1. WAHEEDUDDIN AHMAD, J.-This appeal by special leave is directed against the judgment of the former High Court of West Pakistan, Lahore, in R. S. A. No. 20 of 1964, dated the 16th April 1965. By this judgment, the appeal of the respondents was accepted.
2. The dispute between the 'parties is in respect of agricultural land measuring about 240 kanals and several shops, houses, a residential bungalow and a godown etc., in Chakwal. This property belonged to Ch. Ghulam Haider of Chakwal, District Jhelum, who died on the 10th November 1959.
3. He was survived by two widows, namely, Mst. Shahzada Begum respondent No. 1 and Mst.
4. Musahiban deceased who died during the pendency of the appeal, a son Ch. Nazar Muhammad appellant No. 1 and a posthumous daughter Mst. Khalida Begum. Respondent No. 2 was born to Mst. Shahzada Begum after the demise of Ch. Ghulam Haider. Mst. Shahzada Begum respondent No. 1 and respondent No. 2 Mst. Khalida Begum claimed to be the heirs of Ch. Ghulam Haider deceased. This was denied by Nazar Muhammad and Mst. Musahiban appellants. They relied on a written-deed of divorce, Exh. D. 1, by Ghulam Haider dated the 6th November 1959, in which it was stated that 8/9 months before tie execution of the deed, Ch. Ghulam Haider had orally divorced Mst. Shahzada Begam by whom she got no child and who did not carry 4 child at the time of divorce. This led Mst. Sh4hzada Begum on her behalf and as guardian of Mst. Khalida Bugum to institute a suit in forma pauperis for a declaration that she was entitled to 3/48 share and Mst. Khalida was entitled to 14/48 share as against 3/48 share and 28/48 share of the appellants. The suit was resisted by the appellants. The appellants pleaded that Ch. Ghulam Haider died on the 10th Novem--ber 1959, and not on the 6th November 1959 ; that Mst. Shahzada Begum respondent No. 1 was not the widow of Ch. Ghulam Haider inasmuch as the deceased divorced her 9 months before his death and after that executed the divorce deed on the 6th November 1959. They further pleaded that respondent No. 2 was born two months after the death of Ch. Ghulam Haider and she is not his daughter. On the plead--ings of the parties, the trial Judge framed the following issues :-
(1) Whether Ghulam Haider, deceased had divorced Mst. Shahzada Begum plaintiff No. 1, and, therefore, she has no share in the suit property ?
(2) Whether Mst. Khalida, plaintiff No. 2, is not the daughter of Ghulam Haider, for the reason that she was born after two months of the death of Ghulam Haider deceased ?
(3) What are the shares of the parties in the suit property ?
5. The parties led evidence. Mst. Shahzada Begum was the first witness. She supported her case and denied that she was divorced either orally or in writing. She also denied that any written divorce was ever sent to her and that neither she and nor her father Noor Khan had refused to accept the written divorce. Bosta Khan was the next witness. He is a Sub-Inspector of Police. He stated that Mst.
6. Shahzada Begum reported to the police that Ghulam Haider had died on the night between 6th and 7th November 1959. He admitted that he made no personal enquiry in the matter. The third witness is Sakhi Muhammad who produced a map of the property in dispute. P. W. 3 is Sher Khan, who deposed that Mst. Khalida Begum was born two months after the death of Ghulam Haider, that she was the daughter of Ghulam Haider who belonged to his bradari and that he used to visit the deceased's house during his illness and was also present at the time of his death. He further stated that Ghulam Haider was unconscious when he visited him on the 5th November 1959, on which date he was examined by Dr. Muhammad Zaman, who, on examination, found him suffering from paralysis which proved fatal. He further stated that Ghulam Haider died on the 6th November 1959. He also stated that Ghulam Haider had mar--ried Mst. Shahzada Begum three or four years before his death and that she continued to be his wife and was never divorced by Ghulam Haider.
7. He also deposed that Col. Ghulam Haider visited the deceased in his presence after Dr. Zaman had left. He stated that on the day Ghulam Raider died, appellant Nazar Muhammad turned out Mst.
