MUNAWWAR ELAHEE RANA, .r.-This appeal is directed against the judg--ment anddecree dated 2nd December 1971 whereby the learned Civil Judge, Khanewal decreed the suit and held the plaintiffs-respondents entitled to 2/3rd of the property as sons of Syed Muhammad Afzal Shah.
2, The plaintiffs-respondents in their suit for declaration claimed 2/3 share under custom as sons of Syed Muhammad Afzal Shah and assailed mutation No. 178 (and also the subsequent mutation No. 180) which, according to them, was sanctioned in favour of the appellant --defendant Syed Bahaud Din Shah as well as in favour of his step-brother, Nazar Muhammad Shah with the connivance of the revenue authorities with au intent to take undue advantage of the respondents' minority and to exclude them from inheritance. Another mutation No. 238 was also made on 15th January, 1950 to evidence alienation of a part of the property by Syed Bahaud Din Shah to his sons, namely Rajan Bakhsh Shah and Fida Hussain Shah. They were thus also mad: parties as defendants Nos. 2 and 3 in the suit.
3. The suit was contested and it was averred inter alia that Mst. Sattan, the mother of the plaintiffs and Nazar Muhammad Shah, during her marriage with Samanda had developed illicit relations with Syed Muhammad Afzal Shah and ultimately sometimes in the beginning of the year 1940 got the divorce from her husband and contracted nikah with Syed Muhammad Afzal Shah. It was, however, stated that Nazar Muhammad Shah, having been born out of the new wedlock, and thus being the legitimate son of Syed Muhammad Afzal Shah, was entitled to a share. The defendants were adamant in saying that the plaintiffs were not the legitimate sons of Syed Muhammad Afzal Shah and did not, therefore, hold a right to inherit the estzte. fee and jurisdiction ?rd
(2) Is the suit within time ?
5. In view of an earlier order of the Court, the deficiency was made up. Issue Nos. 1 was thus held uncalled for. Issues Nos. 2 and 3 were found in favour of the plaintiffs-respondents and it was held that the plaintiffs were minors at the time the mutations were attested, and the suit having been filed within 3 years of their attaining majority was within time. It was held in respect of issue No,. 4 that the plaintiffs were the sons of the deceased Syed Muhammad Afzal Shah. The suit was consequently decreed with costs.
6. The appellants have concentrated on issue No. 4 alone. It was in the first instance urged that the marriage of Mst. Sattan, the mother of the plaintiffs-respondents with Samanda although urged in the written statement was not brought to an issue. It was also urged that the version that the plaintiffs were the issues of Samanda and were thus not entitled to any share in the property in dispute was not adverted to by the learned trial Court and no finding in that respect was recorded.
The provisions of rule 1 of Order XIV, C.P.C. Were referred to for showing that the issues that Mst.
Sattan was married and then divorced by Samanda in the year 1940 and also that the plaintiffs were the sons of Samanda were not framed although they did arise from the pleadings of the defendants.. The argument has no force. It is true that the defendants have taken up this version in their written statement, but the same has not been ignored. Issue No. 4 as framed is sufficiently comprehensive and covers the dispute raised by the appellants in their written statement. For proving that they are the sons of Syed Muhammad Afzal Shah, the plaintiffs have to show that they were the outcome of the wedlock of Syed Muhammad Afzal Shah and Mst. Sattan and on the other hand the defendants-appellants have to produce evidence that at the relevant time the marriage of Mst. Sattan with Samanda subsisted, and as it is evident from record, the appellants did lead evidence on the point of marriage of Mst. Sattan with Samanda, her divorce and her marriage with Syed Muhammad Afzal Shah. That being so, the mere omission to frame an issue is .By itself not fatal where substantial justice has been done and where this irregularity has not affected the merits of the case. In this suit the parties were fully aware of the points requiring determination, they led evidence and the controversy was decided by the Court. In such state of affairs the necessity of anissue as claimed does not arise.
