SAYAD MUHAMMAD Vs. FATTEH MUHAMMAD

JUDGEMENT

(1.) THIS is an appeal against a judgment of the Chief Court of the Punjaub, reversing a judgment of the District Judge of Montgomery by which it had been ordered that the Appellant, who was the Plaintiff in the suit, should be appointed gaddi-nashin of the shrine of Baba Farid Shakarganj, and should get possession of certain property attached thereto.

(2.) THE forms of procedure in the suit are not very clearly stated; but their Lordships think it must be assumed that the questions which have been in debate before them were in debate before both the Courts below. It does not quite appear at what period of the suit the question of the sound disposing mind of the Diwan, Pir Allah Jowaya, was raised, nor is it very material, excepting in one aspect. Whatever system of pleading may exist, the sole object of it is that each side may be fully alive to the questions that are about to be argued, in order that they may have an opportunity of bringing forward such evidence as may be appropriate to the issues; and it may perhaps not be altogether immaterial to observe that the question of the capacity of the Diwan does not appear to have been prominently raised, at all events in the first instance. Their Lordships are, however, of opinion that they must assume that the question of his capacity was open upon the proceedings sufficiently to give each Court below the right to form a judgment upon the matter. The question is, which of those judgments is right ?

(3.) ASSUMING , therefore, that it was within the power of the Diwan to exercise the power of appointing a successor within certain limits, and that the Plaintiff was within those limits, the next question is, whether he in fact appointed the Plaintiff. The first event in order of date was an expression made by the Diwan, about the year 1882, that he intended to appoint the Plaintiff as his successor. He so expressed himself two years before he actually made the appointment. The evidence on this point was not credited by the Judges of the Chief Court; but their Lordships are wholly unable to understand upon what ground they rejected it. The evidence that the Diwan did so express himself was given by persons against whom no imputation was made, and the sole ground, so far as their Lordships can see, for the rejection of the evidence was because in his will, made in 1884, he expressed a hope that he might yet be granted a son of his own. That would seem to be a wholly inadequate reason for disbelieving the evidence of persons who stated in the plainest possible terms that the Diwan had expressed his intention to appoint his daughter's son as his successor, if he had a revelation.