P L D 1967 Lahore 90 (PLP)

MUHAMMAD GUL, J.‑This regluar first appeal is directed against the judgment dated 11‑4‑61 of the learned Administrative Judge, 1st Class, Multan, decreeing the plaintiff reversionary suit for a declaration to the effect that the gift of the suit land by Mst. Jindo (defendant No. 3) by means of a registered deed dated 29‑5‑56, in favour of her daughters Mst. Ghulam Maryam (defendant No. 1) and Mst. Ghulam Zainab (defendant No. 2) would not affect the plaintiffs' right of succession as Muslim Law heirs of the last male holder of the land in dispute, namely, Kanda, the deceased husband of the donor.

2. The following pedigree the correctness of which is not disputed, will help in understanding the facts leading to this appeal : Ashiq | | ____________________________________________________ | | | Bakhtiar Bagh Ali Ahmad Yar | | | Imam Bakhsh Wahab Waryam | | | Ladhi alias Lehna Kanda‑Mst. Jindo Amira | (defendant No. 3) | (Plaintiff No. 1) | Allah Bakhsh | (Plaintiff No. 2) ________________________________| | | Mst. Ghulam Maryam Mst. Ghulam Zainab (Defendant No. 1) (Defendant No. 2).

3. Kanda, a Ran Jat of village Qadirpur Ran, Tahsil and District Multan, governed by custom was the last male‑holder of certain land including the land in dispute. He died on 25‑6‑1917 leaving him surviving two daughters, Mst. Ghulam Maryam and Ghularn Zainab, a widow Mst. Jindo and mother Mst. Jannat. A few days before his death, by means of an alleged will executed on 10‑6‑1917, Kanda bequeathed his entire landed property in favour of his two daughters, widow and mother in equal shares with right of full ownership. After the testator's death, the will was registered on 19‑8‑1917,

4. In June 1919, the collaterals of Kanda, deceased, including Lehna (plaintiff No. 1) and Ladha alias Amira (since deceased) father of Allah Bakhsh (plaintiff No. 2) brought a suit in the Court of the Senior Civil Judge, Multan (Suit No. 78 of 1919) for the usual declaration under custom that the will dated 10‑6‑1917 executed by Kanda deceased and registered after his death would not affect their reversionary rights after the death of the testator's widow Mst. Jindo and the entire property left by the deceased must be deemed to be in possession of his widow on the usual widow's estate under custom. To complete the narrative it would be pertinent to mention also at this stage, that Kanda's mother, Mst. Jannat also willed her property to her grand‑daughters on 18‑10‑1918 and then orally gifted the same the next day to them. The oral gift was entered in mutation which was sanctioned on 10‑11‑1918, after the donor's death. The land covered by the gift included not only the land which had devolved upon Mst. Jannat from her father after the death of her mother, but also the land which was bequeathed to her by her son Kanda under his will dated 10‑6‑1917. The collaterals of Kanda deceased brought another suit (Suit No. 79 of 1919) questioning the validity of the gift of land by Mst. Jannat in favour of her grand‑daughters Mst. Ghulam Maryam and Mst. Ghulam Zainab and prayed for a decree of possession, succession having opened after the death of the donor, Mst. Jannat.

5. Both the suits were tried together and dismissed by the Senior Sub‑Judge, Multan, by the same judgment dated 28‑7‑1922. Against this judgment the collaterals took two direct appeals to the High Court, both of which were dismissed by two separate judgments reported respectively in Faqira and others v. Mst. Jindo and others (A I R 1928 Lah. 134) and Faqira and others v. Mst. Ghulam Maryam and another (A I R 1928 Lah. 117). In the two suits, a number of issues arising out of the pleadings of the parties were framed, but the decisions in the trial Court and the High Court mainly proceeded on the basis of special custom pleaded by the defendants, according to which, a daughter of a sonless male proprietor belonging to Ran‑Jat tribe of Multan District, married within the tribe excluded the collaterals in the matter of ‑succession to her father after the death of her mother. Prior to the suits Mst. Ghulam Maryam bad been married to Waryam, who was connected with her father through their common‑ancestor named Mahabat. Thus, the marriage of Mst. Ghulam Maryam to a collateral of her father was held sufficient to non‑suit the plaintiffs in the two suits despite the fact that they were col laterals of her father in the nearer degree than Waryam her husband. In Suit No. 78 of 1919; however, the issue relating to the validity of the will dated 10‑6‑1917 propounded by the defendants was found against the legatees: nevertheless both the suits were dismissed because, the collateral, in view of special custom favouring the daughter marrying within the tribe, had no locus standi to sue.

