RAB NAWAZ and others vs GHULAM RASUL

ORDER

' EJAZ AFZAL KHAN, J.---This appeal with the leave of .The Court has arisen out of the judgment dated 11-11-2002 of the Lahore High Court, Lahore whereby the learned Judge in its Chambers allowed the revision petition filed by the respondent, set aside the judgment and decree dated 19- 10-1995 of the Appellate Court and restored the judgment and decree dated 10-4-1995 of the trial Court.

2. Brief facts of the case as recounted in para-2 of the impugned judgment read as under:-- "Rab Nawaz and Yasin, the two sons of Ghulam Hussain deceased, Hag Nawaz and five others descendants of Khadim Hussain, a predeceased son of Ghulam Hussain, respondents herein, filed a suit for declaration on 20-2-1994 assailing mutation No. 174 attested on 18-6-1992 evincing gift of the property in dispute by Ghulam Hussain in favour of Ghulam Rasul the petitioner, another son of the donor. It was averred that Ghulam Hussain was aged about 90 years, at the time of his death he was not mentally and physically fit. He used to reside with the petitioner and through undue influence the petitioner got a- gift in his favour. It was further averred that the deceased haa not gifted the disputed land in favour of the petitioner nor possession was- transferred and, therefore, mutation was fake, fictitious and based on fraud".

3. Points raised and noted at the time of g -It of leave read as under:-- "The learned counsel submitted, inter alia, that late Ghulam Hussain, predecessor-in-interest of both the parties, had made the gift of the property in dispute at a time when he was under undue influence of Ghulam Rasool, respondent and he was suffering from marz-ul-mout. It was further contended that evidence of the parties clearly showed that necessary elements of gift having been made during marz-ul-mout were fully satisfied. Reliance was placed on the cases of Mst.

Bibi and others v. Muhammad Shaft and others (PLD 1977 SC 28), Shamshad Ali Shah and others v.

Syed Hasan Shah and others (PLD 1964 SC 143) and Muslim Law by Tavyab Ji, 4th Edition 1968 at page 322.

(2) Leave to appeal is granted to consider the above and other submissions".

4. Learned Advocate Supreme Court appearing for the appellants contended that when ample evidence has come on the record to show that the donor, so called, at the time of making gift, did not enjoy sound mental health, no valid gift can be said to have been made. Such gift, the learned Advocate Supreme Court added, is also hit by the doctrine of deathbed gift when it is admitted on the record that the donor was incapacitated on account of fracture in his vertebrae, Want of delivery of possession, the learned Advocate Supreme Court submitted, is yet another circumstance militating against the validity of the gift'. Undue influence, the Advocate Supreme Court maintained, cannot be ruled out when the donor, so called, after being incapacitated was living at the mercy of the donee in his house, The learned Advocate Supreme Court to support his contentions placed reliance on the cases of "Shamshad Ali Shah, and others v, Syed Hassan Shall and others" (PLD 1964 SC 143) and "Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others'

(PLD 1977 SC 28).

5. ' Learned Advocate Supreme Court for the respondent contended that. Where nothing, has been brought on the record to suggest that the donor, at the time of gift, was suffering from a disease which became the immediate cause of his death; induced an apprehension of death in him or in any way incapacitated him from pursuing his usual occupation, the gift cannot be termed as deathbed gift by any stretch of imagination. The learned Advocate Supreme Court next contended that where preponderance of evidence on the record shows that possession was also delivered to the donee, the impunged judgment cannot be interfered with. The learned Advocate Supreme Court to support his contentions also placed reliance on the cases of "Shamshad Ali Shah and others v. Sved Hassan Shah and others" and "Msr. Chanan Bibi and 4 others v. Muhammad Shaft and 3 others" (supra).

