P L D 1964 Supreme Court 173 (PLP)

B. Z. KAIKAUS, J.‑This appeal arises out of a suit filed by Mst. Asmat Begum respondent No. 1 against her father's mother her father's sister arid her own mother (the last mentioned being a pro forma defendant) for half share of the property belonging to her deceased father Abdul Salam of which he had made a gift in favour of his mother, but which gift was according to her invalid for a number of reasons. The trial Court that is the Senior Sub‑Judge, Kohat, dismissed the suit and on appeal before the Additional District Judge, Kohat, failed. On further appeal, however, the High Court of West Pakistan, Peshawar Bench, came to the conclusion that the donor was at the time of making the gift suffering from marzul maut or death illness and, therefore, the gift was in accordance with Muhammadan Law invalid. The High Court set aside the judgments of the Courts below and decreed the suit as prayed for. It granted, however, a certificate to the defendants to file an appeal to this Court because the value of the property in dispute exceeded Rs. 10,

000. The only point with which we are concerned in this appeal is whether the gift in dispute was affected by the doctrine of marzul maut. Abdul Salam deceased was a clerk in the frontier con stabulary at Hangu, District Kohat. He has been suffering from phthisis for a long time and on the 22nd July 1946, he was, in accordance with the recommendation of the Civil Surgeon of Kohat, admitted into the T. B. Sanitorium at Dadar. Abdul Salam stayed in the sanitorium till 26‑8‑1946, but there was a deterioration instead of any improvement in his condition. On 26‑8‑1946, he applied that he should be permitted to return home and stated in the application that he would not make any claim for travelling expenses etc. According to Doctor Saeed Ahmad who was the Medical Superintendent of the sanitorium the condition of Abdul Salam was at that time hopeless. On the 5th September 1946, Abdul Salam made a gift in favour of his mother of all the property that he owned. It included agricultural land and Urban Immovable Property. At the time of the gift he had a wife, a daughter and mother. His relations with his wife were admittedly strained and the wife was not living with him. His daughter Mst. Asmat Begum plaintiff‑respondent had been born only a few days before and it has been the case of the plaintiff that he had been kept in ignorance of her birth. His physical condition in accordance with the statement of Dr. Muhammad Arshad Khan who had been produced by the defendants was such that he could not even move and the Sub‑Registrar was called to the house of Abdul Salam for the registration of the gift deed. When the deed was going to be registered the deceased made some protest that his sister should also be included in the gift, but his mother consoled him and then he did accept the contents of the deed. The daughter finds no mention anywhere in the gift deed. The law as to the applicability of the doctrine of marzul maut is not in any doubt and may be briefly stated. When a person is under apprehension of death on account of a disease from which he is suffering, the gift which he makes though expressed to take effect during his life is really intended to be a testamentary disposition and can only take effect as such. What is to be proved in such a case is whether the donor was under apprehension of death on account of the malady from which he was suffering at the time when he made the gift. The apprehension to be proved is apprehension of fast approaching death or to put it in the words of the Privy Council in Ibrahim Goolam Ariff v. Saibor and others (34 I A 167), there should be in the donor a sense of the imminence of death. Apprehension of death being a state of mind, the only persons who can give direct evidence about it is the person who has the apprehension and, therefore, after the death of the donor this fact can be established only by circumstantial evidence. No hard and fast rule can be laid down as to when such a state of mind can be inferred and every case has to be decided on its own facts. In reported cases some of which have been cited before us by learned counsel for the appellant there are statements as to the circumstances from which an apprehension of death can be inferred and learned counsel for the appellant relies on them for the proposition that proof of those circumstances is essential to the proof of death‑illness. It is said for instance that in order that a malady may be a death‑illness the patient should be unable to attend to his ordinary avocations. It should be understood that the fact which is to be established in accordance with Muslim Law is only the apprehension of death resulting from a malady and any other proposition laid down in judgments as to the circum stances which establish death‑illness is really a proposition relating, to evidence. It is not impossible to conceive of a malady in which the patient can till the last carry on his avocations parti cularly when those avocations do not call for various physical effort. In some cases it is stated that a serious malady which has continued for a long time is not death‑illness. It is obvious that if a malady does not result in death for a sufficiently long period then any apprehension which it may have created in the beginning has a tendency to disappear. But this is not a rule relating to the doctrine of marzul maut and is only a rule relating to proof of apprehension of death. We are of the opinion that considering all the circumstances the inference raised by the High Court as to the existence of apprehension of death was a reasonable one. The deceased who was an old T. B. patient had been admitted to Dadar sanitorium when his condition became serious and in the Sanitorium his condition deteriorated. He himself had applied for his discharge and he had from the hospital gone to his house and not to any other hospital. After he reached home he was, in accordance with the evidence of Dr. Muhammad Arshad Khan not being treated. The mother of Abdul Salam did not allow Dr. Muhammad Arshad Khan to treat Abdul Salam. It has not been the case of the defendants that some other doctor was attending to the deceased at that time and it would appear that Abdul Salam and his family had knowledge of his case being hopeless. There are other circumstances which point to the conclusion that he was making to all intents and purposes a testamentary disposition. There is no explanation on behalf of the appellants as to why he should have made a gift of the whole of his property to his mother. The reason for the gift as stated in the deed is "in lieu of affection and service." This does not explain why the gift was made on 5th September 1946, thirteen days before his death or why the gift was of the whole of the property. Another circumstance to be noted is that Abdul Salam raised a protest as to why his sister had not been included in the gift. This protest is more consistent with a transfer which he was making at the time of his death than with an ordinary transfer inter vivos. Mr. Abdul Qayyum Khan raised on a statement by Dr. Muhammad Arshad Khan that the deceased had, when he visited the deceased after his return from Dadar, asked him to secure accommodation for him at Fort Lackhart. Learned counsel urges that if he had the intention of visiting Fort Lackhart he could not have been hopeless about his recovery. But the statement of Dr. Muhammad Arshad Khan loses much of its significance, because he himself accepts that Abdul Salam was not capable of moving at that time and it is also to be kept in mind that Dr. Muhammad Arshad Khan is not quite sure of this request by Abdul Salam and has qualified his statement as to the request by the words "as far as I remember." Mr. Abdul Qayyum also urged that all that was proved in this case was that Abdul Salam was suffering from phthisis and that by itself was not sufficient to show that he was under apprehension of death. We have already stated after reference to the statements of Dr. Saeed Ahmad Khan, Medical Superintendent, T. B. Sanitorium, Dadar, and Dr. Muhammad Arshad Khan that Abdul Salam as well as his relatives appeared to know of his condition having become hopeless and it is not a simple case of phthisis. In the gift deed there is no mention whatsoever of the daughter that is, respondent No. 1, who had been born only few days before. There appears to be force in the contention that Abdul Salam had been kept in ignorance of the existence of a daughter for otherwise it is difficult to accept that he would totally ignore his daughter and make no provision for her. However, the present case is being decided only on the basis of the doctrine of marzul maut and there is no need to go into the effect of his misconception. This appeal fails and is dismissed with costs. A. H. Appeal dismissed.