Find a Lawyer

Second Appeal No. 318 of 1971, decided on 7th April, 1985.

(a) Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958)--

---Ss. 10 & 11--Predecessor of parties had two wives--One wife died issueless while from other wife he had daughters--Issueless wife, held, property against claim of her husband--On death of issueless were, property would revert to issues of other wife, not as heir to issueless wife, but as heir to last male holder, the predecessor of parties.- [Muhammadan Law].

---O. VIII. r. 1--Written statement--Plea of plaintiff that defendants did not plead in written statement That last male holder had two wives- Defendants had stated in written statement that last male-holder died leaving behind daughters and attached with written statement pedigree table--Such pedigree table clearly stated that deceased had two wives and daughters out of one wife--Respondents, held, clearly took plea that deceased had two wives and that defendants were heir of deceased.

---Shia Law of inheritance--Shia Law divides heirs in two groups--(i) heirs by consanguinity; (ii) heirs, by marriage--Heirs by consanguinity are divided into three classes and each class is sub-divided into two sections--Of three classes of heirs, first excludes second from inheritance arid second excludes third--Daughter's sons being heir of first class exclude nephews ;of deceased who are heir of second class.

Principles of Muhammadan Law 1961 Edition 92 ref.

(d) Civil Procedure Code (V of 1908)--

---S. 100--Second appeal--Concurrent findings of fact by Courts below--High Court, held, would not permit a party to raise any points which have been duly discussed and decided by Courts below unless they suffered from any apparent defect.

Shahenshah Hussain for Appellant.

S.A. Siddiqui and Fazle Bhoy for Respondent No. 1.

Date of hearing: 29th April, 1984.

This Second Appeal arises out of the Judgment and decree dated 28-5-1971 whereby the appeal of the appellant was dismissed and Judgment and decree dated 29-10-1970 of the trial Court Judge was confirmed.

The brief facts of the case are that one Syed Maqbool Hussain resident of Moza Khairtal, Tehsil Kishangarh, Alwar State, India owned agricultural property. The appellant filed Suit No. 1 of 1969 in the Court of Civil Judge First Class, Khairpur for declaration that the appellant is exclusive owner of the property in dispute and the respondents be permanently restrained from interfering with the rights of the appellant. It was averred in the plaint that the suit property was permanently transferred to Mst. Ahmedi Begum widow of Syed Maqbool Hussain. a claimant displaced person from Khairtal in the Alwar State. Syed Maqbool Hussain died in India before the partition and his property was mutated in the name of his wife Mat. Ahmedi Begum and in lieu of that property, she was transferred the suit property in Pakistan. Syed Maqbool Hussain and Mst. Ahmedi Begum died childless. On the death of Mst. Ahmedi Begum property reverted back to the heirs of Maqbool Hussain. Appellant and respondent No. 1 are grandsons of Murad Ali who was the real brother of Maqbool Hussain. They are the only surviving male heirs of Maqbool Hussain and, therefore, the property of Mst. Ahmedi Begum was inherited by them after her death. Mst. Ahmedi Begum had adopted the appellant as her son and gifted away the suit property to him during her life time. Mst. Ahmedi Begum was allotted 31-3 Acres but found out that 10-2 Acres was allotted to her in excess of entitlement and, therefore, claims the property in suit as adopted son of Mst. Ahmedi Begum and as donee by gift from her. One Mustafa Hussain who acted as special attorney for said Ahmedi Begum before the Settlement authorities has set up respondents Nos. 2 to 10 as heirs of Maqbool Hussain deceased. Respondents Nos. 2 to 10 had moved respondent No. 11 to effect mutation in their names. The respondent No. 1, in his written statement has admitted the claim of the appellant. The respondent No. 11 has not filed any written statement and the suit was, therefore, ordered to proceed ex parte. The respondents Nos. 2 to 10 contested the suit. It was averred that respondents Nos. 2 to 10 are the heirs of deceased Maqbool Hussain. It was also averred that Syed Maqbool Hussain had two wives Mat. Hakimun Nisa and Mst. Ahmed Begum. Mst. Hakimun Nisa had three daughters namely Mst. Saghirun-Nisa, Mst. Hamida Begum and Mst. Ummul Banu Begum. All three daughters are dead. Mst. Saghirun-Nisa and Mst. Hamida Begum died issueless, whereas Mst. Ummul Banu Begum left behind one son namely Syed Tahir Hussain who is respondent No. 2 and three daughters namely Mst. Kazmi Begum, respondent No. 3, Mst. Tayyub Begum respondent No. 4 and Mst. Saceda Begum who is dead. Mst. Saeeda Begum was married to respondent No. 10 and has left behind three sons, who are respondents 5 to 7 and two daughters who are respondents 8 and 9. The respondents 2 to 9 claim that they are the direct descendants of Syed Maqbool Hussain and, therefore, thu.y

