1. ' CHAUDHURY RAHIM DAD KHAN, C. J.-This appeal, by leave, arises out of a declaratory suit filed by Imam Gul, appellant-plaintiff, against Mst. Begum Ji and others. The only contesting defendant is Mst. Begum Ji while others are pro forma defendants. The dispute relates to the right of inheritance to the property left by Khan Gul deceased, a real brother of Imam Gut, who died issueless and intestate. On the death of Khan Gul his landed property was mutated, on 27-5-1966, in favour of Imam Gul (plaintiff), brother of the deceased and Mst. Begum Ji (defendant) as widow, according to their respective shares under Muslim Law of Inheritance vide Mutation No, 813. Imam Gul, plaintiff-appellant, instituted a declaratory suit in the Court of the Sub-Judge, Kundal Shahi, on 28- 3-68 claiming that he was entitled to inherit the entire estate left by Khan Gul because Mst. Begum Ji (respondent) was divorced by Khan Gul during his lifetime ; and that mutation attested in the Revenue Papers to the extent of 1/4th share of the landed property, left by Khan Gul, in favour of Mst. Begum Ji, was not binding on him-the sole heir of the deceased under Muslim Law. It was asserted that she was divorced, vide divorce deed executed by Khan Gul. But during the trial no divorce deed was produced before the Court and only oral evidence was examined in support of the plea of divorce. The trial Court on the basis of oral evidence came to the conclusion that Mst.
2. Begum Ji was divorced by her husband Khan Gul during his lifetime as asserted by the plaintiff and, therefore, she was not entitled to get a share in the inheritance on the death of her first husband and consequently the suit of the plaintiff was decreed in his favour. On appeal by the defendant before the District Judge, Muzaffarabad, the finding of the trial Court on the issue of divorce was set aside for the reason that there were discrepancies in their evidence; and that necessary ground for producing secondary evidence was not made out. Consequently; the suit of the plaintiff was dismissed and decree was reversed. On second appeal by the plaintiff the High Court maintained the finding of the 1st appellate Court.
2. The suit was decreed by the trial Court on 28-9-74 and an appeal before the District Judge, Muzaffarabad, was filed on 10-11-1974. Limitation prescribed under Art. 152, Limitation Act, for first appeal is 30 days. It is urged on behalf of the appellant-plaintiff that though an objection was raised before the 1st Appellate Court as well as before the High Court to the effect that the appeal before the 1st. Appellate Court was time-barred, having been instituted after the expiry of the period of limitation prescribed for the 1st appellate Court, yet no decision was given either by the 1st Appellate Court or the High Court on this point. Leave to appeal was granted to consider whether the Ist appeal before the District Judge, Muzaffarabad, was time-barred and, if so, what is the effect of the omission on the part of the 1st Appellate Court to decide the objection specifically raised by the petitioner. When the leave to appeal was granted there was no record before us; now that the record from the Courts below has been received and when the matter came up for examination it was found that Mst. Begum Ji, defendant-respondent, had herself stated that the memorandum of appeal was being filed without a copy of the decree because the same had not been prepared and would be placed on record as and when the copy is issued. She, however, placed on record a copy of the judgment alongwith the memorandum of appeal. From the endorsement on this copy it appears that application for the copy was filed on 28-9-74, the same day on which the judgment was pronounced; however, copy was supplied to her on 9-11-1974. The copy of the decree was placed on record on 17-11-1974. The endorsement shows that the application for obtaining a copy of the decree was submitted on 11-11-74 and the same was supplied on 12-11-74. There is no record of any objection by the respondent on the question of limitation and there is no mention of such objection in the Judgment of the District Judge. However, in grounds of appeal before the High Court it was specifically stated that the appeal before the District Judge (the 1st Appellate Court) was time-barred for the reason that the copy of the decree was filed after lapse of limitation; and that an objection to that effect was taken during the course of arguments before the 1st Appellate Court; and that the 1st Appellate Court omitted to decide the objection though lengthy arguments were addressed on the point. The High Court too without referring to this objection dismissed the second appeal on merits.
3. Kb. Muhammad Saeed, Advocate for the appellant, made the following submissions in support of appeal-
(a) that there was no valid appeal before the 1st Appellate Court the right of appeal is against the decree and not against the judgment and as such, according to him, an appeal that is filed without copy of a decree should not be treated as an appeal against the decree; and
(b) that the copy of the decree that was filed on 17-10-74 was placed on record after lapse of limitation and an application for obtaining the same was also submitted before the trial Court after expiry of the period of 30 days prescribed for appeal. The appeal before the District Judge being thus time-barred was liable to be rejected.
