P L D 1950 Baghdad﷓ul﷓Jadid 9 (PLP)

Muhammad Amin Khan and Muhammad Mustafa Khan, for Appellant. B. Z. Kaikaus and Nazir Ahmed, for Respondent. JUDGMENT.--Mst.‑Zeb Illahi sister of Nazar Muhammad Shah was married to one Muhammad Ali Shah a collateral of Nazar Muhammad Shah. Muhammad Ali Shah died about 50 or 60 years ago leaving. Considerable landed property situated in a village of Montgomery District and in some villages in Bahawalpur State. The property passed to the widow as her life estate. Nazar Muhammad Shah left two sons S. Ghulam Muhammad Shah the present plaintiff‑appellant and S. Fateh Muhammad Shah the pre sent defendant‑respondent. Muhammad Ali Shah died childless and it was pleaded by Fateh Muhammad Shah that from his infancy he was brought up by Mst. Zeb Illahi and he lived with her till her death. On 17th of April, 1938. Mst. Zeb Ilahi executed a will Ext. DX of her entire property situated in the District of Montgomery and Bahawalpur State in favour of S. Fateh Mohd. Shah the defendant‑respondent. The will was ratified by Nazar Mohd. Shah on 18th of April, 1938 by a document Ex, DY. The death of Mst. Zeb Ilahi took place on 4th of February, 1941 and the report was made of it by Fateh Mohd. Shah to the Patwari on 19th of March. 1941. On 23rd of March 1941 the mutation was sanctioned and in the presence of the parties and their deceased father Nazar Mohd. Shah. The mutating officer recorded the statements of all the three persons. See Es, D V. Nazar Mohd. Shah subsequently instituted a suit oil 12th of June, 1942 for the possession of the land in the District of Montgomery. See copy of the plaint of their suit Ex. DA/U. The death of Nazar Mohd. Shah took place on 29th of October, 1942 and that, suit was dismissed on 14th of November, 1942. On 12th of December 1942 two suits were simultaneously instituted by. the present plaintiff‑appellant, one in the District of Montgomery relating to the land therein, and the other in the court of District Judge, Bahawal Nagar it was alleged by the plaintiff that he and the defendant were governed by the general agricultural custom in the matters of alienation and inheritance and Mst. Zeb Ilahi as a widow was incompetent to execute a will in favour of the defendant and that his father was incompetent to give any assent to the will, nor any assent was given by him. He therefore contended that a mutation of the entire property left by the deceased lady was wrongly sanctioned in the name of the defendant and he was entitled to one‑half of the property left by the deceased. It was also alleged by him that the defendant was not adopted by Mst. Zeb Ilahi. He therefore in no manner had any right in the property, in excess of his legal share. It was admitted by the defendant that their family was governed by the general agricultural customs but pleaded that he was brought up by and lived with Mst. Zeb Ilahi till her death. He was adopted by her and independently of the adoption she was competent to execute the said. will in his favour and that the will was valid according to the customary law when it was assented to by the next reversionary heir, i.e., his father. He therefore pleaded that the plaintiff had no cause of action and the suit should be dismissed. The trial court held that the will was executed but the consent to it by the next reversioner, i.e., the father of the party was not proved and as such the will was invalid. He also held that the adoption of the defendant was not established. He therefore excluding some property decreed the claim of the plaintiff: The defendant dissatisfied with that decree preferred an appeal to the High Court and the plaintiff preferred cross objections to the extent of his claim disallowed by the trial court It was held in that appeal that the execution of the will was established. It was also held that Nazar Mohammad Shah gave his consent to that will and as such the will had become operative The appeal of the defendant was therefore accepted and cross objections of the plaintiff were dismissed. This is a constitutional appeal before this court. It was held in that appeal that the execution of‑the will was established. It was also held that Nazar Mohammad Shah gave his consent to that will and as such the will had become operative. The appeal of the defendant was therefore accepted and cross objections of the plaintiff were dismissed. This is a constitutional appeal before this Court. A preliminary objection was taken by the learned counsel of the respondent that in a constitutional appeal which is analogous to the Letters Patent appeal in the High Courts of the Provinces a finding of fact cannot be disturbed. This broad proposition watt admitted by the learned counsel of the appellant with this qualification that if the learned Judge against whose judgment the appeal is preferred had failed to take into consideration the evidence which should have been considered or had admitted the evidence which should riot have been admitted then the Court of appeal even in Letters Patent appeal is competent to go into the findings of facts. We definitely agree with the argument of the learned counsel of the appellant and for this we have got an authority in 1936 Lah. 864 where it was held that where the Court in arriving at a finding of fact fails to take into con sideration the effect of certain mutation proceedings because the revenue officer was not examined as a witness and there is not sufficient evidence to rebut the presumption arising from the mutation proceedings then the tending can be, challenged in second appeal. The only question for our consideration is whether the learned Judge either failed to take into consideration any evidence on the file or took into 'consideration the evidence which ought not to have been taken into consideration. The grievance of the learned counsel of the appellant is confined to the second portion of this proposition. His contention was that the learned Judge of the Court below had depended on the statement of Nazar Mohd. Shah in the mutation proceedings without having them duly proved. His contention was based on Section 32 Cl. 3 of the Indian Evidence Act and on 33 I. C.

