1999 PLP 3374 (MLD)

3. Mst. Pathani appealed against the said judgement and decree. It was dismissed vide judgment and decree dated 29-9-1977 passed by the learned first appellate Court. The learned counsel appearing for the appellant has assailed the said judgments on the following grounds: (a) The finding of the learned trial Court was self-destructive in as much that after holding that Mst. Jannatan was fully in possession of her senses to make a sensible statement, the gift could not have been undone on the ground of Maraz-ul-Maut. (b) That there was no medical evidence to establish the nature of illness and the cause of death. (c) Mere old age or unspecified ailment was not a ground to declare that gift by Mst. Jannatan was made during Maraz-ul-Maut. (d) The learned two Courts have not adverted to the considerations on the subject. i.e. the mental condition of the donor, the length of ailment and cause of death etc. and have based their finding merely on the fact that she died on 21-9-1968 after making statement before the Revenue Officer on 16-9-1968. (e) That heavy burden lay on the plaintiff to prove that the gift was mad, during Marz-ul-Maut which was not discharged by the plaintiff. He relied on Mst. Chanan Bibi and 4 others v. Muhammad Shafi quid 3 others (PLD 1977 SC 28) and Noor Muhammad Khan and 3 others v. Habibullah Khan and 27 others (PLD 1994 SC 650).

4. The learned counsel appearing for the respondent has contended that the matter stands concluded by concurrent finding of fact and, therefore, it is immune from scrutiny in second appeal. He next contended that undisputedly the mutation was attested on 31-10-1968 while the donor died on 21-9-1968 and therefore it could not have been attested.

5. I have considered the submissions made and have examined the record with the assistance of the learned counsel. I am fully mindful of the binding nature of a finding of fact in second appeal but it is not based on the evidence produced by the plaintiff/respondent and is, therefore, open to examination.

6. The sole ground on which the gift was challenged was that the donor was not in possession of her senses and, therefore, was not in a position to make a sensible statement. This plea was supported by the evidence of P.W.2, P.W.6 and P.W.7. According to them Mst. Jannatan was not in possession of her senses, she lost consciousness and was not in a position to identify them. I have noticed that the plea of Maraz-ul-Maut was not even raised in the plaint. It is a case in which the suit filed by the plaintiff was decreed on a plea which was even raised in the plaint. I may refer to Mst. Balqees Begum and 11 others v. Mehfooz Hussain and 9 others (PLD 1995 Lah. 113), Government of West Pakistan (now Punjab) through Collector, Bahawalpur v. Haji Muhammad (PLD 1976 SC 469) and Binyameen and 3 others v. Chaudhry Hakim and another (1996 SCMR.336) in support of the proposition that unless a fact is pleaded, it cannot be allowed to be proved and even evidence led thereon cannot be looked into. The framing of issue No. 1 was, therefore, totally unjustified. There was no evidence adduced by the deceased-respondent either that Mst. Jannatan was suffering from death illness. I may refer to Haji Abdul Razzaq v. Pakistan through Secretary, Ministry of Defence and 2 others (1994 CLC 613) to retirerate that a plaintiff can only succeed on clearance of his proof. There is not a word of discussion in the judgments of the learned two Courts of the evidence produced by the respondent--plaintiff. 'The foundation of their judgments is the material borrowed from the cross-examination of the witnesses of the defendant. This could not be done. Reference may be made to Tariq Mahmood v. Muhammad Asghar (1990 CLC 1214).

7. The Revenue Officer who recorded the statement of Mst. Jannatan was examined as D.W.2 who categorically deposed that Mst. Jannatan was in, fit state of mind. His testimony was duly supported by D.W.7 and D.W.8. With the evidence of D.W.2, the case made out by plaintiff-respondent was completely demolished. The two learned Courts committed an error of law in declaring the gift as a will on the ground of Marz-ul-Maut on the basis that Mst. Jannatan had remained ill and died within a few days of making the gift. Mere old age or illness per se were not sufficient to hold that Mst. Jannatan was suffering from any death illness.

8. The evidence brought on record by the plaintiff only shows that Mst Jannatan had an abcess. This can hardly be a disease haunting one with fear of death. The nature of illness remained unspecified and the cause of death remained unspecified as no medical evidence was produced. The main reason that Mst. Jannatan, the donor died 4 days after making the gift is a clear misdirection. Reference may be made to Namdor v. Muhammad Sadiq (20 IC 900) in which it was held that death of a person within a few days of along a gift is not sufficient to invalidate it on the ground of Marz-ul-Maut. In this case, the mutation attested after the death of the donor was also found to be in order.

9. The apprehension in somebody else's mind that a person, was likely to die is not enough. The fact that donor was suffering from Marz-ul-Maut has to be proved like any other fact and it is his apprehension which is material. The basis to declare a gift invalid during Marz-ul-Maut was that because of imminent fear of death a person was incapacitated to take a proper decision. It is the mental incapacity which is more important than the physical incapacity. If despite physical in-capacity, one is able to take an intelligent decision then the transaction cannot be nullified. Here, in this case, the evidence of the Revenue Officer who recorded donor's statement clearly establishes that the denor was in a fit state of mind. The decisions in the case of Noor Muhammad Khan (supra) and Mst. Channan Bibi (supra) provide valuable guidelines and viewed in the light thereof it was a case of no evidence that Mst. Jannatan was suffering from death illness. The circumstance, and that too brought out during cross -examination of the witnesses of the defendant, that Mst Jannatan was produced before the Revenue Officer on a Charpoy could hardly be sufficient to arrive at the finding that gift was made by her during death illness.

10. In view of the above, this appeal is allowed, the judgments and the decrees of the Courts below are set aside and the suit filed by Muhammad Ramzan, the deceased respondent is dismissed. The parties are, however, left to I bear their own costs. H.B.T./P.45/L Appeal allowed.