' The only question falling for determination in Regular Second Appeal No, 422 of 1965 and Civil Revision No, 2851/D of 1989, is "whether Mst. Allah Jawai (now deceased) was sister of last male- holder/Maula Bakhsh and was so entitled to inherit as sister from his landed as well as immovable estate". This dispute has come to this Court in circumstances which are being noted in following paragraph.
2. Maula Bakhsh (deceased) was the proprietor of Mauza Wah-Garey and Mauza Triddeywali, situated in Tehsil Ferozwala, District Sheikhupura. Agricultural land measuring 599 Kanals 12 Marlas in Village Wah-Garey and , 13 Kanals 5 Marlas in Village Triddeywali belonged to him. In addition to these properties, he was owner of three houses in Village Wah-Geray. The dispute herein pertains to agricultural land and three houses situated in Village Wah-Garey, these shall be hereinafter described as "suit properties". Maula Bakhsh died in year 1941 and was survived by three heirs namely (1) Mst. Jewan (widow), (2) Mst. Zainab Bibi and (3) Mst. Allah Jawai (sister). After his death, suit properties were entered into the name of Mst. Jewan (widow) as limited owner. In year 1941 Mst.
Jewan donated the suit properties in favour of Nazir Ali and Faqir Ali, who were sons of Mst. Zainab Bibi. The collaterals of Maula Bakhsh sued for seeking declaration that the transaction of gift made in favour of Nazir and Faqir Ali was void and of no lawful consequence upon their rights. This suit was dismissed by the Court of first instance. On appeal, the first Court of appeal decreed the suit.
Feeling aggrieved from the above decision, the second appeals were filed in this Court. During the pendency of these appeals, Faqir Ali died and his legal heirs were not brought on record within the prescribed time. Resultantly, second appeals abated, with regard to the share of Faqir Ali. This Court vide decision dated 2-3-1953 accepted the appeal to the extent of Nazir Ali and alienation in his favour was adjudged invalid. Nazir Ali and Faqir Ali, thereafter, mortgaged 116 Kanals 18 Marlas out of suit land in favour of Sher Muhammad. Mst. Jewan, too, subsequently mortgaged 299 Kanals 16 Marlas out of the suit land to Mohkam-ud-Din and Ghulam Muhammad on 1-4-1957. She made the sale of some land in favour of Nazir Ali for a sum of Rs,16,000. In this background, Mst. Allah Jewai (deceased) filed a suit for seeking possession of his share in suit properties alleging therein that she was the sister of Maula Bakhsh, was entitled to inherit 7/16 shares in suit properties that alienations of suit properties made by Nazir Ali, Faqir Ali and Mst. Jewan were null and void and of no lawful consequence upon her rights.
3. The suit was resisted. It was pleaded in the written statement that Mst. Allah Jawai was not the sister of Maula Bakhsh; that the alienations made by Mst. Jewan as well as Nazir Ali and Faqir Ali were correct. On the pleadings of the parties, necessary issues were framed. The learned trial Court, on the assessm ent of the evidence adduced by the parties, found that Mst. Allah Jawai was not the sister of Maula Bakhsh and so her suit was dismissed vide decision dated 29-6-1963.
Against this decision, Mst. Allah Jawai preferred appeal which was accepted by means of decision dated 6-2-1965. The learned appellate Court came to the conclusion that Mst. Allah Jawai was the sister of Maula Bakhsh and so was entitled to inherit from suit properties. Resultantly the learned first Court of appeal awarded her decree of 1/2 of the suit properties which stood in the name of Nazir Ali only. The decree was to the extent of 3/16 of the suit property instead of 7/16 of the suit properties.
4. The above decision rendered by the first appellate Court led to the filing of the two Regular Second Appeals namely R.SA. No, 284/65 and R.S.A. 422/65. The former was filed by Nazir Ali one of the legal heirs of Mst. Zainab Bibi. It was admitted to regular hearing on 27-4-1965 while the latter was filed on 19-4-1965 and was admitted to Regular hearing on 5-4-1966. Surprisingly, the former appeal came up for hearing on 1-6-1985 and was dismissed by his Lordship Mr. Justice Akhtar Hassan (as he then was) in following words:--- "This suit was based upon Custom. Under section 2-A, clauses (b) and (c), West Pakistan Muslim Personal Law (Shariat) Act (Amendment)
' Ordinance, 1983, the appeal shall abate whereas the decree under appeal has become void. The appeal is disposed of having abated."
5. The Regular Second Appeal No, 422/65 came up for hearing before his Lordship Mr. Justice Muhammad Ilyas (as he then was) and was disposed of vide a decision dated 26-4-1992. The operative part of the order is as follows:--- "As explained, above, ruling of my learned brother that the entire decree assailed herein 'has become void' has attained finality. It is, therefore, holding the field. Also for the reasons given above, I cannot sit in appeal over the verdict of my learned brother. In this state of affairs, I am constrained to proceed on the premises that the decree under appeal has already been found to be void and, therefore, there is neither any occasion nor I have the jurisdiction to examine the correctness or otherwise of the said decree."
