1987 PLP 1187 (CLC)

‑‑‑2. 2‑‑Transfer of Property Act (IV of 1882), Ss. 122 & 123‑‑Gift‑ Transaction of‑‑ Marz‑ul‑Maut‑‑Effect‑

‑Petitioner/plaintiff nowhere specifically pleaded in plaint that donor was suffering from Marz‑ul‑Maut at time of making gift in favour of donee, except making little reference that donor had lost his senses due to illness‑‑Donee categorically denied allegations of losing senses by and Marz‑ul‑Maut of donor‑‑Losing senses due to illness, held, would not necessarily mean entertaining apprehension of imminent death which indeed was sine qua non for striking down any transaction made in that state of mind‑‑Allegations made by petitioner having been disproved by his own witness, petitioner had no ground to assail validity of gift in circumstances. Inayat Ullah Khan Niazi for Petitioner. This Civil Revision assails the judgment/decree dated the 12th of October, 1985 of the learned Additional District Judge, Mianwali, whereby agreeing with the trial Court he dismissed the petitioner's appeal.

2. The petitioner's father gifted away his property in three instances in favour of his own daughter Mst. Hayat Bibi respondent. He challenged all of them stating that he often remained ill; was living with the respondent who arranged his treatment; was not in proper senses due to illness; and was coerced as also defrauded to make these gifts in her favour. One of the gifts was made by mutation, dated the 25th of November, 1957 whereas the remaining two were made through registered deeds dated the 3rd of September, 1979. He claimed that soon after disposing of the property by the impugned gifts, he died. Lastly, he asserted that possession was still with him as he arranged cultivation, etc. of the land and that the gifts were void for want of delivery of possession.

3. The suit was seriously resisted by the respondent controverting these allegations. She denied if the donor was at all ill or that he was not in proper senses. She explained that instead the petitioner was insolent and disobedient towards him and that for this reason he lived with her during his lifetime. She affirmed the gifts having been made by the deceased as of his free‑will and claimed to have had obtained even delivery of the land thereunder.

4. Appropriate issues were framed. The two Courts below concurrently found that the gifts were genuine. In fact, the suit was not pressed in regard to the gift made by Mutation No.3089, dated the 25th of November, 1957. Even the other two were found to have been validly made.

5. Mr. Inayat Ullah Khan Niazi for the petitioner claimed that his evidence was not considered by the learned Additional District Judge and that it was a case of almost non‑reading of evidence.

6. With his assistance I went through the whole evidence. While browsing the record one finds that the petitioner's own witness P. W.5 did him an irretrievable damage by having affirmed that the gifts had been made by the deceased in his presence and that he was an attesting witness of the documents. Strangely enough this witness was not declared hostile nor was cross‑examined. Probably this was the reason why the opposite side also did not cross‑examine him. If the petitioner was keen to read such evidence in support of his suit, I am afraid there will be no occasion whatsoever to take into consideration statements of other witnesses. This, by itself, suffices to dismiss his claim out of land. Even other witnesses did not support his contention. He was shown to have been involved in a number of cases, some of being very serious, say murders and dacoities. The respondent's stance was that the deceased father was annoyed of the petitioner due to his criminal acts and that this was the reason why he lived with her during his lifetime. She categorically denied if he was at all ill or had lost senses or apprehended imminent death for any reason. Learned counsel stressed that there was ample evidence to support the allegation of Marz‑ul‑Maut. A perusal of his plaint shows that no such plea was taken, though a little reference was made to the effect that he had lost senses due to illness. Losing senses due to illness does not necessarily mean entertaining an apprehension of imminent death which indeed is sine qua non for striking down any transaction made in that state of mind. The petitioner's own witness, as already remarked, disproved this allegation and, therefore, he seems to have no case to assail the gifts on that ground. On petitioner's own showing the respondent served the deceased particularly through her own daughter who was a lady doctor. If this were so, there were all the more reason for him to have acknowledged her services and making gifts in her favour was not an improbability.

7. For all these reasons, the revision petition is dismissed in limine. H. B. T. /652/L Revision dismissed.