P L D 1954 Lahore 480 (PLP)

B. Z. KAIKAUS, J.‑This appeal arises out of a suit for ‑possession of land filed by the heirs of one Mst. Qayam Khatun, a Jat Arbi woman of Chak No. 376 (Chak Mohsin Khan), District Muzaffargarh. When she died there stood in her name 197 kanals and 9 marlas of adna malikiyyat and 286 kanals and 16 marlas of ala malikiyyat in that Chak. The plaintiffs in the suit are the collaterals of the father of Mst. Qayam Khatun. The defendant is the daughter of Mst. Qayam Khatun. The plaintiffs claim that they are, according to Sunni Law, entitled to a half share in the estate of the deceased. The reason for the suit is that the defendant had, on the allegation that the deceased was a Shia, got the whole of the land of the deceased mutated in her name and had refused to give possession of their share to the plaintiffs. Mst. Qayam Khatun had died on the 2nd of December 1948, i.e., after the passing of the Muslim Personal Law Shariat (Application) Act of 1948. The property which stood in her name she had received partly from her father and partly from her husband who were collaterals between themselves. It would have been open to the plaintiffs to claim that Mst. Qayam Khatun held the property only as life‑estate and that on her death after the passing of the Shariat Act inheritance was to be reckoned under section 3 from the last male owner. They did not do so. Although they referred to the fact that the property of which Mst. Qayam Khatun was the owner she had received from her father, they made an express admission in the plaint that she was full owner of the, property. The defendant accepted this allegation. The defendant in her written statement denied that the plaintiffs were collaterals of the father of Mst. Qayam Khaton. She denied that the deceased was a Hanafi Muslim and alleged that she was a Shia. She denied too that the property came from the father of Mst. Qayam Khatun: There were some preliminary objections which were disposed of by the learned Sub‑Judge and ultimately the following issues were framed on the merits :‑ "(5) Whether the entire disputed land or which part of it was inherited by Mst. Qayam Khatun from her father Ghulam Muhammad? (O. P). (6) Whether the plaintiffs are heirs of the said Ghulam Muhammad and in what shares? (O. P). (7) Whether Ghulam Muhammad was a Shia? (O. D). (8) Whether her daughter Mst. Qayam Khatun was a Shia? (O. D). (9) Whether the suit property is to be inherited by the parties as estate of Ghulam Muhammad or of his daughter Mst. Qayam Khatun ? (O. P.). As I have stated above, both the parties accepted the position that Mst. Qayam Khatun was full owner of the property. In that view issues Nos. 5, 6, 7 and 9 were wholly unnecessary, and have no effect upon the decision of the case. If Mst. Qayam Khatun was the full owner of the property, inheritance is obviously to be reckoned from her and the only question for decision is whether she was a Shia or a Sunni. Also I find from a statement in the judgment of the learned Senior Sub‑Judge that the parties, at some stage of the case, definitely took up the position that inheritance was to be reckoned from Mst. Qayam. Khatun and that, the question of the sect to which her father belonged was irrelevant. The learned Sub‑Judge decided issue No. 8 against the defendant, holding that she had failed to, prove that the deceased was a Shia. That might appear to be a negative finding, but as a matter of fact it is clear from the judgment that he came to a positive conclusion about the deceased being a Sunni. Before us learned counsel for the defendant‑appellant objects, in the first place, that onus of issue No. 8 should not have been cast upon the defendant. He says it was for the plaintiffs who had alleged that the deceased was a Shia to prove their case, particularly in view of the fact that a mutation had already been sanctioned in favour of the defendant. He relies upon sections 101 and 102 of the Evidence Act. According to section 101, onus lies on any person who desires a Court to give judgment as to a legal right or liability dependent on the existence of facts which he asserts. Section 102 lays down that onus of proof in any suit or proceeding lies on a person who would fail if no evidence at all were given on either side. Learned counsel argues that whatever criterion we apply the onus would be on the plaintiffs. There is no doubt that when a plaintiff comes to a Court and asks for a certain relief on the basis of certain facts, the onus of proof of those facts has to be on him, for the relief prayed for cannot be granted unless the Court is able to hold the existence of those facts proved. But the law makes provision for certain presumptions and any party on whom a burden is cast by sections 101 and 102 may shift the onus of proving any fact to the other party by showing that that fact should be presumed to exist. Sections 101 and 102 are to be read as subject to these presumptions. Ruffles as to rebuttable presumptions are no more than rules to burden of proof. When the Court presumes the existence of fact, the burden of proving its existence is on the party that asserts its non‑existence, Conversely, when the burden of proving a fact is on a particular party, the Court is presuming its non‑existence. It may be observed that, although presumptions relating to documents find place in Chapter V which leads with documentary evidence, section 114 which deals with