' Feeling aggrieved from above decision, the legal heirs of Mst. Allah Jawai filed Civil Appeal No,1095 of 1990 before the Supreme Court.
6. Having noted the above factual background, it is now appropriate to refer to few facts, for the disposal of Civil Revision No, 2851 of 1989. Pursuant to the decision of the High Court in R.S.A. 284 of 1965 the vendees moved an application under section 144 of the Code of Civil Procedure for the restitution of suit properties. The application was contested. After recording the evidence of the parties, the learned Court of first instance allowed the application. On appeal, the learned first appellate Court affirmed the decision of the first Court. It however, set aside the findings of the first Court as far as the right of vendees to receive the mesne profits was concerned. Against the decision of the appellate Court, the legal heirs of Allah Jawai filed Revision Petition No, 2851 of 1989 which was dismissed by his Lordship Mr. Justice Akhtar Hassan (as he then was) vide an order dated 2-1-1990. Against this decision, the legal heirs of Allah Jawai went to the Supreme Court and filed Civil Appeal No, 773 of 1992.
7. Civil Appeals Nos. 1095 and 773 to 1992 came up for hearing before Supreme Court on 10th of January, 1993 and were disposed of in consonance with the agreement of the parties in following terms:--- "Both the learned counsel stated that the question whether Mst. Allah Jawai was a sister of the last male-holder Maula Bakhsh not having been decided by the High Court, the case should be remanded to it, so that the parties should have opportunity if needed, of taking the matter to Supreme Court. They as already noted, agreed that regardless of the legal technicalities (including of abatement, finality of orders), the controversy regarding inheritance should be decided on the basis of the Islamic Law on the subject. They also agreed that Mst. Jiwan the widow had held the property as limited owner, therefore, the devolution under the Islamic Law shall be in accordance with the said position of the estate of Mst. Jiwan. They have also agreed that in case of a positive finding by the High Court that Mst. Allah Jawai was the sister of the deceased, last male-holder, she would get her share in accordance with Islamic Law and same will be the position of the two other heirs; namely, Mst. Jiwan widow and Mst. Zainab Bibi daughter. They would also get their respective shares under the Islamic Law. The gift made by Mst. Jiwan widow to the two sons of Mst. Zainab Bibi shall be treated as void and non-existent. However, it will be open for the High Court to distribute the share of the widow Mst. Jiwan in accordance with Islamic Law of Inheritance.
' Counsel's conduct is commendable, as conducive to Islamic culture litigation.
' The agreement reached by the learned counsel thus is fair and in accordance with the spirit of the Islamic Law of Inheritance. We accepting the said agreement, accordingly, allowing this appeal partly and remand the case to the High Court for the purposes abovestated."
' This is how R.S.A No, 422/65 and Revision Petition No, 2851-D of 1989 have come to this Court again.
8. Learned counsel for the appellant in support of this appeal, contended that P.W.1 and P.W.8 clearly stated that Mst. Allah Jawai was the sister of Maula Bakhsh; that P.W.4 Nazir Ali appeared in the witness-box and stated on oath that he was grandson of Mst. Allah Jawai, the sister of Maula Bakhsh. According to the learned counsel, this P.W. Was the grandson of Mst. Allah Jawai and so possessed special means of knowledge with regard to the relationship of Mst. Allah Jawai with Maula Bakhsh. On the basis of the above testimony, it was emphasised that testimony of P.W.1, P.W.4 and P.W.8 coupled with the admissions of Mst. Jiwan and Mst. Zainab contained in Mutation No,931 attested on 18-5-1961 Exh. P-2, was sufficient to prove that Mst. Allah Jawai was the sister of Maula Bakhsh. Reliance was placed on Anwar v. Sher Bahadur 1990 CLC 274.
9. On the contrary, learned counsel for the respondent, strenuously supported the finding rendered by the first Court that Mst. Allah Jawai was not the sister of Maula Bakhsh. Relying upon statement of D.W. 5, it was contended was Mst. Allah Jawai, in fact, was the daughter of Nathu: that the name of her mother was Mst.. Taban who was the sister of Bakhat Bhari, the sister of mother of Maula Bakhsh. It was further stated that Mst. Allah Jawai was brought up in the house of Maula Bakhsh on account of above relationship. According to the learned counsel, the admissions contained in mutation, Exh. P-2 were valueless as the entries of mutation were not substantive evidence.
