MUHAMMAD SIDDIQ, J.-----Regular Second Appeal No. 381 of 1961 and Regular Second Appeal No. 442 of 1961 are directed against the judgment and decree dated the 31st of July 1961 passed by the District Judge, Montgomery, by which he had dismissed the appeal filed by Mohabbat, Mst. Alo alias Mst. Allan and Mst. Mehro, against the judgment and decree of the Civil Judge, II Class, Montgomery, dated the 19th of December 1960, decreeing the suit filed by Abdullah plaintiff (now respondent) for possession of 37 kanals and 10 marlas of land and two and a half marlas of Khata in dispute as one of the heirs of Bajeed deceased and holding that Mohabbat, Mst. Alo and Mst.
Mehro were not the son, daughter and widow respectively of Bajeed deceased. The two regular second appeals filed by the three contesting defendants have arisen out of the same judgment and will be disposed of by this judgment.
2. Bajeed alias Bajeeda son of Gandu died on the 16th of January 1957 in Chak No. 70/4-R, Tehsil and District Sahiwal, leaving three hundred kanals of land and one Khata. The mutation was sanctioned on the 19th of August 1957 in favour of Mohabbat, Mst. Alo and Mst. Mehro (appellants in the two-- appeals) as son, daughter and widow of Bajeed deceased. The appeal filed against the said order was dismissed by the Collector on the 18th of October 1957. Abdullah respondent filed the suit--out of which the two appeals have arisen on the allegation that he and defendants Nos.4 to 10 were the sole heirs, of Bajeed deceased, that Bajeed had not left any widow or children, that Mst. Mehro was not his widow and Mohabbat and Mst. Alo were not his son and daughter respectively, that Mst. Mehro defendant No. 3 had never been married to the deceased, that she was the daughter of--Ida Kumhar and that Mohabbat and Mst. Alo were the son and--daughter of one Nawab Kumhar. It was further alleged that the: mutations had been wrongly ordered in favour of Mst. Mehro, Mst. Allan and Mohabbat, that defendants Nos.4 to 10 had not, joined the plaintiff in this suit and that he had consequently brought the suit for possession of his own share in the land and, house left by the deceased, measuring 37 kanals and ten marlas of the land and two and a half marlas in the Khata.
3. Defendants Nos.4 to 10 supported the plaint allegations --and pleaded that they had not joined the plaintiff on account of poverty and would bring a suit in respect of their share of the inheritance after the decision of the plaintiff's suit.
4. Mohabbat and Mst. Allan and Mst. Mehro pleaded through separate written statements that they were the son, daughter and widow respectively of Bajeed deceased and that the mutation orders had been correctly passed. It was denied that Mohabbat and Mst. Ale were the son and daughter respectively of Nawab Kumhar.
5. The parties proceeded to trial on the following issues :-
(1) Whether the defendant No. 1 is the legitimate son and defendant No. 2 daughter and defendant No. 3, widow of Bajeeda deceased ? O. D.
(2) To what share the plaintiff is entitled in the inheritance of Bajeeda ? O. P.
(3) Relief.
6. The learned trial Court after discussing the oral and' documentary evidence in the case came to the finding that the relationship claimed by the present appellants with the deceased' was not made out. While dismissing the appeal, the learned' District Judge mentions that the main question argued before him is as to whether defendants Nos. 1 and 2 were the children of Bajeeda and defendant No. 3 his widow. He documentary evidence produced by the parties. Placed no reliance on the oral evidence produced in the consisting of seven P. Ws. And nine D. Ws. The same dismissed as useless with the following observations :- ---I have carefully gone through the evidence on record. The oral evidence on 10 sides possessed no special merit and is not worth relying upon because any number of witnesses can be procured to say something or other in favour or against anybody. The fate of the case mainly depends on the documentary evidence adduced by the parties.--- The despondency expressed by the learned District Judge about the oral evidence available in judicial cases is regrettable, especially because he might have been disposing of murder cases on the basis of oral evidence alone. This condemnation of oral evidence, outright and wholesale, cannot be justified. No doubt, the loyalty for truth exhibited by the witnesses appearing in our Courts, leaves much to be desired. This, however, does not absolve the Court of its duty of sifting the corn from the chaff and of selecting from the oral evidence, the portions which can be accepted as satisfying the judicial standards. Another point on which the learned District Judge seems to have erred is that in his. Opinion mere acknowledgement of paternity was not sufficient, unless legitimacy of the children was also acknowledged.
7. Three preliminary pints have been raised in these appeals. Bahawal respondent No. 4 in R. S. A.
No. 381 of 1961 and respondent No. 3 in R. S. A. No. 442 of 1961 had died on the 3rd of July 1963. No application was made for bringing on record his legal representatives. Similarly, Mst. Mehro died during the pendency of these appeals, and her legal representatives were not brought on record within time. It was submitted for the contesting respondents that the two appeals had abated and the abatement was in toto.