8. Shahzada Begum out of the house. P. W. Amir Ahmad Khan, a zamindar of Chakwal, stated that Ghulam Haider died on the 6th of November 1959. P. W. 5 Ghulam Haider also stated that Ghulam Haider died on the 6th November 1959. He further stated that 4 days before his death, he visited Ghulam Haider decreased and found him unconscious. He again saw him on the 5th November 1959, and found him lying with a cloth covering his head. He was still unconscious and that at the time of Ghulam Haider's death, Mst. Shahzada Begum was living in his house. He deposed that appel--lant Nazar Muhammad was on good terms with his father. P. W. 6 Dr. Zaman, who visited Ghulam Haider deceased only once, i.e., on 5 November 1959, stated that Ghulam Haider's left side was completely paralysed on that day. His condition was serious but he was not uncons-- cious. He further stated that Ghulam Haider could speak haltingly and possibly sensibly and asked him to give him an effective injection. Noor Khan P. W., father of Mst. Shahzada Begum was also examined as witness. He stated that he visited Ghulam Haider before his death and found him unconscious. At the time of his visit, Dr. Zaman was present there. He further stated that the doctor had been called by one Karam Elahi and that Ghulam Haider was sixty or seventy years of age at the time of his death. He denied having refused to accept the divorce-deed (Exh. D-1) brought by D.
9. W. Sultan Mahmood after Ghulam Haider's death.
10. Sultan Mahmood D. W. 1, Haji Khan petition-writer D. W. 2, Muhammad Khan D. W. 3, Haji Nabi Bakhsh D. W. 4, Fazal Elahi D. W. 5, Muhammad Aqil, Finger Print Expert D. W. 6, Aqil Hussain Shah D.
11. W. 7 and Nazar Muhammad D. W. 8, are the witnesses for the appellants. D. W. 1 Sultan Mahmood stated that Ghulam Haider had verbally divorced Mst. Shahzada Begum in his presence 9/10 months before his death. Exhibit D. 1 was written in the house of Ghulam Haider in the presence of Mst. Shahzada Begum. He stated definitely that the oral divorce was given on the 7th February 1959,th and that he was also present when the written divorce was written by D. W. 2 Haji Khan. The divorce deed, Exh. D. 1, after its execution, remained in his posses--sion. In cross-examination, he admitted that he lived six miles away from Chakwal and that he was specially called to be present for the verbal divorce. That Muhammad Khan, one of the attesting witnesses at the time of divorce, was called for the purpose from a shop. That at the time of oral divorce, Mst. Shahzada Begum was not pregnant. That Ghulam Haider had only an injury on his leg. He admitted that he did not produce written divorce, Exh. D-1, at the time of mutation proceedings following Ghulam Haider's death. He could not say if Mst. Shahzada Begum was present at the time of the execution of Exh. D-1. D. W. 2 Haji Khan stated that he did not know Ghulam Haider deceased and that Fazal Din, a Munshi of appellant Nazar Muhammad, identified Ghulam Haider. He deposed that Ghulam Haider was conscious and affixed his thumb-impression on Exh. D.
1. He also said that Ghulam Haider only had something wrong in his leg and that the divorce-deed was given to Fazal Din after its execution.
12. When his attention was drawn to the interpolations in Exh. D. 1, he admitted that he had not signed these corrections nor made them and that the attestations on Exh. D. 1 by Sultan Mahmood and Muhammad Khan were not in his handwriting. D. W. 3 Muhammad Khan is a Pathan shop-keeper and one of the attesting witnesses of Exh. D.
1. He stated that Ghulam Haider put his thumb-- impression on Exh. D. 1 in his presence. He also stated that the oral divorce was given in his presence by Ghulam Haider to Mst. Shahzada Begum on the 12th February 1959. He also stated that there was frequent quarrels between Ghulam Haider and Mst. Shahzada Begum and that he frequently interseded between them and had taken Mst. Shahzada Begum back to Ghulam Haider and that it was on the third occasion that Ghulam Haider had divorced her. He also stated that Ghulam Haider had only an injury on his leg which was caused by a thorn and Ghulam Haider was conscious at the time of execution of Exh. D. 1 and thereafter given to Fazal Din. D. W. 4 Nabi Bakhsh, who is a tenant of Ghulam Haider, identified his signatures. D. W. 5 Fazal Elahi stated that five or seven days before his death, Ghulam Haider was suffering from fever and had an injury on his leg.
