MUHAMMAD SAIR ALI, J. --- This civil revision is directed against the judgment and decree dated 29.11.1999 of the learned Additional District Judge, Gujranwala, whereby appeal against judgment and decree dated 9.6.1999 of the learned Civil Judge 1st Class was accepted and the suit of respondent No. 1 was wholly decreed.
2. Respondent No. 1 Mst. Mehmooda Begum (the plaintiff ) filed a suit on 28.7.1994 alleging therein that Qasim Khan, her grand-father, died on 5.7.1959. He was survived by his widow Mst. Nazan Bibi and two sons i.e. Muhammad Aslam Khan (now through his LRs. i.e. . The petitioners, respondents No. 5 and respondents No. 6), Khan Bahadur (through his LRs i.e. Respondents Nos. 2 to 4) and herself as the daughter of Muhammad Alam i.e. Pre-deceased son of Qasim Khan. Also that the estate included agricultural land measuring 663 kanals, 2 marlas in Mauza Abidabad (Kartarpur Mallian) and 86 kanals, 1 marla in Mauza Baddo Ratta of Tehsil Naushera Virkan, District'
Gujranwala. The plaintiff's father Alam Khan died in 1950-51 leaving her (respondent No. 1) as his sole issue. And that on the death of Alam Khan, his father Qasim Khan through an oral will, willed 1/3rd of his entire land holding to the plaintiff as the only issue of his predeceased son. Also that she continued to get 1/3rd share of the produce since then uptill Kharif 1993 when Muhammad Aslam i.e. Original defendant No. 1 stopped the payment of produce of her share though Khan Bahadur i.e. Original defendant No. 2 continued to do so even after 1993. And that later inquiry revealed that mutations No. 279 and 964 were attested in 1961 as to the inheritance of Qasim Khan in both the villages without implementing the will of Qasim Khan in her favour. Also that on the death of her grand-mother, Mst. Nazan Bibi in 1965, respondent No. 1/plaintiff was again deprived of her share in her inheritance being the daughter of her predeceased son. Respondent No. 1 thus prayed that the aforesaid 1961 mutations of inheritance of Qasim Khan and also the 1965/66 inheritance mutations of nazan Bibi, be declared void and illegal adjuding here to be the co-owner alongwith the original defendants Nos. 1 and 2. Perpetual injunction was also claimed.
3. The original defendant No. 2 (Khan Bahadur) filed conceding written statement and supported the suit of respondent No. 1. Defendant No. 1 (Muhammad Aslam Khan) resisted the suit through a contesting written statement. He denied Qasim Khan's oral will in favour of the plaintiff. He pleaded that Alam Khan; the father of the plaintiff had died before land allotment to Qasim Khan wherefore could not make a will to the plaintiff. And the defendant No. 2 Khan Bahadur (father-in-law of the plaintiff), was present before the Revenue officer who excluded the plaintiff from the inheritance as her father Alam Khan had died before the promulgation of Muslims Family Laws Ordinance, 1961.
And that no claim on the purported will was then set-up before the Revenue Officer. Suit being beyond limitation was also pleaded . '
4. On pleadings of the parties; the learned Trial Court framed the following issues:---
(1) "Whether mutations No. 279, 915, 372 and 974 are void, illegal, based on mala fide and inoperative upon the plaintiffs rights? OPP.
(2) Whether the suit is time barred? OPD
(3) Whether the plaintiff is estopped by her words and conduct to file this suit? OPD
(4) Whether the suit has been filed through an unauthorized person, if so, its effect? OPD.
(5) Whether the suit is the child of collusion between the plaintiff and defendant No. 2 ? OPD.
(6) Whether the suit cannot proceed in view of preliminary objection No. 5 in the written statement?
OPD.
(7) Relief."
5. Evidence of the parties was recorded. The learned. Trial Court through judgment and decree dated 9.6.1999 rejected the plaintiff's claim on the will but decreed her suit on her right to inherit under Section 4 of the Muslim Family Laws Ordinance, 1961 from her grandmother, Mst. Nazan Bibi as the only heir of her predeceased son Alam Khan.
