' Shop No, 138 situate in Block No, 10, Rail Bazar, Jhang Saddar and House No, 128 situate in Block No, 12, Mohallah Paroonwala, Jhang Saddar, as described in detail in paragraph 1 of the plaint, were transferred in favour of one Abdul Aziz son of Muhammad Bakhsh of Jhang Saddar by the Settlement Authorities. The said Abdul Aziz died in the year 1960. After his death, the Settlement Authorities transferred the aforementioned properties left by Abdul Aziz deceased in favour of his two sons, namely, Abdul Majeed and Muhammad Bashir, three daughters, viz. Mst. Hussain Bibi, Mst.
Jamila Bibi and Mst. Saleema Bibi and widow Mst. Hashmat Bibi. The widow, Mst. Hashmat Bibi also died subsequently but after the enforcement of the Muslim Laws Ordinance and, therefore, her share in the suit properties devolved on the aforementioned sons and daughters and also on the children of the pre-deceased son, named Abdul Hameed, of Abdul Aziz and Mst. Hashmat Bibi, who had died in the year 1949.
2. In September, 1969, Muhammad Bashir, Mst. Hussain Bibi, Mst. Jamila Bibi and Mst. Saleema Bibi filed a suit for partition of the aforementioned properties arraying Abdul Majeed and Muhammad Saeed etc., the children of Abdul Hameed deceased, as defendants. It was alleged in the plaint that the joint property was always a source of dispute between the parties and, therefore, they wanted the partition of the same. It was further pleaded in the suit that Mst. Hussain Bibi, Mst. Jamila Bibi and Mst. Saleema Bibi had sold their share in the shop (bearing No, 138, Block 10) in favour of Muhammad Bashir vide registered sale-deed dated 11th April, 1969.
3. The suit was resisted by the defendants who pleaded inter alia that Abdul Aziz, the original transferee of the property in dispute, had in fact executed a will to the extent of 1/3rd share of his property in favour of Muhammad Saeed and Abdul Waheed, the sons of his predeceased son Abdul Hameed. It was also contended that the suit pro-property was not capable of partition and that the defendants had spent Rs, 8,000 in connection with the transfer of the suit property and, therefore, the were entitled to receive the said amount from the plaintiffs.
4. On the pleadings of the parties, the learned trial Court framed the following issues :- #TBS (1) #TBE Whether the plaintiffs purchased 1/3rd of the shop in dispute from defendants Nos. 2 to 4 ?
(2) Whether the plaintiffs have become owners to the extent of 50/72 in the property in dispute ?
(3) Whether the plaintiffs are entitled to a decree for partition of the property ?
(4) Whether the suit is maintainable in the present form ?
(5) Whether the plaint has been correctly valued for the purposes of court-fee and jurisdiction ? #TBS (7) #TBE
(6) Whether Abdul Aziz executed a will in favour of defendants Nos. 2 and 3 in regard to the property in dispute and what is its effect ?
Whether the defendants have spent Rs, 8,000 for getting the property confirmed and the plaintiffs are liable to pay this proportionate amount ?
(8) Whether the dispute between the parties in regard to the property is pending with the Settlement Department and the suit for partition is not maintainable ?
(9) Relief.
5. The learned Civil Judge, vide his judgment and decree, dated 26th November, 1975, decided all the issues in favour of the plaintiffs (respondents herein) and consequently passed a preliminary decree for partition to the extent of 50/72 share in their favour. Mr. Mukhtar Ahmad, Advocate, Jhang, was appointed as the Local Commissioner to propose the mode of partition.
6. Muhammad Saeed and Abdul Waheed, sons of Abdul Hameed, the predeceased son of Abdul Aziz, who were arrayed as defendants Nos. 2 and 3 before the trial Court and are appellants herein, preferred an appeal before the learned District Judge, Jhang, challenging the finding of the trial Court on issue No, 6 relating to the will. The learned Additional District Judge, who decided the appeal, vide his judgment and decree, dated 13th May, 1976 upheld the finding of the trial Court and dismissed the appeal.
7. The aforesaid judgments and decrees, passed by the learned trial Court and the learned Additional District Judge have been called in question through the present Regular Second Appeal by Muhammad Saeed and Abdul Waheed aforesaid. They have challenged the findings of the Courts below on issue No, 6 whereby the learned lower Courts have held that the execution of the alleged will was not proved.
8. The appellants, in order to prove the execution of the alleged will, examined D.W. 3, Abdul Ghafoor, D.W. 4 Muhammad Ibrahim, deed writer, Jhang, D.W. 5 Abdul Razzaq Patwari, D.W. 6 Naubahar, D.W. 7 Ghulam Mustafa, D. W. 10 Abdul Majeed and D. W. 11 Muhammad Saeed, one of the appellants.
