1. AMANULLAH KHAN YASINZAI, J.---This First Appeal under section 96 C.P.0 is directed against the Judgment and decree dated 30-4-1998, passed by learned Senior Civil Judge-II, Quetta, whereby the suit filed by respondents 1 and 2 was decreed. Briefly the facts are that, respondents 1 and 2 filed a suit for declaration, partition, possession, mesne profit and rendition of accounts against the appellants and other respondents. It was asserted in the plaint that the respondents-plaintiffs are daughters of late Mir Qadir Bakhsh Zehri, while appellants 1 to 4 are his son, widow and daughters, while other respondents are the legal heirs of late Zafar Iqbal Zehri, who died during the life time of his father Mir Qadir Bakhsh Zehri. As per averments, made in the plaint, Mir Qadir Bakhsh Zehri died on 21-4-1986 and left behind the appellants and respondents as his legal heirs. In. His life time, Mir Qadir Bakhsh Zehri left huge properties and it was also averred that he had purchased some of the properties in the name of different persons. The details of properties, as given in the schedule, attached to the plaint are as follows:- "Schedule of Properties and assets left by Mir Qadir Bakhsh Zehri.
QUETTA
(1) Mauza Tarkha, Gardath Singh Tappa Baleli, Tehsil Quetta, Khewat No,8/13 Khasra. No,20 Kitas measuring 719 rods 5 poles.
(2) Mahal Chakal Inayat Khan Mauza, Kansi Tappa Saddar Tehsil Quetta. Khasra No,31 measuring 2 rods 29 Poles in the name of Mir Nabi Bakhsh Zehri.
(3) Mahal Ghshrna Khuddo Mauza Kansi Tappa Saddar Khasra Nos.32, 33 and 34 Khewat No,48 Khatoni No,62 measuring 1 rod 1 pole in the name of Mir Nabi Bakhsh Zehri.
(4) Mahal Sirki Kalan Mauza Sirki Tappa Saddar Tehsil Quetta 7 pieces measuring 10 rods 10 poles in the name of Mir Nabi Bakhsh Zehri, Khasra Nos. 1597/1224/ 445/1, 1599/1224, 445/1, 15598/1224/ 445/1441/ 443/1596/1598/ 12224/445/1, 1600/ 1224/445/1.
(5) Mahal and Mauza Ward No, 10 Tappa Urban Tehsil and District, Quetta bearing Khewat No,51 Khatoni No,54 khasra No,131 measuring 48575 Sq. Feet. A Bungalow is constructed over it. The property is in the name of Mir Wan Qadir and Mir Ihsan Qadir sons of late Mir Qadir Bakhsh Zehri.
DISTRICT CHAGHAI
(1) Khasra No,319, Mauza said Daroo Saddar Dalbandin measuring 14 acres 1 rod 2 poles (1/3rd share as Bazgar lath Band).
(2) Agricultural land situated in Tehsil Dalbandin bearing Khasra No,105 Khatoni No,151 Khasra No,3I6 measuring 39 rods 20 poles (1/3rd share is of late Mir Qadir Bakhsh Zehri).
(3) Khasra Nos.166, 279, 280, 276, 277; 283 measuring 270 Acres 1 rode 22 poles in Mauza Peeshuk Halqa Saddar Teshil Dalbandin District Chaghai (1/4th Share 67 acres and 15 poles).
(4) Khasra No,216 measuring 19 acres 3 rods 37 poles in Mauza Alangi Halqa Saddar Tehsil Dalbandin, District Chaghai.
(5) Shops bearing Khasra Nos.17-18, 90 and 91 measuring 2449 Sq. Feet situated in Naukandi Bazar, District Chaghai.
(6) Houses bearing Khasra Nos.224 and 227 measuring 30,000. Sq. Feet situated in Naukandi Bazar, District Chaghai.
2. PEET FEEDER DERA MURAD JAMAL1.
(1) Agricultural land measuring 500 acres.
3. KARACHI.
(1) Bungalow No,35-Khayaban Hafiz, measuring 4000 Sq. Yards.
(2) Bungalow No,146/E-2, Block-2 PECHS, Karachi.
(3) Property bearing No,GF-3 Building No,16 Sea-View Apartment, Sea-View Township Defence Housing Society Clifton, Karachi.
(4) Property bearing No,45/1I, B-5th Street, Defence Housing Society, Clifton Cantonment, Karachi.
