(a) Civil Procedure Code (V of 1908)﷓ (PLP)

4. I have heard the learned counsel for the parties. They have confined their submissions to Issue No. 4 only. On behalf of the appel lant her learned counsel supported the trial Court's judgment and whereas the learned counsel for the respondents, sought the sus tenance of the judgment of the learned first appellate Court. Since the judgments of the Courts below are at variance with one another, I have thoroughly gone through the record to evaluate the respective reasons which prevailed with the learned two Courts below. It is to be seen that the witnesses examined by the appellant were believed by the learned trial Court but the learned District Judge discarded their testimony. After perusal of the record I gain an impression that the learned first appellate Court reversed the trial Court's findings without giving due consideration to the material on the record.

5. Two reasons were assigned by the learned District Judge in rejecting the testimony of Abdul Wabid P.W., firstly, he could not tell as to whether or not the deceased and the appellant at the time of their 'nikah' had attained puberty and ‑ secondly, he failed to name the witnesses of the Inikah' I think, in respect of both the reasons, his statement was misread. The witnesses, clearly stated that both the parties were near the age of puberty. With regard to the witnesses of the `nikah' it is in the statement of Abdul Wahid, that the 'nikah' was performed by him about 25/26 years ago. As sufficient time had elapsed, it is but natural, that he could not recall the names of the witnesses. There is nothing in his statement to render it untrustworthy.

6. The appellant appeared as her own witness and deposed that at the time of the 'nikah' she was 20 years old. No question was put to her about the witnesses of the 'nikah' ; nevertheless, the learned District Judge drew and adverse inference against her on account of non -production of these witnesses, for which there was no justification. The learned District Judge, also fell in error in dubbing Exh. P. I /as ingenuine document: He lost sight of the fact, that before the trial Court during arguments, the respondents raised the plea, that the appellant had been divorced by the deceased and thus, the matrimonial tie between the par ties broke away during the lifetime of Khuda Bakhsb. Evidently, this line of reasonings shows that they admitted the execution of the divorce deed. However, at the first appellate stage, the respondents took up a contradictory stand and questioned its genuineness.

7. After examination of the record, I am not persuaded by the reasoning which prevailed with the learned District Judge for suspecting the genuineness of Exh. P

1. Indeed he was oblivious of certain other aspects of the case which militate against the conclusion reached by them. The divorce deed is amply proved by the depositions of Abdul Majeed and Amir Bakhsh, PWs. They deposed that Mst. Mehr Elahi, the sister of the deceased was married to the appellant's brother, namely, Ghulam Rasul and in lieu thereof she was married to the deceased; Exh. P 1 was written under the instructions of the deceased and simultaneously, Ghulam Rasul got drawn a deed divorcing Mst, Mehr Elahi. It is in the statements of these two witnesses that they were also marginal witnesses to the divorce deed executed by Ghulam Rasul, which was banded over to the deceased who on his part passed on Exh. Pl, to Ghulam Rasul. According to the evidence on the record, the two deeds were to be presented to the respective Chair men of the Union Councils concerned, but in the meanwhile Khuda Bakhsh, expired away.

8. The fact disclosed in the deposition of these two witnesses, are amply corroborated by the proceedings, dated 4th March, 1970 recorded by the Revenue Officer on Mutation No. 179 Exh. P.5. It may be added that the entries in the mutation are admissible in evidence under section 35 of the Evidence Act and a presumption of regularity of the proceed ing attaches thereto, under Illustration 'e' to section 114 of the Act. Exh. P 5 demonstrates that Ghulam Mustafa respondent produced these two witness before the Revenue Officer. There he also admitted the 'nikah' o‑f hey sister Mehr Elahi with Ghulam Rasul and the pronounce ment of the divorce by the later on 23rd March 1969, i.e the date on which Exh. P.1 was executed. The learned District Judge, completely overlooked the entries of Exh. P. 5 which have a bearing on the matter in issue. This document also provides an answer to the objection as to why the deceased did not send the notice of divorce to the Chairman.

9. It is noteworthy that Amir Bakhsh is a cousin of the deceased. In fact he is a family member of both the parties and related to them in equal degree. He is thus, an important witness on the relationship of the deceased to the appellant, in contemplation of section 50 of the Evidence Act. It is significant that he was not cross‑examined by the respondents. This would further add to the trust worthiness of his deposition. True enough. Exh. P. 1 was not produced by the appellant alongwith her plaint. But, when it was tendered in evidence, the respondents did not object to its reception in evidence on account of late production. The only objection raised by them was that it was not properly stamped. The trial Court, rightly, found this contention untenable.

10. The learned counsel for the respondents, however, argued that the finding of fact recorded by the learned District Judge should not be interfered with in second appeal. He banked upon certain contradictions in the statements of the appellant's witnesses and further submitted that Exh. P. 1 could be fabricated at any time. He toed the argument which weighed with the learned District Judge to contend as to how Exh. P. 1 came in the custody of the appellant. The fact that marriage remained unconsumated for a period of over 25 years, was another factor heavily relied upon by him to support the decision of the learned first appellate Court.

11. It is correct that when finding of fact recorded by the first appellate Court is at variance with that of the trial Court, normally, the former should be preferred. However, such finding is entitled to weigh only, if it can be supported by the evidence on the record and reasoning given by the trial Court duly met by the first appellate Court. As already observed in the instant case, the learned District Judge has not considered all the material on the file and also, omitted to apply his mind to the fact obtaining on the record. He rested his decision, in no small measure, on surmises and failed to consider the reasoning embodied in the trial Court's judgment. I feel that this is not a case in which the first appel late Court's judgment, can be treated as immune from interference in second appeal.

12. The variations in the statements of the witnesses, are minor in character and can easily be attributed to lapse of considerable time between the date of recording their evidence and the occurrence of facts narrated by them in their testimony. As regards the genuineness of Exh. P. 1, it is to be noticed that no , formality for execution of divorce‑deed or a notice of divorce, has been prescribed in law. Merely because Exh. P. t is not attended by any for mality, would not essentially denude it of its genuineness. Its execution has been proved by the two marginal witnesses. There is no good ground to regard it as a fabrication.

13. In dealing with the other objections of the respondent's learned counsel, it may be observed that the circumstances under which Exh. P. 1 was produced by the appellant, have been alluded to in the earlier part of this judgment and would suffice to dispel the doubts lurking into the mind of the learned District Judge in considering Exh. P. 1 as a spurious document. There is no denial, that the parties never lived as husband and wife but it was a 'watts' marriage and the reasons which obviated the union between them, lay unbare on the record.

14. In my estimation the view of the evidence taken by the learned trial Court in answering Issue No. 4 in favour of the appellant is quite sound and the learned District Judge erred in reversing this decision. The appellant has fully established that she was married to the deceased. As the divorce deed Exh. P. 1 did not become effective, during the life time of Khuda Bakhsb, on the latter's death, she became the widow of the g deceased and thus is entitled to inherit his estate to the extent of 1 /4th. The two mutations under which the appellant was deprived from succession, are, therefore, void and liable to be set aside. As she is a co‑sharer, she would be deemed to be in possession through other co‑sharers to the extent of her share in the property in dispute. Her suit, therefore, has got to be decreed.

15. For the foregoing reasons this second appeal is accepted with costs, the judgment and decree of the learned first appellate Court, set aside and that of the learned trial Court restored. M. Y. H. Appeal accepted.