KARAM ELAHHE CHAUHAH, J.-The dispute in this case is about a sum of Rs. 29,400, which was remitted to Mst. Jiwan, mother of plaintiff Mst. Aziz Bibi, by Pakistan Consulate in America. This amount was actually left by Khair Din, brother of Mst. Jiwan who had died in America. The registered envelop, which was received from America containing the above amount was sent back with an endorsement that Mat. Jiwan had died. Pakistan Consulate in America then wrote to the plaintiff, who, as already mentioned, was daughter of Mst. Jiwan that if she wanted the aforesaid amount she should get her share established in a Court of law. Consequently, Mst, Aziz Bibi instituted a suit in the Court of the Administrative Civil Judge, Lyallpur, making (1) Faqir Muhammad and (2) Rehmat Ullah as defender-to in the case. Paragraph 4 of the plaint is relevant in the case. It reads as follows : The plaintiff in the circumstances hereinbefore mentioned claimed a declaration that she was entitled to the aforesaid amount as an estate left by her mother Mst. Awan which was lying ire the hands of Pakistan Consulate in America. She also put up an additional claim on the basis of a will alleged to have been executed in her favour by her mother. The claim on the basis of the will was not pressed before us.
2. Defendant No. 1 filed a written statement conceding that the plaintiff was daughter of Mat. Awan who had died on 25-2-1959. He averred that the will which was made by Mst. Awan related to her own share which she gave to her daughter Mst. Axis Bibi plaintiff and on his part he had no objection against the same. He further pleaded that he was a real nephew of Khair Din (who had died in America) and was entitled to have a share in his inheritance. Defendant No. 2 Rehmat Ullah in his statement denied the right of both, namely, of the plaintiff as well as of defendant No. 1.
3. On the pleadings of the parties, the learned Civil Judge, framed the followed issues :
(1) Whether the property in dispute has been properly described in the plaint? If not, what is its effect?
(2) Whether the plaint does not disclose as to how the civil Court at Lyallpur has jurisdiction to take cognizance of this suit?
(3) Whether the plaintiff is entitled to any share in the property in dispute? If so, to what extent?
(4) Relief.
4. Issues Nos. 1 and 2 were decided in favour of the plaintiff. On issue No. 3 the learned Civil Judge held that Mst. Asia Bibt was entitled to 1/2 of the suit property. As regards the other half lie gave it to Rehmat Ullah defendant No. 2 holding that he was nephew of Mst. Jiwan. As regards Faqir Muhammad, defendant No.1, he gave no share to him, because according to the learned Civil Judge, Faqir Muhammad had not been able, to connect himself with Mst. Jiwan. The judgment and decree of the learned Civil Judge are dated 31-10-1961. Defendant No. 1 has come up in Regular First Appeal against it and the present judgment will dispose of the same.
5. It is not necessary to go into the lengthy details of this case and it will be sufficient for the purpose of the order which we propose to pass to mention that the claim of lust. Aziz Bibi to the extent of one-half of the amount in dispute stands conceded before us by the learned counsel for defendants 1 and 2. They also concealed, and so is the stand of the plaintiff that the case should be decided by considering that the amount in dispute belonged to and was left by Mst. Jiwan, mother of the plaintiff, who should be considered to be the props-2itus. In that view of the matter, the present appeal against Mst. Aziz Bibi plaintiff is misconceived and is liable to be so held We hold accordingly.
6. The real controversy in this case however, is between defendants 1 and 2. For this purpose again an admitted fact is that Rehmat Ullah. Defendant No. 2, is son of Imam Din son of Wazir A.I. Imam Din, it is again admitted, is brother of Mst. Jiwan propositus. From that point of view, Rehmat Ullah will obviously be entitled to share in the inheritance of Mst. Jiwan. However, the only controversy which now is left in the field is as to whether Faqir Muhammad, defendant No. 1. Is also nephew of Mst. Jiwan or not. Faqir Muhammad states that he is son of Maula Bakhsh son of Wazir A.I, but Rehmat Uliah defendant No. 2 states that Faqir Muhammad is son of Maula Bakhsh son of Lakha. It is here where a difference on the subject has arisen. The learned Civil Judge on this part of the case gave a verdict against Fakir Muhammad and hold him as not connected with Wash A.I and thus deprived him from inheritance of Mat. Jiwan. The following pedigree-table will explain the position : Lakha Wasir A.I GhulamImam Din Khalr Mat. Maula A.I of died in Din Jiwan Bakhah Ghulam India died in died NabiAmericabefore died inMot.Partition India Rehmat Asia in 1947 Ullah Bibi (issueless) ~ defendant plaintiff Faqlr Muhammad defendant No. 1 pleads this pedigroo-table.
