' CH. MUHAMMD MASOOD JAHANGIR, J.---This judgment will decide C.R.No,2147 of 2004 and C.R.No,1369 of 2004, which involve common questions of law and facts and are between the same parties.
2. The facts germane for the disposal of the instant civil revisions are that Muhammad Yasin petitioner (hereinafter will be referred as plaintiff) filed a suit for declaration against Muhammad Jamil and Saidan Bibi respondents (hereinafter will be referred as defendants) with the assertion that the disputed property was owned by Majeed son of Karman (the description of the property is fully mentioned in para-1 of the plaint), who was an old age person and also due to brain paralysis in the beginning of March 1993 he became incapable of speaking, moving and thinking. He also became unconscious in the last twenty five days of his life and ultimately he died on 5-4-1993, that defendant No,1 Muhammad Jamil was the nephew of the deceased whereas defendant No,2 Saidan Bibi was his widow, that defendant No,1 got entered Rapt Roznamcha dated 22-3-1993 and thereafter mutation of oral gift No,519 dated 27-3-1993 in his favour in connivance with Revenue officials and the said Rapt as well as the disputed mutation were product of fraud as at that time the alleged donor Majeed was not capable of making offer of gift and the said deceased did not get entered the said rapt or got attested the disputed mutation as he was suffering from Marz-al- Maut. The said suit was resisted by the defendant Muhammad Jamil by filing his written statement.
No doubt the said written statement also bears the name of Saidan Bibi the other defendant but it transpired from the record that latter on defendant No,2 denied the filing of the said written statement along with Muhammad Jamil defendant No,1.
3. The learned trial court captured the disputed area of facts by striking following issues:-
(1) Whether the mutation No,519 dated 27-3-1993 was got sanctioned by the deceased Majeed during Marzul Maut?OPP
(2) If issue No,1 is proved in affirmative, so, its effect?OPP
(3) Whether the plaintiff is entitled to the decree of declaration and possession as well as permanent injunction as prayed for?OPP
(4) Whether the plaintiff has got no cause of action?OPD
(5) Whether this suit is improperly valued for the purposes of court fee and jurisdiction, if so, what is real valuation of this suit ?OPD
(6) Whether this suit is hit by the provisions of Section 172 of the Land Revenue Act ?OPD
(7) Whether this suit is false and frivolous, if so, whether the defendants are entitled to recover the special costs under section 35-A of C.P. C. ?OPD
(8) Relief.
4. Both the parties produced their evidence before the learned trial court in pros and cons and ultimately the suit was dismissed vide judgment and decree dated 16-3-2001. Being aggrieved the plaintiff filed an appeal before the learned lower appellate court and the learned lower appellate court vide judgment and decree dated 6-5-2004 declared the gift as a valid transaction only to the extent of 1/3 share of the disputed property whereas the rest of the disputed property was declared the legacy of deceased and was to be inherited by legal heirs according to Islamic shares. The plaintiff filed Civil Revision No,2147 of 2004 and defendant No,1 filed Civil Revision No,1369 of 2004 against the said judgments and decrees passed by both the courts below, which are being disposed of jointly this single judgment.
5. The learned counsel for the plaintiff has argued that both the courts below while passing the impugned judgments and decrees did not consider that onus of issues Nos.1 and 2 was on the parties and the plaintiff produced best available evidence to discharge his part of onus, but in its rebuttal the defendant No,1 failed to discharge his onus, therefore, the impugned judgments and decrees passed by both the courts below are not sustainable, that deceased was an ailing person having 70/72 years age who died just after 8/9 days of the so called execution of oral gift and these facts coupled with the late/ailing age of the deceased itself would show that the deceased was suffering from a disease which could be fatal, as such proceedings, of oral gift were made in a hasty manner which casted shadow of doubt on the conduct of defendant No,1, that both the courts below while passing the impugned judgments also overlooked the statement of DW-7 (Muhammad Jamil defendant No,1) that deceased was suffering from brain paralysis, that once it was admitted by defendant No,1 being DW-7 that deceased did suffer from brain paralysis thus onus heavily shifted on him to prove that he was capable of making valid gift by the production of medical evidence regarding his treatment. He lastly prayed that the impugned judgments and decrees passed by both the courts below being result of misreading and non-reading are liable to be set aside by declaring the same illegal, unlawful and without jurisdiction. The learned counsel for the plaintiff has relied upon the judgments reported as KHAN MUHAMMAD V. MUHAMMAD DIN THROUGH L.RS, (2010 SCMR 1351), MUHAMMAD AKRAM AND ANOTHER V. ALTAF AHMAD (PLD 2003 SC 688), HAJI ILAHI BAKHSH V. NOOR MUHAMMAD AND OTHERS (PLD 1985 SC 41), ZULFIQAR AND OTHERS V.
