Before Abdul Aziz, C. J. and Mahmud Khan, J.
GHULAM MUHAMMAD SHAH-Plaintiff-Appellant
FATEH MUHAMMAD SHAH-Defendant-Respondent
Civil Constitutional Appeal No. 11 of 1949, decided on 7th April 1949, against the order of Ghulam Murtaza Shah, J.
(a) Custom-Will by widow-Not void, but voidable at instance of reversioner- Will relating to self -acquired property becomes operative-Next reversioner who assents to will cannot challenge it-Remoter reversioner, who denies title Through such next reversioner, is debarred from challenging validity of aliena¬tion.
A will by a widow governed by the Customary Law is voidable at the instance of her reversioner and relating to self¬acquired property it becomes operative. The next reversioner who assents to such a will is, therefore, incompetent to challenge it by his own conduct when he survives the widow. After the death of the widow the remoter reversioner who derives his title through the next reversioner stands debarred from challeng¬ing the validity of the alienation. [p. 17.]
A. I. R. 1946 Lah. 180 ; A. I. R. 1934 Cal. 329 relied on.
A. I. R. 1940 Lah. 416; A. I R. 1928 Cal. 794; A. I. R. 1931 Nag. 194; A. I. R. 1922 P. C. 403; A. I. R. 1932 Sind 67 and 2 1. C. 865 distinguished.
A. I. R. 1931 Lah. 495; A. I. R. 1923 All. 387; A. I. R. 1926 All. 684; A. I. R. 1923 All. 387; A. 1. R’ 1931 Born. 208; A. I. R. 1928 Lah. 967, referred to.
(b) Constitutional Appeal-Analogous to Letters Patent Appeal-Finding of fact cannot be disturbed, unless Judge failed to consider evidence or admitted evidence which should not have been admitted.
A. I. R. 1936 Lah. 864 referred to.
(c) Constitutional Appeal-Points not raised before judge -Cannot be agitated in Constitutional Appeal.
A. I. R. 1940 Bom. 49; A. 1. R. 1930 Lah. 632; A. I. R. 1932 Lah. 161 and A. I. R. 1935 Lah. 590 relied on.
(d) Evidence Act (I of 1872), S. 32 (3)-Statement of dead person when admissible.
Under section 32 of the Evidence Act the test of admissi¬bility of the statements against interest made by the deceased person are that (1) the deceased must have had personal knowledge of the fact he was stating, (2) the facts stated should have been to the immediate prejudice of the deceased, (3) the state¬ment must have been to the knowledge of the deceased contrary to his interest and (4) the interest must be Either pecuniary or proprietary. [p. 12.1
33 1 C. 969 relied on.
(e) Evidence Act (I of 1872), S. 44- There is presumption of correctness of entries in record of rights.
Under section 44 there is a statutory presumption that the entries in the record of rights are correct, and that the plaintiff in order to succeed must establish that the mutation order is a false document. [p. 12.]
A. I. R. 1934 P. C. 40; A. I. it. 1929 Lah. 93: A. I. R. 1934 Lah. 472; A. I. R. 1940 Lah. 118 retied on.
Muhammad Amin Khan and Muhammad Mustafa Khan, for Appellant.
B. Z. Kaikaus and Nazir Ahmed, for Respondent.