(5) Property bearing No,45/1, B-5th Street, Defence Housing Society, Clifton Cantonment, Karachi..
(6) Property FF-2 Building No,15, Sea-View Apartment, Sea-View Township, Defence Housing Society, Clifton Cantonment, Karachi.
4. MIR QADIR BAKHSH AND BROTHERS (REGISTERED FIRM NO.309) AND MIR QADIR BAKHSH REGISTERED FIRM NO.332)
(1) Coal Mines No,ML-53 (980).
(2) Coal Mines No,ML-53 (463). situated in Sanjdi Tehsil Mastung, Kalat along with Machinery, Wood work, Fittings, Toob, Mining Equipements and Transport, vehicles and installation thereon.
5. NATIONAL MARBLES INDUSTRIES. Marbles Processing Factory, situated at F-7, S.I.T.E., Karachi, Machinery Vehicles and equipment and building over it MOVABLES. Jewelry, Cash in hand, Cash in Banks, money lent to various persons, household articles like electronic appliances, carpets, furniture etc. Are all with the defendants who are bound to furnish the details supported by affidavits for proper assessments and partition." It was further averred that, late Mir Qadir Bakhsh was seriously ill and in the state of `Marz-ul-Maut', he had executed a WILL and Gift Deed in favour of appellants, which were obtained fraudulently, as late Qadir Bakhsh was incapacitated to execute the said documents. The suit was resisted by appellant and other respondents in their written statement. Out of the pleadings, following Issues were framed for determination:--
(1) Whether the suit is barred by time?
(2) Whether the suit is bad for mis-joinder of parties?
(3) Whether the suit is bad for multiple cause of action?
(4) Whether this Court has no territorial jurisdiction over the matter in dispute?
(5) Whether the plaintiffs are entitled to their share in the properties and assets of Late Mir Qadir Bakhsh Zehri?
(6) Whether the property as mentioned in schedule annexed with the plaint are owned by Late Mir Qadir Bakhsh Zehri, or not? If so to what extent?
(7) Whether the gift deed executed by Late Mir Qadir Bakhsh Zehri is illegal and void and of no effect?
(8) What are the accounts of various business of firms wherein Late Qadir Bakhsh Zehri was shareholder, if so whether the plaintiffs are entitled up to their share in the same?
(9) Whether the plaintiffs are entitled to the decree claimed for?
(10) Relief? The plaintiff-respondents, after adducing their evidence, got recorded statement of their Attorney.
6. However, none appeared on behalf of the appellants and other respondents. The learned Civil Judge-I, Quetta, ultimately decreed the suit to the extent of some of the properties, vide Judgment dated 30-5-1996. An appeal was preferred by the respondents before this Court, which was partly accepted vide Judgment dated 30-9-1997 and case was remanded to the Senior Civil Judge, Quetta, who after hearing the parties, has decreed the suit, vide impugned Judgment. Hence this appeal. Mr. Mujeeb Ahmad Hashmi, learned counsel appeared for appellants. Mr. Mumtaz Hussain Bagri, learned Counsel, assisted by Mr.Ali Ahmad Kurd, Advocate, represented the respondents 1 and 2, whereas Mr. Shakeel Ahmad, learned counsel, appeared for other respondents. It is worth mentioning that during pendency of the suit, a compromise was effected between the appellants and respondents. 1, thus her name was deleted from the appeal. A perusal of record reveals that properties at Serials Nos.2 and 3 of the Schedule being Exhs.P/2 and P/3 were deleted, vide compromise deed arrived at between the parties on 17-3-1998. The dispute regarding the Coal Mines was settled during the pendency of suit. The properties situated in Nukundi being Exhs.P/11 to P/14 were also ordered to be deleted, on the application of respondents 1 and 2, on the basis of a compromise between the parties. It is pertinent to mention that the suit was decreed to the extent of following properties:- "The suit of the plaintiffs is decreed in the following terms:--
(i) The plaintiff and the defendants are entitled to their respective shares, as prescribed by Sharia in law.
7. (a..) In the 1/2 share of Mir Qadir Bakhsh in the
(1) Shop bearing Nos.17; 18 measuring 1310 sq. Feet.
(2) Shop bearing Khasra Nos.90-91 measuring 1139 Sq. Feet.
(3) A House bearing Khasra Nos.227, 224 measuring 300 Sq. Feet. All the three properties situated at bazaar, Nukandi.
