2022 PLP 85 (MLD)

SHAKEEL AHMAD, J.

Through this common judgment, I propose to decide the instant and connected Revision Petitions Nos.559-A and 560-A of 2019, as not only common question of law and facts are involved therein but also that all these petitions arise out of a common judgment dated 06.11.2019, passed by the learned Additional District Judge-V, Mansehra, in Civil Appeals Nos. 20, 21 and 30 of 2018, whereby the judgment and decree dated 07.11.2018 of the learned Civil Judge-XIII, Mansehra, dismissing the two suits, filed by the respondents and decreeing the suit of Mst. Nazia Bibi against Muhammad Anwar was set aside and suit of the respondents (Muhammad Anwar) was decreed in their favour.

2. The brief facts necessary for decision of this lis are that suit No.70/1 was brought by Muhammad Anwar and others / respondents Nos. 1 to 3 to recover the legal and Shari Share in the estate of their father Fazal-ur-Rehman. The petitioners herein, who were defendants in the suit, on the other hand, claim the entire suit property of Fazal-ur-Rehman on the basis of a registered gift deed No.527 executed on 27.11.2012 in their favour. The following pedigree table will help in understanding the facts:

3. Fazal-ur-Rehman was owner of the land measuring ten (10) Kanals and thirteen (13) Marlas in Khasra No.8819/1224/2/2/2 and Khasra No. 10040/1226 measuring 14 Marlas at mouza Mansehra including a constructed market on the land measuring 02 Kanals and 09 Marlas known as Hayat Market, thereon. He had two wives namely Mst. Zulekha and Mst. Wilayat-un-Nisa. From his first wife, he had one son namely Muhammad Anwar and five daughters Mst. Jameela, Mst. Shahida, Mst. Alam Taj, Mst. Rukh Taj and Mst. Ayesha and from his second wife he had three sons namely Nisar Ahmad, Waqas and Altaf and three daughters Mst. Sadaf, Mst. Nabeela and Mst. Sabeela, as is reflected from the above pedigree table. By a registered deed dated 27.11.2012, he gifted his aforesaid land and market in favour of sons of his second wife namely Nisar Ahmad, Waqas and Altaf and met his natural death on 26.06.2013. The respondents Nos.1 to 3 being thus excluded from inheritance in the suit property sued to recover their legal share in his estate. They challenged the gift deed on the ground that at the time of execution of gift deed Fazal-ur-Rehman (father of the parties) was aged about eighty (80) years and under influence exercised by the petitioner on the donor, who was then suffering from various deceases (kidney, Heart and Stomach problems) and was confined to bed and was not possessed of disposing mind to transfer the suit property in the name of petitioner / defendants and gift by him being not voluntary and result of undue influence is liable to be struck down. Alternatively, it was pleaded that the gift was made by Fazal-ur-Rehman, during marzul mout (Mortal illness), therefore, the same is liable to be set aside. The petitioners maintained the validity of gift and binding character of gift in their favour and denied allegations concerning undue influence and marzul mout. Facts of Suit No. 71/1. Mst. Nazia Bibi wife of Nisar Ahmad instituted a suit against Muhammad Anwar for possession of a single story house fully detailed in the head note of the plaint. It was pleaded in the plaint that she is legally wedded wife of Nisar Ahmad and that the suit land originally belonged to his father-in-law, who gifted it to his son through mutation No. 7093 attested on 23.06.2009, whereafter, he transferred the same to her through mutation No. 70904 attested on 23.06.2009. Facts of Suit No.72/1 This suit was also instituted by Muhammad Anwar / respondents Nos.1 to 3 against petitioners challenging therein gift mutation No. 70903 executed on 23.06.2009 and Mutation No. 73493 attested on 27.05.2010, executed by Fazal-ur-Rehman in favour of his son Nisar Ahmad and second wife Wilayat-un-Nisa and mutation No. 70904 attested on 23.06.2009, whereby Nisar Ahmad transferred land measuring 10 Marlas out of 02 Kanals and 16 Marlas in Khasra No.1255 at mouza Mansehra to his wife namely Mst. Nazia Bibi.

4. After service of summons, the defendants of the respective suit put their appearance contested the same by way of filing their written statements. The suits were consolidated and from divergent pleadings of the parties following consolidated issues were framed and parties were directed to produce their evidence:

1. Whether plaintiffs of all the cases have not got a cause of action?

2. Whether plaintiffs of all the suits are estopped to sue due to their own conduct?

3. Whether the gift Mutations No. 70903 dated 23.06.2009 and Mutation No. 73499 dated 27.05.2010 along with the sale Mutation No. 70904 dated 23.06.2009 are fake and fictitious?

