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Petitioner: Mst. QAISA'r KHATOON AND 12 Other VS Respondent: Maulvi ABDUL KHALIQ AND ANOTHER JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Waheeduddin Ahmad, Hamoodur Rahman, Sajjad Ahmad Jan Title:Mst. QAISA'r KHATOON AND 12 Other vs Maulvi ABDUL KHALIQ AND ANOTHER
JUDGMENT
Reported As: PLD 1972 SC 334 Result: Appeal partly accepted Judgment JUDGMENT HAMOODUR RAHMAN, C. J.-This appeal arises out of a judgment of the High Court of Baghdad-ul- Jadid delivered on the 9th of April 1949. The appeal was filed originally before the Judicial Committee of the Amir of Bahawalpur on the 25th of June 1949, with a court-fee of Rs. 50 along with an application under section 149 of the Code of Civil Procedure of that State for extension of time for putting in the balance court-fee of Rs. 1,045. The memorandum of appeal also had a note appended to it to the following effect :- "The valuation of the suit and this appeal is above Rs. 10,000. Hence no certificate of fitness from the High Court is necessary." This appeal, which was pending before the Judicial Committee of Bahawalpur State, was ultimately transferred in 1959 to this Court under section 9 of the Federal Court (Enlargement of Jurisdiction) Act, 1949 (Act I of 1950). This section. It appears, was introduced into the above- mentioned Act in the year 1597 by the Federal Court (Enlargement of Jurisdiction) (Amendment) Act, 1957 (Act No. - X of 1957) and was made to take effect retrospectively from the 14th of October 1955, which was the date on which the High Court of West Pakistan came into being as the new High Court for the integrated Province of West Pakistan and the High Court of Baghdad-ul-Jadid ceased to -exist. After the transference of the case and the transmission of the record to the Supreme Court of Pakistan by the Commissioner of Bahawalpur Division, notices were issued by the Court on the 31st of March 1950), to the parties to enter appearance and take steps to prosecute this appeal.
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The appeal before the Judicial Committee of Bahawalpur State arose out of a suit filed in 1937 by three ladies; namely, Mst. Wahadul Khatoon, Mst. Qaiser Khatoon and Mst. Jawahar Khatoon, and one, Amiruddin, against Maulvi Abdul Khaliq and one, Waziruddin, for possession after declaration of their respective shares as the heirs of one, Maulvi Abdul Aziz who had died in 1926 or 1927. After his death his properties had, it appears, been recorded in the sole name of the respondent, Maulvi Abdul Khaliq, who was his brother's son. Hence the suit. Maulvi Abdul Aziz had also left him surviving at the time of his death two widows, Mst. Wahadul Khatoon and Mst. Sabhai, a sister Mst. Jawahar Khatoon, and a daughter Qaiser Khatoon. Mst. Sabhai died two months before the institution of the suit. Hence one of her sons from a previous husband, called Amiruddin, also joined as a plaintiff. Another son, Waziruddin, from the same husband who did not join as a plaintiff, was made a defendant. Subsequently, Waziruddin was also transferred to the category of plaintiffs. The plaintiffs alleged that the said Maulvi Abdul Aziz, who was the original recorded owner of all the properties in dispute, was governed by Muhammadan Law and, therefore his widows, sister and daughter were entitled to inherit from him. The suit was contested by Abdul Khaliq alone who set up the following defences :- (1) That Maulvi Abdul Aziz was only the owner of a half share in the said properties. The 'other half belonged to his father Abdul Hamid and had descended to him after his father's death; (2) That the family of Maulvi Abdul Aziz was governed by custom and that according to custom he alone was the sole heir of Maulvi Abdul Aziz; (3) That, in any event, Maulvi Abdul Aziz bad, by a will executed on the 4th of June 1912, gifted away all his properties to him and had given only, a maintenance allowance to Mst. Wahadul Khatoon; (4) That Mst. Sabhai was not the lawfully wedded wife of Maulvi Abdul Aziz ; and (5) That Mst. Qaiser Khatoon was not the legitimate daughter of Maulvi Abdul Aziz. On these pleadings the trial Court framed six issues:- (1) Did Maulvi Abdul Majid, the father of the defendant Abdul Khaliq, own a half share in the properties in dispute? (2) Was Mst. Sabhai the lawfully wedded wife of Maulvi Abdul Aziz and was Mst. Qaisar Khatoon his legitimate daughter? (3) Was Amiruddin a legitimate son of Mst. Sabhai and was he entitled to inherit from her? (4) Was the family of the parties in the suit governed in the matter of succession by the custom relating to agricultural tribes under which the daughters, the widows and sisters got no share and only the widows got maintenance? (5) If issue No. 4 is decided against the defendant, then to what shares are the parties entitled ? And (6) Did Maulvi Abdul Aziz leave any will in favour of the defendant Abdul Khaliq? The trial Court found issues Nos. 1, 2, 3 and 6 in favour of the plaintiffs