4. There is no cavil about the principle that under section 96 of the Civil Procedure Code a party adversely affected by a decree has vested right of an appeal. In other words "an appeal lies only from a decree and not from a finding in judgment, except when the judgment itself has the force of a decree". An application to an Appellate Court for setting aside of reversing a decision of a subordinate Court is an appeal within the ordinary connotation of the term. An irregular or incompetent appeal is 'nonetheless' an appeal for the purpose of limitation. However, an appeal to be regular and competent. Must conform to the provisions of Order XLI, rule I, C. P. C. Which reads: "(1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded.
(2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and such grounds shall be numbered consecutively."
3. ' The High Court, under section 122, C. P. C., however, has power to annul, alter or add to the rule made in the Civil Procedure Code but to our knowledge no such alteration, addition or amendment has so far been made in Order XLI, rule 1 by the High Court of Azad Jammu & Kashmir. In this case, it is therefore necessary for the appellant to annex both the documents unless a copy of a judgment is dispensed with by the Appellate Court. Consequently an appeal, that is filed with a copy of judgment alone A and without a copy of the decree; cannot be deemed to have been valid presented and should be rejected if copy is not filed within the period of limitation prescribed for such appeal.
4. ' At one time during the course of arguments it was urged on behalf of the respondent that delay, if any, in presentation of appeal was impliedly condoned by the is Appellate Court, when in spite of objection raised by the plaintiff-respondent the appeal was decided on merits, in support of which contention, 1970 SCMR 170, was cited, but the question of implied condonation in the instant case does not at all arise. On proper examination of the matter and correct calculation the question of limitation would not arise in this case because the appeal, after excluding the period of limitation spent in obtaining the copy of the judgment and decree, was filed well within the time and as such the plea of limitation, raised by the learned Advocate for the appellant, is wholly misconceived.
5. Section 12 of the Limitation Act provides inter alia as follows: "(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.
(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall be excluded."
5. ' Under section 12, Limitation Act, in computing the period of limitation prescribed for any appeal or application, the time requisite for obtaining both-a copy of the judgment as well as a copy of the decree 'shall be excluded' except where these two periods overlap each other. It is, therefore, open to the appellant :o apply for copy of the judgment and the decree on different dates. This is, of course, subject to the obvious qualification that in a case where the B periods overlap one of the overlapping period should be left out of the count because same period cannot be deducted twice over. In Selamban ("betty v. Ramanadhan (1), "a decree was passed on the 12th of October. An application for a copy of the decree alone was made on the 18th of October, and the copy was obtained on the 19th December. Subsequently, i. e. On the 22nd December, an application for a copy of the judgment was made and the copy was obtained on the 16th of February, following It was held that the period occupied for obtaining both the copies should be excluded, i. e. The period between the 18th October, and the 19th December and that between the 22nd December and the 16th February. The fact that this would enable a party to apply for the copy of one record and then, after obtaining it to apply for a copy of the other record and thus extend the time while if he had applied for both the copies together, the time requisite would be less, cannot prevail against the express right conferred by this section". In Jadu Nandan Sahay v. Hanuman Sahay (2), where precisely the same question came up for consideration of the learned Judges, it was observed that "there is, however, no obligation imposed upon an appellant to file applications for copies of judgment and decree at one and the same time and therefore he can make his applications for copies at different times. It seems to be settled by authorities that the applications made at different times will entitle the appellant to take advantage of the time occupied in obtaining copies of both judgment and decree. Now, if the time requisite for obtaining copy of one of these documents extends the time of limitation, then the application made for obtaining copy of the other document after the time originally fixed for filing an appeal under she law of limitation but before the extension of time allowed by reason of the time required for obtaining copy of one of these documents expires, will entitle the appellant to (1) 4 I C 301 33 Mad. 256 (2) A 1 R 1924 Pat. 113 extension of time required for obtaining copy of the other document. The Madras and the Bombay High Courts, so far as the rulings have been placed before us, appear to be unanimous upon the point vide Silamban Chetty v. Rama Nathan Chetty (1), Pandharinath v. Shankar Narayan (2), and Raman Chetty v. Kadirvalu (3). The Oudh Court in Din Dayal v. Rameshar (4), seems also to be of the same view". There was of course, a different view taken by the Punjab High Court in Sher Singh v. Prem Raj (5), but the same High Court changed its view in Ali Muhammad v. Nathu ( ), which has been confirmed in recent authority i. e., Abdul Ghafoor and another v. Sher Ahmed and others (7), to which we will be referring shortly.
