1988 PLP 1507 (CLC)

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0. XXVI, R. 3‑‑Gift‑‑Evidence, non‑production of‑‑Effect‑‑Local Commissioner to record statement of donor‑‑Plea of appellant that illness of donor had worsened to an extent where he started seriously apprehending fast approaching death, repelled‑‑Where neither application for appointment of Local Commissioner to record statement of such donor, nor order passed thereon by Revenue Officer had been produced in evidence nothing, held., could be said in default of such evidence, as to contents of application and order thereon passed by Revenue Officer‑‑Such record could be made available to Court by plaintiffs‑‑Inference from non‑production of that record, would be that application and order thereon, contained no adverse material against donee defendants.‑iMuhammadan Law]. (d) Qanun‑e‑Shahadat (10 of 1984)‑‑ ‑‑Art . 129(g)‑‑Gift‑‑Validity‑‑Mard‑ul‑Maut‑‑Proof‑‑Non‑appearance of defendants in witness‑box‑‑Presumption‑‑Exceptions‑‑Ordinarily, a party must enter into witness‑box to give evidence in his case, upon those controversial facts which were within his knowledge‑‑Party's non‑appearance without satisfactory explanation would render his case discredited‑‑Presumption arising under provisions of art.129(g), Qanun‑e‑Shahadat, 1984, however, could not be pressed in aid against defendants, for reasons that; (i) such point was not agitated in both Courts below, and (ii) a party must succeed on the strength of his own case and not by criticism or weakness in the defence of his adversary‑‑Burden of proof being on plaintiffs they had not satisfactorily discharged same‑‑Mere non‑appearance of defendants in witness‑box, could not establish truth of case set up by plaintiffs‑‑From evidence on record, factum of donor, being in lard‑ul‑Maui, at time of gift by him, held, was not satisfactorily proved.‑‑[Muhammadan Law‑‑Burden of pro ‑‑Witness]. Principles of Nluhammadan Law by Mulla,para. 135 rel. (e) Qanun‑e‑Shahadat (10 of 1984)‑‑ ‑‑‑Art. 2(3)‑‑Civil Procedure Code (V of 1908), S.100‑‑Second appeal‑‑Scope‑‑Fact‑in‑issue, proof of‑‑Suspicion not a substitute for fact in issue‑‑Raising of some suspicion in the case of defendant/ respondent, held, would be insufficient because suspicion could never be a proper substitute for proof of a fact‑in‑issue‑‑Findings of fact could not be disturbed in second, appeal. Raja Mohammad lqbal for Appellants. Raja Aziz‑ud‑Din Ahmad for Respondents. Date of hearing: 17th April, 1988. Plaintiffs are in second appeal. 359 Kanals of land situate at mauza Bhit Sher Ali Tehsil Jhelum belonged to one Ghulam Muhaemad. He had two daughters namely; Wst. Ali Begum, Mst. Zari Begum but had no male issue. On 30‑7‑1964, village Patwari recorded an oral gift of the property in suit (359 Kanals) by Ghulam Muhammad to Mst. Ali Begum and Mst. Zari Begum. Gift was brought to the notice of village Patwari by Mst. Zari Begum. On this information, Patwari entered gift Mutation No.272. On 2‑8‑1964, Revenue Officer appointed Iftikhar Ahmad Girdawar to act as Local Commissioner for recording statement of Ghulam Muhammad at his residence. On the same day Local Commissioner proceeded to the residence of Ghulam Muhammad in village Bhit Sher Ali, recorded his statement affirming the gift and transfer of possession thereunder to the donees. This statement was made and recorded in presence of the donees and certain witnesses including Shahbaz co‑plaintiff. On the basis of the statement of the donor, mutation of names in favour of the donees took place on 14‑9‑1964. Meanwhile, Ghulam Muhammad died on 4‑8‑1964. Plaintiffs as a fifth degree collaterals of Ghulam Muhammad deceased challenged the gift by him on number of grounds and sued the donees for its avoidance and claimed relief of joint possession to the extent of 1/3rd share in the property in suit. It was averred that the property in suit was ancestral; that Ghulam Muhammad was governed by agricultural custom and had no powers to make a gift of his property; that in fact Ghulam Muhammad made no gift and gift‑mutation was simply product of fraud and fabrication; that at the time of gift, Ghulam Muhammad was not possessed of a sound disposing mind and suffered from lard‑ul‑Maut which adversely affected his capacity to make a valid donation of his property; that as the gift was made during %lard u‑ul‑Maut, it operated as a will and it being in favour of the heirs was inoperative unless assented to by the other heirs after the death of the transfer. Defendants who are real sisters, submitted joint defence by denying the plaintiffs' claim and defending the gift in their favour. Plaintiffs filed replication and reiterated the averments already made in the plaint. Material points requiring determination were put in issues as many as 9 including that of relief. Parties produced their evidence. It consisted of the oral statements of the witnesses and copies of revenue papers including an extract from the Register of deaths