7. It was further urged that the birth entry of Gul Muhammad Shah (Exh. P. 9) did not prove him to be the son of Syed Muhammad Afzal Shah on the hypothesis that Mst. Sattan was divorced in 1940, and having been born during the wedlock of Samanda, his parentage would be attribut--able to Samanda. We cannot agree unless it is first presumed that Mst. Sattan was married to Samanda, that she was ever divorced by him and that too in the year 1940 and that she afterwards contracted a second marriage with Syed Muhammad Afzal Shah. Since the assertion about the legitimacy was raised by the appellants in their written statement, it was for them to prove that the assertion was correct. Mehr Mal D.W. 1 had attended the nikah ceremony of Samanda with Mst.
Sattan about 46 or 47 years ago, but 5 or 6 years after both of them were said to have left Mauza Garb Maharaj and settled in Mauza Fazil Shahwala. The witness stated that he had never gone to that mauza. He, therefore, could not say what had happened to the spouses after they had left. He stated that about 18 or 19 years ago Samanda had returned to his place of original residence and told the witness that he had divorced Mst. Sattan, because she had developed illicit relations with Syed Muhammad Afzal Shah. This statement cannot be given much weight because he had heard Samanda saying so when he was all alone. Khan Muhammad D.W. 5 is again a witness whom Samanda talked to about 17 years back that he had divorced Mst. Sattan on account of her illicit relations with Syed Muhammad Afzal Shah. He admitted that he was not present at the time when Samanda had divorced Mst. Sattan. His statement on the point of divorce is also worthless. Mahar Ahmad Bakhsh D.W. 4, a witness of divorce, stated that Samanda bad divorced Mst. Sattan in his presence about 18 or 19 years ago, the reason according to him being that she had illicit connection with Syed Muhammad Afzal Shah. He appears to be a solitary witness on the point of pronouncement of talak. He said that Bahawal Shah was a resident of Koreywala situated at a distance of 11 miles from village Fazil Shah and that he had gone there to complain about the bad character of Syed Muhammad Afzal Shah. Bahawal Shah did not appear to support the witness. His statement was thus rightly rejected. Maulvi Muhammad Yar D. W. 6 claims to have read the nikah of Mst. Sattan with Syed Muhammad Afzal Shah but he was not a nikahkhawn of the village, nor did he maintain a register for this purpose. It was not made out why the nikah was performed by an outsider, and why was the nikah khawn of the same village who maintained a register not invited.
D. W-7 Pathana son of Allah Ditta like Mehr Mal D. W 1 and Khan Muhammad D. W. 5 simply heard Samanda saying that he had divorced her as she was snatched away from him. D.W. 8 Muhammad Nawaz stated that he and Pathana were the witnesses of the nikah of Mst. Sattan with Syed Muhammad Afzal Shah. Pathana son of Bahadur D.W. 9 also stated the same, Muhammad Hussain D.W. 10 was another witness who also said the same. But their statements do not inspire confidence inasmuch as the nikahkhawn of the village could not be dispensed with without a reasonable ground. Maulvi Ahmad Yar stated that the bride. Groom was not garlanded, but according to Pathana D. W. 9 Syed Muhammad Afzal Shah was garlanded at the time of the nikah.
His statement was contradictory to that of Muhammad Hussain in respect of a few details. Ramzan D.W. 11 cannot be safely believed because he was a "Riaya" (apparently a menial) of the defendant and other Syeds of village Fazil Shah. He was not present at the time of divorce of Mst. Sattan. The entire structure of the evidence-is such that the exact time and the place of Samanda's divorcing Mst. Sattan remains doubtful. It was, therefore, not made out that the divorce was ever pronounced by Samanda to Mst. Sattan, and that it had taken place in the year 1940. It was also not successfully proved that the marriage between Syed Muhammad Afzal Shah and Mst. Sattan was ever performed in the presence of the witnesses aforementioned. The birth entry of Gul Muhammad Shah dated 1st July, 1938, therefore, did not disprove his parentage mentioned in it.
