1. ' Only question for decision in the second appeal filed by Mst. Bakhan was; whether Mst. Allah Jawai was effectively divorced by Ismail in his lifetime and as such she was precluded from inheriting a share in the land left by him. On the suit filed by her heirs, lower Courts adjudged Mst. Allah Jawai a widow of Ismail and gave 1/8th share in his estate to them.
2. ' Relevant facts bearing on the decision of the point were briefly these. Ismail owned land in Chak No,141 Shumali of Tehsil and District Sargodha. He died issueless, on 18-2-1962. He was survived by his mother Mst. Bakhan; a sister Mst. Roshan and two widows, namely, Mst. Bakhat and Mst. Allah Jawai. On death of Ismail, by Mutation No,20 sanctioned on 9-11-1966, his estate in Chak No,141 Shumali was distributed between his mother, sister and widow Mst. Bakhat in accordance with Islamic law of inheritance. Mst. Allah Jawai was excluded from the inheritance on the ground that she was found to have been divorced by Ismail in his lifetime. Proceedings taken on the inheritance mutation showed that a written divorce deed was produced before the Revenue Officer and its two witnesses, namely, Khan son of Manik and Muhammad son of Murad had supported it.
3. Furthermore, by inheritance Mutation No,502 sanctioned on demise of Ismail, on 17-2-1963, in respect of his land in Chak No,166/167 Shumali, Mst. Allah Jawai was not given any share and she was shown not to have agitated against it. Mst. Allah Jawai died in the year 1965. Plaintiffs were her heirs.
4. ' On 3-10-1967, plaintiffs instituted a suit for declaration that they were owners in possession of 1/8th share in the land left by Ismail and mutation of inheritance No,20, sanctioned on 9-11-1966, was inoperative upon their rights. It was asserted in the plaint that Mst. Allah Jawai was widow of deceased Ismail and was entitled to inherit from his land in that capacity. Defendants contested the suit. It was submitted that Ismail had divorced Mst. Allah Jawai in his lifetime and, therefore, she was rightly excluded from his inheritance. On 10-11-1967, the trial Court settled appropriate issues.
5. These were:---
(1) Whether, the plaintiffs have failed to describe that when and how the cause of action accrued?
6. If so, its effect.
(2) Whether Mst. Allah Jawai was the widow of Ismail deceased?
(3) Whether Mst. Allah Jawai has died after the death of Ismail?
(4) Whether the plaintiffs are entitled to get 1/4 share from the property of Ismail deceased?
(5) Relief.
7. ' After settlement of issues, both sides gave their evidence in support of and against the divorce by Ismail to Mst. Allah Jawai. Upon appraisal of the record, the trial Court found that pronouncement of divorce by Ismail upon Mst. Allah Jawai was not established and consequently, decreed 1/8th share of his estate to the plaintiffs as successors of Mst. Allah Jawai. Only Mst. Bakhan preferred an appeal from the judgment and decree of trial Court.
8. The sister and other widow of Ismail deceased namely, Mst. Roshan and Mst. Bakhat neither figured as appellants nor were arrayed as respondents in the appeal filed by Mst. Bakhan. Omission and its effect were not noticed in the judgment given in appeal which was dismissed on merits.
9. Thereupon, Mst. Bakhan preferred a second appeal to this Court. Omission persisted here also.
10. Appeal was admitted to hearing on 25-10-1971, and, status quo was ordered meanwhile.
11. ' Marriage of Mst. Allah Jawai with Ismail was not in dispute. The dispute was, whether she was divorced by him in his lifetime. Plaintiffs gave evidence in refutation of divorce by Ismail to Mst.
12. Allah Jawai. Their case was that till the last moment of his life, Mst. Allah Jawai was his wife. As against it, the defendants' version was that a few years before his demise, he had permanently separated her from him on account of her desertion and infidelity by her. They gave oral evidence to support divorce. Written divorce was not produced in evidence. As observed above, mutation proceedings divulged a written divorce by Ismail to Mst. Allah Jawai and two witnesses of the divorce deed had supported it before the Revenue Officer. Evidence led in defence also hinted at written divorce deed but it was not put in evidence. Its disappearance from the record was meaningful. Evidence on the venue of pronouncement of divorce and the mode of effecting it was discrepant, conflicting and unconvincing. Discrepancies in it were irreconcilable. It was common ground that Mst. Allah Jawai was not present at the time of pronouncement of divorce upon her. It was nobody's case that divorce deed was ever transferred to Mst. Allah Jawai. On the contrary, her heirs strenuously disputed divorce to her. If the deed for divorce was reduced in writing, there must be some explanation of its custody. If it was not handed over to Mst. Allah Jawai, natural corollary of it was that it must be held by either Ismail or his other successor-heirs. An explanation for it was conspicuously absent on the present record. Not only, the testimony of D.Ws. Was mutually discrepant and conflicting but the D.Ws. Were relation witnesses and their evidence was imbued with dear interest. Onus to prove pronouncement of divorce by Ismail to Mst. Allah Jawai rested upon the defendants. Evidence given by them did not sufficiently discharge that onus. Oral evidence adduced on either side was read out to me in Court. Upon its intrinsic evaluation, I am firmly of the opinion that the defendants could not prove pronouncement of divorce by Ismail to Mst. Allah Jawai. In consequence, there was no point for denying her the status of widow of deceased Ismail for a share in his legacy. Therefore, concurrent finding of fad on absence of divorce by Ismail to Mst. Allah Jawai was immune from further scrutiny in second appeal. Also, the other widow and sister of deceased Ismail were hot shown to have questioned the judgment and decree of the trial Court in favour of the plaintiffs-respondents. In the act of not filing the appeal, the shall be deemed to have accepted the judgment and decree of the trial Court Only, the mother of deceased Ismail came in first appeal and then in second appeal. Omission of other heirs of Ismail to file appeal from the judgment of the trial Court was a circumstance against the stance of the appellant.
13. ' Having regard to the aforesaid, second appeal must fail for want of merits in it. It is, accordingly, dismissed but without an order for its costs in this Court.
14. ' Original records shall be returned.