' This revision under section 115, C.P.C. Arises out of conflicting judgments passed by the IInd Senior Civil Judge, Larkana in Suit No,233 of 1985, dated 12-11-1986 and Civil Appeal No,41 of 1986 passed by the IV-Additional District Judge, Larkana, dated 29-9-1987. The above-referred Suit No,233 of 1985 (Old No,211 of 1981) was filed by respondent No,1 seeking declaration that the entries in the revenue record effected in favour of the applicants were illegal and void with further declaration that she was the owner of the subject property being Survey No,256 (1 to 11), 1152 (1 to 21) and 288/2 total measuring 4-32 acres, Deh Garello, Taluka Dokri, District Larkana (hereinafter referred as the subject property). The respondent No,1/plaintiff has claimed ownership of the subject property through inheritance as the sole surviving heir of deceased Naseeb Khan who is stated to have expired in July, 1978. After death of the said Naseeb Khan (hereinafter referred as the deceased), Fouti Khata Badal was effected by the Mukhtiarkar, Dokri on 12-7-1978 in favour of respondent No,1 on the basis of statements of two witnesses. According toaverments contained in the plaint, the respondent No,1/plaintiff continued to remain in possession of the subject property as its exclusive owner and managed it through her husband Sooraj Khan Further case of the respondent Nos.1 /plaintiff is that the applicants Nos.1 to 6 are not the heirs of the deceased and cannot inherit through him. As regards applicant No,6, Mst. Aandhi, it is pleaded she was divorced by the deceased and had contracted second marriage during the lifetime of the deceased. It is alternatively, pleaded that according to the custom of "Meo" tribe to which the deceased belonged, a widow contracting second marriage after death of previous husband, cannot inherit to the estate of the first husband. It is further averred that the applicant No,1, in order to deprive the respondent No,1 of her property - .,had filed Suit No,89 of 1979 on 17-2-1979 in the Court of Ilnd Senior Civil Judge, Larkana for declaration and permanent injunction in respect of the subject property claiming therein that his father was cousin of the deceased who did not leave behind any surviving heir with the result that the applicant No,1 was the sole surviving heir entitled to inherit the subject property.
The applicant No,1 further made an application to respondent No,3, Mukhtiarkar, Dokri, pleading therein that he and applicants Nos.2 to 6 were legal representatives of the deceased. The application filed by the applicant No,1, after permission by the respondent No,2, Assistant Commissioner, Larkana, was granted through order, dated 15-10-1981 and after cancellation of entries in the revenue record in favour of respondent No,
1. Mutation was effected in favour of applicants Nos.1 to 6. In the meantime, just three days earlier, on 12-10-1981, the above-referred Suit No,89 of 1979 was withdrawn by the applicant No,
1. This was followed by a hurriedly executed sale- deed, dated 21-11-1981 whereby the subject property was transferred by the applicants Nos.1 to in favour of applicant No,7. The applicants Nos.1 and 7 are further stated to have threatened dispossession of respondent No,1 on the basis of transfer of the subject property as above. The Suit No,233 of 1985 was filed in the above circumstances with the following prayer:-- "(a) That this Hon'ble Court be pleased to declare that the orders of defendants 8 and 9 and entries thereunder in revenue record in favour of defendants Nos.1 to 6 are illegal, mala fide, void and without jurisdiction and consequently the registered sale-deed, dated 21-11-1981 in favour of defendant No,7 is void and without title and stands on same footing and is of no legal effect and the plaintiff continues to be the lawful owner of suit property.
(b) To grant permanent injunction against the defendants, restraining them from interfering with the possession of plaintiff over suit property.
(c) Costs of the suit robe awarded, and.
(d) Any other relief deemed fit."
2. The applicants Nos.1 to 6 filed joint written statement whereas the applicant No,7 filed his written statement separately. It was contended, in defence, that the respondent No, 1/plaintiff was not the sister of the deceased and the applicants Nos.1 to 6 alone were the surviving legal representatives of the deceased. The order, dated 15-10-1981 passed by the respondent No,3 was supported and claim to heir ship of applicants Nos.1 to 5 was asserted on the ground of their being distant kindred of the deceased. The claim of Mst. Aandhi, respondent No,6, was asserted as widow of the deceased. The filing of earlier suit by the applicant No,1 was tried to be justified for protection of his rights. The omission to mention names of applicants Nos.2 to 6 was attributed to oversight and the orders passed by the two revenue authorities, being respondents Nos.2 and 3, were defended as lawful and proper. It was, however, admitted that the respondent No,1 was in physical possession of the subject property, and payment of land revenue by her was also acknowledged. The applicant No,7 urged the same pleas as were raised by the applicants Nos.1 to 6 with the added contention that he was a bona fide purchaser.
