' One Abbas Ali son of Maula Bakhsh was owner of land measuring 157 Kanals, 13 Marlas in revenue estate Domali, Tehsil and District Chakwal. He died on 15-7-1984 (Exh.P.3 the death certificate). He was survived by a widow Mst. Said Jan, respondent No,2, a daughter Mst. Nazir Begum, since dead on 2-11-1984, a sister Mst. Lakht Bano, since deceased and survived by her daughter Mst. Sahib Noor respondent No,3, and a nephew (real brother's son) Muhammad Ajaib, the petitioner. Said Abbas Ali left no male issue. Abbas Ali in his lifetime made an oral gift of 137 Kanals, 14 Marlas of land in favour of the petitioner and acknowledged it in writing vide dated 27-4-1984 (Exh.D-1) in presence of the marginal witnesses. On the same date vide deed in writing Exh.D-2 he made a gift of his remaining land measuring 19 Kanals, 19 Marlas, i.e, 1/8th share of his total land, to his wife Mst. Said Jan in presence of the same witnesses. Mutation 332, Exh.P.1, was entered on 29-10-1984 to give effect to gift-deed Exh.D.1. It is the further case of the petitioner that Mughal Hussain, respondent No,1, who had succeeded his deceased wife Mst. Nazir Begum, participated in the inquiry and objected to the attestation of the gift mutation on the basis of Exh. D.1, the acknowledgement deed.
The appeal filed against Mutation No,332 by respondent No,1 was dismissed on 11--6-1985.
2. On 15-5-1991, the plaintiff-respondent Mughal Hussain instituted a suit, claiming the share in the estate left by Abbas Ali as an heir to Mst. Nazir Beguni after annulment of gift deeds and mutations sanctioned on their basis, in the Civil Court at Chakwal. The impugned mutation was challenged on the ground that Abbas Ali, donor, was suffering from Cancer, he was unable to walk; he was not in his senses and the gift was made under 'pressure of sense of imminence of death' and therefore was hit by the doctrine of `Marz-ul-Maue. It was further stated in the plaint that with an aim to deprive the plaintiff from his lawful share in the inheritance the defendant-petitioner with mala fide intention prepared a fictitious acknowledgement deed dated 27-4-1984 on the basis of which he got the mutation attested on 29-10-1984 with the connivance of the Revenue Department; that no mutation was made by the donor in his lifetime.
3. The petitioner and respondent No,2 contested the suit by filing the written statements, in which all the allegations contained in the plaint were controverted, whereas Mst. Said Jan, defendant No,1 conceded the suit of the plaintiff Mughal Hussain.
4. From the divergent pleadings of the parties, following issues were framed by the trial Court:--
(1) Whether the suit is not maintainable in its present form? OPD, 2,3.
(2) Whether the suit is barred by limitation? OPD 2, 3.
(3) Whether the plaintiff is estopped by his words and conduct to bring the present suit? OPD 2, 3:
(4) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? If so, what is correct valuation? OPD 2, 3.
(5) Whether the deceased Abbas Ali had made a gift of 137 Kanals, 14 Marlas out of his property to the defendant No,2 and with this connection some document was also written on 27-4-1984? If so, its effect? OPD 2, 3.
(6) Whether the deceased Abbas Ali was not suffering, from Marz-ulMaut at the time of impugned gift? OPD 2, 3.
(7) Whether the plaintiff is entitled to the relief as prayed for in the headnote of the plaint? OPP (7-A) Whether the Mutations Nos.332 and 333 dated 20-10-1984 are liable to be set aside as are a result of fraud, and a result of pressure? OPP.
(8) Relief.
