P L D 1966 (W (PLP)

Dates of hearing: 11th and 14th February 1966. WAHIDUDDIN AHMAD, J.‑‑This second appeal arises out of a suit filed by the appellant in the Court of the Civil Judge, Class II Shakargarh, District Sialkot. In the suit the appellant claimed that Maula Bakhsh deceased was the owner of the land in dispute and he had by a will dated the 14th June 1947, bequeathed 1/3rd of his property to him. He alleged that Maula Bakhsh died on 28th of January 1949, and on the basis of the above‑mentioned will he was entitled to inherit 1/3rd share of the property left by the deceased. He further alleged that the Revenue Authorities unlawfully on 31st January 1951 mutated the land in dispute in favour of deceased widow Mst. Barkate and other collaterals. On these allegations the appellant brought Suit 96 of 1954 for joint possession to the extent of 1/3rd share of land left by deceased Moula Bakhsh described in the plaint. The learned subordinate Judge by judgment dated the 13th June 1955, granted the appellant a decree for joint possession but left the parties to bear their own costs:

2. The respondents and Mst. Saliman Bibi minor appellant in connected Appeal No. 222 of 1956, filed Civil Appeal 136 of 1955 in the Court of the District Judge, Sialkot, The learned Court by judgment dated 17th December 1955, accepted the appeal but dismissed the appeal of Mst. Saliman appellant to the extent of 3/32 of the entire property in dispute left by Maula Bakhsh deceased on the ground that the appeal on her behalf was not properly presented. On the main question in dispute between the parties the learned Judge held that it was not proved beyond doubt that the deceased had executed the will in question in favour of the appellant. He excluded the evidence of Din Muhammad, the scribe of the will on the ground that his statement recorded by the Commissioner was inadmissible in evidence because there was no note that the same was read over to him. In this connection he relied on the provision of Order XVIII, rule 5 and Order XXVI, rule 17, C. P. C. After excluding the evidence of this witness the learned District Judge came to the conclusion that the evidence of the attesting witnesses produced by the appellant was not helpful to him because, according to their evidence, the deceased did not put his thumb mark on the document in question in their presence. He dis?carded the evidence of P. W. 3 Nawab Din on the ground that it was hearsay evidence. The finding of the learned District Judge on the appraisal of evidence produced by the parties was that it was not proved beyond doubt that deceased Maula Bakhsh had executed the will Exh. P. 1. in favour of the appellant. This judgment is challenged in Civil Appeal No. 192 of 1956 by Ramzan Ali. Mst. Saliman Bibi has filed Appeal No. 222 of 1956 and has challenged the finding of the learned District Judge that the appeal on her behalf in his Court was not properly presented.

3. Before considering the case of the parties on merits, it will be convenient to mention here that Yakoob Ali J. as he then was, admitted the appeal of Ramzan Ali on the limited question whether the testimony of the scribe had been wrongly excluded from consideration by the lower appellate Court. It is to be noticed that Din Muhammad, the scribe of the will Exh. P. 1. was examined in the trial Court on commission. His evidence was considered by the trial Court and no objection was taken on behalf of the respondents that his evidence was not admissible. The respondents for the first time raised this question before the First Appellate Court on the ground that the statement of Din Muhammad recorded by the Commissioner could not be taken into consideration inasmuch as there was no note that the same was read over to him. In this connection the respondents brought to the notice of the Court the provision of Order XVIII, rule 5 and Order XXVI, rule 17 of the C. P. C. which provides that when the statement of a witness is completed it shall be read over in the presence of the Judge and the witness, and the Judge shall, if necessary, correct the same and shall sign it. This is contained in Order XVIII, rule 5, C. P. C. and this provision by virtue of Order XXVI, rule 17, C. P. C. is also applicable to the statement recorded by the Commissioner. The learned District Judge found that the statement of this witness had not been read over to him in the presence of the Commissioner and came to the conclusion that the statement of the witness did not have any evidentiary value which it would have had if it had been read over to him.

