Mst. KALSOOMUN NISA vs ABDUL SHAKOOR AND Other

ORDER

1. SHAFIUR RAHMAN, J.-The petitioner, an unsuccessful plaintiff, seeks leave to appeal against the judgment of the Lahore High Court dated 20-2-1982 whereby the second appeal filed by her challenging the reversal of the judgment and decree in favour by the first appellate Court of the District Judge, was dismissed.

2. Abdul Karim, the deceased husband of the petitioner, was transferred property bearing No. F/148 in Landa Bazar, Rawalpindi. On his death the petitioner instituted a suit against Muhammad Ismail, the predecessor-- in-interest of the respondent No. 2, claiming that she was the owner of the house in lieu of her dower and that Muhammad Ismail was not related to the deceased and had no interest in the house. In the alternative see claimed that as a widow she was entitled to inherit 1/4th and to keep her possession of the whole of it till her dower of Rs. 5,000 was paid. Muhammad Ismail contested the suit. The trial Court held on 13-1-68 that Muhammad Ismail was not an heir, that the petitioner was the sole heir and that Rs. 5,000 was the dower fixed which was payable to her. Muhammad Ismail appealed against this judgment and decree on 6th March, 1968. He is said to have died on 27th October, 1968. One Abdul Shakoor, respondent No. 1, on 11-11-68 by an application moved before the District Judge sought to be impleaded in the appeal on the ground that he had been given by means of a will the house by the deceased. Muhammad Ismail before his death. He also sought that Taj Muhammad the son of the deceased Muhammad Ismail be impleaded in the proceedings, as a respondent. Both the requests were allowed by the District Judge on 10-10-70. The appeal was heard by him and decided on 12th April 1971 holding that Muhammad Ismail was a collateral of Abdul Karim and entitled to 3/4th share and the interest devolved on Taj Muhammad, respon--dent No. 2, his son that the dower for the petitioner was fixed for Rs. 500 and not Rs. 5,000 and further that Abdul Shakoor was not entitled for any relief in the proceedings and he could seek the same by a separate proceedings.

3. As regards the relationship of Muhammad Ismail with the deceased Abdul Karim the learned counsel for the petitioner has not much to say because it is a finding of fact concluded by concurrent finding of fact of the two Courts of appeal. As regards the dower amount, it is not denied that the dower deed showed signs of interpolation but it is contended thatattesting witnesses who were produced should have been relied upon if document was suspected. As the primary evidence in the case was the cement itself and the attesting witnesses were with regard to the execution the document and not with regard to its contents, the document must necessarily displace the oral testimony about its contents. The .Two courts have found that not only there was interpolation but it was of a kind by which Rs. 500 was made into Rs. 5,000. They were, therefore, justified in recording a positive finding on the basis of the contents of that document that the dower deed was only for Rs. 500 and that it remained unpaid. We find that the most serious objection of the petitioner is to the bringing on record of respondent No. 2 as a legal representative or heir of the deceased Muhammad Ismail. This question was it appears, contested before the District Judge also who held as follows: "Now the term. "legal representative" is defined in section 2 of the Civil Procedure Code to mean a person who in law represents the estate of a deceased person anti includes any persons who intermeddles with the estate of the deceased. 'Intermeddle' means to meddle or interfere improperly. Here, the applicant has set up a will-deed in his favour. If the will-deed is a valid document, there can be no question about his legal character; and if the deed is a forged document, then he is one who is interfering improperly with the deceased's estate. It is admitted that he is in possession of a part of the house in question. The capacity in which he occupies the house is not relevant so far as the present order is concerned, for "his mere claim to be in possession of the house on the basis of the will-deed should be sufficient to 'qualify him to be called an inter- meddler."

4. The High Court dealing with the same objection held as follows "This point was not pressed by the appellant before the learned first appellate Court and, therefore, cannot be permitted to be raised for the first time here in second appeal. Even otherwise the contention of the learned counsel is without any substance because the legal representative of Muhammad Ismail could have been. Brought on the record by the application of Abdul Shakoor, who claimed himself to be the owner of the house by virtue of will said to have been made by Abdul Karim in his favour. The fact remains that the iegal representatives were brought on the record within time."

5. We have been read out paras. 4 and 5 of the petition made by Abdul Shakoor which show for definite that he not only pointed out the heir or legal representative of Muhammad Ismail but also requested for his being impleaded in the appeal. The application of Abdul Shakoor was within tine.

6. In the circumstances there was no legal defect in the appeal when it proceeded to a decision which was maintained in the High Court.

7. We find no merit in the petition and leave to appeal is refused.