This judgment will dispose of Writ Petitions Nos. 836 of 1965 and 1451 of 1966 as they are directed against the same order of the Additional Claims Commissioner and the Claims-Commissioner.
2. The dispute in these cases relates to the inheritance of the property which was once owned by Asghar A.I Khan deceased. Asghar A.I Khan had one son Nasir A.I Khan and two daughters namely, Mst. Rashid Qamar Sultana and Mst. Nazir Akhtar, who are respondents Nos. 3 and 4 in Writ Petition No. 1451 of 1966 and respondents Nos.4 and 5 in Writ Petition No. 836 of 1965. He also left a widow namely, Mst. Karamun Nisa. Asghar A.I Khan was murdered in 1947 during the Partition riots. His son Nasir A.I Khan was also murdered the same day. Claim Forms Nos. 2647 and 2345 were given separately by the two daughters claiming to be entitled to the entire property left by Asghar A.I Khan in equal shares. Claim Form No. 13084 was filed by Akbar A.I Khan, who claims to be a cousin of Asghar A.I Khan and his residuary. This claim was for his own property as well as for a share in the estate of Asghar A.I Khan which Akbar A.I Khan claimed to inherit from Nasir A.I Khan as a residuary. During the pendency of the claims before the Claims Commissioner, applica--tions were made by Masood A.I Khan and some other petitioners in Writ Petition No. 1451 of 1966 for their inclusion as heirs of Asghar A.I Khan.
3. The Deputy Claims Commissioner verified the claim on the 3rd November 1962, vide order Annexure `C'. He verified the claim under Schedule I, for Rs. 6,03,205 and under Schedule VI for Rs.
1,65,920. He held that not only the daughters of Asghar A.I Khan but also the petitioners in Writ Petition No. 1451 of 1966 had inherited from Asghar A.I Khan. It may be stated that the petitioners in that writ petition are the descen--dants of Mst. Fazalun Nisa sister of Asghar A.I Khan. The Deputy Claims Commissioner proceeded on the assumption that the property of Asghar A.I Khan never devolved on Nasir A.I Khan who was murdered simultaneously.
4. These appeals were filed against this order by Akbar A.I Khan and the daughters of Asghar A.I Khan. The Additional Claims Commissioner scrutinised the main claim verified by the Deputy Claims Commissioner under section 7(3) of Act III of 1956. He reduced the verified claim to a sum of Rs. 5,35,045 under Schedule I and to an amount of Rs. 1,44,976 under Schedule VI. Relying upon AIR 1922 Bom. 34 and 18 I C 814, however he held that Asghar A.I Khan should be presumed to have died first and in such circumstances the property devolved on Nasir A.I Khan, his two daughters and Mst.
Karmun Nisa widow. Nasir A.I Khan had left at the time of his death, his mother Mst. Karmun Nisa and two sisters, namely, Mst. Rashid Qamar Sultana and Mst. Nazir Akhtar. The mother was entitled to 1/6th share and the sisters to 2/3rd share, and the remainder had to go to the reversioners. Thus Mst. Fazalun Nisa was excluded. As Akbar A.I Khan claimed to be a reversioner, it was contended before him that Sardar Nabi Bakhsh father of Asghar A.I Khan and Mian Sandi Khan father of Akbar A.I Khan were illegitimate sons of Nihal Singh, a non-Muslim from a Muslim maid-servant and as such one illegitimate son could not claim inheritance from the other. The learned Additional Claims Commissioner excluded Akbar A.I Khan on this very ground. He also gave a finding of fact that no legal marriage between Nihal Singh and Mst. Malan had been established and according to the Muslim Law, there was a prohibition against the marriage of a Muslim woman with a non-Muslim male. He also came to the conclusion that for this reason Sardar Nabi Bakhsh and Mian Sandhi Khan were not full brothers although they were from the same mother. The relevant portion of his judgment is reproduced below :------ "The family tree, as indicated earlier, indicates that Nabi Bakhsh and Sandhi Khan were sons of Nihal Singh. All the witnesses, however, are clear that the mother of Sandhi Khan and Nabi Bakhsh was Mst. Malan, a Muslim maid-servant, or a keep of Nihal Singh. A copy of Gazetteer has also been filed to indicate heirs of Nihal Singh and in that these two persons have not been mentioned as sons of Nihal Singh. It is also clear that Nihal Singh did not recognize them as his valid heirs and that they were not given the. Usual allowances, which were admissible to the heirs. No legal marriage between Nihal Singh and Mst. Malan has been established. According to Muslim Law, there is also a bar to a Muslim woman against marrying a non-Muslim and, therefore, there can be no presumption and even acknowledgment cannot be accepted to give the two persons the status of full brothers. It is clearly established that Nabi Bakhsh and Sandhi Khan were not full brothers, but were from the same mother."
