2000 PLP 2937 (YLR)

Date of hearing: 27th July, 1999. This judgment shall dispose of Civil Revisions Nos.421 and 422 of 1996, as they proceed against the common judgment dismissing two civil appeals filed by the petitioners.

2. The suit land was owned by one Chiragh Din son of Allah Ditta. He died on 10‑3‑1982. Vide Mutation No.476, attested on 25‑2‑1982, he‑transferred 105 Kanals and 18 Marlas of land to his wife, Mst. Saleh Bibi, while through Mutation No.477 attested on the same date, he transferred 96 Kanals, and 3 Marlas of land to his sister Mst. Hussain Bibi. Muhammad Din and Taj Din sons of Khera, claiming to be the collaterals of the said Chiragh Din, separately filed two suits for possession of their respective shares of inheritance in the said estate of Chiragh. Din. Their case was that Chiragh Din did not make any gift and at the time the mutations are said to have been entered and attested, he was not in his senses, as he was suffering from Marzul Maut. The said two ladies contested the suits by filing written statements and alleging that Chiragh Din had made a valid gift in their favour. The learned trial Court framed the. following issues:‑‑‑ "(1) Whether the plaintiff is entitled to inherit from Chiragh Din deceased, if so, what are the respective shares of the parties? OPP (1‑A) Whether the suit is not maintainable in its present form? OPD (1‑B) Whether the suit has been insufficiently valued for purposes of court‑fee and jurisdiction? OPD (2) Whether Mutations Nos. 476 and 477 are illegal, fictitious and ineffective against the rights of the plaintiff? OPP (3) Whether the plaintiff is entitled to the possession of the suit property? OPP (4) Relief." Evidence of the parties was recorded. Both the suits were decreed. vide judgment and decree, dated 1'8‑2‑1988. " Hussain Bibi accepted the said decision. However, the legal representatives of Mst. Saleh Bibi, the widow of Chiragh Din, filed two separate appeals, which were heard by a learned Additional District Judge, Faisalabad, who dismissed the same by a single judgment, dated 13‑11‑1995.

3. Mr. S. M..Masood, learned counsel for the petitioners (legal representatives of Mst. Saleh Bibi) contends that even if the findings of the learned Courts below to the effect that Chiragh Din was suffering from Marzul Maut, are accepted, then the gift will take effect as a will and his clients are entitled to 1/3rd of the property subject‑matter of the gift in favour of Mst. Saleh Bibi. He has also tried to argue that the evidence in the case has been misread by the learned Courts below, Mian Waheed Akhtar, learned counsel for the contesting respondent, on the other hand, has supported the impugned judgments and decrees.

4. I have gone through the copies of the records appended with the files of the two civil revisions with the assistance of the learned counsel for the parties. The first contention of the learned counsel for the petitioners is without any basis. Mst. Saleh Bibi was the widow of Chiragh Din and as such his heir. Under the Muslim Law a will cannot be made validly in favour of an heir unless and until the other heirs consent to the same both at the time of making of will and also after the death of the testator. As regards the second half‑hearted argument is concerned, the same is also without any force. Primarily it was for the petitioners/donees to prove the transaction evidenced by the mutation of which they were the beneficiaries. They have produced a Patwari D.W.2, who had entered the mutations on 18‑2‑1982. D.W.3 is the Revenue Officer, who attested the mutations. This witness has admitted that he did not know Chiragh‑Din and that the deceased was identified by Muhammad Siddtque Lumberdar and Ismail Pattidar. D.W.4 is Muhammad Ali, one of the petitioners. He has stated that the said two persons were alive when his statement was being recorded. There is no explanation forthcoming on record, neither has any reason been provided by the learned counsel for the petitioners as to why the said two persons were not produced to support the testimony of the Patwari and the Revenue Officer. This is thus, case where best available evidence has been withheld without any good or sufficient cause. On the other hand, the contesting respondents had led sufficient evidence in the form of the hospital record and officials to show that the deceased was in hospital on 18‑2‑1982 when the mutation is said to be entered as also on 25‑2‑1982, when the mutation is said to be attested. The deceased is stated to be suffering from paraplegia according to hospital record, P.W.4 a Medical Officer of Hospital has stated with reference to the record that Chiragh Din was admitted on 1‑3‑1982 and died on 10‑3‑1982 in the same hospital. The deceased was suffering from cancer of the lungs and the growth had travelled into bones of the body, liver and brain, which has completely disabled the deceased, who was unable to move. The effect of the said malignant disease could very well have resulted in paraplegia also. Be that as it may, the learned Courts below have recorded concurrent findings of fact, which are fully supported by the evidence on record. No misreading or non‑reading of evidence has been pointed out. It has also been mentioned that the other donee has not appealed against the judgment and decree of the learned trial Court. No case for interference by this Court under section 115, C.P.C. has been made out. Both the civil revisions are dismissed leaving the parties to bear their own costs. H.B.T./M‑369/L Petitions dismissed.