On the pleadings of the parties, the trial Court framed the following issue: -

(1) Whether the suit is and under valued and no proper court-fee has been paid

(2) Whether the suit is not maintainable as framed

(3) Whether the suit is not maintainable for misjoinder of parties

(4) Did Mst. Ahmedi Begum adopt the plaintiff as son If so, with what effect

(5) How much land was finally allotted to Mat. Ahmedi Begum

(6) Did Mat. Ahmedi Begum make a valid gift of the property in suit in favour of the plaintiff

(7) Whether the defendants Nos. 2 to 10- are the heirs of & Mst. Ahmedi Begum to inherit her properties, if not, who are the heirs of Mst. Ahmedi Begum

(8) Was Mst. Ahmedi Begum full and absolute owner of the land transferred to her in lieu of her claim

(9) What should the decree be

The learned trial Court on the basis of the evidence produced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties, decided issues 7 and 8 in the affirmative, and issues Nos. 4 and 6 in the negative and issues 1, 2 and 3 as not proved and dismissed the suit vide his judgment and decree, dated 29th October, 1970.

The appellant being aggrieved by Judgment and decree, dated 29th October, 1970 of the learned Civil Judge First Class, Khairpur filed Civil Appeal No. 75 of 1970 in the Court of District Court Khairpur Mira. The District Judge reframed the following issues for determination:-

(1) Whether the appellant had been adopted as son by Mat. Ahmedi Begum

(2) Whether Mat. Ahmedi Begum made a valid gift as alleged in the plaint

(3) Whether the respondents Nos. 2 to 10 are the heirs of Maqbool Hussain

(4) What should the decree be

The learned District Judge, Khairpur Mir's by his judgment and decree, dated 22nd May, 1971 dismissed the said appeal and upheld the judgment and decree dated 29th October, 1970 of the learned Civil Judge First Class for the reasons given in the said judgment and decree.

The appellant above-named, being aggrieved by the Judgment and decree dated 22nd May, 1971 of the District Judge, Khairpur Mir's has preferred this second appeal, on the grounds mentioned in the memo. of appeal.

Mr. Shahanshah Hussain, the learned counsel for the appellant, has contended that both the Courts below held that respondents 2 to 10 are legal heirs of Ahmedi Begum. This finding is inconsistent. Plea of second wife Mst. Hakimun Nisa was not taken in the pieadings. No issue was framed as to whether late Syed Maqbool Hussain had one wife or two wives. The disputed property was held as life estate of Mat. Ahmedi Begum and after her death reverted to the last male member.

With regard to the first contention of the learned counsel for the appellant that the Courts below held that respondents Nos. 2 to 10 are legal heirs of Mst. Ahmedi Begum. The respondents Nos. 5, 6, 7 and 10 jointly filed written statement on 23-4-1969. The contents of para. 10 of the plaint were denied in the written statement. The pedigree was annexed, to the written statement which is as follows:-

PEDIGREE

Imadad Ali

Murad Ali Maqbool Hussain

(He had two wives)

Mst. Ahmedi Begum (died

Ali Hussain.

' " - issueless)

2. Mst. Hakimun Nisa, from

second wife he had

Ansar Hussain Risalat Hussain.

