2007 PLP 167 (CLC)

SYED HAMID ALI SHAH, J.

Facts of the case necessary for the disposal of the instant revision petition are that Mehtab Din predecessor of the respondents claiming to be legal heir of Charagh Din, filed a suit for declaration and possession. Case of the respondents as set out in the plaint is that the suit-land was owned by Charagh Din, who died and on his death the property devolved upon his legal heirs according to the pedigree table given in para.2 of the plaint. The legal heirs were entitled to inherit the land but the petitioners got Mutation No.1776 sanctioned in their favour on the basis of Tamleek-e-Warasat dated 28-9-1986. It was also asserted in the plaint that.Rupt Roznamcha Waqiati was entered on 25-8-1986, when Charagh Din was on death bed. Tamleek-e-Warasat is the form of will and has no sanctity. The petitioners resisted the suit, filed written statement, raising therein various preliminary objections. Learned trial Court framed seven issues and the parties led their respective evidence. Learned trial Court after recording evidence and hearing the parties, decreed the suit vide judgment and decree dated 7-6-1994. Petitioners challenged the impugned judgment and decree in appeal, which was dismissed vide order, dated 16-1-1999, hence this revision petition.

2. Learned counsel for the petitioners has submitted that Charagh Din was husband of petitioner No.3 and father of petitioner No.2 who owned 30 Kanals, 12 Marlas land in Village Sheikham, Tehsil Chunian, District Kasur. Deceased Charagh Din vide Tamleek dated 25-8-1986 transferred 1/8th share through Mutation No.1776 in favour of petitioner No.1 while 7/8th share was transferred to petitioner No.2. The mutation was sanctioned on 29-9-1986. At the time of sanction of mutation Charagh Din was present, who subsequently died on 24-4-1987. Mahtab Din (predecessor of respondent) who was brother of the deceased Charagh Din challenged the mutation in appeal before the Collector, which was accepted on 24-4-1989. The petitioners preferred an appeal before the Commissioner (Revenue) Lahore against the decision of Collector, which was accepted vide order, dated 12-7-1989. The order of the Additional Commissioner (Revenue) was challenged in a suit for declaration on 31-7-1989, wherein the impugned mutation, on the basis of Tamleek was challenged along with the order passed by the Revenue Authorities in their hierarchy.

3. No revenue official was made party as such suit of the plaintiff was bad for misjoinder and non-joinder of necessary parties.

4. Learned counsel then submitted that the Courts below have confused the term Tamleek as will. The will takes effect after the death of the stater while in the instant case the mutation was sanctioned in favour of petitioners in the lifetime of Charagh Din. Learned counsel then submitted that Charagh Din himself appeared at the time when Rupt was entered and was identified by Lambardar and Pattidar of the village. Cause of death of deceased Charagh Din as per death certificate is fever, which cannot be treated as Marz-ul-Maut. Respondents neither in their plaint nor in evidence brought on record anything to prove that cause of death of Charagh Din was sickness which could be termed as Marz-ul-Maut and not the simple fever. Learned counsel has submitted that Rupt Exh.P.1 was proved in accordance with law. D.W.3 has admitted his signatures and deposed that thumb-mark on the Rupt is that of Lambardar. The witness recognized the signatures of Lambardar. The Courts below have misread the evidence. The submissions made by the petitioners were not considered by the Courts below. The suit was not maintainable under section 172 of the Land Revenue Act, 1957 but the Courts below have not given due weightage to it.

5. Learned counsel for the respondents, on the other hand, has fully supported the impugned judgment. He has submitted that the concurrent findings of two Courts below do not call for any interference at the revisional stage. Case of Biafo Industries v. Federation of Pakistan 2000 CLC 171 was referred in support of this contention. Learned counsel has then argued that as per section 135 of Muhammadan Law, gift in favour of a legal heir is not valid unless the other legal heirs show their consent in this respect. He has lastly contended that the impugned judgments and decrees were passed on the basis of evidence and petitioner has failed to make out a case of misreading and non-reading of evidence.