Maula iakah Allah Bakhah Mango Faqir Muhammad defendant No. 1 (Rehmat Ullah defendant No. 2 attributes this pedigree-table to Faqir Muhammad)
As the above pedigree-table will show Faqir Muhammad claims that his father Maula Bakhsh was brother of Mst. Awan whereas Rehmat Ullah defendant No. 2 states that Maula Bakhsh was son of Lakha a brother of Wazir A.I.
7. We have heard the learned counsel for the parties. As argued by the learned counsel for the appellant if the learned Civil Judge wanted to thrash out the contest between the co-defendants, it wig just and propel to put that controversy in the form of a regular issue and then allow the patties to lead evidence in support of their respective contentions. As this was not done, learned counsel for the appellant was justified in saying that his client had been prejudiced by the procedure adopted by the learned Civil Judge. Another fact which was pointed out by the learned counsel was that Faqir Muhammad (defendant No. 1) appellant appeared as his own witness and closed his case. Thereafter Rehmat Ullah defendant No. 2 gave his statement on the same day and closed his case except for reserving the liberty to tender in evidence a copy of a pedigree-table. The production of that copy was allowed which was formally tendered in evidence on 19-7-1961 and marked as Exh. 'D/1' on payment of costs. As this document had been produced after defendant No. 1 (appellant) had closed his case, the appellant prayed for an opportunity to lead evidence in rebuttal thereto. However, the learned Civil Judge refused to grant the request made and passed the following order t "Learned counsel for defendant No. 1 requests for an opportunity to lead further evidence as to his relationship with Khair Din deceased. The ground urged by him is that it is after closure of his evidence that defendant No. 2 had brought evidence as to non-relationship of defendant No. 1 with Khair Din deceased. The point is without substance inasmuch as in view of issue No. 3 it was for the plaintiff s and defendant No. 1 to prove the relationship and it was for defendant No. 2 to rebut the same. No -opportunity fox rebutting the rebutting (sic) evidence can be given. For this reason the opportunity for further evidence, sought by defendant No. 1 i9 declined. Lot the case come up for arguments of the parties on 11th September 1961."
The plea raised by the learned counsel for the appellant appears to be justified. The learned Civil Judge had relied upon issue No. 3 for the purpose of rejecting the request of the appellant but as is self-evident from the issues reproduced above, the aforesaid issue pertained only to the 4 plaintiff and not to the defendants Inter se. To make the aforesaid issue, therefore, as the basis for rejecting the claim of Faqir Muhammad defendant No. 1 In the peculiar circumstances of the case, was not justified.
8. Learned counsel for the appellant further submitted that Exh.'D/1' which purported to be a pedigree-table of the revenue record in India, actually was a copy of a copy of that pedigree-table which bad been received in the Central Record Room. According to section 74 (1) (iii) of the Evidence Act, the aforesaid document constituted a public document. According to section 78 (4) and section 78 (6), public documents of foreign countries could be proved in the manner laid down therein. It was argued that as the aforesaid procedure was not adopted, therefore, Exh. D/1 was not admissible in evidence. Learned counsel further argued that in any case an opportunity ought to have been given to the appellant to rebut the aforesaid document. This last portion of the argument we have already dealt with in para. 8 above, but as regards the admissibility of the document aforesaid, since we are going to remand this case, we would not like to give our own adjudication on the subject and leave it for the learned civil Court to attend to that matter in accordance with law. Order accordingly.
9. The upshot of the above discussion is that the present appeal is accepted only against defendant No. 2 Rehmat Ullah and the case is remanded to the learned Civil Judge for deciding the controversy between defendant No. 1 and defendant No. 2 afresh. The decree, so far as it pertained to fixing the share of Mst. Aziz Bibi as entitled to one-half share of the amount in dispute, is hereby maintained. In fact in that respect no objection was taken by either of the parties before us. The costs inter se the defendants to abide by the result of the suit after remand. The learned trial Court should dispose of the present suit within a period of six month from tae receipt of the record. The parties are directed to appear before the learned Senior Civil Judge, Lyallpur on 26-11-1977.
S.A. H.Cam remanded.