presumptions of fact occurs in the chapter relating to burden of proof. Learned counsel for the respondent relies upon' a number of decided cases and refers to a number of commentaries for the proposition that there is the presumption in Pakistan (as there was in pre‑partition India) that every Muslim belongs to the Hanafi sect unless the contrary is proved. The first case relied upon is Saiyid Rashid Ahmad v. Mst. Anisa Khatun (A I R 1932 P. C. 25.) In that case no suggestion had been made in the pleadings or in the arguments that parties were not Sunni Muhammadans governed by the 'ordinary Hanafi Law. Their Lordships had to decide the question of Muhammadan Law relating to talak and their Lordships made an observa tion that as there was no such suggestion mentioned in the record, the Hanafi Law should be applied. The next case relied upon is Bafatun v. Bilaiti Khanum (I L R 30 Cal. 683) In this case too there had been no suggestion even in the arguments before the learned Judges that the parties were Shias, and they pointed out that in the' absence of such an allegation there was a presumption that the parties were Sunnis. Mst. Jamilunnissa v. Sheikh Muhammad Zia (A I R 1937 All. 547) is a similar case and lays down the proposition in similar words. Akbarally v. Mahomedally (A I R 1932 Bom. 356) however, does go further. In that case Mr. Justice Tyabji said:‑ "As the great majority of the Mussalmans in India follow the Hanafi School of Sunni law, the Courts presume that Muslims in India follow the Hanafi law unless the contrary is alleged and proved." The learned Judge went on to observe :‑‑‑ "It is not easy however to conceive of a case so devoid of all other circumstances from which the religion of the parties can be inferred, that this presumption from numbers should effectually come into operation." The facts of Mst. Iqbal Begum v. Mst Syed Begum (A I R 1933 Lah. 80) are parallel to the facts of the present case There the plaintiff who was the sister of the last holder alleged that the deceased 'was a Sunni but the defendants who were the daughters of the last holder denied that fact. The onus of proving that the deceased was a Shia had been laid on the defendants. The learned judges said "The burden was rightly put upon the defendants to prove that the deceased Hakim was a Shia". Of course, there is only this observation in the judgment but the facts being similar the case does support the plaintiffs. Learned counsel for the defendant appellant relies, on the other hand, on some observations in Asgar Reza v. Abdul Hosein (I L R 15 Cal. 574,) In that case it was sought to be argued from the fact that a lady was originally Sunni, that she was also Sunni at the time of her death, and the learned Judges remarked that that could not be presumed because she had married a Shia a good many years before her death. The learned Judges went on to say that, however, that might be, the question before them was only one of procedure. The question of procedure was a matter with which we are not concerned, and the case is not helpful in deciding the question before us. Learned counsel for the defendant argues that this presumption is based on the mere fact that the majority of Muslims in Pakistan are Hanafis and that on the mere strength of numbers no presumption should be based. While there is some force in the contention that from the fact that majority of Muslims are Hanafis there should be no inference that a particular person is a Hanafi, I cannot say that a majority in numbers can never form the basis of a presumption. The paragraphs in the Rattigan's Digest of Customary Law represent only the custom of the majority of agriculturists in the Punjab but the book was held by their Lordships of the Privy Council in Mst. Subhani v. Nawab (A I R 1941 P. C. 21,) to be one of unquestioned authority and since then we have been regulating onus of proof of custom by what is stated in different paragraphs of Rattigan's Digest. Truly speaking, a good many of the presumptions which are drawn under section 114 will, when analysed, be found to be of a similar character. Proof, under the Evidence Act, is a high degree of probability and probability is affected by the fre quency with which one set of facts is accompanied by another. In such cases it may even be said that of necessity a presumption has to be made: Suppose a Muslim died about whose faith no evidence at all could be had, and assume further that the question is arising in an inter-pleader suit, so that the Court is bound to come to some conclusion as to the sect to which the deceased belonged. The Court has to make a presumption as to sect, and that presumption will have to be based on the fact that a vast majority are Hanafis. I would agree, therefore, that the Court may presume that a deceased person was a Hanafi till the contrary is proved, and ordinarily it will raise this presumption, and let me hope, as did Tyabji J. in. Akbarally v. Mahmeddalli that there will be no case so devoid of circumstances from which religion of parties may be inferred, that there should be a necessity for the application of the presumption even after evidence is led. The presumption however is one of fact and the Court may refuse to give effect to it in the circumstances of a particular case. For instance if the deceased made a will stating that he was a Shia, or was the founder of some Shia Waqf like an Imambara, the Court would refuse to make