P L D 1994 Supreme Court 650 (PLP)
NOOR MUHA MAD KHAN and l, others‑‑‑Appellants Versus HABIBULLAH KHAN and 27 others‑‑‑Respondents
| Citation | P L D 1994 Supreme Court 650 (PLP) |
| Forum / Court | ‑‑‑‑Gift ‑‑‑Leave to appeal was granted to consider the question whether the gifts made by donor were obtained by duress, coercion and that the donor was not in a fit state of mind‑‑‑ Constitution of Pakistan (1973), Art:185(3). p. 655A |
| Bench Members | , Nasim Hassan Shah, CJ., Saleem Akhtar and Manzoor Hussain Sial, JJ |
| Parties | NOOR MUHA MAD KHAN and l, others‑‑‑Appellants Versus HABIBULLAH KHAN and 27 others‑‑‑Respondents |
Q1: What are the key laws and sections cited in P L D 1994 Supreme Court 650 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1994 Supreme Court 650 (PLP)?
The case was heard and decided by the ‑‑‑‑Gift ‑‑‑Leave to appeal was granted to consider the question whether the gifts made by donor were obtained by duress, coercion and that the donor was not in a fit state of mind‑‑‑ Constitution of Pakistan (1973), Art:185(3). p. 655A bench comprising: , Nasim Hassan Shah, CJ., Saleem Akhtar and Manzoor Hussain Sial, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1994 Supreme Court 650 (PLP) (NOOR MUHA MAD KHAN and l, others‑‑‑Appellants Versus HABIBULLAH KHAN and 27 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- A.R. Sheikh, Senior Advocate Supreme Court and Mian Shakir Ullah Jan, Advocate‑on‑Record (absent) for Appellants.
- Abid Hasan Minto, Senior Advocate Supreme Court, Imtiaz M. Khan, Advocate‑on‑Record for Respondents.
- Dates of Hearing: 25th October, 1993 and 4th April, 1994.
Headnotes / Summary
(On appeal from the judgment of the Peshawar High Court dated 1‑10‑1985 passed in RFA No. 44 of 1970). (a) Muhammadan Law‑‑‑ ‑‑‑‑Gift ‑‑‑Leave to appeal was granted to consider the question whether the gifts made by donor were obtained by duress, coercion and that the donor was not in a fit state of mind‑‑‑ Constitution of Pakistan (1973), Art:185(3). [p. 655]A (b) Muhammadan Law‑‑‑ ‑‑‑‑ Gift‑‑‑ Marz‑ul‑Maut,_ doctrine of ‑‑‑Principles governing the applicability of Marz‑ul‑Maut. Following are the factors which the Court should consider to sustain the conclusion that the transaction was made under pressure of Marz‑ul‑Maut: (i) Was the donor suffering at the time of 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 length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady. [p. 658] B Mst. Chanan Bibi v. Muhammad Shafi PLD 1977 SC 28; Ibrahim Ghulam Ariff v. Saiboo 34 IA 167 and Hamidullah v. Khurshid Ahmad Khan PLD 1958 SC (Pak.) 516 ref. (c) Muhammadan Law‑‑‑ ‑‑‑‑Gift‑‑‑ Gift of immovable property otherwise validly made in favour of an heir completely excluding other heirs is not void. . Under Muslim Law a person owning a property has a right to dispose of wholly or partially and there can be no objection to it. A property can be disposed of by sale, gift, will or creating a Waqf. The other noteworthy characteristic of Muslim Law is that an heir can claim a right in the property only after the death of the predecessor from whom he is to inherit the property. [p. 659] C A gift of immovable property otherwise validly made in favour of an heir completely excluding other heirs is not void. [p. 659] D The Holy Qur'an does not prohibit a gift in favour of an heir excluding other heirs. [p. 659] E The Holy Qur'an enjoins upon the Muslims and the entire world to spend money in a proper, judicious and beneficial manner. It prohibits Asraaf (wasteful expenses) and also enjoins to spend money not only on oneself alone, but on one's relations, neighbours , orphans, slaves, travellers, destitute and needy persons. The manner for spending the money as laid down cuts the root of wasteful