1987 PLP 3055 (MLD)

Ch. Hamiduddin for Appellants. Syed Maqbool Hussain Shah for Respondents. Date of hearing: 10th November, 1987. This second appeal under Section 100 C.P.C. was filed to challenge the judgment and decree dated 1-2-1966 of the learned Additional District Judge, Lahore whereby he reversing the findings of learned trial Court, dismissed the suit of the appellants.

2. The appellants had challenged the gift deed dated 17-1-1956 made by Haji Miran Bakhsh in favour of Karim Bakhsh, his nephew and son-in-law. Haji Miran Bakhsh died on 26-12-1957. The gift was challenged on the pleas that the donor was not possessed of disposing mind at the time of gift; that the gift was incomplete as the possession was not delivered under it and that in any case, the gift having been made during Marzul Maut was effective to a limited extent only. The learned trial Court after framing necessary issues and recording evidence of the parties, came to the conclusion that no undue influence was exercised to obtain the gift from Miran Bakhsh who was possessed of disposing mind at the time of making the gift. It was further held that the gift was complete as the possession was with the donee. The learned trial Court came to the conclusion that Haji Miran Bakhsh was under imminent apprehension of death and hence the gift was valid to the extent of 1/3 only. This was so held vide judgment and decree dated 8-6-1964 by the then learned Civil Judge, Lahore. The appeal was then filed by the donee Karim Bakhsh and Hassan Bibi The plaintiffs, however, felt satisfied as they did not challenge the aforesaid decree. The learned Additional District Judge accepted the appeal and dismissed the Suit observing that there was no evident to show that the gift was made when the donor was under imminent danger of death. Hence, this second appeal.

3. I have heard the learned counsel for the parties and have gone through the evidence on record with the assistance of the learner counsel. The observation of the learned first appellate Court that there was no evidence on record to show that the gift was mad when the donor was in imminent danger of death, appears to b correct. The evidence of Shah Nawaz and other witnesses is of n avail to the appellants /plaintiffs as they were not present at the time of making of the gift nor did Shah Nawaz attest the gift deed before the Sub-Registrar. The deed in question was registered and attested in the office of Sub Registrar by some one named Muhammad Sharif Moreover the pain in the ankle would not have attracted the fear which would render the gift invalid to the prescribed extent. The position which emerges from the evidence, at best, is that the dines of Haji Miran Bakhsh aggravated 2/3 months before his death. Even if that is believed, it will not affect the gift which was duly made o 17-1-1956 while the death took place on 26-12-1957. In the instant case Haji Miran Bakhsh, the donor, remained bed-ridden for almost three years before his death. In such a situation, feeling of imminent danger of death is not usually entertained by the person concerned unless some event has aggravated the illness to give rise to such feeling. Nothing of the sort was even remotely suggested by the witnesses with reference to the time when the gift deed was execute No objection can, therefore, be raised against the appraisal of evident made by the learned first appellate Court. The impugned judgment unexceptionable and the same is therefore upheld

4. For the reasons given above, this second appeal is dismisses Parties to bear their own costs. M.Y.H./C-14/L Appeal dismissed.