P D 1997 Supreme Court 308 (PLP)

SAIDUZZAMAN SIDDIQUI, J.

The petitioners are seeking leave to appeal against the judgment of a learned Judge in Chambers of Lahore High Court dated 28-2-1996 whereby C.R. No.424 of 1991 filed by the petitioners to call in question the two concurrent judgments of the Courts below, was dismissed.

2. Bagh Ali, father of respondents Nos. l and 3 to 5 and husband of respondent No.2 owned 114 Kanals and 11 Marlas of land in Village Korzada Maliar, Tehsil Gujar Khan, District Rawalpindi (hereinafter to be called as 'the suit land'), About 15/16 days before his death deceased Bagh Ali executed a registered gift deed in favour of his maternal nephews Muhammad Ayub and Mahboob Ali sons of Jamal Din transferring the suit land in their favour. Respondent No. 1, after the death of Bagh Ali, filed a suit for declaration against the donee Muhammad Ayub and Mahboob Ali, claiming that the transfer of suit land in their favour was void. Respondents 2 to 6 were also impleaded as pro forma defendants in the suit. The precise grounds on which the transfer of suit land in favour of donees was challenged, was stated in para. 2 of the plaint as follows:

The suit was resisted by the petitioners and on the pleadings of the parties, following issues were framed by the trial Court:-- The trial Court, after recording evidence of the parties under Issue No. 1, though reached the conclusion that the gift deed was executed by the deceased Bagh Ali, but it was held that it was executed during death illness (Marzul-Maut). The trial Court, accordingly, held the transfer in favour of petitioners valid only up to 1/3 share in the suit land. The above finding of the trial Court has been upheld by the 1st Appellate Court as well as by the learned Judge in Chambers in C.R. No.424 of 1991.

3. Mr. Munir Peracha, the learned counsel for the petitioners, in seeking leave to appeal against the impugned judgment raised the following contentions. It is firstly, contended by the learned counsel that the trial Court did not frame any specific issue on the plea that the gift deed in favour of petitioners was executed by the deceased Bagh Ali during Marzul-Maut and therefore, in the absence of such an issue, no finding could be recorded in this behalf by the Courts below. The second contention of Mr. Munir Peracha, the learned counsel for the petitioners is, that the burden of proving that deceased Bagh Ali was suffering from Marzul-Maut at the time of execution of gift deed in favour of petitioners, was on respondent No. l which he miserably failed to discharge. It is lastly contended by the learned counsel that the evidence on record did not establish at all that deceased Bagh Ali was suffering from Marzul-Maut at the time of execution of gift deed in favour of petitioners in respect of suit land. The learned counsel in support of his last contention relied on the case of Shamshad Ali Shah v. Hassan Shah (PLD 1964 SC 143) and argued that respondent No. I/ plaintiff in order to succeed in his plea that deceased Bagh Ali was suffering from Marzul-Maut, at the time of execution of gift deed, was required to prove the following facts which he failed to establish: (i) Was the donor suffering at the time of the gift from a disease which was the immediate cause of his death? (ii) 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 engender in him the apprehension of death? (iii) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations a circumstance which might create in the mind of the sufferer an apprehension of death? (iv) Had the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady?"

4. Mr. Gul Zarin Kiyani, the learned counsel for the caveator supported the impugned judgment. After hearing the learned counsel for the parties, we are of the view that no case for interference with the impugned judgment is made out.

5. The plea that deceased Bagh Ali was suffering from Marzul-Maut at the time of execution of gift deed in favour of petitioners was specifically raised in the para. 2 of the plaint. The petitioners in reply to para. 2 of the plaint stated as follows in their written statement:--

6. It is true that no specific issue was framed by the trial Court on the plea that deceased Bagh Ali was suffering from Marzul-Maut at the time of execution of gift deed of suit land in favour of petitioners. However; this omission by the Courts below was not material as issue No. l as framed in the suit did cover the question of validity of the gift being contrary to law. Apart from it, both the parties were fully conscious of this controversy as would appear from their pleadings, the evidence led in the case and the trend of cross-examination of the witnesses. The learned counsel for the petitioners has also failed to show any prejudice to the petitioners in defending the suit on account of non-framing of the issues in specific terms. We, therefore, find no merit in this contention of learned counsel for the petitioners. The second objection of the learned counsel for the petitioners is that the burden of proving the fact that deceased Bagh Ali, was suffering from Marzul-Maut was on respondent No.l/plaintiff which he failed to discharge as none of his witnesses uttered a word in support of this plea. We have already reproduced earlier para. 2 of the plaint and the reply thereto by the petitioners. The petitioners in reply to the allegation in para. 2 of the plaint did admit that deceased Bagh Ali fell ill in the later part of his life and therefore, respondent No. l and his other legal heirs who were tired of his illness left him alone at the village where the petitioners devotedly looked after him until his death. It is not in dispute that at the relevant time respondent No.l./plaintiff was residing in Saudi Arabia. It is also an admitted position that the deceased Bagh Ali died within 16/17 days of the execution of the gift deed and he passed last days of his life exclusively with the petitioners. In these circumstances, the facts about the illness of deceased Bagh Ali and the nature of his illness was within the special knowledge of petitioners who alone could prove the same. The petitioners' witness Allah Ditta D.W. 1 in his evidence before the trial Court stated as follows in examination-in-chief:- D.W, further stated in cross-examination as follows: Similarly, Muhammad Ayub, D.W. 2 (petitioner No.6) in his evidence before the trial Court stated as follows, in examination-in-chief:-- In cross-examination, Muhammad Ayub (D.W.2) made the following statement:-- Another witness of the petitioners fazal Di (D.W 3) his evidence before the trial Court stated as under:- fazal Din D.W.3 when asked in cross-examination stated as follows

7. The inferences drawn by the Courts below from the above evidence that deceased Bagh Ali made the gift of the suit land in favour of petitioners during Marzul-Maut can neither be described as perverse nor based on misreading of C evidence or contrary to evidence on record so as to call for interference by this Court.

8. Mr. Muhammad Munir Peracha, the learned counsel for the petitioners relied on the case of Shamshad Ali Shah v. Hassan Shah (supra) and contended that essential facts required to be proved in support of allegation of Marzul-Maut were not established. We find no force in the submission of learned counsel. The evidence referred to above sufficiently established that deceased Bagh Ali at the time of making the gift was suffering from the disease which was the immediate p cause of his death, that the nature of the disease was such that it reasonably engender in him the apprehension of death and that the illness had incapacitated him from following the normal pursuits of life. No case for interference is made out. The petition is dismissed and leave is refused. A.A./S-1085/S Leave refused