6. ' In Ramchandrarao and others v. Mayaram (8), the question that came up for consideration of that Court was whether it was incumbent on the appellant to move simultaneously applications for copy of a judgment and decree or he could move separate application. It was observed at page 132 that in the present case only one application, viz. That for obtaining copy of the judgment was filed within the period of limitation, so, even on the authority of the aforesaid decisions and the provisions of section 12(3), Limitation Act, the non-applicant's appeal could be treated as within time, without the necessity of excluding the period required for obtaining the copy of the decree. If the point were necessary for me to decide, I would hold that the non-appellant was entitled to exclude, under section 12(2) of the Act, even the period required for obtaining copy of the decree provided he has applied for the copy of the decree before the expiry of the extension of time allowed by section 12(3), as time required for obtaining copy of the judgment".
7. ' A more clear view is expressed in Jijibhoy N. Surty v. T. S. Chettyar (9), where after analysing the entire case-law on the point it was observed, at pages 105 and 105 of the report that "Besides these authorities there are, in the arguments in the cases cited, references made from time to time to unreported cases, and their Lordships have also investigated some authorities laid before them which, however, have no real bearing. The result, as has been already stated, is that the preponderance of practice is in favour of the appellant. Their Lordships have to return to the grammatical construction of the Act, and they find plain words directing that the time requisite for obtaining the two documents is to be excluded from computation. Section 12 makes no reference to the Code of Civil Procedure or to any other Act. It does not say why the time is to be excluded, but simply enacts it as a positive direction. If, indeed, it could be shown that in some particular class of cases there could be no object in obtaining the two documents an argument might be offered that no time could be requisite for obtaining something not requisite. But this is not so. The decree may be complicated, and it may be open to draw it up in two different ways and the practitioner may well want to see its form before attacking it by his memorandum of appeal. As to the judgment: no doubt, when the case does not come from upcountry, the practitioner will have heard it delivered, but he may not carry all the points of a long judgment in his memory, and as Sir John Edge says, the Legislature may not wish him to hurry to make a decision till he has well considered it. There is force no {{TABLE}}
(1) 33 Mad. 256 (2) 25 Born. 586
(3) 8 M L J 148 (4) 28 I C 366
(5) 100 PR 1918=185 P W R 1918=48 I C 31
(6) 163 P R 1919=54 I C 879 (7) PLD 1961 Lah. 366
(8) AIR 1928 Nag. 131 (9) AIR 1928 P C 103 {{TABLE}} ' doubt in the observation made in the High Court that the elimination of the requirement to obtain copies of the documents was part of an effort to combat the dilatoriness of some Indian practitioners; and their Lordships would be unwilling to discourage any such effort. All, however, that can be done, as the law stands, is for the High Courts to be strict in applying the provision of exclusion. The word 'requisite' is a strong word; it may be regarded as meaning something more than the word 'required'. It means `properly required', and it throws upon the pleader or counsel for the appellant the necessity of showing that no part of the delay beyond the prescribed period is due to his default. But for that time which is taken up by his opponent in drawing up the decree or by the officials of the Court in preparing and issuing the two documents, he is not responsible".
8. ' In Barada Prasanna Lod and others v. Kubbad Mia (0, a Full Bench of Dacca High Court after examining the Case-Law on the point overruled, PLD 1952 Dacca 399 and 1952 D L R 509. A similar question was involved in that case. The trial Court, in that case, 'delivered the judgment on the 30th of April, 1956, and the decree was signed on the 11th of June, 1956, An application for copy of the judgment was made on the 18th of May, 1956, and another application for a copy of the decree was made on the 21st of May, 1956. The copy of the judgment was ready on the 26th of May, 1956, and the copy of the decree was ready for delivery on the 13th of June, 1956. The appeal was filed in the Court of the District Judge on the 13th of July, 1956. The day on which the judgment was pronounced (30th of April, 1956) is to be excluded in the first instance under section 12 of the Limitation Act. Then a period of forty-four days, i. e. Forty-two days from the 1st of May, 1956, to the llth of June, 1956, when the decree was signed, plus a further period of two days up to the 13th of June, 1956, when the copy of the decree was ready for delivery, is to be added to the period of thirty days prescribed under Article 152 of the First Schedule to the Limitation Act. Thus the appellant will get a total period of seventy-four days only. The time taken for the copy of the judgment (18th of May, 1956, to the 26th of May, 1956) and part of the time taken for the copy of the decree (21st of May, 1956, to the 11th of June, 1956) cannot be allowed twice over as these overlapping 'periods are already included within the period from the 1st of May, 1956, to the 13th of June, 1956, which is the time requisite for obtaining the copy of the decree. Taking seventy-four days as the period of limitation, after computation in terms of Article 152 read with section 12, the last date for filing the appeal before the District Judge was the 13th of July, 1956. The appeal has been filed on this date and must, accordingly, be held to be in time."
