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Petitioner: NOOR MUHAMMAD KHAN AND OTHERS VS Respondent: HABIBULLAH KHAN AND OTHERS
Court Name: Peshawar High Court Judge(s): Muhammad Ishaq Khan, Syed Usman Ali Shah Title: NOOR MUHAMMAD KHAN AND OTHERS vs HABIBULLAH KHAN AND OTHERS Case No.: Regular First Appeal No, 44 of 1970 Date of Judgment:1985-09-30 Reported As: PLD 1986 Peshawar 97 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' USMAN ALI SHAH, C. J.-This first appeal has arisen in the following circumstances :- ' Late Muhammad Aslam Khan owned considerable agricultural laud and built-up property, had shares in the companies and amounts deposited by him in the Banks. He had four daughters, namely, Mst. Mumtaz Begum, Msi. Fahima Begum, Mst. Amina Begum and Mst. Saeeda Begum and one son, namely, Muhammad Hussain. Muhammad Hussain died in the prime of youth, Mst. Mumtaz Begum was married to Abdul Samad Khan, Mst. Fahima Begum was married to Rehmatullah, Mst. Amina Begum was married to Muhammad Hussain, Mst. Saeeda Begum was unmarried. In 1958, Land Reforms Law was promulgated due to which the excess land was resumed from late Muhammad Aslam Khan and he was left with 817 Acres, 3 Kanals and 13 Marlas. Rs, 2,75,000 was awarded to him as compensation for the excess land resumed from him. He then entered gift Mutations bearing Nos. 1359 to 1362 and 1383 to 1385 with respect to the land situate in village Bahlula in favour of defendants Nos. 3 and 4, daughters of his late daughter Mst. Mumtaz Begum but these mutations were rejected. As regards his residential property, shares in the companies and amounts deposited in the Banks, he gifted the same to his daughter Mst. Saeeda Begum as Banaini. This act on the part of late Muhammad Aslam Khan was resented by Muhammad Hussain (husband of his daughter Mst. Amina Begum) who killed Mst. Saeeda Begum and absconded. Thereafter, late Muhammad Aslam Khan and his wife Mst. Hajira (defendant No, 7) through various mutations and gift deeds gifted his entire immovable and movable properties in favour of defendants Nos. 1 to 5. Defendant No, 5 is their daughter Mst. Fahima Begum, defendants Nos. 1 and 2 are their grandsons from Mst. Fahima Begum while defendants Nos. 3 and 4 are their granddaughters from their late daughter Mst. Mumtaz Begum. The above transactions took place
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between 5-2-1962 and 8-2-1962, 17-2-1962, 6-3-1962 and 9-8-1962. Late Muhammad Aslam Khan died on 23-11-1962 and on his death Dost Muhammad Khan (now dead and is represented by his legal heirs) brought the present suit alleging that late Muhammad Aslam Khan was a heart case and had a high blood pressure, that the resumption of the excess land from him under the Land Reforms Regulation as well as the ' murder of his daughter Mst. Saeeda Begum by his son-in-law Muhammad Hussan (the husband of his daughter Mst. Amina Begum) further deteriorated his health as a result of which he lost his mental balance and of these ailing conditions of late Muhammad Aslam Khan, Rehmatullah, the husband of his daughter Fahima Begum, took undue advantage and brought pressure to bear upon late Muhammad Aslam Khan to donate his entire property in favour of defendants Nos. 1 to 4 which he did. The plaintiff, therefore, sought declaration that he is entitled to 5/24th shares in the inheritance of late Muhammad Aslam Khan and the gift mutations and gift deeds were fictitious and forged as the same were obtained under duress, fraud and undue influence. It may be pointed out that late Muhammad Aslam Khan was the son of Ghulam Khan and plaintiff Dost Muhammad Khan was his (Ghulam Khan's) grandson. ' Defendants Nos. 1 to 5 and 7 contested the suit and in their written statement, the stand taken by them was that till the time of his death Muhammad Aslam Khan was in his perfect senses and had not lost his mental balance and had alienated the suit property to his daughter and maternal grandchildren with his free will and consent and without any duress of undueinfluence. Upon the pleadings of the parties, the learned trial Judge framed the following issues :- (1) Whether the gifts in question, were the result of 'Duress' and fraud and were executed when the donee was