8. In our opinion, there is no force in the objection. Abdullah had brought the suit out of which these appeals have arisen as one of the heirs of Bajeeda deceased and the suit was for possession of his own share in the estate left by Bajeeda. The present appellants are the contesting defendants and others including Bahawal deceased were merely pro forma. The presence or absence of Bahawal had not any material bearing on 3the plaintiff's suit or the defence set up by the contesting defen- -dants. His death, therefore, did not cause any abatement in the case either partial or total videth Raghbar Dial and others v. Ram Chandar and others (AIR 1927 Lab. 779), Ram Labhaya and others v. Kartar Singh and others (AIR 1925 Lab. 651), Lekha and others v. Bhani and others (AIR 1923 Lab.
647) and Zaida and others v. Raja and others (AIR 1923 Lab. 350).
9. With regard to Mst. Mehro, the appellants' contention is that she had left only two heirs namely Mohabbat her son and Mst. Alo her daughter, that both of them were already on the record of these appeals, and that, therefore, no steps were to b taken on the death of Mst. Mehro for her legal representative being brought on the record. This contention is upheld, and is supported by the following case law :-
(1) Sankru Mahto and others v. Bhoju Mahato and others AIR 1936 Pat. 548.
(2) Bhudeb Chandra Roy and others v. Bhikshakar Pattanaik and others AIR 1942 Pat. 120.
(3) Sheoram v. Atmaram Raghoji Patil and others AIR 1943 Nag. 13 and
(4) Arbab Said Khan and others v. Arbab Sarwar Khan and others PLD 1951 Pesh. 20.
10. Another preliminary objection raised was that the have been concurrent findings of fact by the Courts below and that this Court does not interfere with the findings of fact in view of the provisions of section 100 (1) and section 101 of the Code of Civil Procedure. In this connection, the learned counsel for the appellants submitted that the Courts below, and particularly the Court of First Appeal, have misdirected themselves in excluding from consideration the oral evidence adduced in the case in its entirety and that the learned District Judge was also wrong in the view that acknowledgement of paternity was not sufficient without acknowledgement of legitimacy. As would appear later on, the oral evidence in the case will furnish important clues in determining the questions of fact involved and the learned District Judge was absolutely in error in excluding the oral evidence from consideration. He was also in error in rejecting evidence acknowledging paternity of the present appellants on the ground that this acknowledgement without acknowledgement of legitimacy was ineffective. In our opinion, the learned District Judge had misdirected himself on this point and was also wrong in excluding the oral evidence from consideration. In our view, therefore, the findings arrived at by the Courts below call for fresh consideration and examination.
11. The oral and documentary evidence has been discussed at length by the learned trial Court but it is difficult to approve his assessment with regard to the various items of evidence or the reasoning in support of that assessment. With regard to the marriage between Mst. Mehro and Bajeed deceased, the learned trial Court says that there was evidence that both had lived as husband and wife. The evidence was, however, considered deficient as no entry from the marriage register had been proved nor was any witness produced who performed the marriage or in whose presence the marriage was performed. In these circum--stances it was held that no marriage was proved. The lower Court failed to consider the case from the aspect that the alleged marriage bad taken place long ago and the persons in whose presence the marriage had taken place might have died and there might have been no marriage register in vogue at the time. Mst. Mehro did not appear as a witness, but according to the statement of Mst. Allan she was too old and infirm and was blind. Moreover, illiterate parties are generally in the hands of their legal advisors who may not impress upon them the full implica--tions of a certain conduct with regard to judicial proceedings.
Mohabbat also did not appear as a witness but his Mukhtar had appeared as a D. W. The plaintiff was also relying on the copy Exh. P. 2 and did not summon him to enquire as to whether he would be appearing as D. W. And on his refusal could have offered to produce him as P. W. The inference under section 114 of the Evidence Act from the non-appearance in the witness-box of Mst. Mehro and Mohabbat is not necessarily the one drawn by the learned trial Court. With regard to the copy Exh., D.1 regarding the marriage of Mohabbat appellant with Mst. Allan the criticism advanced by the learned trial Court was that the number of register was not given in the copy, that Bajeed had not thumb-marked the entry and that the entry had been made some--time after the marriage.
From this, the learned trial Court held that "it (marriage) was performed after the death of Bajeed and entry also after his death in collusive circumstances". These conclusions were hardly justified. A copy from the marriage register in respect of Mst. Alan (Exh. D. W. 2) and the agreement (Exh. D. W.
