Briefly stated the facts are that land measuring 289 Kanals, 6 Marlas belonged to one Abdullah son of Sahib resident of Tharpal. Upon his death, mutation of inheritance No.834, dated 4-3-1967 was sanctioned, whereby his widow Mst. Khatoon was given 1/8 share and his daughter Mst. Fatima was given 1/2 share out of the said land. The remaining 3/8 share was given to the residuaries (respondents Nos. l to 14). The plaintiffs/appellants (Mst Fatima and Mst. Khatoon) challenged the said Mutation No.834, dated 4-3-1967 on the ground that the deceased Abdullah was Shia, as such the widow was entitled to 1/8 share and his daughter was entitled to 7/8 share. This suit was resisted by defendants/respondents Nos.1 to 14 who asserted that the deceased was Sunni Muslim and mutation has been sanctioned correctly. Alongwtth this suit, another suit was also filed by Zaman Khan predecessor-in-interest of respondents Nos. 15 to 20, wherein he asserted that he was nephew of the deceased Abdullah and as such was entitled to inherit 3/8 share in the suit-land.
This suit was resisted by respondents Nos. l to 14 as well as by Mst. Fatima and Mst Khatoon appellants and all of them controverted his stand. Both the suits were finally consolidated and proceedings were taken in the suit filed by Zaman Khan (predecessor-in-interest of respondents Nos.15 to 20). Out of the divergent pleadings of the parties, the trial Court framed the following issues:---
(1) Whether Mst. Bibi was the sister of Abdullah deceased?
(2) Whether the plaintiff is the son of said Mst. Bibi?
(3) Whether Mst. Bibi died after the death of Abdullah deceased?
(4) Whether-the plaintiff is estopped by his conduct from filing of the present suit?
(5) Whether Abdullah deceased was a Shia Muslim and his inheritance is to be governed by the suit-land?
(6) Who are the legal heirs of Abdullah deceased and what are their respective shares in his inheritance?
(7) Relief.
2. In support for their respective stand, plaintiffs/appellants examined D.W.1 Mst. Fatima, D.W.2 Mst.
Khatoon widow, D.W.3 Fazal Hussain. D.W.4 Niaz A.I, D.W.5 Khuda Bakhsh, D.W.6 Muhammad Khan and D. W.7 Zaman. Similarly, plaintiff Zaman Khan (predecessor-in-interest of respondents Nos. 15 to 20 and appellant in R.S.A. No. 31 of 1976) examined himself as P.W.1, Muhammad Khan P.W.2, Sarwar Khan P.W.3, Muhammad Khan P.W.4, Mst. Naikan P.W.6 and Dher A.I P.W.7. He also brought on record documents Exhs.P.I to 7 and closed his evidence. In rebuttal, defendants/ respondents Nos.1 to 12 (now 1 to 14) examined D.. W.1 Fazal Muhammad, D.W.2 Lal, D.W.3 Lal son of Sikandar Khan, D.W.
4 Zaman Mehdi, D.W.5 Karam Dad, D.W.6 Rehman and D.W.7 Hassan, They also produced documents Exhs.D.l to D.4 and thereafter, closed their evidence. The trial Court examined C.W.1 Irshad Hussain, a clerk of District Health Officer Jhelum and C.W.2 Ahmad Din. After going through the evidence produced by the parties, the trial Court dismissed the suit of the plaintiff Zaman Khan (predecessor-in-interest of respondents Nos.15 to 20 and appellant in R.S.A. No.31 of 1976) and decreed the suit of plaintiffs/appellants Mst. Fatima and Mst. Khatoon (R.S.A. No.30 of 1976). The defendants/respondents Nos.1 to 12 (now 1 to 14) and respondents Nos. 15 to 20 (appellants of R.S.A.
No. 31 of 1976) felt aggrieved of the said judgments and decrees and filed appeals. Both the appeals have been disposed of vide a consolidated judgment and decree dated 29-9-1975, whereby the appeal filed by respondents Nos. l to 12 (now 1 to 14) was accepted and that of respondents Nos. 15 to 20 (appellants in R.S.A. No.31 of 1976) was dismissed. Hence these R. S. As.
3. Arguments have been heard and record perused.
4. Contention of learned counsel for the appellants is that they have examined D.W.1 Mst Fatima, D.W.2 Mst Khatoon daughter and widow of the deceased Abdullah respectively, D.W.3 Fazal Hussain and D.W.4 Niaz A.I and all of them have unanimously deposed that the deceased Abdullah was Shia that besides the daughter and widow of the deceased (D.1 and D.W.2), Fazal Hussain D.W.3 deposed that he had conducted the funeral prayer of the deceased according to Shia Sect, that D.W.4 Niaz A.I who is Sunni has admitted that Abdullah deceased was Shia, that admission of D.W.4 coupled with the admission of D.W.3 prove it conclusively that the deceased was Shia. He further submitted that under similar circumstances such evidence has been accepted and placed reliance upon Mst: Rehmat v. Mst. Amiran and others .(1992 ALD 457 Lahore) M. Iqbal Begum v. Mt.
Syed Begum and others (AIR 1933 Lahore 80).
5. Learned counsel for respondents Nos. 15 to 20 i.e. Appellants of R.S.A. No.31 of 1976 asserted that the Courts below were not justified in depriving them of their share out of inheritance of the deceased Abdullah. He submitted that Zairian Khan was nephew of the deceased Abdullah and even if it is presumed that the deceased was a Sunni, he was entitled to inherit as a residuary of the deceased. He further contended that the appellate Court was not justified to hold that he was not son of Mst. Bibi sister of the deceased Abdullah as this point was never agitated either before the trial Court or before the appellate Court, that as such findings of the appellate Court be reversed.