13. He stated that Ghulam Haider died on the loth November 1959. He called the scribe and Muhammad Khan for the execution of Exh. D.
1. D. W. 6 Muhammad Aqil is a Finger-print Expert, who identified the finger prints of Ghulam Haider on Exh. D. I as genuine. D. W. 7 Aqil Hussain Shah stated that he sold stamp paper on the 5th November 1959, on which Exh. D. 1, was written. He stated that at the time he took the stamp paper to Ghulam Haider, he was in full senses. He was called by Fazal Din, Munshi of the appellant Nazar. Muhammad, that Ghulam Haider had beckoned to him to sit and only, uttered the words `talaq' in his presence but was incapable of forming, a complete sentence. D. W. 8 Nazar Muhammad appellant is the son of the deceased. He stated that his father was 90 years old when he died. He could give no reason for a written divorce, Exh. D. 1, having been execut--ed when his father was suffering from paralysis nor as to when verbal divorce had already been given. He also stated that one Dr. Zaki had examined Ghulam Haider before Dr. Zaman had been called to see his. Father on the 5th of November 1959.
14. On the evidence of the parties, the learned trial Judge, on issue No. 1, held that Mst. Shahzada Begum had been divorced by Ghulam Haider deceased and she was not entitled to succeed his estate. On issue No. 2, he held that Mst. Khalida Begum was the daughter of deceased Ghulam: ,Haider. He further held that she was born two months after his death and, as such, she was entitled to 14/48 share in the property in suit. He passed a preliminary decree in these terms and appointed a local Commissioner to partition the property in suit.
15. Both the parties filed separate appeals to the District Judge, Jhelum, which were consolidated and disposed of by Mr. M. E. Hayat on the 2nd February 1963. He dismissed the appeal of Mst. Shahzada Begum and allowed the appeal of the appellants depriving Mst. Khalida Begum of her share in the estate of Ghulam Haider.
16. After the dismissal of the appeal, one Ghulam Haider, a retired Lt.-Colonel. Made two applications dated the 14th February 1963 and 7th May 1963, to Mr. Justice Manzoor Qadir, the then Chief Justice making serious allegations against the District Judge, Jhelum. The Chief Justice made enquiries and found that no appeal or revision had been filed. He, therefore, decided to act under Article 102 of the Constitution. The record was summoned. By an order dated the 8th June 1963, the Chief Justice ordered the issue of notice to the parties. These proceedings were numbered as Civil Revision No. 466 of 1963. These proceedings however, became infructuous as the respondents, on the 8th May 1963, filed application for leave to appeal as a pauper under Order XXXIII, rule 1, read with Order XLI, section 151, C. P. C. And section. 5 of the Limitation Act. The High Court accepted the appeal and decreed the suit of the respondents. The High Court held that Mst. Khalida Begum was a posthumous child of the deceased and was entitled to inherit the property in suit. It further held that no verbal divorce was given to Mst. Shahzada Begum and that Exb. D. 1 is a forged document.
17. The oral evidence supporting it, is false and the legal implication of the introduc--petition of a false document to support unreliable evidence is that it must be discarded. It further held that it was established that Ghulam Haider died on the 10th November 1959, as a result of paralysis which proved: fatal and even if it be presumed for the sake of argument that Mst. Shahzada Begum was divorced on the 10th November 1959, she will yet according to Muslim Law, - be entitled to inherit as an heir of Ghulam Haider.
18. The appellants challenged this judgment in Civil Petition for Special Leave to Appeal No. 230 of 1965, and leave was granted to them to consider the question whether the second appeal was wrongly entertained without condoning the delay and further whether the High Court had wrongly assumed jurisdiction to review facts in the second appeal before them without any valid grounds.
