P L D 1961 (W (PLP)

2. After Mst. Alam Khatun's death, Muhammad and the other plaintiffs, who are collaterals of Allah Yar, filed a suit for possession of one‑half of the land left by Allah Yar alleging that Mst. Alam Khatun, being the mother of Allah Yar, had inherited. the land in dispute under custom as a limited owner, that the land being ancestral it could not be alienated by, the limited owner, and, therefore, the gift made by her was against custom and as such was illegal and inoperative. According to the plaintiffs, Muhammad plaintiff No. 1 and Shahamad plaintiff No. 8 were entitled to inherit one‑half of Allah Yar's property and his sister Mst. Sahib .Bibi was entitled to inherit the remaining one‑half under Muhammadan Law. They further alleged that in case plaintiffs No. 2 to 7 and 9 were also found entitled to any share under Muhammadan Law, the same may be awarded to them.

3. Mst. Sahib Bibi defendant No. 1 contested the suit. She denied that Mst. Alam Khatun deceased had inherited the land in dispute as a limited owner. She contended that her mother had inherited the land as full owner and was therefore, competent to make a gift of it her favour. She also con tended that in any case the gift amounted to acceleration of succession as the alone is entitled to inherit the whole of her brother's land according to Shia Law. She also challenged the plaintiffs' right to file the suit.

4. In view of the pleadings of the parties, the following issues were framed :‑ (1) Whether the plaintiffs have locus stand to sue ? (2) Whether the plaintiffs are estopped by their conduct or otherwise from suing ? (3) Whether Allah Ditta, Allah Yar and Mst. Alam Khatun mentioned in paragraph 2 of the plaint were Shia Musalmans ? (4) Whether Mst. Alam Khatun deceased had restricted powers of alienation under law and custom ? (Issue objected to). (5) Relief.

5. On issue. No. 1, the learned , trial Judge held that Muhammad plaintiff No. 1, Shahamad plaintiff No. 8 and defendants No. 2 to 5 were near relatives of Allah Yar and, therefore, had a right to file the suit. Issue No. 2 was decided in favour of the plaintiffs, the learned trial Judge holding that the was no evidence of any conduct on the part of the plaintiffs by reason of which it could be said that they were estopped from bringing the suit. While deciding issue No. 3, the learned trial Judge held that Allah Ditta, Allah Yar and Mst. Alam Khatun were Sunnis by faith and, therefore, they are governed by Hanafi Law. Issue No. 4 was also decided in favour of the plaintill's the learned trial Judge holding that Mst. Alam Khatoon lead inherited the suit land under custom as a limited owner and, therefore, had no power to gift it. After arriving at the above conclusions, the learned trial Judge held that:‑ (i) under Muhammadan Law, one‑sixth of the land in suit would devolve upon the personal heirs Mst. Alam Khatun deceased who, under custom, inherited Allah Yar's land, being his mother, as a limited owner ; (ii) one‑half of the property would be inherited by Mst. Sahib Bibi as full sister of Allah Yar ; and (iii) the remaining 2/6ths would be inherited by Muhammad and Shahamad, plaintiff ‑respondents, as residuaries. In view of the above findings, the learned trial Judge decreed the plaintiffs' suit for possession of 1/3rd of the land in dispute and awarded costs to them proportionately. Mst. Sahib Bibi has come up to this Court in appeal.

6. Learned counsel for the appellant did not challenge the findings of the trial Court on issues No. 1, 2. and

4. He confined his arguments to issue No. 3 and argued that‑the learned trial Judge has erred `in holding that Allah Ditta, Allah Yar and Msc. Alam Khatun were Hanafis. Mst. Sahib Bibi defendant -appellant examined Syed Nawazish Ali Shah, ex‑M. L. A. (D. W. 1), Sultan plaintiff (D. W. 2) and Sarfraz defendant (D. W. 3) at the trial to prove that Allah Ditta's family professed Shia faith. Syed Nawazish Ali Shah stated that he knew Allah Ditta, Allah Yar and Mst. Alam Khatun and that they professed Shia faith. He also stated that Allah Ditta's janaza prayer were said in Shia style by Qazi Ghulam Ali, a Shia Imam. Sultan (D. W. 2) who is one of the plaintiffs, stated that Allah Ditta, Allah Yar and Mst. Alam Khatun were Shias. Sarfraz (D. W. 3), who is (defendant No. 8) also made a similar statement. In his statement befoie the issues, Ziadat, plaintiff No: 9, stated : "I admit that Allah Ditta deceased, his son Allah Yar and Mst. Alam Khatun deceased were Shia Muslims."

7. The majority of Muslims of Pakistan being Sunnis, the presumption is that the parties to a suit or a proceeding are Sunnis unless it be shown that they belong to the Shia sect The following authorities support this view : Safatun v. Balaid Khanum (I L R 30 Cal. 683) and Akbarally Adamji Peerbhoy v. Mahomedally Adamji Peerbhoy (A I R 1932 Bom. 356) In Sardar Bibi v. Muhammad Bakhsh (P L D 1954 Lah. 481) Kaikaus, J., observed "I would agree, therefore, that the Court may presume that a deceased person was a Hanafi till the contrary is proved, and ordinarily it will raise this presumption, and let me hope, as did Tyabji, J., in Akbarally v. Mahomedally (A I R 1932 Bom. 356) that there will be no case so devoid of circum stances from which 'religion of parties may be inferred, that there should be a necessity for the application of the pre sumption even after evidence is led. The presumption however is one of fact and the Court may refuse to give effect to it in the circumstances of a particular case." Since most Sunnis are Hanafis, the presumption is that a Sunni is governed by Hanafi Law. (See Akbarally Adamji Peerbhoy v. Mahomedally Adamji Peerbhoy, referred to above). If a party claims to profess the Shia faith, the onus is on him to prove it like any other fact.

