P L D 1968 Lahore 520 (PLP)

(4) If issue No. 1 is not proved, should the delay be condoned?

2. It was found that the application was belated, but that the applicant Mahmood Ahmad was prevented by illness from applying in time. It was further held that Mst. Ghulam Fatima was a British national and was, therefore, not governed by the provisions of the Muslim Family Laws Ordinance, 1961. (here inafter referred to as the Ordinance) with the result that the applicant Mahmood Ahmad was the only heir of his mother Mst. Ghulam Fatima, in spite of the fact that there were in existence the children and a widow of a pre‑deceased son Bashir Ahmad. On these findings the learned trial Judge set aside the abatement of the suit.

3. Mr. C. M. Latif Rawn, the learned counsel for the defendant‑petitioner Saeed Ahmad, has raised the following contentions :‑ (a) That there is no admissible and satisfactory evidence to prove that Mahmood Ahmad is the son, of Mst. Ghulam Fatima, (b) that even if it is so held, Bashir Ahmad's children and his widow also had to be brought on the record for the reason that in matters of succession the rule applicable would be the Ordinance in spite of the fact that Mst. Ghulam Fatima was a British national, (c) that the British nationality of Mahmood Ahmad is doubt ful in view of the fact that he admits drawing his pension under the Bonus Voucher Scheme which is applicable only to Pakistani nationals, and (d) that on account of the omission to bring on record all the legal representatives of Mst. Ghulam Fatima, the suit has abated in toto.

4. On behalf of the respondent Mahmood Ahmad all these contentions have been controverted and in addition the point is raised that the suit of Mst. Ghulam Fatima being one of possessions by redemption of a mortgage, anyone of the body of "mortgagors having equity of redemption could continue the suit and no question of total or even partial abatement would arise in such circumstances.

5. The first question in this case is about the locus standi of the respondent Mahmood Ahmad. The learned counsel for the petitioner is right in saying that the documentary evidence on which reliance has been placed to prove the parentage of Mahmood Ahmad could not be admitted as it did not comply with the requirements of section 78 of the Evidence Act. One of these documents is a Birth Certificate (Exh. A. W. 5/1) issued on the 15th of January 1946 by the Registrar of Births in the District of Kisumu‑Londiani in the Province of Nyanza, East Africa. This shows that Mahmood Ahmad was born to Abdul\ Haq, and Mst. Ghulam Fatima on the 18th of June 1926, i. e., nearly twenty years before the date of the certificate, and more than nineteen years before the date of registration of the birth on the 27th of December 1945. This certificate does not bear any endorsement of a Notary Public or of a Pakistan Consul or Diplomatic Agent as required by clause (6) of section 78 of the Evidence Act and, therefore, it could not be properly admitted in evidence: Even otherwise, it appears to me that this document could not be regarded as conclusive, as the birth in question was registered nearly nineteen years after the event.

6. The second document relied upon is A. W. 5/2 which is a certificate signed by the Honorary Secretary of the Muslim Association of Kisumu and is dated the 28th of January 1963. It is to the effect that on inquiries made from the elders of the Muslim community in Kisumu it has been ascertained that Mr. Mahmood Ahmad is son of Abdul Haq and was born in Kisumu Town approximately 35 years ago and his mothers name was Mst. Ghulam Fatima, daughter of Pir Bakhsh. This document again cannot be said to have been proved in accordance with section 78 (6) of the Evidence Act. The result, therefore, is that the documentary evidence regarding the parentage of Mahmood Ahmad is neither admissible nor conclusive on the point. This much was conceded by the learned counsel appearing for this respondent.

7. However, there is the oral evidence of several witnesses, namely, Muhammad Afzal Khan (A. W. 3), Fazlur Rehman (P. W. 4), and of the respondent Mahmood Ahmad himself as well as one or two witnesses of the present petitioner, to show that Mahmood Ahmad is a son of the deceased plaintiff Mst. Ghulam Fatima. Some of these witnesses are closely related to c the respondent Mahmood Ahmad and would in the normal course of events be expected to know his parentage. Nothing was brought out in cross‑examination to doubt the correctness of their statements. On the contrary, an attempt was made to elicit from these witnesses the fact that there was another son also nam ed Bashir Ahmad who had pre‑deceased Mst. Ghulam Fatima leaving behind four daughters, four sons and a widow. It is thus clear that these witnesses have personal knowledge of the relationship between Mst. Ghulam Fatima and Mahmood Ahmad, on the one side, and Mahmood Ahmad, Bashir Ahmad, etc., on the other. On the basis of this oral evidence, therefore, it is clear that Mahmood Ahmad is a son of Mst. Ghulam Fatima and that the second son was Bashir Ahmad who died during the lifetime of his mother leaving behind several heirs who are now living in Pakistan.

