P L D 1969 Supreme Court 261 (PLP)

Respondent No. 2: Ex parte. Dates of hearing : 10th and 11th April 1969. SAJJAD AHMAD, J.‑

This appeal by special leave is directed against the judgment of a learned Single Judge of the High Court of West Pakistan, Lahore, made on a Revision Petition which arose out of a suit the facts of which are briefly these. One Isa who owned substantial bits of agricultural land in the villages Par Lakhan, Par Ahmad and Par Ghusru, in the District of Gujranwala, died on the 27th of October 1931, leaving behind two widows, Mst. Jadi and Mst. Fatima and a daughter by the name of Mst. Marian. On his death his estate under custom devolved on his two widows and when both of them remarried, it passed on to the daughter, Mst. Marian and was duly mutated in her name. Mst. Marian was murdered on the 24th of October 1953, along with her infant son, Said Akbar. A dispute over the succession to the estate arose between the appellant, Masta and Mehdi Khan, son of Sarang, as each of them claimed to be the husband of the deceased, Mts. Marian. The litigation that followed began with a declaratory‑cum‑possessory suit by Masta joined by Ihsan, son of Hussain, as a co‑plaintiff on the allegation that both of them as collaterals of Isa were entitled to half the estate of Isa between themselves as residuaries, and that the other half which had vested in her daughter, Mst. Marian, in complete rights of ownership, on the enforcement of Shariat Act, in 1948, was inherited exclusively by Masta plaintiffas her husband. It was alleged in the plaint that sometimes after her marriage with Masta, Mst. Marian was abducted by Mehdi Khan and she gave birth to an illegitimate son, Said Akbar, from him. It was also alleged that Said Akbar was killed before Mst. Marian and had thus pre‑deceased her. The charge for the murder, according to the plaintiffs, was falsely laid against Masta and others who were convicted at the trial but were acquitted on appeal by the High Court. Mehdi died during the pendency of this suit and Sarang (respondent), his father, who was impleaded as the legal representative, resisted the suit on various grounds both legal and factual. It was denied that Masta was married to Marian. She was stated to be the lawful wedded wife of Mehdi and Said Akbar their son out of that lawful wedlock who survived Mst. Marian, as according to the defence he was murdered after Mst. Marian. It was also alleged that the plaintiff was responsible for their murder, although he was ultimately acquitted for lack of proof. The learned trial Judge by his Judgment, dated the 31st of July 1960, came to the conclusion that the marriage of Mst. Marian was neither proved with Masta nor with Mehdi. He found that the plaintiffs as the residuaries of Mst. Marian were entitled to inherit her estate in that capacity in equal shares. A decree was passed in their favour for a declaration that they were the owners in possession of the lands situated is village Par Lakhan and village Par Ahmad. The decree for a declaration was withheld in respect of the remaining land in suit on the ground that although the plaintiffs were proved to be its owners, they being, not in possession should have claimed the relief of possession and not of a mere declaration. Masta and Sarang preferred appeals to the District Judge, Gujranwala, who by a consolidated order, dated the 18th of January 1961, remanded the case for a fresh decision on the view that as the learned trial Judge had found that the land, which was not in possession of the plaintiffs was owned by them, an opportunity should have been allowed to them for the amendment of the plaint to ask for the relief of possession of the land which was not in their possession. In the remand proceedings an amended plaint was filed, transposing Ihsan as a defendant but without any other substantial variation. The plaintiff Masta claimed a declaration of his title with regard to the entire land in suit except for the four fields numbers in village Par Ahmad for which he sought possession as allegedly they were under the unlawful occupation of the defendants. By his judgment, dated the 22nd of September 1961, the learned trial Judge dismissed the suit of the plaintiff with regard to his prayer for a declaration that Mst. Marian was his married wife and he was entitled to inherit her estate as her husband. A decree, however, was awarded to him for a declaration that he was entitled to inherit the estate of Mst. Marian as a residuary being the collateral of her father Isa to the extent of half share. It was held that he was in possession of the disputed lands in village Par Lakhan and of the land bearing Khasra Nos. 1204, 1205 and 1207 in village Par Ahmad but not of any other. It was also held that defendant Sarang had no interest in the suit land as it was not proved that Mst. Marian was the wife of his son, Mehdi Khan. In the net result plaintiff Masta and the defendant Ihsan were found to be entitled to succeed to the entire estate left by Mst. Marian as her residuaries. While Sarang took an appeal against this judgment to the District Judge, Gujranwala, Masta did not, although as stated above, the issue regarding his alleged marriage with categorically decided against him. During the appeal Sarang, respondent (appellant before the District Judge) filed an applica tion for permission to file by way of additional evidence a certified copy of a power‑of‑attorney, dated the 22nd of April 1950, which was executed by Mst. Marian in favour of defendant Sarang and one Syed Muhammad Shah, wherein it was recited that she was the wife of Mehdi Khan and that since he was in jail at the time she was appointing her father‑in‑law, Sarang, and one Syed Muhammad Shah as her Mukhtars to look after her estate. The original power‑of‑attorney was placed on the file of the murder case of Mst. Marian, which was examined by the learned District Judge who observed "That the file is before me and I have seen the original deed. Since it is a registered deed ; the endorsement of Sub‑Registrar on the back of it is a sufficient proof of its execution by Mst. Marian. Since the evidence of the parties in respect of the marriage of Mst. Marian is not quite satisfactory, I feel that it would be in the interests of justice to admit the document referred to in the application of the appellant as it would help to solve the question of the marriage of Mst. Marian. 