8. Besides the oral testimonies of Khan Beg P.W.9, Wali Dad P.W. 10 and Jaman Shah P.W. 11, the statement of Mst. Sattan as P.W. 12 is most important. She is the mother of the plaintiffs and is in the best position to say that they were the suns of Syed Muhammad Afzal Shah born during his legitimate . Marriage with Mst. Sattan. She stated as P. W. 12 that her marriage was performed in the month of Chet at Chah Muhammad Afzal Shahwala when she was 18 years of age. She had four children from Muhammad Afzal Shah. The first child was Mst, Gaman Bibi. After her Din Muhammad Shah was born and then Gul Muhammad Shah and the last born was Nazar Muhammad Shah. All the four were duly vaccinated and the plaintiffs were admitted to the school. The denied that she was ever wedded to Samanda. She also denied that her statement was recorded by any local Commissioner `in respect of the attestation of any mutation of the property left by Muhammad Afzal Shah. Her evidence relating to the legitimacy of the plaintiffs is so material and weighty that the alleged story of her. Marriage having taken with Syed Muhammad Afzal Shah particularly in the year 1940 after being divorced by Samanda the same year, appears to be fabricated, especially when there is no direct evidence, ocular or docu--mentary on record, about her divorce by Samanda, nor is there any reliable version, as stated above, in respect of her marriage in the year 1940.
9. Much reliance was placed on an admission (Exh. D. 1) alleged to have been made by Mst. Sattan before the local Commissioner in connec--tion with mutation No. 178. It appears from the statement Ex. D. 1 recorded by D.W. 3 Baqa Muhammad Qanungo that she had given an account of the birth of the plaintiffs stating that they were born before her marriage with Syed Muhammad Afzal Shah. She had categorically denied having made the statement. Baqa Muhammad who was said to have recorded her statement appeared as D.W.3 and had to admit that the name of Sattan's father was not mentioned in the statement, nor was her age recorded. Her caste was shown as Syed Bukhari although she was not a Syed. Mst. Sattan was then in pardah and was sitting inside the room whom the witness did not see. That being the position it may be inferred that the statement Ex. D. 1 as attributed to Mst. Sattan was not made by her. Haji Muhammad Asad Shah was said to have identified the lady but he was not a man of status like a lambardar who was capable of giving authenticity to the document. Muhammad Asad Shah who had identified Mst.
Sattan was an uncle of the appellant-- defendant, but he did not appear as a witness because, according to Khuda Bakhsh D.W. 12, he had died. The other person identifying the lady was Muhammad Murad who was also said to have died. Without their production or leading secondary evidence in that regard it could not, therefore, be said that the statement Exh. D. 1 was proved to have been made by her. The simple fact that the thumb impression on the statement was, on the basis of the statement of D. W. 14, found to be hers and by virtue of pdrcha nikah (Exh. D. 5) the nikah of Samanda appeared to have been performed with her, did not mean that the statement of Mst. Sattan could be disbelieved altogether. The uncle of the appellant who apparen--tly played the role of identifying the lady could go a step further with the connivance of the Qanungo and use a paper on which the thumb mark of the lady might have been obtained earlier. Ttiat being the position the alleged statement of Mst. Sattan was rightly not attributed to her. The defendant Bahaud Din Shah as D. W. 15 is the party and cannot contribute much to his own case.
10. The marriage of Mst. Sattan with Samanda was not supported by a very strong evidence.
Although Mahr Mala D. W. 1, Khan Muhammad D.W.5 and Pathana son of Allah Ditta D.W.7 put light on the marriage, but their statements are so materially discrepant that no reliance can be placed on them. Mahr Mala stated that Samanda resided in mauza Garb Mahraj, but according to Khan Muhammad D.W. 5 Samanda was resident of Garb Tal. So says Pathana. It appears from the nikahnuma Exh. D. 5 dated 12th September, 1911 that Samanda was resident of Mauza Khan Bahadur Garb. The document although appears to be more than 30 years old but no evidence has been led to show that it was produced from the proper custody. Documents are said to be in proper custody if they arc in the place in which, and under e the care of the person with whom, they would naturally be, but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an original probable. But in the instant case it has not been shown that the document Exh. D. 5 produced from the custody of the District Council was the proper custody in the eye of law. It is also not proved by cogent evidence that the document was 30 years old. None of the witnesses like Mahr Mal, Khan Muhammad and Pathna stated that the nikah was reduced to writing and who had made the entries in the register.
