This appeal is directed against the judgment and decree dated 6.3-x976 passed by the learned Additional District Judge, Mianwali, who dismissed the first appeal arising from judgment and decree dated 12-1-1974 passed by the learned Administrative Civil Judge. Mianwali dismissing the suit of the appellant. The appellant had brought a suit for declaration on the basis of a will dated 20-7-48 challenging Mutation No. 4749 dated 17-4-61 as illegal, void and Ineffective. The appellant and Mst. Noor Bhari respondent No. 1 are daughters of Sher Muhammad. According to the appellant, she became owner of the entire property on account of a will dated 20-7-1948 alleged to have been executed by Sher Muhammad deceased. The will was to the effect that on the death of Sher Muhammad the entire property would devolve upon Fateh Muhammad on whose death it was to go to his heirs and --ultimately to the appellant. According to the plaintiff, after the death of Fatah Muhammad, Mutation No. 4749 was got sanctioned by producing some other woman before the Revenue Officer giving shares to other co-sharers also. The share of the appellant was fixed as 1/6th. The suit was resisted and the respondents denied the factum of the will and contended that the suit was time-barred. It eras also pleaded that the will being contingent in future and successive was void. Following issues were framed:
(1) Is the suit not maintainable in its present form?
(2) Is the suit barred by limitation?
(3) Is the plaintiff exclusive owner of the suit land on the basis of some will instrument dated 20-7- 1948, executed by Sher Muhammad deceased and Mutation Nix, 4749 dated 17-4-61 is illegal, inoperative, ineffective and out come of fraudulent misrepresentation for the reasons given in the plaint?
(4) Is the will instrument forged and fictitious?
(5) Is the suit of the plaintiff, malt fide, and the defendants are entitled to Special costs.
(6) Relief.
2. Learned counsel for the appellant has made reference to copy of compromise deed P. 2 alleged to have been produced before the revenue authorities and has argued that according to this compromise, the execution of the will by Sher Muhammad deceased is an admitted fact. Since the original will was not produced, the Courts below did not rely upon the copy P.
1. Learned counsel says that since no objection was raised at the time the copy P. 1 was tendered in evidence, no objection could be raised thereafter. In this respect learned counsel relies upon PLD 1963 SC 140. a ruqqa was written by the vendor where according to which shares of vendees were entered in the mutation was produced in evidence and was exhibited. No objection bad been raised. Later on it was objected to on the ground that its execution bad not been proved, it was therefore, held that the document not having been objected to must be deemed to have been admitted and as such the trial Court was clearly wrong in excluding it from consideration on the ground that it had not been formally proved. It is evident from the quotation that the original document had been produced and since no objection was raised with regard to its formal proof, it was held that thereafter it could not be objected to. But in the present case the original will was never produced before the Court. A copy is the secondary evidence which can be produced if the loss of the original hall been proved. Even in cases where the original has been lost and its copy has been produced, still the execution of the original is to be proved and only then the secondary evidence becomes admissible. The ruqqa which was declared to be admissible in the authority cited above was written by the vendor, therefore, it could be put to the writer but in the present case there is a will made by Sher Muhammad who died long before the suit. Learned counsel for the respondent on the other hand has relied upon PLD 1973 SC 160. It has been held "that documents which are not copies of judicial record, should not be received in evidence without proof of signatures and handwriting of persons alleged to have signed or written them, even if such documents are brought on record and exhibited without objection." This view was expressed in this authority not unanimously but per majority, Mr. Justice Hamoodur Rehman, C. J. Contradicting whereas the earlier authority was based upon unanimous opinion. The point is that in cases where no objection is raised about the mode of proof o a document and the same is allowed to be admitted in evidence. The party who is entitled to raise objection is to be deemed to have admitted the execution of the document and thus it is barred from raising the objection. The reasons for holding this can be this that if an objection is raised at the proper time, the party who wishes to produce the document in evidence has an opportunity to produce the formal proof and if no objection is raised at the time of the admissibility of the document in evidence but afterwards such an objection is raised, the party who has produced the document his no chance to prove its execution.
The intention of law is not that the interest of such a party can be defeated simply for the reason that the execution of the document was not proved. Even if it be said that such a document cannot be acted upon, it becomes necessary to send back the cue in order to allow the party relying upon it to prove the execution of the document. Any how, in the present case, no such controversy arises, because the original document was never brought before the Court. So far as compromise deed P.
2 is concerned, it cannot be said that actually it was produced before the Revenue authorities and the parties had accepted it. The mere fact that such a deed was prepared is not sufficient to show that the will was acted upon. However I do not find any force in this objection that the will is invalid.
The other point on which the appellant fails is that her suit was hopelessly time-barred. The will is alleged to have been executed in 1948. The mutation which gave cause of action to the appellant was sanctioned on 17th of April, 195I but the suit was brought on 11-1-73. Under Article 120 of the Limitation Act, period of limitation for a suit for declaration is six years, and thus the suit was time- barred. Learned counsel for the appellant says that the appellant had no knowledge of the mutation, therefore, period of limitation did not start running from the date of the attestation of the mutation. The compromise deed P. 2 shows that the appellant had the knowledge of the will. It, therefore, cannot be said that she was ignorant of the attestation of the mutation. A portion of the property was sold by the respondent and the appellant brought a suit for preemption on 29th of June 1965. Copy of the plaint is D. I. One of the Khasra numbers of the property in dispute tallies with Khasra number given in the plaint and that is 2755 meaning that the suit for pre-emption was in respect of a portion of the property in dispute. The appellant has come to know that the property which she was claiming on the basis of will, had been transferred to the respondents that he bad actually sold a portion of it. At least the period of limitation started running from 19th of June 1965, the date of the institution of the said suit and even from that date also the suit brought by the appellant on 11th of January 1973 was time-barred. Learned counsel for the appellant has argued that the appellant was minor at the time of the execution of the will therefore, the suit is not time barred. He has failed to show what was the ago of the minor at the time of the will and when she attained the age of majority. Without showing this from the record, there is no force in the contention that the suit is not time-barred. It should have been shown that from the date on which the appellant attained the age of majority, the period of limitation stated running against her and from the said date the suit was not time-barred. I, therefore, come to the conclusion that the Courts below have rightly found that the suit is time-barred. As a result of the observation made above, I do not find any force in the appeal and dismiss it with costs.