a presumption and would direct the party alleging the deceased to be a Hanafi to prove it. The onus of issue No. 8 cannot be said to have been incorrectly placed. I now proceed to discuss the evidence. The defendant has produced ten witnesses, all of whom say she is a Shia. The first witness produced by the defendant is Khadim Husain, a Jat Bhatti, cultivator of village Kamalpur who appears to be a Sunni. According to him Mst. Qayam Khatun used to take part in the processions of Tazias in Muharram in black dress. He says his village is at a distance of two or three ‑furlongs from Chak Mohsin Khan, the village of the parties, but this statement is proved to be untrue by the staterhent of Ghouns Bakhsh (D, W 3), according to whom the witness lives at a distance of 2 M or 3 miles. Khadim Hussain admits that the only, Shias in C6ak Mohsin Khan are the defendant, her husband and her deceased mother. The next witness is one Ghulam Muhammad, a labourer of village Matoi who takes out Tazias. He says Mst. Qayam Khatun used to attend the majlises of Imam Hussain. There is nothing on the record to show how far Matoi is from Chak Mohsin Khan. The witness when asked whether he could name any woman besides Qayam khatun who attended the majlis of Imam Husain says he is unable to do so. There is a' note on the record that the witness gave this reply after making evasive answers for about two minutes. The third witness is Ghouns‑Bakhsh, a badmash No. 10, an Awan of Chak Mohsin Khan. He himself is a Sunni. In examination in chief he was asked as to who led the jaraza prayers of Mst. Qayam Khatun. He replied it was one Faiz Bakhsh of Thatha Qureshi who was a Shia but added that he did not know whether he was alive. In cross‑examination he admitted that the janaza prayers of the deceased were led by one Karim Bakhsh, of Basti Sandela in which 100 or 150 Sunnis joined. He explained that there had been two janaza prayers, the first being led by Faiz Bakhsh in which 40 or 50 Shias joined. He himself was in the second prayer. When asked as to which Shias of Chak Mohsin Khan had joined the prayer, he said that only two Shias of that Chak, namely Nasir and Khuda Bakhsh had joined it. Khuda Bakhsh has been produced as D. W. 5 and says he is a Sunni. Nasir who has been produced as D. W. 10 does say he is a Shia but as will appear when I deal with him he is not a reliable witness and it has been admitted not only by D. W: 1 ‑but by other witnesses for the defendant that there has been no Shia in this village except the defendant and her mother. Ghouns Bakhsh refuses to admit a fact which is conceded not only by witnesses but even by learned counsel for the defendant, namely, that the deceased had built the village mosque. In that mosque Ghouns Bakhsh has never seen any person saying prayer like a Shia. When asked whether the father of Muhammad Bakhsh plaintiff, who was a lambardar, had not got him entered as badmash No. 10, he denies that he was a lambardar, a fact which is admitted by D. W.

10. When asked as to whether he had not been beaten by all the three plaintiffs and had not lodged a report against them, he takes refuge behind a failing memory. Pit Bakhsh, a labourer of Chak Mohsin Khan, is the next witness to be produced. He is a Sunni. He admits that except the defendant and her mother there has been no Shia in this village. He admits too that the deceased and the defendant constructed the village mosque. The janaza prayers of the deceased were led, according to him, first by Faiz Bakhsh and then by Karim Bakhsh, but he does not know whether Faiz Bakhsh was a Shia, Sunni or Wahabi: D. W. 5 is Khuda Bakhsh, a cultivator of Chak Mohsin Khan. He is a Sunni. He too admits that in their Chak there never has been a Shia except the deceased and. the defendant. The sixth witness is Sadiq Muhammad Khan, a Shia and Secretary of the Anjuman‑e‑Jafferia of Khangarh. He says Mst. Qayam Khatun 17Sed to attend majlis during Moharram and had contributed Rs. 5 towards construction of the mosque of the Anjuman. He admits that such contributions are entered in a register and in a receipt book which are in his possession, but neither of these documents has been produced. D. W. 7 Pir Sadar Din Shah says the deceased was a muridani of his father. He is a Shia but admits that he has Sunni murids. In fact all the Arbis of Chak Mohsin Khan are his hereditary murids. He does not know whether the husband of Mst. Qayam Khatun was a Sunni or a Shia, and her father lie does not know at all. D. W. 8 is a Pathan and a Lambardar of Ghanja. He is a Sunni. He does not know whether the husband of the deceased was a Sunni or a Shia. D. W. 9 is Muhammad Ramzan, a Jat Arbi of Qutabpur District Multan. He says the father of the deceased was a Shia. He admits that he does not know any other Arbi who was a . Shia. D. W. 10 is Nasir Bakhsh of Chak Mohsin. He claims to be a Shia though other witnesses have admitted that except the defendant and the deceased there never has been a Shia in this village. His house was washed away during the floods of 1948 and he admits that since then he has been living in the house of the defendant's husband. He says he became a Shia only 10 or 12 years before. He says there were two janaza prayers of the 'decease but according to him only seven or eight Shias joined the prayer, whereas Sunnis joined both prayers. Mst. Sardar Begum defendant is the last witness. When asked whether her father was a