19. Mr. Mahmood A.I Qasuri, learned counsel for the appellants, has con--tended that the second appeal was barred by 51 days and the High Court had not consciously condoned the delay.
20. According to him, no reason--able explanation for condoning this long delay was given by the respon--dents and the High Court should have dismissed the appeal on this ground alone. The contention of the learned counsel has no force. It is admitted by him that when the appeal was admitted for hearing by the admitting Bench, the appeal was admitted subject to just exception on the question of limitation. At the time of the final hearing the question of limitation was referred in passing and no decision was given on it as no objection was raised on behalf of the respondents in the appeal. In these circumstances, no complaint can be made that the question of limitation was not considered.
21. We have, however, considered the objection of the appellants on the question . Of limitation. The District Judge dismissed the appeal on the , 2nd FebruarY 1963. On the 6th FebruarY 1963, the respondents applied fox= copies which were delivered to the respondents' agent on the 19th'
22. February -1963. On the 17th April 1963, the respondents moved an' application under Order XXXIII, rule 1 and Order XLI, C. P. C. Along with an application under section 5 of the Limitation Act for condoning the delay in filing the appeal. The explanation of the respondents was that she had ascertained from Qazi Muhammad Yaqub; a local lawyer, who, after consulting a book on limitation informed her that period of limitation for filing an appeal is 90 days. Respondent No. I further stated that she is a pardahnasheen lady and she came along with her father to Lahore and met Raja Muhammad Anwar Advocate who, after seeing a book on law of limitation known as Tagore Law Lecture by. Mitra, informed the respondent that under Article 162 of Act IX of 1870,--- period of limitation for leave to appeal is 90 days from the date of decree appealed against.
23. According to respondent No. 1, the delay in filing the appeal beyond limitation was not intentional and was based on the mistaken legal advice by a legal practitioner. It will be noticed that under Article 156 of the Limitation Act, the period of limitation is 90 days from the date of the decree or order appealed from under the Code of Civil Procedure, to a High Court. Under Article 170, the period of limita--petition for leave to appeal as a pauper is 30 days from the date of decree or order appealed from. The explanation of the respondent is that she was given mistaken advice by a legal practitioner and, therefore, it was a sufficient ground for condoning the delay. In support of the respondents' contention, Mr. Raja Muhammad Anwar, learned counsel for the respon--dents, has relied on a decision of the Privy Council in Kumar Rajendra Bahadur Singh v. R.I Rajeshwar Bali and others (AIR 1937 PC276It was held in that case that a mistaken advice by a counsel may be considered to be a sufficient ground within section 5 of the Limitation Act for condoning the delay.
24. There is no counter-affidavit by the appellants. In these circum--stances, we would accept the explanation of the respondents and hold A that there was sufficient ground to condone the delay under section 5 of the Limitation Act. Accordingly, the delay is condoned and appeal is held to be within time.