5. The parties led their evidence. On the question of limitation under Issue No,2, the learned Civil Judge held that the appeal of the plaintiff before the Revenue Authorities was dismissed on 11-6- 1985, the suit was filed on 26-2-1991 after the lapse of more than five years; the prescribed limit for a suit for declaration challenging the mutation or any such entry is 6 years, so though the suit of the plaintiff is filed on the delayed stage, but is within time. Issues Nos.3 and 4 were not pressed. On the basis of the statement of Bahadur Khan, scribe of the acknowledgement deed Exh.D-1 and the marginal witnesses, the learned Civil Judge, Chakwal held that in fact Abbas Ali made a gift of 137 Kanals and 14 Marlas out of his property to the defendant No,2 and with this connection document dated 27-4-1984 Exh.D.1 was written in favour of defendant No,2. Under Issue No,6 it was observed that there is no evidence in rebuttal by the plaintiff which may show that deceased Abbas Ali as suffering from `Marz-ul-Maue at' time of the impugned gift, therefore, Issue. No,6 was decided in favour of defendants Nos. 2 and 3. Under Issues Nos.7 and 7-A the finding of the learned Civil Judge was that, "the perusal of Exh.P.l Mutation No,332 reveals that the witnesses of the defendant in the Exh.D.l also appeared before Tehsildar at the time of execution as Exh.P.1. And Exh.P.2 and supported the making of gift in favour of defendants". Therefore he proceeded to observe that Mutation No,333 in favour of Mst. Said Jan, widow of Abbas Ali is liable to be cancelled in view of the conceding written statement dated 14-5-1991 of defendant No,1 Mst. Said Jan and to the extent of Mutation No,332 the suit of the plaintiff was dismissed vide judgment and decree dated 19-4-1993. -
6. Mughal Hussain, respondent-plaintiff being aggrieved from the aforesaid judgment and decree of the trial Court filed an appeal, which was allowed by the learned Additional District Judge, Chakwal, vide his judgment and decree dated 9-10-1996. On the material issue of `Marzul-Maur it was held that at the relevant time Abbas Ali, donor, suffered from `Marz-ul-Maue; no valid gift in favour of Muhammad Ajaib, petitioner, by Abbas Ali was made; Mutations Nos.332 and 333 were not legally attested in favour of Mst. Said Jan and Muhammad Ajaib and consequently the learned First Appellate Court held that following persons are entitled for the estate left by Abbas Ali according to their shares:--
(1) Mst. Said Jan (widow) 1/8th share.
(2) Mst. Nazir Begum (daughter) 1/2 share.
(3) Mst. Bakht Bano (sister) 3/8th share.
' Mst. Nazir Begum's share was further distributed to her husband and Muhammad Ajaib in equal shares.
7. Feeling aggrieved of the judgment and decree of the learned Additional District Judge, Chakwal, dated 9-10-1996, the petitioner has filed the present civil revision.
8. The learned counsel for the petitioner contends that the suit instituted by the plaintiff- respondent No,I Mughal Hussain was barred by limitation. He was aware of the gift deeds and also attestation of two Mutations Nos.332 and 333. The period prescribed for cancellation of the gift is provided in Article 91 of the Limitation Act, 1908 and for mutation in Article 120 of the aforesaid Act.
He contends that in the context of the above stated Articles of the Limitation Act, the suit instituted after the period prescribed was barred by limitation, which question was not attended to by the learned First Appellate Court; that there was neither any credible oral nor documentary evidence to support and suffering of 'death malady' `Marz-ul-Maul' by. Abbas Ali at the time of making of gift of his land by him in favour of the petitioner and his wife Mst. Said Jan. According to the learned counsel, the finding on issue of `Marz-ul-Maul' was without any evidence to support it. To substantiate his contention, the learned counsel has relied on the cases reported as Shamshad Ali Shah and others v. Hassan Shah PLD 1964 SC 143; Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1977 SC 28 and Noor Muhammad Khan and 2 others v. Habibullah Khan and 27 others' PLD 1994 SC 650; that the learned trial Court on the basis of evidence found that gift- deeds Exh.D.1 and Exh.D.2 were voluntarily executed by Abbas Ali in his lifetime; the learned First Appellate Court without reference to the oral evidence adduced in support of the execution of the gift-deeds, in the testimony of the scribe and marginal witnesses, decided Issue No,5 against the petitioner; that mere filing of a conceding statement of Mst. Said Jan which has been highlighted by the learned First Appellate Court in its judgment was not adverse to the validity of the gift deeds and attestation of Mutations Nos.332 and 333.
9. On the other hand, the learned counsel for the respondents contends that the impugned Mutations Nos.332 and 333 were sanctioned on 29-10-1984 much after the death of Abbas Ali, donor, who died on 15-7-1984 due to cancer as it is evident from his death certificate Exh.P.1; that the gift of Mutation No,333 in favour of Mst. Said Jan was got sanctioned only to cover fraud committed by the petitioner who was otherwise entitled for 19 Kanals, 19 Marlas of land which was 1/8th share of the donor's property measuring 157 Kanals and 13 Marlas; that there was neither any declaration nor delivery of possession and acceptance was not made by the donee therefore there was no valid gift made by Abbas Ali in favour of the donee; that acknowledgement Exh.D.1 was based on fraud and fictitious and if the same was proved to have been executed by Abbas Ali according to the scribe and the marginal witnesses there is no mention of any date, time and place of making the gift and the witnesses in whose presence the declaration was made.