4. Khan Inayatullah Khan, learned counsel for the appellant, has contended that the learned First Appellate Court had fallen into an error on this aspect of the case. The learned counsel contended that under Order XVIII, rule 5, C. P. C. it is not neces?sary to make a note that the statement of a witness had been read over to him. Under section 80 of the Evidence Act it will be presumed that all the formalities of the law had been carried out and on that basis it shall be presumed that the Commissioner had read out the statement recorded by him to the witness who was examined by him. In the alternative the learned counsel contended that the omission in this respect, if any, is only an irregularity which, in the absence of any prejudice caused to the respondents, cannot render the deposition of Din Muhammad as inadmissible in evidence. In support of his contention the learned counsel has relied on: Ram Gopal Dey and another v. Raghu Nath Ghoshall and others (2 Cal. L J 496), Nath Singha Roy and others v. Hariishee Bagdhi (A I R 1929 Cal. 78) and Mangu Koeri v. Emperor 511 C (?) (sic). In the first case a Division Bench of the Calcutta High Court held that when a case was remanded for fresh trial apparently under section 562 of the C. P. C. on the ground that the deposition of the witnesses recorded in the first Court did not bear the usual certificate, such remand was irregular because it was riot authorised by any provision of the Civil Procedure Code. Their Lordships observed that such an irregularity is cured by section 578 of the C. P. C. and does not ipso facto vitiate all proceedings taken after the remand. In my opinion this decision has no bearing on the present case because the learned District Judge did not remand the case, but considered only the evidentiary value of the statement of Din Muhammad, the scribe. In A I R 1929 Cal. 78 the evidence of witnesses was dictated to a typist and the typed copy was revised and signed by the judge who added at the end of such deposition "dictated by me." It was urged before the High Court that the provisions of Order XVIII, rules 5, 8 and 14 were not complied with and, therefore, the evidence of the witnesses could not be taken into consideration. Page J. repelled this contention on the ground that it was merely an irregularity and would not render the evidence of the witnesses recorded as inadmissible in evidence. 51 Indian Cases has no material bearing on this case because that was a case where the judgment was announced by another judge who was temporarily in charge of the Court. I, however, find that there is a Lahore decision on this point reported in Emperor v. Jagat Ram (A I R 1919 Lah. 348). In that case certain respondents were prosecuted under section 193 of the Penal Code for giving false evidence in a judicial proceeding before the subordinate Judge of the Court. The Magistrate held that it was impossible to convict the respondents, inasmuch as the record of the deposition of each of them m the subordinate Judge's Court did not have appended to it the usual note that the depositions bad been read over to the respondents and admitted by them to be correct, and acquitted them on this technical ground. A Division Bench of the Lahore High Court set aside this order. On the point under consideration their Lordships observed as under:‑ "As a matter of practice, and as a very wholesome rule such notes are frequently appended, but it is not obligatory on the Courts in Civil Cases to make a note to that effect. Accordingly, in every such case it should be presumed under section 80 Evidence Act, that the statement was duly taken or in other words, was taken in accordance with the provisions of section 182, C. P. C. This is of course merely a presump?tion and can be rebutted by evidence that the deposition in question was not duly taken but in the absence of such evidence the Court is bound to presume that the provisions of the law as to the readings over of the evidence in the presence of the judge and of the witness were duly complied with. Upon this point we must with every respect defer from the learned Judge who decided the authority relied upon by the Magistrate. In the present case there is no evidence that the depositions were not read over to the witnesses and the Magistrate ought therefore to have assumed that the subordinate Judge complied with the provisions of Order XVIII, rule 5, C. P. C." Thus it will be noticed that it was held by their Lordships that it was not obligatory on the Courts in Civil cases to make a note under Order XVIII, rule