6. Respondent No. 1/ the plaintiff feeling dissatisfied with findings of the learned Trial Court on the purported will preferred an appeal. The learned Additional District Judge, Gujranwala vide judgment and decree dated 29.11.1999 accepting her appeal, decreed the entire suit. Hence this civil revision against the appellate judgment and decree dated 29.11.1999 of the learned Additional District Judge.
7. The civil revision was originally filed by Muhammad Aslam Khan (defendant No. 1 in the suit). On his death during the pendency of the civil revision, his legal heirs (two sons and two daughters) were impleaded as petitioners Nos.' I to iv. Subsequently petitioners No. i.e (Mst. Mahmooda begum daughter of deceased Muhammad Aslam Khan) through C.M. No. 951-0/2004 sought withdrawal of the civil revision on abandonment of her claim and admission of the claim of respondent No. 1 i.e. The plaintiff. As the matter involved enforcement of purported will and its effect on inheritance and as all LRs were necessary and proper parties, therefore, through order dated 7.9.2005, it was observed. That said petitioner could withdraw herself from the litigation but could not withdraw the civil revision. The learned counsel for the parties thus jointly prayed for her transposition as a respondent in the civil revision. This request was allowed and applicant was transposed as respondent No. 6 in the civil revision.
8. The learned counsel for the petitioners submitted that the findings of the learned lower Appellate Court on issues Nos. 1 and 2 were the outcome of misreading and non-reading of the pleadings and the evidence of the parties. And that the learned appellate Judge failed to apply the settled law which required strong, clear and unimpeachable evidence for the proof of an oral will/transaction. And that the onus of such proof was on the plaintiff whO failed to discharge such burden: Also that the evidence of the plaintiff could not establish a will in her favour by Qasim Khan deceased. And that Qasim Khan deceased as a refugee alongwith his sons, was originally allotted seven acres of land on temporary basis in 1954 and quasi permanent allotment of 663 kanals 2 marlas was. Made in his name. And that at the time of death of plaintiff's father Alam Khan in 1950- 51, Qasim Khan was not holding the land, therefore, question of making any will in favour of the plaintiff at that time could not arise. He further argued that Qasim Khan was a retired Patwari and lived nearly nine years after the death of Alam Khan and could have made a written will in favour of the plaintiff if he had so intended. And that time barred claim of will was set up after about thirty five years of the death of propositus which. Was the result of a C.L.R. conspiracy between the plaintiff and her father-in-law i.e. Khan Bahadur. And that the learned first Appellate Court completely ignored the reasoning of the learned Trial Judge who had rendered a comprehensive judgment on due analysis of the evidence.
The learned counsel for the respondents supported the impugned judgment and decree.
9. HEARD.
10. The learned Civil Judge through his judgment and decree dated 9.6.1999 dismissed the plaintiff's claim on the alleged will but decreed her suit for the share in the inheritance of her paternal grandmother Mst. Nazan Bibi. On first appeal, the learned Additional District Judge, Gujranwala, through his judgment dated 29.11.1999 reversed the judgment of the learned Trial Court and wholly decreed the plaintiffs suit. Hence this civil revision. The petitioner as the defendants have not challenged the concurrent findings of the learned subordinate Courts that respondent No. 1 was entitled to the share of her predeceased father., Findings on this issue have thus attained finality.
The petitioners however question the judgment of the learned Additional District Judge decreeing her suit on the purported will as well.
11. Though no issue on the existence and making of the alleged oral will was framed yet the parties being cognizant of the main question, produced their evidence accordingly. Non framing of such issue was thus not a moot question between the parties.
12. The existence of oral will and . Validity of respondent No. 1's claim thereon is the contested premise between the parties in this revision petition. The requirement of evidence on the proof of an oral will or transaction have become well-defined by now. The sustenance of the impugned judgment and decree of the learned first Appellate Court depends upon its meeting the legal tests anciently settled.
