Ghulam Hussain died issueless and the Mutation of Inheritance No,74 dated 19-7-1976. qua his estate, was sanctioned in favour of the respondent his nephew, considering Ghulam Hussain to be Shia by faith and excluding the petitioner, his widow according to the Shia rules of succession. The petitioner/plaintiff, though earlier agitated the matter before the Revenue Authorities, but ultirriateiy, filed a suit for declaration on 1-9-1977, impugning the aforesaid mutation and claiming her share in the estate of deceased, on the basis that, the deceased was Sunni by faith and the mutation has been fraudulently procured by the respondent/defendant. This suit was contested by the respondent, who besides denying that Ghulam Hussain was Sunni, also took up the plea that, the deceased some months before his death, has divorced the petitioner and, therefore, she was not entitled to inherit his estate as widow. Out of the pleading of the parties, the learned trial Court framed the following issues:-
(1) Whether the plaintiff is estopped by her own conduct to bring this suit? OPD
(2) whether the suit is non-maintainable in its present form? OPD
(3) Whether the plaintiff has no cause of action? OPD
(4) Whether Ghulam Hussain deceased had divorced the plaintiff? OPD
(5) Whether the Mutation No,74 dated 19-7-1976 is a null and void and in-operative against the right of the plaintiff as alleged in the plaint? OPD
(6) Relief.
The parties were put to trial. The learned trial Court, by returning the findings on the relevant issues in favour of the petitioner and against the respondent, allowed the suit vide judgment and decree dated 21-3-1987. But the appeal filed by the respondent succeeded on 6-2-1988. Resultantly, suit of the petitioner has been dismissed, hence this revision petition.
2. The learned counsel for the petitioner contends that, the view of the Court in appeal, that the suit is not maintainable because that the petitioner was out of possession of the suit property and has not sought the relief of possession, therefore, it was hit by proviso to section 42 of the Specific Relief Act, is against law, for the reasons that, once the impugned mutation is declared to be null and void, the petitioner automatically becomes the co-sharer of the property as an heir of the deceased Ghulam Hussain and resultantly, even the exclusive possession of one co-sharer, would be deemed to be the possession of the other co-sharers. It is further contended that the learned trial Court had not framed the crucial issue in the matter as to "whether Ghulam Hussain was Shia or Sunni by faith" and this had reflected upon the final decision of the case. Lastly it is submitted that the learned Court of appeal has misread the evidence on the record and has given the incorrect factual findings, which are not supported by the evidence.
3. I have heard the learned counsel for the parties. As regards the subjection that specific issue about the faith of Ghulam Hussain was not framed, suffice it to say that the petitioner at no stage of the case, applied to the trial Court for the framing of a specific issue in this behalf. However, being conscious of the true controversy involved, both the parties produced their evidence to prove or disprove the faith of Ghulam Hussain as Shia or Sunni; moreover it is not shown; if on account of the above, the petitioner in any manner, was prevented to adduce some other evidence to prove the faith of the deceased. It is settled law that, where the parties were conscious of the real factual discord between them and had led evidence accordingly, subsequently, for non-framing of a specific issue, the trial or judgments and decrees, are not vitiated, therefore, this objection of the learned counsel for the petitioner has no three and is hereby repelled.
4. As regards the question, if the suit tiled by the petitioner was incompetent, it may be held that as per the law, the moment a person demises, his succession opens and according to the Sharia, all the persons, who are entitled to inherit his estate, immediately and automatically become the co- sharers of the estate left by the deceased. It is also settled law that the possession of one co- sharer, is also the possession of the other co-sharers and each co-sharer would be deemed to be in possession of every inch of the joint property, even if he does not hold the physical possession.
Therefore, if ultimately it is found that, the deceased was not a Shia by faith and, the petitioner under the Sunni law of Succession is entitled to inherit his estate then, being a co-sharer alongwith the respondent, the bar of proviso to section 42 of the Specific Relief Act, would not be applicable, therefore, the question of maintainability of the suit would be dependent upon the broader proposition between the parties, whether Ghulam Hussain was Shia or Sunni by faith and. the impugned mutation is ineffective upon the rights of the petitioner having not been sanctioned according to the Sunni rule of succession. Thus. with the concurrence of the learned counsel for the parties. the crucial and pivotal issue involved in the matter about the faith of Ghulam Hussain is being adjudged first.
5. In order to prove her case, the petitioner examined P.W.1 Sultan Mehmood, who in his examination-in-chief, has stated that at the time of his death, Ghulam Hussain was a Sunni; he was a Murid of Peer Sial Sharif; that there was no person of Shia faith in Mauza Koth Shah Behlol, where Ghulam Hussain used to live. Though this witness has been cross-examined, but the important fact that, Ghulam Hussain was Murid of 'Peer Sial Sharif, has not been challenged.
