P L D 1957 (W (PLP)

LARI, J.

The suit giving rise to this appeal was filed by e respondents and Muhammad Saleh deceased for partition and separate possession of eight annas share in a few freehold properties situate in the Town of Hyderabad (Sind) on the ground that Muhammad Saleh husband of respondent No. 1 and father of respondents Nos. 2-4 owned this share and had gifted the same to the respondents. The trial Court held that the gift in favour of the respondents was valid and decreed the suit. It is the alleged invalidity of the gift which is the corner stone of the present appeal and it has to be seen whether any of the contentions raised on behalf of Begun defendant-appel lant is sustainable. The first contention of the learned counsel for the appel lant was that the gift deed in question had been obtained by undue influence. No such plea was raised in the suit and cannot be entertained at the appellate stage. The same is the case with the second objection that the donor had not the benefit of any independent advice. No such objection was or could be taken. It was argued that the finding, of the trial Court that the defendant-appellant had failed to establish that Muhammad Saleh was of unsound mind at the time of the execution of the deed is not justified by the evidence on the record. We have been taken through the evidence and find that apart from the bare statement of Begun there is nothing to show that Muhammad Saleh was of unsound mind. All that Begun deposed was that Muhammad Saleh had no mind. By this he apparently meant chat Muhammad Saleh had no will of his own. There is no evidence oral or circumstantial to show that Muhammad Saleh was not in a position to understand the nature of transaction. On the other hand the deposition of Muhammad Saleh before the City Survey Officer and evidence of Mst. Kazbano establish to the contrary. The finding of the trial Court was therefore fully justified. It was contended that the gift was invalidated by the doctrine of mushaa. It is well established that this doctrine is wholly unadapted to a progressive state of society and mus E be confined within the strictest rules. The Privy Council refused to apply the principle in case of shares in companies and freehold properties in a commercial town vide Ibrahim Goolam Ariff v. Saiboo and others (34 Ind. App. 167). Following this decision the Courts have refused to apply the rule of mushaa to gifts in respect of properties in commercial towns and Hyderabad is undoubtedly a commercial town. The learned counsel relied on a case Ahmad Hussain and others v. Qamar-ul-Zaman (A I R 1927 Lah. 413). This case no doubt supports the contention of the appellant but cannot be followed in view of the Privy Council decision quoted above and a Division Bench decision of the same Court Nazir Din and another v. Mohammad Shah and others (A I R 1936 Lah. 92). The rule of mushaa is in the nature of restraint on freedom to p transfer ones property and should be limited to properties to which it had been actually applied in the past. It was further contended that actual possession of the gifted property was not delivered to the donees. This was not at all necessary. What is required is that a donor should wipe himself off and put donee in the same kind of possession as he himself had or which the property gifted is susceptible of. This was done. A reference may be made to the cases in Nawab Mirza Mohammad Sadiq Ali Khan and others v. Nawab Fakr dahan Begam and another (A I R 1932 P C 13) and Sheikh Gausi and others v. Mohammad Sharif and others (A I R 1930 All. 793) and Nazir Din and another v. Mohammad Shah and others (A I R 1936 Lah. 92). Muhammad Saleh executed a registered gift deed reciting therein that possession had been delivered to the donees and got the gifted property mutated in favour of the donees. There is also evidence that some tenants paid rent to the donees. There was therefore an effective transfer of possession. It was lastly argued that the gift deed was executed during the course of marz-ul-maut and as such was void. All that has been established in the case is that Muhammad Saleh was old, infirm, blind and died because of old age. To attract the application of the principle of marz-ul-maut the gift must haven been made under pressure of the sense of imminence of death. Our attention has been drawn to a statement made by the donor before the City Survey Officer in the following words :- "I am afraid I might die any time suddenly and then there might be some dispute about the heirship to my property, hence I give away as a gift to the following heirs . . . . ." This is not enough to establish marz-ul-maut. Every human being much less an old man has an apprehension that he might die any time suddenly but this is not the same thing' as pressure of the sense of imminence of death. It was held in Mst. Kammon and others v. Allah Bakhsh and others (A I R 1941 Lah. 36) that general debility due to old age is not marz-ul-maut. There must be some specific mortal malady which creates a sense of imminence of death. Nothing of the kind has been established in this case. None of the grounds advanced for invalidity of the gift is established. There is therefore no force in the appeal and it is dismissed with costs. K. M. A. Appeal dismissed.