' MUHAMMAD SAIR ALI, J.---This revision petition is against the judgment and decree dated 14-7- 1992 of the learned Additional District Judge, Sheikhupura dismissing the appeal of the petitioners and the judgment and decree dated 7-12-1987 of the learned Civil Judge, Sheikhupura dismissing the suit for the administration of the estate of deceased Muhammad Nasarullah Khan Khalil.
2. The original plaintiff Muhammad Aslam Khan Khalil (since deceased and now represented through the present petitioners) on 13-12-1981 filed suit seeking administration of the estate of his brother i.e. Muhammad Nasarullah Khan Khalil deceased pleading that:-
(i) After migration to Pakistan, Muhammad Nasarullah Khan Khalil deceased was allotted against his claims the following properties: -
(1) Agricultural land measuring 759 Kanals and 8 Marlas in Mauza Kot Sondha Tehsil and District Sheikhupura.
(2) Bungalow No.144, Upper Mall, Lahore.
(ii) Nasarullah Khan died issueless from his marriage to respondent No.1 Mst Sultana Begum i.e. Defendant No.1 in the suit.
(iii) Respondent No.2 Mst. Neelofar Akhtar was brought up by the deceased though she was the daughter of a maid-servant Mst. Fatima and was as such not an heir or daughter of deceased Nasarullah Khan Khalil.
(iv) To deprive the plaintiff as collateral of his deceased brother from the inheritance of the deceased under a conspiracy hatched by respondent No.1:--
(a) Mutation No :231 was incorporated on 9-7-1974 on the basis of an oral gift of the agricultural land in favour of Mst. Neelofar and Mst. Sultana Begum to the extent of 3/4th and 1/4th respectively made by said Nasarullah Khan deceased during his lifetime. And that after the death of his brother Nasarullah Khan, this mutation came to the knowledge of the plaintiff who challenged the same in the Revenue hierarchy but was directed to seek resolution of title from the Civil Court.
(b) Bungalow No.144, Upper Mall, Lahore was shown to have been gifted to Mst. Neelofar and her son (respondents Nos.2 and 3) by late Nasarullah Khan during his lifetime and was incorporated in the record of Excise and Taxation Department.
(c) Nasarullah Khan deceased was shown to have adopted "Shia" faith.
3. The respondents as the defendants filed contesting written statement claiming ownership of the suit properties on the basis of the transfers by Nasarullah Khan deceased through gifts during his lifetime and thus leaving no estate to be administered. Further that the deceased Nasarullah Khan had converted to the "Shia" faith leaving two legal heirs only i.e. Mst. Sultana Begum as widow and Neelofar as his daughter, denial of whose status as daughter of the deceased was pleaded to be a factual and legal falsehood.
4. Issues were framed by the learned trial Court and evidence of the parties was recorded.
5. The suit was dismissed vide judgment and decree dated 7-12-1987 by the learned Civil Judge.
The appeal filed by the petitioners was also dismissed vide judgment and decree dated 14-7-1992 of the learned First Appellate Court, hence the present civil revision.
6. The learned counsel of the petitioners surveyed the pleadings of the parties and read through the evidence to contend that:--
(i) The learned Courts below misread the evidence to dismiss the suit and the appeal.
(ii) Nasarullah Khan deceased never converted to the Shia faith and evidence on record did not prove the adoption of Shia faith by Nasarullah Khan deceased.
(iii) The suit properties were never gifted by the deceased to the respondents Nos.2, 3 and the factum of gift was not proved by the defendant/respondents through any cogent and independent evidence.
(iv) The statement of the witnesses (except deposition of P.W.10) proved that Mst. Neelofar respondent No.2 was not the daughter of the deceased from Mst. Sultana Begum and that she was the daughter of Mst. Fatima, the maidservant of the deceased and was brought up by the deceased.
7. The learned counsel of the respondents contrarily supported the impugned judgments and decrees and urged that the findings of fact recorded by the learned Courts below could not be interfered with by a revisional Court in absence of compelling reasons thereto.
8. Heard. Record examined.
9. The entire controversy in the suit between the parties essentially involved the following three litigated questions of fact and issues as to the:--
(i) Respondent No.2's status as the daughter of the deceased Nasarullah Khan Khalil.
(ii) Veracity of gifts of agricultural land and the suit house by the deceased respectively in favour of respondents Nos.1 to 3; and
(iii) Conversion of deceased to the `Shia' faith.
