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Civil Petitions Nos. 641 and 675 of 1980, decided on 17th March.1982.

(On appeal from the judgment. dated I 1‑2‑1981 of the Lahore High Court passed in Regular Second Appeal No. 477 of 1961).

Constitution of Pakistan (1973)

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Art. 185(3)‑Leave to appeal to Supreme Court‑Question of fact Contentions raised already attended to in fair detail by High Court View taken by Courts below found to be based on material before them‑Held, does not call for interference.‑[Question of fact].

Malik Muhammad Akbar, Advocate Supreme Court instructed by Ch. Ghulam Mujtaba, Advocate‑on‑Record for Petitioners.

M. Z. Khalil (in C. P. No. 675) and Ch. Ghulam Muhammad Bhatta, Advocate Supreme Court instructed by M. Aslam Chaudhary, Advocate‑on -Record for Respondents.

Date of hearing : 17th March, 1982.

.‑These Civil Petitions are directed against the finding of the Courts below in the affirmative in regard to the legitimacy of respondent Mst. Sardar Begum as daughter of Jai Gopal alias Budhan Sain. The question arose when she, claiming to be his daughter, applied to the District Judge, Lahore, on 18‑10‑1953 for her appointment as guardian and manager of his person and property on the ground of his lunacy. As her status was denied by Mst. Hafeezan and Ahmad Shuja, who claimed to be the lunatic's wife and son respectively the District Judge rejected the application on 7‑i 2‑1954. Mst. Sardar Begum then instituted a suit for a declaration that she was the only legitimate daughter of Jai Gopal after his conversion to Islam and for the consequential relief by way of grant of an injunction restraining Mst. Hafeezan and Ahmad Shuja from calling themselves as

his wife and son. Her case was that Jai Gopal had been admitted in the Mental Hospital on 8‑11‑1923 but had been released from there on 10‑1‑192T and the same year he had embraced Islam and in 1925 married her mother Mst. Iqbal Begum, from which wedlock she was born on 23‑10‑1927. According to her, Jai Gopal had again reverted to insanity in 1932 and had continued to be so till the institution of the suit.In the suit she had impleaded Mst. Hafeezan and her son Ahmad Shuja as well as Hari Kishan and Jai Kishan the two sons of Jai Gopal from a Hindu wife. Mst. Hafeezan and Ahmad Shuja submitted a written state ment but thereafter took no further step to defend the suit and were proceeded against ex parte, while Hari Kishan and Jai Kishan having migrated to India at the time of Independence had become evacuees. The suit was thus defended only by the Manager of the estate of the lunatic already appointed by the District Judge. The only relevant issue, i.e. whether Mst. Sardar Begum was the only child (legitimate daughter) of Jai Gopal born after his conversion to Islam, was found in her favour and the suit was accordingly decreed on 13‑12‑1960. The decree was affirmed in the first appeal on 21‑7‑1961, whereafter the Manager filed R. S. A.No. 477 of 1961.

2. During the hearing of the Regular Second Appeal, the High Court, on 28‑5‑1963, referred the following points to the Custodian of Evacuee Property, Punjab

"(1) Whether Jai Gopal alias Budhan Sain did not form a joint Hindu family alongwith his two sons Hari Kishan and Jai Kishan and grandsons if any

(2) Whether Jai Gopal alias Budhan Sain deceased became Muslim If so, on which date

(3) If issue No. 2 is found in the affirmative, to how much share was Jai Gopal entitled in the property standing in his name and how much of it became the property of his son Hari Kishan and Jai Kishan and the grandsons, if any

(4) If issue No. 2 is not proved, how much share, in the property in dispute, if any, became evacuee property w.e.f. 1‑3‑1947 in accordance with the provisions of section 13 of the Pakistan (Administration of Evacuee Property) Act, 1957

(5) In case it is found that Mst. Sardar Begum is the legitimate daughter of Jai Gopal alias Budhan Sain to how much share, if any, in the property in dispute is she entitled "

The answer received was that Jai Gopal formed a joint Hindu family along with his two sons, that he was a Muslim in 1927 that he was entitled to 1/3rd share in the property and the remaining 2/3rd was owned by his Hindu sons and that the 2/3rd share of the sons was evacuee property while the 1/3rd share of Jai Gopal was non‑evacuee which Mst. Sardar Begum could inherit if she was found to be his legitimate daughter. The Regular Second Appeal was ultimately dismissed on 11‑2‑1980.

3. It may be noted that during the pendency of the Regular Second Appeal, Jai Gopal died on 31‑3‑1962, whereafter Mst. Sardar Begum again applied to the District Judge for placing the estate of the deceased under her in substitution of the Manager appointed by the Court, but her applica tion was dismissed on 14‑4‑1962, which led to her filing F. A. O. No. 35 of 1962, but she later withdrew the same in view of the decision in R. S. A. No. 477 of 1961.

4. Two petitions have been filed against the order of the High Court one by the Manager of the estate of Jai Gopal, which is C. P. S. L. A. No. 641 of 1980, and the other by the person to whom ownership rights have been given under Martial Law Regulation No. 64 of 1959, on the excess land taken from the estate of the deceased. The case of the petitioners in Civil Petition No. 641 of 1980 is that no legal evidence to support Mst. Sardar Begum's legitimacy was available, that section 32 (5) of the Evidence Act had not been correctly applied inasmuch as the statement of the witnesses relating to the existence of the relationship had been made after the question in dispute had arisen, that the witnesses had no special means of knowledge as to the factum of the relationship and that Jai Gopal had never recovered his sanity after 1920 and as such could not contract the marriage with lust. Iqbal Begum.

5: We have heard the matter at some length with the help of Mr Muhammad Akbar Malik, one of the Managers, who also read to us to relevant evidence in the case but we are not satisfied that this is a case calling for an interference. All the contentions raised had already been duly attended to in fair detail by the learned Judge of the High Court who has taken into consideration even points which the petitioners could not legally raise or had not actually raised. There is evidence on the record to support Mst. Sardar Begum's case. The witnesses in this regard included respectable persons like the late Mr. Muhammad Amin Andrabi, an Advocate of Lahore. Even otherwise, the question involved is one of fact and the Courts below were, on the basis of the material before them entitled to the view they have: taken. Both the petitions are, therefore, dismissed and leave to appeal is refused.

Leave refused.

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