P (PLP)

S. A. RAHMAN, J.‑One Maula Dad owned a house and 384 kanals and 2 marlas of land in village Mohra Allo and 51 kanals and 2 marlas of land in village Dhore in Jhelum District. By a registered‑deed, dated 3rd August, 1848, he gifted his property situated in Mohra Allo in favour of his wife, lust. Saidan, and her brother's sons Sher Khan and Jahan Khan, who were also collaterals of Maula Dad. The donor died on the 9th, August, 1948. Feroze, a collateral of Maula Dad and his next heir, sued, after his death, for possession of his 7/8th share under Muslim Law'in the entire propirty of Maula Dad. The gift made by him in favour of his wife and her nephews was attacked as void on tlk grounds inter alia that it was executed under undue influence and while the donor was, suffering from death illness. The suit was resisted by the donees. The trial Sub‑Judge found that Maula Dad made the gift when he was in apprehension of imminent death, and therefore the gift could only be upheld to the extent of 1/3rd of the property involved as if it was a testamentary disposition,' so far as the non‑heirs, namely, Sher Khan and Jahan Khan were concerned. He further held that the widow of the deceased Mst. Saidan, defendant No. 1, was entitled to take 1/4th of the remaining 2/3rd share, i.e., 1/6th of the whole property. The plaintiff was entitled, on this view, as residuary, to take half the property. In respect of the property in village Dhore, which had not formed the subject‑matter of the gift, the plaintiff was found entitled to 3/4th of the property situate in that village. A decree was passed accordingly in his favour, but the parties were left to bear their own costs. Both parties appealed to the learned District Judge, Jhelum. The judgment and decree of the trial Court were upheld and both the appeals were dismissed with costs. The defendants donees have come up in second appeal to this Court. The main question calling for decision in this case is whether the impugned gift was effected when the donor was suffering from death illness or not. If the answer to that question is in the affirmative, then the practical effect would be that the gift deed in the absence of consent by all the heirs of the deceased, would operate merely as a testamentary disposition and would be effective only to the extent of 1/3rd of the property involved in favour of non‑heirs. On the other hand, if the answer is to be in the negative, then the gift, as a whole, would have to be upheld. In I. L. R. 1931, 12 Lah., 683 (Abdul Ahad Khan v. Ahmad Nawaz), a Division Bench of this Court laid down the following tests for determining whether a donor was suffering from Marz‑ul‑maut: (1) That the donor was suffering at the time of disposition from a disease which was the immediate cause of his death. (2) That the disease was such as 'to engender in him the apprehension of death, and (3) That the illness incapacitated him from the pursuit of his ordinary avocations and prevented him from saying his prayers while standing. It was further held that the onus lay on the party alleging that the gift was made under such conditions as to attract the doctrine of Marz‑ul‑maut, to prove the necessary facts. Ordinarily, a finding on this point would not be liable to be disturbed in second appeal, being one of fact. In the present case, how? ever, learned counsel for the appellants has argued that the finding given by the learned District Judge was vitiated by misreading of the evidence on record and its misinterpretation. In our opinion, this contention has force. The learned District Judge has observed to the effect that even according to the defendants' witnesses, at the time of the execution of the gift‑deed, Maula Dad was unable to move about or to sit on his charpoy and that the attack from which he suffered was so severe that even the Hakim, who was treating Maula Dad, thought that the end was approaching and advised him to undergo treatment by a specialist. We have been taken through the evidence on record and find that these observations are unwarranted. It is, therefore, open to us to resort to an independent appraisal of the evidence on the record. On behalf of the plaintiff', six witnesses were examined besides Feroze himself. Farman Ali (P. W. 1) is a cousin of the deceased Maula Dad, the latter being also his son‑in‑law. The witness, however, admitted that his own daughter had quarrelled with her husband and had come away to her father's house some ten months before Maula Dad died. Maula Dad had another wife and that had led to the dispute. That other wife is, one of the donees in the present case. Obviously therefore, Farman Ali's statement cannot be accepted as a ' disin?terested one. If he is to be believed, Jahan Khan and Sher Khan to whose house the deceased had shifted in his last illness, were constantly pestering Maula Dad to make a gift in their favour and bad even threatened to cease serving him if he failed to do so. At the time of the gift, the witness alleged, he was present and, according to him, Maula Dad could only say "hun " do answer to questions and could not talk or sit up. In cross?examination, he, however, admitted that no pressure was brought to bear on the donor when the gift‑deed was executed and that the contents of the document were read over to him by Qazi Ghulam Ahmad, Pleader, who was present, and then by the Raib‑Tahsildar,. who registered the document. The second witness Nur Khan (P, W. 2) merely stated that the deceased had shifted to the donee's house some 9 or 10 days before his death and that he had grown very weak at that time. The witness used to visit him and he thought he was suffering from fever. Gheba (P. W. 3) went even further than Farman Ali and alleged that in his presence, Jahan Khan and Sher Khan had threatened to throw out the deceased's cot from their house until he agreed to make a gift in their favour. No other, person was present at the time of the threat, according to this witness: The witness is a nephew of Farman Ali (P. W. 1) and this provides an index to his mentality. Malik (P: W. 4) also made a similar statement and alleged that at the time of the registra?tion of the gift‑deed, Maula Dad was unable to talk or to sit up. He could only make himself understood by gestures. It is significant, however, that this witness was unable to say who the scribe