' MUHAMMAD KHALID MEHMOOD KHAN, J.---Through this single judgment we proposed to decide R.F.A. No.222 of 2002 and R.F.A. No.223 of 2002 as the same hay- arisen against a consolidated judgment and decree dated 2-2-2002 of learned Civil Judge, Lahore.
2. Mst. Sohaila Perveen respondent No.1 filed a suit for declaration against one M. Ifzal Chaudhry and public at large praying that she is the only legal, heir of Fazal Muhammad Chaudhry. The appellants Ms.Zaib Jahan etc. Filed a suit for Administration of estate of Fazal Muhammad Chaudhry, claiming themselves to his legal heirs with Mst. Sohaila Perveen and one Noshaba Khanum. Both the suits were consolidated and following consolidated issues were framed. ISSUES:
(1) Whether the plaintiffs Mst. Zaib Jahan etc. Are legal heirs of Fazal Muhammad Chaudhry (deceased) and that the property in question is joint between the parties? If so, what are their respective shares? OPP
(2) Whether the Noshaba Khanum, defendant No.1 is the widow of Fazal Muhammad Chaudhry (deceased)? OPD-1
(3) Whether Fazal Muhammad Chaudhry (deceased) belonged to Fiqah Jaferia? If so, to what effect? OPD-2
(4) Whether Mst. Sohaila Perveen, defendant No.2 is the only legal heir of Fazal Muhammad Chaudhry (deceased)? OPD-2
(5) What are the assets and liabilities of Fazal Muhammad Chaudhry (deceased)? OP Parties.
(5-A)Whether M. Ifzal, defendant No.1 of connected suit titled "Mst. Sohaila Perveen v. M. Ifzal etc." is unnecessary party having no concern with estate left by Fazal Muhammad Chaudhry (deceased)?
OPP (5-B)Whether Mst. Sohaila Perveen is estopped to bring her suit? OPD (5-C)Whether the suit titled " Sohaila Perveen v. Ifzal etc." is incompetent in its present form? OPD (5-D)Whether Mst. Sohaila Perveen has got no cause of action? OPD (5-E) Whether the claim of Mst. Sohaila Perveen is false and vexatious? OPD (5-F) Whether the suit titled "Mst. Sohaila Perveen v. M. Ifzal etc" is collusive between the plaintiff and defendants No.3 to 5? OPD (5-G)Whether M. Ifzal is real son of Fazal Muhammad Chaudhry? OPD
(6) Relief.
' Both the parties adduced their respective evidence both verbal and documentary.
3. Learned trial court vide judgment and decree dated 2-2-2002 dismissed the suit of appellant and decreed respondent No.1 suit.
4. Learned counsel for appellants submits that learned trial court has failed to appreciate the evidence available on record. Learned counsel submits that it is a proven fact on record that appellants are the sons and daughter of deceased Fazal Muhammad Chaudhry along with respondent Mst. Sohaila Perveen, but learned trial court, has fallen in error when it gave the credence to minor discrepancies in the statement of P.W.1. Learned counsel states that whole statement of Mst. Sohaila Perveen becomes doubtful, when she submitted her matriculation certificate showing that she passed matric in 1978 at the age of 13 years. Learned counsel submits that' it is unbelievable that respondent No.1 has passed her matriculation examination when she was of 13 years old, especially when she was not a brilliant student but passed her examination in grade-C. Learned counsel argued that fact of Nikah of, appellants mother with Fazal Muhammad Chaudhry has proved beyond any shadow of doubt. He adds that impugned judgment is an outcome of misreading and non-reading of evidence.