expenditure and expenses made on luxuries, lavishness, pomp and show. The main criterion laid down by the Holy Qur'an is that a man should remain within the limits of justice and fairness. Adl‑o‑Insaf and Ehsan (justice and equity) are the cornerstone of Islamic Jurisprudence and daily life. On the basis of these broad principles laid down by the Holy Qur'an some of the jurists are of the opinion that any gift made with the intention to exclude an heir would not be doing justice amongst the heirs. It will create dissension, heart‑burning and rivalry amongst heirs which should be avoided. [p. 659] F Maintaining equality amongst the children brings peace and to give preference to one over the other creates disturbance and therefore the principle of equality should be practised. But if any person gifts the property to one heir thereby depriving the other, then irrespective of the fact that the heir deprived is a pious and religious person or illiterate and characterless, such gift will not be void. The reason given is that the donor disposes of the property of which he is the sole owner and no other person has a right in it. Although such a. gift will not do justice amongst the heirs, it will not be void. [p. 660] G Father must observe equality amongst his sons (heirs). If a father gives preference to one heir, then such preferential gift will not be void. [p. 660] H Under Islamic Law a preferential gift is not: void. It may be, as described by some jurists, sinful, but as it is not prohibited, it cannot be declared to be void. [p. 662] 1 Al‑Qur'an: Surah Al‑Araaf, Ayah 31; Surah Asrar, Ayah 26; Surah Furqan, Ayah 67; Surah Baqar, Ayah 219; Majmooa‑e‑Qawaneen‑e‑Islam by Dr. Tanzil‑ur‑Rahman, Vol. III; Baday‑al‑Sanae by Imam Qasani, published in Egypt, 1910, Vol. VI, p. 127; Kitabul Mizan al‑Kubra by Imam Shirani Shafii, published in Egypt, Vo1.II, p.100; Nawab Amjad Ali Khan v. Mst. Muhammadi Begum 11 Moore's IA 517; Ahmad Khan v. Mst. Zamroot Jan AIR 1950 Pesh. 11 and Saifullah v. Ghulam Jabbar PLD 1955 Lah.191 ref. (d) Muhammadan Law‑‑‑ ‑‑‑‑ Gift‑‑‑ Mushaa, principle of‑‑‑Application‑‑‑Strict principle of Mushaa could be applied only to gifts which are vague, incomplete or uncertain ‑‑‑Gift to two or, more persons of an undivided share in a property capable of division is not void, it is only invalid (Fasid) which irregularity is cured if the property is specifically earmarked or is partitioned or possession is taken‑‑‑Where in each gift the donees had taken possession of the property and the donor had divested himself of the possession of the property, the gifts made by the donor were valid and not void. The gift of an individual share in a property capable of division is not void. It is only invalid (Fasid) and this irregularity is cured if the property is specifically earmarked or is partitioned or possession is taken. A property capable of partition can be gifted to two or more donees. Such gift would be valid provided the donor divests himself of the property, specific shares of each donee have been stated or the donees agree to each of their shares and possession has been delivered to the donees. The gift of a share in the Zamindari or Taluka which admits of partition is valid and is not subject to condition that the share should be divided and delivered separately to each donee. Where in each gift the donee had taken possession of the property and the share of each donee had been earmarked and the donor had divested himself of the possession of the property, the gifts made by the donor were valid and not void. [p. 667] P The literal meaning of Mushaa is "confusion". According to strict Hanafi law the gift of Mushaa, the undivided part of a property incapable of partition, is valid, but if it is capable of