SYED JAMSHED ALI, J.- The land in dispute measuring 25 Kanals 5 Marlas was owned by Mst.
Jannatan which was orally gifted by her in favour of Mst. Pathani, her real daughter from, the first husband. Mutation No. 637 was entered on 8.9.1968 and the statement of the donor was recorded on 16.9.1968. Mst. Jannatan died on 21.9.1968. Thereafter, on 31.10.1968, the aforesaid mutation was sanctioned.
2. Muhammad Ramzan, who is the second husband of Mst. Jannatan, brought a suit to challenge the said mutation on the ground averred in para 5 of the plaint to the effect that the donor was not in her senses and was not in a position to make any statement, therefore, the said mutation was illegal and in-operative qua the rights of the plaintiff-deceased respondent, now represented by his legal heirs.
2. The suit was contested by the petitioner on which a number of issues were framed and the suit was tried. It was remanded twice and in pursuance of the order of remand dated 6.1.1976 of the learned first Appellate Court, the suit filed by Muhammad Ramzan was decreed on 23.12.1976, the gist was held to be valid to extent of 1/3. The learned Trial Court, however, found that the donor Mst.
Jannatan was in full possession of her senses and could make a sensible statement.
3. Mst. Pathani appealed against the said judgment and decree. It was dismissed vide judgment and decree dated 29.9.1977 passed by the learned first Appellate Court. The learned counsel appearing for the petitioner has assailed the said judgments on the following grounds:-
(a) That the finding of the learned Trial Court was self-destructive in as much that after holding that Mst. Jannatan was fully in possession of her senses to make a sensible statement, the gift could not have been undone on the ground of Maraz-ul-Maut.
(b) That there was no medical evidence to establish the nature of illness and the cause of death.
(c) Mere old age or un-specified ailment was not a ground to declare that gift by Mst. Jannatan was made during Maraz-ul-Maut.
(d) The learned two Courts have not adverted to the considerations on the subject i.e. The mental condition of the donor, the length of ailment and cause of death etc. And have based their finding merely on the fact that she died on 21.9.1968 after making statement before the Revenue Officer on 16.9.1968.
(e) That heavy burden lay on the plaintiff to prove that the gift was made during Marz-ul-Maut which was not discharged by the plaintiff. He relied on Mst. Chanan Bibi and 4 others Versus Muhammad Shaft and 3 others (PLD 1977 S.C. 28) and Noor Muhammad Khan and 3 others Versus Habibullah Khan and 27 others (PLD 1994 S.C. 650).
4. The learned counsel appearing for the respondent has contended that the matter stands concluded by incurrent finding of fact and, therefore, it is immune from scrutiny in second appeal.
He next contended that un-disputedly the mutation was attested on 31.10.1968 while the donor died on 21.9.1968 and therefore, it could not have been attested.
5. I have considered the submissions made and have examined the record with the assistance of the learned counsel. I am fully mindful of the binding nature of a finding of fact in second appeal but it is not based on the evidence produced by the plaintiff-respondent and is, therefore, open to examination.
6. The sole ground on which the gist was challenged was that the donor was not in possession of her senses and, therefore, was not in a position to make a sensible statement. This plea was supported by the evidence of PW-2, PW-6 and PW-7. According to them Mst. Jannatan was not in possession of her senses, she lost consciousness and was not in a position to identify them. I have noticed that the plea of Maraz-ul-Maut was not even raised in the plaint. It is a case in which the suit filed by the plaintiff was decreed on a plea which was not even raised in the plaint. I may refer to Mst. Balqees Begum and 11 others Versus Mehfooz Hussain and 9 others (PLD 1995 Lahore 113), Government of West Pakistan (now Punjab) through Collector, Bahawalpur Versus Haji Muhammad (PLD 1976 S.C. 469) and Binyameen and 3 others Versus Chaudhry Hakim and another (1996 S.C.M.R. 336) in support of the proposition that unless a fact is pleaded, it cannot be allowed to be proved and even evidence led thereon cannot be looked into. The framing of issue No. 1 was, therefore, totally unjustified. There was no evidence adduced by the deceased-respondent either that Mst. Jannatan was suffering from death illness. I may refer to Haji Abdul Razzaque Versus Pakistan through Secretary, Ministry of Defence and 2 others (1994 C.L.C. 613) to reiterate that a plaintiff can only succeed on clearance of his proof. There is not a word of discussion in the judgments of the learned two Courts of the evidence produced by the respondent- plaintiff. The foundation of their judgments is the material borrowed from the cross-examination of the witnesses of the defendants. This could not be done. Reference may be made to Tariq Mahmood Versus Muhammad Asghar (1990 C.L.C. 1214).
7. The Revenue Officer who recorded the statement of Mst. Jannatan was examined as DW-2 who categorically deposed that Mst. Jannatan was in fit state of mind. His testimony was duly supported by DW-7 & DW-8. With the evidence of DW-2, the case made out by plaintiff-respondent was completely demolished. The two learned Courts committed an error of law in declaring the gift as a will on the ground of Marz-ul-Maut on the basis that Mst. Jannatan had remained ill and died within a few days of making the gist. Mere old age or illness per-se were not sufficient to hold that Mst. Jannatan was (suffering from any death illness.
8. The evidence brought on record by the plaintiff only shows that Mst. Jannatan had an abcess.
This" can hardly be a decease haunting in one with fear of death. The nature of illness remained unspecified and the cause of death remained unspecified as no medical evidence was produced.
The main reason that Mst. Jannatan,the donor died 4 days after making the gift is a clear mis- direction. Reference may be made to Namdor Versus Muhammad Sadiq (20 I.C. 900) in which it was held that death of a person within a few days of making a gift is not sufficient to invalidate it on the ground of Marzjul-Maut. In this case, the mutation attested after the death of the donor was also found to be in order.
9. The apprehension in some body else's mind that a person was likely to die is not enough. The fact that donor was suffering from Marz-ul-Maut has to be proved like any other^r fact and it is his apprehension which is material. The basis to declare a gift invalid during Marz-ul-Maut was that because of imminent feat of death a person was in-capacitated to take a proper decision. It is the mental incapacity which is more important than the physical incapacity. If despite physical incapacity, one is able to take an intelligent decision than the transaction cannot be nullified. Here, in this case, the evidence of the Revenue Officer who recorded donor's statement clearly establishes that the donor was in a fit state of mind. The decisions in the cases of Noor Muhammad Khan supra and Mst. Chaman Bibi supra provide valuable guidelines and viewed in the light thereof, it was a case of no evidence that Mst. Jannatan was suffering from death illness. The circumstance, and that too brought out during cross-examination of the witnesses of the defendants that Mst. Jannatan was produced before the Revenue Officer on a Charpoy could hardly be sufficient to arrive at the finding that gift made by her during death illness.
10. In view of the above, this appeal is allowed, the judgments and the decrees of the Courts below are set aside and the suit filed by Muhammad Ramzan, the deceased respondent is dismissed. The parties are, however, left to bear their on costs.