' Mst. Aisha Bibi respondent filed a suit for the possession of one-half of the land belonging to her father Nizam Din, measuring 75 Kanals 17 Marlas situate in Kot Bullah, Tehsil and District Gujranwala.
It was stated in the plaint by the respondent that she was the daughter of Nizam Din deceased who had left no male member and also no other daughter apart from the respondent. It was claimed that Nizam Din died at the age of 120 years and had almost lost his senses, was blind and was also suffering from prolonged illness which all had contributed towards the loss of his independent thinking. The appellants are the daughters of a pre-deceased son of Nizam Din deceased. Nizam Din used to live with her grand-daughters who by exerting their undue influence got the land in dispute by virtue of a gift deed dated 21st December, 1951 (Exh. P. 2) from Nizam Din. The appellants contested the suit. The status of the respondent as a daughter was completely denied. It was asserted that Nizam Din deceased at the time of the execution of the gift deed in favour of the appellants was in his full senses and had gifted away the property on account of his free will. A preliminary objection as regards the suit being barred by time was also taken in the written statement. The pleadings of the parties were reflected in the following issues :-
(i) Whether the plaintiff is a daughter of Nizam Din deceased ? O. P.
(ii) Whether Nizam Din deceased validly gifted the property in dispute in favour of the defendants ?
0. D.
(iii) Whether the gift was brought about under undue influence and fraud ? 0. P.
(iv) Is the gift invalid on account of the donor being aged and of unsound mind ? 0. P.
(v) Is the suit time barred ? 0. D.
(vi) To what shares are the parties entitled in the property in dispute ?
(vii) Relief.
2. The learned trial Court decided all the issues against the appel, lants. Relying on an earlier judgment between the parties wherein it was held that the respondent-plaintiff was the daughter of Nizam Diu the suit was decreed by the learned Senior Civil Judge, Gujranwala vide his judgment dated 22nd October, 1964. The appellants filed an appeal and the learned District Judge, Gujranwala vide his judgmen t dated 18th May, 1965 dismissed the appeal.
3. The learned counsel for the appellants has raised the following contentions :-
(i) That the judgments of both the Courts below proceed on mere conjectures and the inferences drawn had no legal basis.
(ii) That in the plaint an attempt had been made to take the ground of indisposing mind but subsequently the plea developed was one of undue influence which was contradictory to the original plea and as such the suit deserved dismissal.
(iii) That the principle that a gift was invalid in case it had the effect. Of depriving a sharer of a right as contained in the judgment reported as Sardar Ahmad Khan etc. v. Hilt. Zamroot Ain PLD 1950 Pesh. 45 stood overruled by a judgment of this Court reported as Safi Ullah v. Ghulam Jabbar etc. PLD 1955 Lah.
191.
(iv) That Nizam Dia deceased had gifted the property by a free disposing mind and was in a fit mental condition and as such the gift should not have been declared to be invalid on any ground whatsoever.
(v) That the suit filed by the respondent was barred by time and the conditions under Article 91 of the Schedule to the Limitation Act had not been fulfilled.
4. The learned District Judge has dealt with all the. Contentions raised by the learned counsel for the appellants after the correct appraisal of the evidence on record. The learned counsel for the respondent-plaintiff has submitted that on account of the fact that Nizam Din was an old ailing man, a very heavy onus lay on the appellants to show that the gift had been validly made in their favour and with a free consenting mind. As regards the limitation it is contended by the learned counsel for the respondent that the starting point of the limitation in the present case would be construed when the respondent had the knowledge of the facts and the cause to file the suit and as such the suit was within time. According to the learned counsel for the respondent the limitation was not to start from the execution of the gift deed by Nizam Din but the facts constituting the cause of action which came to the knowledge of the respondent after the death of her father Nizam Din Shah.