(b) In the agricultural lands baring Khata No,105 Khatooni No,151, Khasra No,316 measuring 39 Rods 22 Poles situated at District Dalbandin (in the 1/3 share of Mir Qadir Bakhsh Zehri).
(c) In the agricultural land bearing Khata No,4 Khatooni No,60, Khasra Nos.166, 279, 280 three pieces measuring 822 Rods 35 poles, Khata No,40 Khatooni No,61, Khasra Nos.276, 277, 83 three pieces Measuring 258 Poles and 17 Poles situated at Dalbandin (1/4 share of Mir Qadir Bakhsh Zehri).
(d) In the agricultural land bearing Khata No,104 Khatooni No,150, Khasra No,319, measuring 57 Rods 2 Poles situated at Dalbandin (in the 1/3 share of Mir Qadir Bakhsh Zehri).
(e) In the property bearing Khasra No,216, Khata No,105, Khatooni No,151 measuring 79 Rods 37 Poles situated at Dalbandin owned by late Mir Qadir Bakhsh Zehri.
(f) In property Bungalow No,35 Khayaban-e-Hafiz, Defence Housing Society vest in the name of Mir Qadir Bakhsh Zehri.
(ii) Properties the description of which are given above is ordered to be partitioned with metes and bounds at the spot, and cash share holder be handed over his respective share, and if this arrangement is practically not possible the parties be given option to keep an amount on the properties and if any one or more is/are interested to purchase the same, he/they can do so, by giving the share in the shape of money to other shareholders, but this can only be done with the mutual consent of all the parties. If both of the above arrangements fail, then the properties be put .To an open auction by the Nazir of the Court, the parties would be at liberty to take part in the auction." Now after compromises effected between the parties, from time to time, the dispute has minimized only to the extent of following two properties:-
(1) Bungalow No,35, Khayaban-e-Hafiz, Defence Housing Authority, Karachi.
(2) Property bearing No,GF-3, Building 'No,16, Sea View Apartment, Sea View Township, Defence Housing Society, Clifton, Karachi.
8. (here in after referred as 'first' and 'second' property) It may be mentioned here that, other properties situated in Karachi, which were in the name of other persons have also been deleted. Regarding the first property, it was the case of respondents- plaintiffs that the said property belonged to late Qadir Bakhsh fraudulently. Gift Deed was got executed by the appellants in their favour, whereas the said Gift Deed was not valid, as it was executed in `Marz-al-Maut'. As regards the second property, it was the stand of the plaintiffs that, it was in the name of Irfan Qadir Zehri, who was a `Benamidar'. Coming to the contention of Mr. Mujeeb Ahmad Hashmi, learned counsel that first property was gifted to the appellants by the deceased vide Gift deed dated 15th April, 1984 which was duly registered with the Sub-Registrar, Karachi. Learned counsel contended that, after execution of the said Gift Deed, the possession of the house was delivered to the appellants and the Gift deed was accepted by them and therefore the said Gift- was complete in all respects. Thus, at the time of his death Mir Qadir Bakhsh Zehri, was not the owner of said property.
9. Mr. Mumtaz Hussain Bari, learned counsel, argued that first property belonged to late Mir Qadir Bakhsh and the Gift deed was obtained through Fraud as the same was executed when deceased was in a state of `Marz-ul-Maue and further the first property, was not transferred in the name of appellants, therefore, it was not a valid Gift deed. In. Support of his arguments, learned counsel referred to documents Exhs.P/25 to P/28, being the order sheets of Civil Suit No,41/76, wherein it was shown that deceased Mir Qadir Bakhsh, was confined to bed and he could not appear before the Court as witness and he was ordered to be examined through Commission.
10. It may be pointed out that the execution of the Gift deed by the deceased is admitted by both the parties and further death of deceased on 21-4-1986, has also not been disputed. Though the plaintiffs have not appeared in witness box, and have only placed on record, certified copy of Gift deed and have made oral assertion that, deceased was in a state of `Marz-ul-Maut' and have relied upon the aforementioned documents. It may be mentioned here that the Gift deed was executed on 15-4-1984 and along with the same the deceased also executed as a WILL, which has been registered with the Sub Registrar, Karachi on 21-3-1983, wherein he had given details of his properties and also their distribution. As discussed above, the validity of the Gift deed was challenged on the ground that, it was obtained in the state of `Marz-ul-Maur. The. Gift deed has not been challenged separately in any other suit, though the same was executed two years prior to the death of the deceased.
