1993 PLP 2018 (SCMR)
FAZAL MUHAMMAD BHATTI and another‑‑‑Appellants Versus Mst. SAEEDA AKHTAR and 2 others‑‑‑Respondents
| Citation | 1993 PLP 2018 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Shafiur Rahman and Sajjad Ali Shah, JJ |
| Parties | FAZAL MUHAMMAD BHATTI and another‑‑‑Appellants Versus Mst. SAEEDA AKHTAR and 2 others‑‑‑Respondents |
| Primary Law | (d) Muhammadan Law‑ |
Q1: What are the key laws and sections cited in 1993 PLP 2018 (SCMR)?
This judgment primarily cites: (d) Muhammadan Law‑ as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1993 PLP 2018 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Shafiur Rahman and Sajjad Ali Shah, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1993 PLP 2018 (SCMR) (FAZAL MUHAMMAD BHATTI and another‑‑‑Appellants Versus Mst. SAEEDA AKHTAR and 2 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Sh. Abdul Majid, Advocate instructed by Tanvir Ahmed, Advocate‑on -Record for Appellants.
- S.M. Tayyab, Advocate, instructed by Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents.
- Date of hearing: 2nd December, 1992.
- 3. The learned counsel for the appellants (Sh. Abdul Majid, Advocate) has emphasized over again the failure of the Court to frame the issue with regard to the validity of the gift on account of non‑delivery of possession and the prejudice caused thereby to the claim of the plaintiffs. He has also contended that the gift was not valid and suffered from many infirmities including the one that it was made during death‑bed illness.
Headnotes / Summary
(On appeal from the order of Lahore High Court, Lahore, dated 18‑12‑1989 passed in Civil Revision No. 2242/1989). (a) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.XIV, R.1‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Gift‑‑‑Omission to frame specific issue with regard to delivery of possession‑‑‑Leave to appeal was granted to plaintiffs for examining whether omission of Trial Court to frame a specific issue with regard to delivery of possession following the gift of property in question, had vitiated trial and prejudiced plaintiffs in advancing their case: ‑‑[Muhammadan Law]. (b) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑O.VI, R. 1 & OXIV, R. 1‑‑‑Non‑framing of specific issue when in consequential ‑‑‑Pleadings and issues as originally framed showed that parties were fully aware what was the subject‑matter of controversy and what evidence was to be led by each side‑‑‑Non‑framing of specific issue in such circumstances was, thus, inconsequential ‑‑‑Where issues were not framed but allegations made in the plaint were challenged in the written statement and Court had allowed evidence to be led, then decision rendered without framing of issues was not illegal. Province of East Pakistan v. Major Nawab Khwaja Hasan Askary and others PLD 1971 SC 82 and Sayed Muhammad v. Fateh Muhammad 22 IA 4 rel. (c) Muhammadan Law‑‑‑ ‑‑‑‑ Gift‑‑‑Factum of possession‑‑‑Gift of, house made by grandmother to grand daughter‑‑‑Subject‑matter of gift viz. house was unoccupied by any one and remained so‑‑‑Gift having been made and accepted and keeping in view relationship between donee and donor requisite handing over of possession would sufficiently stand established in circumstances. ‑‑‑‑ Gift being hit by Marz‑ul‑Maut‑‑‑
All the Courts below had concurrently found gift not being hit by Marz‑ul‑Maut‑
‑‑No ground was made out to interfere with concurrent findings of fact of Courts below.
Judgment & Decree
SHAFIUR RAHMAN, J‑‑‑Leave to appeal was granted to the plaintiffs for examining whether the omission of the trial Court to frame a specific issue with regard to delivery of possession following the gift of the property had vitiated the trial and prejudiced the plaintiffs in advancing their case.
2. Mst. Jannat Bibi the mother of the plaintiffs and the grandmother of Mst. Saeeda Akhtar the contesting respondent made a gift of a house built over three Marlas by a registered deed dated 27‑5‑1984 in favour of Mst. Saeeda Akhtar. She (Mst. Jannat Bibi) died on 8‑1‑1985. On 24‑3‑1985 a civil suit was instituted by the three brothers. The sons of Mst. Jannat Bibi challenged the gift on the following grounds;‑‑
"
3. That the opponents of the said Hiba revealed that it was obtained only a few months before the death of the donor in favour of defendant No.1 who is daughter‑in‑law of the defendant No‑2 as such this Hiba is "donatio mortis causa" which is void ab initio.
4. That the ingredients of the said Hiba have not been fulfilled as possession was not delivered to the defendant No.2 and acceptance by the donee also lacks in the body of the Hiba. Ownership of the property in dispute is still in the name of the donor." The suit was contested. The issues framed were as hereunder:‑‑ "(1) Whether the suit is not maintainable in its present form? OPD. (2) Whether the suit is barred under section 42 of Specific Relief .Act? OPD. (3) Whether the plaintiffs have got no locus standi and cause of action against the defendants? OPD. (4) Whether the plaintiffs have come to the Court with unclean hands? OPD (5) Whether the plaintiffs are entitled to a decree as prayed for? OPP. (6) Relief." Subsequently, Issue No.5 was amended to read as hereunder:‑‑
"Whether the gift deed of disputed house was made by Mst. Jannat Bibi in favour of defendant No.1, during death‑bed illness (Marzul Maut)? OPD " The suit was dismissed. So was appeal and the revision filed against it.
3. The learned counsel for the appellants (Sh. Abdul Majid, Advocate) has emphasized over again the failure of the Court to frame the issue with regard to the validity of the gift on account of non‑delivery of possession and the prejudice caused thereby to the claim of the plaintiffs. He has also contended that the gift was not valid and suffered from many infirmities including the one that it was made during death‑bed illness.
4. The pleadings and the issues as originally framed show that the parties were fully aware what was the subject‑matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non‑framing of a specific issue in such circumstances is inconsequential. It was held by this Court in the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82) that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the " issues is not illegal. That has been the established law in the sub‑continent as would appear from Sayed Muhammad v. Fatteh Muhammad (22 Indian Appeals 4).
5. The plaintiffs in this case produced four witnesses two being the plaintiffs themselves and two the residents of the locality. All of them stated that they came to know of the gift after death of Mst. Jannat Bibi when her Chehlam was being observed. These witnesses, therefore, could not competently depose about the failure to transfer the possession. No other evidence was led on the subject.
6. As regards the subject‑matter of gift, the house, it appears that it was unoccupied by anyone and remained so. In such a situation the gift having been made and accepted and keeping in view the relationship between the donee and the donor the requisite handing over of the possession would be sufficiently stand established.
7. As regards the gift being hit by Marz‑ul‑Maut, we find that all the Courts have concurrently held it to be otherwise. There is no reason to interfere with it.
8. The appeal is found to be without merit and is dismissed with no order as to costs. AA./F‑269/S Appeal dismissed.