SHAFIUR RAHMAN, J.--The defendants who have been unsuccessful throughout seek leave to appeal against the judgment of the Lahore High Court dated 17-12-1983 whereby their regular second appeal was dismissed and their application for bringing on record additional evidence was refused.
2. Mst. Fazlan was the recorded owner of the suit land in Village Saowal, Tghsil Pind Dadan Khan, District Jhelum. She was the widow of Jahan Khan who died in 1918 and the mother of his sons Ahmad Khan and Qadir both of whom died in 1923. Mst. Fazlan died on 28-1-1977. The mutation of inheritance was attested on 26-5-1977 in favour of the petitioners in respect of 3/4th share which was taken to be the residue of the estate of Jahan Khan, the last male-holder The plaintiffs respondents who were the grand-sons of one Fazal Khan instituted a Civil suit challenging the right of the petitioner to inherit any share in the limited estate terminating on the death of Mst. Fazlan.
The suit was contested by the petitioners who stated that they were like the plaintiffs related in equal degree to the last male-holder and entitled to share equally with the plaintiffs. The trial Court decreed the suit of the plaintiffs holding that Jahan Khan was the last male-holder; that after excluding 1/4th share of the widow for her heirs, the remainder 3/4th was available to be inherited by the collaterals. Both the petitioners as well as the plaintiffs-respondents were held to be collaterals. Nevertheless, the plaintiffs were held to exclude from inheritance the petitioners on the ground that the plaintiffs were nearer in degree to the last male-holder at the the of his death is 1918 than were the petitioners.
3. An appeal was, therefore, taken against the judgment and decree of the trial Court by the petitioners to the District Judge. The District Judge held that not Jahan Khan but Ahmad Khan and Qadir his sons were the last male holders and as their mother Mst. Fazlan was entitled to 1/3rd share, it was only 2/3rd share which remained available for the collaterals. The finding that the plaintiffs-respondents were nearer in degree as collaterals to the last male-holders Ahmad Khan and Qadir was recorded and their suit was decreed to the extent of 2/3rd share.
4.A second appeal was filed by the petitioners who also filed an application under Order LXI, rule 27, C.P.C. They sought the admission of additional documents like the Jamabandies of the years 1885- 86, 1892-93 and 1900 and pedigree-tables for the years 1880 and 1939-40. There was also recorded an admission of the learned counsel for the petitioners that he was not in a position to support his appeal on the basis of the documents already on the record of the case. Little justifica--tion was found for admitting those documents at that stage and the second appeal was dismissed.
5. The learned counsel for the petitioners submitted before us that both the petitioners as well as the plaintiffs-respondents fell in the category of residuary and as such their remoteness or closeness to the last male-holder would make no difference to their share in inheri--tance. He, therefore, argued this legal point which it appears was at no-earlier stage urged or decided.
6. We find from the facts of the case that the fact that petitioners were collaterals of the last male- holder was not seriously in dispute and as a matter of fact, stands proved. For that reason, there was no occasion for getting additional documents to get that fact established. It is not the case of the petitioners that Khuda Bukhsh etc. The immediate predecessors-in-interest of the plaintiffs- respondents were not alive when the last male-holder died. It is also not disputed that their own immediate predecessors-in-interest, namely, Lutaf and Qutab who stood in equal degree related to the last male-holder were then dead. Though the petitioners and the plaintiffs-respondents at the the of the suit stood in equal degree related to the last male-holder but the the when the succession would be deemed to have opened would be the date of death of the late male-holder.
That being, the year 1923 the presence of Khuda Bakhsh etc. The immediate predecessor-in- interest of the plaintiffs-respondents and the absence of Lutaf and Qutab the immediate predecessor-in-interest of the petitioners would make all the difference.
7. The learned counsel for the petitioners is not correct in saying that as among the residuaries the remoteness of closeness of the relation--ship is of no consequence. The table of residuaries in order of succession under Sunni Law itself shows that the inheritance devolves from the A descendants of true grandfather how-high-so-ever on the full paternal-- uncle then on the full paternal-uncle's son and thereafter on full paternal-uncle'sson. The note appended thereafter records that:-- "Then come remoter male descendants of Nos. 17 and 18, in like order and manner as descendents of Nos. 11 and 12, Male Descendants of More Remote True Grand-fathers in like order and manner as the deceased's paternal-uncle and their sons and son's sons."
It is clear to us, therefore, that no legal error has been committed and no question requires further examination in this petition. Leave to appeal is, therefore, refused.