This is a civil revision against judgment dated 14.3.2005, of the learned Civil Judge-V, and judgment in appeal dated 16.11.2005, of the learned Additional District Judge, Mardan. Initially, Muhammad Younas, Respondent No, 1, instituted suit against his brothers Muhammad Ayub etc: and mother Mst. Bashiran, for declaration to the effect that he was owner in possession of one market, Property No, 965- BC, Survey No, 269/68, measuring 590 square feet, to the extent of 14/146 shares, being legal heir of his father Muhammad Yousaf, and registered gift deed dated 7.11.2001, regarding this property, in favour of petitioners 2, 4, and 7, was wrong, illegal and fictitious, and liable to be cancelled. He also prayed for possession by partition of 14/146 shares, in the suit property.
According to him, common ancestor of the parties, namely, Muhammad Yousaf was owner of the suit property, who died on 28.4.2001, due to Cancer. The petitioners, mentioned above, during his `Maraz-ul-Maur, got the suit property transferred in their names, through a fictitious registered gift deed. Muhammad Yousaf, due to severe illness, was not in a position to understand the nature of transaction. Hence, the suit.
2. The suit was contested by the petitioners. However, Mst. Shama Mubin, Respondent No, 2, admitted the claim of her husband in her written statement.
3. The pleadings of the parties were reduced to the following issues, framed by the learned Civil Judge-V, Nowshera, on 12.6.2002:--
1. Whether the plaintiff has got a cause of action?
2. Whether suit of the plaintiff maintainable in its present form?
3 Whether suit is instituted with malafide intention?
4. Whether defedt: Nos, 1 to 10 had made improvements in suit property and they are entitled to recover the same in case suit is decreed?
5. Whether suit is properly valued for the purposes of Court fee and jurisdiction?
6. Whether father of the parties decd Muhammad Yousaf died by cancer?
7. Whether father of the parties has transferred suit property vide registered gift deed to Defendant Nos, 3, 5, and 8?
8.Whether the dower deed executed by the plaintiff in favour of Defendant No, 11 is based on fraud and collusion?
9. Whether suit property is in joint ownership of the parties?
10.Whether shop in question is ownership of Defendants No, 1 to 10?
11.Whether plaintiff is entitled to the decree for declaration as prayed for in Para "Alif' of the plaint?
12.Whether the plaintiff is entitled to the decree for possession as prayed for in Para "B" of the plaint?
13.Relief.
4. The evidence of both the parties, which they wished to adduced, was duly recorded, and after hearing the learned counsel for the parties, the learned Civil Judge held that the gift being made during Waraz-ul-maur , was invalid. Accordingly, suit was decreed, vide judgment date 14.3.2005.
Against the said judgment and decree, appeal of the petitioners was also dismissed by the learned Additional District Judge, Nowshera on 16.11.2005.
5. Having felt aggrieved, the petitioners have filed instant revision petition to this Court.
6. I have heard learned counsel for the parties, and perused the record.
7. Learned counsel for the petitioners argued that Muhammad Yousaf was the common ancestor of the parties who died, leaving behind eight sons, two daughters and a widow. He had gifted the suit property to his two sons Muhammad Akram, and Muhammad Alam, and daughter Muhammad Saeeda, petitioners. The gift-deed was duly registered, and witnessed by two other sons of the donor. There was framed no issue on the question of `Maraz-ul-maue, and no evidence in this regard was produced. Learned counsel for the petitioner next argued that gift question was not made during Maraz-ul-maur , as is evident from the statement of PW-. 4 Dr. Muhammad Umer, and after death of donor, all the other sons, daughters and widow of the donor had accepted the gift, except Respondent No,
1. The essential ingredients required for completion of gift were duly completed, and possession was with the donees. Learned counsel for the petitioners argued that both the Courts below, on the basis of conjectures or surmises, decreed the suit without appreciating the evidence in minute details. In support of arguments, he relied on PLD 1977 SC 28(G), and PLD 1994 SC 650.
8. On the other hand, learned counsel for Respondent No, 1 supported the findings of the Courts blow, and stated that non-framing of specific issue regarding gift-during `Maraz-ul-maue was inconsequential, because the issues, already framed, cover the disputed question in entirety. He further stated that the gift-deed executed twenty one days prior to the death of donor during `Maraz-ul-maut', was invalid. In support of arguments, he relied on 1993 SCM R 2018. Likewise, learned counsel for Respondent No, 2, who happens to be wife of Respondent No, 1, stated that a portion of the suit property was given to Respondent No, 2, by her father-in-law Muhammad Yousaf in dower, regarding which suit was pending in the competent Court, and her rights in this regard were protected.
9. The perusal of record would show that Muhammad Yousaf, common ancestor of the parties was suffering from Cancer, who died on 28.11.2001, due to Ischaemic, heart disease. PW- Dr. Muhammad Umer Khan, Medical Officer stated that the main cause of death of Muhammad Yousaf was Ischaemic, heart disease, and the heart attack had occurred half an hour before death. He clarified that the primary cause of death was malignant brain tumer, and the secondary cause was heart attack. This witness was not cross-examined to the effect that Muhammad Yousaf donor before his death on 28.4.2001, was not in a position to understand the nature of transaction, or that he was completely incapacitated. The question whether donor suffered from a disease, which was his immediate cause of death at the time of gift, is a mixed question of fact and law, and the best evidence in this regard is the evidence of the doctor, who treated the donor, and the Sub-Registrar, who attested the gift-deed. The Sub-Registrar was not produced as a witness by respondents in the Court. It was also not noted by Sub-Registrar in the recital of the deed that the donor was incapacitated and under immense pressure of the sense of death. The non-examination of Sub- Registrar is a serious set back in the case of respondents. The factors which should be considered for conclusion that the transaction was made under pressure of `Maraz-ul-maut , are as under:-- (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.
10.In the present case donor was suffering from Cancer, which was not the immediate cause of his death, and it was not brought on record that he was completely incapacitated, or unable to pursue his ordinary work. In the circumstances, gift by donor in favour of his sons and daughter, was not gift-during Waraz-ul-maue , and it was a gift simpliciter, the essential requirements of which were duly. fulfilled. In view of the matter, both the Courts below had misinterpreted the evidence and law on the subject, and ignored the settled principles in appraising evidence, which resulted in material illegality and irregularity.
11.It is important to note that Respondent No, 2 has also claimed a portion of the suit property, alleged to be given to her in lieu of dower by her father-in-law Muhammad Yousaf, donor. However, in this regard, respondents produced no evidence in the trial Court, and this question was left undecided. However, a suit regarding this dispute of dower is stated to be pending in the Court. In case of success of Respondent No, 2, in the suit, her share shall be excluded from the gift of the suit property, but by no means the gift shall be considered as void: because a gift of the property capable of partition is deemed as invalid, but it may be perfected and rendered valid by subsequent partition. For the above reasons, the findings of the Courts below, being not sustainable, are set aside, and the suit of the Respondent No, 1 is dismissed, leaving the parties to bear their own costs.