10. I have considered the arguments of the learned counsel for the parties and perused the record with their assistance. In this case, Issues Nos.5 and 6 are consisting of two parts. First part is regarding the making of gift of 137 Kanals, 14 Marlas by deceased Abbas Ali of his property to the petitioner-defendant No,2, and the second part is in connection with some document which was written on 27-4-1984 under the `pressure of sense of imminence of death'/ 'Marz-ul-Maut' on the basis of which Mutations Nos. 332 and 333 dated 20-10-1984 were sanctioned in favour of the petitioner and Mst. Said Jan. Before adverting to the second part regarding question of execution of the document dated 27-4-1984 Exh.D.1 and Marz-ulMaut, it is appropriate to see whether Abbas Ali deceased, in fact, made a gift in favour of the petitioner and Mst. Said Jan. There are three essentials of a gift, as given in section 149 of the Muhammadan Law, which are as under:--
(1) A declaration of gift by the donor.
(2) An acceptance of the gift, express or implied, by or on behalf of the donee; and
(3) Delivery of possession of the subject of the gift by the donor to the donee as mentioned in section 150.
11. On the touchstone of section 149 of the Muhammadan Law, I have examined the pleadings and evidence of the parties on the record. Admittedly, there is no date, time and place alleged by the petitioner-defendant regarding declaration of gift by the donor in presence of the witnesses. It is own case of the petitioner that the gift was made earlier and the acknowledgement Exh.D.1 was executed in presence of the witnesses, which was scribed by Bahadur Khan, D.W.4 (wrongly numbered as D.W.2), which was signed as marginal witness by Muhammad Yaqub and Muhammad Nawaz, D.W.1 and D,W,2. The acknowledgement deed Exh.D.1 contains the following statements:- {{URDU TEXT}} ' The marginal witnesses, namely, Muhammad Yaqub, Muhammad Nawaz and Jehandad, D.Ws.1 to 3, respectively, stated that Abbas All made the gift on the date of the execution of the acknowledgement deed, All the D. Ws. Are silent about the date, time and place of making the declaration of the gift in favour of the petitioner. Regarding the second ingredient, i.e, delivery of possession, in the acknowledgement deed Exh.D.1 it is nowhere stated that possession has been delivered in favour of Muhammad Ajaib petitioner 2 months prior to 27-4-1984, of execution of Exh.D.1. No document of delivery of possession has been produced by the petitioner-defendant.
Exh.D .5 copy of Khasra Girdawari shows the possession of Muhammad Ajaib from Kharif 1987 to Rabi 1991. The fact that Abbas Ali had made the gift in presence of the witnesses two months prior to the execution of the acknowledgement deed was not entered in the Rapt Roznamcha. On the contrary, the statement contained in the Mutation No,332 Exh.D.3 is that the mutation is in accordance with the writing dated 27-4-1984 (Exh.D.1).
12. From all the above stated facts, it is proved beyond any shadow of doubt that there was no valid gift made by Abbas Ali in favour of the petitioner Muhammad Ajaib and the Acknowledgement Deed, Exh.D.1 dated 27-4-1984 was prepared after the death of Abbas Ali on the basis of which the petitioner manoeuvred attestation of mutation in his favour.
13, Article 79 of the Qanun-e-Shahadat Order, 1984 is regarding proof of execution of a document required by law to be attested. It is established principle of law that it shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution, if there be two witnesses alive and subject to the process of the Court and capable of giving evidence. There is weight in the contention of the learned counsel for the petitioner that the writing is not essential to the validity of the gift either of movable or immovable property (see section 147 of the Muhammadan Law) and the finding of the learned -Additional District Judge that 'there is no explanation from the contesting respondents' side as to why the donor did not execute registered gift-deed' is not warranted, but the learned Additional District Judge rightly proceeded to observe that 'as to why the donor did not get entered the mutation of gift if at all he wanted to transfer his landed property to respondents-defendants Nos.1 and 2'. The mere production of the scribe and the marginal witnesses of the acknowledgement deed D.Ws.1 and 2 would not absolve the petitioner to prove a valid gift in his favour by Abbas Ali, donor, because this is not the case of the petitioner that gift was made through document Exh.D.1 (Acknowledgement Deed). The meanings of word 'Acknowledgement' have been given in different Dictionaries. According to Black's Law Dictionary, the meanings are:-- "To 'acknowledge' is to admit, affirm, declare testify, avow, confess, or own as genuine."
' According to Chamber's English Dictionary, 'acknowledgement' means, recognition, admission, confession, thanks, an intimation of reciept.- ' According to the Concise Oxford Dictionary, 'acknowledgement' means, act of acknowledging, thing given or done in return for a service, message etc., author's statement of indebtedness to others. When the petitioner has not been able to prove valid gift made by Abbas Ali in his favour, there was no question of acknowledgment, or admission or affirmation or testifying or confessing any previous act of the donor.