Shia or a Sunni she says she does not know as he died when she was a child. She admits that the principal contributor towards the village, mosque was her mother and that the mosque is of Sunnis only. Reference may also be made to the statement of the defen dant before issues. She said she did not know whether her maternal grandfather was Sunni. About her own husband she said he was Shia since her marriage. The Shias according to her offered seven prayers every day. The plaintiffs have produced ten witnesses (in addition to a plaintiff) who have deposed that the deceased was a Sunni. The first two, i.e., Ghulam Ali (P. W. 2) and Ghulam Qadir (P. W. 3) are licence‑holders for taking out tazias in villages of the neighbour‑hood. P. W. 4 Rahim Bakhsh is a Zakir of Hazrat Imam Husain‑ P. W. 5 is Maulvi Kati m Bakhsh who admittedly led the janaza prayers of the deceased. He says he led the prayer as a Sunni, and the dead body was placed in the grave like Sunnis. Other janaza prayers were offered in his presence. He did not find Maulvi Faiz Bakhsh there 'when he went to lead prayers. P. W. 6 Ali Muhammad is a Jat Arbi of Chak Mohsin Khan and says there is no Shia in their village. P. W. 7 Allah Wasaya is an Awan of Chak Mohsin Khan. He too says there is no Shia in the Chak. The mosque of the village which was built by the deceased contains the names of all the four companions of the Holy Prophet (peace of God on Him) P. W: 8 Khuda Bakhsh is a Jat Arbi of the Chak. P. W. 9 is M. Rahim Bakhsh who is the mulla of the village mosque. He says the mosque was built by the deceased and that Ghulam Rasul the husband of the defen dant says his prayers after him. There ,is no Shia in the village. The janaza prayer of the deceased was led by Maulvi Karim Bakhsh and there was no second janaza prayer. P. W. 10 Mst. Sahiban is the woman who gave the deceased her last bath. Qaim Din (P. W. 11) is the chaukidar of Chak Mohsin Khan. He brought the register of deaths. Mst. Qayam Khatun is described as a Sunni in the death entry. A child named Allah Ditta had been born to the defendant and had died later on. Both the birth and the death were reported. Religion of persons concerned is entered as Sunni in his registers because everybody in the village is a Sunni. Reference may also be made to the mutation which was sanctioned on the death of Mst. Qayam Khatun. The mutation was entered some tune before 4th February 1949 by the Patwari. The name of the informant is not mention ed in the report which says that tile defendant is heir and in possession. The mutation came up for decision before a revenue officer on 11th February 1949. Only Mst. Sardar' Bibi appeared. It was stated that the deceased had left no brother or sister and that Mst. Sardar Bibi had already inherited the property of her father. A mutation was sanctioned in favour of the defendant. There was an appeal to the Collector as appears from the note on the mutation entry and the case was remanded. The parties appeared before the revenue officer on the Nth January 1950 when the pedigree‑table was admitted by the defendant and the case was adjourned on the request of the defendant as her counsel was absent. At the next hearing the 'learned counsel appeared and raised the question that the deceased was a Shia. The learned revenue officer after some enquiry held the deceased to be a Shia and decided in favour of the defendant. That finishes the evidence. In a case of this kind when both parties stand to gain or lose valuable property the oral evidence is always to be approached with caution and it is safer to rely on that evidence which is in accord with admitted circumstances and probabilities. Fortunately, the admitted circumstances of this case are such as can very well be the basis of a conclusion that the deceased was a Sunni. Following are the circumstances on which I would rely for an inference :‑ (1) The whole village is of Sunnis. Even the father of the deceased and her husband were Sunnis, for it is admitted by some of the defendant's witnesses that except the defendant and her mother there has been no Shia in this village. The defendant when questioned is unable to deny that her father and maternal grandfather were Sunnis. Every person is presumed to belong to the sect to which his father belonged unless it appears that he renounced that sect and adopted another. There is no allegation in this case that Mst. Qayam Khatun became a Shia at any particular time. That a woman whose father, and husband are Sunnis should become a Shia an vent which is not very probable. Khadim Husain D. W: says there are some Shias who did not disclose their identity because they would be dubbed as Kafirs. They would well demonstrate the consequences of a conversion to Shiaism. In any case there is no allegation of such a conversion. (2) Mst. Qayam Khatun built the village mosque, the defendant admits that this mosque is for Sunnis only. The‑mosque also contains inscribed on its wall n the names of the four companions. I regard this as strong evidence of her being a Sunni. The only amount which according to the Secretary of the Anjuman Jaferia Ishe contributed for the building of the Shia mosque was Rs

5. I do not regard this statement as correct for the register and receipt book of the Anjuman have not been produced and I feel justified in drawing an inference that they do not contain any entry of this amount. But the only sum attributed to her is Rs.