5. Learned counsel for respondent Mst. Sohaila Perveen the main contestant, submits that P. W.1 who claims himself to be the brother-in-law (husband of deceased sister) of deceased Fazal Muhammad Chaudhry, has failed to prove that he was having business Relations with Fazal Muhammad Chaudhry. The .Statement of P.W.1 is full of contradictions and is not in corroboration with the statements of ' appellants witnesses. Learned counsel submits that respondent has proved on record that she is the only legal heir of Fazal Muhammad Chaudhry who died on 23-7- 1990 leaving behind House No.87-E, Model Town, Lahore and it was respondent No.1 only who was living with her father at the time of his death. Learned counsel. Further submits that learned trial court has rightly hold that appellants were nonexistent and that is the reason the deceased has nominated respondent his nominee in the Model Town Cooperative Society. Record.
6. Learned counsel further submits that it is a proven fact on record that deceased Fazal Muhammad Chaudhry was follower of Shia sect, and he died as Shia Muslim. He supports the impugned judgment and decree.
7. We have heard learned counsel for the parties at length and with their assistance examined the record.
8. The dispute between the parties is about the estate of deceased Fazal Muhammad Chaudhry.
Fazal Muhammad Chaudhry died at Lahore in 1990 when admittedly appellants were not living in Lahore.
9. Mst. Sohaila Perveen claim is that she born out of wedlock of Fazal Muhammad Chaudhry and Mst. Surriya Nigar. According to the averments`of plaint of suit for administration, respondent Mst.
Sohaila Perveen is the legal heir of deceased Fazal Muhammad Chaudhry along with appellants and one Noshaba Khanum. In the presence of above said admission on the part of appellants, the onus shifted on respondent No.1 to negate the appellants. Assertions.
10. Mst. Sohaila Perveen when filed a suit for declaration, has not disclosed the fact of second marriage of her father and that appellants are her brothers and sisters.
11. .P.W.1 who is the brother-in-law of deceased Fazal Muhammad Chaudhry appeared and deposed that mother of appellant Mst. Mamnoon Jahan contracted second marriage with Fazal Muhammad Chaudhry in the year 1962. Fazal Muhammad Chaudhry got married with Mst. Surriya Nigar in the year 1956 and out of their wedlock a daughter namely Mst. Sohaila Perveen born in May, 1959 and on the day of birth of Mst. Sohaila Perveen, Mst. Surriya Nigar died. She was buried in Hassan Parwana Graveyard at Multan. He deposed that Mst. Sohaila Perveen born in Multan when Fazal Muhammad Chaudhry and Surriya Nigar were living at Multan. After the death of Mst. Surriya Nigar deceased Fazal Muhammad Chaudhry got married with Mst. Mamnoon Jahan who was at that time posted as Lecturer in Govt. College for Women, Multan. Out of their wedlock, Mst. Zaib Jahan born in 1963 at Gujjar Khan and in 1964 twin sons Tariq Ahmad and Arif Ahmad born. After that Mst. Mamnoon Jahan was transferred from Multan to Lahore.
12. Thee is another character in the scene, one Noshaba Khuram who admittedly resided in Fazal Muhammad Chaudhry's house at Model Town, Lahore even after his death. She also claimed herself to be the widow of Fazal Muhammad Chaudhry but subsequently she made the statement in criminal proceedings initiated by Mst. Sohaila Perveen that she is not the widow of Fazal Muhammad Chaudhry, hence the chapter of Noshaba Khanum stands closed and is not relevant in the present proceedings.
13. P.W.1 deposed that Fazal Muhammad Chaudhry purchased Saving. Certificates of Rs.2,00,000 before his .Death in his name and handed over these certificates to him, the nominee of these certificates are Tariq Ahmad and Arif Ahmad. The certificates remained with him in trust and he handed over the certificates to Mst. Mamnoon Jahan after the death of Fazal Muhammad Chaudhry. He specifically deposed that deceased Fazal Muhammad Chaudhry was Sunni Muslim by faith. He was subjected to long cross-examination by the learned counsel of Noshaba Khanum and Mst. Raheela Perveen. As per deposition of P.W.1 Mst. Mamnoon Jahan left for Nigeria in the year 1961 with her three children due to suspected relations of Fazal Muhammad Chaudhry with Noshaba Khanum and also deposed in examination-in-chief that Nikah of Mst. Mamnoon Jahan with Fazal Muhammad Chaudhry was solemnized in the year 1962.