5. In every such case it shall be presumed under section 80 Evidence Act that the statement was duly taken or, in other words, was taken in accordance with the above provision of law; but since it is merely a presumption it could be rebutted, and it was open to the other side to lead evidence to show that the statement was not read over to the witnesses. In the present case, no such attempt was made on behalf of the respondents. They relied only on the provision of Order XVIII, rule 5 C. P. C. read with Order XXVI, rule 17 which objection prevailed with the learned First Appellate Court and on finding that no note was appended by the Commissioner, the evidence of Din Muhammad was excluded. This decision certainly supports the learned counsel for the appellant. Mr. Munir Ahmad, the learned counsel for the respondents, has referred me to The Empress v. Mayadeb Gossami (6 Cal. 762), but that case is distinguishable because there the question was simply whether a locus premitentiae should be allowed to an accused person who has made a false statement in Court on the ground that omission was made to comply with the provision of Order XVIII, rule 5 C. P. C. It seems to me that it may be that in a given case the accused may be entitled to have advantage of this omission, but in a suit the point whether such an omission should result in the exclusion of certain evidence merely because the above formality has not been carried out is entirely a different question. As pointed out in A I R 1919 Lahore referred above it is not at all necessary that such a note should be appended to the deposition of a witness. Under Order XVIII, rule 5, C. P. C. the only requirement is that the statement of a witness should be read over to him. It is quite correct that for convenience sake the subordinate Courts do append a note, but the absence of it would not mean that the statement of the witness was not read over to him. Under section 80 of the Evidence Act there would be a presumption that the evidence recorded by a Court of law was recorded in accordance with law. This presumption is reputable and if it is rebutted then alone the question would arise whether the statement of the witness is admissible in evidence or not. In the present case, however, no such evidence in rebuttal was led. I would, therefore, hold that the learned District Judge was not justified in excluding the evidence of Din Muhammad, the scribe.

4. It is however urged by Mr. Munir Ahmad, the learned counsel for the respondents, that although the learned District Judge had made observations to the effect that the evidence of Din Muhammad should be excluded, he had considered his evidence on merits and thereafter rejected it. The learned counsel contended that in such circumstances it is not open to this Court to disturb the finding of fact on the question of the execution or validity of the will. In my opinion the contention of the learned counsel is not well founded because the learned First Appellate Court was prejudiced by the fact that the evidence of Din Muhammad could not be taken into consideration. After giving a definite finding in this behalf, he only cursorily referred to the evidence of Din Muhammad which in law cannot be considered as sufficient for deciding the important question involved in the case whether the will in question was properly proved on the record or was a valid document. Moreover I have found that the learned District Judge has discarded the evidence of D. W. 3 Nawab Din on the ground that it was hearsay evidence. Mr. Munir Ahmad has not been able to satisfy me why the evidence of this witness could be considered as hearsay evidence and discarded for that reason. Admittedly the witness deposed that the deceased told him that he had executed a will about one third of his property in favour of the appellant. This was an admission by a dead person and being a relevant fact in the dispute between the parties was admissible in evidence under section 32 of the Evidence Act. It is, therefore, perfectly clear that on the facts of the present case the decision of the Court in Abdul Majid and others v. Khalil Ahmad (P L D 1955 F C 38) is not applicable to the facts of the present case. Since the learned appellate Court had fallen into a procedural error it is open to this Court to consider whether it was justified in reversing the finding of fact arrived at by the trial Court. I would, therefore, consider the dispute between the parties on merit.

5. Coming to the merit of the case it will be noticed that the appellant examined P. W. 1 Ghulam Rasul, P. W. 2 Ali Bakhsh, P. W. 3 Nawab Din, P. W. 4 Amanat Khan, P. W. 5 Muhammad Sharif and himself as P. W. 6 in support of his case. He further examined Din Muhammad, Deed‑writer, Kot Nainan on commission. Out of these witnesses P. W. 1 Ghulam Rasul and P. W. 2 Ali Bakhsh were attesting witnesses of the will dated the 14‑4‑1947. These witnesses have admitted their signatures on the will but stated that the deceased Maula Bakhsh was not present on that occasion. The learned trial Judge disbelieved their evidence on the ground that they were agriculturists like the respondents and have therefore turned hostile against him who is Ansari by caste. He further found that both the witnesses have contradicted one another with regard to the presence of other persons at the time of the execution of Exh. P.