10. The question for decision, as stated above is "whether Mst. Allah Jawai was the sister of Maula Bakhsh. Before I proceed to deal with the contentions of the parties, I find it necessary to reiterate two well-settled rules of law having decisive bearing on the resolution of this .Question. Firstly, that the members of the family are presumed to have special means of knowledge regarding relationship of the other members of the family. Their evidence is, therefore, covered by section 50 of the Evidence Act. See Sitaji v. Bijendra Narain AIR 1954 SC 601, Ghulam Muhammad v. Allah Yar PLD 1965 Lah. 482, Haji Ilahi Bakhsh v. Mst. Nawab Bibi PLD 1966 Lah. 664 and Anwar v. Sher Bahadur 1990 CLC 274. Secondly, the entries of a mutation which are not incorporated in the Jamabandi do not carry the presumption of truth and are intended to keep record for the collection of Land Revenue; that these entries are prepared by officials in discharge of their official duties and are admissible in evidence under Article 49 of the Qanun-e-Shahadat, 1984: that these are entitled to weight according to the circumstances of each case. It is for the party who relies upon them to prove them also. The onus to prove the evidential value of these entries upon those who are beneficiaries of these entries. See Nagheshar Bakhsh Singh v. Mst. Genesha AIR 1920 PC 46, Gangabai v. Fakir Gowadda AIR 1930 PC 93 and Niaz Ali v. Muhammad Din PLD 1993 Lah.
33.
11. Guided by the above rules, I now turn to the assessment of the evidence of the parties. Besides documentary evidence, the oral evidence of Mst. Allah Jawai comprises of P.W. 1, P.W. 2, P.W. 3, P.W.
4, P.W. 5, P.W. 6, P.W. 7 and P.W.
8. As far as P.W. 1, P.W. 2, P.W. 3, P.W. 5 and P.W. 8 are c concerned, their evidence is valueless as neither these witnesses were the members of the family nor were on friendly terms with the family of Maula Bakhsh. Their testimony, so, is not relevant as enacted by section 50 of the Evidence Act.
The evidence of Nazir Hassan, P.W. 4, Abdullah, P.W. 6 and Shaukat Ali, P.W. 7 is relevant. P.W. 4 is grandson of Mst. Allah Jawai. Being member of the family, his testimony is covered by section 50 of the Evidence Act, is a competent witness to depose about the relationship of Mst. Allah Jawai/his grandmother with Maula Bakhsh. The most striking feature of the case is that this witness was not subjected to cross-examination by the respondent. It is settled that if a witness goes to the witness-box and asserts the fact which remains unchallenged in cross-examination, that fact is deemed to be admitted by the party who does not cross-examine that witness. The statement of P.W. 4 was corroborated by the entries in Mutation No, 931 (Exh. P-2). This mutation was sanctioned as back as on 18-5-1961. It may be noticed at this stage that the entries of this mutation pertained to inheritance of landed estate left by Maula Bakhsh in Village Triddeywali. The entries of this mutation recite that the names of legal heirs of Maula Bakhsh were recorded by the Patwari at the instance of other legal heirs of Maula Bakhsh. The admissions of Mst. Zainab Bibi and Mst. Jewan Mai were proved by Abdullah P.W.6 and Shaukat Ali, P.W.
7. The entries of the above-referred mutation were never questioned by respondents before any forum including Civil Courts. Mst. Allah Jawai had been receiving her share of agricultural land left by Maula Bakhsh in Village Triddeywali. Not a slightest evidence was brought on record by the respondent to dilute/demolish the evidential value of admission contained in Mutation No,931, as against the evidence of appellant, respondent have not produced any creditworthy evidence to rebut the evidential effect of P.W.4 and Mutation No, 931. The statement of D.W.5 does not exude confidence. Had Mst. Allah Jawai been brought up in the house of Maula Bakhsh as close relation, respondent must have assailed the validity of Mutation No,931, Exh. P-2. This being not done, the version, - put forth by respondent about Allah Jawai seems to rest upon highly improbable and conjectural basis, unacceptable to rational approach. On the material noted above, it can be stated safely that the learned appellate Court was eminently correct and just to coming to the conclusion that Mst. Allah Jawai was the sister of Maula Bakhsh and so was entitled to get 7/16th shares in the suit properties.
12. As a result of the foregoing discussion, I have reached the conclusion that Mst. Allah Jawai as a sister of Maula Bakhsh, was entitled to inherit 7/16 shares in the suit properties left by Maula Bakhsh.
I accordingly, partly accept this appeal. The judgment and decree passed by the learned first appellate Court dated 6-2-1965 is modified to the above extent. The suit filed by Mst. Allah Jawai is decreed in accordance with the relief prayed therein. As regards the revision petition, it is sufficient to say that in view of the decision in Regular Second Appeal No, 422 of 1965, the civil revision has become infructuous. The appellant, if not in possession of their shares in suit properties, shall be entitled to seek the possession through executing Court. The respondent shall bear the costs of the proceedings throughout.