1. SAJJAD AHMAD, J.-By a registered deed dated the 11th of December 1963, one Muhammad Ismail gifted 4 kanals and 141 marlay of land to petitioner Mst. Razia Begum, who was his second wife. Mst.
2. Arash Jan, his first wife and his children from her, challenged this gift by a declaratory suit, on the ground inter alia that Muhammad Ismail hid made this gift during "Marzul Maut". It is admitted that Muhammad Ismail died on the 31st of December 1963, just 20 days after the execution of the gift deed mentioned above. The suit was decreed by the trial Judge on the ground that the impugned gift had been made by Muhammad Ismail during "Marzul Maut" The petitioner's appeal to the District Judge and second appeal to the High Court have failed, leading to this petition for special leave to appeal.
3. The finding of the learned trial Judge, being one of fact, that the gift deed was executed by Muhammad Ismail when he was suffering from death-bed illness, was concurred in by the learned District Judge in first appeal, and there was thus no legal scope for interference by the High Court in second appeal. Nonetheless, on the petitioner's contention that the evidence bearing on the point was misread, the learned Judges in the High Court have examined the evidence in detail and have confirmed this finding of the Courts below.
4. The learned counsel for the petitioners has contended before us that it was not provo4 that Muhammad Ismail was suffering from any death-bed illness at the time of the execution of the gift deed, which could have created an apprehension to his mind that he might die at any time. We have examined the evidence produced in this behalf, which, besides oral evidence, consists of two medical doctors. The first is P. W. 2 Dr. Ghulam Rabbani, a medical practitioner of Mansehra, who stated that the deceased was a heart patient and that he used to consult him from time to time during two years preceding his demise. The second, namely, Dr. Rafiuddin, who was the medical officer in charge of the Civil Hospital at Mansehra, deposed that Muhammad Ismail was admitted in the hospital on the 12th of October 1963, when he was found to be suffering from congestive heart failure. Dr. Rafiuddin had not himself examined the patient during his stay in the hospital but on the basis of the history-sheet of the patient kept in the hospital, he was able to depose that Muhammad Ismail's heart ailment was in an advanced stage. He stated in cross---examination that congestive heart failure itself was not a disease but was caused by various heart diseases.
5. The learned counsel for the petitioners has challenged the evidence of Dr. Ghulam Rabbani on the ground that he wash not a heart specialist. We are not impressed with this argument, as Dr. Rabbant's credentials as a qualified medical practitioner were not challenged by the petitioner in cross-examination; nor was his opinion challenged on any other basis. The statement of Dr. Rafiuddin was criticised by the learned counsel on the ground that his evidence was inadmissible as he had not himself examined the patient but was speaking from hospital history-chart prepared by Dr. Wasiullah, who had examined and treated the patient during his stay in the hospital as an indoor patient. Dr. Wasiullah had been transferred to Lahore, and his presence, therefore could not be made available without delay and expense, and the history-chart prepared by him in the course of his professional duty, as produced by Dr Rafiuddin, was clearly admissible under section 32 of the Evidence Act. Again this evidence was brought on the record without any objection by the petitioner or his counsel at the trial.
6. The testimony of the other witnesses, who appeared for the plaintiff-respondents, also proves the serious illness of the deceased and this evidence was also not seriously challenged by the petitioners in cross-examination.
7. We consider that the concurrent findings of the Courts below that the gift made by Muhammad Ismail was hit by the doctrine of "Marzul Maut" is well-based on evidence, and there is no ground for our interference. The petition is dismissed.