and issue No. 4 in favour of the defendant. Issue No. 5 was left undecided. The suit was, however, dismissed on the 13th of August 1940, on the ground that the parties were governed by custom. The plaintiffs went up in appeal to the High Court of Baghdad-ul-Jadid but the defendant Abdul Khaliq did not file any cross-objection challenging the findings of the trial Court on the issues that were decided against him. The High Court took the view that the onus of proving issue No. 4 was wrongly placed on the plaintiffs. It also held that the evidence, adduced, which consisted of copies of several mutations and of two Wajib-ul-Arz for the years 1904 and 1927-28 and the oral testimony of the witnesses, was not sufficient enough to establish a special family custom by which the widows and daughters of a of proof of such special family custom, therefore, the parties should have been held to be governed by the Shariat Law. The appeal was, accordingly, allowed, the shares of the plaintiffs declared and a decree for possession passed.
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This judgment was challenged by the defendant in appeal before the Judicial Committee of Baghdad-ul-Jadid where it was argued that the High Court should have discussed all the issues and given its findings thereon, even though the defendant had filed no cross-objections in the High Court. It was not necessary for him to do so, since the suit had been dismissed by the trial Court. The question of abatement of the suit was also raised before the Judicial Committee which on the 10th of February 1942, remanded the case back to the High Court with a direction "that it should hear arguments on all the other issues which had not been previously discussed in its judgment and should also consider the question of abatement of the suit on account of the death of Jawahar Khatoon and give a fresh decision keeping in view the above directions". This advice of the Privy Council was accepted by His Highness the Amir of Bahawalpur on the 23rd of April 1942 and the case was remanded back to the High Court. The latter on this occasion set aside the decree of the trial Court and remanded the case for further enquiry to the trial Court on the 9th April 1944 for considering the question of setting aside the abatement and for admission of certain documents according to law. The trial Court, on remand, held that there had been no abatement of the suit as a result of the death of Mst. Jawahar Khatoon but on merits again came to the conclusion that the parties were governed by custom and, accordingly, dismissed the suit. Again, the plaintiffs went up in appeal to the High Court, but the appeal was dismissed on the 9th of April 1949, and the judgment of the trial Court was affirmed. Before we go into the merits of this appeal there is a preliminary objection which has been taken on behalf of the respondents as to the competency of this appeal. It is contended that since this was a judgment of affirmance, the appellants to the Judicial Committee of the State should also have obtained a certificate of fitness under section 110 of the Code of Civil Procedure from the High Court. Since this was not done, the appeal before, the Judicial Committee of the State was not competent and this Court has now no power to grant special leave to appeal, as the High Court of Bagbdad-ul-Jadid is not and never was one of the High Courts against judgments and orders of which an appeal could lie to this Court. After the merger of the State into the Province of West Pakistan that High Court ceased to exist and cannot now be deemed to exist even notionally. It is true that where there is a judgment of affirmance it is necessary under section 110 of the Code of Civil Procedure that the appeal must also involve "some substantial question of law" A and a certificate to that effect must be granted by the High Court and that in the present case all that has been stated in the memorandum of appeal is that the value of the subject-matter in dispute is above Rs. 10,000. But even if there is no certificate or the certificate has not been granted in proper form, this Court is not powerless. It can, if substantial questions of law are involved and the facts and circumstances of the case otherwise justify it, grant special leave in the same manner as the Judicial Committee of the Privy Council itself could do, because, the jurisdiction given to this Court by section 9 of the Act of 1949 is to hear and decide the case transferred to it "as if it were a case or an appeal pending before that Court" from which it has been transferred. The rules of the Judicial Committee of the State of Bahawalpur have. Not been placed before us, but from an order of the Minister of Law, Bahawalpur Government, admitting the first appeal that was taken to the Privy Council in this very case in 1941, it would appear that the Judicial Committee of the Bahawalpur State had the jurisdiction to grant special leave to appeal. The Judicial Committee of the Privy Council in Great Britain bad undoubtedly this jurisdiction and it had often exercised it. Thus in the case of Gujadhur Porshad v. The Two Widows of Emam Ali Beg (2 1 A 205where the leave to appeal granted by the Judicial Commissioner of Oudh was clearly without jurisdiction, it was pointed out that :- "the right practice is to take objections of this kind at the earliest moment, for the obvious reason that the great expense of preparing for the hearing is thereby saved, which is uselessly incurred if, when the objection is ultimately taken, their Lordships feel obliged to yield to it. But although their