969. Section. 32 of the Indian Evidence Act reads "statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who had become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable are themselves relevant facts in the following cases Cl. 3, when the statement is against, pecuniary or proprietory interest of the person making it, or when if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages". This point was full explained in the ruling quoted above where it was held that under Section 32 of the Evidence Act the test of admissibility' of the if rule the statements against interest made by the deceased person are that (1) the deceased must have had personal knowledge of the fact lie was stating, (2) the facts stated should have been to the immediate prejudice of the deceased, (3) the statement must have been to the knowledge of the deceased contrary to this interest and l4) the interest must be either pecuniary or proprietory. The contention of the learned counsel was that the statement even if it be held that it was made by Nazar Mohd. Shah could not be taken into consideration under Cl. 3 of Section 32 of the Indian Evidence Act because the alleged statement of Nazar Mohammad Shah could not be against his interest and he had not personal knowledge of the fact he was stating and lastly that he had no knowledge that the so‑called statement made by him was contrary to his interest. We are unable to agree with this contention of the learned counsel because the statement he had trade before the mutating officer clearly indicates that he was ‑raking statement regarding the facts which were within his knowledge and the statement was evidently against his proprietory interest in that transaction. We are therefore of opinion that the statement of the deceased made before the revenue officer during the mutation proceedings was fully covered by the provisions of Section 32 CI. 3 and as such was relevant. The next objection of the learned counsel with regard to the statement of Nazar Mohd. Shah was that it could not be admitted in evidence as the mutation was not duly proved by the examination of the revenue officer who had sanctioned the mutation and also by proving that the statement ascribed to Nazar Mohd Shah was made by him. There also we disagree with him. In 1934 P. C. 40, it was clearly laid down that under section 44 there is a statutory presumption that the entries in the record of rights are correct, and that the plaintiff in order to succeed must establish that the mutation order is a false document. The mere facts that the Patwari has committed some irregularities in submitting the report on which the order of mutation is passed, is insufficient to displace the presumption that arises and section 44 and in the absence of definite proof chat the order of mutation itself is false, the. plaintiff's cannot be held to have discharged the burden that lay upon them. This view was also adopted in 1929 Lah.

93. It was held by Bhide, J. that under section 44 there is 'a presumption of correctness of entries in the mutation, unless rebutted by inherent evidence available from the entries themselves. The party challenging the correctness has to rebut this presumption. It is not necessary to prove that all. the formalities were duly complied with in respect of the mutation. A similar view was adopted in 1934 Lah.

472. See also in this connection 1940 Lah.

118. In the present case the objection pf the learned counsel of the appellant is met by the statement of his client which he had made on 14th September, 1944 as P. W.