8. We have considered the evidence on the record to determine the faith of Allah Yar deceased. The learned trial Judge has disbelieved the statement of Syed Nawazish Ali Shah D. W. In our opinion, there are no good reasons to do so. He is a disinterested witness and is a respectable person of the village of the parties. In 1954, he was an elected Member of the Provincial Legislative Assembly. In the words of the learned counsel for the respondents, he is a confirmed leader of the Shias in the district. The learned trial Judge did not rely on him as he had tried to bring about a compromise between the parties and he has therefore held him to be an interested person. A person equally interested in both the parties may try to bring about a compromise between them. The evidence of Sultan and Sarfraz cannot also be brushed aside lightly. One of them (Sultan) is a plaintiff, but he has supported the case of the defendant. Similarly Ziadat plaintiff No. 9, in his statement referred to above, also supported the case of the defendant. There is nothing on the record to suggest that the above witnesses have made false statements to help Mst. Sahib. After carefully considering the evidence of the aforesaid persons, we have no hesitation in holding that Allah Ditta, Allah Yar and Mst. Alam Khatun were Shias.

9. In view of the provisions of the Punjab Muslim Personal Law (Shariat) Application Act, 1948, Allah Yar's land held by his mother Mst. Alam Khatun as' a limited estate will now be inherited by those heirs who would have been entitled to inherit it at the time of his death under Muslim Law as followed by the Shia School. He died leaving a mother and a sister. According to the Shia School, his mother, Mst.‑ Alam Khatun, p would have inherited the entire estate of her son as he had died issueless.

10. There are the following three classes of heirs by consan guinity under Shia Law :‑ I. (i) Parents ; (ii) Children and other lineal descendants how‑low‑so ever. II. (i) Grand‑parents, how‑high‑so‑ever (true as well as false) ; (ii) Brothers and sisters and their descendants, how‑low so‑ever. III. (i) Paternal, and (ii) maternal, uncles and aunts, of the deceased, and of his parents and grandparents how‑high‑so‑ever, and their descendants, how‑low‑so‑ever. Of these three classes of heirs, the first excludes the second from inheritance, and the second excludes the third. But the heirs of the two sections of each class succeed together, the nearer in degree in each section excludes the more remote in that section. Under Shia Law, the person who are first entitled to succeed to the estate of a deceased Shia Muslim are the heirs of the first class along with the husband and wife, if any. On List. Alam Khatun's death the whole of her land would devolve upon her daughter, Mst. Sahib Bibi. Thus, the plaintiffs are not entitled to inherit the estate of Allah Yar. Their suit is therefore, liable to be dismissed.

11. For the reasons given above, we accept the appeal, set aside the judgment and decree of the trial Court, and dismiss the plaintiffs' suit in toto. We, however, leave the parties to bear their, own costs.

12. Arguments in this appeal were heard on the 19th of September 1961 and the judgment was reserved. Learned counsel for the parties argued as if the estate of Allah Ditta had to be inherited by his heirs. The mistake was probably due to the legal position of a mother under custom. According to custom, a mother succeeds as a widow of her deceased husband and not as mother of her deceased son: Shiromani Gurdawara Parbandhak Committee v. Harcharn Singh (A I R 1934 Lah. 1). The mistake was detected when the judgment was being dictated. On detecting the mistake we ordered a re‑hearing of the appeal on the limited point: "Who are the heirs of Allah Yar under Shia Law and what is the extent of the share of each heir?" On the 22nd of September 1961, the date fixed for the re‑hearing of the appeal, Mr. A. R. Sheikh learned counsel for the respondent, put in an application for permission to lead further evidence on issue No. 3 before us or before the trial Court. The application is a belated one. Learned counsel was unable to refer to any documentary evidence which he proposes to tender. On the 20th of July 1954, tile learned trial Judge adjourned the case to 23rd October 1954, ordering the parties to summon their witness whom they pro posed to examine. On the 23rd of October 1954, the parties had no witness present. In fact, the parties had not summoned any witnesses for this date. Both parties prayed for an adjournment on the ground that the parties were negotiating to compromise. The learned trial Judge granted the prayer and adjourned the case to the 19th of November 1954, for recording evidence or filing the compromise deed if the compromise was effected between the parties. When the case was taken up on the 19th of November 1954, the learned counsel for both parties appeared in Court and stated that the parties had not compromised and that the evidence had not been summoned in the hope that a compromise will be arrived at. The learned Judge adjourned the case for one hour and directed the parties to lead their evidence. The case was taken up after one hour and the learned Judge recorded the statements of the witnesses of the parties. It is complained that the trial Judge should have granted a further adjournment to enable the parties to summon their witnesses, but in the circum stances of the case we think that the learned trial Judge rightly refused to grant this prayer. In this order, dated the 23rd of October 1954, he had made it clear that if no compromise was arrived at between the parties they shall lead their evidence. The parties were, therefore, in default in not summoning their wit nesses in the hope that a compromise will be arrived at. In the course of arguments before us on the 19th of Sep tember 1961, learned counsel for the respondent did not ask for permission to lead additional evidence. As already staled, this prayer was made by him for first time on the 22nd, the date fixed by us for re‑hearing of the appeal on the point stated above. If the respondent had referred to any documentary evidence which he could not produce in the trial Court, we might have accepted the prayer. We are not prepared to exercise this discretion to allow him to lead oral evidence at this stage. For the reasons given above, we reject the application. Application rejected.