Admittedly, as has been conceded before this Court, Peer Sial Sharit, was Sunni by faith. Likewise, P.W.2 Abdullah has also stated in examination-in-chief that. Ghulam Hussain was a Sunni. P.W.2 is an Imam of the Mosque of Shah Behlol and has also deposed that the performed two Nikah ceremonies of Ghulam Hussain, earlier with a relative of the petitioner (now died) and thereafter. with the petitioner; both these ceremonies were performed according to the Sunni faith. He has also deposed that Ghulam Hussain was Murid of Hazrat Khawaja Qamarud-Din Sialvi. There is no cross-examination on this witness, if he had not performed both the Nikah ceremonies of Ghulam Hussain and that Ghulam Hussain was not Murid of Hazrat Khawaja Qamar-ud-Din Sialvi. P.W.3 is Mst. Daulan (the petitioner/plaintiff). In her examination-in-chief, she has stated that her Nikah with Ghulam Hussain was performed according to the Sunni rites. Ghulam Hussain was Sunni by faith and he has never mourn or performed Matam. There is no cross-examination to this effect again.
6. Conversely, the respondent examined D.W. I Riaz Hussain, who stated that Ghulam Hussain was Shia: he had seen him praying according to the Shia rituals, however, in cross-examination, he has failed to state as to when Ghulam Hussain changed his faith from Sunni to Shia. It is also conceded by him that in the village i,e, Koth Shah Behlol, there is no Imam of the Shia faith and also no Shia Imam Bara. D.W.2 Maulvi Muhammad Ismail has supported the version of the respondent that Ghulam Hussain was Shia. He is the Imam of the, mosque of Mauza Sangra. He stated' that Ghulam Hussain used to pray in his Imamat and that he performed his funeral rituals and Namaz-e-Janaza according to Shia faith. In cross-examination, he has stated that he does not know, when Ghulam Hussain changed his faith. D.W.3 Ahmad Hassan, in addition to deposing about the faith of Ghulam Hussain has also stated that Ghulam Hussain had divorced the petitioner some months before his death. D.W.4 Habib is a witness about divorce of the petitioner. Besides, he mentioned that Ghulam Hussain was a Shia. D.W.5 Abdul Aziz, who is a Waseeqa Navees, has stated that he had drafted the Talaqnama Exh. D.3, on the asking of Ghulam Hussain, however, in the cross-examine nation, he has stated that he does not know, whether Ghulam Hussain was Shia or Sunni. D. W.6 is one Maulvi Muhammad son of Abdul Aziz. He claims to be the Imam of the mosque of Mauza Baha-ud-Din and has stated that Ghulam Hussain had never performed Namaz in his Imamat, rather he was Shia by faith and that the rituals of his Namaz-e-Janaza, were performed by Maulvi Ismail, who belongs to another village and had especially come for the purpose of Namaz-e-Janaza of Ghulam Hussain. D.W.7 is the respondent himself.
7. The learned trial Court, after analyzing the evidence on the record, has given the factual finding that Ghulam Hussain had never divorced the petitioner and was not a Shia, rather was Sunni and thus, the petitioner succeeds to his estate to the extent of her share under the Sunni Law of Succession. The learned Appellate Court has though maintained the findings on the question of divorce, but about the faith of Ghulam Hussain, those have been reversed. In this behalf, mainly the staternenis of Maulvi Muhammad Ismail and Maulvi Muhammad have been relied upon. The following paragraph of the judgment in this behalf reads as under:- " Therefore, if the evidence of the parties is weighed in the scale of veracity, the scale titles in favour of the defendant. In absence of any documentary evidence, the oral evidence will have to be relied upon in order to come to the conclusion. The reasons on which statements of the P. Ws. were given preferential weight are not well-founded. According to section 35 of the Muslims Law by Sh.
Shoukat Mehmood, it has been provided that ` when to hold that a person was 'Sunni Muslim' or Shia by faith, it was sufficient for the Court to be satisfied that he poses to be 'Sunni Muslim' or Shia as the case may be. This means that it necessarily to follow that the Court should not go into the details of his belief. The comparative analysis of the evidence led by both the parties reveals that the evidence produced by the defendant is much weighty than that of the plaintiff."