25. It was next urged by Mr. Mahmood A.I Qasuri that under section 100 of the Civil Procedure Code, the High Court was not competent to inter--fere with the finding of fact by the Courts below. The learned counsel urged that the trial Court and the First Appellate Court have arrived at a concurrent finding of fact with regard to verbal and the written divorce given to Mst. Shahzada Begum by Ghulam Haider deceased. He further contended that the District Judge has held that Mst. Khalida was born 10/11 months after her mother Mst. Shahzada Begum had been divorced and, therefore, being an illegitimate child, she was not entitled to inherit as Ghulam Haider's heir. In support of his contention, the learned counsel has relied on Durga Chowdhrani v..Jawahir Singh Chowdhry (I L R 18 Cal. 23), Ramgopal and another v. Shams Khatoon and others (I L R 20 Cal. 93), Ravi Veraraghavulu and others v. B. Venkata Narasima Naidu (AIR1914PC87), Venkata Kumara Mahipati Suryarao, Bahadur Garu v Secretary of State (AIR 1929PC 152), Ramji Patel v. Rao Kishore Singh (AIR 1929 P C 190), Midnapur Zamindary Co. Ltd. v. Secretary of State (AIR 1929 P C 286), Abdul Majid and others v. Khalil Ahmad (PLD 1955 FC 38), Karamat A.I and another v. Muhammad Yunus Haji and others (PLD 1963 SC 191), Pathana v. Mst. Wasai and another (PLD 1965 SC 134) and Deity Pattabhiramaswamy v. S. Hanymayya and others (AIR 1959 SC 57It was held in these cases that under the Code of Civil Procedure, no second appeal will lie except on the grounds specified in section 100. An erroneous finding of fact is a different thing from an error or defect in procedure and there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem' 'to be. Raja Muhammad Anwar, learned counsel for the respondents, has contended that when there is no proper evidence in support of a finding by the First Appellate Court, or the evidence is misread or misrepresented, the finding, though one of fact, is vitiated and a Court of second appeal is entitled to review the evidence. According to the learned counsel for the respondents, in the present case, there was a misreading of evidence by the First Appellate Court and the trial Court and, therefore, the High Court was competent to review the evidence in second appeal. In support of his contention, he has relied on Mst. Fatima v. Khuda Bux (AIR 1959 SC 57The contention of the learned counsel for the respondents appears to be well founded. In cases, where there is misreading of evidence, the High Court, in second appeal, is entitled to review the evidence. .In the present case, the High Court has arrived at the following conclu--sion :- "We are convinced that the lower appellate Court on all the important aspects of the case and the trial Court on the aspect of the verbal divorce and indeed the written divorce had entirely misread and misrepresented material portions of the evidence on the issues under discussion. The findings of the learned District Judge are based on surmises and inferences not justified nor do they arise out of the evidence recorded in the suit between the parties.. Unjustified reliance has been placed on the oral evidence as to the verbal divorce given to Mst. Shahzada Begum."
26. After hearing the learned counsel for the parties, we are satisfied that the conclusion of the High Court on the evidence produced. By the parties is reasonable and no exception can be taken to it.
27. The findings of the learned District Judge are based on surmises and conjectures and not on a fair reading of the evidence of the parties. The first question is whether Mst. Shahzada Begum was given oral divorce by the deceased. The learned trial Judge has relied on the verbal divorce on the testimony of Sultan Mehmood and Muhammad Khan. He has not discussed the evidence of these witnesses and yet has relied on their evidence. The learned District Judge has also not discussed the evidence of these wit--nesses. Both the trial Court and the learned District Judge have relied on the deed of divorce, Exh. D-1 and have come to the conclusion that the verbal divorce was proved by this deed. The approach of the question in this manner is highly objectionable. The trial Judge and the District Judge should have independently examined the evidence on verbal divorce and come to the conclusion whether it was proved or not. In view of this, the High Court was perfectly justified in reviewing the evidence on this point. In this connection, the High Court observed as under - "The learned trial Judge has remarked that the only evidence with regard to the verbal divorce is the testimony of Sultan Mahmood and Muhammad Khan, both witnesses of the respondent Nazeer Muhammad. Sultan Mahmood has no special connections with deceased Ghulam Haider and lives six miles away from Chakwal and was specially called not only for the purposes of witnessing the alleged verbal divorce but also for the execution of Exh. D-1. Exhibit D-1 for some inexplicable reasons continued to remain with this witness. He admitted that before the Revenue Authorities when the mutation of Ghulam Haider's property was decided in favour of the respondent Nazar Muhammad, he did not produce the divorce deed Exh. D-1. Muhammad Khan is a pathan shopkeeper and a tenant of the respondent. There is no apparent reason why he should be interested in the alleged family quarrels between Ghulam Haider and Mst. Shahzada Begum. In our view, both Sultan Mahmood and Muhammad Khan are false witnesses. They seems very cognisant of the importance of that aspect of their testimony, which has affected the final findings and both of them stress the fact that the deceased had only one injury on his leg and was suffer--ing from no other malady.