14. Now, I would proceed to decide the question of Marz-ul-Maut. To decide the controversy between the parties section 135 of the Muhammadan Law by D.F. Mulla is relevant, which is reproduced as under:-- "135. Gift made during Marz-ulMaut.---A gift made by a Muhammmadan during Marz-ulMaut or death illness cannot take effect beyond a third of his estate after payment of funeral expenses and debts, unless the heirs give their consent, after the death of the donor, to the excess taking effect; nor can such a. Gift take effect if made in favour of an heir unless the other heirs consent thereto after the donor's death.
' Explanation.---A Marz-ul-Maut is a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death."
15. The parameters of 'Marz-ul-Maut' were highlighted and discussed at length in the cases of Shamshad Ali Shah etc. PLD 1964 SC 143; Mst. Chanan Bibi and 4 others PLD 1977 SC 28 and Noor Muhammad Khan and 2 others PLD 1994 SC 650. The ratio of the above-referred judgments is that the controversy in regard to Marz-ul-Maut should be settled in accordance with the following guidelines:--
(i) Was the donor suffering at the time of the gift from a disease which was the immediate cause of his death?
(ii) Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby, or to endanger to him the apprehension of death?
(iii) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations--a circumstance which might create in the mind of the sufferer an apprehension of death?
(iv) Had the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady?
16. There is a death certificate of the donor Abbas Ali (Exh.P.1) on the file. Subha Sadiq, P.W.1, Nazar Hussain, P.W.2 and Mughal Hussain, P.W.3 deposed that Abbas Ali died of cancer and that he was more than 85 years of age. The death entry of Abbas Ali, Exh.P.3, shows that he died of cancer in the age of 85 years on 15-7-1984. The question whether the donor suffered at the time of gift from a disease which was immediate cause of his death is a question of fact. It has been observed in the case reported as Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others PLD 1977 SC 28 that:-- "Best evidence on the point is that of medical attendant treating deceased at relevant time-- Evidence of a layman, particularly of relatives may be relevant but not conclusive when partisan and exaggerated . "
' In the above case of Mst. Chanan Bibi (supra) the deceased admittedly remained under treatment of a Hakim, but such Hakim was not examined and it was held that omission to examine Hakim was a serious drawback on the plaintiff's case, and since heavy burden of proving Marz-ul- Maut lies on the plaintiff the plea of Marz-ul-Maut was not accepted.
17. The learned Additional District Judge rightly observed that cancer-patients always remain under the immediate apprehension of death. Abbas Ali was of considerable advanced age coupled with the fact that he was suffering from cancer and the entry in the death certificate Exh.P.3 has not been denied by the respondent. The learned Additional District Judge rightly held that at the time of execution of acknowledgement deed the said donor was suffering from a disease in which the patient always remains under immediate apprehension of death.
18. The learned counsel for thepetitioner on the strength of the case reported as Hakim Muhammad Buta etc. v. Habib Ahmad and others PLD 1985 SC 153 contends that in matter of limitation it cannot be left to the pleadings of the parties but a duty was imposed on Court itself in this regard. The learned Additional District Judge has failed to discharge his duty by not discussing the issue of limitation.
19. It is admitted position on the record that the matter of disputed attestation of Mutations Nos.332 and 333 went before the Revenue Authorities and the appeal of the respondent was dismissed by the learned Collector on 11-6-1985 with the observation:-- "In view of the above, I find no merit in appeal and dismiss the appeal accordingly. However, if the appellant wants to pursue the case he should challenge the gift in the Court of competent jurisdiction."
' In this view of the matter, the suit for declaration challenging the validity of the gift Mutation No,332 Exh.P.1 dated 29-10-1984, filed on 15-5-1991 was within time under Article 120 of the Limitation Act. The cases of Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762 and Hakim Khan v.
Aurangzeb and another 1979 SCM R 625 do not apply to the facts and circumstances of the present case. Similarly, Article 91 of the Limitation IN Act has no nexus with the case of the respondent- plaintiff as he has not filed the suit for cancellation of the acknowledgement deed, but sought a declaration from the Court under section 42 of the Specific Relief Act and in that eventuality the suit filed within six years under Article 120 of the Limitation Act was within time.
20. The learned Civil Judge fell in error by misreading the evidence on the record regarding making of the gift by Abbas Ali in favour of the petitioner. He further misinterpreted the provisions of sections 135 and 149 of the Muhammadan Law regarding the essentials of gift and Marz-ul-Maut.
The learned Additional District Judge has rectified the mistake by accepting the appeal.
' No illegality or irregularity has been committed by the learned Additional District Judge by accepting the appeal through the impugned order. Resultantly, this revision petition fails and is dismissed.