9. D. W. 3 Abdul Ghafoor, record-keeper of Settlement Department brought the original will forming part of file No, 138 of Block No, 10, Jhang. Muhammad Ibrahim, deed-writer (D. W. 4) testified that he was the scribe of the will, Exh. D. 2, which he wrote at the instance of Abdul Aziz. He, however, admitted that Abdul Aziz was not personally known to him. Muhammad Ibrahim was subjected to a lengthy cross-examination about the entries in his register. The said register has been perused and there is nothing unusual with the entry pertaining to the will, Exh. D. 2, which is at serial No, 598.
Abdul Razzaq (D. W. 5) deposed that he personally knew Abdul Aziz who executed will, exhibit D. 2, in his presence. This witness signed the deed of will as a marginal witness and also identified the testator before Sheikh Gul Muhammad, Advocate, the Oath Commissioner. Naubahar (D. W. 6) in the other marginal witness of the deed of will, Exh. D.
2. He also claimed that Abdul Aziz was personally known to him and Abdul Aziz voluntarily executed the will in his presence. D.W. 7 Ghulam Mustafa stated that he had been working as clerk with Sheikh Gul Muhammad, Oath Commissioner, since dead, and that will, exhibit D. 2, was attested by the said Oath Commissioner on 3rd January, 1960. This witness identified the signatures of Sheikh Gul Muhammad under the endorsement whereby the latter attested the will. Abdul Majeed (D. W.
10) who is son of Abdul Aziz deceased and is also one of the respondents herein stated that his father bequeathed 1/3rd of his property in favour of his grandsons i. e. Sons of Abdul Hameed, the pre-deceased son of Abdul Aziz, This witness, however, admitted that the will was not executed in his presence. This witness, admittedly, contracted marriage with the widow of his brother Abdul Hameed and is thus stepfather of the appellants. Muhammad Saeed (D. W. 11), one of the appellants, stated that his grandfather bequeathed 1/3rd of his property through a written will in favour of this witness and his brother Abdul Waheed, i. e. The appellants. According to him, he and his brother were of very young age at the time of execution of the will.
10. In rebuttal, there is solitary statement of Muhammad Bashir, one of the respondents, who while appearing as P. W. 5, stated that his father never executed any will in favour of the appellants and that a forged document has been prepared during the pendency of the suit.
11. From the above resume of the parties' evidence about the' genuineness or otherwise of the will in question, it transpires that the appellants examined the scribe of the will and the two attesting witnessesA of the same. The will purports to have been attested by an Oath Commissioner who is since dead but his signatures have been proved by his clerk who claimed to be conversant with the handwriting of the, former.
12. The learned Civil Judge, while coming to the conclusion that the document, exhibit D. 2, was not a genuine document, observed that entry at serial No, 596 has been made on an added leaf which was sufficient to cast a shadow of doubt on the genuineness of this document. He further observed that D. W. 5 Abdul Razzaq was a retired Patwari and that certain documents were produced by the opposite party to show that on earlier occasions, Sheikh Gul Muhammad Advocate was a party to the preparation of bogus documents. The learned Additional District Judge, while affirming the finding of the trial Court on issue No, 6, has observed that Muhammad Ibrahim (D. W. 4), the scribe of exhibit D. 2, Abdul Razzaq (D. W. 5) and Naubahar (D. W. 6), the attesting witnesses of the deed, were highly undependable and they were forgers and liars of highest order. These remarks of the learned Additional District Judge are uncalled for as there is nothing on the record to suggest that Abdul Razzaq and Naubahar were forgers and liars of the highest order. As regards Sheikh Gul Muhammad, who is no more in this world, the learned Additional District Judge observed : "that gentleman (may God forgive him) was notorious for attesting bogus and fictitious documents." In support of these remarks, the learned Additional District Judge has placed reliance on two judgments, certified copies whereof are exhibits P. 6 and P.
8. As already observed, the entry pertaining to the will in question (Exh. D. 2) is at serial No, 598 of the register of deed-writer and not at 596 as observed by the learned Civil Judge. The observation that the entry pertaining to the will ire question is on added leaf, is also incorrect. Muhammad Ibrahim, of course, admitted that Abdul Aziz was not known to him but Abdul Razzaq and Naubahar categorically stated that they knew Abdul Aziz personally and he executed the will, Exh. D. 2, in favour of his grandsons which was signed by these witnesses also as marginal witnesses. Certainly, there is nothing on the record to show that these witnesses were forgers or liars. It has also been observed by the learned Additional District Judge that it was not forthcoming from the record as to how and from where the will in question came into possession of the appellants. This will was produced before the Settlement Authorities by the appellants and before the trial Court, it was produced by Abdul Ghafoor, record-keeper of the Settlement Department. It has also been considered that the will in question has been forged during the pendency of the suit, but this fact is contradicted by the contents of exhibit D. 2 as also of the register of the deed-writer containing the entry about the execution of this will. The will has been executed on 3rd January, 1960 while the suit has been filed in September, 1969.