SHAHDAT KHAN (PLD 2007 SC 582), ALLAH WASAYA AND ANOTHER V. FALAK SUER AND ANOTHER (2001 CLC 280), MUHAMMAD MAQBOOL V. MUHAMMAD AKBAR AND OTHERS (1999 MLD 2536), WAQQAR AMBALVI V. FAQIR ALI AND OTHERS (1969 SCMR 189), CHIEF ENGINEER, IRRIGATION DEPARTMENT, N. W. F.
P. PESHAWAR AND 2 OTHERS V. MAZHAR HUSSAIN AND 2 OTHERS (PLD 2004 SC 682), HAFIZ TASSADUQ HUSSAIN V. LAL KHATOON AND OTHERS (PLD 2011 SC 296), MST. CHANAN BIBI AND 4 OTHERS V.
MUHAMMAD SHAFT AND 3 OTHERS (PLD 1977 SC 28), NOOR MUHAMMAD KHAN AND 3 OTHERS V.
HABIBULLAH KHAN AND 27 OTHERS (PLD 1994 SC 650), KARAM BEGUM AND 3 OTHERS V. ALLAH DM'A AND 3 OTHERS (PLD 1986 SC (AJ & K) 27), MUHAMMAD BAKHSH V. ELLAHI BUKHSH AND OTHERS (2003 SCMR 286), BARKAT ALI THROUGH LEGAL HEIRS AND OTHERS (2002 SCMR 1938) and MUKHTAR AHMAD V. MST. RASHEEDA BIBI AND ANOTHER (2003 SCMR 1664) to contend that the suit was liable to be decreed as a whole.
6. Conversely the learned counsel for the defendant has argued that heavy onus was laid upon the plaintiff to prove that deceased having been affected with mental incapacity and physical infirmity could not constitute a valid gift as an independent person, but he neither produced any medical certificate nor the physician to discharge the onus of issue. No,1, that the learned Additional District Judge after holding that mutation was properly sanctioned could not held that the gift had been made by the deceased during Marzul Maut, that the learned lower appellate court has failed to consider that when the parties adduced their evidence and onus of issue No,1 was on the parties, which loses its significance, that the learned lower appellate court without assessing the material available on file has passed the impugned judgment and decree on erroneous premises of law.
The learned counsel for the defendant relied upon the judgments reported as JEWAN KHAN AND OTHERS V. FEROZE (PLD 1951 LAHORE 433), MST. JIVANEE V. FEROZE DIN AND ANOTHER (PLD 1962 (W.P.)
REV.54, MST. CHANAN BIBI AND 4 OTHERS V. MUHAMMAD SHAFI AND 3 OTHERS (PLD 1977 SC 28). He lastly prayed for setting aside of the impugned judgment and decree passed by the learned lower appellate court and prayed for restoration of the judgment and decree passed by the learned trial court.
7. Arguments heard and record perused.
8. It is an admitted fact that Majeed son of Karman was the owner of the disputed property and he died on 5-4-1993 leaving behind his brother/plaintiff, widow Saidan Bibi defendant No,1 and his nephew Muhammad Jamil defendant No,
1. His death was got entered in the relevant register of death on 20-5-1993 by Muhammad Jamil defendant No,1. This document is available on file as Exh.D8 at page 64. The column No,8 is relevant, which assigned the reason of death as brain paralysis. It is significant that the said entry was got recorded by defendant No,1 himself and prior to the death of deceased Majeed a Rapt in Roznamcha Waqiati of the Patwari Exh.D2 was alleged to be got entered on 22-3-1993 by the alleged donor Majeed deceased. It is also admitted by the counsel for the defendant No,1 that mutation of gift No,519 Exh.D1 was attested by the Revenue Officer on 27-3-1993 in the absence of alleged donor Majeed deceased on the strength of Rapt Roznamcha Exh.D2. These documents Exh.D1 & D2 are relevant for consideration by this Court.
