1994 PLP 1870 (SCMR)

(b) Muhammadan Law‑‑‑ ‑‑‑‑Gift‑‑‑Transaction of gift‑‑‑Plaintiff, an heir of donor had failed to prove that transaction of gift in respect of land in question, made by donor was outcome of undue influence exercised by donee ‑‑‑All the Courts below had upheld validity of gift‑‑‑Findings of Courts below was supported by evidence on record‑‑‑Leave to appeal was' refused in circumstances‑‑‑Constitution of Pakistan (1973), Art. 185(3). Muhammad Munir Peracha, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 8th February, 1994: MANZOOR HUSSAIN SIAL, J.‑‑‑Muhammad Bashir petitioner herein, seeks leave to appeal against judgment and decree dated 25‑9‑1993, of the Lahore High Court, whereby Civil Revision No. 1454 of 1993, was dismissed. The petitioner on 15‑1‑1991, filed a suit challenging the validity of gift deed dated 10‑8‑1980, made in respect of land measuring 86 Kanals by his father, namely Budha in favour of Allah Ditta respondent on the grounds that the same was made as a result of under influence exercised on him by the respondents. The suit was resisted by the respondents. It was asserted by them through a joint written statement filed in the Court that the donor made the gift in fit state of mind and in exercise of his discretion voluntarily. The learned Civil Judge, Sialkot, after framing necessary issues arising out of the pleadings of the parties and recording evidence led by them, dismissed the suit on 8‑12‑1991. The petitioner challenged the judgment and decree of the Civil Court in appeal but the same was also dismissed on 26‑5‑1993, by the District Judge, Sialkot. Being dissatisfied with the concurrent judgments of the subordinate Courts dismissing the petitioner's suit he preferred a revision petition in. the High Court which was dismissed vide impugned judgment passed on 25‑9‑1993. Hence this petition for leave to appeal. Learned, counsel for petitioner contended that the' donor could not alienate the property by way' of gift in favour of respondent No.l so as to deprive the petitioner who is his heir. It was also contended that the learned Courts below wrongly held that the donor had gifted his property when he was in fit state of mind and by exercising the discretion voluntarily. As regards the first contention a Muslim donor has unfettered power to alienate his property by way of gift or otherwise during his lifetime provided he is in proper state of health and in exercise of his independent voluntary discretion. As regards the other contentions the same were raised before the High Court and the learned Judge repelled the same by holding as under:‑‑ "I am afraid, the contentions raised by the petitioner's learned counsel do not carry much weight. The evidence on the record furnished by the parties clearly shows that at the time of making gift Budha was in a fit state of mind and capable of exercising his discretion voluntarily. Being the owner of the disputed land he enjoyed full power of disposal of the property. The averments contained in paras. Nos.3 and 4 of the plaint show that the plaintiff had set up the plea that due to old age Budha deceased had lost his mental faculties and could not distinguish between good and bad and for that ‑reasons his widow Mst. Jalal Bibi, his son Allah Ditta and daughter Mst. Akbar Bibi exploited the position and got the deed of `Hibba' executed in favour of Allah Ditta respondent No.l on 10‑8‑1980. However, the petitioner's own witness Muhammad Akbar P.W1, stated that Budha Khan deceased was in a fit state of mind. He also admitted that Allah Ditta respondent No.l used to serve his father and that he was in cultivating possession of the land for the last 15/20 years. He further stated that Budha Khan used to walk about before his death. Faqir Sien P.W.2 also admitted that Budha Khan deceased was all right before the death and used to talk properly. Muhammad Bashir petitioner who appeared as P.W. 3, stated that his father Budha died at the age of 100 years and that he was not mentally balanced. Apart from the fact that the statement of the petitioner regarding the alleged mental imbalance of his father was contradicted by the statements of P.W.1 and P.W.2, the petitioner did not state that at the time of execution of the gift deed his father was mentally imbalanced or incapable of distinguishing between good and bad. Thus the case as set up in the plaint was not established by the petitioner/plaintiff. The deceased appears to have made gift in favour of his son Allah Ditta, respondent No.l for the services rendered to him by the donee. The Courts below appear to have properly appraised the evidence on the record and rightly concluded that the gift was not the result of undue influence of the respondents. It is significant that after making the gift the deceased remained alive for about 10 years and never challenged the gift or complained to any body that the respondents had obtained the gift by exercising undue influence on him."' It is significant to mention that all the Courts below have unanimously held I that the petitioner had failed to prove that the transaction of gift in respect of the suit land made by the donor was outcome of undue influence exercised bye the respondent. This petition has no substance. It is accordingly dismissed and leave is refused. A.A./M‑2050/S Leave refused.