10. All the above questions were concurrently adjudged by the learned subordinate Court in favour of the respondents. Respondents No.2 i.e. Mst. Neelofar was pronounced to be the daughter of deceased from respondent No. 1 . The gifts were held to have been validly made and duly given effect to by the deceased during his lifetime in favour of the beneficiaries respondents Nos. 1 to 3.
And the deceased was also declared to have converted to 'Shia' faith much before his death. The learned subordinate Courts thus ruled that there was no estate to be administered and further that the predecessor-in-interest of the petitioners was not the legal heir of the deceased as his brother under the 'Fiqah Jafferia' and thus lacked the locus standi to file the suit to claim a share from the estate (if any) of the deceased in presence of his daughter i.e. Respondent No.2.
11. The petitioners and their learned counsel sought re-evaluation of the evidence from this Court in order to form a fresh opinion different from the consensus opinion of the learned Courts below per the impugned judgments and decrees. It is well-settled that re-exercise in opinion forming as against the concurrent findings of fact of the learned subordinate Courts, cannot be ventured by a revisional Court under Section 115 of the Civil Procedure Code. The revisional powers could only be exercised where the subordinate Courts appear to have misassumed jurisdiction or failed to exercise or illegally exercised jurisdiction vesting in them or to have committed material irregularity thereof including disregarding or misreading the evidence on record.
12. The learned counsel for the petitioners through his detailed submissions endeavoured to canvass misreading and misappreciation of evidence by the learned subordinate Courts as the grounds for seeking a revision from this Court. On the status of respondent No.2 as daughter of the deceased the learned counsel for the petitioner referred to the statement of ''Nikah Khawan' i.e. D.W.2 to contend that his evidence was ignored to the extent that he deposed that he performed 'Nikah' of the deceased's two daughters i.e. Respondent No.2 and another Tahira. The learned counsel thus inferred that Tahira being admittedly the daughter of maidservant Mst. Fatima, respondent No.2 was also to be presumed as daughter of the maid-servant. Further contended that D.W.1 was not present at the time of the birth of Mst. Neelofar though he had stated Neelofar to be the daughter of the deceased. Similarly though D.W.2's wife was present at the time of birth of Mst. Neelofar yet D.W.2 himself was not present, therefore, he could not claim personal knowledge thereto. Also that respondent No.1 appearing as D.W.14 though clearly and categorically stated that she gave birth to respondent No.2 from the marriage with deceased but failed to produce her brother and other relatives. To corroborate her statement. Further contended that the evidence presented by the respondents was "shaken and not straightforward hence not re-able". Also relied upon the purported ignorance of the witnesses of the respondents as to the presence of the maid- servant Mst. Fatima in the house and her other daughter and son who were also allegedly brought up by the deceased along with respondent No.2. Also that Neelofar's birth certificate (Exh.D.W.15/1), memo. Of Post Office (Exh.D-8), School Certificates (Exh.D-9 to Exh. D-11), Domicile (Exh. D-15) and Nikahnama (Exh.D-16) differ on the date of birth of respondent No.2. Wherefor respondent No.2 could not be considered to have been born to the deceased from respondent No.1 and that the best evidence of Mst. Fatima etc. Was withheld by the respondents.
' On the issue of 'Tamliks' the learned counsel for the petitioners tried to build a case on purported vagueness of depositions of donees and also that the gifts were not made in presence of respectables who did not identify the donees to have accepted the gifts. And that the tenancy agreements, the Revenue Record and the Excise record regarding the entries of agricultural land and the Lahore Bungalow contained unreliable entries.
' The learned counsel also pointed out some alleged discrepancies in the statements of D. Ws.
Regarding conversion of the deceased to 'Shia' faith to contend that declaration of the deceased in the Shia Magazine 'Piyam-e-Amal' and news of his death and 'Chehlum' therein were not adequate. And further that the learned Courts below did not attend to the cross-examination of D.W.3 who performed funeral and 'Ghusal K.Afan' of the deceased in accordance with 'Shia' faith.
Also that D.W.5 as Secretary of Imamia Mission, a 'Shia' organization, though deposed as to the original handwritten text of the declaration by the deceased himself regarding his conversion yet was unable to explain certain cuttings and over-writings therein. Further that 'Shia Kalma was not recited by the deceased in presence of a 'Mujtahid' as was referred to by D.W.6 in his deposition.