6. Heard learned counsel for the parties and examined the record.

7. Appellate Court below has held that Exh.P.1 Rupt Roznamcha Waqiati, nowhere stipulates that property was gifted. Words gift or Hibba are missing in the Rupt. (Exh.P.1) thus, oral gift/Hibba was to be proved independently. Since the term used in Exh.P.1 is Wassiyat, therefore, no transaction of gift took place. Learned Court has interpreted the contents of Rupt being a will relying upon 5th line of - Exh.P.1. which reads:-- Both the Courts below have drawn conclusion that Exh.P.1/Exh.D.1 is will solely on the basis of word " " used in the fifth line of the Rupt. Courts below have banked upon their isolated expression and have totally ignored the document as whole. It is settled law that terms of document and intention of parties as to the character of document must be gathered from considering the terms of document as a whole and not A from any isolated expression. Entire document is to be taken into consideration while interpreting a document. Cases of Mst. Zebun Nisa v. Atta Shabir and others PLD 1966 Pesh. 147 and Saifuddin Kazi v. Moslim Ali Howalder and others PLD 1960 Dacca 555 can be referred. While passing the impugned judgments and decrees, Courts below have failed to undertake the exercise of going through the document as a whole. Bare perusal of Exh.P.1 reveals that late Charagh Din appeared and got recorded his statement that he in his life time had gifted 1/8th share of his property to his wife Khairan and 7/8th share to his daughter Mst. Mohandan Bibi through Tamleek-e-Warassat. The document further reveals that Charagh Din after registration of mutation was declared landless. Property of Charagh Din deceased was transferred to petitioner No.1 to the extent of 4 Kanals, 4 Marlas as per Khata No.226 and petitioner No.2 to the extent of 22 Kanals, 4 Marlas as per Khata No.227. This had happened during the lifetime of Charagh Din. Rupt No.568 Roznamcha Waqiati dated 28-8-1986, is admitted by both the parties, petitioners have produced it as Exh.P.1 while respondents produced the same as Exh.D.l. Mutation 1776 was sanctioned on 29-9-1986, on the basis of Exh.P.1. D.W.4 Malik Quttab Khan Tehsildar stated in his evidence that while posted as Naib-Tehsildar Pattoki, Charagh Din appeared before him and made the statement, in view whereof, mutation was attested. He stated further that deceased was in a fit mental condition to record his statement. The statement of such official, who is totally impartial is required to be given due weightage. Patwari also appeared as witness and verified from his record the existence of Rupt, recorded validly.

8. Will takes effect after the death of a person while gift during the lifetime of donor. In the instant case the land stood transferred to the petitioners during the lifetime of Charagh Din. Exh.P.1 if read as whole, reflects the intention of the donor, as to the transfer of property through gift/Tamleek. It is for that reason that it is mentioned specifically in the Rupt that after Tamleek the donor has relinquished the property. Mere use of word " " does not make the transaction as will. The word " " is used in isolation and is contrary to the intention of the donor. Courts below misread the document and have erred while holding it as will. Exh.P.l is clearly a transaction of gift. Gift in favour of a legal heir can validly be made and there is no prohibition. While holding so I am fortified by the decision of the Honourable Supreme Court rendered in the case of Noor Muhammad Khan and 3 others v. Habib Ullah Khan and 7 others PLD 1994 SC 650.

9. Reverting to the second objection that Charagh Din has made gift in favour of petitioners during Marz-ul-Maut and any gift or transaction in such condition, is invalid. Charagh Din was personally present and recorded his statement when Rupt No.564 was prepared. He was also present at the time of sanction of mutation. D.W.4 Malik Qutab Khan found him mentally fit to make statement and then recorded his statement. Presence of deceased on both the occasions speaks about his health. The cause of death, as per death certificate (Exh.P.6) was fever. It cannot be said in these circumstances that Charagh Din was suffering from a disease which was aggravated so that much that he apprehended that his death was more imminent than chance of living. He, therefore, cannot be considered to suffering from Marz-ul-Maut. There is no evidence to prove that Charagh Din was suffering from a disease which aggravated to an extent that he apprehended death and in that condition he made gift. The gift cannot be declared void on such hypothesis. Gift made during old age by donor who remained bed ridden for many years or by donor who was patient of paralysis, was held to be valid. Reliance in this respect can be made to the cases of Mst. Kammon and others v. Allah Bakhsh and others NLR 1990 SD 515, Chiragh Bibi and others v. Karim Bakhsh and others NLR 1988 Civil 179 and Khalil Ahmad v. Abdul Jabbar Khan and others 2005 SCMR 911.

10. Applying the above principles on the facts of the present case, I find that Charagh Din had gifted his property to the petitioners validly through Exh.P.1 and the Courts below have erroneously held that Exh.P.1 is will. Charagh Din had not gifted the property in the imminent danger of death and cannot be said to have been made during Marz-ul-Maut, viewed in such a perspective both the Courts below committed material irregularity.

11. For the foregoing, this revision petition is accepted and impugned judgments and decrees passed by the Courts below are set aside. Resultantly the suit filed by the respondents is dismissed with no order as to costs. M.H./K-64/L Revision allowed.