13. A will can be made orally or in writing. Law however requires a high standard of proof thereto. In the case of "Venkat Rao and another v. Namedo and others" (AIR 1931 Privy Council 285), the Privy Council reiterating rule in 12 M.L.A. 1 held that:- "The onus of establishing an oral will is always a very heavy one, and it must be proved with utmost precision and with every circumstance of time and place."
"Upon a question whether an oral statement amounts to a will, the greatest care must be taken and strict proof must be required. The Court must be made certain that it knows what the speaker said and must from the circumstances and from the statement be able. To infer for itself that testamentary effect was intended in addition to being satisfied of the content of the direction given. The question must be answered primarily upon a scrutiny of the evidence given by persons present when the statement was made."
The above rulings was followed in the cases of "Mst. Lzard Fatima Bibi and others v. Mst. Ansar Fatima Bibi and others" (AIR 1939 Allahabad 348 (DB) (d)) and "Ch. Muhammad Hussain and another v. Hidayat Ali and 6 others" (NLR 1981 SCJ 460).Wherein the Hon'ble Supreme Court of Pakistan as to an oral agreement of sale held that:--- "Voluminous oral evidence may have little weight where documents are ordinarily required to be prepared or are usually prepared and no satisfactory explanation for departure from the practice is forthcoming ... The conduct of the parties, the subject-matter of the controversy, the nature of relationship and experiences of the parties and their handling of the matter, all are relevant for determining the credibility of oral evidence on such matters."
In "Amina Rehman v. Mica Karamat Hussain and others" (1993 M LD 1898 (Lah.), it was held:--- "In the absence of a written record, oral evidence of a very high order was required to establish gift of immovable and movable properties .... -Oral gift was although not impermissible, yet in the case of a dispute, evidence of an unimpeachable character was necessary to prove the donation which was lacking."
14. This Court is thus of a considered view that easy, it may be, for a. litigant to set-up the claim on an oral will but not easy to prove it Concisely summarized on the basis of precedents, the well- established principles upon the proof of an oral will or a transaction are that:----
(i) The onus of proof rest heavily on the claimant;
(ii) Oral will or transaction must be strictly proved with utmost precision and greatest care;
(iii) The surrounding circumstances, the time and the place are of critical importance in such matters;
(iv) The words of the testator, the contents of his oral direction/statement and the circumstances in which such statement was made are to be clearly set up and proved;
(v) The oral evidence and the statements of persons present should be of high order and of an unimpeachable character; and
(vi) The evidence so produced must be able to sustain close scrutiny of the Court enabling it to certainly infer for itself the testamentary effects intended by the donor and the credibility of the evidence on the circumstances, the words of the speaker, the time, the place and other relevant facts.
15. The rationale of the stringent standards of proof, as above-summarized, is understandable considering the human susceptibility to greed, wealth, power, status, jealousy, position and strength. In our society, movable and immovable properties, money, high offices, and political strength are thus sought by some even through the unfair means. Such people normally put aside the social, moral and legal values to achieve their ignoble objects by contriving oral wills, gifs; donations and agreements. The surrounding circumstances, the time, the place, the conduct of the parties, the nature of their relationship, their credibility, their expediencies and their approaches qua the subject-matter of the controversy are therefore material and relevant facts for the proof of the oral transaction.
16. In the perspective of the above-principles, the variant judgments of .the learned subordinate Courts in the present case were examined. The learned Additional District Judge in his impugned judgment considered the discrepancies as to the time, the place and the circumstances as in relevant and minor. He held that the plaintiff could prove "through evidence that will was made on the date of death or the Daswa n of Alam Khan or subsequently." His reasons to disregard the discrepancies were that the witnesses were aged and illiterate and made their statements after more than 30/35 years. The learned Additional District Judge also held that respondent No, 1 was daughter-in-law of Khan Bahadar (defendant), who was present at the time of attestation of the impugned mutations but did not inform the revenue officer of his daughter-in-law's claim on will from Qasim Khan and also as an heir on death of Mst. Nazan Bibi, because "the personal interest of a person is more greater in our society than the interest of one's daughter-in-law." The learned Additional District Judge thus held that respondent No, 1 had proved the will in her favour and decreed her suit on will as well No findings were recorded by the learned Additional District Judge on issue No, 3 regarding estoppel and on issue no. 5 (collusion between respondents No, 1 and her father-in-law Bahadar Khan).