not in his proper senses to understand the implication of the transferees ? (2) Whether the mutations were fictitious and were not properly entered and attested ? (3) Are the gifts invalid, because of their being made jointly in favour of more than one donee ? (4) Whether the gifts were made during the 'Marzul Maut'? (5) Whether the gift in favour of Mst. Saeeda Begum was fictitious and was never acted upon ? (6) Whether the gifts are illegal, due to death duty provisions ? (7) Whether the suit is properly valued'? (8) Who are legal heirs ? (9) Relief. ' Upon these issues, the learned trial Judge recorded evidence of the parties and on examination of the same, he dismissed the suit of the plaintiff with costs, vide his judgment dated 20-3-1970. Hence this first appeal. We have heard the learned counsel for the parties and perused the record. Before we proceed to examine the case, let us point out that Mst. Amina Begum daughter of late Muhammad Aslam Khan was impleaded as defendant in the suit. She was served but she did not turn up, therefore, she was placed ex parte by the order of the learned trial Judge dated 31-3-1963. She, however, filed an application on 21-3-1981 before this Court during the pendency of this appeal that she may be transposed as an appellant on the ground that her interest is common with the appellants. We are not prepared to consider her request in this behalf. She was placed ex parte by the learned trial Judge in the suit and she also did not file any appeal within time against the judgment of the learned trial Judge. Thus, the judgment of the learned trial Judge is final against her. Her learned counsel was unable to show any law or proposition of law that she can be transposed as appellant in the present proceedings before us. Mst. Taj Begum widow of late Abdul Hakim son of the plaintiff has also filed application on her behalf and on behalf of her minor daughter Mst. Najma for the dismissal of this appeal on the ground that the gift deeds executed by late Muhammad Aslam Khan in favour of the defendants were valid as he was not suffering from any serious illness at the time of execution of the gift deeds. Similarly Mst. Robina Shahida daughter of the said Abdul Hakim and Mst. Zubaida daughter of late Dost Muhammad Khan have also filed applications for the
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withdrawal of the appeal as regards their claims. We are, therefore, concerned with the claim of the rest of the appellants in this appeal. ' The case of the appellants is that due to the murder of Mst. Saeeda Begum, Muhammad Aslam Khan lost his mental balance on account of which he was raving. He all the time remained in his room on his bed and Rehmatullah did not allow him to move about and meet people. In support of these allegations, the plaintiff produced P. W. 13 a postman, P. W. 14 Syed Ahmad Shah, a relation of Muhammad Aslam Khan, P. W. 18 Muhammad Farid Khan Sub-Inspector and P. W. 19 Pit Ghafoor Shah, another relation of Muhammad Aslam. P. W. 13 Muhammad, a postman stated that he used to hear that due to the death of his daughter Mst. Saeeda Begum, Muhammad Aslam Khan was not keeping good health but he had not personally seen him after the death of Mst. Saeeda Begum. P. W. 14 S. Ahmad Shah stated that Muhammad Aslam Khan was not keeping good health and was overwhelmed by the shock of the death of his daughter and that he used to stay in his house and did not come out to Hujra. He further stated that after the funeral ceremony of Mst. Saeeda Begum he never saw Muhammad Aslam Khan till his death. In cross-examination, he stated that on the day of funeral ceremony of his daughter, Muhammad Aslam Khan was raving but his language was not abusive. He also stated that he tried 5/6 times to see Munammad Aslam Khan but he was not allowed by the Chowkidar who told him that Rehmatullah had imposed ban on him to allow any body to meet with Muhammad Aslam Khan. P. W. 18 Muhammad Farid Khan Sub-Inspector stated that he was present in the graveyard at the time of burial of Mst. Saeeda Begum when Muhammad Aslam Khan was brought in a car supported by two persons. Muhammad Aslam Khan, according to him, was then in a state of nervousness. P. W. 19 Pir Ghafoor Shah stated that