1. ' Facts of the case out of which this civil revision has arisen are that one Hayat Khan died in the year 1977. The respondents are his children from Mehr Khatoon (deceased) whereas the petitioner claims herself to be his issueless second wife. On the death of Hayat Khan Mutation No,1718-A was sanctioned on 18-12-1977 by the Revenue Authorities regarding land measuring 677 Kanals and 10 Marlas left by him treating him to be Shia by caste. She having been excluded filed a title suit on the basis of inheritance challenging the mutation referred to above. This suit has been contested by the defendants-respondents who controverted and pleaded that the petitioner has never been wife of Hayat Khan deceased and he was Shia by faith, therefore, the petitioner even if proves herself to be a widow, being issueless shall not succeed. On the basis of the pleadings of the parties learned trial Court framed the folowing issues:--
(1) Whether the plaintiff is owner in possession of the suit land? OPP
(2) Whether the Mutation No,1718-A was illegal and ineffective upon the rights of the plaintiff? OPP
(3) Whether Muhammad Hayat Khan son of Gohar Khan belonged to Shia Sect, if so, its effect? OPP
(4) Whether suit is not maintainable in its present form? OPP
(5) Whether the plaint is liable to be amended?OPD
(6) Whether plaintiff was not legally wedded wife of Muhammad Hayat deceased? OPD
(7) Whether description of the suit land is incorrect? OPD
(8) Whether the suit is time-barred? OPD
(9) Whether defendants are entitled to Rs.20,000 as special costs? OPD
(10) Whether plaintiff is entitled to the relief prayed for ? OPP
(11) Relief. ' and after recording of evidence vide judgment and decree dated 18-3-1981 decreed the suit holding that Hayat was Sunni by faith and the petitioner was his widow as she was his lawfully wedded wife. The respondents challenged this decree by way of first appeal in the District Court, Mianwali which was accepted by the learned Additional District Judge and the suit filed by the petitioner was dismissed. It has been held by the learned first appellate Court that finding of the learned trial Court to the effect that Hayat Khan was Sunni is upheld but the finding of the learned trial Court regarding status of the petitioner as widow of the deceased is set aside inasmuch as according to the learned first appellate Court, she has not been able to prove that she was ever married to Hayat. The judgment and decree passed by the learned first appellate Court has been challenged by Mst. Murad Khatoon, the plaintiff before this Court.
2. Mian Asif Mukhtar, Advocate, has appeared on behalf of the learned counsel for the petitioner. It is contended in the memo of civil revision that the finding of the learned first appellate Court to the effect that Mst. Murad Khatoon was not lawfully wedded wife of Hayat Khan deceased is incorrect and is based upon misreading of evidence and conjectures. It is further contended in the petition that there is ample evidence on record to prove that the petitioner who was an aged lady of 65 years at the time of Nikah married Hayat Khan and further that she could not have made a false allegation that she was a wife of Hayat Khan; that the entries in the electoral roll which .are relevant and strong piece of evidence clearly prove that the petitioner has been wife and now is a widow of Hayat Khan deceased and therefore oral as well as the documentary evidence taken into consideration alongwith the inferences and probabilities, proved beyond doubt that the petitioner was the lawfully wedded wife and therefore, she was entitled to inherent; and that first appellate Court has illegaly set aside the finding of fact on this point recorded by the learned trial Court although has believed the same evidence on the question of faith of the deceased.
2. ' Mr. Mahmood-ul-Hassan, Advocate, learned counsel for the respondents has vehemently argued that the real onus to prove that the petitioner was the wife of Hayat Khan deceased was upon her which she has failed to discharge. Learned counsel argued that in order to prove marriage, it is necessary that either there is some document or Nikah-Khawan and two witnesses are produced in evidence. Failure to lead such evidence will automatically prove that marriage never took place.
3. Learned counsel has taken me through statements of P.W.1, 2 and 3 and has pointed out that alleged Nikah Khawan has not been produced as a witness, P.W.3 Murad Khatoon has not named witness of Nikah in her own statement. Learned counsel has stated that the entries in the electrol roll are inadmissible in evidence to prove marriage as per law laid down in case of Diwan Mahboob Ahmad v. The Controllling Authority (PLD 1961 (W.P.) Baghdadul Jadid 15), and therefore, this documentary evidence was not of any value to prove that Mst. Murad Khatoon was the legally wedded wife of Hayat Khan deceased inasmuch as these entries were made only for the election purposes. When asked as to what was the status of Mst. Murad Khatoon in the house of Hayat deceased, learned counsel stated that she was just a maid servant and Hayat Khan might have taken fancy in her but he never married her. When further asked as to what was the evidence in negative, learned counsel has argued that respondents were not required to lead any evidence in negative to disprove a fact which has to be proved by the petitioner positively and in fact onus of issue has illegally been placed on the defendants and hence the whole trial stands vitiated.