1. P. W. 3 Nawab Din stated that he knew Maula Bakhsh of village Barowal who was his uncle from brotherhood. According to him Maula Bakhsh had made a will about 1/3rd of his property in favour of Ramzan Ali, the appellant. He deposed that he was told by Maula Bakhsh himself that he had executed a will about 1/3rd of his property in favour of the appellant and this fact was also told by him to other persons of the village. P. W. 4 Amanat Khan deposed that in his presence the will was executed by the deceased, but he is not an attesting witness and the learned District Judge rightly excluded his evidence on this ground. P. W. 5 Muhammad Sharif is a formal witness. He was examined in Court to prove that Din Muhammad deed‑writer was blind and too weak to attend the Court. He, however, proved the handwriting of his father on the will Exh. P.

1. P. W. 6 is the appellant himself. He stated that Maula Bakhsh executed the will in his favour in respect of 1/3rd of his property and thumb‑marked the will in his presence after hearing its contents and accepted the same to be correct. He further stated that he had been residing in the house of deceased before his death and used to serve him as the deceased had no child of his own and used to consider him as his own son. He was supported by Din Muhammad, the deed‑writer of Kot Nainan. He deposed that he was a deed‑writer and for the last six or seven months his eye had gone very weak. He further deposed that about eight or 9 years back he wrote a will on behalf of Maula Bakhsh son of Ghaseeta in favour of Ramzan Ali and he read over its contents to him, who accepting the same to be correct thumb‑marked the will which was also thumb‑marked by Ghulam Rasul and Ali Bakhsh as marginal witnesses. He further stated that he wrote the will at the instance of Maula Bakhsh and made an entry to this effect also in his Register and at that time besides Maula Bakhsh, Ramzan appellant, Ali Bakhsh and Ghulam Rasul a few other persons were also present there. According to the witness the deceased was personally known to him as he used to come to village Kot Nainan. In cross examination he vas unable to give the details of the other deeds which he had written but explained that he could remember about Exh. P. 1, the will in dispute because it was being disputed. This explanation found favour with the learned trial Judge and he considered that the evidence of this witness was very convincing. This is all the evidence produced by the appellant.

6. In rebuttal the respondents examined D. W. 1 Allahditta, D. W. Muhammad Hussain and Ghulam Haider, one of the defendants as D. W.

3. All the D. Ws. stated that Maula Bakhsh did not execute any will in favour of the appellant and further stated that they never resided with Maula Bakhsh. None of them however challenged the genuineness of the thumb‑impression of the deceased on Exh. P.

1. Not a word was deposed by them about the fact that the will bore the thumb‑impression of the deceased.

7. It will thus be noticed that the case of the appellant is supported by Din Muhammad, the scribe and P. W. 3 Nawab Din, besides his own statement. In my opinion the learned trial Judge in the circumstances of the present case was perfectly justified in coming to the conclusion that the will had been sufficiently proved on this evidence. Mr. Munir Ahmad has not been able to satisfy me as to why Din Muhammad, the scribe, a disinterested person, should come forward and support the execution of the will. Similarly, there is no explanation why P. W.

