This second appeal arises out of a judgment and decree of the --learned Additional District Judge, Multan, dated 14th November whereby tie dismissed the suit brought by the plaintiff-appellants, challenging Mutation No. 795 dated 7th September 1957, which was sanctioned after, the death of one Budhan Shah of Mauza Makhdoo Rashid, Tehsil and" District Multan, allowing Mst. Murad Kbatoon the share of inheritance, she being his widow. Budhan Shah is alleged to have divorced Murad Khatoon on 12th November 1955. He died 6 days thereafter. The suit was instituted by the appellants on 8th April 1958 and was decreed by the learned Senior Civil Judge, Multan, by his order dated 30th April 1959" after framing the following issues and recording evidence:-
(1) Whether Budhan Shah deceased had divorced Mst. Murad Kbatun defendant and therefore, the plaintiffs are the sole owners of the property in dispute ?
(2) If the point of divorce is proved whether the same is ineffective --and Budhan Shah died during the period of Mat?
(3) If issue No. 1 is proved in the negative what are the shares of they parties ?
(4) Relief.
On appeal the learned Additional District Judge reversed the findings ,of the trial Court.
2. Ch. Muhammad Sadiq learned counsel for the appellant argued that validity of Talaq-ul-biddat cannot be questioned for lack of communication to the wife. Reliance is placed on Mst. Lalan Bibi v.
Muhammad Ashfaq PLD 1951 Lah. 467. He also referred to pages 99 and 100, Chapter V of Hedaya, Second Edition relating to divorce to the wife by a sick husband, Islamic Law by Aziz Ahmad, Chapter XVI, pages 469 and 470 and submitted that Marz-ul-Maut is a question of fact. Reference is also made to Moobummudan Law by Neil B. E. Baillie, published by Premier Book House, Lahore, 1955 Edition, the following passages from pages 122 and :123 of which are reproduced as below :- "I repudiated three times when in good health, "his word is to be received, and it bars her right of inheritance though it would seem that no credit ought to be given to his word as against her."
When a repudiated woman claims or alleges that the repudiation was given to her by her deceased husband when he was sick, and the fact is denied by his heir, who alleges that he was in good health at the time, the word of the heir is to be received, because the probabilities on either side are equal, and it is a principle of law that there is no right of inheritance except by establishing a sufficient cause for it, such as consanguinity or marriage"
He invited my attention to page 254 of Muhammadan Jurisprudence 'by Abdur Rahim ; Amir' Ali's Mohammadan Law page 453, Chapter IV, and D. F. Mulla's Mahomedan Law, page 269 regarding the discussion of the authors on Marz-ul-Maut, in addition to Majmua Qavaneen-e-Islam by Tanaul Rehman, Volume Il, Clause 104, pages 425, 433 and 435. He also read pages 145 to 152 of the book "Institutes of Mussalman Law" by Nawab A. F. M. Abdur Rehman. He relied on Sarabai v.
Rablabal I L R 30 Bom. 537 and Fatima Bibee v. Ahmad Bakhsh (I L R 31 Cal. 319) in support of his submission that Talaq-ul---Biddat had become final as soon as it was written and it was not necessary to communicate the same.
3. From perusal of the above case-law it is clear that Marz-ul-Main is a question of fact. Learned counsel for the appellant vehemently, argued that the conclusion of the lower appellate Court is not in accordance with law and facts, there was no issue on the point and evidence was misread in applying the principle of Marz-ul-Maut. This contention is repudiated by learned counsel for the respondent. 1 am of the view that the application of principle of Marz-ul-Maut clearly envisages that if a person is under the fear of death and divorces his wife she is not deprived of the inheritance if the person dies within the period of iddat.
It was vehemently argued that Budhan Shah went of his own to the District Court in order to execute the divorce deed, he met certain persons on the way and the deed was written by a petition-writer whose ion appeared on account of his death. The deceased was leading a normal life. On the other hand learned counsel for the respondent pointed out that there was no divorce and the deed of divorce was forged in order to deprive the widow of inheritance. In these circumstances there is no other option but to remand the case to the learned District Judge, Multan, who will hear the parties and decide the appeal in the light of the principle of Maraz-ul- Maut. If there is any evidence-- to show that the deceased being an aged person was suffering from disease, which created fear of death in his mind and he in order to deprive the widow of his inheritance divorced her, she will not be excluded from the list of his heirs. On the other hand if the District Judge finds that the deceased was, bale and hearty and was not under the fear of death and in fact had divorced tae lady she wile not be entitled to inheritance. The appeal is accepted and the case is remanded to the District Judge who will hear the appeal and dispose of the same in the light of the above discussion. Parties to bear their own costs.