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Lordships think that the objection should be taken at an early period, it is clearly competent to them to hear it at any stage of the appeal; and it has not been unusual to entertain it when the appeal is called on, and before the argument upon the merits has been commenced. Mr. Doyne has taken it at that time, and their Lordships think his objection ought to prevail. Mr. Leith then suggested that he desired to apply to this board for special leave to appeal; and no doubt there have been cases where, upon the appeal being called on and the objection discussed, their Lordships have given special leave to appeal, nune pro tune, directing that the petition to appeal should go to Her Majesty with the report upon the appeal itself. An appellant, however, cannot be in a better position with regard to the application than that in which he would have stood if he bad made it at an earlier period, and their Lordships have had to consider whether or not this is a case in which they ought to grant special leave to appeal; and they have come very clearly to the conclusion that it is not." , Again, in the case of Radha Krishn Das v. Rai Krishn Chand (28 1 A 182the Privy Council, after holding that the leave to appeal granted by the High Court without any certificate under section 596 of the Code of Civil Procedure as to the value of the subject-matter or without any decision under section 595(c) (now sections 110 and 109 respectively) as to its fitness for appeal was granted without jurisdiction, added that if "Mr. Mayne (the learned counsel of the appellant) had been in a position, which he very fairly admitted he was not, to say that he could with any hope of success ask for special leave to appeal, their Lordships would not have shut out the appellant from stating his case to the Board". Similarly, in the case of Radhakrishna Ayyar and another v Swarninatha Ayyar (48 I A 31where the certificate granted by the High Court under sections 109 and 110 of the Code of Civil Procedure did not show clearly whether the certificate was granted merely on the ground that the case fell within clauses (a) and (6) of section 109 or that it also fell within clause (c) of the said section the Judicial Committee allowed an objection to by raised and held that the appeal could not be maintained, as the value of the subject-matter was under Rs. 10,000 and there was nothing in the certificate to show that the discretion conferred upon the High Court by clause (c) of section 109 had been exercised. The counsel for the appellants then asked for special leave, even though thevalue of the subject-matter of the suit and the appeal was beneath the proper appealable amount, upon the ground that an important question of law was involved. The Judicial Committee refused to advise His Majesty to grant special leave not because it could not do so but because they did not think that there were grounds "to justify granting special leave to appeal". So far as this Court is concerned, it too : has exercised this power of granting special leave where the certificate was not proper. Thus in the case of Ghulam Hasan v. Sarfaraz Khan (PLD 1956 SC (Pak.) 309where the certificate granted by the High Court had omitted to mention, in a case of a judgment of affirmance, that in addition to the valuation test the appeal also involved substantial questions of law, this Court observed that "however now that the matter is before us we propose to go into the appeals and dispose of them on their merits" and, in fact, did so. A similar procedure was adopted by this Court in the case of Mst. Shohrat Bano v. Ismail Dada Adam Soomar (1968 SCMR 574), where it was held that neither Article 53 of the Constitution of 1962 nor Articles 158 and 160 of the Constitution of 1956 restricted the right of appeal to this Court within the four corners of those Articles but still, "in order to resolve any doubts that may arise in this behalf", special leave to appeal was granted and the appeal was heard on merits. The contention of the learned counsel for the respondents that whatever might have been the position then now this Court does not possess this power is untenable. Article 60 of the) Constitution of 1962 gives to this Court, in addition to the --jurisdictions conferred upon it by Articles 57 to 59, "such other, jurisdiction as may be conferred on it by law."
