JAVED IQBAL, J.---This appeal with leave of the Court is directed against the judgment passed by learned Division Bench of the Lahore High Court, Lahore, whereby R.F.A bearing No,26 of, 1998 preferred on behalf of appellants has been dismissed and the judgment/decree, dated 31-10-1997 passed by the learned Civil Judge, Lahore, has been kept in tact.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "the parties are brothers and sisters inter se. Their father Syed Altaf Hussain Bokhari was owner of Bungalow No,63-C/1, Gulberg-III, Lahore. Syed Altaf Hussain Bokhari died on,18-11-1986. The appellants filed a suit in which they challenged the gift of the aforesaid bungalow made by the deceased in favour of respondent alone. It was further pleaded that in any event the gift was void as it was made during marz-ul-maut. The suit was tried by the learned,Civil Judge who by his elaborate judgment came to the conclusion that a valid gift has been made by the deceased father of the parties in favour of the respondent. The other plea that at the time of gift Syed Altaf Hussain suffered from marz-ul-maut was also held not to have been proved. The suit of the appellants was dismissed by the trial Court on 31=10-1997." Being aggrieved, an appeal was preferred by the appellant which has been dismissed vide judgment impugned.
3. Leave was granted by this Court by means of order, dated 5-3-2002 which is reproduced hereinbelow to appreciate the legal and factual aspects of the controversy:-- "This is a petition under Article 185(3) of the Constitution against a judgment and decree, dated 1- 3-2001 passed by a learned Division Bench of the, Lahore High Court Lahore in R.F.A No. 26 of 1998 which affirmed a judgment and decree, dated 31-10-1997 passed by a learned Civil Judge at Lahore.
(2)The subject-matter of the litigation is a Bungalow bearing No.63-C/I situated in Gulburg-III, Lahore, which was owned by Syed Altaf Hussain Bokhari who was the father of the petitioners and who was also the father of one Syeda Azra Zaineb Bokhari who since dead and who was the wife of respondents No.1 and the mother of respondents No.2 to 5. The said Syed Altaf Hussain Bokhari died on 18-11-1986. It was claimed by the said Syeda Azra Zaineb Bokhari that her late father had gifted the above mentioned house to her during his life time disentitling the petitioners from any share in the said property. This led the petitioners to the filing of suit on 4-4-1987 which suit was however dismissed through a judgment and decree, dated 31-10-1997 by a learned Civil Judge 1st Class at Lahore. The petitioners questioned the said judgment and decree before the Lahore High Court through the above mentioned R.F.A No. 26 of 1998 which was also dismissed through a judgment, dated 1-3-2001.
(3) The learned counsel for the petitioners submits that the alleged oral gift made by the late Syed Altaf Hussain Bokhari in favour of Syeda Azra Zaineb Bokhari did not stand proved on record; that the alleged acknowledgement of the said oral gift, dated 30-10-1986 also lacked proof and finally that in any case the said oral gift, even if made, had been made during "MARZUL-MAUT" when the said late Syed Altaf Hussain Bokhari was apprehending imminent danger of death.
(4) Leave is granted to, inter alia, consider whether the learned Trial Court as also the learned High Court had correctly found that the facturn of oral gift stood sufficiently proved on record and whether the said gift had not been made by the donor while he was suffering from "MARZ-UL- MAUT".
4. Mr. Amir Alam Khan, learned Advocate Supreme Court entered appearance on behalf of appellants and contended strenuously that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is argued that the learned. High Court has failed to discuss the evidence led by appellants and the judgment impugned is in violation of the provisions as contained in Order 41 Rule 31, C.P.C. And on this score alone it is liable to be set aside. It is urged with vehemence that Exh.D/1 (acknowledgement of disposition of property) could not be proved by leading forthright and convincing evidence which aspect of the matter has been ignored causing serious prejudice against the appellants. It is next contended, that the grave contradictions in the statements of D.
Ws. Casting doubts on the genuineness and authenticity of acknowledgment of disposition of property (Exh. D/1) have been ignored without any rhyme and reasons. It is next contended that there was no evidence worth the name regarding oral gift on the record and in absence whereof it could not have been held that property in question was ever gifted in favour of the respondents who attempted to usurp the shares of his own brothers and sister. It is-contended strenuously that the principle of MARZ-ULMAUT has not been taken into consideration in spite of the fact that sufficient evidence has come on record showing that the donor was apprehending his imminent death due to suffering from carcinoma of lungs and therefore, oral gift-deed if any had no legal sanctity behind it.
5. Sh. Zamir Hussain, learned Advocate Supreme Court appeared on behalf of the respondents and supported the judgment impugned for the reasons enumerated therein with further submission that the oral gift has been proved by the respondents who led worthy of credence evidence and besides that the principle of MARZ-UL-MAUT could not have been invoked as the condition of donor was neither critical nor he was apprehending imminent death.
6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of record of the case. We have scanned the entire evidence with eminent assistance of the learned counsel. The judgment/decree, dated 31-10-1997 passed by the learned Civil Judge as well a the judgment impugned have been perused carefully. After having gone through the entire record of the case, the pivotal question which needs determination would be as to whether factum of gift has been proved or otherwise? A careful scrutiny of the entire evidence would reveal that the respondents have succeeded in proving the factum oi gift by producing forthright and convincing evidence. The acknowledgement of disposition of property (Exh.D/1) is indicative of the fact that the oral gift was made by Mr. Altaf Hussain Bokhari (donor) in favour of Syeda Azhra Zaineb Bokhari (donee). It is worth mentioning that Exh.D/1 (acknowledgement of disposition of property) was attested by the marginal witnesses namely Sh. Muhammad Kausar D.W.1 and Safdar Ali Shah D.W.2.
