' On 14-9-1992 the petitioners filed a suit against the respondents. In the plaint it was stated that the last male owner of the suit-land was Mubarak Ali son of Saadat Ali. According to the petitioners the deceased was a Shia and respondent No.4 is widow, being issueless, was not entitled to inherit the land. They also questioned the alleged Will dated 7-2-1991 made by the said deceased in favour of respondents Nos.1 to 3. They sought a declaration that they being the sole heirs of the deceased are the owners of the entire suit-land. Respondents Nos.1 and 2 asserted that a valid Will was made by the deceased in their favour. Respondent No.4 in her written statement denied the relationship of the petitioners with the deceased and further asserted he was a Sunni. I may further note here that vide inheritance Mutation No.1153 attested on 29-7-1991 1/4th share was mutated in favour of respondent No.4, the widow, 1/3rd in favour of respondents Nos.1 and 2 and the residue in favour of the petitioners. The respondents Nos.1 and 2 proceeded to gift away the said 1/3rd to respondent No.3 vide Mutation 1167 attested on 7-12-1991. Both these mutations were questioned. Issues were framed. Evidence of the parties recorded. Learned trial Court dismissed the suit vide judgment and decree dated 19-1-1995. A learned Addl. District Judge, Summandri, dismissed the first appeal of the petitioners on 9-6-1996.
2. Learned counsel for the petitioners contends that so far as the question of Will is concerned, learned Courts below have acted without lawful authority inasmuch as the original Will itself was never produced and proved in the Court. Regarding respondent No.4 it is argued that evidence on record has been misread and that the deceased had been proved to be a Shia and this being so, the said lady is not entitled to inherit, as she was childless. Learned counsel relies on the case of Syed Muhammad Munir v. ,Abu Nasar, Member (Judl) PLD 1972 SC 346. No one has turned up for respondents Nos.1 to 3. The report is that they have refused to accept service. They are accordingly proceeded against ex parte. Learned counsel for respondent No.4 argues that there is presumption in our country that every Muslim citizen is a Sunni unless proved otherwise and the petitioners have been unable to rebut the presumption
3. I have gone through the copies of the records with the assistance of the learned counsel for the parties. Now I find that respondents Nos.1 to 3 had not denied the relationship of the petitioners with the deceased. Respondent No.4 did not put in appearance but was represented by an attorney Syed Dil Shad Hussain in the witness-box as D.W.2. In his examination in-chief he did not state a word denying the relationship. However, in his cross-examination he stated that the petitioners are not relatives of the deceased. However, he was unable to state the pedigree of Mubarik Ali deceased. On the other hand, Altaf Hussain plaintiff appeared as P. W.1 and stated that the plaintiffs are nephews of Mubarik Ali. The learned Additional District Judge has, therefore, correctly held that the petitioners are heirs of said Mubarik Ali.
4. Now Issue No.9 was framed regarding the Will, in the negative. Altaf Hussain, P.W.1 appeared and stated that no Will was made and Will in favour of respondents Nos.1 to 3 is fictitious. Now I do find that original Will has not been produced on record. Somehow or the other a copy of the Will was tendered by the learned counsel for the petitioners Exh.P.6. Now according to the said copy Mubarik Ali made a Will to the extent of 1/3rd of his land in favour of respondents Nos.1 and 2 on 7-2-1991. It appears to bear the signatures of the Mubarik Ali and is attested by Abdur Rehman son of Ghulam Muhammad, Syed Iqrar Hussain son of Muhammad Hussain, Muhammad Ashraf son of Fazal Mehmood and Mukhtar Ahmad son of Sher Muhammad. On the copy the signatures of scribe Muhammad Shul also appeared. Out of these persons the said. Muhammad Sharif appeared is D.W.2. He stated that he scribed the Will upon the asking of Mubarik Shah and he scribed Will in the presence of Mukhtar son of Sher Muhammad and Muhammad Ashraf son of Fazal Muhammad.
Muhammad Ashraf has died. He stated that he did not sign the Will. He was then confronted with the copy of Exh.P.6. He stated that he had also signed. He does not know as to who purchased the stamp. Mukhtar Ahmad has appeared as D.W.3 to make the similar statement.
5. While Iqbal Hussain one of the alleged legatees is D.W.1.
6. Now there is no explanation whatsoever on the record as to why the original document was not produced. Needless to state that a Will, even if, registered is not admissible in evidence per se, as it is document required by law to be attested. There is thus no evidence of alleged Will.
7. Now a perusal of the impugned judgment would show that the learned Courts below opted to be oblivious of the said fact apparent on the face of record that they had been playing hamlet without hamlet. They have proceeded to uphold a Will, which was never produced before them. It is perhaps for this reason that they have not referred to evidence at all. On the other hand, they took up a portion of statement of P.W.1 and they stated in their judgments that since the deceased Manzoor was present and got the mutation attested, it shall be deemed that he had not objected to the will.
8. I am constrained to note that here again the learned Courts below have deemed it proper not to have even a glance at the mutation and statement of Patwari who brought the same. The copy of Mutation No.1153 is Exh.P.1. The original was brought by Shahid Mehmood, Patwari, P.W.4. Now he has stated that this mutation was got entered by Mst. Hafeezan respondent No.4. He has stated that after entering the mutation he was transferred and Munshi Liaqat Ali took over the charge and there was no mention of any Will. The mutation bears the signatures of the persons present as also their identity cards numbers. Absence of the said Manzoor Hussain, whose presence has been assumed by both the learned Courts below in their respective judgments is rather conspicuous on the face of the said mutation. His name does not figure in any of the orders recorded on the said mutation. The finding on Issue 9 having been given without even reading evidence on record is accordingly reversed.
9. Now so far as the matter of widow, respondent No.4 is concerned. In the first instance I will humbly note that reading of the said judgment being relied upon by the learned counsel for the petitioners itself would show that there is expression of doubt by their Lordships as to the said rule depriving the childless widow from inheriting the estate of her husband against express provisions of Holy Quran. I may also here refer in passing to the recent legislative enactments made by Republic of Iran in the matter of inheritance by female under the Shia Law. Be that as it may, I have.
Read the evidence produced by the parties in the matter of faith of deceased Mubarik Ali. P.Ws.1, 2, 3 and 6 as also P.W.7 have stated that the deceased was a Shia. This is usual evidence given in suchlike cases as to the deceased attending "Majlis" and making contribution. D.W.I. Iqbal Hussain, D.W.2, Muhammad Sharif and D.W.3 Mukhtar Ahmad have expressed ignorance in the matter.
Muhammad Abdullah, D.W.1, Syed Dil Shah Hussain, attorney D.W.2, Syed Sada Hussain D.W.3 and Rehmat Ali D.W.4 have stated that the deceased was Sunni.
10. Having gone through the said evidence I do agree with the learned Courts below that the petitioners have not rebutted the said presumption.
11. For all that has not been discussed above, the civil revision is partly allowed inasmuch as it is held that Will having not been. Produced and proved in accordance with law, respondents Nos.1 and 2 are not entitled to any share in the estate of deceased Mubarik Ali and consequently gift made by them in favour of respondent ' No.3, the son of respondent No.1, is void. Consequently respondent No.4 is entitled to 1/4th share in the estate of Mubarik Ali, while residue 3/4th goes to the petitioners. No order as to costs.