3. On the basis of pleadings, the following issues were settled:--
(1) Whether the plaintiff is owner of the suit property by inheritance from Nasib Khan son of Muhammad Khan?
(2) Whether after the death of Nasib Khan, the plaintiff is in possession of suit property as owner?
(3) Whether the defendants Nos.1 to 6 are the legal heirs of late Nasib Khan as alleged by them?
(4) Whether the orders of defendants 8 and 9 and entry thereunder in the revenue record, in favour of defendants 1 to 6, are illegal, mala fide, ultra vires, managed, void ab initio and without notice and without jurisdiction. If so, what is the effect?
(5) Whether the registered sale-deed, dated 21-11-1981 by defendants Nos.1 to 6 in favour of defendant No,7 is void and without title?
(6) Whether the defendant No,7 is bona fide purchaser by registered sale-deed, dated 21-11-1981.
And whether he has acquired any title thereunder?
(7) Whether the suit is undervalued and is insufficiently stamped?
(8) Whether as per custom the defendant No,6 is not entitled to inherit after second marriage?
(9) What should the decree be?
4, After recording evidence as was produced by the two parties, the learned II-Senior Civil Judge, Larkana pleased to dismiss the suit through his judgment and decree, dated 12-11-1986 holding, however, that possession of the subject property was with the respondent No,1 but on the basis of its finding that she had failed to prove Relationship with the deceased, the possession, as above, was that of a. Trespasser. The applicants Nos.1 to 5 were found entitled to inherit the estate of the deceased as the distant kindred and the applicant No,6' was found entitled to inherit- as a widow.
The judgment and decree passed by the learned II-Senior Civil Judge, Larkana was assailed in Civil Appeal No,41 of 1986 which was allowed through the impugned judgment holding that the respondent No,1 is the sole surviving heir of the deceased and as a sister is entitled to entire estate left by the deceased in the absence of any sharer and residuary. The applicants Nos.1 to 5 are found to have failed to prove their relationship with the deceased and evidence of the respondent No,1 was believed by drawing adverse presumption against subsistence of marriage between the deceased and Mst. Aandhi due to failure of the later to appear as a witness. Resultantly, the suit of the respondent No,1 has been decreed as prayed.
5. I have heard Mr. A.M. Mobeen Khan, Advocate for applicants, Mr. Rehniat Ali Rajput, Advocate for respondent No,1 and Mr. Abdul Fatah Mughul, Advocate for respondents Nos.2, 3 and 4. With the assistance of all the learned counsel, I have gone through the record of the case.
6. The learned counsel for applicants has addressed his arguments separately in relation to three sets of persons claiming inheritance in the matter. The first limb of arguments of Mr. A.M. Mobeen Khan, advocate pertains to the applicant No,6, Mst. Aandhi who claims as widow of the deceased. It is contended that the marriage between the deceased and Mst. Aandhi is admitted by the respondent No,1 in her pleadings as well as her evidence. Reference has been made to the averments contained in para. 6 of the plaint that:-- "The defendant No,6 Mst. Aandhi was divorced by said Nasib Khan and she in lifetime of Nasib Khan, contracted second marriage. The defendant No,6, even otherwise, is also not entitled to inherit as per custom having contracted second marriage, even if after death tedious husband."
7. The entitlement of Mst. Aandhi to inherit as a widow is thus questioned on twofold grounds. It is shown from the impugned judgment, dated 29-9-1987 that the exclusion of Mst. Aandhi from inheritance on the basis of custom has not been accepted by either of the two Courts below nor has any counter appeal or cross-objections been filed by respondent No,1 to question the above finding which appears to have been accepted by the respondent No,1. As regards the allegation of divorce and her re-marriage with one Juma during the lifetime of the deceased, reference is made to the admission made by respondent No,1 in the opening part of her cross-examination in the following terms:-- "MM. Aandhi has married another husband named Juma, She married him after Nasib Khan had died. It is not a fact that Mst. Aandhi was not divorced. It is not a fact that she was wife of Nasib Khan. Tilt he died."