4. According to the learned counsel, the judgment of the learned first appellate Court in fact is not well reasoned and the circumstances and the arguments which have now been raised by the learned counsel further fortified the conclusion drawn by the learned first appellate Court.
3. I have considered the arguments addressed by both the learned counsel for the parties and have gone through the record of the case. The two learned Courts below have concurrently held on the basis of same evidence that Hayat Khan was Sunni and not Shia. This finding has not been challenged by the learned counsel for the respondent, consequently, it stands conceded finalized.
5. It is admitted that Mst. Murad Khatoon was living in the house of Hayat deceased. The two witnesses and the petitioner herself have made a categorical statement that she was married with Hayat deceased. Nothing has been brought out in cross-examination of these witnesses as to why they should tell a lie. In our society, no woman of an old age will make a false claim to the effect that she has been the wife of somebody. Nothing has been brought on record by the respondents as to why the petitioner should make a false claim that she has been the wife of Hayat deceased.
6. Learned counsel for the respondents has in fact admitted that she has been living in the house of Hayat Khan deceased although he has described her status as that of a servant, possibility of taking of fancy in her has not been denied by the learned counsel for the respondents. Applying the principles of Islam that an inference which results in Pardaposhi' shall have to be drawn unless it is otherwise proved positively. In this case there is a strong probability that the petitioner and Hayat deceased were husband and wife when they were living together. Possibility of cohabitation also cannot be ruled out and this is a strong evidence of marriage between the two. See case of Major Sher Afzal v. Shamim Firdaus and another, PLD 1980 Supreme Court 228.
7. Entries in the electoral roll are an important piece of evidence and although not conclusive but can be taken into consideration alongwith other evidence while deciding a question of fact. Judgment cited by the learned counsel referred to above only lays down that entries of electoral roll are not conclusive. Relevant portion of the judgment is reproduced below :-- ' There is no doubt that the inclusion of a person's name in the electoral roll, which has been regularly prepared in accordance with procedure laid down in Electoral Roll Act, would be conclusive proof that the person has a right to vote and such an electoral roll should be acted upon in all matters relating to the election in question. But it is an altogether different thing to asset that electoral roll must be regarded as conclusive with regard to the individual entries mentioned therein even when a question regarding any of those individual particulars arises in proceedings which are not connected with that election. For instance, an electoral roll contains the name of elector's father, can it be said that such an entry must be regarded as conclusive about the parentage of the elector in proceedings where a question about his legitimacy is being raised for determinig his right to inheritance? The electoral roll may be cited as a relevant piece of evidence, but by no stretch of imagination can it be accepted as conclusive on the question of parentage It is thus clear that the entry of the petitioner's age in the electoral roll is not conclusive for any matter other than the one concerning his right to vote."
8. There is no cavil with the proposition that entries in the electoral roll are D not conclusive yet they are relevant pieces of evidence and cannot be brushed aside altogether. Learned trial Court has written a well-reasoned judgment on the question of marital status of the petitioner and the deceased but the judgment has been set aside illegally for extraneous consideration. Evidence of the witnesses of the petitioner has been believed so far as faith of the deceased is concerned but strangely enough it has been disbelieved while determining the question of marital status of the petitioner and the deceased, consequently, judgment at variance passed by the learned first appellate Court is not lawful and is not maintainable.
9. ' Resultantly, I accept this civil revision, set aside the judgment passed by the learned first appellate Court on the issue with regard to the marital status of the petitioner and Hayat deceased and hold that she was the lawfully wedded wife of the deceased and hence is his widow and is entitled to inherit and was wrongly excluded from inheritance Finding of the learned appellate Court on issue No,6 is set aside and that of the trial Court is consequently restored. Decree passed by the learned first appellate Court is set aside and the judgment and decree passed by the learned trial Court is restored with the result that the suit filed by the petitioner stands decreed with costs through out.
10. Revision accpeted.