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Civil appeal No. 13 of 1951, decided on 14th July 1951, against the order of District Judge, Mirpur.

Civil Procedure Code (V of 1908), S. 100‑Finding of fact based on evidence on record‑Cannot be disturbed by High Court.

The finding of the 1st Appellate Court upon a question of fact is, final if that Court had before it evidence proper for its considera tion in support of the finding.

Muhammad Sharif, for Appellants.

Muhammad Yusaf Saraf, for Respondent.

.‑The land in suit originally belonged to one Jamat resident of Pind Khurd in Mirpur District. He made a gift of his property to his daughters Rajji, Labb Bibi and Pannah Bibi. Khasra No. 1108 situate in village Pind Khurd was part of this property and was in possession of Rajji as owner and her son Budduh plaintiff was cultivating the same on her behalf when she died. Budduh claiming to be the sole‑heir of Rajji brought a suit for possession of the property against the defendant appellants who he alleged had taken possession of the same without any right. The defendants pleaded that, Rajji had made a will in their favour leaving all the land gifted to her by her fat‑her Jamat to his collaterals‑. The defendants claimed to be some of the collaterals of Jamat. The Sub‑Judge held that the will, dated 2nd Basakh 2003, relied upon by the defendant was not executed by the plaintiff's mother, but by some other woman of‑the same name who was in fact the wife of Satara Jat. He accordingly decreed the plaintiff's suit. On appeal the learned District judge came to the conclusion that the will was executed by the plaintiff's' mother. Rajji. He, however, held ‑that the testator was not possessed of a sound disposing mind at the time when the will was alleged to have been executed by her. He, therefore, dismissed the appeal and affirmed the judgment of the trial Court. The defendants have now come up in second appeal to this Court and as they challenged a finding of fact, it has been contended on their behalf that this finding is vitiated by reason of the fact that it is not based on any evidence. It is urged that there is sufficient evidence on the record to hold that the will was duly executed and the testator had a sound disposing mind at the time the will was executed.

I have gone through the record and I find that the finding of the District Judge is based upon a consideration of all the circumstances of the case. The scribe and one of the attesting witness Badar Din state that the will vas not executed by the mother of the plaintiff but by some other woman. Of the remain ing two witnesses, Noor Din is a near relative of the appellant arid it is extremely unsafe to rely on his testimony. The only other witness Kifait Ali admits in cross‑examination that when he reached Rajji's house, the will had been completed by the scribe and he signed the document as he was requested to do so. He admits that the testator was very old and weak on account of illness. He offers no explanation as to why the testator deprived her only son of such valuable property. Taking the various circumstances in which the will was executed into con sideration, the District judge was justified in coming to the con clusion that the testator was not in a disposing mind at the time of the execution of the document. Rajji was living happily with her son Budduh, the plaintiff and the document was exe cuted during his temporary absence. Moreover the will is not rational on the face of it. It is mentioned in the document that the property was being left to the collaterals of the testator's father with a view to her spiritual welfare in the next life. The testator was an illiterate Muhammadan lady and if she had not attempted to alter succession to her property, she would have done a nobler, deed. It was far nobler to leave adequate provision for her son than to deprive him all‑together of her property and leave the same to distant relatives. Rajji was a very old lady and was suffering from Typhoid for a pretty long time and was extremely weak when the will was executed. The docu ment was not written by a professional petition write: The scribe chosen for the job was a Mullah living in a distant village who had the hardihood and the audacity to say that the executant was not Rajji the mother of the plaintiff but the wife of one Sattara Jat. The will was not produced for registration during the life‑time of the testator although the office of the Sub -Registrar was situated at a distance of few miles from her house. The testator died soon after the execution of the document. The legatees, collaterals of Jamat had no claim whatsoever upon the property. If any person had any claim upon this property, they were the children of her sisters and her son the plaintiff. If the testator had been conscious of the various claims of these persons she would not have made the will depriving her son, nephews and nieces of her property. In view of the weak con dition of the testator strong proof was required that the contents of the will were fully understood by her and that the execution of the document was her spontaneous act. No such proof has been produced. The District judge has drawn the inference from the evidence produced in the case that the testator had not a disposing mind at the time of the execution of the will. This inference, he was certainly entitled to draw from the evidence considered as a whole and I do not think he has committed any error of law which vitiated his judgment. There was no error or defect in the procedure and there is abundant authority for holding that the finding of the 1st Appellate Court upon a question of fact is final if that Court had before it evidence proper for its consideration in support of the finding In my opinion there was sufficient evidence before the learned District judge, in support of his finding and I do not see any reason to differ from the conclusion arrived at by him. The result is that the appeal fails and is dismissed with costs.

It is clear from the finding of the learned District judge that the scribe Muhammad Hussain and one of the attesting witness Badar Din have perjured themselves. I hold the same view and I am of opinion that they should be prosecuted for perjury. Separate notices should be issued to them directing them to show cause on 16th October 1951 at Mirpur why they should not be prosecuted for an offence under section 193, A. P. C.'

The learned District judge took more than 2 years to decide this appeal. There were as many as 32 hearings of the case and the reasons for such adjournments are classified as below:‑

(1) adjournments on .account of the judge being on leave-----------------5

(2) adjournments on account of the indisposition of the judge--------------2

(3) adjournments on account of pressure of work ... ---------------------10

(4) adjournments for which no reason is given ----------------------------5

(5) adjournments on account of judge being on tour ----------------------2

(6) adjournments granted at the request of Lawyers ----------------------5

This does not reveal a happy state of affair and it is expected that the learned District Judge would show greater promptness in the disposal of civil appeals also.

K. M A. Appeal dismissed.

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