P L D 1969 Karachi 217 (PLP)

Msr. Rafiqan, daughter of Abdul Wahid deceased ... 0‑50‑0 Mst. Hakiman, sister of Abdul Wahid deceased ... 0‑24‑0 Abdul Muqim, son of Mst. Sakina, sister of Abdul Wahid deceased ... 0‑13‑0 Abdul Mustaqim, son of Mst. Sakina, sister of Abdul Wahid deceased ... 0-13‑9

4. This order of the Assistant Settlement and Rehabilita tion Commissioner was challenged before the Deputy Settlement and Rehabilitation Commissioner who accepted the appeal and held that according to the principle of Sunni Law in case certain persons die at a time and it may not be possible to ascertain as to who predeceased whom, the deceased persons are not entitled to inherit from each other but the surviving heirs can only be considered for inheritance. After applying this principle, he held that "since Mst. Sakina was a rightholder, the question of her succession does not arise and only the question of succession of Abdul Wahid was to be agitated". He further held that "among the contesting parties, the living sister, Mst. Hakiman, and living daughter, Mst. Rafiqan, of Abdul Wahid are sharers but the sister becomes residuary with the daughter and so after satisfying the share of 50 paisas of the daughter, the residue of 50 paisas will go to the sister, Mst. Hakiman. The respondents do not even come in the category of residuaries and are excluded by the existence of the shafers". This decision was also upheld by the Settlement and Rehabilita tion Commissioner, Hyderabad Division, in Revision No. 2‑39‑Reh‑

64. The appellate and revisional orders are being challenged in the present petition before me.

5. In support of the petition, Mrs. Nasiruddin, learned counsel for the petitioner, has urged that in this case a presumption should have been raised that Mst. Sakina died later in point of time than deceased Abdul Wahid. In this respect she referred me to the evidence produced by the peti tioner which showed that Abdul Wahid and Mst. Sakina, among some 1000 other persons, were surrounded in a house by the non‑Muslim rioting mob during the 1947 riots. She contended that in such circumstances the natural course on the part of the rioting mob was to annihilate the male folk first and then to turn to the womenfolk and children. On these premises she has urged that, in the circumstances of the present case, a presumption should be raised that Abdul Wahid deceased predeceased Mst. Sakina.

6. In reply, Mr. Ali Ahmed Fazeel, learned counsel for the contesting respondents, has contended that the onus to prove that Abdul Wahid predeceased Mst. Sakina was on the petitioner and as he has failed to establish this fact, the Settlement authorities have rightly held that the heirs of Mst. Sakina were not entitled to inherit the property left by Abdul Wahid deceased. . In support of his contention, the learned counsel was referred me to a case decided by a Division Bench of the Sind Judicial Commissioner's Court reported as Sm. Gopibai v. Chuhermal Mulchand (A I R 1939 Sind 234) in which it was held that where mother and daughter met their death in the Quetta earthquake and there was no reliable evidence to show which of the two died first, there could be no presumption in law that the elder died before the younger. It will, however, be noticed that the learned Judges in this case have relied on a decision of the House of Lords in Wing v. Angrave ((1861) 30 L J Ch. 65) in which the question was about a will left by Mr. and Mrs. Underwood in which they left their property to their survivors and the question was which outlived, the other in a shipwreck in which both lost their lives. In that case the following principle of law was laid down by the House of Lords:‑ "There was no foundation for the supposed doctrine that where the evidence left it doubtful which of two individuals died first, there was a presumption of law that they died at the same time. In another decision of the Privy Council, which also relates to the Quetta earthquake, it was held by the Judicial Committee in K S. Agha Mir Ahmed Shah v. Mir Mudassir Shah (A I R 1944 P C 100) as follows:‑ "Where two individuals perish in a common calamity and the question arises as to who died first, in the absence of evidence on the point, there is no presumption in law that the younger survived the elder. Such a question is always from first to last a pure question of fact, the onus probandi lying on the party who asserts the affirmative. In a disaster like an earthquake, it is a matter of pure chance whether the younger or the elder would be killed first. It may well be that the younger might receive injuries which cause instantaneous death, while the elder might merely be buried under the debris and eventually die by suffocation." It is in the light of these principles that the dispute between the parties in the present case has to be decided. However, the question is not free from difficulty. It may be mentioned that Mr. Ali Ahmad Fazeel, learned counsel for the contesting respondents, has conceded that there is no such principle of Muslim law on which the learned Deputy Settlement Commis sioner has relied.

7. In my opinion, in this case a legitimate presumption can be raised that Abdul Wahid predeceased his sister, Mst. Sakina. It is in evidence that both of them were confined in a house along with some 1000 other people, surrounded by non‑Muslim rioting mob. I consider that the natural instinct of man, in the event of such a situation, surely is to protect the lives of womenfolk and children, as far as possible, and to bear the brunt himself. In a general massacre, man, through sheer natural human conduct, would prefer to be killed first, after putting up resistance if possible, and would avoid the gruesome and ugly spectacle of his own womenfolk and children being slaughtered right before his own eyes. 7 he unruly and oppressive mob would also naturally be interested to finish menfolk first, to make their task easy as regards the women and children. In such circumstances, it can legitimately be presumed that men folk must have been annihilated first before the turn of the womenfolk came. Considering the facts and circumstances of the present case from this angle, it seems to me that it was a fit case in which a presumption should have been raised that Mst. Sakina died later point of time than deceased Abdul Wahid. I am, therefore, of the view that the learned Assistant Settlement and Rehabilitation Commissioner was right in holding that Mst. Sakina was entitled to a share in the property left by Abdul Wahid and as the petitioner and respondent No. 5 are her heirs, they are entitled to get thirteen paisas each in the share of the property left by deceased Abdul Wahid. I would, therefore, restore the order of the Assistant Settlement and Rehabilitation Commissioner and set aside those of the Deputy Settlement Commissioner and the Settlement and Rehabilitation Commissioner, mentioned above.

8. In the result, subject to the remarks made above, the petition is allowed, with no orders as to costs. S. Q. Petition accepted.