P L D 1961 Supreme Court 609 (PLP)

B. Z. KAIKAUS J.‑Appellants in this certificated appeal are the heirs of Lady Shams Shah, while the respondents are the heirs of Sir Shams Shah. Both Sir Shams Shah and Lady Sham Shah lost their lives at Quetta on the 31st of May 1935, in an earthquake which razed the whole of Quetta to the ground After the death of Sir Shams Shah the present appellants has filed a suit (not the present suit) in the Court of the Senior Subordinate Judge, Peshawar, claiming to be entitled to a par, of the inheritance of Sir Shams Shah on the ground that Lace Shams Shah had survived Sir Shams Shah. In that suit the appellants led evidence to the effect that Lady Shams Shah hart survived Sir Shams Shah and they also put forward a contention that Lady Shams Shah being younger should be presumed to have died later if death of both occurred in the same calamity The Senior Subordinate Judge as well as the Judicial Commissioner of Peshawar found against the appellants and an appeal to the Privy Council also failed, the Privy Council holding that there was no presumption applicable in India that the younger survived the elder. That decision is K. S. Agha Mir Ahmad Shah air: another v. Mir Mudassir Shah and others (71 I A 171). The suit out of which this appeal arises had been filed it the Chief Court of Sind, Karachi, by the heirs of Sir Shams Shah (making one of the heirs a pro forma defendant) against the heir, of Lady Shams Shah, for possession and mesne profits of two plots of land which had not been included by the appellants it the first suit on the ground that they did not belong to Sir Sham, Shan at the time of his death. The first of these plots is situate on Neil Road, Karachi, and on it there is a bungalows called Farhat Manzil, while the second is situate on Mary Road Karachi, and on it there are two bungalows. The suit was resisted mainly on the ground that the' two plots of lands had been gifted to Lady Shams Shah, the first on the occasion of her marriage as dower and the second as a gift subsequent to the marriage. The learned Single Judge of the Sind Chief Court who heard the case came to the conclusion that Farhat Manzill had been gifted to Lady Shams Shah. He found no satisfactory proof, however, of the gift of the second plot of land, and lie decreed the suit with respect to it for possession as well as mesne profits. The plaintiffs filed no appeal with respect to the first plot of land. The defendants filed an appeal against the decree of the learned Single Judge which was heard by a Division Bench of the West Pakistan High Court, Karachi Bench, and was dismissed except that the decree as to mesne profits was modified so as to correct an admitted mistake. Mesne profits had in the Decree been allowed for the full period up to the date of the suit while they could have been allowed only for a period of three years preceding the suit. In view of the fact that the value of the l period up to the subject‑matter was more than Rs. 15,000 the West Pakistan High Court granted leave to appeal to this Court. Before us two points have been argued :‑ (i) that the Courts ought to have held in favour of the gift of the second plot also, and (ii) that even if the gift be not proved the appellants would be entitled to a share to the plot because Lady Shams Shah should be presumed to have survived her husband being the younger of the two who died in the same calamity. The second point had not been urged either before the learned Single Judge or before the Letters Patent Bench. It does tot find any mention even in the application .for leave to appeal wherein the questions of law to be argued before this Court are specified. It does appear in the concise statement but that fact by itself does not entitle the appellants to argue the point without leave of this Court and after giving the matter full con sideration we have decided not to grant such leave. The plea that one person survived another is after all a plea of fact even though it is sought to be proved by means of a presumption and the considerations for allowing such a point to be argued are not exactly the same as they would be when a pure question of law not argued in the Courts below is sought to be argued. In arriving at the decision that we should not allow this point to be argued we are influenced by the fact that this plea is inconsistent with an inter parses decision given with respect to the remaining property of Sir Shams Shah. It is not necessary to decide whether that decision would be res judicata between the parties. The act that an inconsistent decision has been given inter parties an be one of the circumstances to be taken into account while deciding whether the point should be allowed to be argued. On the first point there is a concurrent finding of the Courts below and according to the practice of the Judicial Committee of the Privy Council, the predecessor of this Court, as well as of this Court such concurrent findings of fact are