6. Conversely, learned counsel for the defendants/respondents Nos. l to 14 (initially 1 to 12) contends that presumption of law is that all inhabitants of Pakistan are Sunnis and if anybody claims otherwise onus lies heavily upon him to prove his contention, that as such onus was on the plaintiffs/appellants to prove that the deceased Abdullah was Shia, that to discharge this onus, they examined his daughter Mst. Fatima D.W.1, his widow Mst. Khatoon D.W.2, Fazal Hussain D.W.3 and Niaz A.I D.W.4, that statements of D.Ws.l and 2 cannot be made a basis for holding the deceased as Shia, as the said D.Ws. Are direct beneficiary of the deceased, that statement of Fazal Hussain D.W.3 cannot be relied upon as he is stranger to the village of the deceased, that it has been admitted by D .W.3 that he has never performed any, funeral prayer in the past, that this admission of D.W.3 clearly shows that he has been imported for this purpose that had D.W.3 been a resident of that village or had been offering funeral prayer in that village regularly, his statement could be taken into consideration, that under the given circumstances his evidence does not inspire confidence, that there remains the solitary statement of D.W.4 Niaz A.I which lacks independent corroboration, as such cannot be relied upon for holding the deceased a Shia Muslim.
7. So far as stand of Zaman Khan predecessor-in-interest of respondents Nos. 15 to 20 (appellants in R.S.A. 31 of 1976) is concerned, it is submitted by the learned counsel for the appellants that he neither agitated this stand at the time of attestation of Mutation No.834, dated 4-3-1976 nor at the time of appeal before the Revenue Officer, that had Zaman Khan been a nephew of the deceased, he must have agitated his stand before the Revenue Officer. He thus, contended that the appellate Court had rightly returned findings against him.
8. The controversy in the suits relates to the determination of the question if the deceased Abdullah was a Shia or Sunni Muslim. Admittedly, presumption is that all inhabitants of Pakistan are Sunni Muslims. Whosoever claims otherwise, onus lies on him to discharge the said onus. Thus; the first presumption which goes to prove that the deceased was al Sunni Muslim is the presumption of law. The other presumption which goes in his favour is that he was adjudged to be a Sunni Muslim by the Revenue Officer who attested Mutation No.834, dated 4-3-1967 as he attested the mutation after due deliberation, enquiry and hearing the parties. The third presumption which goes to prove that the deceased was a Sunni is the rule of preponderance which means that widow and the daughter being directly inheritors of the estate of the deceased have not to be given credence without any independent corroboration. In the instant case, besides the statements of widow and daughter of deceased, reliance is being placed upon the statement of Fazal Hussain who allegedly conducted the funeral prayer of the deceased and D.W.4 Niaz A.I who admits the deceased to be a Shia Muslim, though he (D.W.4) is a Sunni Muslim. If the deceased is declared to be a Shia Muslim, as per statements of Mst. Fatima and Mst. Khatoon, then both these ladies get the entire estate of the deceased. If on the other hand the deceased is declared to be a Sunni Muslim, they get 1/2 and 1/8 shares in the estate of the deceased and remaining 3/8 share falls upon respondents Nos. l to
14. Thus, under these circumstances the statements of D.Ws.1 and 2 have to be considered with due care and caution, as they are the direct beneficiaries and as such interested witnesses. The appellants have tried to corroborate the statements of D.Ws.l and 2 with the statements of D.Ws.3 and 4. However, the statement of Fazal Hussain D.W.3 who claims to have led the funeral prayer of the deceased hardly inspires any confidence, as firstly he is not a resident of that village and secondly had never led any such prayer in the past. Thus, it appears that he had been imported for this funeral prayer. There remains the statement of Niaz A.I D.W.4, who claims himself to be a Sunni Muslim and deposed that the deceased was a Shia Muslim. In absence of any independent evidence, statement of D.W.4 Niaz A.I is not sufficient to hold that the deceased was Shia Muslim.
Admittedly, the burden to prove that the deceased was a Shia is on the person alleging him to be not Sunni but: Shia, and this burden has not been discharged by the plaintiffs/appellants. Learned counsel for the appellants has placed reliance upon 1992 ALD 457 Lahore (ibid), wherein statement of Pesh Imam has been relied upon to hold the deceased as Shia. There is no doubt that in the said authority the deposition of Pesh Imam has been relied upon, but in the instant case no such reliance can be placed, as Pesh Imam (D.W.3 Fazal Hussain) is not a resident of that village and is a stranger i.e. Resident of 5/6 miles away and had never performed any funeral prayer in the past, as per his own admission.
9. So far as the stand of Zaman Khan predecessor-in-interest of respondents Nos.15 to 20 (appellants in R.S.A. No.31 of 1976) is concerned, the findings of the appellate Court are based on correct appraisal of the evidence brought on record. Even otherwise, it is admitted fact that he never agitated his claim either at the time of attestation of Mutation No.834, dated 4-3-1967 nor at the time of appeal. He agitated his claim for the first time, when the appellants/plaintiffs chose to file this suit. It appears that he (Zaman Khan) has been set up by the plaintiffs/appellants so as to get some share out of the estate of the deceased, if he is held to be a Sunni Muslim.
10. The upshot of above discussion is that impugned judgment of the appellate Court has been passed strictly in accordance with law. There is no force in these appeals and the same are hereby dismissed leaving the parties to bear their own costs.