8. The next question is whether the children and widow of Bashir Ahmad can be regarded as the legal representative of Mst. Ghulam Fatima. This question has to be answered with reference to the law by which the question of succession to Mst. Ghulam Fatima's estate is governed. The "learned counsel for the petitioner did not contest the position that Mst. Ghulam Fatima had become a British national, but he, however, contended that as under Private International Law the question of succes sion is governed by the law of the land, the children of Bashir Ahmad would inherit from Mst. Ghulam Fatima under section 4 of. the Ordinance, even though their father Bashir Ahmad had died before his mother. In support of the proposition that the matter of succession will be governed by lex sites Mr. Latif Rawn referred to observations appearing on page 603 of the book entitled "Private International Law" by G. C. Cheshire, Sixth Edition, published by the English Language Book Society and Oxford University Press. The book is described as a low‑priced text‑book and the author is D. C. L., F. B. A. of Lincoln's Inn, a member of the Institute of International Law and a Professor of English Law in the University of Oxford and Fellow of All Souls College. It thus appears that the book is a work of authority which may be relied upon. The learned counsel appear ing for the respondent did not, in any manner, dispute the authority of this treatise. The relevant observations are to the following effect :‑ "Most foreign countries have adopted the principle of unity of succession by which questions relating to intestacy or to will's are governed by one single law, the personal law of the deceased, irrespective of the nature of the subject‑matter. England, however, together with other Angle‑Saxon countries, has consistently adhered to what is called the principle of scission under which the destination of immovables on the death of the owner is governed by the lex sites, not by the law of his domicil as in the case of movables. Accordingly, where the owner of immovables dies intestate, the order of descent or distribution prescribed by the lex situs is applied by the English Court no matter what his domicil may have been."

9. It is submitted by Mr. Latif Rawn that as we in this country have inherited the English judicial system and the English concepts of law, both municipal and international, the practice obtaining in England and other Angle‑Saxon countries should be held to prevail in Pakistan as well. As nothing was said against this proposition by Mr. Iqbal Hussain, the learned counsel for the respondent, I am inclined to agree with Mr. Latif Rawn and to hold that following the practice in England and other Anglo Saxon countries the question of succession in cases of the present kind will be governed in Pakistan by lex sites and not by lex domicil.

10. It was submitted by Mr. Iqbal Hussain that the general law governing succession where parties are Muslim in the Muslim Personal Law according to which the children of a pre‑deceased child are excluded from inheritance and that the exception created by section 4 of the Ordinance would not apply in such case, because the Ordinance specifically enacts that it applies to Muslim nationals of Pakistan. This contention appears to me to be correct in view of the provision contained in subsection (2) of section 1 of the Ordinance which clearly lays down that the Ordinance "applies to all Muslims Citizens of Pakistan wherever they may be". The provisions contained in section 4 of the Ordinance creating an entitlement to succession in favour of the children of a pre‑deceased son or daughter are in the nature of a departure from the accepted Muslim law of inheritance and can not be applied to all Muslims residing in Pakistan, unless the intention of the law is so clear as not to permit any other interpretation. Now, in view of the scope of the Ordinance as out lined in subsection (2) of section 1 thereof it is clear that its application is restricted to Muslim nationals of Pakistan. To that extent, therefore, the position seems to be that it is not necessary that all Muslims residing in Pakistan, irrespective of their nationality, should be governed by this Ordinance on the contrary the presumption would be that they would be governed by the ordinary Muslim law of inheritance, as that is the law of the land in Pakistan is so far as the general body of Muslims is concerned.

11. As a result, the position which emerges is that the respondent Mahmood Ahmad appears to be the only legal representative of Mst. Ghulam Fatima as such competent to continue the suit, once the abatement has been set aside on sufficient cause being shown. However, I wish to make it clear that this finding will not operate as final or as res judicata H between Mahmood Ahmad and the heirs of his deceased brother Bashir Ahmad, as they are not parties to the present proceedings and it is not my intention to decide all such disputes between them while considering the controversy between Mahmood Ahmad and the mortgagee Saeed Ahmad.

12. Even otherwise, it seems to me that in the circumstances of the case the suit could continue for the reason that it is a suit for the redemption of a mortgage and there is no lack of authority for the proposition that anyone out of the body of mortga gors having the equity of redemption can apply for redemption of the mortgage for the benefit of the entire body. In Mirza Yadelli Beg v. Tukaram and another (A I R 1921 P C 125) it was observed by their Lordships of the Judicial Committee that "according to English law the transferee of a portion of the equity of redemption is entitled to redeem the mortgage in its entirety. subject only to the safeguarding of the equal title to redeem of any other person who has a right of redemption. Correlatively he cannot compel the mortgagee to allow him to redeem his part by itself. It is not the law in India that one of several mortgagors cannot redeem more than his share unless the owners of the other shares consent or do not object. Subject to proper safeguarding of the right to redeem, which these owners may possess, one of several mortgagors can redeem the entire mortgage. Section 60 of the Transfer of Property Act, does no more than declare applicable what is just the law as established in England".

