1988 PLP 837 (MLD)

This R.S.A. is against the judgment and decree dated 17-1-1979 passed by the learned Additional District Judge, Sheikhupura whereby he affirmed that of the trial Court holding that the respondent/plaintiff Mst. Majidan Bibi was a real daughter of Barkat Ali deceased and as such entitled to inherit him alongwith others.

2. The crucial question before the Courts below was as to her parentage and both the Courts below concurrently upheld her claim of being a daughter of the propositus.

3. It was contended. that the evidence on the point had, in fact, been misread, emphasising in particular that there was no earthly reason to ignore the testimony of the mother D.W.3 and the brother Majeed D.W.4 who consistently deposed that the respondent was not a daughter of Barkat Ali. Apparently objection seems to be well placed but on- the other hand the statements of a real brother and a sister of the deceased namely P.Ws.5 and 9 could equally be not brushed aside as they too had special means to state that the respondent was a daughter of the deceased from his sole wife namely Mst. Zainab D.W.3.

4. I do not think that there was any question of law involved to support the R.S.A. It was all appraisal of evidence and if the Courts below chose to accept the version of P.Ws., it cannot be asserted that they must in all events prefer that o the D.Ws. especially the deceased's widow and children. The contention that the real mother could not ordinarily disclaim a true daughter may be somewhat persuading but the fact that the entire land left by the deceased had already been arrogated by the appellant Majeed may be the reason on her part to feel annoyed of the respondent who did not agree to part with her share. This reason looks to have been in the back of the mind of the learned Additional District Judge, although he did not express in so many words in the judgment. He skipped over the appellants' own statements as they were parties, suggesting that that without corroboration their own version was not inspiring. He discussed other evidence examined by them and gave reasons for believing that the appellant Majeed was not honest in denying parentage of the lady. Mr. M.M.Saeed Baig, Advocate for the respondent maintained that mereb because the lower Court could choose the opposite view would not justify interference in the Second Appeal, and relied upon Fazal Rehman v. Amir Harder and another (1986 S C M R 1814).

5. Learned counsel for the appellant cited Shah Nawaz and another v. Nawab Khan (PLD 1976 S C 767) in support of the argument that there was no evidence of showing how the deceased Barkat Ali treated the respondent Mst. Majidan and that mere testimony on the part of D.Ws. as his close relations did, not satisfy the dictates of section 50 of the Evidence Act. The fact remains that P.Ws. particularly the deceased's real brother and sister had special means by virtue of their close relationship with him to know as to whether or not the respondent was his daughter. They deposed that the appellant Zainab is, only wife and that the respondent was his daughter from her womb. Their; testimony sufficiently evidenced the "conduct on the part of the deceased in terms] of Section 50 ibid to prove her parentage. This version found corroboration from a contradiction of the appellants own evidence whereby they tried to prove that, the deceased had married not one but three ladies including the appellant Mst. Zainab. The other two, according to them, were Mst. Taleh Bibi and Rashida Bibi. It happened to come forth from the mouth of D.W.1 Muhammad Ali who; happened. to be his relation. No such plea was taken up in the written statement and was; introduced in evidence in a haphazard manner, It was argued that the P. CVs were inimical towards the appellant. Nonetheless their relationship with, the deceased having not at all been questioned would make them trustworthy especially about paternity of the respondent.

6. As a result there is no substance in the R.SA. and same is dismissed with costs throughout. S.Q/Z-52/L Appeal dismissed.