11. "Marz-ul-Maut", has been termed as a Malady, inducing an apprehension of death of the person, who was suffering from it and which ultimately result in his death. The `Marz-ul-Maut' has been interpreted/defined in the case of Shahzad and 2 others v. Mst. Ali Begun through her legal heirs and another (1988 CLC 1507), wherein following observations were made:- "The term `Marz-ul-Maur has been defined in various text books of Mahomedan Law and has also been subject-matter of comments in many decisions of the superior Courts. Mulla in his book, "Principles of Mahomedan Law in para. 135 of its Chapter X says that "A gift made by a Mahomedan during "Marz-ul-Maut" or death-illness cannot take effect beyond a third of his estate after payment of funeral expenses and debts, unless the heir give their consent, after the death of the donor, to the excess taking effect; nor can such a gift taken effect if made in favour of an heirs unless the other heirs consent thereto after the donor's death. In explanation says "Marz-ul-Maut" is a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death". A gift made during "Marz-ul-Maut" is neither exactly a gift nor a legacy but partakes of the nature of both. "Marz-ul-Maut" means "the disease of death" or 'the disease which causes death'. Therefore, it is not every disease although serious and of long standing which can be so regarded. It must be a disease which cause imminent apprehension of death in the mind of its sufferer and must also prove the eventual cause of his death. In order to constitute a disease as 'the disease of death', following conditions are necessary:- (i) the illness must cause the death of the diseased; (ii) the illness must cause apprehension of death in the mind of the deceased; (iii) there must be some external indicia of a serious illness. Whether or not it was a death illness, is a pure question of fact and the usual questions which arise in this behalf are:- (1) Was the donor suffering at the time of the gift from a sickness which proved the immediate cause of his death? (2) Was the sickness of such a nature or character as to engender in the mind of the person suffering the disease, a belief that death would be caused thereby or to create in his mind clear apprehension of death? (3) Was the sickness such as to incapacitate the sufferer from pursuing his ordinary avocations of life? (4) Did the sickness continue for such length of time as to remove or lessen the fear of immediate death or to accustom the sufferer to the sickness? Objective consideration of external indicia of the disease suffered may provide an important clue to the- subjective consideration of the mind of its sufferer. Mere weakness or immobility would not necessarily import death malady. All the ambient circumstances clubbed together shall require consideration before giving a conclusion as to the nature of disease whether it was "Marz-ul-Maut" or not."
12. ' The same view has been adopted in the case of Bakht Zamin v. Said Majid (1996 CLC 1805).
13. Relevant portion there from reads as under:-- "9. According to paragraph 135 of the Mulla's Muhammadan Law "Marz-ul-Maut" is a malady which induces an apprehension of death in the person suffering from it and which eventually result in his death. The parameters of "Marz-ulMaut" were highlighted and discussed at length in the case-law cited by the learned counsel for the petitioner i,e, PLD 1977 SC 28 and PLD 1994 SC 650 gist of the observations made therein is that the controversy in regard to `Marz-ul-Maut' should be settled in accordance with the following guidelines:-- "(i) Was the donor suffering at the time of gift from a disease which was the immediate cause of his death'?
(ii) Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby, or to engender in him the apprehension of death?
(iii) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations-a circumstance which might create in the mind of the sufferer an apprehension of death?
(iv) Had the illness continued for such length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady."
14. Now testing the case in hand, on the touchstone of the fore referred principles; the plaintiffs- respondents alleged that the WILL was executed by the deceased in the state of `Marz-ul-Maue. To prove the said contention, no medical evidence has been placed on record, from which, it could be inferred that the deceased was suffering from a particular disease which caused a sense of imminent danger of death and which eventually resulted in his death. As mentioned hereinabove, in support of his contention, the plaintiffs-respondents only relied upon the documents Exhs.P/25 to P/28, being the order sheets of the case. A perusal of the same would reveal that the deceased Mir Qadir Bakhsh along with others instituted a suit in the Court of Senior Civil Judge, whereas he could not appear and give statement in the said suit, thus the Court appointed a Commission for his examination. The said order sheets pertains to the year, 1979. The order sheets do not disclose the type of disease from which the deceased was suffering. Besides the Civil Judge, rightly observed that, though the deceased was not able to come personally as such was examined through Commission, but this would not make him incapacitated and no inference can be gathered from the said documents/order sheets that he was suffering from `Marz-ul-Maue. Besides in another Criminal case lodged by deceased, pending before the Additional Sessions Judge-III, Karachi South, deceased requested for his examination through Commission, and a Medical Certificate issued from Mid East Centre Karachi was attached. The said Medical Certificate, does not indicate that deceased was suffering from such a disease which made him incapacitated or he was in the state of `Marz-ul-Maut'. Thus the said documents are of no avail. Suffice it to observe that, if he was examined through Commission in.His own house, it would not render him incapacitated nor any inference can be gathered that, he was in the state of "Marz-ul-Maut". Rather it can be inferred that only he could not come to' the Court to record his statement. Besides nothing has been placed on record that, deceased at the time of executing WILL and Gift Deed was suffering from any disease which was the cause of his death. It may be observed that the Gift deed was executed two years, prior to his death, thus, by no stretch of imagination, it can be held that a person would be in a state of "Marz-ul-Maut" for a period of two years and was not able to understand the nature of his transaction or would be totally incapacitated.