Saghirun Nisa Hamida Begum Ummul Banu

wife of wife of Momin Begum wife of

Tassaduque Ali Mustafa Hussain

Hussain

Tahir Hussain Kazmi Begum Tayyab Begum Saeeda Begum.

Sd/ Sd/

Ali Aslam Jaffri Shahid Hussain.

Advocate. Defendant No. 5.

It was averred in para.11 of the written statement that after death of Mst. Ahmedi Begum the property will revert to the heirs of last male owner. It was further averred that respondents 2 to 10 being the legal heirs of Syed Maqbool Hussain have inherited the property. The appellant and respondent No. 1 deposed that Syed Maqbool Hussain had only one wife viz Mst. Ahmedi Begum. The appellant admitted that Maqbool Hussain had died before he attained the age of discretion. The respondent No.l did not remember the marriage of Maqbool Hussain with Mst. Ahmedi Begum. He did not even know if he was born at the time of marriage of Maqbool Hussain with Mst. Ahmedi Begum. The appellant and the respondent No. 1 did not examine any other witness from the family in support of their claim that Maqbool Hussain had not married Mst. Hakimun Nisa. The respondents 2 to 10 examined Tahir Hussain as Exh. 44 who deposed that Maqbool Hussain first married Mst. Hakimun Nisa and then Mst. Ahmedi Begum. From Hakimun Nisa he had three daughters namely Mst. Ummul Banu, Mst. Hamida Begum and Mst. Saghirun Nisa. Mst. Ummul Banu had four daughters namely Mst. Fatima Begum, Mat. Kazmi Begum, Mst. Saeeda Begum and Mst. Tayyab Begum and one son himself (Tahir Hussain). Mst. Saeeda Begum died leaving behind respondents 5 to 9. Mat. Ahmedi Begum had no issue. Ibne Ali Exh. 45 supported Tahir Hussain. Murtaza Hussain and Mustafa Hussain also supported him and deposed that Maqbool Hussain married first Mst. Hakimun Nisa and then Mst. Ahmedi Begum.

The learned trial Court on the basis of evidence held that respondents 2 to 10 have been able to prove that they are the heirs of Maqbool Hussain and are entitled to inherit the property in suit.

The learned District Judge held that Tahir Hussain stated that Maqbool Hussain had died 70 years back. Tahir Hussain is supported by three elderly men viz. Ibne Ali who is 88 years old, Murtaza Hussain 70 years and Mustafa Hussain 77 years old. They are definitely related to Maqbool Hussain and they denied the fact of adoption and gift as stated in the plaint. The learned District Judge further held that the burden no doubt lay upon the respondents 2 to 10 and they have properly discharged the same by producing witnesses who are related to the parties and of good ages I agree with the learned counsel for' the appellant that the finding of the Courts below that the respondents 2 to 10 are heirs of Mst. Ahmedi Begum is inconsistent. It seems that the correct position is that the respondents 2 to 10 are heirs of Maqbool Hussain from Mst. Hakimun Nisa as Mst. Ahmedi Begum died issueless. As regards the second contention of the learned counsel for the appellant that the respondents 2 to 10 did not plead that Mst. Hakimun Nisa was wife of Maqbool Hussain. The respondents 5, 6, 7 and 10 filed written statement and pedigree. In the pedigree, it was clearly mentioned that Maqbool Hussain had two wives namely Mst. Ahmedi Begum and Mst. Hakimun Nisa. The respondents 2, 3, 4, 8 and 9 also filed joint written statement and it was averred therein that Maqbool B Hussain died leaving three daughters behind him namely, Saghirun Nisa and Mst. Hamida Begum and Ummul Banu. Mst. Saghirun Nisa and Mst. Hamida died issueless while Mst. Ummul Banu died leaving behind her heirs respondents 2 to 10. The appellant did not challenge the pedigree attached to the written statement. I am of the view that the respondents clearly took the plea in their written s'tateme'nt that respondents 2 to 10 are heirs of Syed Maqbool Hussain and Syed M8qb00 Hussain had two wives namely Mst. Hakimun Nisa and Mst. AhmediI Begum. The contention is devoid of force.