4. Whether the registered gift deed No.527 dated 27.11.2012 is against the law, based on fraud and collusion of defendants Nos.1 to 6?

5. Whether the gift mutations were correctly entered and attested by Fazal-ur-Rehman in favour of defendant No.1?

6. Whether the registered gift deed No. 527 dated 27.11.2012 was executed by Fazal-ur-Rehman (deceased) in favour of the parties?

7. Whether the pre-requisites of a valid gift have been complied with? If not its effect?

8. Whether the plaintiff and proforma defendants being legal heirs of Fazal ur Rehman deceased are entitled for their respective Shair shares in the disputed property of Suits No.284/1 and 395/1?

9. Whether the plaintiff of Suit No.204/1 is the owner of suit house bearing Khasra No. 1255 vide Mutation No. 70904 dated 23.06.2009?

10. Whether the plaintiff of Suit No. 395/1 and 284/1 are entitled to the decree as prayed for?

11. Whether plaintiff of the Suit No. 204/1 is entitled to the decree as prayed for?

12. Relief. In Support of their contentions, the respondents / plaintiffs produced as many as eight (08) witnessed and produced the following documentary evidence. S.No. Description of documents Exhibits 1 Fard Intikhab for the year 1997-1998 Ex.PW-1/1 2 Goshwara Malkiyat of the parties Ex.PW-1/2 3 Fard Intikhab in respect of Khasra No. 8819 / 1224 / 2 /2/2 4 Register concerning mutation part Patwar being Mutations Nos. 70903, 70904 and 73499 Ex.PW-1/8 to 10 5 Roznamcha Waqiati Ex.PW-1/11 6 Goshwara-e-Malkiyat of Fazal-ur-Rehman Ex.PW-1/12 7 Goshwara-e-Malkiyat of Fazal-ur-Rehman Ex.PW-1/13 8 Goshwara-e-Malkiyat of parties Ex.PW-1/14 9 Goshwara-e-Malkiyat of predecessor of parties Ex. PW-1/D-1 10 Goshwara-e-Malkiyat of the parties, after suit mutations Ex.PW-1/D-2 11 Mutation No. 41572 and 41573 dated 21.09.1995 Ex.PW-1/D-3 and Ex.PW-1/D-4 12 Registered deed No. 527 dated 27.04.2012 Ex.PW-1/1 and Ex.PW-2/1 13 Registered of stamp vendor for the year 2012-13 Ex. PW-3/1 stamp paper Ex.PW-3/2 14 Gift deed Ex.PW-3/2.

5. In rebuttal, the petitioners produced stamp vendor who tendered extract of his register showing signature / thumb impression of Fazal-ur-Rehman concerning sale of stamp to Fazal-ur-Rehman in favour of Nisar Ahmad and others as Ex,DW-1/1. Wajid Ali petition writer as DW-2, who produced extract of his register showing entry of gift deed at serial No.309 of his register having thumb impression of donor and signatures of marginal witnesses of gift deed as Ex.DW-3/1. Abid Hussain registry Moharrir PW-2 produced Bahi No.1 volume 218 concerning registered gift deed dated 27.04.2012 as Ex.PW-3/1. Riaz Muhammad DW-4, Zakriya Tariq DW-5 and Riaz Muhammad DW-6 and Abdur Rashid DW-7, marginal witnesses of gift deed Ex.DW-2/2. Petitioner Nisar Ahmad, himself appeared as DW-8, and as attorney of the defendants Nos.2 and 3 and Mst. Nazia plaintiff in Suit No.71/1 and closed his evidence.

6. At the conclusion of trial, the learned trial judge dismissed the suit No. 70/1 and 72/1 (brought by the respondents), however, decreed the suit No. 71/1 instituted by Mst. Nazia Bibi wife of Nisar Ahmad against the respondents vide judgment dated 07.11.2018. Not contented with the same, the respondents filed separate appeals before the learned District Judge, Mansehra, which was marked to the Additional District Judge-V, Mansehra, for disposal. After providing right of audience to the both the parties, the appeals filed by the respondents was accepted and the judgment and decree dated 07.11.2018 of the learned trial court was set aside, the Suit Nos.70/1 and 72/1 were decreed, consequently, Suit No.71/1 filed by Mst. Nazia was dismissed. Hence, these revisions.