28. Indeed Muhammad Khan went further and testified this injury to be due to a thorn imbedded in the leg. In the context of the evidence of Dr. Zaman and other circum--stances there can be no doubt that Ghulam Haider was suffering from paralysis, that his entire left side was paralysed. Dr. Zaman has clearly stated that his condition was critical. This then is the only evidence with regard to the verbal divorce given by Ghulam Haider to Mst. Shahzada Begum. There is an obvious contradiction between Sultan Mahmood and Muhammad Khan even as to the date on which the verbal divorce was given and since it is all the evidence examined on the point, we can only conclude that it is interested and false and cannot be relied on and that both the Courts below have failed to consider this important aspect, which indeed, is the very basis of the case of the respondent (Nazar Muhammad) to disinherit both Mst. Shahzada Begum and Mst. Khalida Begum."
29. The observation of the High Court appears to us to be based on proper appreciation of the evidence. Sultan Mahmood and Muhammad Khan are not reliable witnesses and their evidence has been wrongly relied upon by the trial Court and the District Judge. We, therefore, agree with the High Court that the verbal divorce in the present case has not been proved.
30. The next question is whether Exh. D. 1 was executed by the deceased and whether the recital in it that the divorce was given 8/9 months back is correct or not. In our opinion, Exh. D. 1, was executed by the deceased. We agree with the trial Judge that Exh. D. 1 was executed by the deceased when he was in senses. The evidence of Muhammad Aqil, Finger-print Expert on that point appears to be quite convincing. But this deed was interpolated. From the naked eye, it is apparent that the digits 6/7 have been changed into 8/9 at two different places. We also agree with the trial Court that these interpolations were effected after the birth of Mst. Khalida Begum in order to show that no conception had been taken place before the alleged verbal divorce. We have examined the statement of Haji Khan on this point and have come to the conclusion that he did not change the digits 6/7 to 8/9 at the time when the deed was executed. This was done later on as suggested by the trial Court after the birth of Mst. Khalida Begum.
31. After going through the evidence on the record, it appears to us that Mst. Shahzada Begum was divorced by the deed Exh. D-1 but this deed was executed at the time when the deceased was suffering from serious illness of paralysis and he died within a very short period of the execution of Exb. D-1. Under the Muhammadan Law, Mst. Shahzada Begum will be entitled to inherit as an heir of Ghulam Haider deceased. Baillie on the Digest of Muhammadan Law (Part II, p 341) has stated the law on the point as under :- "If a husband divorce his wife upon death-bed or whilst afflicated by any distemper, of which, without intervenient recovery, he after--wards dies, such divorce has no operation in law to deprive the widow of her right of succession, unless a full year shall have elapsed from the date thereof until his death, or that she herself in the meantime have married another." On this point, the commentary on the Hedayat by Charles Hamilton (2nd Edn., p. 99, Chap. V), is as under t- "If a man, lying on his death-bed, repudiate his wife either by one irreversible divorce, or by three divorces, and die before the expira--petition of her iddat, she is still entitled to her inheritance from his estate."
32. Ameer A.I on Muhammadan Law, by Raja Said Akbar, at p. 453 has stated as under :- ` .Among the Sunnis, when a man pronounces an irrevocable talak in death-illness and dies before the expiry of his wife's iddat; she is entitled to take her share in his estate unless the talak was given at her request. But if he were to die after the expiration of the iddat, her right would be lost."
33. Mst. Shahzada Begum was divorced in death-illness. Dr. Zaman has stated in clear terms that the deceased was suffering from paralysis. He examined him on the 5th November 1959, and the deceased died on the 10th November 1959, i.e., to say that the deceased died of his illness before the expiry of iddat of Mst. Shahzada Begum. She is, therefore, entitled to inherit the property of the deceased.
34. So far as Mst. Khalida Begum is concerned, she was born within two months of the death of the deceased Ghulam Haider. She was con--~ceived at the time when the marital relations between Mst. Shahzada Begum and Ghulam Haider deceased existed. She is, therefore, a legitimate child of the deceased.
35. Mst. Shahzada Begum and Mst. Khalida Begum are heirs of the deceased and are entitled to inherit the property of the deceased. . In the result, the appeal is dismissed with coats.
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