Judgement

Appeal (No. 9 of 1929) from a decree of the High Court (April 27, 1925) reversing a decree of the Senior Subordinate Judge of Gujranwala (May 21, 1921).

The appellants instituted the suit in 1918, alleging by their plaint that they were collateral heirs to one Saleh-ud-Din deceased, and entitled to succeed to his properties by the customary law of their tribe in preference to the defendant-respondents. They prayed for possession of the properties or, in the alternative, for such shares as might be found on inquiry to be according to Mahomedan law.

The trial judge made a decree as prayed, but an appeal to the High Court was allowed and the suit dismissed by Martineau and Zafar Ali JJ. upon grounds which appear from the present judgment.

1930. Nov. 20, 21. Narasimham and Zafar Ullah Khan for the appellants.

The respondents did not appear.

Dec. 16. The judgment of their Lordships was delivered by

LORD MACMILLAN. The plaintiffs in this suit, now the appellants, sue for possession of certain properties described in their plaint, which formerly belonged to the deceased Saleh-ud-Din, and which they claim by right of succession. In order that their claim may succeed they have to establish two things (1.) that they are collaterals of the deceased, and (2.) that the deceaseds succession was governed by customary law. The present respondents are two sisters and the children of a deceased sister of the late Saleh-ud-Din, They deny that the appellants were in any way related to the deceased, and maintain that Mahomedan law alone governs the succession to the properties in question.

The Subordinate Judge at Gujranwala, before whom the matter came in the first instance, decided both of the two issues above mentioned in favour of the appellants, for whom he accordingly gave judgment. On appeal, the High Court of Judicature at Lahore (Martineau and Zafar Ali JJ.) reversed this decision, holding that the appellants had failed to prove that they were collaterals of the deceased, and finding it unnecessary to proceed to the consideration of the second topic. Hence the present appeal.

The respondents lodged a case which was before their Lordships, but did not appear in support of it. The appeal was accordingly heard ex parte, but counsel for the appellants very properly brought to their Lordships notice the whole material evidence in the case.

The main question and the one on which the Subordinate Judge and the High Court are at variance relates to the pedigree of the parties. The ancestor, whom the appellants assert to be common to them and to the deceased Saleh-ud-Din, is one Mohammad Muslim, grandson of Qazi Rahim-ud-Din. They claim that they are descended from one of the sons of Mohammad Muslim and that the deceased was a descendant of his other son. As the descents are traced through several generations in each branch, it is manifest that matters of family history not susceptible of direct proof are involved.

In approaching a pedigree problem of this nature their Lordships think it well to recall the words of Lord Blackburn in Sturla v. Freccia (( 1880) 5 App. Cas. 623, 641.) "It has been established for a long while that in questions of pedigree, I suppose upon the ground that they were matters relating to a time long past, and that it was really necessary to relax the strict rules of evidence there for the purpose of doing justice—but for whatever reason, the statements of deceased members of the family made ante litem motam, before there was anything to throw doubt upon them, are evidence to prove pedigree. And such statements by deceased members of the family may be proved not only by showing that they actually made the statements, but by showing that they acted upon them, or assented to them, or did anything that amounted to showing that they recognised them. If any member of the family, as a person who presumably would know all about the family, had stated such and such a pedigree, that evidence would be receivable, its weig