated as a son-in-law, and her eldest child Ishfaq, the other children not having been born at this stage), was treated with affection by Sh. Mehar Din. Even Mst. Murad Begum expressed affection for him and concern for his welfare. We have, accordingly, on a detailed analysis of the entire evidence produced by the parties, no hesitation in endorsing the finding recorded by the lower appellate Court to the effect that Mst. Hamida Begum is indeed a legitimate daughter of Sh. Mehar Din, and thus entitled to succeed to his property. It now remains for us to examine the second question arising in this case, namely whether the two impugned wakf deeds were executed by Sh. Mehar Din under the undue influence of his young wife Mst. Murad Begum. We have already stated that the lower appellate Court has held that the two wakf deeds were executed by Sh. Mehar Din under the undue influence of Mst. Murad Begum. Ordinarily, this has to be regarded as a finding of fact not susceptible to interference by the High Court in second appeal. (See Venkatrama Aiyar v. Krishnammal (A I R 1927 Mad. 255) and Ladli Parshad v. Karnal Distillery Co. Ltd. (A I R 1963 S C 1279). However, we have scrutinized the relevant evidence and circumstances for the purpose of satisfying ourselves as to the correctness of this finding, and have come to the conclusion that it must be upheld. The doctrine of undue influence, as contained in section 16 of the Contract Act, is to the effect that "a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other, arid uses that position to obtain an unfair advantage over the other." Subsection (2) of this section elaborates the principle further by saying that "a person is deemed to be in a position to dominate the will of another- (a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other; (b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness or mental or bodily distress." Subsection (3) places the burden of proof on tire person having domination over another, if the transaction appears, on the face of it or on the evidence adduced, to be unconscionable. This doctrine is intended to grant protection against transactions procured by the exercise of insidious forms of influence, spiritual and temporal. It applies to acts of bounty as well as to other transactions in which one party by exercise of his position of domination obtains an unfair advantage over another. Undue influence may be inferred when the benefit is such as the taker had no right to demand, either in law or equity, or even as a moral claim, and the grantor had no rational motive to give. Wherever one member of the family exercises weighty influence in the domestic counsel either from age, from character or from superior position acquired from other circumstances, an inference as to the existence of undue influence can legitimately be drawn. In Muhammad Bakhsh Khan v. Hussaini Bibi (I L R 15 P C 684), their Lordships of the Judicial Committee observed that "where undue influence is alleged it is necessary to examine very closely all the circumstances of the case. The principles are always the same, though the circumstances differ; and, as a general rule, the same questions arise: (a) whether the gift in question is one which a right-minded person might be expected to make; (b) is it or is it not an improvident act on the donor's part; (c) is it such as to have required advice, if any, obtained by the donor; and (d) whether the intention to make the gift originated with the donor." In Inche Noriah v. Shaikh Allie Bin Omer (1929 A C 127) it was stated that "where the relation between the donor and donee raises a presumption that the donee had influence over the donor, the Court will set aside tile gift unless the donee establishes that it was the spontaneous act of the donor acting In circumstances which enabled him to exercise an independent will, and which justified the Court in holding that it was the result of a free exercise of the donor's will." Now, in the present case, we find that at the time of executing the two impugned wakf deeds, Sh. Mehar Din was described as a man of eighty-six years of age, whereas his wife Mst. Murad Begum was nearly forty years younger than him. According to Ziaur Rehman (P. W. 15), Sh. Mehar Din's age at the time of the execution of these documents was ninety or ninety-two years. It thus stands established on the record that Sh. Mehar Din's mental capacity had been impaired by age, and he was leaning heavily on Mst. Murad Begum for the conduct of his affairs, as is clear from the evidence of Sh. Nazir Hussain (P. W. 3). According to this witness Mst. Murad Begum was conducting all the affairs of Sh. Mehar Din, namely, his