13. Now, if no question of substitution for Mst. Ghulam Fatima was involved, it is clear that Mahmood Ahmad, as one of the mortgagors, would have been able to maintain the suit with out the other mortgagors joining in. The question, however, is whether for this reason it can be said that the suit instituted by Mst. Ghulam Fatima did not abate on account of the absence of the other heirs, if any. The position is amply clear with regard to the legal representatives of a deceased defendant. The latest authority on the subject is Wali, etc. v. Manak Ali, etc. (P L D 1965 S C 651) in which it was held: "Law favours adjudication on merits, for a failure to so adjudicate means al refusal to the parties of their rights and an adjudication will not be refused unless there exists some insuper able practical obstacle preventing it . . . . Abatement as such takes place, therefore, only as regards the deceased party and it will greatly add to clarity of thought if the expression `total abatement' was altogether avoided when dealing with a situation like the present. When a suit has abated as against the deceased defendant but for one reason or the other it cannot proceed at all the proper order to pass would be to dismiss the suit as against the remaining defendants. The abatement itself does not stand in need of an order for it is automatic. The Court simply records that the suit has abated against the deceased defendant. So far as the living defendants are concerned there has to be an order by the Court dismissing it."

14. After laying down these principles, their Lordships have considered, on page 656 of the Report, the grounds on which it can be said that the suit cannot proceed even as against the living defendants and the usual grounds are mentioned, namely, that the suit or appeal would be imperfectly constituted in the absence of the deceased party, that a decision on the merits may result in inconsistent decrees and that an effective decree cannot be passed against the living party. Kaikaus, J., who delivered the judgment of the Court, has then critically examined these grounds and come to the conclusion that some of them are not tenable with the result that the Court must lean in favour of continuing the suit unless some insuperable obstacles is created against the adoption of that course. It will be seen, therefore, that there is no difficulty in holding that a suit does not abate in its entirety even if all the legal respresentatives of a deceased defendant are not brought on the record and it will only be an exceptional circumstance that such a conclusion would be reached. With regard to a deceased plaintiff it was held in Govindasrvami Udaiyar and another v. Annamalai Udaiyar and others (A I R 1927 Mad. 1071) that "if one of the legal respresentatives does not choose to be brought on the record as the respresentative of a deceased plaintiff, his share in the suit does not thereby abate. If no legal respresenta tive is brought on the record, no doubt the suit would abate, but where some legal representatives come on the record and they contend that some other persons are not legal representatives even though their contention may be found to be untrue, that would not make the whole of the suit or any portion of the suit abate in favour of the defendants." It was further added that "in a mort gage suit it is unnecessary to go into the question which may arise between the legal representatives of a deceased mortgagee plaintiff as to whether some of them or all of them are entitled to the whole of his interest" That was a suit by a mortgagee who died during its pendency and it was held that the mere fact that one of the legal representatives of the mortgagee was not brought on the record within the time prescribed, would not entitle the mortgagor to contend that the suit abated as regards his share and a decree should not be given for the whole of the amount in favour of persons who were brought on the record as legal representatives. It was further added that the legal representatives who were on record represented all who were entitled to share in the estate of the deceased plaintiff.

15. I find myself in respectful agreement with these obser vations, as they are in accord with the views expressed by our Supreme Court in the case cited earlier, namely, that total abate ment of causes is not to be presumed unless it becomes impossible to proceed with the suit for any legal reason. As in the matte of the redemption of a mortgage anyone of the mortgagors can maintain the action it is clear that even if the entire body of legal representatives has not been brought on the record in Situation of the deceased plaintiff, that fact by itself should not result in the abatement of a suit. On this view of the matter I consider that even if it is held that Mahmood Ahmad is not the sole legal representative of Mst. Ghulam Fatima, the suit could be continued, leaving the dispute inter se between the legal represen tatives to be decided in a different forum.

16. For the foregoing reasons, I consider that the learned trial Judge was right in allowing the suit to proceed by bringing the respondent Mahmood Ahmad on the record as the legal representative of the deceased plaintiff Mst. Ghulam Fatima. The revision petition fails and is hereby dismissed, but, in view of the legal questions involved, the parties are left to bear their own costs. A.H. Petition dismissed.