22. That statement proves the presence of his father at the time of the mutation. The statement is to the effect that he and his father were present in the mutation proceedings and his father had said "that if the signature on the deed of consent exists they were obtained by fraud," The plaintiff had put certain questions to his father during the mutation' proceedings and they are marked as B to B. He had admitted in the Montgomery Court that he had put those questions to his father. What else is needed to prove the presence of the father of the plaintiff in the mutation proceedings and that the statement ascribed to him in those proceedings was made by him. Not only‑that; the presence of Nazar Muhammad Shah during the mutation proceedings is' definitely proved by the order of the revenue office. In the first instance the mutation itself carried the of truth and‑as such was sufficient to prove the identity of Nazar Muhammad Shah during the mutation proceeding and‑.secondly the statement of the plaintiff himself leaves no doubt to conclude that the. statement attributed to Nazar Muhammad Shah was actually made by him. It cannot therefore be that the mutation proceedings were improperly taken into consideration by the learned judge and consequently the findings of facts were vitiated. In addition to that it was contended by the learned counsel for the respondent that the question of the inadmissibility or otherwise of the copy of the mutation was not raised before the learned judge, consequently it cannot be agitated in the present appeal. Reference in this connection may be made to 1940 Bom. 49 where it was held that "in an appeal under the Letters Patent the appellant is not entitled to be heard on Points which had not been raised before the judge from whose Judgment the appeal has not been preferred". This view also finds favour in 1930 Lah. 632, 19,32 Lah. 161 and 1935 Lah.

590. We therefore entirely overrule the objection of the learned counsel and must conclude that the finding of fact in this appeal cannot be questioned by him. The result would be that we shall have to hold that the will was executed by Mst. Zeb Ilahi in favour of the defendant‑respondent, and that the consent to it was given by the father of the plaintiff on the day following the execution of the will. Having come to this conclusion the next important and crucial point in this case, is, what is the value under law of the consent of the father of the parties to the will executed by Mst. Zeb Ilahi against the interest of plaintiff‑appellant. It may be stated at the outset that the suit of the plaintiff was dismissed by the learned judge from whose judgment the appeal is before this Court, on the authority of the Full Bench Ruling 1946 Lah.

180. In that judgment the powers of widow under the Customary Law to alienate the estate which devolves on her, after the death of her husband were dealt with in a very lengthy discussion and all the pros and cons view on the subject up to that time were considered and discussed. The conclusion to which the learned judges arrived may well be stated' in the words of Mahajan, J. who wrote the principal judgment. It was held that " the estate of a widow under custom in the Punjab and her powers of alienation or surrender are analogous to those of the widow under the Hindu Law. The rule in para. 68 of Rattigan's Digest of the Customary Law of the Punjab to the effect that merely the Assent of the next reversioner and one of the several reversioners of equal degree, to an alienation by a widow of her deceased husband's property will not estop. the other reversioners from suing to set aside the alienation is valid but is subject to the following limitations: (1) Where an alienation by a widow' of the estate to which she has succeeded either upon the death of her husband or son, or collaterally, amounts to a surrender of her interest in the whole estate in favour of the nearest reversioner or reversioners at the time of the alienation the alienation is a valid one. The question of necessity does not fall to be considered in such situation provided that the surrender is bona fide and not a mere device to divide the estate with the reversioners. in a case where the next reversioner consents to a gift by her of the whole of her estate in favour of a stranger, this gift may be deemed as a surrender by her; to the nearest reversioner and a conveyance by the latter in favour of the stranger, qua non‑ancestral property surrendered, and the remote reversioner cannot successfully challenge the gift concerning such property. If the gift includes ancestral property, it is liable to be set aside in respect of such property at the instance of the remote reversioner. (2) A gratuitous alienation by a widow of a part of her deceased husband's ancestral or self‑acquired property, with the consent of the next presumptive reversioner, is invalid. Such an alienation will, however, bind the consenting reversioner and those who derive title through or from him. In a suit for declara tion by a remoter roversioner for contesting such an alienation, the declaratory decree should clearly provide that it shall not enure for the benefit of the consenting reversioner or persons deriving title from or through him. (3) A gratuitous alienation by a widow of her deceased husband's self‑acquired property, made with the consent of the next presumptive reversioner, though invalid at the time when made, will subsequently become indefeasible if the consenting reversioner survives the widow and the inheritance becomes vested in him. If a declaratory decree has already been granted in respect of such alienation that decree will become infructuous and inoperative. (4) When an alienation for consideration by a widow of the whole or part of her husband's estate, whether ancestral or self acquired to which she has succeeded is to he supported on the ground of necessity, the consent of the nearest reversioner or reversioners at the time of alienation, as might fairly be expected to be interested to question the transaction will be held to afford a, presumptive proof which, if not ‑rebutted by a proof to the contrary, 'will validate the transaction as a right , and proper one". It was however contended by the learned Counsel for the appellant that this ruling has absolutely no application to the case of his client. In that ruling the validity of a gift was before the learned judges and not of the will. The will by a widow according to him under the Hindu taw which is analogous to the customary and ratification of such a will by a next reversioner does not make it valid. His contention was, as repeatedly placed before this Court, that two nagatives do not make one positive. In support of his contention he referred us to para. 118 of the Principles of Hindu Law by Mulla, 1946 Edition, which is to the effect, "that a widow or other limited heir cannot in any case disposed of by will property inherited by her or any portion thereof, whether the property be movable or immovable and also to 1931 Nagpur