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The Federal Court (Enlargement of Jurisdiction) Act, 19.19, is still an existing law and it does confer a jurisdiction upon this Court which has not been taken away by any other statute or Act. The argument that since the High Court of Baghdad-ul-Jadid has now ceased to exist, after. The integration of Bahawalpur State with the Province of Wet Pakistan, tilts Court has lost its jurisdiction, under the Federal Court (Enlargement of Jurisdiction) Act, 1949,$ is clearly devoid of force, because, with regard to pending matters this Court's jurisdiction has not been affected in any way. Vide Sutlej Cotton Mills Ltd. v. Industrial Court, West Pakistan (1906 P R 390). It is clear, therefore, that this Court still has, in this case, the jurisdiction to grant special leave, particularly, since there are substantial questions of law arising for decision in this case. We, accordingly, overrule the preliminary objection and in order to remove all doubt grant special leave to appeal and proceed to deal with the appeal on merits. With regard to the merits of the case the first question of law raised on behalf of the appellants is that the High Court of Baghdad-ul-Jadid erred in holding that the onus was on the plaintiff's to prove "that the rule of inheritance in their family is their personal law and not the customary law." Learned counsel points out that under section 5 of the Punjab Laws Act, 1872, which was applicable to Bahawalpur, the position was the reverse. Section 5 provides as follows:- "5. In questions regarding succession, special property of females, betrothal, marriage, divorce, dower, adoption, guardianship, minority, bastardy, family relations, wills, legacies gifts, partitions, or any religious usage or institution, the rule of decision shall be- (a) any custom applicable to the parties concerned, which is not contrary to justice, equity or good conscience, and has not been by this or any other enactment altered or abolished, anti has not been declared to be void by any competent authority ; (b) the Muhammadan law, in cases where the parties are Muhammadans, and the Hindu law, in cases where the parties are Hindus, except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of this Act, or has been modified by any such custom as is above referred to." This section was interpreted by a Full Bench of the Lahore Chief Court in the case of Daya Ram v. Sohel Singh and others (PLD 1966 SC 472where Robertson, J. (at page 410) observed:- "It has sometimes apparently been assumed that because in section 5 of the Punjab Laws Act, clause (a) which deals with custom comes first, and clause (b), which treats of personal law, comes second, that some peculiar preference for custom asopposed to personal law is indicated. This appears to me to be quite fallacious. In all cases it appears to me under this Act, it lies upon the person asserting that he is ruled in regard to a particular matter by custom, to prove that he is so governed, and not by personal law, and further to prove that the particular custom is. There is not presumption created by the clause in favour of custom; on the contrary, it is only when the custom is established that it is to be the rule of decision. The Legislature did not show itself enamoured of custom rather than law nor 'does it show any tendency to extend the `principles' of custom to any matter to which a rule of custom is not clearly , proved to apply. It is not the spirit of Customary Law, nor any theory of custom or deductions from other customs which is to be a rule of decision, but only `any custom applicable to the parties concerned which is not . . . . : and it, therefore, appears tot me clear that when either party to a suit sets up `custom' as a rule of decision, it lies upon him to prove the custom which he seeks to apply; if he fails to do so clause (b) of section 5 of the Laws Act applies, and the rule of decision must be the personal law of the parties subject to the other provisions of the clause. It is not sufficient to show that in regard to certain other matters the parties are governed-by custom". The principle propounded by Robertson, J., in the above--mentioned case was quoied with ,approval by the Judicial Committee in the case of Abdul Hussain Khan v. Mst. BIN Sona Dero and another (AIR 1917 P C 181