of the gift‑deed was. He further deposed that the deed was executed inside the house while the witness remained outside. On the contrary, the other evidence shows that the gift‑deed was executed while the deceased and the other persons were in the verandah of the house. P. W. 5 Ghulam Qadir claimed to have visited the deceased some 12 or 13 days before his death. He asserted that in his presence the prospective donees threatened to turn out the ailing Maula Dad from their house, unless he consented to gift his property to them. In his cross‑examination, he evaded answering 'questions which may have established a relationship between his brother's wife and the plaintiff's wife. On his own showing, he was a chance witness and belongs to a different village. P. W. 6' Nawab Khan also belongs to another village which is at a distance of 11 or '2 miles from Mohra Allo. According to him, he visited the deceased some 8 or 10 days before he died and his condition then was very bad as he was unable to talk or to make any movement. He was not in his senses. In this cross‑examination, he, however, stultified himself by saying that the contents of the gift‑deed were dictated by Maula Dad to the scribe who was the Munshi of Qazi Ghulam Ahmad, Pleader. He further acknowledged that the contents of the deed were read over by the Sub‑Registrar to the donor who then thumb‑marked it. This evidence is extremely unimpressive. In rebuttal, the defendants examined four witnesses, besides Sher Khan, one of the donees. D. W. 1 Qazi Ghulam Ahmad, Pleader, stated that the gift‑deed was read over to the donor in his presence and he then gave his, thumb‑impression on it. In cross‑examination, he stated that the patwari was present and be gave the Khasra Numbers of the gifted land to the donor. It is significant that no question was put to him about the mental or physical condition of the donor. D. W. 2 Nawab Ali is the Munshi of Qazi Ghulam Ahmad and he is the scribe of' the gift‑deed Exh. D. 1. He also supports the state?ment of his master. D. W. 3 Subah Sadiq is one of the attesting witnesses of the gift‑deed. According to him, the donor was in full possession of his senses at that time. He had been suffering from asthma, but he had fits only once a month. At the time of the execution of the gift‑deed, it did' not appear that Maula Dad was in danger of dying. In cross‑examination, be stated that at the suggestion of Qazi Ghulam Ahmad, Maula Dad lay down on his cot although he was sitting up previously. The witness deposed that Maula Dad was fit enough to move about on that day, though he died 8 or 10 days later. Much' capital was attempted to be made, out of the admission of this witness that Maula Dad was told to lie down by Qazi Ghulam Ahmad. Considering that Maula Dad was an asthmatic old man of fifty, even if he was told not to unnecessarily strain himself, it does not follow that at that time he was in immediate expectation of death. D. W. 4 Qazi Muhammad Sharif is a Hakim who had treated Maula Dad for two months before his death. He stated that the deceased suffered from asthma and used to come to him on horseback for treatment. The last occasion the witness saw the deceased was some seven days before his death, at his house. On that occasion the witness advised him to consult one Dr. Tare of Rawalpindi because the treatment prescribed by witness had not done him much good. The witness, however, added that on this occasion, too, Maula Dad could walk about with ease. The mere fact that this Hakim had the honesty to advise the deceased to consult a doctor can not lead to the inference that he had considered his case to be hopeless. Asthma is a lingering disease, which is generally not fatal. On a review of the whole evidence on record, we have no hesitation in holding that Maula Dad was not only in full posses?sion of his senses and therefore was in a disposing mind at the time of the execution of the gift‑deed, but that he was also not so ill as to entertain an immediate apprehension of death. It could not be said, therefore, that he was suffering from death illness. There is no satisfactory evidence, to show that he was unable to move about or stand up at that time. The fact again that Maula Dad expired on the 7th day after the execution of 'the deed, although a relevant fact, cannot by itself suffice for the conclusion that at the relevant time he was suffering from Mars‑ul‑maut. It is only where a man's disease has become so much aggravated that he begins to apprehend that death was more probable than his chance to live that the person can be considered to be suffering from Marz‑ul‑maut: This was the view adopted in a similar case of an asthma patient, .in Mst. Zamro v. Sher Muhammad (A. I. R. 1934 Pesh. 91). The crux in all these cases is to find out the state of mind of the deceased in order to ascertain whether there was such a preponderance of apprehension of death at the time of the execution of the deed in question the death seemed to him more probable than life: This was the view taken by a Division Bench of this Court in Rashid‑ud‑Din v. Nasir‑ud‑Din (A. I. R. 1929 Lab. 721). We find ourselves in respectful agreement with this view. In Sayyed Raza Ali v. Qazi Nur‑ud‑Din (A. I . R. 1925 Cal., 537) it was laid down that the mere fact that the donor was suffering from phthysis or that he died a few days after the execution of the deed is not enough to establish what in Muhammadan. Law is technically called Marz‑ul‑maut. On the contrary, it was remarked that lingering diseases like phthysis have been taken by Muhammadan lawyers to remove the suspicion of apprehension of immediate death on the mind of the patient. Each case has, of course, to be judged on its own facts and circumstances. The right test in all such cases is whether the deed of gift was executed by the donor under apprehension of death or not, as was authoritatively laid down by their Lordships of the Privy Council in Fatimah Bibi v. Sheikh Alamad Bakhsh (35 Indian Appeals, 67). We find it impossible to sustain the contention on the‑evidence in this case that Maula Dad entertained any such apprehension at the time of the execution of the gift‑deed. The appeal, therefore, succeeds and is hereby allowed with costs. K. M. A.????????????????????????????????????????????????????????? ?????????????????????? Appeal accepted.