' Wadhawa, a native Christian died on 16-7-1995. He was the lessee of the suit State land. Mutation of inheritance No,328 was entered. In the first instance, the Revenue Officer attested the same in favour of Shera son of Wadhawa out of his wedlock, with one Mst. Roori. In appeal, the Collector proceeded to order mutation of land in favour of said rather as also in favour of Inayat Maseeh, Rehmat Maseeh and Mst. Fazal Bibi. The present suit was filed by Shera on 30-11-1959 claiming to be the sole heir of the said Wadhawa. His case in the plaint was that Wadhawa was married to his mother Mst. Roori on 30-6-1986 and he was born as a result of the said wed-lock of the said spouses. According to the plaint, the said Inayat Maseeh etc., defendants in the suit, were from the womb of a woman namely Mst. Rani. The existence of any marriage between the said Mst. Rani and the said Wadhawa was denied. It was further averred that even if a marriage between Mst. Rani and Wadhawa is proved then the same is void under the Christian canons. In their written statement the said defendants took the plea that Wadhawa never married Roori and Shera plaintiff is not his son. They asserted that Wadhawa was lawfully married to Rani and they are the only legitimate heirs of Wadhawa. A reference was made in the written 'statement to a will executed by Wadhawa on 2-3-1958. Some Preliminary objections were also raised. Preliminary issues in the first instance were framed which were ultimately decided by the High Court of West Pakistan, Lahore vide a judgment, dated 27-2-1968 in Civil Revision No,192 of 1960. Thereafter, the following issues were framed on merits:--
(1) Whether Mst. Roori was a legally wedded wife of Wadhawa and whether plaintiff is only legitimate issue of Wadhawa? OPP
(2) Relief.
' Evidence of the parties was recorded. The learned trial Court decreed the suit of said Shera plaintiff vide a judgment and decree, dated 17-4-1974 Meanwhile Shera had died and the present appellants Nos.1 to 4 had been impleaded as his L.Rs, Inayat Maseeh had also died and his L.Rs, were also impleaded and so was the case with Mst. Fazal Bibi. Against the judgment and decree of the learned trial Court, only Rehmat Maseeh filed an appeal. This appeal was heard by a learned Additional District Judge, Sahiwal who proceeded to hold that Wadhawa was married to Mst. Rani as well as to Mst. Roori; that Shera was his son from Mst. Roori while the said Rehmat Maseeh, Inayat Maseeh and Mst. Fazal Bibi were his children from Mst. Rani. He allowed the appeal and allocated 1/3 share in the estate to Shera and the remaining 2/3 to the respondents 2 to 8. He also proceeded to exclude Mst. Fazal Bibi from the said estate. This was done vide a judgment and decree, dated 30-7-1989. During the pendency of the said first appeal, another development took place viz the said Shera/his L.Rs, transferred the suit land in favour of present appellants Nos.5 to 9 who were also impleaded in the said first appeal. Present R.S.A. Has been filed by appellants Nos.1 to 4 who are the L.Rs, of Shera and appellants Nos.5 to 9 who are the transferees pendent lite from Shera.
2. Learned counsel for the appellants contends that the documents on the basis whereof the factum of marriage between Wadhawa and Mst. Rani has been held to be proved were inadmissible in evidence. Further contends that even if it be assumed that Wadhawa was married to Mst. Rani as a fact, the said marriage was void under the Christian canons and as such Shera was the only legitimate lineal descendants of Wadhawa and was entitled to inherit the land to exclusion of everybody else.
' Learned counsel for the respondents, on the other hand, supports the impugned judgment and decree.
3. I have gone through the records of the learned trial Court with the assistance of the learned counsel for the parties. So far as the marriage of Wadhawa with Mst. Roori is concerned, both the learned Courts below have recorded concurrent findings that the marriage did take place. This finding of the learned Courts below is supported by the copies of entries in the Marriage Register maintained under the provisions of the Christian Marriage Act, 1872. These are on record as Exh.P.W.3/1, Exh.P.5 and Exh.P.9. These documents go to prove that Wadhawa was married to Roori on 30-6-1986 and the marriage was certified accordingly in terms of the said Act of 1872. The birth of Shera to the said Wadhawa is proved by document Exh.P.6 which is a copy of the birth register and goes to show that Shera was born on 19-1-1899. Another important document on record is Exh.P.7 which is the death entry of Mst. Roori. This document shows that Mst. Roori died on 6-10- 1950.