he saw Muhammad Aslam Khan in the funeral ceremony supported by four persons and followed by a police party, as it was rumoured that his life was in danger. In cross- examination, this witness further stated that he heard from Rehmatullah after the burial ceremony of Mst. Saeeda Begum that Col. Hussan had resolved to kill Rehmatullah and Muhammad Aslam Khan. He further stated that Muhammad Aslam Khan was telling that he would not recover from his ailing health and would die on account of diabetes. ' As against the above evidence of the plaintiff, the defendants produced official witnesses to show that Muhammad Aslam Khan was in proper senses and no undue influence or coercion was exercised upon him in connection with the above gift mutations and gift deeds executed by him in favour of the defendants. D. W. M. S. Qureshi P. C. S. Was then Joint Registrar. He stated that the gift deed dated 5-3-1962 (Exh. D. W. 2/1) was registered by him at the instance of Muhammad Aslam Khan who was in full senses and understood everything and after having fully understood the contents of the gift deed he signed the same. D. W. 4 Jehan Shah P. C. S. Stated that on 6-7-1972 he had registered the deed of Waqafnama (Exh. E. W. 4/(1) executed by Muhammad Aslam Khan and Mst. Hajira. He further stated that Muhammad Aslam Khan was personally known to him and that he signed the deed in his presence after he heard and understood its conetents. This witness had also registered the gift deed of movable property in favour of defendants Nos. 1 to 4 on 9-8-1962 and according to him Muhammad Aslam Khan was in his full senses at the time of the execution of the deed and had admitted the correctness of everything in the deed and thereafter had signed it in his presence. D. W. 5 Ikramul Haq Khan, Political Tehsildar stated that the gift deed dated 1-2- 1962 (Exh. D. W. 5/1) was executed in the house of Muhammad Aslam Khan who presented the same to him. He stated that Muhammad Aslam Khan was in perfect senses at the time of the execution of the deed and had heard its contents and admitted its correctness. D. W. Zikria Khan, Naib-Saddar Qanungo produced application signed and moved by Muhammad Aslam Khan on 7- 4-1962 before the Tehsildar Charsadda in connection with the attestation of gift Mutation No, 1440 (Exh. D. W. 7/1) which shows that Muhammad Aslam Khan had made the gift deed of his free will. D. W. 8 Sultan Muhammad stated that Mutation No, 1440 was attested in his presence. D. W. 9
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Muhammad Akbar Khan had identified Muhammad Aslam Khan at the time of attestation of Mutation Nos. 1383 and 1384 on 15-6-1962. According to him, Muhammad Aslam. Khan was in prefect senses and hale and hearty. D. W. 32 Captain Muhammad Daud Khan Special Judge, Anti- Corruption stated that on 22-3-1962 Muhammad Aslam Khan had filed application before him for the grant of succession certificate. He was personally known to him and had appeared before him or 9-4-1962 on which date he had recorded his statement. He further stated that he did not notice that the applicant was suffering from any mental ailment. ' The learned trial Judge kept the above evidence of the parties in juxtaposition and by analysing the same he reached the conclusion that late Muhammad Aslam Khan was in perfect senses and had effected the impugned transactions of his own free will in favour of defendants Nos. 1 to 4 and no pressure was exercised upon him in this behalf. He observed that the evidence of the witnesses on behalf of the appellants that after the death of Mst. Saeeda Begum late Muhammad Aslam Khan got mentally deranged was just a hearsay. The learned counsel for the appellants was unable to show any flaw with reference to the evidence on record in the above conclusion of the learned trial Judge. In our view, the plea that late Muhammad Aslam Khan had lost his mental balance after the death of his daughter Mst. Saeeda Begum was manipulated by the appellants in order to make out a case in their favour. Not a single witness produced by them has stated that they had et or seen late Muhammad Aslam Khan after the murder of his daughter. Thus, how a witness who, on his own showing. Had not met or seen late Muhammad Aslam Khan