PLJ 1996 Peshawar 168
Present: qazi muhammad farooq, J.
BAKHT
ZAMIN-Petitioner
versus
SAID MAJID-Respondent
Civil Revision
Petition No. 259 of 1996, accepted on 28-3-1996.
Civil Procedure Code, 1908 (V of 1908)--
—-S. 115-Transfer of landed property
through gift-Striking of, on ground that gift deed was executed by donor during
'Marzul Mauf'-Challenge to-Respondent had only alleged that gift deed was forged
and fictitious--' He had neither alleged that it was obtained through fraud, undue influence or coercion
nor any issue was framed in respect thereof— Petitioner had given shelter to donor
when it was badly needed by him-Respondent has failed to prove that gift was
made by donor during 'Marzul-Maut'-lhere
is no medical evidence on
record from which it could be gathered that donor was suffering from a
particular disease which had caused a sense
of imminent death-Oral evidence also does not point to any such disease-Held : Mere fact that he had died 20 days
after making gift is not enough to
attract doctrine of 'Marzul Maut'—Execution of gift deed in question stands proved and there is nothing on record
to augment allegation of
forgery-Petition accepted.[Pp. 172
& 173] A, B & D to FPLD 1977 SC 28 ref. "Marz-ul-Maut""-—'Marz-ul-Maut' is a malady which induces an apprehension of death
in the person suffering from it and
which eventually results in his death."Paragraph 135 of Mullah's Muhammadan Law" and PLD1994 SC 650 ref. [P.
172] C
Mian Muhammad Younus Shah, Advocate for
Petitioner. . Mr. Amjad Zia, Advocate for Respondent. Date of hearing:
28-2-1996. Approved for reporting on 18.6.1996.
judgment
This is a defendant's
revision petition arising from the judgment and decree dated 5.6.1991 of the learned
District Judge, Malakand at Batkhela affirming the judgment and decree dated
24.7.1990 of the learned Senior Civil Judge, Malakand in favour of his
sanguine brother Said Majid whereby the transfer of certain landed property made
in his favour by his father Muhammad Majid through the gift deed dated 30.3.1980 was
struck downon the ground that the gift deed was executed by the donor during 'Marzul
Maut'.
2. The facts of the case are short and simple
but its history is rather chequered. The donor had divided his estate into
three portions during his lifetime and while retaining one portion had assigned one
portion each to the petitioner Bakht Zamin and the respondent Said Majid.
Out of the portion retained by him he transferred certain property in favour of his wife Mst.
Bahrul
Marjan, petitioner's mother, in lieu- of her dower and transferred the remaining property
in favour of the petitioner vide a registered gift deed dated 30.3.1980. He
died in the month of April, 1980 and through a suit brought on 20.7.1980
the respondent claimed ownership of 1/2 share out of property left by his
father including the property which had fallen to the lot of his step-mother in lieu of her dower
and which she had subsequently gifted to
the petitioner. The pith of the claim was that the petitioner had grabbed
the entire property left by his father and the deed on the basis whereof he had done so was forged and ineffective
on his rights. The suit was resisted
by the petitioner on the ground, inter alia, that he was the exclusive
owner of the property left by his father on the basis of the gift deed dated 30.3.1980. The averments of the parties were
embodied in the following issues :--
1.
Whether the suit is competent in its present form ?
2.
Whether the suit is within time ?
3.
Whether the plaintiff has a cause of action ?
4.
Whether the suit is properly valued for the purposes of Court fees and
jurisdiction ?
5.
Whether Muhammad Majid deceased has alienated the suit land in favour
of the defendant through a Registered Deed by way of Hiba ?
6.
Whether the plaintiff is the owner of the suit land and
the Deed
in favour of the defendant is forged, if so, its effect ?
7.
Whether
the mother of the defendant has given that land to the defendant which she had acquired by way of dower through a Dower Deed, if so, its effect ?
8.
Whether the plaintiff is entitled
to the decree
for declaration and alternative prayer for possession of the suit land?
9.
Whether
the plaintiff is entitled to a decree for perpetual injunction as prayed for ?
10.
Relief.