4. On the other side, Padri Sharif Maseeh has appeared as D.W.5 along with the Register of Marriages. According to this witness as per entry No,105 at page 35 of the Register of Banns of Marriage brought by him, Wadhawa was married to Mst. Rani daughter of Umra. A photo copy of this entry was produced by the witness as Exh.D.W.4/1. According to the witness, after the entry in the said Register, the marriage was entered in the Register of Marriages at serial No,78 at page 27, a photo copy of the said entry was produced as Exh.D.W.4/2. The learned trial Court after examining both the Registers returned the same to the witness. In cross-examination this witness who is a priest stated that under the Christian religion, a man already married cannot enter into a second marriage in presence of the first wife. I would agree with the learned Additional District Judge that the learned trial Court erred in discarding the said documents Exh.D.W.4/1 and Exh.D.W.4/2 as inadmissible in evidence. These documents were copies of the two Registers being maintained and kept by the said witness in accordance with law and the said Registers were brought by the said witness and the copies were tendered as true copies of the entries in the said original registers. I would, therefore, conclude that Wadhawa was married to Mst. Rani as well according to the said documents on 3-12-1899. This date is discernible from document Exh.D.W.4/1.
5. There is no dispute that Wadhawa and both his said wives were Christians. It stands established on record that Wadhawa was married to Mst. Roori; that Shera was a son of Wadhawa and Mst.
Roori, having been born as a result of the said wed-lock; that Wadhawa married Mst. Rani during the subsistence of the first marriage and that the said defendants in the suit are the children of Wadhawa from Mst. Rani.
6. The pivotal point which needs to be decided in this appeal is as to what is the legal effect of the said subsequent marriage of Wadhawa with Mst. Rani and as to whether off springs of Wadhawa from said Mst. Rani are entitled to inherit under the provisions of Christian Law, the estate of Wadhawa.
7. As per Halsbury's Law of England (fourth Edition) Volume 2 para. 907 at page 570, following are the requisites of a valid marriage:--
(1) that each of the parties should as regards age and. Mental and physical capacity be capable of contracting marriage;
(2) that they should not by reason of kindred or affinity be prohibited from marrying one another;
(3) that except where a second or subsequent polygamous marriage has been entered into under a law that permits polygamy, there should not be a valid subsisting marriage of either of the parties with any other person;
(4) that the parties, understanding the nature of the contract, should freely consent to marry one another; and
(5) that certain forms and ceremonies should be observed.
' It is further provided that: "Absence of one of the requisites of a valid marriage results in the marriage being void or voidable."
' Section 4 of the Christian Marriage Act, 1872 provides that every marriage between persons, one or both of whom is or are a Christian or Christians shall be solemnized in accordance with the provisions of the said Act and any such marriage solemnized otherwise than in accordance with such provisions should be void. Section 60 of the said Act of 1872 lays down the conditions for solemnizing the marriages of Native Christians. It lays down in mandatory terms that the marriage between the Native Christian shall not be certified otherwise than upon the fulfillment of the said conditions. Condition No,2 laid down in said section 60 is as follows:-- "neither of the persons intending to be married shall have a wife or husband still living."
8. The said statutory provisions are in line with the policy of Christian Law which strictly enforces monogamy and according to the Christian Canons, there can be no marriage where the former husband or wife of either party is living at the time of the wedding, and the marriage with such former husband or wife is still in force and has not been dissolved.
9. Thus, in the position that emerges from the above statutory provisions and the Christian Canons formulated by Halsbury and referred to above, it can be safely concluded that marriage between Wadhawa and Mst. Rani is void as Mst. Roori the wife of Wadhawa was alive and he was forbidden by the Personal Law applicable to him from taking a second wife.
10. The will referred to above has been concurrently found to be invalid by the learned Courts below and this finding has not been questioned by respondents.
11. In view of the above discussion, I find that Shera deceased was the only lawful legal heir of Wadhawa being his sole surviving child and as such was entitled to inherit the suit land to the exclusion of all else including the said defendants in the suit. This R.S.A. Is accordingly allowed. The judgment and decree, dated 30-7-1989 of learned Additional District Judge, Sahiwal is set aside while that dated 17-4-1974 of learned trial Court decreeing the suit of Shera deceased is restored.
No order as to costs.