partition, the gift is invalid. This view of Imam Abu Hanifa has been dissented with by his two disciples who have taken an enlightened view holding that gifts of the whole property to two or more persons is valid as there is no "mixture of property". [p. 663] J The principle of Mushaa has to be applied liberally more suited to practicability, justice and equity. Its rigidity has been relaxed. The strict principle of Mushaa could be applied only to gifts which are vague, incomplete or uncertain. [p. 663] K According to the Muslim Law though there is difference of opinion between the doctors as to the validity of a gift to two persons or more of property that admits of partition, such a gift is not void, and possession clears the defect arising from the shares of the donees not having been defined. [p. 663] L A gift to two or more donees jointly is valid nothstanding that the‑, donor has not divided the shares of the donees, nor given separate possession. Whether the shares given to the donees be equal or unequal once the donor has parted with complete possession in favour of the donees, the donees become transferees of the property and the gift is complete. [p. 664] M A gift which is capable of partition is invalid but not void and the gift being invalid may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. [p. 664] N A gift of land made jointly to two or more persons in specific shares is valid. Such gift may be irregular but not void. [p. 664J O Fatawa‑e‑Alamgiri; Mulla's Principles of Muhammadan Law; Bailie's Digest of Muhammadan Law, pp 515 & 516; Tara v. Jodha and others 1882 PR 160; Sheikh Muhammad Mumtaz Ahmed and others v. Zubeda Jan and others 11888‑891 16 IA 205 (PC); ILR 16 All. 460 (PC); Hafiz‑un‑Nisa v. Jowaher Singh AIR. 1921 Oudh 209; Mst. Zaibun Nisa. v. Irshad Hassan and others 89 IC 284; Zahooran and others v. Abdul Islam and others AIR 1930 Oudh 71; Ebrahim Ali Bhai Akuji v. Bai Asi and others AIR 1934 Bom. 21; Hameed Ullah v. Ahmed Ullah AIR 1936 All. 473; Zafar Ali Khan and others v. Nasimannessa Bibi AIR 1937 Cal. 500; Musa Baba Bandra and others v. Baidi Sahib, Faqir Muhammad Bandra and others AIR 1938 Bom. 84; Bibi Kanij Fatima v. Jai Narain and others AIR 1944 Pat. 334; "u Baig Afzal Baig and others v. Gulzar Baig Lal Baig and others AIR 1946 Nag. 357; Muhammad Yousaf and another v. Hasina Yusuf AIR 1948 Bombay 61; Bahadar v. Jan Muhammad PLD 1960 Kar. 745 and Muhammad Ibrahim and others v. Muhammad Shah and others PLD 1963 BJ 1 ref. Aurangzeb and others v. Dawood Khan and others PLD 1957 Pesh. 85 approved. Respondent No. 6 in person.
Judgment & Decree
FAZAL ILAHI KHAN, J.‑‑‑This appeal with leave of the‑ Court in service matter is directed against the judgment and order dated 11‑1‑1992 of the learned Federal Service Tribunal, Islamabad passed in Appeal No. L53(R) of 1991. . _
2. Facts relevant for the purpose of this appeal briefly stated are that Rehmat Khan, respondent ,was serving in appellants' Department as Sub Postmaster, Kharian Cantt. when he was found suffering from an eye disease which rendered him unfit for the proper and efficient discharge of his duties. The respondent was, therefore, to appear before a Medical Board. Accordingly he appeared on 30‑7‑1983 it declared him unfit far further useful discharge of his duties. A Standing Invaliding Committee issued on Invaliding Certificate declaring him permanent incapacitated for further service in the Department. Neither challenge the same nor apply for review of his case by the second medical board as required by F.R. 10‑A(c). Consequently the respondent retired from service with effect from 30‑7‑1983 and vide order dated 16‑8‑1983 the respondent was allowed "invalid pension". The entire dues including pension was received.