correspondence, the management of his lands and his public relations. A situation, therefore, had developed in which Mst. Murad Begum was in a position to dominate the will of her elderly husband. The question is whether Mst. Murad Begum used this position to obtain an unfair advantage for herself and her two daughters. We have seen that the two impugned wakf deeds completely excluded Mst. Hamida Begum from the list of beneficiaries, although she was a legitimate daughter of Sh. Mehar Din and bad been throughout treated as such by him until after her marriage and the birth of her eldest child Ishfaq. The two documents do not contain any reason whatsoever for this exclusion, nor can any true and legitimate reason be inferred from the great mass of evidence brought on the record by the defendants. Mst. Murad Begum and her two daughters had no claim whatsoever, in law, equity or morality, to take the entire property of Sh. Mehar Din, nor had the latter any rational motive to grant the same, to the exclusion of his daughter from an earlier marriage. In these circumstances, the transaction embodied in the two wakf deeds was clearly an unconscionable transaction, and a heavy burden lay on the defendants to show that it was not procured by the exercise of undue influence. This burden they have clearly failed to discharge. This inference is fortified beyond doubt by the fact that only a few days after the execution of the two wakf deeds, Sh. Mehar Din was persuaded to execute an unusual document, namely, Exh. D. C., on the 22nd of June 1945, just for the sake of denouncing and disinheriting Mst. Hamida Begum by narrating a story regarding his experience on the first night of his marriage with Mst. Hamida. Begum's mother Mst. Ghulam Zainab a marriage which, it will be recalled, had taken place more than twenty-nine years before the execution of this document, and the maligned lady had been dead for nearly twenty years by this time. There was obviously no occasion for Sh. Mehar Din to embark upon the execution of this document, when Mst. Ghulam Zainab bad continued living with him as his wife until her death in 1925, even after her husband bad allegedly made the distressing discovery that she was already pregnant from another man. Neither had he denounced Mst. Ghulam Zainab at that time, nor had he repudiated her child Mst. Hamida Begum at the time of her birth or within a reasonable time thereof. It is clear, therefore, that Sh. Mehar Din was subjected to strong undue influence for justifying what be had already been persuaded to do by the two impugned wakf deeds. All these circumstances taken together leave no doubt whatsoever in our mind that the two wakf deeds were clearly the result of the exercise of undue influence on the mind of Sh. Mehar Din by his young and scheming wife Mst. Murad Begum. Accordingly, they have been rightly set aside by the lower appellate Court and declared to be null and void. For the foregoing reasons, we hold that the Letters Patent Bench of the High Court was in error in thinking that the appeal before it had become infructuous on account of the provisions contained in paragraph 10 of Martial Law Regulation No. 64 of 19591 that the learned Single Judge was also in error in thinking that the appellant's suit was barred by time, for, although the suit was indeed governed by Article 91 of the Schedule to the limitation Act, yet the limitation did not commence until the death of Sh. Mehar Din in 1948, as during his lifetime the appellant bad no right, title or interest in the property forming the subject-matter of the impugned wakf deeds and could not have maintained the present suit; and that the learned lower appellate Court was right in finding that the appellant vas a legitimate daughter of Sh. Mehar Din; and that the two impugned wakf deeds were procured from the late Sh. Mehar Din by the exercise of undue influence on him by his wife Mst. Murad Begum, who had come to acquire a position of domination over her elderly husband whose mental faculties had been impaired due to extreme old age. As a result, we would accept Mst. Hamida Begum's appeal hearing No. 194 of 1970, set aside the two judgments of the Lahore High Court and restore the appellate judgment and decree of the learned Senior Subordinate Judge, Rahimyar Khan, dated the 25th of August 1956, by which the appellant's suit for declaration and a perpetual injunction was decreed as prayed: The respondents shall pay the appellant's costs throughout. It follows that the defendants' appeal bearing No. 195 of 1970 has to be dismissed. We order accordingly. There shall be no separate order as to costs in this appeal. K. B. A. Appeal accepted.