maintained by Union Council, Sohawa indicating that Ghulam Muhammad died on 4‑8‑1964. On consideration of this evidence, learned Senior Civil Judge, concluded that property in suit was not ancestral qua plaintiffs; that in matters of succession and alienation, deceased was governed by custom of agriculturists and that it gave permission to a sonless Jat of Jhelum district to give away his property to his daughters; that plaintiffs were fifth degree collaterals of deceased and in case gift was voided, were entitled to take 1/3rd share in the property in suit; that the gift was made and the donor at the time of the gift was in his senses and was possessed of a sound disposing mind; that proper parties were before the Court and no other co‑sharer in the khata was required to be joined. On these conclusions, suit was dismissed on 9‑2‑1966 by the Court of first instance. Plaintiffs preferred an appeal. It was heard by learned District Judge, Jhelum, who saw no merits therein and dismissed it on 18‑4‑1966. Against this decision, plaintiffs filed second appeal and urged two points in its support; (i) that on the facts established on the record, Courts below were in error in not raising the inference of Mard‑ul‑Maut; (ii) that impugned gift was violative of para 25 of West Pakistan Land Reforms Regulation

64. Second ground was not allowed to be urged and second appeal was admitted to consider the first ground only. Though the civil suit was tried on number of issues as is evident from the impugned judgments, yet at the hearing of this appeal, controversy has been narrowed down for consideration of point in issue No.6 only. Decision on issues Nos.l to 5, 7, 8 is no longer in dispute. Relation to deceased and inter se parties is not in dispute. It is not denieud that in case gift was voided on account of it suffering from death malady, plaintiffs are entitled to inherit 113rd share in the property of Ghulam Mohammad deceased. From the above, therefore, only point requiring determination is as to whether at the time of impugned gift, Ghulam Muhammad was suffering from death malady. Decision of this point hinges on evidence led in by the parties for and against. On behalf of the plaintiffs, this plea was sought to be established by Shahbaz co‑plaintiff (PW‑1), Khuda Bakhsh (PW‑3) and Muhammad Afsar (PW‑4). Reliance was also placed on copies of applications Exts.P‑6, P‑7 submitted by Shahbaz to Tehsildar. Jhelum on 3‑8‑1964, stating that Ghulam Muhammad being an old patient had lost his senses and his two daughters were out to manipulate transfer of property from him in their favour by producing some fake person. Defence was supported by Muhammad Zammurad D.W.1, Ahmad Din D.W.2 and Iftikhar Ahmad, Girdawar D.W.4 who had acted as Local Commissioner and recorded the statement of Ghulam Muhammad on 2‑8‑1964. It may be noted that defendants did not enter the witness‑box to make a supporting statement. Reasons for non‑appearance are not available on present record. As said above, P.W‑1, Shahbaz, was a plaintiff himself. Leaving out unnecessary details, no longer relevant, he deposed that Ghulam Muhammad was ailing for the past six months and at the time of the gift had lost all sense of proportions and was not in a fit mind. In cross‑examination, it was stated that Ghulam Muhammad resided separately from his daughters and used to cook his food himself except for his last eight days when his ailment deteriorated and daughters came to join and look after him and also prepared food for him. As far the land in suit, it was stated that it was under cultivation of tenants of Ghulam Muhammad but since after his death, husband of Mst. Ali Begum started cultivating it. The witness denied his presence at the time of recording of statement of Ghulam Mohammad by the Local Commissioner. Khuda Bakhsh P.W‑3 stated that Ghulam Muhammad was a T.B. patient. 8/9 days before his death, his condition deteriorated and he lost his senses. The witness admitted that Zammurad Khan, Sarbarah Lamberdar, Captain Lal Khan, Mohammad Afzal and Shahbaz plaintiff were present or the occasion of the visit of the Local Commissioner and recording of statement of Ghulam Muhammad. Witness too was present. He further deposed that both the daughters resided with their father and part of his land was under cultivation of the husband of Mst. Ali Begum. Khuda Bakhsh was resident of a different village which was situated at a distance of one mile from Bhit Sher Ali. On the illness of Ghulam Muhammad, deposition of Mohammad Afsar was identical with that of P.W‑

3. Muhammad Afsar who was a neighbour of Ghulam Muhammad and had a common courtyard with him stated that Girdawar did not visit the house of Ghulam Mohammad. This was the entire oral evidence led by the plaintiffs to establish the plea of Mard‑ul‑Maut. As against this, Muhammad Zammurad Khan D.W‑1 who is Sarbarah Lamberdar of Bhit Sher Ali deposed that Ghulam Muhammad was in his senses when he made the statement before the Local Commissioner in his presence and that of Captain Lal Khan, Mohammad Afzal etc. The witness conceded weakness in physique to Ghulam Muhammad but stated that he did not suffer from any disease and he could walk within the premises of his house but could go no far or take a ride on a mare. To the similar effect was the statement of Ahmad Din D.W‑