8. In view of the admission as above, the only question which remains to be decided about the applicant No,6 is if she was divorced by the deceased and the marriage stood dissolved during the lifetime of the deceased. Mr. A.M. Mobeen Khan, Advocate has pointed out the contradictions in the oral testimony of the respondent No,1 and her witnesses. It is pointed out that the deceased had expired in July, 1978 but the respondent No,1 did not specify the date of alleged pronouncement of divorce by the deceased. The respondent No,1 and her witnesses, in their evidence have made varying statements about the time when the divorced was pronounced. The respondent No,1 has deposed that the deceased had married Mst. Aandhi about 12 years after the creation of Pakistan and had divorced her about 3/4 years prior to his death. The above statement of the respondent No,1, it is pointed out, has correctly been noted by the learned Senior Civil Judge in his judgment to point out the vast difference between the statement of respondent No,1 and the witness Ali Murad who had stated that the marriage between the couple had subsisted for two to three years only.
Besides pointing out the above fallacy in the evidence from the side of respondent No,1, the learned counsel for the applicants has forcefully argued that the finding against subsistance of marriage could not be recorded on the basis of presumption alone. Reference has also been made to the provisions of the Family Laws Ordinance, 1961 and the requirement of notice under section 7 thereof to bring about dissolution of marriage. Reference has been made in this behalf to the judgment in Malik Javid Ali and another v, Abdul Kadir and another 1987 SCMR 518 wherein Talaq had admittedly been pronounced but the husband had abstained from sending notice in terms of section 7 of the Muslim Family Laws Ordinance, 1961. On the above facts, it was held that the marital status of the parties had not changed and the relationship of husband and wife had continued.
The Honourable Judges of the Supreme Court have cited with approval, the principle laid down in the case of Sayed AU Nawaz Gardazi v. Lt,-Col. Muhammad Yusuf PLD 1963 SC 51, Abdul Mannan v.
Safuran Nissa 1970 SCMR 845 and Muhammad Salahuddin Khan v. Muhammad Nazir Siddiqui and others 1984 SCMR 583. The following passage in the second case, namely, Abdul Mannan v.
Safuran Nissa may be referred here with advantage, being relevant to the present issue:--'
"The learned counsel for the petitioner concedes that no notice of the alleged divorce was given to the Chairman as required by section 7(1) of the Muslim Family Laws Ordinance. That being so the alleged divorce, in view of the express provision of subsection (3) of section 7 of the said Ordinance, is yet to become effective."
9. The learned counsel for the applicants has further referred to judgment in Nazir Ahmed and others v. Abdullah and others 1997 SCMR 281 to contend that in the cases involving determination of inheritance, exclusion of a legal heir on a technical ground has to be avoided. The following observation in the cited case has been referred:- "We may also observe that the cases which involve inheritance inter se among the legal heirs, the Courts should make efforts to ensure that no legal heir is denied of his legal share in the estate of the deceased concerned one a technical ground. The above approach will also be in consonance with the Injunctions of Islam."
10. It is pointed out that the only ground for excluding Mst. Aandhi from heirship in the present case is her non-appearance in the witness-box; This lady had filed written statement contending that she was the wife of the deceased till his death and was entitled to inherit as a widow. The applicant No,1 had appeared as a witness and had produced power of attorney executed in his favour by Mst.
Aandhi and others. Various suggestions were put to him during cross-examination to suggest that Mst. Aandhi had been divorced by the deceased and had contracted another marriage during the life time of the deceased. All such suggestions were denied.
11. Mr. Rehmat Ali Rajput, Advocate for respondent No,1 has vociferously argued that the respondent No,1 and both her witnesses had deposed in support of pronouncements of divorce upon Mst.
Aandhi by the deceased. The learned counsel for respondent No,1 has urged that the attorney of Mst. Aandhi had himself taken position contrary to the stand taken by Ms., Aatdbi and in the plaint of Suit No,89 of 1979 dated averred in unequivocal terms that the deceased had not left any child or "wife". The reference has also been made to order, dated 26-8-1981 passed by the respondent No,2, according sanction to the Mukhtiarkar for deciding the matter of mutation of the revenue records afresh, wherein Mst. Aandhi, was referred. As a widow and the respondent No,1 as the sister.