9. ' Precisely identical question came up for examination in Abdul Ghafoor and another v. Sher Ahmed and others (2). It is a Division Bench case in which main judgment was written by Mr. Justice Sajjad Ahmed, J. But Mr. Justice M. R. Kayani, C. J. Also made a separate note on the question of limitation.
10. Sajjad Ahmed, J. Examining the case-law on the subject observed at page 368 as under:- "Under these provisions an appellant can, for purposes of his appeal, take advantage, as a matter of right, of the time spent in obtaining the copies of the judgment and the decree passed against him. It is open to him to make separate applications to get these copies on different dates. This is, however, subject to the rule that while the appellant (1) PLD 1962 Dacca 381 (2) PLD 1961 Lah. 366 can wait to apply for the copies till last date of limitation, he is not permitted to do so after it has expired. If the time prescribed for any action has already run out, no subsequent action will bring it back to life. The legal requirement, therefore is that to interrupt the running of the time, action must be taken before the prescribed time has run out. The question, however, remains. When does the prescribed time end? Does it end with the expiry of the original period or can it have an extended life by operation of any of the provisions of section 12 of the Limitation Act. In our view, section 12, aforesaid gives the right to an appellant to exclude the requisite period occupied for obtaining a copy of the decree under subsection (2), and for obtaining a copy of the judgment under subsection (3), and the time is extended when either of these steps is taken. If one step is taken, the time is extended for the taking of the other step also. In other words if the time requisite for obtaining a copy of the judgment extends the time of limitation, then the application made for obtaining a copy of the decree, after the time fixed for filing an appeal, but before the extension of time allowed by reason of time required for obtaining a copy of the judgment expires, will entitle the appellants to further extension of time for obtaining the copy of the decree. Where some portions of these two periods overlap each other, the overlapping period will be excluded only once."
11. ' Justice M. R. Kayani in para. 2, at page 370 of his judgment detailed the facts of the case as follows: "The trial Judge pronounced judgment on the 13th of March, 1954, and the one month's limitation would normally expire on the 12th April, 1954. An application for obtaining a copy of the judgment was made on the 16th of March, and delivered to the applicant on the 24th of March, thus giving nine days by which he could extend limitation under section 12, subsection (3), Limitation Act. In other words, an appeal could have been filed by the 21st of April, 1954. Next, an application was made for the copy of the decree-sheet on the 15th of April, 1954,, that is to say, after the expiry of one month's limitation but before the expiry of the added period of nine days. The appeal itself was filed on the 22nd of April, 1954 and it would be within time if the second period which was taken in obtaining a copy of the decree were excluded. This exclusion is permissible under subsection (2) of section 12, Limitation Act."
12. ' In para. 6 the learned Chief Justice observed:- "Since section 12 gives them a separate right in respect of each copy-, to exclude the time taken in its preparation we would be reluctant to interpret the law relating to extension so as to compel a person to apply for both copies together. In some cases it would be impracticable, because the decree itself may not be prepared and signed until a long time after the judgment has been pronounced. If we require a person to apply for a copy of the decree, even though to his knowledge the decree does not exist, it would amount to carrying formality too far."