13. The above submissions of the learned counsel for the petitioners in my opinion, are not substantial reasons or material enough to earn interference in the concurrent findings of fact rendered by the learned subordinate Courts on the basis of due and proper evaluation and appreciation of evidence. The learned Courts below thoroughly discussed, dealt with and analysed the evidence of the parties and then formed their well-reasoned opinions on the litigated questions of fact against the petitioners, well-reasoned conclusions of the learned subordinate Courts cannot be superseded by this Court even if another view was deducible from evidence or a third opinion of fact was inferable from the record. The learned Courts below upon threadbare analysis of evidence took account of the contending pleas of the parties and preferred to concurrently adopt the same opinion upon due consideration of each and every piece of evidence. The oral as well as the documentary evidence was logically and consistently deciphered and reasoned out for the impugned opinions. Alleged minor infractions purportedly referred to by the petitioners are no grounds for interference in the conclusions drawn from cumulative and comprehensive consideration of the case evidence by the learned subordinate Courts.
14. The petitioners themselves admitted in their plaint and the learned counsel for the petitioners also stated that Mst. Neelofar i.e. Respondent No.2 throughout lived with the deceased and respondent No.1 and was brought up as a daughter by them. The mainstay of the case of the petitioner was that a maid-servant Mst. Fatima also lived in the same house along with two other children who were also brought up by deceased Nasarullah Khan Khalil in his house along with respondent No.2. And that respondent No.2 was thus presumed in law to be the third child of the said maid-servant and not daughter of the deceased. An issue as to the status of respondent No.2 was framed by the learned trial Judge. Onus to prove the same was placed upon the respondents/ defendants. To discharge the onus the respondents presented elaborate evidence. Adequate to refer to the deposition of the respondent No.1 i.e. Mst. Sultana Begum as D.W.14. She clearly, unshakenably, and reliably stated that Mst. Neelofar was born to her from her marriage with the deceased. And that she was the real mother of respondent No.2 who was not the offspring of maidservant Mst. Fatima. This statement was credibly supported by the depositions of D. Ws.
Produced by the respondents and validly relied by the learned Courts below. In all the documentary evidence; the birth certificate, the memo. Of post office, school certificates, domicile certificate and the 'Nikahnama', the deceased Nasarullah Khan Khalil was entered as the father of respondent No.2. The deceased throughout bore the expenses on the educational career of the respondent No.2, of her marriage and settlement etc. Etc. The respondents thus adequately met the burden of proof and fulfilled their obligation. The burden thus shifted upon the petitioners. They were under the heavy duty to disprove respondent No.2 to be the daughter of the deceased. The learned Courts below recorded that the witnesses presented by the petitioners had little to state on this subject and were unreliable, inconsistent and untrustworthy. It was also recorded by the said Courts that witnesses of the petitioners/plaintiffs also admitted respondent No.2 to have lived with the deceased and respondent No.1 since her birth.
In my considered opinion, the presumptions under the principles of law and Sharia favour the validity and legality of parenthood of respondent No.2 as claimed and deposed by her. These legal presumptions cannot be lightly misplaced in the absence of compelling reasons and irrebutably strong evidence. No such reasons exist and no credible evidence was produced by the petitioners/plaintiffs on the record.
15. The learned counsel for the petitioners made an intriguing argument that the maid-servant Mst.
Fatima was not produced by the respondents as a witness wherefor the parenthood of respondent No.2 fell in doubt. There could not be a more illegal, immoral and untenable argument. Denial of parenthood of respondent No.2 was set up as their case by the proceedings and they pleaded and deposed her to be the daughter of maidservant Mst. Fatima. It was thus their duty to produce the said maid-servant Mst. Fatima or her other children to prove their case. Failure of the petitioners to produce, summon or to procure the attendance of Mst. Fatima or any of her children as witnesses leads to an obvious adverse presumption against the petitioners under the rule of best evidence.
The presumption would be that had the petitioners/plaintiffs produced Mst. Fatima or her children as witnesses, they might have deposed against the petitioners wherefor they preferred not to produce them or procure their presence as witness in the Court even through the process of Court.
The learned First Appellate Court thus validly observed that:- "There is overwhelming evidence on record that Muhammad Nasarullah Khan deceased always indicated that Mst. Neelofar respondent No.2 is his daughter. The birth certificate already mentioned above issued from India indicated that a girl was born to Mrs. Khalid in India. If she was not respondent No.2 (Mst. Neelofar) then who else she was. Mst. Tahira was after all not the daughter of Mr. Nasarullah Khan Khalil nor she has come forward with any such claim. In the school record, in the certificates/degrees, in the Bank Accounts and in Nikahnama referred to above Mst.