Mr. Rehmat Ali Rajput has urged that the failure of Mst. Aandhi herself to appear as a witness is fatal and leads to adverse presumption against her. Reference has been made. To Article 129(g) of Qanunje-Shahadat in support of the above submissions. The learned counsel for respondent No, 1 has heavily relied on Article 126 of Qanun-e-Shahadat which requires proof, in the negative by person v ho affirms that the other person, in possession of property, is not the owner.. The learned counsel for respondent No,1 asserts that similar presumption has to be drawn in favour of respondent No,1 for the reason that she was also in possession of the document of title, namely, Fard-e-Haqiat; and, has finally urged that the lower Appellate Court has found Mst. Aandhi disentitled to inheritance and/or such view should prevail in comparison to the contrary finding recorded by the learned Senior Civil Judge, Larkana.
12. The learned counsel for the official respondents has supported the contention of Mr. A.M.
Mobeen Khan and admits entitlement of Mst. Aandhi as a sharer to the estate of the deceased.
13. Although Mst. Aandhi has not appeared herself as a witness, the applicant No,1 has examined himself also as the attorney of Mst. Aandhi. The written statement of Mst. Aandhi, therefore, cannot, be excluded out of consideration. The assertions and counter-assertions about status of Mst.
Aandhi being widow of the deceased are oral and carry identical Evidentiary value. Indeed, the allegation about pronouncement of divorce is stated by the respondent No,1 and her witnesses in self-contradictory terms, and therefore, makes the oral testimony doubtful about such aspect. In any event, it is elementary that dissolution of marriage cannot be inferred and finding in this behalf cannot be based on mere presumptions. This approach is in consonance with the Injunction of the Islam and Art. 35 of the Constitution of Pakistan. In the present case, even otherwise, the notice contemplated under section 7 of the Muslim Family Laws Ordinance has not been alleged to have been sent by the deceased. The legal- position under the above-referred provision of law is clearly stated in the judgments cited by Mr. A.M. Mobeen Khan and the divorce even if presumed to have been pronounced does not become effective in the absence of the notice. The statements to the contrary attributed to the applicant No,1 in Suit No,89 of 1979 and the applications preferred by him earlier, again, cannot divest Mst. Aandhi from her right of inheritance as widow of the deceased.
The various statements of applicant No,1 referred by. Mr. Rajput were, firstly, made before his appointment as attorney when his status was that of stranger and, in any event, the technical approach, as above, cannot come in the way of Mst. Aandhi getting her share of inheritance, in view of the rule contained in the case of Nazir Ahmed and others (supra). Similarly to disentitle Mst.
Aandhi as an heir for her non-appearance as a - witness or on the basis of Article 129 of Qanun-e- Shahadat cannot be approved. The fact that the respondent No,1 is in possession of the subject property and the title document, likewise Is not material. Once Mst. Aandhi is found entitled to inherit as a widow, the status of respondent No,1 becomes fiduciary. Article 126 of Qanun- eShahadat, in any event, affords special protection to a person in possession about proof of ownership. The respondent No,11 C having herself claimed as successor in interest of the deceased, cannot require his other legal representative to disprove her ownership.
14. In the circumstances, the finding recorded by the learned lower Appellate Judge about disentitlement of Mst. Aandhi as an heir of the deceased, on the basis of alleged divorce, is unfounded and contrary to the law which needs to be rectified.
15. Reverting to the second aspect of arguments raised by Mr. A.M. Mobeen Khan about the entitlement of respondent No,1, Mst. Nooria, it is urged that she did not prove her relationship with the deceased and, in any event, cannot succeed to the estate of the deceased exclusively. The learned counsel for the applicant has referred to the deposition of respondent No,1 and her conduct in the matter. While the assertion about the respondent No,1 being in possession of the subject property is not disputed, it is pointed out that she did not know even the names of some close relatives of the deceased and had wrongly denied the relationship of applicants Nos.1 to 5 with the deceased. The learned counsel for the applicants has urged that the applicants Nos.1 to 5 were closely related with the deceased and the ignorance about names of the common ancestors of the parties show that the respondent No,1 was not closely related with deceased. Reference was further invited to the evidence of the plaintiff's witnesses to show that she was not the real sister of the deceased. On the other hand Mr. Rehmat Ali Rajput has drawn my attention to the uncontroverted evidence about the deceased living with respondent No,1 for a substantially long time and the management of the subject property remaining with the husband of respondent No,1 which is reflective of the confidence and the trust enjoyed by the respondent No,1. Mr. Rajput has further referred to the stand taken by the applicant No,1 about the relationship of respondent No,1 with the deceased in Suit No,89 of 1979 wherein it was averred that the respondent No,1 was step- daughter of the deceased.