In the instant case it is admitted position that the parties are governed by Shia Law of inheritance. The Shia Law divide heirs into t#o groups, namely, (1) heirs by consanguinity, that is, blood relations, and (2) heirs by marriage, that is, husband and wife. Heirs by consanguinity are divided into three classes and each class is sub-divided into two sections. D.F Mulla on the Principles of Muhammadan Law (1961 Edition) at page 92 composed as follows:-

I (i) Parents;

(ii) Children and other lineal descendants h.l.s.

II (i) Grandparents h.h.s. (true as well as false);

(ii) Brothers. and sisters and their descendants h.l.s.

III (i) Paternal, and (ii) maternal, uncles and aunts, of the deceased, and of his parents and grandparents h.h.s. and their descendants h.l.s.

of these three classes of heirs, the first excludes the second from inheritance and the second excludes the third. The appellant and respondent No. 1 are grandsons of Murad Ali. Murad All and Maqbool Hussain are sons of lmdad Ali. The appellant and respondent No. 1 the nephews of Maqbool Hussain. They are excluded by heirs of the first class namely respondents 2 to 10 who are heirs of Maqbool Hussain.

The learned Senior Civil Judge as well as the learned District Judge have recorded well-reasoned out judgments and I do not find) any reason to disturb the finding on the points which have been raised before me and had been taken and debated in the Courts below. It had repeatedly been emphasised that this Court would not permit a party to raise these very points which have been duly discussed and decided by the courts below unless such finding suffers from any apparent defect.

The learned District Judge held as follows:-

"It is nobody's case that Mst. Ahmedi Begum owned the property by himself but that she inherited the same from her husband and then came over to Pakistan and in lieu of that property she obtained the present property in Suit from the Settlement authorities. Therefore, the property held by Mst. Ahmedi Begum will revert to the heirs of Maqbool Hussain on her death. The appellant and respondent No. 1 cannot come into the picture on this wise.

The evidence produced on behalf of the respondents is very natural. There are three old men who have given the facts and as it is now 70 years that Maqbool Hussain died naturally, therefore, only such witnesses can be available who might have seen his days in the childhood. The evidence of these witnesses at least is to be believed. There is no reason for them to speak is lie.

Admittedly the appellant and respondent No. 1 are grandsons of Murad Ali, brother of Maqbool Hussain. Had Maqbool Hussain left no heirs of his own these two persons would have succeeded to his estate. But the evidence discussed above shows that Maqbool Hussain left heirs. The marriage of Hakimun Nisa with Maqbool Hussain has been proved; rather on the other hand the appellant and respondent No. 1 have failed to demolish this contention of the respondents. They have not examined any disinterested person. The burden no doubt lay upon the respondents and they. have properly discharged the same by producing witnesses we are related to the parties and of good ages. There is no reason not to believe them. The statement of D.W. Mustafa Hussain in the mutation proceedings was based upon the notion of Hindu law that woman do not succeed to the estate and are not heirs. It was for this reason that he had stated that Maqbool Hussain had no heirs."

The finding of the Courts below that Syed Maqbool Hussain had two wives namely Mst. Hakimun Nisa and Mst. Ahmedi Begum and respondents 2 to 10 are heirs of Syed Maqbool Hussain is in consonance with evidence on record and is a pure question of fact. It has been laid down by superior Courts that this Court has no jurisdiction t reverse by going into the question of weight to be attached to a particular item of evidence and this Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross and unexcusable error may seem to be, unless there is an error in the procedure and that pure questions of facts are not open t determination in the second appeal. Both the Courts below have concurrently held that respondents 2 to 10 are legal heirs of Syed Maqbool Hussain. It appears that the learned Courts below have given reasons in support of their conclusions.

In this case the learned District Judge has applied his mind t the facts of the case and has come to the conclusion, an,' in my view very rightly, that the learned Senior Civil Judge has correctly recorded a finding that respondents Nos. 2 to 10 are legal heirs of Syed Maqbool Hussain.

The net result of the above discussion is that the second appeal has no merit and is, therefore, dismissed with no order as to costs.

A. A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.