1) were criticised as the documents had been pro--duced in Court on the 3rd of September 1959 when the suit had been filed on the 16th of September 1958 and the marriage entry Exh. D. W. 2 did not indicate the thumb-impression of Bajeeda or the names or thumb-impressions of witnesses present at the time of the Nikah. This Court had allowed additional evidence to be produced and the copy Exh. P. C./ I is from the relevant entry in the marriage register with regard to the marriage of Mst. Alo with Mukhtar alias Mokha. It mentions the thumb-- impressions of Bajeeda as also the names etc, of the attesting witnesses. It is difficult to condemn these documents as doubtful merely by reason of their late production in Court. With regard to the birth entry Exh. D. 2, the learned trial Court accepted the plaintiff's version as against the version of the contesting defen-- dants and gave four reasons in support of the same. The reasons advanced by the learned trial Judge are not sound and his finding that "the assertion of the plaintiff' about the certificate Exh. D. 2 was perfectly correct" is absolutely in conflict with the evidence in the case. The learned trial Judge also placed excessive reliance on the copy Exh. P. 1 of the application allegedly made by Mst. Allan although she had denied this contention of the plaintiff. In any way, this application could not be treated as admission made by Mst. Mehro or by Mohabbat and against their interests. So far as Mst. Allan was concerned she had clearly mentioned that she was the daughter of Bajeeda and thus entitled to inheritance. The learned trial Court used this piece of evidence for the finding that Mst. Mehro had lived with Bajeeda as a keep if she had lived with him at all and that if she gave birth to Mst. Allan and Mohabbat they were both illegitimate issues. This finding cannot be warranted by the copy Exh. P.
1. The learned trial Judge says that he could have considered the case of Mst. Allan for inheritance as daughter of Bajeeda deceased if she had not made inconsistent claims with regard to her mother. This reasoning is also poor as her claim for inheritance in the estate of Bajeeda was to be examined irrespective of her maternity.
Presumptions were raised in the plaintiff's favour from the failure of the contesting defendants to produce a copy of the electoral roll and from the fact that Mohabbat was not shown in the revenue papers as a tenant working under Bajeeda. These presumptions were not available from the aforementioned omissions. The learned trial Judge also raised a presumption in the plaintiff's favour from the statement of P.W.I that he had sanctioned the mutation at Montgomery. No presumption could be raised against the contesting defendants from the mere conduct or convenience of the mutation officer and it is not justified to impute motives to the mutation officer that "it was because of the fact (plaintiff's objection) that mutation (was) not sanctioned at the spot". This is particularly so because the mutation officer (P. W. 1) had not said for certain that the mutation had been finally sanctioned at Montgomery.
11. There are only two issues in the case and there is no dispute with regard to issue No. 2 which will arise only if issue No. 1 is not proved. On issue No. 1 the points for consideration are :-
(a) Whether Mst. Allan was the daughter of Bajeeda deceased ?
(b) Whether Mst. Mehro was the mother of Mst. Allan ?
(c) Whether Mst. Mehro was the legally wedded wife of Bajeeda deceased ?
(d) Whether Mohabbat was the son of Bajeeda deceased, whether any son by the name of Abdullah was born to him and whether the said Abdullah was later on known as Mohabbat who is the appellant in this case ?
12. The learned Courts below have expressed satisfaction over the plaintiff's case and the plaintiff's evidence and have not agreed with the defendant's contentions as put forth by the contesting defendants and the evidence produced by them. We are, however, unable to accept the plaintiff's case or his evidence. The case of the contesting defendants in the written statement was that Mst.
Mehro was the duly wedded wife of Bajeeda, that Mohabbat and Mst. Allan were born out of this wedlock, and that the property left by Bajeeda had been correctly mutated by the revenue authorities. The evidence led by the contesting defendants is also uniform in support of the marriage of Mst. Mehro with Bajeeda and Mohabbat and Mst. Allan being the son and daughter resulting from this marriage.
13. As against this, the plaintiff's contentions and evidence are unstable, discrepant and false to the extent of being outrageous. In the plaint it was alleged that Mst. Mehro was not married to Bajeeda and Mohabbat and Mst. Allan were not his son and daughter respectively, It was mentioned that Mst. Mehro was a Kumhari (potter woman), daughter of Ida Kumhar and that Mohabbat was the son of Nawab Kumhar and Mst. Allan was the daughter of the said Nawab Kumhar. Mention is made in the plaint of the copies Exhs. P. 1 and P.2 in support of these contentions. The mere fact that Mst. Mehro was the daughter of Ida Kumhar, even if it was true, will not have any bearing on this suit. The particulars of Nawab Kumhar who was allegedly the father of Mohabbat and Mst. Allan are deficient in the plaint. Later on, the plaintiff forgot all about this assertion and we have no material as to who this Nawab was and to which place he belonged. Nor is there anything to show as to whether the said Nawab had married Mst. Mehro and as to whether the two children were born out of the said wedlock. Not only is there no evidence from the plaintiff's side to support these allegations but the defendants' witnesses were also not cross-examined