6. The suit out of which the present appeal has arisen is a sequal to a deed executed by Mst. Jindo on 29‑5‑56 and registered on 22‑6‑56 whereby she gifted to her two daughters land bequeathed to her by her deceased husband by his Will dated 10‑6‑1917 regarding which the Suit No. 78 of 1919 brought by Kandas's collaterals had been dismissed. Lehna and Allah Bakhsh plaintiffs being the nearest collaterals of Kanda, deceased, instituted this suit in 1957 for a declaration that the aforesaid gift of land by Mst. Jannat in favour of her daughters would not affect the plaintiffs' right of succession to the land as Muslim Law heirs of Kanda, deceased, on the termination of the limited interest of Mst. Jindo, the donor, in pursuance of the provisions of section 3 of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, which for the sake of brevity is hereinafter referred to as the 1948 Act. The plaintiffs' allegations were that the land in dispute was ancestral qua them and Kanda deceased and that Mst. Jindo was in its possession on the usual widow's estate under custom and, therefore, could not transfer it by gift inter vivos in favour of her daughters. The plaint, however, avoided any reference to the will dated 10‑6‑1917, executed by Kanda deceased, and the litigation that ensued in respect thereof, to which Lehna plaintiff No. 1 and Ladha alias Amira, father of plaintiff No. 2 were parties.

7. The suit was contested by Mst. Jindo and her daughters on a number of pleas. The main defence, however, was that Mst. Jindo was in possession of the suit land, as full owner under the will executed by Kanda her husband and not as her widow on the usual limited estate and therefore, she was competent to make the impugned gift. It was also pleaded that the decision in the previous suit instituted by the Kanda's collaterals in 1918 operates as res judicata against the plaintiffs in this suit and that in any case they had no locus standi to impugn the validity of the gift by Mst. Jindo. The parties went to the trial on the following issues:‑‑ (1) Whether the suit has been properly valued for the purpose of jurisdiction? (2) Whether the plaintiffs have locus standi to bring his suit? (3) Whether the suit is barred by res judicata? (4) (Struck off) (5) Whether the property in dispute is ancestral qua the plaintiffs and Kanda deceased? (6) Whether Kanda deceased had made any will in favour of the defendants? (7) Whether the plaintiff No. 1 and father of plaintiff No. 2 had brought any suit to challenge the will dated 10‑6‑1917? If so, with what result and with what effect on the present suit? (8) Whether the gift by Jindo defendant No. 3 in favour of defendants 1 and 2 dated 29‑5‑56 is illegal, void and inopera tive qua the interests of the plaintiffs? (9) Relief.