14. Learned trial courts judgment mainly revolve around the said so-called contradiction of P.W.1.
Learned trial court has held that when Mst. Mamnoon Jahan left Pakistan in 1961 how she can marry in 1962 with deceased in Pakistan. P.W.1 no doubt in his examination-in-chief deposed that Mst.
Mamnoon Jahan left for Nigeria in 1961 and the marriage between Mst. Mamnoon Jahan and Fazal Muhammad Chaudhry took place in the year 1962, but the mentioning of date for leaving Pakistan of Mst. Mamnoon Jahan is an accidental mistake of learned Civil Judge, who recorded the statement of P.W.1 when he wrongly wrote 1968 as 1961. If these facts were true the respondent should not have asked the question about the date of leaving Pakistan of Mst. Mamnoon Jahan in cross-examination. When respondent asked a question about the said fact from P.W.1, he replied as under section. {{URDU TEXT}}
15. Learned trial court has discussed the date of Nikah so strongly that he disbelieved the entire evidence of appellants. It is a proven fact on record that Mst. Mamnoon Jahan got her marriage dissolved with Fazal Muhammad Chaudhry through court. Mst. Mamnoon Jahan appeared as P.'W.4., she specifically deposed that her marriage took place with Fazal Muhammad Chaudhry in 1962 and produced original Nikahnama as Exh.P.10. She deposed that his brother and witnesses signed this document, and she recognize the signature. She deposed that she has three children from Fazal Muhammad Chaudhry, Mst. Zaib Jahan born on 3-11-1963 at Gujjar Khan and Exh.P.11 is her certificate of birth. In the year 1964 her two sons born and their birth certificates are Exh.P.12 and P.13. She produced a document Exh.P.4 which is her domicile, which at the relevant time was the only authentic document as the law for issuance of National Identity Card was not promulgated in those days. Exh.P.4 has been issued by the Deputy Commissioner, Lahore on 15-12-1967. It is a public document and it shows that Mst. Mamnoon Jahan has three children i.e. Mst. Zaib Jahan daughter having age of 41/4 years, Tariq Ahmad and Arif Ahmad the twin sons having age 31 years.
Ex.P.4 proves that on the day of its issuance Mst. Mamnoon Jahan was having three children one daughter and twin sons. P.W.4 has placed on record passport of two minor sons and one daughter Exh.P.15, P.16 and P.18, in these documents the name of the father of the children is mentioned Fazal Muhammad Chaudhry. P.W.4. Deposed that in March, 1968, she went to Nigeria. In 1974, she obtained divorce from Fazal Muhammad Chaudhry through court Exh.P.21. Learned trial court disbelieved the decree. Of court only on the ground that address of Fazal Muhammad Chaudhry in this decree is shown of Multan, the statements of P.W.1., P.W.2., P.W.3. And P.W.4. Show that address mentioned in this decree is the same which they deposed and where Fazal Muhammad Chaudhry and Mst. Mamnoon Jahan residing on the said address. P.W.3. Has confirmed this fact in his statement, he deposed that, he received a notice from Family Court in the name of Fazal Muhammad Chaudhry he returned the same with endorsement that he has gone to Lahore. No doubt decree is ex parte, but Fazal Muhammad Chaudhry remain alive up to 1990, and he has not challenged the decree. The decree of court could not be disbelieved on the ground that 'it has been obtained by mentioning wrong address. P.W.4. Deposed that after decree she was not in contact with Fazal Muhammad Chaudhry, as she was living abroad. She has placed on record as Exhs.P.1 to 9 letters written by the relatives of deceased husband. Muhammad Sabir P.W.1. Handed over the Saving Certificates amounting to Rs.2,00,000 to her which are Exh.P.31 to P.38. The Saving Certificates were purchased by Fazal Muhammad Chaudhry and the nominees of these certificates are two sons. She deposed that she contracted second marriage in 1975 with one Mahmood-uz-Zaman and is living with him at Karachi, she .Has no child from his second husband.