194. It may be stated here that this was the judgment of the Hon'ble Mr. Niyogo, Additional Judicial Commissioner on which reliance was chiefly placed by the learned counsel. ,We have given our best consideration to this judgment and we are of opinion that the proposition adopted by the learned Additional Judicial Commis sioner does not run counter to that adopted in 1946 Lah.

180. In this case a Hindu childless widow had made a will in favour of a son of one of her daughters. The will was assented to by her two daughters. Subsequently one of her daughter as the guardian of her son alienated the property in favour of another person. The alience filed a suit on the basis of the alienation in his 'favour impleading another person as defendant who also claimed under a deed of gift executed in his favour by one of the two daughters. The same defendant had also instituted a suit for the recovery of the posses sion of the property. The suit of the person coming on the basis of the gift was dismissed on the ground that the property which was alienated to the first alience was ostensibly in the possession of the legates and the daughter by their own conduct had deprived them selves to assert their title or right in the property which they otherwise could. He finally came to the conclusion that the prin ciple of estoppel must operate against the plaintiff who claims as the representative of Mst. Amriti, i. e., one of the two daughters of the widow who had executed the will. The same proposition as already stated was partially adopted in A I R 1946 Lah. 180 I would not hesitate to repeat here Clause 3 of the head note which has been reproduced by me above ; as I am of opinion that that would help us to decide the controversy that has mainly arisen between the parties on this point. It reads "a gratuitous alienation by a widow of her deceased husband self‑acquired property, made with the consent of the next presumptive reversioner though invalid at the time when made will subsequently become indefeasible if the consenting reversioner survives the widow and the inheritance becomes vested in him. It is however contended by Mr. Kaikaus that the will under the Customary Law i5 voidable and not void. In support of his argument he depended on section 3 of Act I of 1920 where a testamentary deposition comes within the definition of an alienation. He therefore contends that if such an alienation even made by a widow is not attacked within the period of 6 years the alienation becomes effective and operative. The question however arises whe ther this Act is or is not enforceable in the State. We tried our best to secure an information on this point but failed. However as I consider that there is other material on the point, that such a will is voidable, on the authority of certain rulings to which reference is being made presently by me, we have not treated it necessary to make further inquiry presently on the question. Mr Muhammad Amin for the appellant however referred us to 1922 P. C. 403, 1932 Sind 67 and 2 Indian Cases

865. We are of opinion that these rulings are of no assistance to him. The third ruling is under the Muhammadan Law while the point in the first two rulings was not the same which is before us, 1940 Lahore 416 quoted by the learned counsel is a decision in which it had been held that " where a widow governed by a customary law has made a will which is to take effect after her death there is no property on which she can operate. This judgment was principally written by Abdul Rashid. J. who was one of the members of the Bench which had decided the appeal quoted as 1940 L.