5. A number of revision petitions against this order were filed by Akbar A.I Khan as well as the petitioners in Writ Petition No. 1451 of 1966. A revision petition was also filed by Mst. Rashid Qamar Sultana against the order of reduction of the claim. All these revision petitions. Were dismissed by the Claims Commissioner. First the revision petitions. Of Mst. Rashid Qamar Sultana and Akbar A.I Khan were dismissed on the 18th June 1964, on the ground that the Additional Claims Commissioner had scrutinised the claim under section 7(iii) of Act III of 1956 and in the light of the Supreme Court Authority in Civil Appeal No. 75 of 1962, the Claims Commissioner could not review this order. The case relied upon by him is reported as Sh. Fazal Ahmad v. Raja Ziaullah Khan, P. C. S., Claims Commissioner, West Pakistan, Lahore (PD 1964 SC 293The appeal filed by Anwar A.I Khan etc. Was dismissed on the 17th November 1964, on the same ground.
6. The learned counsel for the petitioners in Writ Petition No. 836 of 1965 has assailed only that portion of the judgment of the learned Additional Claims Commissioner in which he had excluded Akbar A.I Khan from the inheritance of Asghar A.I Khan and Nasir A.I Khan. He contended that the learned Additional Claims Commissioner has erred in law in holding that Mian Sandhi Khan and Sardar Nabi Bakhsh were not legitimate sons of Nihal Singh. He also argued that this finding was given after 1-- Century although the parties had admitted at earlier stages that they were the descendants of the two full brothers.
7. In the grounds of revision (Annexure `G' to Writ Petition No. 836 of 1965) it has not been denied that Sardar Nabi Bakhsh and Mian Sandhi Khan were sons of a non-Muslim Malan and a Muslim maid-servant. The finding that there was no marriage between Nihal Singh and Mst. Malan has also not been challenged in these grounds. The finding of fact given by the learned Additional Claims Commissioner is, therefore, unassailable. The only question is a question of legal inference from these facts. The learned counsel could not show to me any authority to prove that even if Mst.
Malan had been married to Nihal Singh, the marriage would have been legal according to Shariat.
The learned counsel, however, relied upon section 25 of the `Principles of Mahomadan Law' by D.
Mulla (Sixteenth Edition) in which it is stated that "an illegitimate child is considered to be the child of its mother only, and as such it inherits from its mother and her relations and they inherit from such child". On the basis of this statement of law the learned counsel argued that Mian Sandhi Khan and Nabi Bakhsh, even if illegitimate, being sons of the same mother were admitted to inherit from one another and Akbar A.I Khan descendant of one child inherit from Nasir A.I Khan descendant of the other.
8. It is not necessary to give a considered judgment on this particular --question. Assuming that Mian Sandhi Khan and Sardar Nabi Bakhsh were to be deemed to be the sons of their mother, their position would be that of uterine brothers. Uterine brothers cannot be deemed to be residuaries according to Mohammadan Law. Their position may at most be that of distant Kindreds. If the last holder of the property is to be deemed to be Asghar A.I Khan, the property should be deemed to have devolved upon. Nasir A.I Khan his son, Mst. Rashid Qamar Sultana and Mst. Nazir Akhtar along with their mother Mst. Karamun Nisa. In such contingency no share of the property devolves on any other residuary. The property of Nasir A.I Khan will go to the sharers i.e. His mother and the two sisters. There will be some residue left but if there is no residuary in the field this property has to be distributed among the sharers according to principles of Return. The uterine relation in either case does not get any property from either the father or the son. The Writ Petition of Safdar A.I Khan etc., bearing No. 836 of 1965 is, therefore, liable to be dismissed for this reason alone.
9. I did not have the advantage of any argument by the learned:. Counsel for the petitioners in the other case as they did not put in appearance-- The case of the petitioners in Writ Petition No. 1451 of 1966 is that they ,are the successors of Mst.
Fazalun Nisa who outlived Asghar A.I Khan as well as Nasir A.I Khan. They claimed that in the circumstances of this case Asghar A.I Khan should be deemed to have died later, as in the ordinary course of nature the younger man should be presumed to come out to defend the family in communal disturbances and should be murderer first.