16. I have already referred to the case of Nazir Ahmed (ibid) wherein it was held that in the case involving inheritance, no one is to be excluded from succeeding to the estate on the basis of technicalities. The respondent No,1 was admittedly in possession of the subject property as well as the document of title. In the circumstances, strong evidence was needed to non-suit the respondent No,1 and deny her the inheritance in this case. The view expressed in the lower appellate judgment about the relationship between the respondent No,1 and the deceased is not shown to suffer from any illegality or irregularity and the respondent No,1 has rightly been found entitled to succeed to the estate of the deceased as his real sister. Indeed, Mr. Rajput has rightly referred to the case of Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Karachi 202 and in the case of Illamuddin through Legal Heirs v. Syed Sarfraz Hussain through Legal Heirs and 5 others 1999 CLC 312 to contend that in the event of conflict between the findings of the two Courts below and, upon failing to notice any illegality or material irregularity, the finding of lower Appellate Court prevails over the view expressed by the original Court. I have not been shown anything from the record of this case, if relationship of brother and sister between the deceased and respondent No,1 is based on no evidence.
17. Reverting to the share as may be claimed by the respondent No,1. Mr. A.M. - Mobeen Khan, Advocate has urged. That she being a lady can not inherit full share in the estate of the deceased.
Mr. Rajput initially wanted to argue that the respondent No,1 has rightly been found entitled to inherit the entire estate left by the deceased, was constrained to concede that the Qur'anic share of respondent No,1 cannot extend beyond half the property left by the deceased. Such principle is clearly contained in the Divine Command in Verse 176 of Surah Al-Nisa which is as follows:-- "They ask thee For a legal decision. Say: Allah directs (thus) About those who leave. No descendants or ascendants As heirs. If it is a man That dies, leaving a sister But no child, she shall Have half the inheritance."
18. In view of the maximum share as can vest in the respondent No,1 by virtue of the unambiguous terms contained in the Holy Qur'an, it is neither possible nor proper to hold otherwise. The finding contained in the impugned appellate judgment holding respondent No,1 entitled to entire subject property left by the .Deceased cannot be sustainer and is set aside accordingly. It may be noted that the parties are Sunni Muslims.
19. The last contention of Mr. A.M. Mobeen Khan revolves round the claim of the applicants Nos.1 to 5 as the distant kindred. The claim of applicants Nos.1 to 5, it is noticed, is based on oral testimony which is full of self-contradictory statements. The applicant No,1, who alone ,had stepped into the witness-box, had first put up the plea that he _was sole surviving heir of the deceased being his first cousin. Then he decided to join with him the applicants Nos.2 to 6 and has rightly been disbelieved by the learned Appellate Judge and I do not find any material or justification to interfere with the findings recorded in this behalf. The applicant No,1 had himself acknowledged' that the Bakhtawar, uncle of the deceased had died issueless.
20. No other arguments were addressed by the learned counsel for the applicant' in support of the revision application. Taking up the question of relief, the decree passed by the lower Appellate Court in Civil Appeal No,299 of 1987 is maintained with the modification that besides the respondent No,1, the deceased was survived by his widow Mst. Aandhi who would be entitled to 25 paisa share being the sharer. The respondent No,1 would also inherit to the extent of 50 paisa share since the deceased was not survived by any child, parent or full brother. Indeed, with full brother she would have become a residuary. No other heir is shown to have been left by the deceased attracting the doctroine of Return (Radd). The return is explained by D.F. Mulla in his treatise on the Muslim Law as the residue left after satisfying the claims of sharers when there is no residuary.
What is significant is exception to the above-referred right of reverter stated in the following words:- "Exception.---Neither the husband nor the wife is entitled to the Return so long as there is any other heir, whether he be a Sharer or a Distant Kinsman. But if there be no other heir, the residue will go to the husband or the wife, as the case may be, by Return.
21. In view of the above exception, Mst. Aandhi being the widow is not entitled to the Return in presence of the respondent No,1 succeeding as a sharer. The relief of cancellation of sale-deed, dated 21-11-1981 in favour of applicant No,7 would be effective to the extent of the estate falling to the share of applicant No,6. The revision is disposed of in the above terms.
22. In view of the controversies involved in the matter, the impugned judgment of the lower Appellate Court, about imposition of cost, is also modified and the parties are left to bear their own costs.