MALIK MUHAMMAD QAYYUM, J.-The dispute in this case relates to inheritance of Tufail Hussain who died on 1.6.1979A suit for administration of his estate was filed by respondents Nos.1 to 4 clamining to be his widow and sons. In the written statement filed by them the petitioners, who are sons and daughters of Tufail Hussain denied that respondent No. 1 was ever married to Tufail Hussain and that respondents No.2 to 4 were the children from this wedlock. The learned trial Court after framing necessary issues and recording the evidence of the parties found that Mst Anwar Begum respondent No. 1 was the duly widowed wife of Tufail Hussain deceased and respondents 2 to 4 were his children preliminary decree was consequently passed by the learned Civil Judge on 20.4.1989 Aggrieved by this decision the petitioners filed an appeal which dismissed by an Additional District Judge on 18.6.1989. Hence this petition under section 115 C.P.C.
2. The question which falla for determination in this section 115,C,P,C. Is as to whether Tufail Hussain deceased had married Arif Anwar Begum and respondents No. 2 to 4 are his children from this wedlock. Both the Courts below has after duly appraising the evidence recorded concurrent findings against the petitioners in this behalf. Such findings of fact are not liable to be interfered with in the revisional jurisdiction of this Court.
3. It was contended by Ch. Refique Ahmad Bajwa learned counsel for the petitioners that the Courts below acted illegally in taking into consideration Exh. P-3 which according to him was a photo state of the Nikahnama of Tufail Hussain deceased and Mst Anwar Begum. This argument proceeds on incorrect premises as the document Exh. P-3 is not a photo stat but a certified copy of the Nikahnama which was proved by Muhammad Anwar Secretary Union Council who appeared along with the record as P.W.4. Even othewise from the personal of the statement of this witness it in evident that the document was exhibited without any objection on the part of the petitioners and therefore it is too late in the day to raise such an objection now.
4. It was next contended by the learned counsel for the petitioners that no permission from the first wife was obtained by Tufail Hussain before contracting marriage with respondent No. 1 and therefore the marriage could not have been registered under section 6 of the Muslim Family Laws Ordinance, 1961. There can be no dispute that the proposition that Muslim Family Laws Ordinance,1961 requires a husband to obtain permission from the Arbitration Council before contracting a second marriage-The fact however remains that if a person while contracting second marriage does not obtain the requisite permission the marriage itself is not avid but he can be visited with the penal consequences contained therein. The failure to obtain permission from the first wife or the Arbitration Council as such does not invalidate the second marriage. From Syed Ali Nawaz Gardezi vs It. Coi. Muhammad Yousuf (PLD 1963 S.C.51))
5. As regards merits there is sufficient material to show that Mst Anwar Begum was legally wedded wife of Tufail Hussain and further that respondents No.2 to 4 are childrenApart from Nikahnama Exh.
P.2 the other evidence produced by the respondents in the birth certificate Exh. P-1 dated 19.1.1971 which shows that a son named Irfan Ali Hussain respondent No.4 was born to Tufail Hussain son of Hussain Bakhsh P.W.2, Mahmood Ali Stenographer, Joan Macdonald High School, stated that according to the record of the School, Rizwan Ali and Muntazir Mehdi (respondents No. 2 & 3) were sons of Tufail Hussain. School leaving Certificate Exh. P-2 was also produced in evidence P.W.3 Malik Muzaffar Hussain teacher of Muslim Government High School Said Mitha Bazar also produced the record showing that Muntazir Medhi son of Tufail Hussain was a student of his school Sajjad Hussain p. W.6,appeared and stated that he was one of the participants of the Nikah of Tufail Hussain with Mst Anwar Begum. In these circumstances it cannot be said that the findings reached by the Courts below from any legal error.
6. It was contended by Ch. Rafiq Ahmad Bajwa Advocate that the suit in its present form was not maintainable inasmuch as where the real object in filing the suit is to have a determination as to who was the sole here of the deceased no suit for administration can be filed. Reliance in this respect was placed on Chand Narain and another v. Ohasi Ram (A.I.R.1940 Lah. 179).This principle has no application to the facts of the present case. It is to be seen that the respondents plaintiffs claimining to be co-heirs of Tufail Hussain deceased along with the petitioners of his estate and filed the suit for administration. On the allegation made in the plaint there can be no doubt that the suit was for the distribution of the estate of the deceased. It was only in defence that a plea was raised that the respondents were not heirs of Tufail Hussain. The precedent case relied upon by the learned counsel for the petitioners is distinguishable on facts. In that case the plaintiffs had clearly stated that they were the only persons entitled to the estate of the deceased and the defendants had no entitlement in this behalf. It was therefore held that where there were rival claimants to the estate of the deceased each one claiming to be the heir, the suit is not for administration. In the present case the assertion of the plaintiffs, as already mentioned was that the parties had jointly inherited the estate.
7. In the last it was submitted by the learned counsel that one of the defendants Mst Azra Begum had died during the pendency of the suit before the trial Court and was survived by her heirs some of whom are minors and therefore the decree passed by the trial Court was a nullity. This contention of the learned counsel is without any merit After the amendment of Order 22 rule 4 of Code of Civil Procedure Code,1908 by the Law Reforms Ordinance, 1972 if no application is filed for bringing on record legal representatives of a deceased defendant the suit can proceed notwithstanding the death and any decree passed therein would have the same effect as if the defendant had .Not died. Admittedly no application was made for bringing on record the legal representatives of Mst-Azra Begum nor was fact of her death brought to the notice of the Court.
The suit proceeded notwithstanding her death and therefore the decree passed in this behalf is binding on her and also her heirs. Reliance in this connection may be placed upon Muhammad Sadiq v. Muhammad Sakhi through Fateh Muhammad (PLD 1989 S.C.755)
For all these reasons there is no force in this petition. It is dismissed in limine.