17. Contrarily the learned Civil Judge after a long laborious detailed, thorough and threadbare analysis of evidence of the parties, in his judgment dated 09.06.1999 held that:-- "From the statement of the PWs, a clear-cut contradiction of years and month of death of Aslam Khan is apparent which resultantly means that the PVVs are not in the knowledge of exact date, month and year of the alleged will. From the statement of the PWs, it is not clear what will. was made by the deceased Qasim Khan as the PWs are stating that the had said that the plaintiff and the widow of the deceased would be entitled to the 1/3 share/produce of the entire property, the exact wording has not been mentioned by any of the PWs. It is an admitted fact that the defendant No, 2, the real brother of Aslam Khan deceased and the real father of husband of the plaintiff. Dr. Talib Khan had been residing with the PW.6 Muhammad Anwar Khan, his song at Lahore since 1976 in the house owned by the plaintiff and had died at Lahore and he was admittedly present at the time of attestation of inheritance mutation, of Qasim Khan and Mst. Niaz Bibi alias Nazan Bibi but her never said anything regarding the will at the time nor the plaintiff has even alleged any male fide on the part of the defendant No, 2, her father-in-law, and father of the PW.6 that they had intentionally concealed the fact of will at the time of attestation of inheritance mutations of Qasim Khan. Even in the evidence of the plaintiff none of the PWs have spoken a single word regarding any mala fide of Khan Bahadar the defendant No, 2, now deceased and the plaintiff herself has admitted that he was present at the time of attestation of inheritance mutation. I failed to understand how and why the father-in-law of the plaintiff, the defendant No, 2 now deceased Khan Bahadar had not objected on the attestation of the inheritance mutation when it was sanctioned and how the plaintiff was not in the knowledge of this fact as he had been residing with PW.6 at her own house at Lahore since 1976. It is also an admitted fact that the defendant No, 1 and the defendant No, 2 now deceased had partitioned their properties about 30/40 years back. It was the duty of the plaintiff to prove the factum of will. The burden of establishment of oral will is always a heavy one and it must be proved with the utmost precision of every circumstances of time and place and the Court must be made certain and clear that it knows what the speaker said and must from the circumstances and from the statement be able to enter for itself that testamentary effect was intended, in additional to being satisfied of the contents of the direction given but considering the evidence of the plaintiff both the afore-said proof of establishing the oral will are missing. There is no time, date, place, year and month available in evidence with certainty nor the exact word of the deceased Qasim Khan has been spoken by any of the PWs; in fact the statement of PW.7 contradicts as to spoken word and the time/date of alleged oral will. Considering the evidence on record I am of the view that there was no oral will made by the deceased Qasim Khan in favour of the plaintiff or even her mother."
18. The comparative scrutiny of the above-referred two judgments reveals that the learned Additional District Judge ignored the discrepancies in the depositions of the PWs regarding the time, place, circumstances and the word holding the same to be minor and insignificant. He considered the discrepant depositions of PWs adequate to prove the alleged oral will. Contrarily the learned Civil Judge found these discrepancies to be material. The learned Civil Judge thus opined that the plaintiff had failed to prove the will as owing to tie discrepancies in evidence the accurate time, date, place, month, year and the words of Qasim Khan were not inferable from the plaintiff's evidence.
19. In the area of proof and evidence, a fact has been defined by Black's Law Dictionary, Sixth Edition Centennial Edition Centennial Edition (1891-1991) as 'minor' only when it is "a relative, collateral or subordinate fact or a circumstance" in comparison to a "material fact" which in legal parlance has been termed as "essential to the case and without which the Case could not be supported, proved or established."