in the light of this allegation. So we have no material from the plaintiff's side to suggest as to whether Msr. Mehro had married any person during her life. Nor have we any material as to who was the father of Mohabbat and Mst. Allan. The plaintiff has from his sine further confused the issue by giving no indication as to -who, according to him, was the mother of Mohabbat and Mst. Allan. The application, a copy of which is Exh. P. 2 and which was obviously got made to help the plaintiff's case, mentions Mst. Fatto as the mother of Mst. Allan. -So from the plaintiff's side we have no clear indication as -to whether Mst. Mehro had married anybody, as to who was the father of Mohabbat and Mst. Allan and as to who was the mother of Mohabbat and Mst. Allan. The plaintiff has gone to the extreme in not giving any clear indication as to whether Bajeeda deceased had married any wife, whether he had married more than one wife and what were their names. The plaintiff and "his evidence again refused to take any definite and honest stand with regard to the infant son Abdullah born to Bajeeda. There is no indication as to who the mother of this infant child was, as to whether the said mother had been duly married to Bajeed, what her name was and what had happened to her and the infant son Abdullah. The only inference from all these pranks is that the plaintiff is not honest and straightforward in his stand and in his evidence and wants at every stage to conceal something from -the Court. As already mentioned, the contesting defendant were -clear from the written statement stage that Mst. Mebro had married Bajeed and that Mohabbat and Mst. Allan were born out .Of the wedlock. Their evidence is in the service of the same pleadings. Learned counsel for the respondents stated during the arguments that the contesting respondent was not establishing that ,Mst. Mehro had married anybody in the world or that Mohabbat and Mst. Allan were the son and daughter respectively of any par--ticular individual. Learned counsel submitted that his only contention was that Mst. Mehro was not the legally wedded wife of Bajeeda and that Mohabbat and Mst. Allan were not his son and daughter respectively. This new stand in modification of the stand taken in the plaint is bound to weaken the plaintiff's attack against the contesting defendants as the natural presumption would be where a woman is producing children that she had a husband and that the children had a father. The plaintiff's effort becomes only an exercise in negative bowling.
14. Chakar (P. W. 2) is the son of the plaintiff's real maternal aunt (Khala) and has tried to withhold every fact which might have gone in favour of the contesting defendants. He denied that Bajeeda had married Mst. Allan with Mokha and. Denied knowledge that Bajeed had married his sop Mohabbat with Mst. Lalan. He, however, made three important admissions. Firstly,. He stated that Burhan (father-in-law of Mohabbat appellant) was a. Bhajuana by tribe and that Bhajuanas would not give their daughters in marriage to Kumhars. His second admission is that Mst. Fatto was the wife of Bajeeda who had died five months after the death of Bajeeda. He admitted that there was no issue from Mst. Fatto. His third important admission is that Bajeeda had no son from any of his married widows. This clearly implies that Bajeed had left more than one duly married widow. He gives the name of one widow as Mst. Fatto and clearly suggests that Bajeed had left at least one more widow. Hamid (P. W. 3) is the brother-in-law of the plaintiff. He also tried to withhold everything that could even have the slightest possibility of benefiting the contesting defendants.
He says that Bajeed had no issue. He pleaded ignorance as to whether Mst. Allan was the-- wife of Mukhtar. He denied that Bajeeda had got married Mohabbat and Mst. Allan with their spouses. He, however, admitted that Mst. Allan and Mohabbat were living in the-- village with Mst. Mehro and that he could not say as to whether they treated Mst. Mehro as their mother or not. Jalla (P. W. 4) is.
The first cousin of Sher Muhammad (P. W. 5). They have a. Criminal case pending against Sadiq in which Hamid P. W. (brother-in-law of the plaintiff) is a prosecution witness. He says --that he did not know Mst. Allan or Mst. Mehro and that he had-- never seen the three contesting defendants living in the village. He is belied by his cousin Sher Muhammad (P. W. 5) who says like Hamid P. W.
That Mohabbat, Mst. Allan and Mst. Mebro were living in the village. He also says that he had never seen Bajeeda living a married life. And this is in spite of the fact that Chakkar P. W. Says that Bajeeda had left at least two married= widows. Sher Muhammad P. W. Further says that Bajeeda had abducted a Wattu woman, that he had not married her as--her relatives had taken her back.
Sarja (P. W. 6) says that Bajeeda had a wife (Aurat who used to beg, that he did not know her name and that she was a Kumhari). This clearly suggests that Mst. Mehro was the woman referred to by him as the wife of Bajeeda. Kamir (P. W. 7) says that Bajeeda had left no widow, that he had no children, that he had a son named Abdullah from a woman named Mst. Ahman, that Mst. Ahman left and killed her son also and further stated that Mst. Ahman and Abdullah had been murdered by her relatives. The plaintiff stated as P. W. 8 that Bajeeda had no wife by the name of Mst. Mehro, nor were Mohabbat and Mst. Allan related to Bajeeda. He further stated that he had' abducted a woman named Mst. Ahman and got a son named Abdullah from her, that her relatives came later on and took her away along with Abdullah and murdered both. No report, how--ever, was made to the police.