5. The contentions raised by both the parties may be now adverted to. Paragraph 3 of the plaint contains the grounds on which the respondent had challenged the validity of the gift deed. A free translation of paragraph 3 would be that Nizam Din the father of the respondent was an old person having an age of more than 120 years and was suffering from permanent ailment and had lost his mental balance, was blind and used to live with the appellants. The appellants taking undue advantage of the old age, illness and loss of mental balance got a gift deed in their favour, It is further stated that Nizam Din was not capable of understanding as to what was being got executed from him. The circumstances shown in paragraph 3 of the plaint constituted one complete cause which may be described as undue influence duly recognized under section 16 of the Contract Act. Section 16 defines the term undue influence' and provides that a contract is said to be induced by undue influence where the relations between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. Subsection (2) of section 16 further provides that in particular and without prejudice to the generality of the principle as given in subsection (I) a person is deemed to be in a position to dominate the will of another in the circumstances that are given in clauses (a) and (b) and are reproduced below for the sake of convenience-
(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other ; or
(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress.
' Subsection (3) of the said section is al so relevant. It provides where a person who in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon a person in a position to dominate the will of the other. A perusal of this section would show that it not only defines the undue influence but also lays down the circumstances under which the undue influence may be said to be exhorted. Sub-clause (b) as already noted above specifically deals with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. These are the reasons which may affect the mental capacity and may result in the exercise of the undue influence. Keeping in view the provisions of section 16 of the Contract Act it cannot be said that the respondent had taken contradictory pleas. What had been stated in the plaint were the different reasons affecting the mental capacity which are duly recognized under the law. Section 16 also lays down a principle for placing.The burden and has been relied by the learned counsel for the respondent to show that heavy burden lay on the appellants to show that the alienation had been made in their favour by disposing mind and the mental capacity of the donor had not been affected due to the reasons already taken note of.. The learned counsel for the respondent has read over the statements of the witnesses produced by the appellants and it cannot be said that the burden in view of the admitted circumstances of the case had been discharged. I need not deal with the evidence as the same has been properly appreciated by both'the Courts below. D. W. 1 Qazi Ghulam Muhammad petition-writer admitted that the donor at that time was 102 years of age. On the basis of the evidence on record the learned Distric Judge was fully justified in raising a presumption that Nizam Din's mental capacity being affected on account of old age, mental and physical infirmity. The fact that he was living with his grand- daughters and that they were in a position to dominate the will of the donor is quite evident from the circumstances of the case. The very fact that it was stated in th deed that he had no daughter when admittedly it has been held by bot the Courts below on the basis of the earlier litigation as well as th evidence on the present file that the respondent was the 'daughter o Nizam Din deceased. This fact by itself is a strong evidence of the undu influence exerted by the appellants in obtaining the entire property t the exclusion of the respondent. The learned District Judge has rightl pointed out that the ground made out for setting aside the deed was not marz-ul-maut but an undue influence as defined under section 16 of the Contract Act. The fact that the gift deed had the effect of depriving the respondent of one-half share in the property cannot also be lost sight of.
Nizam Din deceased was living with the appellants. His land was being cultivated by their husbands. The learned District Judge has rightly assumed that the land was yielding produce and therefore it cannot be said that the donor had gifted away the property on account of the services rendered by the appellants.
6. The learned trial Court has relied on a judgment of the Judicial Commissioner, Peshawar in the case reported as Sardar Ahmad Khan etc. v. Mst. Zamroot Jan (1) in which it was held that the gift in order to be effective should be genuine transaction and not merely a plan to achieve some ulterior object. It was further held that if the real object of the gift was a disinheritance of an heir the same was to be treated as bad in the eye of law. According to this judgment the policy of the Muslim Jurists was to prevent any interference with the course of devolution of property {{FOOT NOTE}}
(1) PLD 1950 Pesh. 45 {{FOOT NOTE}} amongst the testator's heirs as laid down in the Holy Quran. This judgment of the Judicial Commissioner, Peshawar was dissented from in a Division Bench Judgment cf this Court reported as Safi Ullah v. Ghulam Jabbar (1). In this judgment it was held that the only restraint upon a Muslim in the matter of alienating his property imposed by the Muslim Law relates to wills and gifts on death-bed. In other cases the power of alienation of a Muslim qua his property is, apart from the conditions laid down by the law for completing a transfer, unfettered. It was further observed that it may be impious for a Muslim to deprive some or all of his children of his property by alienating it in his lifetime and it would be obviously so in all good sense if done without just cause ; but there is nothing anywhere in the Holy Quran to forbid such gifts when made by a person not suffering from marz-ul-maut. The relevant portion of this judgment where the Peshawar case was dissented may be quoted below :- "The anchor-sheet of the first contention of the appellant is a ruling of the Peshawar Judicial Commissioner in Ahmad Khan v. Mst. Zamroot Jan (A 1 R 1950 Pesh. 11) in which it was laid down by the learned Judicial Commissioner that :- ' It is the policy of the Muslim Jurists to prevent any interference with the course of devolution of property amoiigst the testator's heirs as laid down in the Holy Qur'an. The law would be the same if a certain transaction, though on the face of it a gift, is in fact a device to deprive a lawful heir of his share in the property. No person can be permitted to defeat the object of Muslim Law by entering into such colourable _ transactions. It is an admitted principle of law that a gift intended to defeat or defraud the creator is voidable. On the same principle a gift intended to disinherit an heir would be a sham transaction, and, therefore, nugatory.