20. A "discrepancy" has been defined by Black's Law Dictionary as under:--- "Discrepancy. A difference between two things ought to be identical, as between one writing and another; a variance. Also discord, discordance, dissonance, dissidence, unconformity, disagreement, difference."
21. Collective reading of the above three terms would show that a discrepancy or difference would be 'minor' it was collateral or subordinate but would be material if bears upon the decision of a relevant fact or issue in a case. Even a "minor fact" or a "minor discrepancy" would become material and relevant in a case if it has a probative effect on another material or relevant fact.
22. It is thus evident that the discrepancies in the statements of the witnesses as to the time, date, month, year, testator's words, reasons and circumstances of the oral will needed careful and close examination and could not be lightly, vaguely or generally dealt with by the Court. In this case, the discrepancies in the statements of the witnesses were extremely relevant for forming a judicial opinion on the existence of the alleged oral will wherefor the same could not have been excluded from consideration as minor or insignificant. The learned first Appellate Court in fact did not appreciate the evidence in its true perspective and thus failed to exercise jurisdiction vesting in him.
23. The principles above-recounted require the evidence on the proof of an oral wilt to be clear, consistent, credible, unambiguous, unimpeachable, specific, precise and definitive. The inference and the conclusion as to the existence of such will is to flow from such evidence which should accurately disclose the date, the year or the period, the place, the occasion, the words, the subject matter and the beneficiary thereof. Otherwise the Courts cannot rule in favour of an oral will. The object thereto is to avoid prejudice to the vested rights of the lawful heirs and to effect due devolution of inheritance as per the law of Sharia. The evidence produced by respondent No, 1 in this case does not appear to qualify the above tests.
24. The learned Additional District Judge also dealt with the issue of limitation. in a cursory and general manner and did not advert to the detailed reasoning of the learned Civil Judge on issue No, 2 that:--- "Admittedly, Qasim Khan died in the year 1959. Admittedly the disputed property was privately partitioned about 38/40 years ago. Admittedly, the plaintiff is wife of Dr. Talib, the real son of the defendant No, 2 Khan Bahadar deceased. Admittedly, Khan Bahadar was present at the time of inheritance mutation. Admittedly, Khan Bahadar was residing at the house of the plaintiff being father of her husband since 1976 at Lahore. It is also admitted that the family of the plaintiff and her husband ,was more literate than the defendant No, 1, who admittedly is an illiterate person and it is not possible to imagine in our society that a father-in-law could not have told the plaintiff or her husband, his son, that his wife was not given any share of the property in 1961 when the inheritance mutations of Qasim Khan were attested. The plaintiff never had leveled any allegation whatsoever in her plaint or in her evidence against Khan Bahadar her father-in-law, therefore, it also shows that the plaintiff could not have been kept in dark by Khan Bahadar regarding the attestation of inheritance mutations. Had she been given the 1/3 of the property through will by Qasim Khan deceased. To this extent, I am of the opinion that the suit of the plaintiff is hopelessly time-barred.
However to the extent of inheritance mutations Nos, 372 and 974 of Mst. Niaz Bibi alias Nazan Bibi is concerned as the same was against the basic law i,e, Section 4 of the Muslim Family Laws Ordinance, 1961 there is no question of applying limitation period against the plaintiff because the plaintiff automatically became a co-sharer with other legal heirs after the death of Mst. Niaz Bibi alias Nazan Bibi. To this extent, the suit of the plaintiff is within time. The issue is decided accordingly."
25. Issue No, 3 (estoppel) and issue No, 5 (collusion) were material issues but were left unattended and undecided by the learned Additional District Judge as the first Appellate Court. The jurisdiction vesting in him as an appeal Court was thus improperly exercised.
26. In view of the above, the impugned judgment and decree dated 29.11.1999 of the learned Additional District Judge is set-aside and the judgment and decree dated 9.6.1999 of the learned Civil Judge is restored.
27. This civil revision is accepted in above terms with no order as to the costs.