8. The first issue related to the valuation of the suit which was duly amended by the plaintiffs and they have also made up the deficiency in the court‑fee. The learned trial Judge treated issues 2 and 3 together and held that the decision in the previous suit brought to avoid the will dated 10‑6‑1917, executed by Kanda, did not operate as res judicata against the plaintiffs, because of the coming into operation in the meantime of the 1948 Act. The trial Judge also held that the finding in the previous litigation against the validity of will dated 10‑6‑1917 executed by Kanda deceased did not operate as res judicata because the previous suit was decided in the defendant's favour and, therefore, they could not have gone in appeal against that finding. Issue No. 4 was struck off. On issue No. 5 the trial Judge found the land to be non‑ancestral qua the plaintiffs. On issue No. 6, the learned trial Judge held that the validity of the will was not proved in the previous litigation and that the same could not be proved by the mere production of its copy Exh. D‑28, the original not having been produced and placed on the record of the suit. Consequently, the learned trial Judge declined to raise the presumption under section 90 of the Evidence Act, 1872, in favour of the genuineness or the validity of the original will, although it purported to be more than 30 years old. The learned Judge found the first part of issue No. 7 in the affirma tive, but in view of his decision on issues Nos. 2 and 3 and coming into operation of the 1948 Act he held that the dismissal of the earlier suit by the collaterals did not affect the competency of the present suit. As a consequence, the learned trial Judge held on issue No. 8, that Mst. Jindo was in possession of the suit land on the usual widow's estate under custom (and not under the will dated 10‑6‑1917) and, therefore, on the termination of her limited interest, the land shall devolve upon the Muslim Law heirs of Kanda, including the two plaintiffs: and accordingly the suit was decreed leaving the parties to bear their own costs. Hence this appeal by the donees.

9. During the pendency of the suit Lehna (plaintiff No. 1) and Mst. Ghulam Zainab (defendant No. 2) died and their respective legal representatives were duly brought on the record.

10. Sheikh Ghias Muhammad, Advocate, appearing for the appellants, argued that the plaintiffs in the present suit were either themselves the plaintiffs or claimed under the plaintiffs in the previous suit brought to avoid the will by Kanda deceased: they were litigating under the same title, that is to say as colla terals of Kanda, deceased, and were also claiming the same right, namely, the right of succession to property of Kanda, deceased, after the termination of Mst. Jindo's life‑estate. It was urged, therefore, that the decision in the previous suit holding that the plaintiffs had no locus standi to institute the suit to claim succession to the estate of Kanda deceased would operate as res judicata. It was further argued that the enactment of 1948 Act did not impair the finality of the decree in the previous suit brought to avoid the will executed by Kanda. On the factum and the validity of the will the appellants' learned counsel argued that the will executed by Kanda being more than 30 years old must under section 90 of the Evidence Act, 1872, be presumed to be genuine and duly executed. It was urged that the learned trial Judge misdirected himself in not raising the presumption in favour of the genuineness of the will.

11. The main argument in the appeal was devoted to the factum and validity of the will. Any decision on this question would inevitably go to the root of the controversy in the suit and would also affect the decision on the first proposi tion urged by the appellants' learned counsel. Therefore, it would be advantageous to consider, in the first instance, whether the finding of the learned trial Judge on the factum and validity of the will executed by Kanda is sustainable. To appreciate the rival contentions, in that behalf, it appears necessary to set out in some detail, the pleadings of the parties in the previous suit relating the will executed by Kanda and the decision thereon.

12. In the previous suit instituted by Faqira and others (Suit No. 78 of 1919), the plaintiffs unmistakably admitted the factum of the will in paragraph No. 4 of the amended plaint, a copy of which was placed on the record of the present suit and exhibited as Exh. D. 1 (p. 107 of the paper‑book). The paragraph for the material purpose reads "Kanda made a will of the property mentioned at alaf in favour of all the three defendants Nos. 1 to 3 and his mother Mst. Jannat on the 10th June 1917. Alst. Jannat also died in Katak, Sambbat 1875 Kanda, aforesaid, had no power to make a will of the said property mentioned in the heading in order to deprive the plaintiffs, the lawful rever sionary heirs. The will is null and void and ineffectual. Kanda had been ill since long, and about two years prior to his death, he was badly suffering from melancholia .. At the time of the execution of the will he was not in his senses to understand the will. For this reason also the will is void." The above paragraph was answered as follows in the written statement (Exh. D. 2, page 123 of the paper‑book) filed by the defendants m the suit: "It is correct that on 10th June 1917, Kanda made a will in respect of his property mentioned in paragraph (a) in favour of defendants 1 to 3 and Mst. Jannat, his mother, and that Mst. Jannat died in October 1918, On the above pleadings relating to the will executed by Kanda, the following issue was settled : "Issue No.