15. The main question involved in this case is with regardk to the relationship of Bajeeda deceased with Mst; Mehro, Mohabbat and Mst. Allan. Under section 50 of the Evidence Act "when the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant facts." According to section 268 of the Principles of Muhammadan Law by Mulls (16 Edn.), (hereinafter referred to as Mulla's Muhammadan Law), "marriage will be presumed in the absence of direct proof, from (a) prolonged and continual cohabitation as husband and wife; or (b) the fact of the acknowledgment by the man of the paternity of the child born to the woman, provided all the conditions of a valid acknowledgment mentioned in section 344 below are fulfilled."
Under the commentary, it is mentioned as follows, based on the Privy Council Authority of Abdool Razaok v. Aga Mahomed Jafar Bindaneem ((1893) 21 1 A 56 at p. 65) "In the next place, it was urged that every presumption ought to be made in favour of marriage when there had been a lengthened cohabitation, especially in a case where the alleged marriage took place so long ago that it must be difficult if not impossible to obtain a trustworthy account of what really occurred.
There would be much force in this argument- indeed, it would be almost irresistible-if the conduct of the parties were shown to be compatible with the existence of the relation of husband and wife."th Mulla lays down in section 339 of his aforementioned treatise that .- "(1) The paternity of a child can only be established by marriage between its parents . . . .Marriage may be established by direct proof. If there be no direct proof it may be established by indirect proof, that is, by presumption drawn from certain facts. It may be presumed from prolonged cohabitation combined with other circumstances (S. 267) or from an acknowledgment of legitimacy in favour of a child.
(2) When the paternity of a child is established its legitimacy is also established."
PLD 1958 Kar. 420) it was held as follows at page 426 :- ---According to well-established principles of Muslim Juris--prudence a valid marriage may be proved by direct evidence or presumptive proof. The continual cohabitation of the alleged parents and acknowledgment of the child by the father is, presumptive evidence of marriage between the parents and of the legitimacy of the off-spring:------------------------(Then at page 428 it was held), It will be thus observed that in these cases where the marriage is not capable of being easily proved,) the status of the children is generally presumed either from express acknowledgment by the father or from a course oil treatment by the father to the mother and the child or from the evidence of repute and notoriety amongst the member of' the family, community and respectable members of the locality."
16. In the instant case, the mutation order Exh. P. 3 as well as the statement of the Naib-Tehsildar (P.
W. 1) shows that he had ordered mutation of the estate of Bajeeda deceased in favour of the three contesting defendants on the basis of what was stated to him by the majority of the persons present before him. Opinion and reputation evidence is relevant in this case, Another important feature in this case is that defendants Nos.4 to 10 had not joined the plaintiff in bringing this suit and denying the alleged relationship of defendants Nos. 1 to 3 with the deceased. They had instead preferred to wait and watch and have by not probably lost the period of limitation for bringing a suit. In the light of the above, we would now examine the evidence in the case on the points enumerated a t (a) to (d) in para. 11 of this judg--ment.
17. Re : (a) Whether Mst. Allan was the daughter of Bajeeda deceased ?
18. Another important acknowledgment of paternity by Bajeeda is evidenced by the agreement dated the 4th of April 1956, executed by Bajeeda deceased in favour of his son-in-law Bakhta--war alias Mukhtar Ahmad and he admits in this document at two places Mst. Allan to be his daughter.
This agreement Exh. D. W. 1 Was executed on a stamp paper and is supported by Mst. Allan as well as the petition-writer Rehmat A.I (D. W. 7) and the attesting witness Bega (D. W. 8). Bega D. W, has stated that Bajeeda had got this document executed and that he had also attested the same.
19. Further support is available to Mst. Allan from the plaintiff's own evidence furnished by the copy Exh. P.1. It is claimed that Mst. Allan made this application to the Settlement Officer. Mst. Allan says that Abdullah had said that he would give her half of the land. Taking this application (Copy Exh. P.
1) at its best for the plaintiff, it contains an admission in favour of Mst. Allan that she is the daughter of Bajeeda deceased. Since the plaintiff' is himself relying on this evidence, he cannot blow hot and cold in the same breath. The application, a copy of which is Exh P. 1, can, therefore, be effectively used for a finding that Mst Allan was the daughter of Bajeeda deceased.
20. The only suggestion made in the plaint is that Mst. Allan was the daughter of Nawab Kumhar.
This allegation was not followed up at the trial, and Allah Yar Lambardar (D. W. 5) as well as Mst.
Allan (D. W. 91 stated that there was no person in the village by the name of Nawab Kumhar. Even the plaintiff stated as P. W. 8 that there was no person in the village by the name of Nawab Kumhar.
This admission of the plaintiff would seal his fate for fishing out another father for Mst. Allan and Mohabbat. In the circumstances, we hold that Mst. Allan is the daughter of Bajeeda deceased. It may be added here on the strength of sub-para. (2) of para. 339 of Mulla's Muhammadan Law that when the paternity of a child is established, its legitimacy is also established.