Without such formal proof the document cannot be deemed to carry the presump--tion as required by section 90 of the Evidence Act (I of 1872). This much evidence does not suffice to conclude that Mst. Sattan was ever married to Samanda. According to Mahr Ahmad Bakhsh D. W. 4 Samanda was the son of Bahawala although in fact be was son of Pahlwan. According to the alleged witnesses as well as to the original of the nikah--nama Exh. D. 5 summoned by us, the spouses were minors. Samanda was 12 years old and Mst. Sattan was 9 years when they were married. Being minors they were not supposed to accord their free consent and bind themselves to a tie which needs positive offer and acceptance. 1t was also not shown how much was the dower.
The consideration cannot be deemed to be valid. Such a marriage, if there was any, was not binding on the parties.
Even if that marriage was proved, the divorce also took place without much delay. The witness D.W.
4 stated that Samanda had divorced Msi. Sattan when he was of 18 years or 20 years old. In view of the contents of Exh. D. 5 the nikah was performed on 12th September 1911. Samanda was then nearly 12 years old. As the witness stated the divorce took place at the time when Samanda was 18 or 20 years old. That means that Mst. Sattan was divorced six years or eight years of the marriage which appeared to have taken place in the year 1917 or 1919 and not in 1940 as disclosed by the witnesses referred to earlier.
11. 1t also comes in evidence that Ust. Sattan was regularly living with Syed Muhammad Afzal Shah at the time of the birth of the plaintiffs and their elder sister. Even if no marriage was specifically proved by the respondents on record, but the legitimacy of a child may be presumed from circumstances from which a marriage itself between its parents may be presumed. In the same way marriage will be presumed in the absence of direct proof, from prolonged and continual cohabitation as husband and were. It was not denied that both Syed Muhammad Afzal Shah and Mst. Sattan lived together continuously and during that period the plaintiffs as well as Mst. Gamin Bibi were born. This fact was by itself sufficient to infer that they were the legitimate children of, Syed Muhammad Afzal Shah.
12. We do not agree that the circumstance that Nazar Muhammad was admitted by the appellants to be the legitimate son of Syed Muhammad Afzal Shah gave an inference that the other two namely the plaintiffs-respondents were rightly taken as illegitimate sons and that they did not tell a lie. The learned trial Court was right in not relying on this inference specially when there was sufficient evidence on record to prove otherwise.
13. Vaccination certificate (Exh. P. 8) of Mst. Gamin Bibi the elder sister of the plaintiffs-respondents shows that she was vaccinated on 14th November, 1936 as daughter of Syed Muhammad Afzal Shah. This document was proved by Ata Ullah clerk P. W. 14, Rahim Bakhsh P. W. 16 as attesting witnesses and supported by Mst. Gamin herself as P.W.
13. The persons preparing the copy have proved it, Similarly the vaccination certificate Gul Muhammad Shah and the other Exh. P. 2 of Dur Muhammad Shah were proved by similar witnesses. It shows at least this much that Mst, Gaman and the plaintiffs-respondents were the daughter and the sons of Syed Muhammad Afzal Shah and the relevant entries were made when he was alive. According to section 35 of the Evidence Act (I of 1872) an entry in any public or other official book register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact. It shows that entries were made by, or under the direction of the person whose duty it was to make them at the relevant time. These documents were relevant in so far as the paternity of the children was concerned, It was, therefore, amply established that the plaintiffs were the legitimate sons of Syed Muhammad Afzal Shah and they were thus entitled to 2/3 share as claimed them.