1, therefore, admit the certified copy of the power‑of‑attorney in evidence as Exh. D. Z. It shows that Mst. Marian herself stated in the power‑of‑attorney that she was the wife of Mehdi Khan. Her statement, therefore, is the best indication about the identity of the person who married her. I, therefore, hold in the circums tances that the marriage of Mst. Marian Bibi with Mehdi Khan deceased has been duly proved". It may be mentioned here that apart from the verbal evidence about the marriage of Mehdi Khan, the defendant produced an extract from the Death Register, pertaining to Mst. Marian's death entry (Exh. D. 2) after her murder in 1953 wherein she was described as the wife of Mehdi Khan. About the murder of Said Akbar the learned District Judge found that there was evidence on the record to show that Said Akbar was killed after Mst. Marian and did not, therefore, pre‑deceased her. It was, therefore, held that the half share belonging to Mst. Marian in the estate of Isa on her death had devolved upon her son Said Akbar and her husband Mehdi Khan. On the death of Said Akbar the whole of it devolved on Mehdi Khan and on the latter's death it was inherited by his father. Sarang, defendant No.

1. The other half fell to the collaterals of Isa, deceased, namely, Masta, plaintiff, defendant Ihsan and one Ismail who had died but was survived by a widow and a daughter. Masta was thus found to be entitled to 1/3rd out of 1/2 share of the collaterals i.e. to say 1/6th share only in the entire estate. The decree of the trial Court was modified accordingly, the declaration granted to the plaintiff was confined to 1/6th share in the lands, left by Mst. Marian and a decree for joint possession was granted to him for 1/6th share in the four fields situated in village Par Ahmad, as mentioned above. Masta filed a revision petition in the High Court of West Pakistan wherein the finding of the learned District Judge that Mst. Marian had married Mehdi Khan was challenged on the ground that the power‑of‑attorney (Exh. D. Z.) mentioned above, was wrongly admitted into evidence. On this part of the argument the learned Single Judge has commented as follows:‑ The criticism of the judgment of the learned District Judge by counsel for the petitioner does not take the case of the petitioner very far, because the statement made by Mst. Marian in the registered power‑of‑attorney executed by her, can be used not only under section 32 of the Evidence Act, but as an admission by her under section 21 of the Evidence Act also. If it is used as an admission, then the condition that it could be taken into consideration only if it was made before the dispute does not attach to it. There was justification for the District Judge to give weight to this document because, as pointed out by him, the endorsement by the Sub‑Registrar on the back of the document that it was executed by Mst. Marian carries with it the presumption that the executant was a properly identified person. Counsel for the petitioner argued that similar weight could be attached to the statement made by herein favour of Masta in the mutation proceedings before a Revenue Officer. But the answer can be that she had admitted herself to be the wife of the plaintiff on one occasion in 1951, in circumstances, which at least show that she was either not living with Mehdi or was not on good terms with him. As against this statement, there are two statements made by her, one in her complaint and the other in the mukhlarnama, which are corroborated by her death entry. In these circumstances the question being within the jurisdiction of the learned District Judge and he having come to a conclusion at which he could, in the circumstances understandably arrive, I do not think it to be proper to interfere with his conclusion even if it can be said that a different view was possible. Learned counsel contended chat on account of the evidence being balanced the correct course was adopted by the trial Judge, who gave a finding that Mst. Marian was neither married to the plaintiff, as alleged by the plaintiff, nor to Mehdi as alleged by the defence and that her child was illegitimate. This conclusion being inconsistent with the case set up by the parties, I am not inclined to favour it and would prefer the conclusion at which the learned District Judge has arrived. At the leave stage in this Court, it was contended that the District Judge and the High Court had erred legally in admitting the registered power‑of‑attorney (Exh. D. Z.) into evidence because the admission contained therein about her being married with Mehdi was made after a dispute had already arisen regarding the marital status of Mst. Marian between two rival persons both of whom claimed to be her husband i.e. the plaintiff Masta and deceased Mehdi. It was submitted that this dispute was raised by the deceased Mst. Marian herself in a petition under section 107 read with section 151 of the Criminal Procedure Code against Masta in the year 1950. Leave was granted mainly to consider this contention as to whether in the circumstances as alleged, subsection 5 of