She was subjected to a lengthy cross-examination. She deposed in cross-examination that Fazal Muhammad Chaudhry was living in a joint family system, they were four brothers. The education of Fazal Muhammad Chaudhry was F.Sc and she is M.Sc. From Punjab University. She was working as a Lecturer in Govt. College for Women, Multan at the time of her marriage with deceased Fazal Muhammad Chaudhry. She was living with Fazal Muhammad Chaudhry at Multan. She admits that she is not aware the name of Nikah Khawan, however, she deposed that the first marriage of Fazal Muhammad Chaudhry was solemnized in 1956 or 1957. Learned trial court has disbelieved the statement of Mst. Mamnoon Jahan only on the ground that P.W.1 has deposed that she went to Nigeria in 1961, whereas the marriage was solemnized on 2-6-1962, in fact P.W.1 has stated that P.W.4 went to Nigeria in 1968 but it was wrongly written as 1961. Mst. Mamnoon Jahan passport proves the fact that she went Nigeria alongwith her minor children. Appellants have produced their maternal uncle as P.W.2. Waheed Ahmad, who is the real brother of Mst. Mamnoon Jahan. He deposed that he has signed the Nikahnama Exh.P.W.10 as the Wakeel of Mst. Mamnoon Jahan. He admits that Exh.P 10/1 are his signatures. Fazal Muhammad Chaudhry and Mst. Mamnoon Jahan remained husband and wife from 1962 to 1974-Mst. Zaib Jahan born in his house at. Gujjar Khan where I was posted as Lecturer. I got birth entry of Mst. Zaib Jahan in, Municipal Committee, Gujjar Khan Exh.P.11. Tariq Ahmad and Arrf Ahmad twin sons were not born in my house. In cross- examination, respondent has failed to shake his evidence. Learned trial Court has disbelieved the birth certificate of appellant No.1 on the flimsy ground that her name is not mentioned in the certificate and only is mentioned. It is in the knowledge of an ordinary man of our society that parents selects the name of the child after consultation with family or in some cases the religious head, hence the finding of learned trial Court seems to be his ignorance from the norms of society.
P.W.3 is Professor Dr. Abdul Khaliq Qureshi, who is neighbour of Fazal Muhammad Chaudhry at Multan, he deposed that he knows the appellants. Fazal Muhammad Chaudhry was residing in front of his house as tenant. P.W.1. Muhammad Sabir was also living with him, who was the brother- in-law of Fazal Muhammad Chaudhry, his house was in Katri No.886 Misri 'Khan Nawan Shehr, Multan and house of Fazal Muhammad Chaudhry was in Katri No.883 Misri Khan Nawan Shehr, Multan. In 1956 Fazal Muhammad Chaudhry got married, and the name of his wife was Mst. Surriya Nigar who died in 1959 at the time of birth of Mst. Sohaila Perveen. He participated in funeral ceremony of Mst.Surriya Nigar. Mst. Surriya Nigar was buried at Hassan Parwana Graveyard at Mu'tan. Fazal Muhammad Chaudhry contracted second marriage in the month of June, 1962 with Mst. Mamnoon Jahan. He participated in their marriage. One daughter namely Mst. Zaib Jahan born at Gujjra Khan in the house of his maternal uncle. He was my colleague who was transferred from Multan to Gujjar Khan. Mst. Zaib Jahan born in November, 1963. In 1964 twin sons were born, after that Fazal Muhammad Chaudhry left Multan and shifted to Lahore. He received notice in the' name of Fazal Muhammad Chaudhry from court which I eturned to postman