3. Nawab Din, distantly related to deceased, should have come forward and supported the case of the appellant that the will was executed in his favour and that the deceased admitted in his presence that he had bequeathed 1/3rd of his property to the appellant. The mere fact that two of the attesting witnesses after admitting their signatures on the deed had stated that the deceased was not present at the time when the deed was executed is not such a circumstance which should be fatal to the case of the appellant. The observation of the learned trial Judge that the two witnesses were agriculturists and the appellant, being an Ansari, these witnesses had not supported him sufficiently explains the reason for making such a damaging statement. It will however be noticed that P. W. 2 Ali Bakhsh had admitted that the document was written in his garden. P. W. 1 Ghulam Rasool admitted that the will was executed by the deceased, but later on resiled from this position. In my opinion these witnesses had been won over by the respondents and, therefore, they made a favourable statement in their favour; but this cannot detract from the fact established by other evidence that the will in question was executed by the deceased. The learned District Judge has relied on certain other circumstances to come to the conclusion that the execution of the will was not proved beyond reasonable doubt. In the first place, in civil cases it is not necessary that a particular fact should be proved beyond doubt. It is the preponderance of probability which has to be taken into consideration. The learned District Judge had not, therefore, approached the question before him in accordance with law. At any rate, the circumstances relied upon by him are mere conjectures and surmises and should not take the place of the proof or disproof of a fact disputed before him. Khan Inayatullah Khan has brought it to my notice that the learned District Judge has committed an error in relying on the fact that the testator and Ramzan Ali appellant and Ali Bakhsh, one of the attesting witnesses, were of Kot Nainan; and in observing that there was no explanation as to why the deed was not executed there. The learned counsel pointed out that neither the testator nor Ramzan Ali belongs to Kot Nainan. They are of village Barowal. Only the scribe belonged to Kot Nainan. In fact the case of the appellant is that the will was executed in the garden of P. W. 2 Ali Bakhsh at village Karoo Tana. The learned First Appellate Court, therefore, was not right in relying on this circumstance. The next circumstance relied upon by the learned District Judge was that the appellant is an Ansari by caste whereas the executant is a Gujjar, and there being no affinity between the two, it was most unlikely that the deceased would execute the will in the former's favour. In my opinion this is merely a conjecture. Even if the appellant was an Ansari, the deceased out of love and affection and for services rendered by him could be expected to bequeath 1/3rd of his property to him. There is nothing unusual in this respect, so far as the transaction in question is concerned.

8. In my view there is not the slightest doubt that if the testimony of Din Muhammad scribe, Nawab Din and appellant is accepted as substantially correct, the execution of the will is fully established. The learned trial Judge had rejected the evidence of D. W. 1 Ghulam Rasool and P. W. 2 on the ground that it was biased. The last two witnesses being examined by the trial Court, he was the best person to notice their demeanour and in law due weight must be given to his appreciation of their deposition. In Bombay Cotton Manufacturing Co. v. Motilal Shivlal (39 Born. 386) Sir George Farwell observed that "But, generally, speaking, it is undesirable to interfere with the finding of fact of the trial Judge who sees and hears the witnesses and has an opportunity of noting their demeanour especially in cases where the) issue is simple and depends on the credit which attached to one or other of conflicting witnesses." His Lordship further observed: "They only wish to point out that where the issue is simple and straightforward and the only question is which set of witnesses is to be believed the verdict of a Judge trying the case should not be lightly disregarded." Besides, the case under consideration is of a Muslim testator and therefore the general law that the document must be properly attested has no important bearing) on the validity of the will.

9. Considering the present case in this light I am of the view that the learned trial Judge had properly appreciated the evidence produced by the parties and his finding that the execution of the will was established on the record cannot be lightly disregarded. The reasoning of the first appellate Court being based on con?jectures and surmises and wrong approach of law cannot be given much weight. I would therefore restore the judgment of the trial Court and set aside the judgment and decree of the District Judge.

10. On the view that I have taken of the matter it is not necessary to decide the appeal filed by Mst. Saliman Bibi because the question raised by her could arise only after I had dismissed the appeal of Ramzan Ali.

11. In the result, I would allow the appeal of Ramzan Ali and dismiss the appeal of Mst. Saliman Bibi. In the special circumstances of the case the parties are directed to bear their own costs. K. B. A.?????????????????????? Appeal accepted.