section 32 of the Evidence Act was rightly applied for admitt ing the evidence of mukhtarnama (Exh. D. Z.) to prove that she was the wife of Mehdi. Before entering into a legal discussion on this point a word may be said about the contention of the learned counsel for the appellant with regard to the appellant's claim as the husband of Mst. Marian which was sought to be enforced inter alia on the basis of the alleged admission of Mst. Marian in proceedings of mutation No. 114 of village Par Ahmad (copy Exh. P. 16) wherein she admitted that she was the wife of Masta. We do not think that it was open to the appellant to raise the question of his marriage with Mst. Marian in the Revision petition in the High Court. He did not appeal against the finding of the learned trial Judge on this point although it was categorically found against him. The finding thus became final against him. The learned counsel attempted to revive this matter before us but could not get over this hurdle. It may, however, be stated that the alleged statement of Mst. Marian admitting her marriage with Masta in the mutation proceedings referred to above is on the face of it highly doubtful. Admittedly she had been living before that with Mehdi as his wife and had given birth to a child from him. Masta had also brought a complaint against Mehdi under section 494 of the Criminal Procedure Code. It is not easy to understand how in this situation Mst. Marian made a statement admitting her marriage with Masta. No effort was made to prove at the trial that the statement attributed to Mst. Marian in the mutation proceedings was in fact made by her. The mere mention of such statement in the order of the Mutation Officer on its face value, does not prove that it was in fact made by her nor that it is genuine. As regards Mst. Marian's statement in the power‑of‑attorney (Exh. B. Z.), the learned counsel for the appellant contended that it had not been formally proved. It appears from the record of proceedings of the learned District Judge that no objection was taken by the plaintiff to its admission as an additional piece of evidence. On the point of its admissibility in evidence the learned counsel submitted that as a dispute had already arisen about the marital status of Mst. Marian earlier to the date of the execu tion of the power‑of‑attorney, it could not be made use of in proof of her marriage with Mehdi under section 32 (5) of the Evidence Act. It was pointed out that Mst. Marian had made an application against Masta and others under section 107/151 of the Criminal Procedure Code on the 14th of March 1950, alleging that Masta and four others of her collaterals were all anxious that she should marry one of them for the purpose of grabbing her property as they could not otherwise get it under the Shariat Act. She had alleged in the petition that she was in danger of her life at their hands and wanted that they should be bound down in security action. This application was disposed of on the very same day when it was filed but the order of the learned Magistrate has not been placed on the record. Even construing this application most favourably to the appellant it cannot at all be said that it raised any question or dispute with regard to her marriage with Masta or Mehdi Khan. All that was stated in this application (Exh. D. 3) was that the five accused persons named therein including Masta who were the collaterals of her father wanted that she should marry any one of them and were after her blood as she was refusing to accept this proposal. It was not said by Masta or any other person‑in‑opposition to this application that she was in fact married to Masta or any one of them. One of the conditions as embodied in section 32 (5) of the Evidence Act for the admissibility of the statement of a deceased person about his or her relationship by blood or marriage v kith some other person is that the statement must be ante litem motam which involves the idea that the statement must be free from any bias or interestedness to influence any dispute that had already arisen. For the exclusion of statements on the ground of lis mota it is further necessary that a dispute, if any, that existed prior to the making of the statement must be the same as the dispute that has arisen in the suit in which that statement is being put into use. As already stated above, the issue in the present suit was whether Mst. Marian was the wife of Masta or Mehdi Khan which became narrowed down on appeal preferred only by Sarang has to whether or not she was the wife of Mehdi. Mst. Marian's application under section 107 of the Criminal Procedure Code did not raise any dispute at all about her marriage with either Masta or Mehdi. On the other hand the nature of the dispute indicated was that her collaterals were forcing a marriage on her with one of them for the sake of her property and that she was not agreeable to that proposal. The question of her marriage with Mehdi or of the latter's heirship to her property not being the subject‑matter of dispute between the parties prior to the execution of mukhtarnama on the 20th of April 1950, wherein she described herself to be the wife of Mehdi, it is obvious that this statement is not it by the principle of Ifs mota and was rightly accepted by the learned District Judge and the High Court. The question whether Mst. Marian was the lawful wedded wife of Mehdi Khan is essentially one of fact and we are satisfied that in reaching its finding on that fact the learned District Judge did not commit any illegality or irregularity to have merited interference in revision by the High Court and that the decision of the latter does not sustain any criticism. In the result this appeal is dismissed with costs. K.B.A. Appeal dismissed.