and informed him that he has left the house. The above overwhelming appellants documentary and oral evidence show that there is no reason to disbelieve the fact that Mst. Mamnoon Jahan was the second wife of Fazal Muhammad Chaudhry, appellants are -the sons and daughter of Mst. Mamnoon Jahan from the wedlock' of parties. It is also a proven fact on record that Mst. Mamnoon Jahan left Pakistan for Nigeria and the three children remained with her which are now grown up. The original Defence Saving Certificates purchased by Fazal Muhammad Chaudhry show that nominees of these certificates are two sons Tariq Ahmad and Arif Ahmad. Question is that if Fazal Muhammad Chaudhry was not the father of appellants what was the need to nominate, these two appellants his nominee, further these original certificates remain in custody of P.W.1. Who is admittedly the brother-in-law of ' Fazal Muhammad Chaudhry. Admittedly respondent Mst. Sohaila Perveen .Was alive at the time of purchase of saving certificates and according to her she was residing at Lahore with her father and she was the only child of Fazal Muhammad Chaudhry but surprisingly why the name of Mst. Sohaila Perveen was not mentioned as nominee of cash certificates. No doubt in the Model Town Society record Mst. Sohaila Perveen is shown as nominee against the property owned by Fazal Muhammad Chaudhry but it does not mean that appellants are not the children of Fazal Muhammad Chaudhry. It is an established principle of law, nominee has no right in the property for whom he/she has been nominated except that he/she will distribute the said property among the legal heirs according to law of inheritance applicable to the claimants. Appellants were living in Nigeria, then in England and were not in contact with their father but even then they were nominated by Fazal Muhammad Chaudhry as his nominee: The Nikah of Mst. Mamoon Jahan with Fazal. Muhammad Chaudhry is proven fact on record, the birth of three appellants during the subsistence of their marriage is proved. If for the sake of arguments we disbelieve all documents placed on record by appellants but one document i.e. Exh.P.4 domicile certificate issued by the Deputy Commissioner, Lahore could not be belied. The document showed all three appellants are the children of Mst. Mamnoon Jahan and admittedly at that time Mst. Mamnoon Jahan was the legally wedded wife of Fazal Muhammad Chaudhry. Learned Civil Judge, Lahore has wrongly disbelieved the oral as well as documentary evidence produced by appellants.
16. Mst. Sohaila Perveen has failed to rebut appellants' documentary evidence produced on 'record, her claim is that her mother died at Lahore but she admits that her mother died on the day of birth, meaning thereby, her birth entry should have been recorded at Lahore. She can produce easily for refuting the fact that her mother was not buried at Multan by producing the death certificate of her mother or the certificate from graveyard, but she has not produced these two documents in rebuttal of appellants' documentary evidence and learned trial court wrongly believed the oral statement of Mst. Sohaila Perveen.
17. There is another aspect of this case. Mst. Sohaila Perveen is claiming herself to be the only legal heir of deceased Fazal Muhammad Chaudhry. She filed a suit for declaration by arraying one M.