2. Whether at the time of making the will in dispute dated 10‑6‑1917 Kanda was in a fit condition to make the will and whether he was competent to make a will." Thus, it will be clear from the pleadings set forth above and the issue framed thereon, that the factum of the will, as distinguished from its validity was never questioned in the previous suit. The controversy between the parties was limited to the possession or absence of a sound disposing mind at the time of making the will and its validity under custom so as to affect to collaterals reversionary rights after the death of the testator's widow. It appears that the scribe and the attesting witnesses of the will, who were then all alive, were examined, but the learned Judge did not feel inclined to accept their evidence as to the disposing mind of the testator and, accordingly, he concluded his finding as follows:‑ "I hold that the defendants have failed to prove that it (will) was executed by Kanda with a disposing mind .. In view of the above finding, I need not discuss the question whether Kanda had power to make the will." During the appeal in the High Court by the collaterals it appears that the validity of the will was again canvassed and the learned Judges disposed of the contention with regard to the will by the following observation:‑ "Various issues were struck but only some of them were decided. The learned trial Judge then proceeded to discuss the will and finding that its execution, which was not denied in the pleadings, was not satisfactorily proved, went on to hold that it had not been proved that it had been executed by Kanda `with a disposing mind'. He, however, did not discuss any of the evidence as to whether Kanda had a disposing mind or not." The above excerpt from the judgment of the High Court makes it clear that the learned Judges of the Division Bench did not quite see eye to eye with the conclusion reached by the trial Judge on the question of the state of mind of the testator at the time of the execution of the will by him. Therefore, it is wrong to suggest, as was stressed by Mr. Mahmood Ali Qasuri, the respondents' learned counsel, that there is a definitive finding in the previous litigation that Kanda was rot possessed of a sound disposing mind at the time of the execution of the will and, therefore, will was invalid. As to bare execution of the will dated 10‑6‑1917 by Kanda deceased, suffice it to say that as pointed out above its execution was admitted by the plaintiffs in the pleadings in Suit No. 78 of 1919 to which Lehna plaintiff No. 1 and Ladha father of plaintiff No. 2 were parties.

13. This brings us to the second part of the question as to whether the execution and the validity of the will has been proved for the purposes of this suit. In this behalf it may be observed at the outset that no direct evidence was produced in the case by the appellants, upon whom the burden of proof lay. This was perhaps that because the scribe and the marginal witnesses were all dead. It appears that as in this Court, in the lower Court also, the appellants rested their case entirely with regard to the proof and the validity of the will on the presump tion under section 90 of the Evidence Act, the original being more than 30 years old. It appears, however, that only a copy of the original will produced by the plaintiff‑respondents was admitted by the defendants and exhibited as Exh. D. 28 (pp. 84‑.86 of paper book No. 1). The learned Administrative Civil Judge declined to raise the presumption under section 90 of the Evidence Act in favour of the will propounded by the defendants on the ground that the original not having been produced and placed on the record, the provisions of section 90 of the Evidence Act in terms would not extend to its copy, even if the original will, was more than 30 years old. He opined that the essential prerequisite for the application of the presumption under section 90 was not satisfied in this case in that, the original will was not produced and unless it was so produced it was difficult to say whether it was more than 30 years old or that the original was in "proper" custody within the meaning of the section.