7. I have heard mosaic arguments of the learned counsel for the parties at great length and scanned the record with their valuable assistance.

8. It appears from the record that the respondents challenged the registered gift deed dated 27.04.2012 Ex.PW-2/1 on the ground that at the relevant time donor (Fazal-ur-Rehman) was suffering from various disease and was not possessed of sound disposing mind and the gift by him was not voluntary and was result of undue influence. It is by now settled that for a lawful gift there had to be some offer acceptance and delivery of possession. Muslim donor has unfettered power to alienate his property by way of gift or otherwise during his life time provided he is in proper state of health and gift was made in exercise of his independent voluntary discretion. The conditions necessary for the validity of any disposition are the following:

1. Majority.

2. Understanding

3. Freedom

4. Ownership of the subject matter of the disposition.

9. Now adverting to the facts of the case, it is an admitted fact that the respondents set up their claim on the doctrine of marzul mout. The law applicable to the case is not in controversy. If gift by Fazal-ur-Rehman donor was made during illness or due to extreme old age, he was not possessed of sound disposing mind or under the pressure of sense of the imminence of death, then the gift would be hit by doctrine of marzul mout otherwise not. This criterion was recognized by the apex Court in the case reported as Shamshad Ali Shah and others v. Hassan Shah (PLD 1964 SC 143). This precedent set out the following factors which the court should consider to sustain the conclusion that the impugned transaction was made under such pressure:

1. Was the doner suffering at the time of gift from a disease which was the immediate cause of his death.

2. Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby, or to endanger in him the apprehension of death?

3. Was the illness such as to incapacitate him from the pursuit of is ordinary avocations a circumstance which might create in the mind of the sufferer an apprehension of death?

4. Had the illness continued for such a long of time as to remove or lessen the apprehension of immediate fatality or to the sufferer to the malady?

10. The first is essentially a question of fact and the best evidence could be that of a medical attendant / doctor, who treated the deceased at the relevant time. In the instant case, it was admitted by Sardar Muhammad PW-5, Muhammad Iqbal Khan PW-6 and Muhammad Anwar PW-7, that they cannot produce any documentary evidence concerning illness of Fazal-ur-Rehman. Even they failed to produce any medical attendant in support of their contention. It is an admitted fact that nothing could be produced to show that at the relevant time Fazal-ur-Rehman (father of the parties) was suffering from illness and was not possessed of sound disposing mind. I consider this as a serious drawback / flaw in the respondents case. The burden to prove the issue relating to marzul mout lay heavily on the respondents / plaintiffs and the oral evidence in this respect did not inspire confidence. Moreover, gift deed being a duly registered document, presumption as to its genuineness is attached, unless proved otherwise.

11. As mentioned above, no medical evidence worth the name could be led showing that Fazal-ur-Rehman was apprehending imminent death or was suffering from any illness at the relevant time and accordingly doctrine of marzul mout could not be involved. In this context, reference may be made to the judgments reported as Rashid-un-Din v. Nazir-ud-Din (AIR 1929 Lah. 721), Noor Muhammad Khan v. Habib Ullah Khan (PLD 1994 SC 650) Kamran v. Allah Bakhsh (NLR 1991 SD 366), Shamshad Ali shah and others v. Syed Hassan Shah and others (PLD 1964 SC 143), Mst. Chan Bibi and 04 others v. Shafi and others (PLD 1977 SC 28) Hamid Ullah v. Khurshid Ahmad Khan (PLD 1958 SC (PAK) 516), Fazal Muhammad Bhatti v. Sardar Akhtar v. Feroz (PLD 1951 Lah. 433) and Syed Raza Ali v. Kazi Noor-ud-Din (AIR 1925 Cal 537).

12. Both the courts below after scanning the evidence on record rightly held that marzul mout was not in any way established.