Neelofar was shown as daughter of Muhammad Nasarullah Khan Khalil and admittedly this all happened in the lifetime of the deceased. The widow of the deceased Mst. Sultana Begum claims that Mst. Neelofar is her daughter. Mst. Fatima has not come forward to claim that actually Mst.
Neelofar is her daughter. There is more than sufficient evidence on record to prove that respondent No.2 Mst. Neelofar is the daughter of Muhammad Nasarullah Khan Khalil deceased."
16. It is noteworthy that the deceased Nasarullah Khan Khalil during his lifetime made, executed and effected the 'Tamliks' of his agricultural land as well as urban property respectively in favour of respondents Nos. 1 to 3. Hiba Mutation No.211 was incorporated on 29-5-1974 (Exh.P.4). Donor himself obtained and effected necessary changes as to the ownership of gifted agricultural land in "the Khasra Girdawaris and the Register Haqdaran Zamin in favour of the donees. Similarly gift in favour of respondents Nos.2 and 3 of 144-Upper Mall, Lahore was made by the deceased in 1973-74.
And the deceased applied for, pursued and got necessary changes of entries in the Excise and Taxation Department record as well.
' The deceased in his lifetime did not challenge any of the entries of incorporation of gifts in the Revenue Record qua the agricultural land and in the Excise and Taxation record regarding the Upper Mall, Lahore property.
' The piedecessor-in-interest of the petitioners challenged these gifts with a motive to claim the alleged share of inheritance from the estate of his deceased brother Nasarullah Khan Khalil purportedly as one of his legal heirs. The learned subordinate Courts on the basis of evidence held the 'Hibas' to have been validly made as such the petitioners could not have been given a decree for administration as from the estate of the deceased there was nothing left to be administered.
The petitioners endeavoured to support their contentions from the minor and ineffective discrepancies in the depositions of the witnesses. Such minor discrepancies and variations in the statements were inconsequential and inadequate to adversely bear upon the conclusions drawn by the learned Courts below on the basis of evidence on record. The evidence on record neither has been misread nor misconstrued by the learned subordinate Courts. No justification or reason exists to call for a revisional intervention.
17. After adjudging the above referred gifts to have been validly made by the deceased in favour of respondents Nos.1 to 3 and on confirmation that no estate was left by the deceased for administration, the predecessor-in-interest of the petitioners and the petitioners ceased to have an enforceable cause of action against the respondents as legal heir(s) of the deceased. For the same reasons, the conversion of the deceased as 'Shia' also ceased to be of any practical relevance for the purposes of the suit. It became only an academic question. Adequate to observe that the petitiOners were unable to show that the learned subordinate Courts committed any material irregularity or material omission in the evaluation and appreciation of evidence of the parties on this issue. It was concurrently inferred from.The evidence on record that the deceased had in the year 1974 converted to 'Shia' faith and had made a pronouncement thereto. And that the deceased personally got the same published in a Shia magazine "Piya-eAmal". The learned Courts below referred to and thoroughly discussed the depositions of various witnesses including Shia Aalame-Din, Imam leading the funeral rites, prayers and burial of the deceased in accordance with ' Fiqah-e-Jafferia ' . The learned counsel for the petitioners stated that both the Courts below overlooked that D.W.6 showed his ignorance of recitation of 'Shia Kalma' before a 'Mujtahid' by the deceased. Intriguingly neither any treatise or standard works on 'Fiqah-e-Jafferia' nor any law or precedent was presented by the learned counsel for the petitioners to prove the purported special 'Shia Kalma' and requirement of its recitation before a 'Mujtahid' . In fact none of the standard treatise on Muhammadan Law or the 'Fiqah-e-Jafferia' even refer to any "special" 'Shia Kalma' or 'requirement of its recitation before any 'Mujtahid' for conversion. Respondents through evidence also proved that the deceased had become a practising 'Shia Muslim' in his lifetime. As such the learned First Appellate Court validly observed that:-- "36. It is established on record that in the lifetime of the deceased a declaration was got published in the journal Piyam-e-Aural to the effect that the deceased was a Shia. The fact remains that the deceased did not contradict the same. As such, after his lifetime i.e. After his death nobody else can say that the deceased had not jointed the Shia Sect in the later years of his life. It is immaterial if the rest of his relatives including his wife and daughter belong to Sunni Sect. The learned trial Court had thus rightly decided Issue No.8 and the finding of the learned trial Court on the said issue is accordingly affirmed."
18. In view of what has been discussed above no ground exists to deserve revisional interference in the impugned judgments and decrees of the learned subordinate Courts. This revision is, therefore, dismissed with no orders as to the costs.