5. It would be remarkable that a Shia woman built a Sunni mosque but could afford only Rs. 5 for a Shia mosque. (3) The fact that her janaza prayers were held by a Sunni Maulvi is almost conclusive for I reject the story of two janaza prayers. This story appears to have been invented to get rid of the effect of her janaza prayers being led by a Sunni. There does not appear to be any reason why a second prayer should be led. It would be a very uncommon event. When asked as. to‑ who were the Shias who joined the janaza prayers Ghouns Bakhsh (D. W. 3) said they were Nasir and Khuda Bakhsh. But Khuda Bakhsh himself says he is a Sunni and as already stated defendant's witnesses have admitted that there has been no Shia in this village except the defendant and her husband. Pir Bakhsh D. W.3 says he does not know whether Faiz Bakhsh was a Sunni or a Shia or a Wahabi and that he joined both prayers. Maulvi Karim Bakhsh who held the janaza prayers says he did not see Faiz Bakhsh when he went there. I have no hesitation in holding that there was only one janaza prayer held by Maulvi Karim Bakhsh. (4) Ghulam Rasul the defenant's husband has not come into the witness‑box though Rahim Bakhsh (P. W. 3) who is the Imam of the village mosque had stated that he is a Sunni and he says his prayers after him. The defendant had, when examined before issues, stated that her husband was a Shia since her marriage and she does not know whether hg was a Shia before the marriage. It seems that Ghulam Rasul is not prepared to make a statement in the witness‑box that he is a Shia. The state ments of witnesses of the defendant that every person in the village is a Sunni except defendant and her mother apply to the husband of the defendant as well. "I accept the statement of Rahim Bakhsh that Ghulam Rasul says his prayers after him and is a Sunni and this fact by itself is a very strong circumstance against the defendant's case. (5) In the first instance no claim was made by the defend ant before the revenue officer that she was Shia : When the revenue officer sanctioned the mutation for the first time on the 11th of February 1949 he did so because the pedigree- table prepared by the Patwari showed only the defendant, a fact which the revenue officer noted when he considered the mutation after remand. He got a new pedigree‑table prepared. When the plaintiffs appealed against the order it does not appear to have been alleged before the Collector that the deceased was a Shia. The order of the Collector has not been placed on' record but that is what I gather, from tie mutation. When the case came up before the revenue officer after remand for the first time no allegation as to Shiaism was made, but with respect to this date it can be urged that counsel for defendant was not present, (6) The deceased was according to the defendant's witnesses a muridni of Pir Sadar Din' father. As pointed out by their Lordships of the Privy Council in Hayt‑un- Nissa v. Muhammad Ali Khan (ILR 12 All. 290,) the institution of Pirs is' unknown amongst the Shias. Sadar Din alleges that all persons of Chak Mohsin who are admittedly Sunnis are his Murid's I have no hesitation in holding that the deceased was a Sunni., Learned counsel for the respondents argued that truly the question to be decided was the sect to which the father or husband of Mst. Qayam Khatun belonged for it is from them that she received .the property which she held in life estate according to custom and that inheritance was to be reckoned from the last male owner under section 3 of the Punjab Muslim Personal Law Shariat (Application) Act. There is force in that argument bur both parties in their pleadings accepted that the deceased was a full owner and in view of the fact that I find the deceased to be a Sunni, it is unnecessary to go further into the contention of learned counsel. I would dismiss this appeal with costs. M. SOOFI, J.‑I agree. K. M. A. Appeal dismissed.