13. ' The learned Advocate for the appellant, during arguments, referred to Mst. Hoshnak Bibi v. Khan Muhammad Ismail Khan and others (1). It was observed in the aforementioned case that "without minimizing the Court's duty, premium cannot be placed on the inactivity and non-vigilance of the
(1) PLD 1961 Azad & K 18 appellant. By virtue of section 33, Civil Procedure Code, 1908 the would-be appellant can act on the expectations that a decree shall follow the judgment and therefore, it is incumbent on him to apply for the copy of the decree within the period of limitation. The period between the date of judgment, i. e. 7-5-58 and date of signing the decree, i. e. 27-12-58, could not be excluded as the application for obtaining a copy of the decree was not made within limitation from the date of the order (judgment). The appeal filed on 27-1-1959 was therefore time-barred". It would appear that what is, in fact, laid down in that judgment is that it was incumbent on the appellant to apply for the copy of the decree within the period of limitation under expectation that by virtue of section 33, C. P. C. The decree shall follow the judgment. That case has no bearing on the instant case; because in the instant case the application for copy of the judgment was moved on 28-9-74 the day on which the judgment was pronounced, while copy was supplied to her on 9- 11-1974. There is nothing either on copy or on the application for obtaining copy of the judgment that any delay in obtaining the copy resulted due to negligence of the appellant. There is a note on the application that copy shall be supplied to the petitioner on 5-10-74 but the petitioner has filed an affidavit to the effect that the Court of Sub-Judge who is also invested with the powers of S. D. M.
14. Was not functioning at the Headquarter as the S. D. M. Was on tour and the concerned clerk had also accompanied him; and that the copy was not even ready. This averment also finds support from the endorsement on the copy of the judgment showing the date of preparation of the copy as 5-11-74, but there is nothing on record to show that the appellant was intimated about the preparation of the copy on 5-11-74. Therefore, the period of limitation would not start running till 9- 11-74 when the copy after preparation was delivered to her. Appeal was filed on 10-11-74 and the extended period in the instant case after excluding the requisite period for obtaining the copy of the judgment as allowed under section 12 would expire on 9th of December, 1974.
15. ' She is entitled also to the exclusion of periods spent by her in obtaining the copy of the decree under the circumstances of this case. She made a separate application alleging therein that the decree was not prepared by the Court till she filed application and there is no evidence on record in rebuttal of the affidavit filed by her in support of her application. The copy of the decree was filed on 17-11-74. Two days spent in getting the copy of the decree, even if not excluded, though the appellant is entitled to the exclusion of this time as well, the appeal was filed well within the extended period of limitation and copy of the decree was also placed on file within extended period of limitation. In other words the appellant is entitled to unrestricted 30 days' period to file an appeal. From this total period, the time spent in obtaining both the copy of the judgment and decree is to be excluded. After excluding this period the appeal will be found about 24 days within the time. In our view the appeal was filed within the period of limitation as the appellant is entitled to the benefit of section 12 of the Limitation Act.
6. Thus it is quite clear that the appeal was within limitation. It makes no difference whether an unfounded plea raised by the respondent has been properly examined or not because the appeal, in the instant case, was filed within the prescribed period of limitation after exclusion of the time requisite for copy of judgment and decree, allowed under section 12 of the Limitation Act read with section 152. It would have been proper if the Ist Appellate Court as well as the High Court had decided the objection raised by the respondent. But the omission on the part of the High Court to decide unfounded plea, in our judgment, would not by itself necessitate remand.
7. On merits the question involved is one of facts. The appellant-plaintiff claims the entire inheritance of his deceased brother on the ground that Mst. Begum Ji was divorced by her deceased husband Khan Gui, a brother of the plaintiff, during his lifetime. The trial Court decreed the suit of the plaintiff holding that the defendant Begum Ii was divorced by her deceased husband during his lifetime but on appeal the finding of the trial Court was reversed by the District Judge which finding was maintained by the High Court on second appeal which is essentially a finding of fact. Thus there is concurrent finding of fact by both the appellate Courts.
8. The oral evidence of the plaintiff's witnesses regarding divorce was not considered worthy of credit by both the Appellate Courts for reasons: (a) that proper ground for reception of the secondary evidence was not made out as required under section 65 of the Evidence Act; and (b) that there were discrepancies in the evidence led by the plaintiff.
16. ' The procedure and practice regarding secondary evidence is regulated by section 65 of the Evidence Act which is to the following effect: "65. Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) when the original is shown or appears to be in the possession or power-of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in Pakistan to be given in evidence.
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
17. ' In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
18. ' In case (b), the written admission is admissible.
19. ' In case (e) or (f), certified copy of the document, but no other kind of secondary evidence, is admissible.
20. ' In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
21. Whether proper grounds were made out for the admission of secondary evidence or not is to be decided by the trial Court but in the instant case no objection was taken before the trial Court when the oral evidence (secondary) about the contents of divorce deed was received. It was not within the domain of the Appellate Court to recognise the objection in appeal as the party is estopped from raising such objection regarding the secondary evidence, for the reason that if objection to the admission of secondary evidence is taken at the time it is sought to be introduced, the party tendering the evidence had the opportunity to correct the irregularity.