14. There is divergence of judicial opinion as to whether presumption under section 90 of the Evidence Act could be raised in favour of a copy of an ancient document when the original document is not produced in Court. Prior to the Privy Councils decision in Basant Singh v. Brij Raj Saran Singh (A I R 1935 P C 132), the prevailing view for many years had been that the salutary provisions of section 90 of the Evidence Act in appropriate cases could extend to a copy of an ancient document, though not produced in evidence but whose genuineness or authenticity was reasonably proved. The earliest case bearing on the point was Khetter Chundar Mukerjee v. Khetter Paul Sreeterutno (I L R (1880) 5 Cal. 886) which was followed in a long claim of cases. This view also received support from a decision of the Privy Council in Lachhman Singh v. Puna (I L R (1889) 16 Cal. 753), where a document which had been produced in a former suit decided more than 30 years ago and which was proved to have been lost subsequently was held proved by the production of a copy which was on the record of the suit and bore an endorsement "a copy in accordance with the original" signed by the Judge who presided in that Court. In that case Lord Hobhouse after concurring with the opinion of the Courts in India as to the genuineness of the copy observed that "when the copy is looked at, it establishes the deed of gift on which the respondents rely". ‑ Again in Sahibzadi Begum v. Secretary of State (I L R 34 Cal. 1959 P C), their Lordships accepted a certified copy of an ancient exchange deed (the original of which had been lost) as admissible for proving its contents. In this case, however, the question was not raised directly in the Courts below nor it was discussed at any length before their Lordships. The next Privy Council Case bearing on the point is Seethayya v. Sughra Mania (1 L R 52 Mad. 453). In that case the respondents relied upon an ancient grant. The original grant had been lost and a copy proved to have been more than 30 years old had been produced from the custody of the successors of the alleged grantee. On an objection being taken to its admissibility, their Lordships e held that the document was properly admitted as secondary evidence of the term of the grant. It is true that this case might be distinguishable in that the copy produced itself was more than 30 years old, nevertheless the tact remains that a copy was received in evidence to prove the contents of the original ancient document by invoking provisions of section 90 of the Evidence Act.

15. The Privy Council, however, took a different view in the case of Basant Singh v. Brij Raj Saran Singh. In this case their Lordships observed that the view taken to the contrary since the case of Khetter Chundar Mukerjee in the Calcutta High Court and the subsequent cases is opposed to the plain wording of section 90, which requires the production in the Court of the particular document in regard to which the Court may raise statutory presumption. It was accordingly held that if the document produced was a copy and was produced from the proper custody and was over 30 years old, then the signa tures authenticating the copy may be presumed to be genuine, but the production of the copy was not sufficient to justify the presumption of due execution of the original under section 90 of the Evidence Act. In this case their Lordships expressly overruled 5 Cal. 886, though the previous decisions of the Privy Council in the cases of Lachhman Singh, Sahibzadi Begum Seethayya, referred to above, in which the same view was taken as in Calcutta Case,' were not noticed by their Lordships. However, a noteworthy aspect of this case is that when considering the "positive evidence" in proof of the disputed will in that case, their Lordships included in that category, the certified copy of the alleged will. Relying ‑upon the principle laid down in 14 M. I. A. 67 and taking into consideration the surrounding circumstances and the probabilities and particularly the fact, that the copy showed that the original will had been produced in the former litigation many years before and had been accepted by the then presiding officer as the true document, their Lord ships held that a very strong presumption arose in favour of the genuineness of the will which their Lordships did not find themselves at liberty to disregard even though there was no direct evidence of the execution of the will.

16. The case of Basant` Singh v. Brij Raj Saran Singh has been followed in several cases and it is now generally held, that if the original deed is not forthcoming and only a certified copy is produced the presumption of due execution and attesta tion cannot be raised in respect of the original. In the above statement the emphasis is on the word "only". The Privy Council case in Basant Singh v. Brij Raj Saran Sirgh was considered and explained in Hansraj v. Banarsi Lal (A I R 1937 Lab.), wherein it was held that the execution and contents of a lost ancient document cannot be proved merely by production of a copy, which itself is over 30 years old; but the copy considered with other evidence may give rise to a presumption as to the genuineness of the original. In this case, the evidence relied upon for the proof of the ancient document was a copy prepared in 1874, under the authority of the presiding officer of the Court and the fact that the original was produced in previous litigation to which the ancestors of the plaintiffs and defendants were parties. The copy of the original and the above circumstance was regarded as 920 Sufficient profe of the original document through there was no direct evidence of the direct evidence of the original, nor the original was produced in the case. For the above conclusion, support was also sought from a case decided by the Oudh Chief Court and reported as reported as Mst. Shams-un-Nisa v. Ali Asghar, etc. (AIR 1936 Oudh 87)