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This principle has not since been departed from. The High Court was, therefore, in our view clearly wrong in placing the onus on the plaintiffs, for, the plaintiffs in this case did not allege custom. Custom was alleged by the defendant, Abdul Khaliq. The onus, therefore, was on him under section 5 of the Punjab Laws Act, 1872, to prove not only that the family was governed by custom but also to prove the particular kind of custom alleged by him. That the Punjab Laws Act, 1872, applied to the State of Bahawalpur is evident from the earlier decision of the same High Court itself in this very case (vide page 164 of the paper book), where it was rightly held that according to this section if the custom alleged is not proved the personal law must be followed. In any event, [the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on the record (vide Manaka v. Madha Rao) (AIR 1950 P C 25The question of the burden of proof becomes material only where the Court finds tile evidence so evenly balanced that it can come to no definite conclusion-(Vide PLD 1948 P C 171). In such an event the rule is that the party on whom the onus lay must fail. This, however, is not the case here,. For, the evidence is, by no means, evenly balanced. This brings us to the consideration of the evidence adduced in this case, which is both oral as well as documentary. The documentary evidence consists of records of mutations from 1911 onwards. The first is Exh. D/13 which shows that on the death of one, Mazhar Amanullah, the name of his son Qamaruddin was mutated as heir on the 8th of July 1911. Zakir Muhammad (D. W. 2) stated that Amanullah died leaving one son, Qamaruddin, and two daughters, but the daughters were not given any share. This statement of the witness was not challenged in cross-examination. In the same year ten days later another mutation by inheritance was attested on the death of Abdul Majid, the father of the defendant, Abdul Khaliq. Mutation (Exh. D/16) of inheritance was attested only in the name of Abdul Khaliq. Abdul Majid, according to Shahbaz (D. W.6), also left him surviving a widow and at that time Abdul Khaliq was a minor. Again, there was no cross-examination directed to challenge the correctness of this statement. On the 21st of July 1920, another mutation (Exh. D/10) was attested on the death of one, Billah son of Muhammad Azam, in the name of his son, Nizam Din and on the 22 July 1920, on the death of Allah Bachaya mutation (Exh. D/14) was attested in the name of his son Muhammad Nawaz. According to Zakir Muhammad (D. W. 2) Allah Bachaya had also left him surviving a widow and a married daughter, but 'they were not given any share. The correctness of this statement was also not challenged in cross-examination. Muhammad Nawaz son of Allah Bachaya himself gave evidence in this case on behalf of the plaintiff as P. W. 1. He claimed that he belonged to the same family as that of the deceased Abdul Aziz and also worked as the latter's Mukhtar for 6/7 years. He denied that Abdul Aziz and Abdul Majid were joint either in estate or in family. According to him they possessed their properties separately and lived separately. The defendant Abdul Khaliq also never lived with his uncle Abdul Aziz. He, of course, maintained that the family was not governed by custom. But in cross- examination he had to admit that, when his grandfather Rahim Bakhsh died leaving one son and one daughter; the daughter was not given a share but that, he said, was because she herself did not want a share. He admitted that he had a sister but she too, he maintained, had voluntarily gifted to him her share in the inheritance. Again we find that on the 13th of January 1932, on the death of one, Balawal Din son of Muhammad Azim, the name of his only son Jan Muhammad was mutated as his heir (vide Exh. D/15). This Balawal Din, according to Allah Ditta (D. W. 9) and Nasiruddin (D. W. 13) had also left a daughter who was not given any share. The daughter, according to Nasiruddin, neither demanded any, share nor was given any share.nd
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There is, however, another mutation (Exh. D/19) which was entered on the 20th of July 1919, and this shows that on the death of one, Qadir Bakhsh, without any issue the name of his widow Mst. Aizan was recorded as his heir. All these persons belonged to the same tribe as the deceased Maulvi Abdul Aziz. The defendants had, in addition, also relied on a Shajra--e-Nasab (genealogical table) of the family (Exh. D/4) and copies of two Wajibul Arz with regard to Mauza Mianwali Qureshian, Tehsil and District Rahimyar Khan (Bahawalpur). The first (Exh. D/l7) was prepared in the year 1904. It recites as follows :- It will be noticed that- the only difference between these two is that in the Wajibul Arz for the year 1927-28 the last sentence, namely," is not to be found in the Wajibul Arz for 1904. The above evidence clearly establishes that in this Mauza "Mianwali Qureshian" the agriculturists were governed by custom of the type mentioned in the Wajibul Arz. The documentary evidence adduced by the plaintiffs to rebut this evidence consists only of one correction mutation (Exh. P/5) in respect of the inheritance of one, Qadir Bakhsh. It appears that on the death of Qadir Bakhsh originally the names only of his two sons, Nazar Muhammad and Fateh Muhammad, were recorded but in 1932 they applied to have the mutation corrected and a corrected mutation was attested on the 3rd of September 1932, on the basis of their statement that their family was governed by Shariat and, therefore, the widow also should be given a 1/8th share. . Reliance is also placed by the appellants on the reply…
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