9. To prove the fact that deceased had been suffering from mental incapacity/brian paralysis, the plaintiff himself appeared as P.W.1 and produced Muhammad Usman as P.W.2. Both the said P.Ws.
Categorically deposed in their examination in chief that deceased had been affected with mental infirmity and also a man of old age. The said portion of their deposition has not been cross examined by defendant No,
1. It is a settled principle of law that if a material fact has been deposed in the examination in chief, but is not questioned during the cross examination, the same shall be deemed to have been admitted in view of the dictum laid down by the superior Courts in the judgments reported as WAQQAR AMBALVI V. FAQIR ALI AND OTHERS (1969 SCMR 189), CHIEF ENGINEER, IRRIGATION DEPARTMENT, N.W.F.P. PESHAWAR AND 2 OTHERS V. MAZHAR HUSSAIN AND 2 OTHERS (PLD 2004 SC 682), (2009 YLR 289), (2000 MLD 404), (PLD 1967 LAH. 1138) and (PLD 2011 SC 296).
10. The deposition of P.W.1 and P.W.2 is further corroborated by Ali Jan P.W.3, who was Lumberdar of the village while stating that entry of death in register of death (Exh.D8) maintained by him was got entered by defendant No,1 himself after appearing before him. The said entry was thereafter incorporated in the register of death maintained by the Secretary Union Council. The perusal of basic document Exh.P3 and P4 maintained by village headman depicts that in column No,10 of the said register the duration of ailment of the deceased was shown to be 25 days whereas such duration was not shown in the copy of register of death Exh.D8, which was maintained by Union Council concerned. The bird's eye view of the said death certificate (Exh.D8) depicts that column of duration of ailment was not visible and has been intentionally omitted to be photocopied as the other columns are shown in seriatim but the said column is missing. To prove the cause of death, the plaintiff produced relevant Lumberdar Ali Jan as P.W.3 who corroborated the entry of Exh.P3 and P4. The said P.W. Was cross examined by the counsel for the defendant No,1 but the veracity of his evidence could not be shaken
11. To rebut the evidence of said P.W.3, defendant No,1 produced Nasir Mehmood, Secretary Union, Council as DW8, who deposed that in his register column No,10 regarding the duration of ailment was left blank by the former Secretary, Union Council and only dash was marked in the said column. Nasir Mehmood DW8 was not a concerned person who had entered death entry of the deceased Majeed rather during the cross-examination it was clarified that Abdul Karim Chaudhry, Secretary, Union Council had entered the said entry, but the said Secretary was not produced by defendant No,1 to prove the contents of Exh.D8. As a column of duration of ailment was provided in Exh.D8 and Exh.P3 and in the initial record maintained by Lumberdar the duration of ailment was mentioned, which has been proved by the said Lumberdar, the non-mentioning of duration of ailment in the register of death by Secretary, Union Council which has also not been proved by producing the relevant Secretary, Union Council an inference can be drawn that prior entry made in the register of Lumberdar had a preference over the entry which was subsequently made by Secretary Union Council on the basis of the record maintained by the Lumberdar but omitted to copy the duration of ailment of the deceased.
12. The contention of learned counsel for defendant No,1 that plaintiff was under obligation to prove the fact that at the time of entry of Rapt Roznamcha and attestation of mutation regarding the gift of disputed property, the donor was suffering from death illness was on the plaintiff, but he failed to prove the said fact is misconceived. Marzul Maut means a disease aggravated that deceased person apprehended that death was more probable than a chance to live, it was only where a person had become so much aggravated that he was depending to apprehend that death was more probable than his chance to live, then the person can be considered to be suffering from Marzul Maut.