17. On a review of above authorities, therefore, we are clearly of the opinion that if for some valid reason the ancient document is not produced and it is not possible to produce direct evidence of its due execution, it would be permissible for reasons of justice, equity and good conscience, to invoke every legitimate presumption which can reasonably be raised upon the facts and circumstances of the particular case, in favour of the execution of the original. Therefore, it would be incorrect to lay down as an inflexible rule, that in no case, in which an ancient document is not produced in original, the salutary provisions of section 90 of the Evidence Act would apply. As pointed out above, there may be cases in which a copy of an ancient document coupled with other circumstances pointing to its genuineness may warrant the presumption or the due execution of the original.

18. Coming to the facts of the present case, the learned trial Judge found issue No. 6 relating to the execution of will by Kanda as unproved on the short ground that the defendants produced its copy of Exh. D. 28 and produced no direct evidence in proof of the original. Therefore, no presumption under section 90 of the Evidence Act can be raised on the basis of the copy as to the genuineness of the original. That was indeed a myopic treatment of the issue. We are perfectly conscious that the presumption of law available under section 90 of the Evidence Act is permissive and not imperative and that whether a presumption under section 90 should or should not be raised is primarily a question for the trial Court to decide and ordinarily the appellate Court is reluctant to interfere with the discretion exercised by the trial Court unless the exercise of discretion is arbitrary or capricious. On the other hand, it is equally un deniable that very great injustice may be perpetrated if the presumption under section 90 is not raised in proper cases for reasons, which are inadequate or mistaken. In our opinion the learned trial Judge was in error in overlooking a number of circumstances which were patent on the record and which pointed to the genuineness of the original will. These circumstances may be listed as follows:‑ (i) As pointed out in the earlier part of the judgment in Suit No. 78 of 1919, brought by Kanda's collaterals they had admitted in clear terms the factum of the will executed by Kanda, deceased. In the course of the proceedings the defendants produced the original will and led all available evidence. Therefore, the will was produced at the first possible opportunity for the purpose of obtaining an adjudication as to its genuineness and validity even before that it was product for registration and was duly registered. (iii) there is nothing to show that the original was returned to the legatees after the decision of the appeal in the High Court in 1928. Rather on the record of the present suit there is an application dated 11‑12‑59 on behalf of the defendants requesting the Court to summon file relating to Suit No. 78 for the proof of the original documents placed on the file of that suit. The presiding officer ordered the requisitioning of the file on 12‑12‑59 and the requisition was sent on 14‑12‑59 This incidentally lends strong support to the affidavit filed on behalf of the appellants in this Court that the original will was in fact produced in Court for the comparison of its contents with the copy and it was at the suggestion of the presiding officer that the original was not removed from the record of the file requisitioned in the case on the assumption that the formality as to the production of the original has been amply satisfied. (iii) As pointed out in the beginning, Kanda's mother Mst. Jnnat was also one of the legatees under his will. She in her turn executed a will which was followed by an oral gift in respect of the same property in favour of her grand‑daughters. This was a transaction in which Mst. Jannat asserted her right as a legatee under the will with rights of full ownership in a moity of the property covered by the will and this right was adjudicated upon in Suit No. 79 of 1919 brought by the collaterals of Kanda. Quite apart from being a circumstance in support of the presumption under section 90, it was highly relevant under section 13 of the Evidence Act as evidence of a transaction by which Mst. Jannat asserted her right as full owners under the will of her son. (iv) Similarly, it is not controverted that after the death of Kanda, the will executed by him had been throughout acted upon: various legatees have been in possession of their respective shares assigned to them under the will. But for this will, Mst. Jindo should have had held the entire land of the deceased on the usual life‑estate and not merely 1 /4 share now transferred by means of the impugned gift in favour of her daughters.