6. We have gone through the entire record and considered the submissions of the learned ASCs for the parties.

7. According to the death certificate which is Exh.P.3 on the record, the donor, so called, died on 17- 11-1993 at the age of 94/95. The gift mutation was attested on 18-6-1992. A rough calculation would I show that his age at the time of making the gift was 92/93 years, A meaning thereby that he was fairly old at the relevant time. Yet there is no medical evidence on the record to show that he was suffering from a disease which became the immediate cause of his death or it was of .a nature as could induce an apprehension of death in his mind. Even the oral evidence, besides proving that the donor, so called, because of trauma to his vertebrae was incapacitated, does not prove that it became the immediate cause of his death or that it was of a nature as could induce apprehension of death in his mind. The cases of "Shamshad Ali Shah and others v. Syed Hassan Shah and others" and "Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others" (Supra), in this view of the matter. May not have much relevance to the case in hand.

' What devastates the very basis of a valid gift, is the evidence regarding the mental health of the donor. All the witnesses examined by the appellant consistently stated in their evidence that the donor, so called, did not enjoy sound mental health at the time of making the gift. This evidence went unquestioned and thus remained unshaken. This c evidence, appears to be quite credible when considered in light of the age of the donor and other attending circumstances.

8. Element of undue influence cannot be ruled out when the donor being old, infirm and incapacitated was living at the mercy of the donee, in the latter's house. The inference drawn by the learned First Court of Appeal and final Court of fact, that the gift was an outcome of undue influence appears to have been based on correct appraisal of evidence rather, than conjecture.

We, therefore, don't agree with the learned Judge of the High Court that the inference drawn by the First Court of appeal is any way conjectural. In the case of "Mst. Hamida Begum v. Mst. Murad Begum and others" (PLD 1975 SC 624), this Court while highlighting the circumstances justifying deduction about undue influence held as under:-- "The doctrine of undue influence, as contained in section 16 of the Contract Act, is to the effect that "a contract is said to be induced by undue influence where the relations subsisting 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 this section elaborates the principle further by saying that "a person is deemed to be in a position to dominate the will of another-

(a) where he holds a real or apparent authority over the other or where he stands in a fiduciary relation to the other;

(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) places the burden of proof on the person having domination over another, if the transaction appears, on the face of it or on the evidence adduced, to be unconscionable. This doctrine is intended to grant protection against transaction 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. Whenever 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.

' In Muhammad Bakhsh Khan v. Hosseini Bibi (ILR 15 PC 684), their Lordships of the Judicial Committee observed that "where undue influence is alleged it is necessary to examine very closely all the circumstances of the case. The principles are always the same, though the circumstances differ; and, as a general rule, the same questions arise; (a) whether the gift in question is one which a right-minded person might be expected to make; (b) is it or is it not an improvident act on the donor's part; (c) is it such as to have required advice, if any, obtained by the donor; and (d) whether the intention to make the gift originated with the donor"

' In Inche Noriah v. Shaikh Allie Bin Omer (1929 AC 127) it was stated that "where the relation between the donor and donee raises a presumption that the donee had influence 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."

9. Another reason militating against the validity of the gift is want of delivery of possession. The respondent made contradictory statements in this behalf. In the first instance while being examined-in-chief he stated that delivery of possession of the subject-matter of gift coincided with its declaration but in cross examination' he changed his stance by stating that he has been in possession of the subject-matter of the gift even before it. He made another somersault in his cross-examination by stating that the sons and grandsons of the donor were occupying the property in their capacity as tenants. If, it was so, the evidence of adornment should have been brought on the record but that too is missing. Since the gift was challenged, the burden of proof lay on the donee to prove that all the essentials of the gift were fulfilled. The respondent with this quality of evidence cannot be said to have discharged this burden when one of the essentials of gift was not proved on the record. Therefore, we are constrained to hold that no valid gift was ever made in favour of the respondent. We, thus, don't feel inclined G to maintain the impugned finding.

10. For the reasons discussed above, this appeal is allowed, the impugned judgment is set aside, the judgment and decree of the Court of appeal is restored with no order as to the costs.