' MUNIR AHMED CHAUDHARY, J.---This appeal has filed against the judgment and decree of District Judge Kotli dated 1-10-2011, whereby first appeal filed by the present appellant was dismissed maintaining the judgment and decree of Senior Civil Judge Kotli.
2. Brief facts giving rise to the present appeal are that the respondent filed a suit for declaration against the present appellant through next friend Khurseed Ahmed in the court of Senior Civil Judge Kotli on 2-11-2004, stating therein that father of the respondent/plaintiff Said Muhammad son of Lal Din was share holder in the ownership of the land measuring 89 Kanals and 9 Marlas bearing Khewat No,141 Khata No,621 situated at village Barrhali Tehsil and District Kotli. The said Said Muhammad was dumb by birth and later on he became blind. After 3/4 years, he became deaf as well. The respondent/plaintiff was his only son. The plaintiff and his next friend Khursheed Ahmed took care of him and managed for his treatment. The respondent/plaintiff was thirteen years old when his father Said Muhammad died. It was further stated in the suit that the present appellant/defendant was a selfish and greedy person who fraudulently and malafidely managed a gift-deed in his name shown to be executed by father of the respondent regarding the whole share of Said Muhammad in the land including Shamlat-Deh land on 23-6-2003. The said Said Muhammad was senseless and lying on the death bed in the days when the gift-deed was shown to be executed by him fraudulently and fictitiously. The said Said Muhammad would have never deprived of his son if he was in senses. The respondent/plaintiff is a minor and the only legal heir of his father. It was prayed to issue a decree of declaration and cancellation of the said gift-deed.
3. The present appellant/defendant submitted written statement, stating therein that respondent/plaintiff has got no cause of action. The gift-deed was executed by Said Muhammad when he was in senses. The said Said Muhammad was not blind, deaf or dumb. The respondent/plaintiff left his father and was living with the said Khtirsheed Ahmed as an employee.
The appellant/defendant bore the expenditures for treatment of the said Said Muhammad and on his death as well. Said Muhammad was his real paternal uncle. The respondent/plaintiff did not care of his father and only the appellant/defendant rendered services to Said Muhammad. That is why, the said Said Muhammad gifted his whole share in the land to the appellant. The said Said Muhammad appeared himself before Sub-Registrar and he admitted the contents of the gift-deed as true and correct. The suit is not maintainable in the present shape. It was prayed to dismiss the suit.
4. Issues were framed in accordance with the version of the parties. Both the parties produced oral and documentary evidence. After hearing the parties, the learned Senior Civil Judge Kotli issued a decree in favour of the respondent/plaintiff. The present appellant/defendant preferred an appeal before District Judge Kotli. The learned District Judge Kotli dismissed the appeal and maintained the judgment and decree passed by the learned Senior Civil Judge Kotli. Feeling aggrieved, the present appellant has preferred the instant second appeal before this court.
5. Arguments were advanced by the learned counsel for the parties. Mr. Khalid Mehmood Khokhar Advocate, the learned counsel for the appellant argued that the said Said Muhammad was residing with the present appellant and he was looked after by the present appellant all the time during his illness and old age. The said Said Muhammad was having good health and senses at the time of execution of the gift-deed. He himself appeared before the Sub-Registrar and admitted the contents of the gift-deed. The respondent/plaintiff did not care of his father and he was serving being a private employee of his next friend Khursheed Ahmed. The witnesses produced by the respondent/plaintiff are interested witnesses whose statements are not reliable. The said Said Muhammad was identified by Maqbool Hussain Gorsi Advocate at the time of execution of the impugned gift-deed. The learned counsel for the appellant further argued that the learned subordinate Judges have not recorded their findings in accordance with the evidence placed on record. It was prayed to accept the appeal and to set-aside the judgments and decrees passed by both the subordinate courts dismissing the suit filed by the present respondent. The learned counsel referred the following precedents in support of his arguments.
' PLD 2003 AJ&K 25 2003 SCR 92 ' 2012 CLC 1483 ' PLD 2012 Lah. 386
6. While controverting the learned counsel for the appellant, Ch. Muhammad Ilyas Advocate, the learned counsel for the respondent contended that the respondent was the only son and legal heir of his father Said Muhammad. The respondent cannot be deprived of from the legacy of his father.