21. Re: (b) Whether Mst. Mehro was the mother of Mst. Alo ?
The defendants' allegation in the written statement as well as the defendants' evidence are uniform with regard to Mst. Mehro being the mother of Mst. Allan. Even the plaintiff's oral evidence did not dare suggest any other mother for her. The learned trial Court however was carried away by the averment in the applica--petition (Exh. P. 1) that Mst. Fatto was the mother of Mst. Allan. As already mentioned, Mst. Allan has not admitted the contents of the application (Exh. P. 1) having been fully explained to her. She is an illiterate woman belonging to the poor rural class and it is an established law that even if such a woman is not actually observing parda the person who has any dealings with her and obtains any document from her has to prove that the contents of the document had been fully read out and explained to her. No effort has been ~ made to discharge this burden. There was no motive for Mst. Allan to claim Mst. Mehra as her mother if she was in fact the daughter of Mst. Fatto as this did not in any way affect her right inheritance in the property left by her father Bajeeda. It appears that the plaintiff who is a Lambardar, has in his effort to create all sorts of confusion and difficulties in the way of the contesting defendants also mentioned in the application (Exh. P. 1) a different mother for Mst. Allan. Since the document Exh. P. 1 is not shown to have been explained to Mst. Allan we are unable to treat the same; as an admission in favour of Mst. Fatto being her mother. Moreover, Chakar (P. W. 2), who is the first cousin of the plaintiff, has stated in his examination-in---chief that Mst. Fatto had not given birth to any child. In the face of this clear admission by Chakar P. W. Which has not been challenged by the plaintiff at any stage, we accept the defendants' contention that Mst. Mehro was the mother of Mst. Allan. In the result, Mst. Allan is to be taken as the legitimate daughter of Bajeeda deceased from his wife Mst. Mehra.
22. Re: (c) Whether Mst. Mehro was the legally wedded wife of Bajeeda deceased ?
According to the unrebutted testimony of Mst. Allan (D. W. 9) her mother Mst. Mehra was too old and infirm to move about and had also lost her eyesight. She has already died during the pendency of the present appeals. It is stated by D. W. 2 (aged 38 years) that he had seen Mst.
Mehra living with Bajeeda as his wife for 25/26 years. Burhan (D. W. 3) says that Mst. Mehro had lived as wife of Bajeeda for 40/45 years. Allah Yar Lambardar (D. W. 5) also says that Mst. Mehra was the mother of Mohabbata and Mst. Allan children of Bajeeda deceased. Bakbsh (D. W. 6) also says that Mst. Mehra had lived as wife of Bajeeda. Mst. Allan D. W. Has stated to the same effect.
23. There is nothing from the plaintiff's side to show that Mst. Mehra had any other husband. Nawab was mentioned as the father of Mohabbat and Mst. Allan defendants, but the plaintiff himself stated as P. W. That there was no person in the village by the name Nawab Kumbar. To the above may be added two important statements made by the P. Ws. Chakar (P. W. 2), who is the first cousin of the plaintiff, says that Bajeeda had no son from any of his married widows. When he mentions "married widows" he clearly admits that Bejeeda was survived by at least two legally wedded wives. One of them is mentioned by him as Mst. Fatto. There is not the slightest suggestion in the plaintiff's evidence that Bajeeda had any other legally wedded wife other than Mst. Fatto. This would mean that Mst, Mehra's claim as legally wedded wife of Bajeeda is made out by Chakar (P.
W. 2). In addition, we have the statement of Sarja (P. W. 6) who says that Bajeeda had a wife (Aurat) who used to beg. He did not remember his name but according to him she was a Kumhari by case. In the plaint itself Mst. Mehra is mentioned as Kumhari. There is no suggestion in the plaintiff's evidence that Bajeeda bad any other Kumhari wife. The statement of Sarja (P. W. 6), therefore, also contains an admission in favour of Mst. Mehra being the legally wedded wife of Bajeeda.
24. In addition, there is the presumption in favour of marriage between Mst. Mehro and Bajeeda from the acknowledg--ment by Bajeeda of the paternity of Mst. Allan as laid down in para. 268 of Mulla's Muhammadan Law. The mere fact that Mst. Mehro did not appear as D. W. Because of her old age or blindness or because the importance of her examination was not brought home to her does not necessarily speak against her. Such a presumption can be raised under section 114 of the Evidence Act if a party having personal knowledge of the facts of the case does not appear in the witness-box. This presumption may not be raised by the Court in the circumstances of a particular case and in view of the evidence already on the record. The copy Exh. P. 1 in which Mst. Mehra was mentioned as a keep cannot be used against her because this is not an admission on her part.
Moreover, the relevant statement in this document is denied by Mst. Allan P. W. Who being inexperienced and uneducated and a poor women from the country-side is entitled to the protection provided under law to a pardahnashin lady when a certain document is obtained from her. Again this statement that Mst. Mehro was as keep was not an admission as it had not been made by her and could be used only under section 145 of the Evidence Act to contradiction-maker.
Mst. Allan disowned this part of her statement as D. W. And it cannot be used against Mst. Mehra. In our view, therefore, Mst. Mehra was the duly wedded wife of Bajeeda deceased.