22. In Kesho Prasad Singh v. Parmeshri Prasad Singh (11, the evidence consisted of certified copy of a document that was produced and grounds were not made out for the reception of secondary evidence. It was observed at page 281, of the report that "the objection of the learned Subordinate Judge is to the mode of proof and not to the relevancy, and in my opinion it was the duty of the learned Subordinate Judge to reject the document if he thought that the proof was insufficient. If he had rejected the document on the ground that there was no proof as to the loss of the original, it would have been open to the plaintiff to adduce proper evidence to prove the loss of the original document. That course was not adopted by the learned Subordinate Judge, and in my opinion the document having been admitted, it is not open to the defendants to contend that it was not properly admitted in evidence".
23. ' In Abdul Samad v. Gunendra Krishna Roy (2), it was observed at pages 453-454 that:- "As observed in the case of Rajeswa ri Dasi v. Pulin Behary Mittra (1921) 25 C W N 881=62 I C 647) where rent receipts were admitted in evidence without objection in the Court of first instance, no objection could be taken in the Appellate Court that they were not properly proved. In fact this proposition rests upon a well-known principle with regard to the rule of evidence and that is this.
24. Where an objection has got to be taken as to the mode of proof of a particular document, such objection must be taken at the time when the document is tendered for admission, for any lacunae in the mode of proof may then be at once supplied by the party who produces the document and wants to have it proved."
25. ' In Gopal Das and another v. Sri Thakurji and others (3), it was observed that "a party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof". Thus it is well-established rule that no objection should be permitted to be taken before an appellate Court against secondary evidence that was admitted in the Court of first instance without any objection to the mode of proof of a relevant fact. As no objection was raised at the time the secondary evidence was produced before the trial Court, consequently it was not proper for the Appellate Court to reject the evidence of these witnesses under the pretext of the absence of proper ground for reception of secondary evidence because on principle, akin to estoppel, a party neglecting or abstaining from objecting to it is estopped to raise objection at a later stage.
26. ' However, both the Appellate Courts, apart from improper admission of the secondary evidence, have rejected the evidence of plaintiff's witnesses also on the ground that there are contradictions in their statements and that (1) AIR 1923 Pat. 276 (2) AIR 1925 Cal. 452 (3) AIR 1943 P C 83 they do not inspire confidence. We, for ourselves, have examined the evidence and find that both the Appellate Courts were justified in rejecting the oral evidence produced by the appellant as the witnesses were not unanimous on the point as to when the divorce was pronounced by the deceased husband of Mst. Begum Ji; these discrepancies have been pointed out in detail by both the Appellate Courts which need not be stated here again.
27. ' Besides, it is an unfortunate aspect of our society that when an issueless proprietor dies intestate leaving behind a widow, generally, a story of divorce by deceased husband, during his lifetime, to deprive a widow of her right of inheritance, is put forth by other heirs. In such cases the Court would be justified in insisting upon production of clear and convincing evidence of unimpeachable character. Because for a financial interest it is possible, in this ordinary world of every day affairs, to produce relatives and friends to support the claim of residuary at the cost of a widow; and also because the evidence, in the instant case, was imperfect, the High Court, for deciding the matter in such cases considering inherent probabilities, has rightly refused to accept evidence of inferior quality when evidence of better quality, that could be produced, was left out. Any way this is a finding of fact, based on oral evidence. It is not for the Supreme Court to interfere with that unless there are cogent reasons for doing so. In Allah Ditta v. Mst. Alam Bibi (1), it was observed at page 63 of the report that "the concurrent findings of all the Courts on question of facts is conclusive in an appeal before this Court and is not liable to interference unless of course there is misreading of evidence or improper appraisal of evidence by the High Court resulting in failure of justice".
28. Similarly, in All Akbar Khan v. Muhammad Hayat Khan (2), of the report it was observed that "apart from this, we find that the question as to whether the gift-deed was in reality what it purported to be or at sale-deed in the garb of a gift-deed, is purely a question of fact as no point of interpretation of law is involved in this case. It has been our practice not to go into concurrent finding of fact unless some gross misreading of evidence or an appreciation of evidence leading to manifest injustice is shown".
29. ' We reiterate the view already expressed by this Court on the point and hold that there is neither any misreading nor any misappreciation of evidence justifying interference by this Court.
30. Therefore, the appeal is dismissed with costs.
(1) PLD 1978 SC (A J & K) 62
(2) PLD 1978 SC (A J & K) 109