1988 PLP 1238 (SCMR)

ALI HUSSAIN QAZILBASH, J.‑‑Hakim Din respondent (now represented by his L. Rs) and five others claiming to be fifth degree collaterals of one Arura brought a suit for possession of 1/2 share of land described in the plaint, situate in Mauza Dugree, Tehsil and District Sialkot. Their case was that the land acquired by Arura was ancestral and he was governed by custom; that he died on 23‑1‑1957 at the age of 70 or 80 years and that he made a gift of the disputed land to Mst. Barkat Bibi (now appellant) on 16‑1‑1957, i.e. , only seven days prior to his death. They challenged the validity of the gift through the present suit on the ground that under customary law such gift could not be made, that the gift was invalid because its possession was not delivered to Mst.Barkat Bibi and that the gift was made at the time when the mental and physical condition of Arura, donor, was not normal. The suit was contested, as a result of which as many as eleven issues were framed. The learned trial Court after recording the evidence led by the parties decreed the suit of the respondents vide its judgment dated 13‑11‑1961. An appeal was taken by the appellant before the learned District Judge but the same too was dismissed on 18‑1‑1963. Then a Regular Second Appeal was filed in the High Court and it was during the pendency of this appeal that Hakim Din, one of the respondents, died on 8‑7‑1969 but his legal representatives were not brought on the record, therefore, a learned Single Judge of the Lahore High Court on the statement of the learned counsel for the appellant on 9‑5‑1974 consigned the appeal as having abated in toto.

2. Leave was granted in this case to consider whether in view of the circumstances of the case the appeal had abated in toto.

3. We have heard the learned counsel for the parties and have gone through the judgments of the Courts below. May be that the decision of the learned Single Judge that the appeal has abated is not correct. But we find that both the Courts while discussing issues 4 to 8, which pertained to the competency of Arura, a customary land‑holder, to make a gift and its very validity, have concurrently held that not only the gift was invalid in that the same was made under undue influence and its possession which is an essential ingredient of a valid gift was not delivered to the donee, but Arura the last male holder of the property, being Arain by caste, could not at all make any gift because he was governed by custom.

4. We have examined the arguments of the learned counsel in the light of the findings of the Courts below and we find that the learned counsel for the appellant has not been able to make out any case here before us to come to a finding different from the one arrived at by the Courts below.

5. The view, therefore, we take is that the gift made by Arura in favour of Mst. Barkat Bibi appellant is invalid and of` ho legal effect. The suit property in the light of section 2‑A of the West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (X III of 1983) shall devolve upon the heirs of Arura under the Muhammadan law. The appeal is, therefore, allowed to the above extent and the decrees of the Courts below will be amended accordingly. However, there will be no order as to costs. M.Y.H./B‑54/S Appeal allowed.