25. Re: (d) Whether Mohabbat was the son of Dajeeda deceased, whether any son by the name of Abdullah was born to him and whether the said Abdullah was later on known as Mohabbat who is the appellant in this case?
26. The above evidence is supported by the copy of the birth entry Exh. D. 2 according to which a son was born to Bajeeda son of Gandu on the 12th of January 1924 and was named as Abdullah.
The evidence led by the contesting defendants is that this infant son had later on come to be known as Mohabbata. It is not unusual that the name entered in the birth register quickly after the birth is later on changed. In the face of the clear evidence led by the contesting defendants with regard to Abdullah being later on named as Mohabbat, the plaintiff's evidence is most suspicious and unsatisfactory. Chakar (P. W. 2) who is the first cousin of the plaintiff denied that any son was born to Bajeeda by the name of Abdullah. He is belied by the copy Exh. D.
1. Hamid (P. W. 3) is the brother-in-law of the plaintiff and he also stated that it was incorrect that Bajeeda had any children. He, however, stated later on that Bajeeda had married a Wattu woman and had got from the wedlock a son named Abdullah. He makes no mention as to what happened to the said Wattu wife of Bajeeda and to the said Abdullah. Jalla (P. W. 4) makes no mention of this Wattu wife of Bajeeda or of any son born of this marriage. Sher Mohammad (P. W. 5) says that Bajeeda had not married any woman throughout his life and adds that he had abducted a Wattu woman, that he hid not married her as her relatives had taken her back. He mentions no child having been born to Bajeeda from that Wattu woman who according to Hamid P. W. Had been married by Bajeeda.
Sarja (P. W. 6) also makes no mention of this Wattu woman abducted--or married or of any son born to her. Kamir (P. W. 7) is also silent about this matter in his examination-in-chief. Under cross- -examination he stated that no male issue was ever born to Bajeeda, that one Abdullah was born who had died, and the woman who had given birth to him had also left. He further stated that the woman had run away after killing the said Abdullah and then gave Mst. Ahman as the name of the woman who along with Abdullah bad been murdered by her relatives. Abdullah (P. W. 8) also stated that Bajeeda had abducted a woman named Rehmon who had given birth to a son named Abdullah. He further stated that her relatives came and took her--away along with Abdullah and later on murdered both. The name of the Wattu woman is not given by P. W. 3 or Sher Mohammad (P. W. 5). The former says that the woman had been married by Bajeeda whiie the latter says that she had been abducted by Bajeeda and taken back by relatives. Kamir (P. W. 7) and the plaintiff (P.
W. 8) have come up with funny story about one Mst. Ahmon or Rehmon having been abducted and later on murdered along with her son Abdullah. The four different. Versions given by the plaintiff and the three P. Ws. Are materially discrepant and it is an insult to commonsense to place-- any reliance on the absurd versions put forth by them. We, there--fore, reject the explanation attempted to be furnished by the plaintiff's evidence in respect of the son Abdullah born to Bajeeda. --The various shifting positions taken by the plaintiff's evidence themselves suggest that his conscience is neither clean nor clear. We, therefore, accept the version of the contesting defendants which is not unnatural that Abdullah was later on named as Mohabbata who is the present defendant in the case.
27. Further evidence in support of Mohabbata's paternity is furnished by the copy from the marriage register which is Exh. D. 1 relating to the marriage of Mohabbata with Mst. Lal Bibi, daughter of Burhan (D. W. 3). Mohabbat in this entry is described as the son of Bajeeda and is given as Bhajuana by tribe instead of Kumhar as stated by the plaintiff. This entry is supported by Ghulam Muhammad (D. W. 1); who performed the marriage and by Said (D. W. 2) (an attesting witness of the marriage entry), Burhan (D. W. 3) (father of the bride) and Allah Yar Lambardar (D. W.
5), who had also attested the entry in the---marriage register. Mst. Allan (D. W. 9) also supports this marriage of her brother Mohabbat with Mst. Lal Bibi. Maulvi Ghulam Muhammad (D. W. 1) has stated that the entry in the marriage register was made on the 30th of September 1956, and had been duly signed and thumb-marked by the witnesses. He stated in Court that the original register was before him and that the copy Exh. D. 1 was correct according to the original entry. In the face of this evidence it is difficult to condemn this document merely because it does not indicate proper headings for the various columns. When the original was m Court with the witness, the Court or the opposing party had every opportunity to check up the testimony of the witness in relation to the original record. Similarly, we are unable to discredit this piece of evidence for the simple reason that the actual entry in the register might have been made some days after, the performance of the Nikah. We are certainly unable to accept the finding of the trial Court that the entry had been fabricated after the death of Bajeeda. It is claimed by the defendants' evidence that Bajeeda was present at the time of the marriage and that the entry regarding the parentage of Mohabbat was made on the basis of the information available from the persons present Maulvi Ghulam Muhammad (D. W. 1) also says that Bajeeda had thumb-marked the entry. This was stated by him in answer to the first question put to him in cross---examination, and since the witness was not cross-examined on that point later on we infer that the cross-examiner was satisfied with the statement made by the witness on this point. This means that Bajeeda deceased had acknowledged Mohabbat as his son. Acknowledgment of paternity includes acknowledgment of legitimacy as well. We are, therefore, of the opinion that Mohabbat is the son of Bajeeda and that Abdullah shown in the birth entry Exh. D. 2 was later on named as Mohabbat, who is the present appellant.