' It does not appear from the judgment as to what is the common principle governing a gift intended to defeat or defraud creditors and those intended to disinherit an heir ; nor has it been made clear as to why a gift of the latter kind would be 'a sham transaction', as distinguished from an illegal transaction. Be it as it may, I am, with the greatest respect, unable to subscribe to the view expressed in this ruling. I am not aware of a single ruling or text-book in which such a gift has ever been held to be illegal or void.
' The contention upheld in Ahmad Khan's case was raised, as far back as 1867, in Nawab Umjad Ally Khan v. Mst. Mahumdee Begum (11 Moore's I A 517), and was, once for all, rejected by their Lordships of the Judicial Committee in the following words."
7. The fact that a Muslim may have unfettered power to dispose of the property by a gift may not become invalid only because it may have the effect of depriving of the heirs of shares as held by the Division Bench of this Court but this fact is relevant in the present case because a deliberate attempt had been made to' show that the deceased had no {{FOOT NOTE}}
(1) PLD 1955 Lab. 191 {{FOOT NOTE}} daughter and this fact is being used as an evidence of the undue influence' The gift is not being struck down on the ground that it has the effect off depriving one of the heirs.
8. The effect of the various elements which affected the capacity of an old man were considered at length in a judgment of the Supreme Court reported as Mst. Hamida Begum v. Mst. Murad Begum and others (1). The facts of this case were almost identical and the principles laid down including the question of limitation are applicable on all fours to the facts of the present case. The facts of the Supreme Court case were that one Mst. Hamida Begum the appellant before the Supreme Court had filed a suit for a declaration to the effect that two deeds executed by her father purporting to create .a wakf-alal-aulad were null and void and ineffective against their rights that they were obtained by undue influence and fraud, and at a time when her father was not possessed of a sound disposing mind. By these deeds the entire property of the deceased was dedicated to the wakf and the deceased had appointed his young wife as Mutwalli, and the appellant was excluded from the list of beneficiaries and confined to the other daughters. The suit was contested and the question of limitation was also raised as in the present case. The suit was dismissed in the first instance by the learned trial Court but in second appeal the findings were reversed and the L. P. A. Was also dismissed. Their Lordships of the Supreme . Court dealing with the question of undue influence exercised in the circumstances of the case laid down the conditions under which' it could be inferred. The observations at page 664 being relevant to the present .Case ,may be reproduced below :- "This doctrine is intended to grant protection against transactions procured by the exercise of insidious forms of influence, spiritual and temporal. It applies to acts of bounty as well as to other transactions in which one party by exercise of his position 'of domination obtains an unfair advantage over another. Undue influence may be 'inferred when the benefit is such as the taker had no right to demand, either in law or equity, or even as a moral claim, and the grantor had no rational motive to give. Wherever one member of the family exercises weighty influence in the domestic counsel either from age, from character or from superior position acquired from other circumstances, an inference as to the existence of undue influence'can legitimately be drawn."
' It was further observed that where undue influence was alleged, it was necessary to examine very closely all the circumstances of the case. The question of burden of proof was also dealt with and their Lordships observed that where the relation between the donor and donee raises a presumption that the donee had influenced over the donor the Court will set aside the gift unless the donee establishes that it was the spontaneous act of the donor acting in circumstances which enabled him to exercise an independent will, and which justified the Court in holding that it was the result of a free exercise of the donor's will. Respectfully following the test laid down by their Lordships it would be evident from the facts of the case that the appellants had failed to bring any such .Evidence on record.