3. The suit was dismissed by the learned trial court
on 19.5.1982 but the appeal field by
the respondent was accepted on 5.1.1983 by the arned District Judge, Malakand at Batkhela, and while the gift made in petitioner's
favour by his mother was held to be valid the gift made by his father
was declared as void for the reason that it
was made by him during 'Marzul Maut' and resultantly
the suit was decreed to the extent of 1/2 share out of the property left by the donor. The dispute was
brought to this Court by the petitioner
and the revision petition filed by him was accepted on 8.2.1989, the judgments and decrees of the Courts below were
sot aside and the case was
remanded-to be re-heared on the following issuo in the light of the evidence which the parties may wish to furnish :--"Whether Muhammad Majid, the
predecessor-in-interest of the parties,
made the impugned gift during Maraz-ul-maut, if so with what effect?"
4. In the wake of the remand the evidence of the plaintiff
was recorded by the learned trial
Court but the defendant took the stance that he
would rely on the evidence already recorded. At the close of the proceedings the suit was decreed on 24.7.1990 by the learned trial Court to the extent f 1/2 share out of the property left by the deceased excluding the property which was given by him to his wife in lieu of her dower and gifted by her to
the defendant. However, the appeal filed by the defendant was accepted on 5.11.1990 by the learned District Judge, Malakand at Batkhela and the ase
was remanded with the direction that it be decided afresh after providing an opportunity to the parties to produce evidence on the additional issue framed by this Court. The learned trial Court after doing the needful again passed a decree in favour of the plaintiff on 27.2.1991 in regard to 1/2 share out of the property left by his father excluding the property alienated by him in favour of his wife in lieu of her dower. The appeal filed by the defendant was dismissed by the learned District Judge, Malakand at Batkhela on 5.6.1991. Feeling aggrieved the defendant filed a revision petition in this court which was accepted on 6.7.1994 and the suit of the plaintiff vns dismissed with the following observations :—
would rely on the evidence already recorded. At the close of the proceedings the suit was decreed on 24.7.1990 by the learned trial Court to the extent f 1/2 share out of the property left by the deceased excluding the property which was given by him to his wife in lieu of her dower and gifted by her to
the defendant. However, the appeal filed by the defendant was accepted on 5.11.1990 by the learned District Judge, Malakand at Batkhela and the ase
was remanded with the direction that it be decided afresh after providing an opportunity to the parties to produce evidence on the additional issue framed by this Court. The learned trial Court after doing the needful again passed a decree in favour of the plaintiff on 27.2.1991 in regard to 1/2 share out of the property left by his father excluding the property alienated by him in favour of his wife in lieu of her dower. The appeal filed by the defendant was dismissed by the learned District Judge, Malakand at Batkhela on 5.6.1991. Feeling aggrieved the defendant filed a revision petition in this court which was accepted on 6.7.1994 and the suit of the plaintiff vns dismissed with the following observations :—
"7. The execution of the gift deed and
its registration has been proved. Both the Courts below are also unanimous in
their findings on the execution of the gift deed. This being the position, the revision petition is
hereby accepted, the findings of the learned District Judge declaring the gift
deed dated 30.3.1980 are based on misreading of evidence and thus reversed. The
judgment and decree of the learned District Judge to that extent are set
aside while that of the learned trial Judge maintained. Consequently, suit of
the plaintiff
Said Majeed stands dismissed. No order as to costs."
The matter was taken by the plaintiff before the Supreme Court of
Pakistan through
a petition for leave to appeal which was converted into an appeal onlower Courts and the
respondent has not challenged their verdict, therefore, the dispute in this
petition relates to the subject matter of the gift deed. The learned lower Courts
have impressed judicial imprimatur on the claim of the respondent vis a
vis the said gift deed for the reasons that the donor had not executed the gift
deed of his free will and accord and it was executed by the donor during 'Marz-ul-Maut'
because he was not only very old and seriously ill but had also died
after twenty days of the registration of the deed. The points for determination are, therefore,
restricted to these two matters as also the
issue as to whether the concurrent findings of the learned lower Courts suffer from any jurisdictional defect or
misreading or non-reading of evidence.
8.