180. What appears from this judg ment no doubt is that that will was not assented to by the next reversioner. The view adopted therein consequently can hardly apply to the present case, 1928 Cal. 794 is another ruling to which reference is made by the learned counsel for the appellant. There the point for decision was absolutely different as would appear from the head note. It is stated therein, " if at her death or when her widow's estatg is otherwise determined it appears that she bad not .already, disposed of the income' current, or accumulated which she was entitled to enjoy while she, was alive, such income will follow the estate from which. it arose " and will pass to the heir of her husband." On the other hand we were referred to 1934 Cal.

329. In that case a Hindu widow had granted a lease for a term extending beyond her own life. It was held that a Hindu widow is the owner of her husband's property subject to certain restrictions as aliena tion, and subject to its devolving on her husband's heirs on her death. Her alienation is not absolutely void, but it is prima facie voidable at the election of the reversionary heir, who may affirm it or treat it as a nullity without the intervention of any court, there being nothing to set aside or cancel as a condition precedent to his right of action." In 1931 L 495, it was held that alienation, by a widow made with the assent of the next heir really amounts to two transactions, (1) a surrender by the widow in favour of the next heir, (2) a further. transfer by the latter to the alienee. It is obvious that the remoter heir has got no right to contest either one or two and therefore he ‑cannot have a locus standi to challenge the transaction as a whole." In 1923 Allahabad 387 it was held by the Full Bench that " an alienation by a widow is not a void contract. It, is only voidable." "In A. I. R. 1926 Allahabad 684 it was held, `that in the : Full Bench Ruling (A. I. R. 1923 Allahabad 387) it was held after 'a consideration of all the authori ties that the reversioners could be estopped from a further claim to the property by their own relinquishment of what was at that time sees successionis. These observations to our mind are very clear reply to the argument of the learned counsel for the appellant as he had vehemently contended‑that there could be no relinquishment of sees successionis." In 1931 B 208 it was held, "that it is settled haw that an alienation by a widow in excess of her powers is not altogether void, but only voidable by the reversioners who may either singly or as a body be precluded from exercising their right to void it either by express ratification or by acts which treat it as valid or binding." 1928 L. 967 to our mind gives us a considerable help on 'the point before us. The dispute in that case related to the disposition of ancestral property by will under Hindu Law, On page 971 of the report it was observed that a bequest of joint " ancestral property " may not be permissible under Hindu Law but as already stated no infringement of any rule of equity or public policy seems to be involved. Such a bequest even if it be void, will not therefore be illegal within the meaning of the rule laid down in Re‑oliver s settlement. The bequest of joint ancestral property by a person governed by Hindu Law seems to stand on precisely the same footing as a bequest by a person of property not belonging to him along with his own which is the typical case falling within the scope of the " doctrine of election. " The bequest of property belonging to another person is also void in law but not illegal in the above sense. Now the accumulative effect of all this discussion is that a will by a widow governed, by the Customary Law is voidable at instance of her reversioner and relating to self‑acquitted property it becomes operative. The next reversioner who assents to such a will is therefore incompetent to challenge it by his own conduct when he survives the widow. After the death of the widow the remoter reversioner who derives his title through the next rever sioner stands debarred from challenging the validity of the aliena tion. We are therefore of opinion that the view adopted in 1946 L. 180 which was followed by the learned Judge in the judgment which is now the subject matter of the appeal well applies to the present case. We therefore hold that the decision under appeal was correct and we dismiss the appeal with costs. K.M. A. Appeal dismissed.