28. Another circumstance in support of the appellant's case is that according to Burhan (D. W. 3), who is the father of Mobabbat appellant, members of Bhajuana tribe, to which the witness belongs, do not give their daughters in marriage to Kumhars who are a menial tribe. This claim is supported by Chakar (P. W. 2), who is the first cousin of the plaintiff and states that Burhan, father of Mst. Lal Bibi, is a Bhajuana of the village and that members of the Bhajuana tribe do not give their daughters in marriage to Kumhars.
29. For the plaintiff reliance is placed on the copy Exh. P. 1 in which Mst Allan had mentioned that Mohabbat was in the womb of his mother Mst. Mehro before she had come over to live with Bajeeda deceased as his keep. It is also mentioned in Exh. P. 1 that Mohabbat was born about two months after the arrival of Mst. Mehro with Bajeeda. Mst. Mehro has stoutly disclaimed this part of the document. We have already mentioned that there is nothing to show that the contents of this document --had been read over and explained to Mst. Allan and that the said contents therefore cannot be used against her. In addition, the document Exh. P. 1 contains only an admission of Mst.
Allan and can only be used against her as an admission or for the purpose of contradiction. It is no evidence against Mohabbat or fist. Mehro. Hence the plaintiff cannot derive any benefit from the document Exh. P. 1 to disprove the paternity of Mohabbat appellant.
30. Reliance was also placed upon the document Exh. P. 2, which relates to a copy from the general register criminal for Tahsil Pakpattan for the year 1949 in which Mohabbat A.I son of Nawab Kumhar of Chak No. 70/4-R is shown to have been challaned under section 190/55, Cr. P. C. This entry has not been properly connected with the present appellant but it is mentioned in the mutation order Exh. P. 3 that this document had been produced in the mutation proceedings regarding the different parentage of Mohabbata and that Mohabbata had mentioned that he had given a wrong parentage to the police and had himself produced the copy from the birth register relating to Abdullah. Under section 114 of the Evidence Act, a presumption may be raised that official acts had been regularly performed. We can therefore presume that the copy had been produced before the mutation officer and that Mohabbata had explained the same as is mentioned in the mutation proceedings. It is mentioned in the said orders that Mohabbat had stated that he had given wrong parentage to the police. That might have been done by him according to his own wisdom to save himself from further embarrassm ent at the hands of the police. Whether the explana--petition is good or otherwise it is there that Mohabbata had inten--tionally given wrong parentage in the said proceedings. Even if it is taken at its best for the plaintiff it contains only an admission on the part of Mohabbata regarding his being the son of Nawab Kumhar of Chak No. 70/4-R. Admissions are never conclusive and can always be disproved vide section 31 of the Evidence Act. No effort was made by the plaintiff's evidence in spite of the clear averment in the plaint to show that Mohabbata was the son of Nawab Kumbar of the village. Allah Yar Lambardar (D. W. 5) and Mst.
Allan (D. W. 9) stated that there was nobody in the village by the name of Nawab. This matter was set at rest by the plaintiff's own admission as P. W. 8 that there was no person in the village by the name of Nawab Kumhar. How car. It be held in the face of this admission that Mohabbata appellant was the son of Nawab Kumhar of the village when none was in existence in the village according to the plaintiff himself, The document Exh. P.2 therefore cannot give any support to the plaintiff's case for tracing the parentage of Mohabbata appellant to one who according to his own admission does not exist.
31. Mohabbata did not appear in the witness-box. Burhan, his father-in-law, had appeared as D. W.
3. He was fully cross---examined by the plaintiff. With regard to the entry Exh. P. 2 Mohabbata had already given his version in the mutation pro--ceedings. In view of the evidence available in the case we do not feel called upon to raise any presumption against Mohabbata with regard to his parentage by reason of his failure to appear as a witness in the case. In our opinion, therefore, Mst.
Mehro was the duly wedded wife of Bajeeda deceased and Mohabbata and Mst. Allan had been born out of the wedlock and were the legitimate son and daughter respectively of Bajeeda deceased. Issue No. 1 is, therefore, decided against the plaintiff and in favour of the appellants.
32. No argument was addressed on issue No. 2 which does not arise in face of our finding on issue No. 1.
33. In view of our finding on issue No. 1 we set aside the judgments and decrees of the Courts below and, order the plaintiff's suit to be dismissed with costs throughout.