2. He was also present at the time of the visit of Local Commissioner and the proceedings taken by him. Iftikhar Ahmad, Girdawar D.W‑4 stated that on 2‑8‑1964 he was appointed a Local Commissioner by Tehsildar to record the statement of Ghulam Muhammad. Further stated that he proceeded to the residence of aforesaid Ghulam Muhammad on the same day, found him in his senses, recorded his statement in which he supported the gift of the land in suit in favour of his daughters as also the transfer of possession thereunder to them. As already observed, defendants did not appear to make statement either way. Having made extensive reference to the evidence of the parties in regard to place of Mard‑ul‑Maut, I shall now advert to as to what is "Mand‑ul‑Maut" and its effect on the disposition made by its sufferer. The term "hard‑ul‑Maut" has been defined in various text books of Mahomedan Law and has also been subject‑matter of comments in many decisions of the superior Courts. Mulla in his book, "Principles of Mahomedan Law" in para 135 of its Chapter X says that "A gift made by a Mahomedan during Marz‑ul‑Maut or death‑illness cannot take effect beyond a third of his estate after payment of funeral expenses and debts, unless the heirs give their consent, after the death of the donor, to the excess taking effect; nor can such a gift take effect if made in favour of an heir unless the other heirs consent thereto after the donor's death. In explanation says "A Marz‑ul‑Maut is a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death". A gift made during Mard‑ul‑Maut is neither exactly a gift nor a legacy but partakes of the nature of, both. Mardu'1 Maut means 'the disease of death', or 'the disearse which causes death'. Therefore, it is not every disease although serious and of long standing which can be so regarded. It must be a disease which causes imminent apprehension of death in the mind of its sufferer and must also prove the eventual cause of his death. In order to constitute a disease as 'the disease of death', following conditions are necessary:‑ (i) the illness must cause the death of the diseased; (ii) . the illness must cause apprehension of death in the mind of the diseased; (iii) there must be some external indicia of a serious illness. Whether or not it was a death illness, is a pure question of fact and the usual questions which arise in this behalf are:‑ (1) Was the donor suffering at the time of the gift from a sickness which proved the immediate cause of his death? (2) Was the sickness of such a nature or character as to engender in the mind and the person suffering the disease, a belief that death would be caused thereby or to create in his mind clear apprehension of death? (3) Was the sickness such as to incapacitate the sufferer from pursuing his ordinary avocations of life? (4) Did the sickness continue for such length of time as to remove or lessen the fear of immediate death or to ace‑istom the sufferer to the sickness? Objective consideration of external indicia of the disease suffered may provide an important clue to the subjective consideation of the mind of its sufferer. Mere weakness or immobility would not necessarily import death malady All the ambient circumstances clubbed together shall require consideration before giving a conclusion as to the nature of disease whether it was mardu'1 maut or not. Looked at in the light of the above principles, I shall proceed now to examine whether Ghulam Muhammad suffered from the death illness at the time of gift. There is no evidence to indicate the nature of his illness. Plaintiffs sought to establish that he was ill for the past six months and eight or nine days before, his illness had seriously worsened and he was unconscious at the time of his statement before the Local Commissioner. Plaintiffs' evidence is silent on the nature of disease. Defendants' gave evidence and denied that Ghulam Muhammad was suffering from any disease except attributing weakness to him. Ext.P‑1, an extract from register of deaths showed that Ghulam Muhammad died at the age of 60 years and gave 'fever' as his cause of death. Entry in the death register was made on 19‑8‑1964, on the report of Lal Hussain Chowkidar of the village. Bhit Sher Ali is a large and a populous village. Bette evidence could be produced by the plaintiffs in regard to the nature of disease and its effect on Ghulam Muhammad. There is also no evidence to show whether Ghulam Muhammad was ever treated by : qualified Doctor or a local Hakeem during the period of his stated He was owner of 359 Kanals of land in the village and had illness two daughters. Had he suffered from any ailment such as was suggested by the plaintiffs, it looked to be an improbable event that he would not be taken to a Doctor or a Hakeem. A glance at the gift mutation would also indicate that no such objections in regard to nature of disease was taken before the Local Commissioner, though Shahbaz was shown to be present on the occasion. In these circumstances, it 'B can be safely taken that Ghulam Muhammad suffered from fever only as was the cause given in Ext.P‑