13. In Kristo Gopal Nath v. Baidya Nath Khan and others (1), it was observed: "When a Court is dealing with testamentary cases where there is a large and consistent body of testimony, evidencing the signing and attestation of the will but where it is suggested that there are circumstances which raise a suspicion and make it impossible that the will could have been executed, the correct line of approach to such cases is to see that the improbability in order to prevail against such evidence must be clear and cogent and must approach very nearly to, if it does not altogether ,constitute, and impossibility.
' There is no presumption either in fact or in law as seems to be too commonly supposed that a will if propounded, must be forgery. The party who applies for probate or for letters of
(I) AIR 1939 Cal. 87 ' administration with a will annexed is no doubt required to prove the will. Such proof is usually furnished by the evidence of persons in whose presence the will was actually executed or who subscribed their names to the document, that is to say, of persons who saw the testator executing it and who put their own names to the document as attesting witnesses. In a case where such attesting witnesses are produced, and they give clear and cogent testimony regarding execution, one should require very strong circumstances to repel the effect of such testimony. It will not do to talk airly about circumstances of suspicion. It is no doubt true that a person who takes it upon himself to dispute the genuineness of a -will cannot be expected to prove a negative in many cases. At the same time, the -difficulty in which on his own seeking, he places himself, will not relieve him of the burden ; it may be a heavy burden of displacing the positive testimony on the other side. If the rests his case on suspicion, the suspicion must be a suspicion inherent in the transaction itself which is challenged and cannot be a suspicion arising out of a mere conflict of testimony."
' In Govind Prasad and others v. Kunwarani Bala Kunwar and athers (1), it was held :- "The Court is not entitled to attribute to the witnesses conspiracy and perjury, unless the story told by them, coupled with the surrounding circumstances, is of itself so unnatural and improbable that only one conclusion, viz. Conspiracy and perjury, is reasonably possible."
14. In the present case, as already observed, the appellants produced the scribe and two attesting witnesses of the deed of will, Bxh. D. 2, which has also been attested by an Oath Commissioner.
Their testimony could not be brushed aside so lightly by just observing, without an justification, that the witnesses are forgers and liars of the highest order. In rebuttal there is a solitary statement of Muhammad Bashir responden himself who stated that the will was a forged document which was forged during the pendency of the suit. This allegation is also belied by the contents of the will and those of the register of the deed-write which contains the entry regarding this will prior to the institution of the suit Mst. Hussain Bibi, one of the plaintiffs-respondents, came into the witness-box as P. W. 3 but she did not utter a single word to say that no will was executed by her father in favour of the appellants o that the will being relied upon by the appellants was a forged document. The appellants are grandsons of Abdul Aziz deceased, being sons of his pre-deceased son Abdul Hameed. Before the promulgation of the Muslim Laws Ordinance, the were not entitled to inherit any share in his property under Shariat'. It was, therefore, quite natural that in order to give due share from his property to his grandsons, Abdul Aziz executed the will in their favour. The learned trial Court and the learned Additional District Judge have been mostly influenced by two judgments, Exhs. P. 6 and P. 8, of Civil Judges of hang district wherein the conduct of Sheikh Gul Muhammad, Oath Commissioner, has been criticised. In fact, the said judgments being not inter- parties qua the parties before this Court, have little evidentiary value.
(1) AIR 1934 P C 12 ' In Mt. Muneswa ri and others v. Sm. Jugal Mohini Dasi (1), it was held :- "A judgment which is not inter-parties, is admissible only as showing that certain observations were made or certain facts found in the judgment, but not admissible as evidence of the truth of the facts found or observations made."
' Similar view was expressed in Benode Lal Chakravarty and others v. Secretary of State (2), Secretary of State v. Syed Ahmad Badsha Sahib Bahadur (3) and Ramparekha Pande and others v.
Mt. Ramjhari Kuer (4).