Though, the learned Court in appeal has appreciated the evidence and has considered that the evidence of the respondent is more weighty, but has totally ignored the statements of P. W.1 and P.W.2, particularly, when they have stated Ghulam Hussain was Murid of Hazarat Khawaja Qamar- ud-Din Sialvi, who was a Sunni Peer and these statements have not been cross-examined by the respondent's side. Meaning thereby that a person. who has a Sunni Peer, cannot be said to be Shia by faith. Moreover, P.W.2 has deposed to have performed two Nikahs of Ghulam Hussain and both according to Sunni rituals. This statement has also not been challenged by the respondent in cross-examination. It is .settled law that, if a fact deposed in examination-in-chief, is not controverted in cross-examination, would be deemed to have been admitted. Considering the above two depositions of the P.W.1 and P.W.2 as admitted, it stands proved that Ghulam Hussain was Sunni at least at the time, when he married the petitioner. It may also be pertinent to state here that D.W.7 the respondent, in cross-examination stated that, he did not participate in the funeral ceremony of Ghulam Hussain, because he himself was a Sunni. Such is the statement of D.W.3 as well. This clearly shows that the respondent, who is the real nephew of Ghulam Hussain is Sunni. The petitioner while appearing as witness also stated that she is a Sunni. There is no cross- examination to her this statement also. From the totality of the evidence from both the sides, the fact, which emerges is that, Ghulam Hussain was a born Sunni; there is also a presumption about the faith of Pakistani Muslims as Sunni, although it is rebuttable, but the respondent has led no evidence to prove the fact as to when Ghulam Hussain, who was born Sunni; professed that faith till be married twice was a Mureed of a Sunni Peer, changed his faith to Shia. This aspect is conspicuously missing in the matter. It seems that the respondent, who was the close kin of the deceased, with an object to deprive the petitioner from the inheritance, firstly took up the plea that, Ghulam Hussain had divorced the petitioner, but thereis concurrent finding of fact recorded by the two Courts below, that this plea is false. Having failed to prove the divorce, he relied upon the faith of Ghulam Hussain as Shia. Maulvi Ismail, who admittedly is not the resident of the village, where Ghulam Hussain was residing, but of another village, which according to the statements of the witnesses, is about three miles away from the village of Ghulam Hussain. Said Ismail as proved on the record, was brought in a Jeep by the respondent to perform the funeral rituals of the deceased Thus, if with an object to deprive some heir of the deceased from his inheritance, the other heirs got his funeral performed according to the Shia faith, it would not mean that the deceased was a proved Shia. Evidence should have been led by the respondent to prove as to when and before whom, Ghulam Hussain had changed his faith. It is not proved that Ghularn Hussain ever held Majlis in his house; had been participating in the Shia Majlises anywhere else or mourned during the month of Moharram and conducted Matam. No significant witnesses from the village, where'
Ghulam Hussain lived, have been examined by the respondent in this behalf. These aspects of the matters, coupled with the effect of non-cross-examination of P.W.1 and P.W.2 on the material facts mentioned above, have been ignored by the Appellate Court in reaching to the conclusion, that the evidence of the respondent is weighty than that of the petitioner. This tantamount to gross error in reading the evidence, particularly in a case where a poor, blind widow would stand deprived of her inheritance. Moreover, the learned Court in appeal has not given the cogent reasons for reversing the findings of the learned trial Court. My own reading of evidence on the record, clearly leads me to a conclusion that Ghulam Hussain was a Sunni by birth. There is no evidence about the time, venue and persons in whose presence, he changed his faith to Shia. Only for the reason that his funeral ceremony, which otherwise was arranged by the respondent, if performed according to the Shia faith, cannot be taken as singular fact that Ghulam Hussain was Shia. According to judgment reported as Pathana v. Mst. Wasai and another (PLD 1965 SC 134), every Muslim Pakistani citizen. would be presumed to be Sunni by faith, until it is proved to be contrary. Evidence to dispel the above presumption, is not satisfactory and of requisite quality, therefore, the presumption of faith of Ghulam Hussain remains that he was a Sunni thus the findings of the learned Court in appeal on the question that Ghulam Hussain was a Shia, are hereby reversed.
8. Now coming back to the issue of maintainability; when it has been held that Ghulam Hussain was Sunni, therefore, the moment, he died, the petitioner had become a co-sharer in his estate and being a co-sharer, she would be deemed to be in possession of the suit property, thus by not asking for the relief of possession qua her share, the suit cannot be held to be barred by proviso to section 42 of the Specific Relief Act, therefore, findings of the learned Court in appeal on issue No,2 are also reversed.
In the light of above, by accepting this petition, the judgment and decree of the learned Court of appeal is set aside and by upholding that of the learned trial Court, the suit of the petitioner is decreed as prayed for with costs throughout.