In
the plaint the respondent had only alleged that the gift deed was forged and fictitious. He had neither alleged
that it was obtained by the petitioner
through fraud, undue influence or coercion nor any issue was framed in respect thereof. The plaint was also not
amended at any stage, therefore, the learned lower Courts fell in error by
holding that the donor had executed the gift deed under the influence of
the petitioner and not of
his free will and accord. Be that as it may, there is no positive evidence to substantiate these allegations. There is enough oral and documentary
evidence on record which makes it manifest that the donor was not being looked after properly but his sons on which he had filed a complaint before the Assistant Political Agent through whose good offices the matter was patched up on 20.10.1979 and the petitioner and the respondent had undertaken to pay him a sum of Rs. 150/- each every month through one Fazle Khaliq for his treatment and sometime in the year 1980 the Levy Police ad left him in the petitioner's house. The respondent is admittedly residing at Rawalpindi and there is nothing on record to suggest even remotely that he ad ever asked the donor to live with him. The petitioner had given shelter to the donor when it was badly needed by him, therefore, the gift appears to e atural. As regards the allegation of forgery it will be enough to say that there is nothing on the record to augment it.
his free will and accord. Be that as it may, there is no positive evidence to substantiate these allegations. There is enough oral and documentary
evidence on record which makes it manifest that the donor was not being looked after properly but his sons on which he had filed a complaint before the Assistant Political Agent through whose good offices the matter was patched up on 20.10.1979 and the petitioner and the respondent had undertaken to pay him a sum of Rs. 150/- each every month through one Fazle Khaliq for his treatment and sometime in the year 1980 the Levy Police ad left him in the petitioner's house. The respondent is admittedly residing at Rawalpindi and there is nothing on record to suggest even remotely that he ad ever asked the donor to live with him. The petitioner had given shelter to the donor when it was badly needed by him, therefore, the gift appears to e atural. As regards the allegation of forgery it will be enough to say that there is nothing on the record to augment it.
9. According to
Paragraph 135 of the Mulla's Muhammad Law 'Marz-ul-Maut' is a malady which
induces an apprehension of death in the person suffering from it and which eventually
results in his death. The parameters
of 'Marz-ul-Maut' were highlighted and discussed at length in the case law cited by the learned counsel for the
petitioner i.e. PLD 1977 S.C. 28 and PLD
1994 S.C. 650. The gist of the observations made therein is that the controversy in regard to 'Marz-ul-Maut' should
be settled in accordancewith the
following guidelines :-- "(i) Was the donor suffering at the time of gift
from a disease which was the
immediate cause of his death ?(ii) Was the disease of such a nature or
character as to induce in the person
suffering the belief that death would becaused thereby, or to engender in him
the apprehension of death ?
(iii) Was the illness such as to incapacitate
him from the pursuit of his ordinary avocations--a circumstance which might create in the
mind of the sufferer an apprehension of death ?
(iv) Had the illness continued for such
length of time as to remove
or lessen the apprehension of immediate fatality or to accustom the sufferer to
the malady."
10. After testing the gift deed in question
on the touchstone of the above guidelines I am convinced that the
respondent/plaintiff has singularly failed to prove that the gift in question was
made by the donor during 'Marz-ul-Maut'.
There is no medical
evidence on record from which it could be gathered that the donor was suffering
from a particular disease which had caused a
sense of imminent death* and had eventually resulted in his death. The oral evidence also does not point to any such
disease. According to one of the witnesses Noorul Haq (P.W.4), produced
by the plaintiff, the urine of the donor was out of control. This ailment
cannot be termed as a fatal disease by any
stretch of imagination. No doubt the donor was an old man but his old age
by itself is not enough for holding that he was not possessed of sound disposing mind. It was observed in the judgment of
the Supreme Court reported as PLD
1977 S.C. 28 that old age and illness are not perse sufficient to sustain inference of donor having been under
pressure of sense of imminent death.
It appears that in view of his old age the learned lower Courts took for granted that he was under
apprehension of death. Mere fact that
he had died 20 days after making the gift is also not enough to attract
the doctrine of 'Marz-ul-Maut' because
in Channan Bibi's case (PLD 1977 S.C. 28) the gift was held to be valid despite the fact that the
donor had died 12 days thereafter. The
execution of the gift deed in question stands proved and the effect of the
ambiguities created by one of the attesting witnesses Muhammad Karim Khan by
means of obliging concessions is offset by the endorsement of the Sub-Registrar thereon that the contents of the gift
deed were read over to the donor, who
was identified by Abdul Kabir and Muhammad
Zarin, and he had admitted the same to be correct. The evidence was
certainly misread by the learned lower Courts.For
the foregoing reasons this revision petition is accepted, the impugned
judgments and decrees are set aside and the suit of the plaintiff Said
Majeed is dismissed. Parties to bear their own costs.
(MYFK) Petition accepted.
