The dispute between the parties relates to inheritance of 131 Kanals 4 Marlas of the land, situate in the area of Chak No.272/GB, tehsil 'Jaranwala, district Faisalabad, left by Shahu who died in 1967.
Mst. Sattan (appellant 1) is the widow and Mst. Sahiban, respondent, is the daughter from pre- deceased wife, Mst. Niamat, of the late Shahu. Faiz Ahmad (appellant 2) is son, Mst. Bai (appellant 3) and Mst.' Allah Jawai (appellant 4) are daughters of late Mehra, who was brother of Shahu and was alive when Shahu expired,
2. In the first instance the Assistant Collector, Jaranwala, by his order of the 5th August, 1967, assuming Shahu to be belonging to Sunni sect of Islam at the time of his death, mutated 1/8th share of the land in question in the name of Mst. Sattan (appellant 1) as his widow, half share in favour of Mst. Sahiban (respondent) as daughter and 3/8th share in the name of Mehra as brother.
The respondent impugned the validity of the order of the Assistant Commissioner in appeal before the Collector Faisalabad. She maintained that Shahu professed Shia faith when he died and, therefore, she alone, to the exclusion of his widow and brother, was entitled to inherit the land. The Collector, by his order of the 20th February, 1968, remanded the case to the Assistant Collector for further inquiry and fresh decision. On the 20th June, 1968, the Assistant Collector, accepting the respondent's- plea that Shahu was Shia when he died mutated the entire land in the respondent's name. He denied any share to appellant l because, as he observed, under Shia law a childless widow, as she was, did not get any share in the land of her husband. This order was affirmed by the Collector on the 20th November, 1968, in appeal preferred by appellant 1 and Mehra. The revision petition filed by appellant and Mehra to assail the legality of the order of the Collector was dismissed by the learned Additional Commissioner, Sargodha, on the 4th April, 1967.
3. Appellant land Mehra instituted suit in the Civil Court of Faisalabad on the 16th May, 1969, for seeking recognition of their right of ownership to 1/8th and 3/81h share, respectively, in the land in dispute and for issuance of perpetual injunction restraining the respondent from interfering with their possession over the land. They averred that Shahu professed Sunni, and not Shia, faith when he died and, therefore, they were entitled to inherit their Sharai shares and that the respondent's claim to the entire land was not legitimate. During the pendency of suit Mehra expired and appellants 2 to 4 were brought on the record as his legal representatives.
4. The respondent contested the suit and asserted that her father, Shahu, was Shia and not Sunni.
She pleaded that he had built an Imam Kot in his land in Killa No.15/2 of Square No.45 and this fact furnished solid proof of his being a Shia. She referred to the entries of record of rights making mention of existence of an Imam Kot in Killa No.15/2 of Square No.45. She vouched for the correctness of the decisions of the Revenue Authorities.
5.The laarned trial Civil Judge, Faisalabad, formed the view that Shahu was Shia when died and, therefore, upheld the mutation order in the iespondent's favour. . He dismissed the stilt on the 14th April, 1971. The appellants' appeal met the same fate at the hands of the learned Additional District Ridge, Faisalabad, on the 15th May, 1972. Feeling aggrieved they have approached this Court in further appeal.
5-A. The main grievance of the learned counsel for the appellants is that the learned Additional District Judge while deciding appeal did not advert to and discuss the evidence produced by the appellants. Though the learned Additional District Judge did not refer to the appellants' evidence to detail he did touch the most important piece. Of evidence, namely, the entries of the Jamabandis relating to Imam Kot in Killa No.15/2 of Square No.45. He also remarked that he had gone through, the evidence, documentary, as well as oral and he thought that the appreciation made by the learned trial Court was correct. Mostly the appellants produced oral evidence to establish the fact of Shahu being a Sunni. It may be advantageous to go over their evidence. Mst. Sattan (appellant 1), while appearing as PW.1, deposed that his late husband professed Sunni faith and was not Shia.
She bore wit that no person of their family was Shia and that there was no Imam Kot in their village.
She admitted the possibility of a person belonging to her case to be Shia though she asserted that none of her relatives was Shia. Faiz Ahmad (appellant 2), PW.2, supported appellant 1. Muhammad PW.3, sisters son of Shahu and sister's husband of appellant 1, said that Shahu was Sunni and not Shia and that no person from their brotherhood was Shia. Noor Ahmad, PWA, a Kharal of the adjoining village, Chak No.273/GB, deposed that Shahu professed Suni faith and was not Shia.
Mulla, PW.5, a Khichi of Chak No.275/GB, testified that Shahu was Sunni and did not profess Shia faith. He added that he had not seen any Imam Bara in Shahu's land. Daulat PW.6, whose wife is the sister's daughter of appellant 1, stated that Shahu was Sunni and did not profess Shia faith To the same effect is the testimony of Younas, PW 7.
6. On the other hand, Mst. Sahiban (respondent), DW.1,asserted that her father professed Shia faith when he died, that he indulged in Matim and that he had built an Imam Cot on his land and also took out Zull-Jinah. Suleman DW.2 and Shana, DW.3, corroborated the testimony of the respondent.
7. The cogent piece of documentary evidence, which the learned Courts below have taken note of and which has considerably influenced their minds, consists of the entries of the Jamabandis for the years 1957-58,1961-62 and.1965--66, whose copies are Exhs.Dl, D.2 and P.3, respectively, recording existence of an A Imam Kot in Killa No.15/2 of Square No.45 in dispute. These entries, spread over a span of almost a decade, are a clear pointer to Shahu's faith because normally no Sunni would have built or allowed to be built an Imam Kot on his land. The concurrent finding of the learned Courts below in this behalf cannot but be affirmed.
8. No useful purpose can be served by allowing the appellant's application under Order XLI, rule 27 of the Code of Civil Procedure for production of copies of Jamabandis for the year 1938-39, 1942-43 and 1946-47, wherein, as they say, Killa No.15/2 has been shown to be "chair Mumkin Jangi Darakhtan" because Imam Kot might have been built after 1947, and it is the faith of the person at the time of death which is determinative of the mode of inheritance to his estate and in the Jamabandis of 1965-fib (copy of Exh.P.3), which is nearest in time to the death of Shahu, the land of Killa No.15/2 is described as "chair Mumkin Imam Kot:" Similar entries for the antecedent period, as is apparent from the perusal of the Jamabandis of 1957-58 and 196>1-62, confirm that Shahu professed Shia faith when he died. The application is rejected.
9. Under Shia Law of inheritance a childless widow takes no share in her deceased husband's lands.
(Baillie's Digest of Muhammadan Law, II, page 295, Mulla's Principles of Mahommadan Law, para. 113, and Syed Ameer A.I's Mahommadan Law.II, page 113, refer). As such petitioner 1 would not be entitled to any share out of the land in dispute. She was, therefore, rightly excluded from inheritance by the Revenue Authorities. Being daughter, the respondent would exclude the late Mehra (brother) or his children, appellants 2 to 4. The respondent would thus get the entire land. In this view of the matter the decision appealed against is unexceptionable. The appeal is, therefore, dismissed with costs.