3. It was on 16‑2‑1985 that respondent made an application :..to the Postmaster‑General, Northern‑ Circle,. Rawalpindi for arrangement of his medical examination for the purposes of enabling him to rejoin the department because his eyesight had improved. His request was turned down vide order dated 6‑8‑1985 and on his repeated applications the Director‑General informed him by letter dated 27- 8‑1987 that his request for, reinstatement into service could not be accepted. Ultimately the respondent made an application to the Prime Minister on 8‑12‑1988 on which his case was referred to the Review Committee who recommended his medical examination by a Medical Board to be constituted by the Director‑General Health. The Medical Board so constituted examined respondent and found him fit for duty as his vision had since improved. After the report his case for reinstatement was considered by the Establishment Division and rejected on the ground of it being hopelessly barred by time by .an order dated 11‑3‑1991. This order was appealed against under section 4 of the Service Tribunals Act, 1973 before the Federal Service Tribunal, Islamabad. The learned Tribunal vide order dated 11‑1‑1992 ordered his reinstatement into service with all back benefits with the direction to treat the period of his absence as if he was on duty. He was to return the pensionary benefits as per rules.
4. Leave was granted that the provision of F.R. 10‑A(c)(i), upon which reliance has been placed by the Service Tribunal, was not attracted to the case and that the same could be invoked soon after the retirement and not after such a long time after availing of the pensionary benefits etc. In addition to the above objection it was contended before us that the Federation of Pakistan, being a necessary party and having not been impleaded as party in the appeal, no order of . reinstatement could have been passed. That respondent was informed of rejection of his prayer on 16‑8‑1983, therefore, his appeal filed on 24‑4‑1991 seeking reinstatement was hopelessly barred by time. That the constitution of the second Medical Board at the instance of the Review Committee was illegal. That reinstatement of an employee could only be ordered in public interest which is not the case,
5. We have first to take up the contention of the learned counsel for the petitioners; whether an employee invalidated and incapacitated during tenure of his service can be re‑employed if subsequently at any stage he is declared and certified that he' can efficiently discharge his duties even if he has availed of his invalidity pension and dues. The learned Tribunal in its judgment has relied on Fundamental Rule 10, section 1, Chapter. III which. deals with general condition of service and it provides that after a Government servant is certified to be permanently invalidated to efficient discharge of his duties by the authority concerned such Government servant may within 7 days of the receipt by him of the official intimation of the finding of the medical authority apply to the Director‑General Health for review of his case by a second Medical Board. Admittedly in the present case respondent did not challenge the decision of the medical authority and received his invalidity pension etc. However, when subsequently his vision improved and he found fit for efficiently discharging his duties that he made efforts to be examined by the medical board in which he ultimately succeeded. He was certified by the medical board appointed by the competent authority fit for discharging his duties in the service. Rule 519 of Chapter XXI of the Civil Service Regulations dealing with the "re‑employment of pensioners" reads as follows: "After Invalid Pension: ‑
519. There is no bar to the re‑employment of an officer who has regained health after obtaining invalid pension, or if an officer is invalided as being incapacitated for employment in a particular branch of the service, to his re‑employment in some other branch of the service. The rules In such a case as to refunding gratuity, drawing pension, and counting service, the same as in the. case of re - employment after compensation pension."
6. The learned Tribunal has also relied on Nasim Akhtar v. Superintendent of Post Offices and others, a judgment in (Appeal No. ?70(R) of 1984) by the Tribunal, the facts whereof are identical with the present case. In the precedent case Nasim Akhtar initially declared medically unfit remained out of service for 7 years, was ordered to be re‑instated into service subject to .re‑examination and medical fitness by the Board.
7. With regard to the non‑impleadment of Federation of Pakistan it is not denied that the appellant contested the appeal before the learned Tribunal on merits without any objection, therefore, at this stage no such objection can be raised specially when no prejudice is caused. The objection with regard to bar of limitation has also been properly dealt with by the learned Tribunal. For all these reasons there being no infirmity in the judgment of the learned Tribunal the appeal' stands dismissed with no order as to costs. AA./D‑106/S Appeal dismissed,