19. In the previous suit brought by collaterals of Kanda to avoid the will by him, a question was also raised as the state of his mind at the time of making the will. As pointed out already, the learned Judges of the Division Bench who heard the appeal against the judgment of the learned Senior Civil Judge did not quite endorse the finding as to the absence of disposing mind of the testator. It was held by their Lordships of the Privy Council in Munna Lal v. Kashi Bai (AIR 1947 PC 15) that a party setting up a will is required to prove that the testator was of sound disposing mind when he made his will. But in the absence of evidence as to the state of testator's mind, proof that he had executed a will rational in character in the presence of witnesses must lead to a presumption that he was of a sound mind and understand what he was about. This presumption can be justified under the express provisions of section 90 since a will cannot be said to be duly executed by a person who was no competent to execute it; and presumption can be fortified under more general provisions of section 114 of the Evidence Act, since Jannat it is likely that a man who performs his solemn act in the presence of witnesses is sane and understands what he is about.

20. In the present case, the most important circumstance surrounding the execution of the will is that it was executed by the testator in favour of his two daughters, wife and mother, who were then his nearest and dearest relations.. He discharged his filial obligation by a bequest of 1/4 of his property to his mother. Similarly, it was perfectly natural for him to bequeath the remainder of his property between his wife and two daughters. Indeed his conduct was typical of any landholder in rural society. Therefore, the execution of the will by ' Kanda was in perfect accord with the reality of the situation, and, indeed, it would have been rather unusual if he had failed to execute any will to regulate the division of property among his closest relations. The fact, that he went all the way to Multan to get the will drawn up by a professional deed‑writer is but an indication of the importance he attached to the document rather than to detract from its genuineness or voluntary character. Nothing turns on the fact that the will was not executed in village Qadirpur Ran and that there being no attesting witness from that village. It is in evidence that Kanda was a Lambardar and it appears that he took good care that he had the will drawn up by a professional deed‑writer rather than have it done from a half‑literate person, if available in his village. It is not the least a matter for any surprise if he went to Multan for the execution of the will.

21. In view of the circumstances listed above, coupled with the copy Exh. D. 28, we have no hesitation in reaching the conclusion that the due execution of original will which was more than 30 years old at the time of the institution of this suit was amply proved. Accordingly, we reverse the finding of the learned trial Judge on issue No. 6.

22. Having recorded our finding on the most crucial issue in the case, the remaining points in controversy assume mere academic value and need not detain us long. Learned counsel for the appellants, half‑heartedly urged that the finding in the previous litigation that the collateral Kanda had no locus stand operates as res judicata. The argument overlooks the fact that was based upon special custom obtaining among Ran‑Jat tribe of Multan which favored a daughter married within the tribe over the collaterals in the matter of succession to her father. The plaintiffs in the present suit rest their claim entirely on the 1948 Act and not custom and, therefore, cause of action is, wholly different, the identity of the land notwithstanding Seef Said and others v. Fazal Husain and others ( P L D 1959 S C (Pak.) 356). However 'since Mst. Jindo the don t, is found to hold the land as full owner under her husband's will dated 10‑6‑1917 and not as his widow on the usual widow's estate under the custom and, therefore, there is no question of termination of her limited interest within the meaning of section 3 of the 1948 Act. On this view of the matter, plaintiff‑respondents have no locus standi to sue. A fortiori they cannot challenge the impugned gift.

23. For the foregoing reasons, we accept the appeal, set aside the judgment and decree of the lower Court and dismiss the plaintiff's suit with costs throughout. K.B. A. Appeal accepted.