We have perused their statements with care and caution. Sh. Muhammad Kausar D.W.1 has stated in an unequivocal manner that Exh.D/1 (acknowledgement of disposition of property), was signed by him. He also deposed that Syed Altaf Hussain Bokhari (donor) was quite normal and it could not be guessed that he was a patient of Cancer. He stood firm to the test of cross-examination and nothing beneficial could be extracted. Safdar Ali Shah D.W.2 has supported the statement of Sh.
Muhammad Kausar, D.W.1 on all material particulars. He deposed in a categoric manner that he had signed Exh.D/l (acknowledgement of disposition of property). He denied the suggestion that Ex.D/1 (acknowledgement of disposition of property) was not signed in presence of donor and the donee. Tariq Mehmood D.W.3 a representative of the Excise Department produced a-letter (Exh.
D/4) wherein a request was made by the donee regarding change of the ownership of the property. He also submitted that house tax pertaining to the property was paid by the donee with effect from 1987 till 30-6-1994. Atta-ul-Haq D.W .5 has also supported the factum of gift by stating that donor had sought advice as he intended to gift the property to the donee. It is further stated that donor was advised that verbal gift could he made in favour of donee and therefore, deed of acknowledgement of disposition of property (Exh.D/1) was written. He could not state with certainty regarding the signature of the donor authenticity and genuineness whereof was not challenged seriously. Khawar Qadeer (D.W.6) has stated in an unambiguous manner that donor told him regarding the factum of gift in favour of the donee on 30-10-1986 with further instruction that rent of the house shall be received by the donee in future. It is worth-mentioning that Khawar Qadeer (D.W.6) was the Manager of Karim Ceramics Company Ltd. By whom the property in question was obtained on rent from the donor. In sequel to above mentioned discussion we are of the considered view that factum of gift has been proved by the respondents.
7. The principle of Marz-ul-Maut could not have been invoked by the appellants as it could not be proved by adducing any cogent evidence including medical evidence that Syed Altaf Hussain Bokhari (donor) was apprehending imminent death. It is worth-mentioning that the witnesses produced by the appellant had stated on 30th October that the donor was alright and it is the date when the property in question was gifted to the donee. It has also come on record that Syed Altaf Hussain Bolchari (donor) used to drive his car and also go for walk which could not have been done in case of serious ailments. As mentioned hereinabove no medical evidence worth the name could be led showing that Syed Altaf Hussain Bokhari was apprehending imminent death and accordingly the principle of Marz-ul-Maut could not be invoked. In this regard we are fortified by the dictum as laid down in the following authorities:-- "Kammon v. Allah Bux (NLR 1991 SD 366), Shamshad Ali Shah and others v. Syed Hassan Shah and others '(PLD 1964 SC 143); Mst. Chanan Bibi and 4 others v. Muhammad Shafi and others (PLD 1977 SC 28); Ibrahim Ghulam Arif v. Saiboo (34 IA 167); Noor Muhammad Khan v. Habibullah Khan (PLD 1994 SC 650); Hamidullah v. Khurshid Ahmed Khan (PLD 1958 SC (Pak.) 516); Fazal Muhammad Bhati v. Saeeda Akthar (1993 SCMR 2018), Jahan Khan v. Feroze (PLD 1951 Lahore 433); Rashid-u-Din v.
Nazir-ud-Din (AIR 1929 Lah, 721); Syed Raza Ali v. Kazi Nur-udDin (AIR 1925 Cal. 537)".
8. We are not persuaded to agree with learned Advocate Supreme Court on behalf of appellants that there was no justification to make such gift by depriving the sons and unmarried daughter for the reason that under Islamic Law a preferential gift is not void and it is within the competency of the father to give preference to one heir. It may not be in accordance with equality but it is not prohibited and cannot 'be termed as void. In this regard reference can be made to the following authorities:- "Noor Muhammad Khan v. Habibullah Khan (PLD 1994 SC 650), Al-Qur'an: Surah Al-Araaf, Ayah 31; Surah Asrar, Ayah 26; Surah `Furgan, Ayah 67; Surah Baqar, Ayah 219; Majmooae-Qawaneen-e- Islam by'Dr. Tanzil-ur-Rahman, Vol. III; Badayal-Sanae by Imam Qasani, published in Egypt, 1910, Vol. VI, p.127; Kitabul Miazan al-Kubra by Imam Shirani Shafii, published in Egypt, Vol. II, p. 100; Nawab Amjad Ali Khan v. Mst. Muhammadi Begum 11 Moore's IA 517; Ahmad Khan v. Mst. Zamroot Jan AIR 1950 Pcsh. 11 and Saifullah v. Ghulam Jabbar PLD 1955 Lah. 191 ref."
9. All the contentions agitated before this Court have been dilated upon and decided vide judgment impugned which being well-based does not admit interference. The appeal being devoid of merit is dismissed. No order as to costs.