15. Mr. Mumtaz Hussain Baqri, learned counsel contended that, neither any document was produced before, the trial Court nor the appellants and other respondents appeared before the Court in support of their case. It may be mentioned here that as far as, non-appearance of the appellants and other respondents is concerned, that would not adversely affect their case, because in the case in hand, the burden was upon the plaintiffs-respondents to prove that the deceased was incapacitated or in the state of `Marz-ul-Maut' at the time of execution of the Gift Deed, which they have failed to do so. In this regard reliance is placed of the case of Shahzad and 2 others v. Mst. Ali Begum through her legal heirs and another (1988 CLC 1508) ibid, which following observations were made in similar circumstances:-- "Ordinarily, a party must enter into the witness-box and give evidence in his case upon the facts which are directly in his knowledge relating to matters in controversy. If the party does not appear and gives no satisfactory explanation, it runs a grave risk of his case being discredited. However, presumption arising under section 114(g) Evidence Act now Article 129(g) of Qanune-Shandat, 1984, cannot be successfully pressed in aid against the respondents for two reasons. Firstly, this point was not agitated in both the Courts below and secondly, a party must succeed on the strength of its own case and not by criticism of any alleged weakness in the defence of this adversary. Burden of proof in this case lay upon the plaintiffs. They have not satisfactorily discharged it. Therefore, mere non-appearance of the defendants in the witness-box cannot establish the truth the case set up by the plaintiffs. This contention, therefore, has no substance. From an overall examination of the evidence and probabilities of the case, I find that it has not been satisfactorily proved by plaintiffs that at the time of impugned gift by Ghulam Muhammad, he was suffering from Marz-ul- Maut."
16. Further, para-3 of the Gift deed, which was registered with the Sub Registrar, Karachi states that, Donor has handed over the factual possession of the property and the Donee has accepted the same and at the end of the Gift Deed, acceptance Certificate has been signed by Mst. Shagufta Sheerin on behalf of appellant No,2 and their late son Mir ghsan Qadir, as they were minor at that time and acceptance has been duly acknowledged by respondent No,1, who was their guardian ad item. Besides it has come on record that after execution of the Gift Deed, late Mir Qadir Bakhsh was residing in the said house with the appellants, without any objections and after his death, appellants are still residing in the said house.
17. Mr. Mumtaz Hussain Bagri, learned counsel, attempted to argue that, Gift was not complete, as the same has not been entered in the record of rights. It may be pointed out that a Gift can also be oral, but in the instant case, the Gift is in writing, which has over-riding effect on any other document. Besides the Gift Deed cannot be declared invalid only because the property was not entered in the Revenue Record in the name of donees. The Gift Deed being a registered documents is valid and can be acted upon anytime. As far as the Gift itself is concerned it is complete in all respects, the possession was handed over by the donor and accepted by the donees. Now only the property has to be entered in the name of the donees in the record of rights, which in itself would not invalidate the entire transaction. Thus, it is held that, first property was validly gifted to the H appellants. At the time of his death Mir Qadir Bakhsh Zehri, was not the owner of the said property, it actually belonged to the appellants.
18. As far as the second property is concerned, admittedly the same was not in the name of deceased and nothing has been brought on record to show that, it was a Benami transaction, as the entire burden lie upon the plaintiffs-respondents to prove the same, which they have failed to do so. Thus as a result of the above discussion, the appeal is accepted and impugned judgment is set aside, with no order as to costs.