1985 PLP 1947 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑The decision in this case turns on the question whether respondent No. 1, Mst. Shafiat Begum was the daughter of pre‑deceased son of Gangu and, therefore, entitled to a share in the inheritance from Gangu alongwith his other heirs, namely, his son Muhammad Khan and widow Mst. Jamsl Khatoon. On the death of the propositus Gangu in 1961, the land in dispute was mutated in favour of his surviving heirs, namely, Muhammad Khan (son) and Mst. Jamal Khatoon (widow). Mst. Shafiat Begum claiming to be the daughter of Ismail, the pre‑deceased son of Gangu, claimed to be an heir of the latter by virtue of section 4 of the Muslim Family Law Ordinance, 1961, entitled to the share of her father from the estate of her grandfather. Her objection against the mutation excluding her from inheritance having been rejected, she filed an appeal before the Deputy Commissioner which was also dismissed. She, therefore, filed a suit for declaration, partition, possession and mesne profits against Muhammad Khan and Mst. Jamal Khatoon in 1973. During the pendency of the suit Mst. Jamal Khatoon died leaving her right and interest to devolve upon Muhammad Khan. Muhammad Khan denied the claim of respondent No. 1 that she is the daughter of Ismail the pre‑deceased son of Gangu. According to him she was the daughter of Mst. Sakina the widow of Ismail from her second husband. The suit filed by respondent No.l was dismissed by the trial Court on 27th February, 1975. However, her appeal was accepted by the District Judge, Mirpurkhas, who decreed her suit by judgment, dated 20th November, 1979. The main ground that prevailed with the learned District Judge in accepting the claim of respondent No. 1 was that in the proceedings before the revenue authorities, Muhammad Khan had not denied the relationship between Mst. Shafiat and deceased Ismail. In this connection the Court relied upon an observation made in the order of the learned Assistant Commissioner as under:‑‑ "They were given advice that as they were uncle and niece, if they could amicably settle up, the hearing could be adjourned so as to avoid embittering their relations in future." From this observation the learned District Judge concluded that Muhammad Khan had admitted before the Assistant Commissioner that respondent No. 1 was his niece and was the daughter of Ismail his brother.

2. Being aggrieved by the aforesaid judgment of the District Judge decreeing the suit, the petitioners who are the legal representatives of Muhammad Khan filed a revision application before the Sind High Court which was dismissed by a learned Single Judge by judgment, dated 16th April, 1984. Hence this petition for leave to appeal.

3. In support of the petition it has been urged by the learned counsel that the learned District Judge reached the finding in favour of respondent No. 1 on the above‑quoted observation which did not constitute legal evidence and could not be relied upon as an admission made by Muhammad Khan, who all along contested the claim of the said respondent before the revenue authorities. The question of admissibility of the so‑called admission of Muhammad Khan as a piece of legal evidence to sustain the finding given in favour of respondent No. 1, inter alia, other grounds seems to require consideration. Leave is accordingly granted. Security Rs.2,

500. The appeal shall be prepared on the same record with liberty to parties to file additional documents if any. The appeal shall be set down for early hearing.

4. As to stay let notice be issued to the respondents. In the meantime further proceedings on the preliminary decree shall be stayed and if a final decree has been passed it shall not be executed until further orders. M.I. Leave granted.