13. I am not persuaded to agree with the learned counsel for the respondents that there was no justification to make such gift by depriving the respondents / son and daughter of 2nd wife, firstly, for the reason that under Islamic law a preferential gift is not void and it is within the competency of the father to give preference to one heir or some heirs over others. In this behalf reference may be made to the following judgments, Quranic texts and books. Ahmad Khan v. Mst Zamroot Jan (AIR 1950 Psh 11), Saif ullah v. Ghulam Jabbar (PLD 1955 Lah 191), Noor Muhammad Khan v. Habib Ullah Khan (PLD 1994 SC 650), Al-Quran: Surah Al-Araaf, Ayah 31: Surah Asrar, Ayah 26, Surah Furqan, Ayah 67 Surah Baqara, Ayah 219, Majmooa-e-Qawaneen-e-Islam by Dr. Tamzil-ur-Rehtnan Vol-III; Baday-ul-Sanie by Imam Qasami, published in Egypt, 1910 Vol. VI, P.127. Kitab-ul-Mizan at Kubra by Imam Shirani Shafi, published in Egypt Vol.II P.100.

14. Learned counsel for the respondents laid much emphasis on the point that the gift deed executed in favour of the petitioner was invalid for want of offer, acceptance and delivery of possession, this assertion of the learned counsel for the respondents does not carry weight. The recital of the gift deed, itself negates version of the complainant. On perusal of the contents of gift deed, I found that it was specifically mentioned in the deed of gift Ex.PW-2/1 that offer was made by the donor to the donees, who accepted it and possession of the gifted property was delivered to them. It would be appropriate to reproduce the relevant portion of the gift deed as under:

15. Now coming to the impugned gift mutation bearing No. 70903 attested on 23.06.2009 and Mutation No. 73499 attested on 27.05.2010 executed by Fazal-ur-Rehman in favour of petitioners Nisar Ahmad and his mother Wilayat-un-Nisa second wife of Fazal-ur-Rehman. These mutations were produced by Halqa Patwari PW-1 as Ex.PW-1/2 to Ex.PW-1/41, which were subsequently incorporated in the revenue record by Fazal-ur-Rehman in favour of his son and wife. The principle of regularity available under Article 129(e) of Qanun-e-Shahadat Order, 1984, is attached to the impugned mutations as the same was entered and attested by the revenue officials in performance of their regular duty. Though the same is rebuttal, but the respondents / plaintiffs miserably failed to prove the fact that the suit property was in the ownership of their propositus, after alienation of the same by way of gift, therefore, it is not a case of a dispute of inheritance. Moreso, after execution of ibid mutations, Fazal-ur-Rehman remained alive for long time, neither he nor the respondents challenged the gift mutations or gift deed during his life time, and after his death the respondents / plaintiffs challenged its validity at a belated stage. Silence of the respondents / plaintiffs for a long time, after execution of gift mutation / deed itself reflects that they had knowledge of the gift transaction, and free will of their father, therefore, the learned trial court rightly held that they are estopped by their own conduct to sue the petitioners, after demise of their father. Moreso, perusal of the impugned gift deed reveals that constructed shops on the land measuring 17 Marlas was also transferred to the respondents / plaintiffs through impugned gift deed, which too reflects that they are also beneficiaries of the gift and that it was genuinely executed.

16. Lastly, it is an admitted fact that land measuring 10 Marlas out of 02 Kanals and 16 Marlas was transferred to Mst. Nazia Bibi by her husband through mutation No. 70904 attested on 23.06.2009, being owner of the same on the basis of gift mutation bearing No. 70903 attested in his favour by his father Fazal-ur-Rehman. I found no illegality or irregularity in the said transaction.

17. The learned appeal court while reversing the judgment and decree of the learned trial court ignored all these legal aspect of the case and misread the evidence produced by the parties, thus fell into error, which resulted into gross miscarriage of justice, calling for interference.

18. Above discussion leads me to conclude that it is not satisfactorily proved that the impugned deed of gift and mutations were executed by Fazal-ur-Rehman during marzul mout. In recording the conclusion, I am convinced that the onus of proof of Issues Nos. 4 and 5 in the case relating to execution of the gift deed by Fazal-ur-Rehman during death bed illness lay on the respondents, which in my view, they have not been able to discharge, while the burden to prove issue No.7 was successfully discharged by the petitioners.

19. For what has been discussed hereinabove, I hold that the learned appeal court misread and misconceived the evidence available on the record, while the judgment and decree, passed by the learned trial court is based on proper appreciation of evidence, therefore, the impugned judgment and decree dated 06.11.2019, passed by the learned appeal court is set aside and the judgment and decree dated 07.11.2018, passed by the learned trial court is restored. Accordingly, I accept the instant and connected Revision Petition Nos.559-A and 560-A of 2019 and dismiss the respondents' suit, leaving the parties to bear their own costs throughout. MH/203/P Revision allowed.