15. As a matter of fact, through Civil Miscellaneous Application No, 2887-C-1983, filed on 2nd June, 1983, the appellants wanted to produce additional documentary evidence, under Order XLI, rule 27, Civil Procedure Code, to show that a complaint case brought against Muhammad Ibrahim, deed- writer (D. W. 4), containing allegations of forgery against him ended in his discharge and that the High Court certified that no complaint was received against the conduct of Sheikh Gul Muhammad Advocate, the Oath Commissioner. This evidence was already available even at the stage of trial. It cannot be said that sue evidence was a new discovery. This evidence, cannot therefore, be per mitted to be produced additionally at the stage of second appeal. In Skinner R. H. v. Veronica Skinner (5), it was observed.
"Admissibility of fresh evidence, after the filing of the appeal, is subject to the principle that this discovery of new and important evidence should have been made after the exercise of due diligence."
The Civil Miscellaneous Application for production of additional evidence is, therefore, disallowed. It may, however, be observed that in the light of evidence already on the record, production of the additional) evidence is not deemed necessary for arriving at a correct conclusion.
16. A very pertinent objection has been raised on behalf of the respondents to say that the learned lower appellate Court has recorded a finding on a question of fact that will, exhibit D. 2, was a forged and fictitious document and this finding of fact cannot be interfered with in a second appeal under section 100, Civil Procedure Code, and re-appraisal of evidence in this behalf is not permissible. In support of this objection, reliance has been placed on Akbar All Shah and 3 others v.
Muhammad Shah and 4 others (6) and Abdul Majid and others v. Khalil Ahmad (7). It is true that the High Court has, ordinarily, no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact but when the lower appellate Court has arrived at a , material mistaken assumption, the High Court can come to its own ' conclusion. In Ata Muhammad Khan v. Mst.
Khanzadi and others (8), it was held that finding based on conjectures, not supported by evidence, based on misappreciation of evidence, without discussing and scrutinising
(1) AIR 1952 Cal. 368 (2) AIR 1931 Cal. 239
(3) AIR 1921 Mad. 248 (4) AIR 1933 Pat. 690
(5) AIR 1930 Lah. 1004 (6) 1982 SCMR 286
(7) PLD 1955 FC 38 (8) PLD 1976 Lab. 909 ' testimony of witnesses and vitiated by errors could not be treated sacrosanct in second appeal, In Mst. Bibi Jan v. Habib Khan and another (1), it was observed :- "No doubt it has been consistently held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact howsoever gross or inexcusable the error may be, yet there is ample authority for the proposition that no sanctity attaches even to a concurrent finding of fact based on misreading or misrepresentation of evidence as this would clearly bring the case within the scope of clause (c) of section 100, C. P. C.
' There is abundant authority for the view that the inference of proper legal effect is necessarily a question of law on which a second appeal is competent."
In Muhammad Afsar and 7 others v. Allah Ditta and 13 others (2), it was laid down :- "It is true that in a second appeal a finding of fact cannot be reversed unless that finding is vitiated by a misreading of evidence or non-consideration of material evidence. In the present case, important material evidence had been ignored. The Courts below, that High Court had failed to take into account the entries in the revenue records which consistently showed the respondents as tenants and even mutated the names of the heirs of a tenant upon his death. The landlords never objected to these entries nor made attempt to have their possession recorded as adverse to those of the tenants ..... ......No exception can, therefore, be taken to the High Court's finding that the case of abandonment has not been established."
' In Bharpura v. Diwan Chand (3), it was held that lower appellate Court's finding of fact is binding on High Court only when it is honest, is arrived on facts uninfluenced by extraneous considerations, is based on correct appreciation of material on record and is based on evidence and not on surmises and conjectures. Similar view was expressed in Vedachala Chattiar v. Ameena Bi Ammal and others (4) and Bhojraj v. Sita Ram and others (5).
17. In the light of the circumstances of the present case, as discussed above in detail, the learned trial Court as also the learned lower appellate Court, while holding that deed of will, Exh. D. 2, was a fictitious and forged document, have acted on surmises and conjectures. The learned lower Courts have failed to take into consideration the testimonies of the scribe and two independent marginal witnesses of the said document.
18. In view of the foregoing conclusions, it is held that the findings of the learned lower Courts on issue No, 6 regarding execution of will by Abdul Aziz in favour of appellants, are not sustainable and the same are, therefore, hereby reversed. Consequently, the judgments and decrees under appeal are set aside and the appeal is accepted. The case is
(1) PLD 1975 SC 295 (2) 1970 SC MR 118
(3) AIR 1940 Lab. 329 (4) AIR 1944 Mad. 121
(5) AIR 1936 P C 60 ' remanded to the learned trial Court with the direction to decide the suit afresh in accordance with law, after giving effect to the will, Exh. D.
2.
19. Muhammad Bashir, respondent No, 1 herein, who is in fact the contesting respondent, shall bear the cost of this appeal.