Ifzal, defendant but not a single averment has been made in the, plaint how and why M. Ifzal is an obstacle in her way to obtain a declaration prayed for. When M. Ifzal filed written statement he took the stance that he is the only son of Fazal Muhammad Chaudhry and Mst. Sohaila Perveen has no relation with Fazal Muhammad Chaudhry but Mst. Sohaila Perveen has not initiated any criminal proceeding against Ifzal whereas she commenced criminal proceedings against Noshaba Khanum who was claiming the widow of Fazal Muhammad Chaudhry. The intention of Mst. Sohaila Perveen is evident from the averments of plaint that she tried to get a declaration in exclusion of appellants by impleading a planted person who subsequently slipped from the scene when the appellants came in to picture. Mst. Sohaila Perveen appeared as P.. W..6 she is an educated girl, she deposed that his 'father contracted only one marriage that too with her mother. She deposed that Mst. Mamnoon Jahan is' a Qabza Group. She deposed that her father was professing. Shia religion, she is also Shia by faith. Her father died as Shia and his funeral ceremony was completed according to Shia sect, he was buried as Shia Muslim but surprisingly not a single witness has been produced, from the family of his father or family of her mother for proving that Fazal Muhammad Chaudhry ever participated in Azadari Majlis, he joined any procession of Moharram nor she has produced graveyard report whether it was a graveyard of Shia Muslim or Sunni Muslim. Mst. Sohaila Perveen herself has not deposed that her husband is also Shia by faith. She admits that at the time of her birth her mother died and after that she remained with her maternal grandmother who at that time was posted at Multan. She admits that she was admitted in Govt. High School Saint Marry Convent, Multan when she was admitted in school she was five years of age and it was perhaps the year of 1972. She admits that there is a birth record in the school but she is unable to produce, as his maternal grandmother has died. She admits that, when she was in 10th Class, she left the school at Multan, but she appeared in matriculation examination from the same school at Multan.
The main thrust of Mst. Sohaila Perveen in her statement is that her mother contracted marriage with Fazal Muhammad Chaudhry not in 1956 and she born on 17-10-1965 but she admits that her mother died on the day of her birth. She admits that she was admitted in school when she was five years old in 1972. She herself produced on record a matriculation certificate which' shows that in 1978 she passed the matriculation examination. If it is admitted that she born in 1965 this means that she was 13 years of age, when she passed the 'matriculation examination, which is not believable especially when she was not a brilliant student, she passed her matriculation examination in Grade-C which is 3rd division. She further admits that she was five years old when she admitted in school but she passed her matriculation examination in 1978, how she can pass the matriculation examination in six years from the date of her first admission. Form B is available on record as Exh.D.3 which shows that her date of birth is 17-10-1965. The said document is definitely a manufactured document and Mst. Sohaila Perveen has managed the said document only to oust appellants. She has not produced the person who attested the said form nor it has been alleged that attesting officer has died, hence the document Form-B does not come to the rescue of respondent. Mst. Sohaila Perveen has not produced her birth certificate, which can resolve the dispute about her date of birth. She claims that her maternal grandmother and father has died, hence she is unable to produce her birth certificate, this explanation of respondent is illusory, the birth record is being maintained by Multan Municipal Corporation and record could be summoned from there, the respondent claim is that she born at Lahore, then definitely her birth record must be available with the Lahore Municipal Corporation; this fact alone is sufficient to disbelieve the respondents claim regarding her date of birth.
18. The appellants are admitting respondent, as her sister from the first marriage of their father with Fazal Muhammad Chaudhry, this admission will reduce their share in the estate of deceased Fazal Muhammad Chaudhry, this admission of appellant shows their bona fide, whereas Mst. Sohaila Perveen tried to usurp the entire property of Fazal Muhammad Chaudhry in exclusion of appellants.
19. The oral as well as documentary evidence produced by both the parties led to an irresistible conclusion that appellants are the legal heirs of deceased Fazal Muhammad Chaudhry alongwith Mst. Sohaila Perveen. Learned trial court has misread the evidence and thus drawn .a wrong conclusion.
20. The upshot of the above discussion is that impugned judgment and decree is set aside, the appeal is allowed and the suit for administration of estate of deceased Fazal Muhammad Chaudhry is decreed and the. Suit .Filed by Mst. Sohaila Perveen for declaration is dismissed. As the appellant suit was for administration of estate of deceased, the decree in favour of appellant will be deemed to be a decree as per Form 17-20 Appendix-D Schedule I C.P.C., and remaining proceedings in furtherance of decree will be conducted by the learned trial court in accordance with law.
21. Office is directed to remit the file to learned District Judge, Lahore for assigning the same to a competent court of law after preparing decree sheet.
22. As Noshaba Khanum was ousted by the learned trial court. Nor she has filed an appeal and as such there is no need to discuss her case. There is no order as to costs.