10. The first question, therefore, is whether the presumption that the ,younger survived the elder was rightly drawn. There is no statutory pre--sumption in Pakistan. In Gopal Chandra Deh Goswami and others v. Padmapani Goswami and others (181C814the High Court of Calcutta was of the view that "the. Ordinary presumption in human nature is that the elder man died first". It appears that the learned Judges had in mind section 114 of the Evidence Act. In Yeknath Kulkarni v. Laximbai Kesho Gopal (771C 117the Bombay High Court did not draw any presumption belt held that when the evidence on the question who died first is event balanced, the Court is entitled to say that the probabilities are in favour of the younger man surviving the elder. These authorities cannot apply to a case where death of both has occurred in some common catastrophe e.g., flood, earthquake or riot. In ordinary course of nature it can be said that the probability is in favour of the elder dying earlier than the younger, but in a common catastrophe all and sundry, irrespective of the age, are swept away. There can be no common course of nature in such disastrous circumstances. These authorities are clearly distinguishable and could not have been relied upon by the; Additional Claims Commissioner. Nor does the argument of the heirs of Mst.Fazalnn Nisa as given in Writ Petition No. 1451 of 1966 that in a fight the younger should he presumed to have been murdered first as being in more robust health he is expected to defend the elder stand the test of scrutiny. In a riot where swa rms of Hindus and Sikhs were attacking the Muslims it cannot be said that when the attack was launched the younger ever knew at the relevant moment that the elder has already been or is being attacked and thus had the opportunity to defend him. It is possible that the elder and the younger may have been simultaneously attacked by different groups or persons. It can also not be said whether the arms used against them or injuries received by them are similar. No presumption can, therefore, be drawn nor can any probability be visualised.
11. The presumption that the junior in age survives the senior was first laid down in Code Napolean.
By section 184 of the English Law of Property Act (1925), Ch. 20, George Vit was enacted :---- "In all cases where after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall, for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly, the younger shall be deemed to have survived the elder."
Before the enforcement of the Act the law in England was based upon precedents of the superior Courts. The leading case is Wind v. Angrative ((1960) 8 H L C 183where Lord Campbell L. C.
Observed. As follows :- "Reference was made to the Code Napolean, but according to our jurisprudence, when the question arises, which of the two individuals, who perished by the same calamity; survived, there is no inference of law from age or sex, and the question is to be decided upon the circumstances proved in each particular case. In the present case, if the question had been tried by a Judge governed by the Code Nepolean, he must have treated it at first as a question of fact, to be.
Decided by the circumstances in evidence for the residents of the Shipwreck are detailed by the eye-witnesses, who saw both the husband and the wife carried out by the fatal wave in which they perished. According to the Code Nepolean `la presumptior de survie est determinee par les circumstanced due fait, et a leur defaut, par la force de Page on de sexe'. Therefore, till the Judge had come to the conclusion that the circumstances proved established a perfect equipoise, he could not have resorted to the presumption of law, which, in the absence of satisfactory evidence, he is bound to respect. But with us such a question is always from first to last a pure question of fact, the onus probandi lying on the party who asserts the affirmative."
Angrave by the House of Lords was applied by the Privy Council to India in K. S. Agha Mir Ahmad Shah and another v. Mir Mudassir Shah and others (AIR1944PC100In that case the appellants were parents of Lady Shams Shah, who was the wife of a retired Officer of the Political Service of the Government of India. The respondents were the nephews of the husband. Both husband and wife lost their life in an earthquake. The parents of Lady Shams Shah claimed that their daughter survived the husband and consequently she was entitled to one-fourth of the husband's estate.
The appeal was dismissed as this could not be affirmatively established. Same view was taken by the Oudh Chief Court in Mst. Neksi Kaur v. Mst. Jawala Kaur. (AIR1934Oudh101and by the Calcutta High Court in Bigendra Kumar Roy v. Kuti Mian (A-1 R 1944 Cal. 132In Principle and Digest of the Law of Evidence by Monir (pp. 894 to 902, 3rd Edition) the learned Commentator has reproduced a list of presumption given by Lavmon in his work on Presumptive Evidence with reference to American Law. The rules regarding presumption of survivorship are as follows;------ "Rule 54.-There is no presumption as to the order in which two or more persons died, who are shown to have perished in the same accident, shipwreck or battle. The law regards them as having died at the same instant.
Rule 55.-But where the calamity, though common to all, consists of a series of successive events, separated from each other in point of time and character and each likely to produce death upon the several victims, according to the degree of exposure to it, the difference in age, sex or health may raise an inference of survivorship.
Rule 56.-And the one of several in a common danger which proved fatal to all, who was last seen or heard of alive within the operation of the cause of death, is presumed to have survived the others."
I may here refer to another authority of the Sind Chief Court. In S. M. Compibhai and another v.
Chakarmal Mulchand (AIR 1939 Sind 234the question was whether Papurbai, mother died first or Mathuribai, daughter. The Court found itself unable to determine the question. The Court the looked for the heirs of the daughter and not of the mother. In the present case in one way it can be argued that the onus probandi was equal on both parties as respondents Nos. 3 and 4 have to establish that Asghar A.I Khan died first while the petitioners have to prove that Nasir A.I Khan was first murdered. The correct principle to be applied is who fails if the onus A is not discharged. Clearly the losers in this case must be heirs of Mst. Afzalun Nisa, since the daughters of Asghar A.I Khan are sharers and must inherit whether they inherit from father or from brother. Since there is no proof that Nasir A.I Khan died first, the petitioners in Writ Petition No. 1451 of 1966 stand excluded.
12. Both the writ petitions are dismissed with costs.