9. As regards the question of limitation their Lordships of the Supreme Court have also dealt with the question at great length. The {{FOOT NOTE}}
(1) P D 1975 SC 624 {{FOOT NOTE}} question whether a document procured by undue influence was void or voidable was also acherted to and held that such a document was voidable and it was also observed that such a document would be ancillary. It was further held' that the starting point of the limitation would commence not when the plaintiff acquired the knowledge of facts which rendered instruments 'oidable but of facts entitling the plaintiff to have the instruments cancelled or set aside. It was further observed that Mohammadan Law does not recognize spes successionis and as such the suit brought by a Muslim during the lifetime of his father to challenge the gift made by the latter on the ground of the undue influence is not maintainable and limitation under Article 91 in such 'case would start running from the date of the death of the father. The words appearing in Article 91 "when the facts entitling the plaintiff to have the instruments cancelled or set aside become known to him" were interpretted by their Lordships to mean "when having' knowledge of such facts a cause of action has accrued to him, and he is in a position to maintain a suit." The observations of their Lordships in Hamida Begum's case at pages 640-41 may be quoted with advantage :- "While this rule would undoubtedly ordinarily apply-to a suit brought by a plaintiff as successor-in- interest of a party to the instrument, it is clear that such a rule would be completely unrealistic and inapplicable in a case when the actual plaintiff, claiming through a party to the impugned instrument, had no right or interest in the property at the time of the execution of the document in spite of possessing knowledge of the facts which would render it voidable. As observed in Tawangar Ali v. Kura Ma! (I L R 3 All: 394), the words in Article 91 'when the facts entitling the plaintiff to have the instrument cancelled or set 'aside become - known to him' must be construed, to mean 'when having knowledge of such facts a cause of action has accrued to him and be is in a position to maintain a suit'.
' This view has been consistently followed in a large number of cases, namely, Meda Bibi v. Iniaman Bibi (I L R 6 All. 207), Mahabir Parsad Singh v. Hurrihur Pershad Narain Singh (I L R 19 Cal. 629), Ali Mirza Beg v. Hassan Raza Khan (AIR 1917 Oudh 188), Balasundara Pandiam Pillai v. Authiamulam Chittiar (A IIt 1919 Mad. 679) and Milani v. Maula Bakhsh (I L R 46 Lal. 260).
' We consider that the view adopted in these precedent cases is correct, for, under Article 91, the limitation commences not when the plaintiff acquires knowledge of facts which render the instrument voidable, but of facts 'entitling the plaintiff to have the instrument cancelled or set aside'. As such a suit falls under section 39 of the Specific Relief Act, it is obvious that the right to sue accrues to the plaintiff only when he has reasonable apprehension that the instrument, if left outstanding, may cause him serious injury. Such an apprehension cannot arise at a, time when the plaintiff has no right or interest in the property forming the subject-matter of the instrument in question. It follows, therefore that the starting point of limitation under this Article is the date when the plaintiff acquires knowledge of facts which give him a cause of action and entitle him to have the instrument cancelled or set aside.; mere knowledge of facts bearing on the true character of the instrument is not enough."
10. In paragraph 5 of the plaint the respondent had stated that her father had died and that the mutation of inheritance had been put up for sanction before the Tehsildar, Gujranwala after for years when she came to know that the gift deed had been procured by undue influence and that the deceased had been made to write that he had no other daughter. The suit was filed within one year of the knowledge. This fact was specifically stated by the respondent appearing as P. W. I. In the cross-examination she also specifically stated that she had come to know of the alleged gift after the death of her father. The suit filed in the circumstances was fully covered under Article 91 of the Limitation Act and as per the dictum of their Lordships of the Supreme Court the starting point would be the date of the knowledge after the death of the donor.
11. Their Lordships of the Supreme Court have held in Hamida Begum's case that a question whether a document had been procured by undue influence was essentially a question of fact and was not susceptible to interference in Second Appeal. Both the Courts below on proper 'appreciation of the evidence have held that the gift deed had been obtained by undue influence.
This finding is not vitiated by any of the conditions laid down in section 100, C. P. C. This appeal has no force and is hereby dismissed with costs.