1. It was admitted at the hearing that Ghulam Muhammad was in his senses and possessed of sound disposing mind when he admitted gift in his statement before the Local Commissioner. Moreover, objection as to death illness as such was not put forth before the Local Commissioner. As I have said above, every illness cannot be equated with death illness. Plaintiffs were obliged to prove the plea of death illness by leading convincing evidence. Oral statements of two witnesses in addition to the statement of one of the plaintiffs was hardly sufficient to prove plea of the death malady or to establish that Ghulam Muhammad was at the relevant time labouring under a serious and imminent apprehension of death. Applications Exhs.P‑6, P‑7 were filed subsequent to the statement of Ghulam Muhammad recorded on 2‑8‑1964. Office of village Patwari was shown to be at a distance of four miles from the place of residence of Ghulam Muhammad. It is true that Mst.‑ Zari Begum one of the daughters of Ghulam Muhammad had reported oral gift to the Patwari for purposes of mutation of names in their favour. This circumstance, in itself,was strong enough to prove that illness of Ghulam Muhammad had worsened to an extent where he started seriously apprehending fast approaching death and under that influence upon his mind decided to transfer his entire property to his daughters to the deprivation of his 5th degree collaterals. All that the evidence on record showed was that he had gone weak and rendered immobile. Presumably, it was for this reason that his daughter had proceeded to report the gift to the village Patwari. It is also true that an application fort C appointment of a Local Commissioner was made to the Revenue Office for recording of the statement of Ghulam Muhammad on 2‑8‑1964 ‑Neither the application nor the order passed by the Revenue Officer have been produced in evidence. In default of this evidence, nothing] can be said as to contents of the application and the order passed by ‑ the Revenue Officer. This record could be made available to the Court by the plaintiffs. In its non‑production, it can be inferred that the application and the order contained no adverse material against the defendants. Except for his daughters, Ghulam Muhammad had no near relations. Plaintiffs were 5th degree collaterals. In absence of al male issue, eagerness of Ghulam Muhammad to transfer his property to his daughters can be well‑appreciated. Raja Muhammad Iqbal, learned Advocate tried to make much capital out of non‑appearance of the defendants as witness in the case and asserted that in this event, they must earn adverse presumption to discredit the truth of their case. No doubt, the defect is there and the reasons for non‑appearance of the defendants are not available on the present record. Ordinarily, a party must enter into the witness‑box and give evidence in his case upon the facts which are directly in his knowledge relating to matters in controversy. If the party does not appear and gives no satisfactory explanation, it runs a grave risk of his case being discredited. However, presumption arising under section 114(g) Evidence Act now Article 129(g) of Qanun‑e‑Shahadat, 1984, cannot be successfully‑ pressed in aid against the respondents for two reasons. Firstly, this point was not agitated in both the Courts below and secondly, a party must succeed on the strength of its own case and not by criticism of any alleged weakness in the defence of his adversary. Burden of proof in this case lay upon the plaintiffs. They have not satisfactorily discharged it. Therefore, mere non appearance of the' defendants in the witness‑box cannot establish the truth the case set up by the plaintiffs. This contention, therefore, has no substance. From an overall examination of the evidence and probabilities of the case, I find that it has not been satisfactorily proved by plaintiffs that at the time of impugned gift by Ghulam Muhammad, he was suffering from Marz‑ul‑Maut. In taking this view, I have derived strength from the judgment of the Supreme Court in Mst. Chanan Bibi and 4 others v. Mohammad Shafi and 3 others PLDI 1977 SC

28. At the most, plaintiffs may have succeeded in raising some suspicion but that is insufficient because suspicion can never be a proper substitute for proof of a fact in issue. Second appeal is properly concluded by findings of fact which cannot be disturbed. In view of the above, appeal fails and is dismissed. In the peculiar circumstances of the case, I make no order as to costs. A. A./S‑247/L Appeal dismissed.