not allowed to be challenged in the absence of special circumstances. Learned counsel for the appellants contends that in this case the two Judges who constituted the Division Bench that heard the appeal are not entirely agreed as to the appraisal of evidence and there fore this is not a case where the rule as to the concurrent findings of fact should apply. For an appreciation of this argument it is necessary to refer to the nature of the evidence produced in this case in brief. There is admittedly neither any deed nor any declaration in writing by Sir Shams Shah as to his having made a gift of the plot on Mary Road. Evidence led in support of the gift is of two kinds. There are, in the first place, statements made by some witnesses that Sir Shams admitted in their presence having made a gift of this property. In the second place, there is evidence as to possession which consists of oral state ments as well as some accounts relating to the property, and some letters written by the person who was managing the property. Both the learned Judges who constituted the Bench came to the conclusion that the oral statements of witnesses as to admissions were insufficient for finding that Sir. Shams had made a gift of this property. "'They agreed with the learned Single Judge that the evidence as to admissions was not quite consistent, for whereas according to some witnesses gift had been made when the second bungalow had bees built on this plot, according to one of the witnesses it had been made when there was as yet only one bungalow on it. The learned Judges also found part of the evidence to be vague' and incapable of a clear inference. One of the learned Judges, Sir George Constantine, did say that he came to this finding after some hesitation bat it does appear that ultimately, his mind was quite clear on the point, for he said : ‑ "If Sir Shams Shah intended a gift of the proper he could have made his intention plain, but there is no admission or act of his from which the intention can be plainly inferred. The most that can be said is that he might of not have made the gift alleged, but there is no preponderance of pro bability in favour of the gift." Relying upon some accounts which were produced in respect of the property and from which it appeared that Lady Shams Shah had been receiving the income, of this property Sir George Constantine did raise an inference that there was a gift of usufruct though there was no gift of corpus. Waheeduddin, J., the other member of the Bench, did not raise any such inference. Both the learned Judges relied on the fact that there had been. no attornment by the tenants. Waheedud din, J. did not even accept the accounts produced on behalf of the appellants as authentic documents. On the other hand, he found that in Exh. P. 15 which was in the hand‑writing of Sir Shams Shah and contained a list of his property, the property in dispute had been mentioned without any note that it had been transferred to Lady Shams Shah, whereas in respect of the first plot, that is, Farhat Manzil, there was a note that it had been gifted to Lady Shams Shah. Sir George Constantine was of the opinion that Exh. P. 15 might be of a dale earlier than the alleged gift and was not necessarily inconsistent with the gift. It will be observed that while with respect to the evidence as to possession the appraisal of both the learned Judges is not the same and one of them has raised an inference as to the gift of usufruct, they are in full agreement as to the insufficiency of the evidence relating to admissions and this finding by itself was sufficient to negative the plea of gift; for the gift could not be proved by the mere fact that Lady Shams Shah had been receiving the rents of the property for some time particularly in view of the fact that there had been no attornment by tenants We do not think, under the circumstances, the present case is taken out of the rule that concurrent findings of fact should not be allowed to be challenged. It is also urged by learned counsel for the appellants in this connection that the evidence of Mrs. Khori who was examined on commission had been improperly excluded from considera tion. This point was not taken in the application for leave to appeal presented to the High Court and, in fact, is not men tioned even in the concise statement of the appellant, but even otherwise there is no substance in it. Mrs. Khori had been allowed to be examined on commission, but the order allowing her to be so examined stated explicitly that her evidence would be admitted only in case she was unable, to attend the Court. The respondents examined Mr. Yar Muhammad Khan, a medical practitioner, who said that Mrs. Khori could attend the Court. The learned Single Judge who heard the case ordered that her evidence was not to be treated as evidence in the case and it appears to us that he was fully justified in the order that he passed: "This appeal fails and is dismissed with costs. A. H. Appeal dismissed.