13. The plaintiff proved the said fact by producing P.W.1 and P.W.2, whose testimony to the extent that Majeed had been suffering from death illness has not been cross examined and deemed to be admitted by defendant No,1 as observed supra. The said oral evidence has also been supported by the documentary evidence (Exh.P3 and P4) wherein duration of ailment of said deceased spread over twenty five days and the entry of Rapt Roznamcha Waqiati Exh.D2 and attestation of mutation Exh.D1 definitely fell in the said duration. The defendant No,1 in his written statement denied the old age of deceased Majeed at the time of his death, but same has also been affirmed by death entry as mentioned in Exh.P3 and P4 and Exh.D8 that deceased was almost about 70 years of age at the time of his death. After reading entire evidence available on file it does not appeal to a prudent man that Majeed deceased at the age of 70 years while confined to bed had the mental capacity to make an intelligent decision with regard to his landed property. Muhammad Jamil defendant No,1 had a motive to usurp the property of deceased to deprive the other legal heirs of Majeed deceased, who at the relevant time was admittedly living with defendant Muhammad Jamil and totally dependent on him. The Rapt Roznamcha Waqiati Exh.D2 was got recorded on 22-3-1993 and the mutation was attested on 27-3-1993 whereas Majeed took his last breathe on 5-4-1993 after 8/9 days of the attestation of said mutation.
14. In the above fact and circumstances of the case it is proved that on 22-3-1993 and 27-3-1993, at the time of entry of the Rapt Roznamcha Waqiati and attestation of mutation, Majeed deceased had been suffering from Marzul Maut, who was not a person competent to make an intelligent decision, hence the so called transaction reflected in the Rapt Roznamcha Waqiati as well as in the mutation in my view was hit by the vice of mischief and also could not be proved by defendant No,1 Muhammad Jamil. Reliance in this respect can be placed upon the judgments reported as (1999 SCMR 1049), (1992 SCMR 553) and MUHAMMAD SIDDIQUE AND 3 OTHERS V. MUHAMMAD BOOTA AND OTHERS (2009 MLD 917). The case-law cited by the learned counsel for the defendant No,1 is not applicable to the facts and circumstances of the instant case.
15. The plaintiff (P.W.1) stated on oath that disputed Rapt Roznamcha Waqiati as well as mutation (Exh.D2 & D3) were result of fraud and connivance, thus the onus was shifted upon defendant No,1 to prove the transaction of gift independently as well as the attestation of mutation and entry of Rapt in dispute. The defendant No,1 did not plead any of the three ingredients of gif in his written statement that when, where and in whose presence the oral transaction of gift was effected as he failed to give any date, time, venue and even the name of witnesses. Furthermore the defendant also failed to prove the transaction of gift through his evidence. There must be an offer on behalf of the donor E regarding the gift of the disputed property to the donee and that offer must be accepted by the alleged donee and possession of the disputed property was also to be handed over by the donor to the donee, which should be followed by the subsequent event that the said transaction was reported to the patwari for the entry of the same in the register Roznamcha Waqiati and attestation of mutation. The beneficiary/defendant No,1 was bound to prove the alleged transaction of gift as well as the following events by producing reliable and cogent evidence and in the absence of such proof, the mutation of oral gift No,519 in favour of defendant No,1 is liable to be cancelled. Reliance in this respect is placed upon the judgments reported as (2010 SCMR 1351), (PLD 2003 SC 688), (PLD 1985 SC 41) and (PLD 2007 SC 582). The findings rendered by the learned courts below on issues Nos.1 to 3 are erroneous and not supported by the evidence on the record as well as the law on the subject. Even the learned lower appellate court has passed the contradictory order as on the one hand it was observed that the F transaction of gift was made by Abdul Majeed deceased during Marz-alMaut, but surprisingly the disputed gift was upheld to the extent 1/3rd of the property whereas in such an eventuality the same was to be declared null and void as a whole because in view of the observation of this Court in the preceding paras, having been falling in the state of Marz-al-Maut due to paralysis of brain, was unable to make intelligent decision with regard to this landed property. As such the findings of the learned courts below on issues Nos.1 to 3, which are inter linked with each other, are reversed and the said issues are decided in favour of the petitioner/plaintiff. However, remaining issues Nos.4 to 7 were already answered by the learned trial court against the defendant/respondent No,1 and the said findings were not challenged, by filing any cross-objections, hence the said findings cannot be re- opened when the learned counsel for respondent No,1/defendant has also failed to contradict the said findings of the learned trial court from any evidence available on the record.
16. Sequel of the above discussion is that the instant civil revision is allowed, the judgments and decrees passed by both the courts below are set aside and the suit filed by the plaintiff is decreed with costs throughout. The suit property will be devolved upon all the legal heirs of Abdul Majeed deceased according to their legal shares. The civil Revision No,1369 of 2004 filed by the defendant is dismissed.