His father was blind, deaf and dumb and had no senses during last days of his life. The present appellant fraudulently and -malafidely managed execution of the gift-deed in his name. The evidence placed on record by the respondent/plaintiff is confidence inspiring and reliable. The marginal witnesses of the gift-deed were interested witnesses. The father of the respondent was facing serious illness and the said gift-deed was executed during Marz-ul-maut when the said Said Muhammad was lying on the death bed. The appellant could not prove that the impugned gift-deed was executed by the donor having senses and with consent and free-will. The learned counsel further argued that both the subordinate courts have resolved the controversy concurrently and have recorded sound and cogent reasons for their findings. It was prayed to dismiss the appeal and the learned counsel referred the following precedents in support of his arguments:-- PLD 1984 SC 650 1987 CLC 1757 1989 SCMR 1390 PLD 1993 Peshawar 200 1995 CLC 7 2004 CLC 1.
2005 YLR Lah. '2388 2006 CLC 1023 2006 SCMR 940.
2010 SCMR 1370 2011 SCMR 803 2011 CLC 1734
7. After hearing arguments advanced by the learned counsel for the parties, I have gone through the record available and perused the precedents referred minutely. The respondent/plaintiff has taken this version that his father Said Muhammad was blind, deaf and dumb and the impugned gift-deed was executed when his father was lying on the death bed and having condition of Marz- ul-maut. The respondent/ plaintiff prayed to declare the said gift-deed as null and void over his rights. On the other hand, the present appellant/defendant has taken this version that the gift- deed was executed in accordance with the provisions of law and the marginal and other witnesses have corroborated this version that gift-deed was executed before Sub-registrar in presence of the donor. The record reveals that Said Muhammad was owner of the disputed land. The witnesses produced by the respondent/plaintiff state that mental condition of Said Muhammad was not proper. He was blind and deaf for the last forty years and became dumb two years before. He was handicap and lying on the death bed. He had no sense of any loss or benefits regarding his property or anything else. The witnesses produced by the present appellant/defendant also admit that Said Muhammad was blind and seriously ill when the gift-deed was executed. The plain reading of statements of all, the witnesses produced by both the parties reflects that the said Said Muhammad was blind, deaf and dumb and seriously ill when the gift-deed was executed. If at all, the said Said Muhammad was produced before Sub-Registrar, it has not been proved that he was in senses and he was in a position to understand each and everything regarding execution of the gift-deed when his only son was alive and was going to be deprived of from the whole property. No explanation has been brought on record that why the donor ignored his only son from his whole property and gifted the property to his nephew. Non-existence of this fact creates doubt regarding execution of the impugned gift-deed. It is an admitted principle of Islamic law that a gift-deed is not valid 'which deprives some of the legal. Heirs and executed without their consent. This A principle has been laid down in the precedent 1989 SCMR 1390 as under:-- "(a) Muhammadan Law-- ----Gift---Marginal witnesses of gift-deed were interested ones and contradicted the dates which the alleged gift-deed bore---Scribe of deed was not produced---As to why in presence of legal heirs particularly her own children, donor would have gifted out her entire land to a nephew, was not explained---Gift-deed, held was not a valid one but fictitious and obtained through fraud."
' In the present case, the gift-deed was executed when the donor Said Muhammad was blind, deaf and dumb and was not in his senses. It was necessary to mention the condition of the donor by Sub-Registrar in his writing but it was not done. Meaning thereby that no explanation was brought through the contents of the gift-deed, writing made by Sub-Registrar or even through evidence placed by the present appellant/defendant that property and preferred his nephew for the same. It has not been proved that the donor was unhappy or annoyed with his son excluding him from inheritance of his whole land. The execution of gift-deed in such-like situation was against ordinary human conduct. The beneficiary of gift-deed failed to prove its voluntary execution. It is an admitted principle of law as well that mere appendage of thumb-impression of donor of gift-deed without independent proof of factum of gift in favour of the donee would not be sufficient to establish that property had validly been gifted by donor to his donee out of his free-will. This principle has been laid down in the precedent 2004 CLC 1.
7.. It has been held in the precedent 2006 CLC 1023 that absence of reasons for making gift makes doubtful the C. Genuineness of transaction, which on its face was void. The precedents referred by the learned counsel for the appellant have no conformity with the facts of the ptesent case while the precedents referred by the learned counsel for the respondent are helpful and render guidance and are in support of the arguments advanced by the learned counsel for the respondent.
' Having in view the above-mentioned circumstances, it is clear that the appellant/defendant has failed to prove that the impugned gift-deed was executed by a perfect person with his free consent. The impugned gift-deed is null arid void over the rights of the respondent. The appellant has failed to prove his version as mention in the memorandum of appeal. The instant appeal fails, which is hereby dismissed with no order as to the costs.