during the relevant period, should be believed that he was a mental case. Nobody would be prepared to give any credence in this behalf to the evidence of such witness. ' As against the case of the appellants, the respondents produced official witnesses who had recorded various documents by which late Muhammad Aslam Khan had gifted his entire property. They stated as one voice that late Muhammad Aslam Khan was in perfect senses and at his instance they had recorded the said documents. These witnesses are disinterested persons and nothing was brought on record on behalf of the appellants to show that they have made undue favour to the respondents. The learned trial Judge was, therefore, right to believe them as against the witnesses produced on behalf of the appellants. We are also unable to believe the allegations of the appellants that nobody was allowed to see late Muhammad Aslam Khan in his house after the C murder of his daughter Mst. Saeeda Begum. If this were so, the plaintiff would have protested against it in his lifetime but there is no evidence in this behalf which belies the allegation of the plaintiff he learned trial Judge was also right in holding that no fraud was exercised upon late Muhammad Aslam Khan to obtain the impugned gifts from him. He observed that the theory of fraud was introduced in the evidence and no plea in this behalf was raised in the plaint. He referred to Order VI, rule 4. C. P. C. According to whichAs the appellant has not satisfied! This legal requirement and even otherwise as there is no convincing evidence on the file in support of the allegation of fraud, the plea in this' behalf will, therefore, have no legal value. The learned trial Judge has also properly appreciated the evidence on record in coming to the conclusion that late Muhammad Aslam Khan had in his lifetime made a gift of his entire residential property, shares of companies and amounts in the banks to his daughter Mst. Saeeda Begum and after her death he restored the said property to him by obtaining a succession certificate from the Court. The discussion of the learned trial Judge on this aspect of the case is contained in para. 13 of his impugned judgment and we cannot help reproducing the same :- "According to the contents of para. 4 of the plaint Muhammad Aslam Kban had made a gift of his entire residential property, shares of Companies and amounts in the Banks to Mst. Saeeda Begum and the contention of the plaintiff is that this gift was fictitious and was never acted upon. But this contention stands disproved by the evidence as produced by the defendants. After the said gift all the residential properties stood transferred in the name of Mst. Saeeda Begum in all the official
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records and that she was herself managing it in her lifetime. The rent of the property named as Saeeda Market in Mard an was realised on beer behalf. The fact that after her death, Muhammad Aslam Khan had obtained a succession certificate of the property left by her, also proves the contention of the defendants. This issue is decided against the plaintiff." No exception can possibly be taken to this finding of the learned trial Judge, as it emanates from reliable evidence of official record. The learned counsel for the appellants was unable to show anything with reference to record in rebuttal of t is finding nor indeed could he do it. ' Learned counsel for the appellants also submitted before us that late Muhammad Aslam Khan had suffered coalgas poisoning and was also suffering from cancer. It was, therefore, urged that the various ailments from which late Muhammad Aslam Khan was suffering coupled with the murder of his daughter Mst. Saeeda Begum would have deprived him of his mental balance and thus according to the learned counsel for the appellants, the defendants taking undue advantage from his mental state got his entire property transferred to them. By going through the record, we find that late Muhammad Aslam Khan had suffered coalgas poisoning before Partition in 1947. Dr. Abdul Hakim Khan appeared as P. W. 2 before the trial Court in this behalf. He stated that the effect of poisoning was transitory on the brain. Thus, it cannot be said that late Muhammad Aslam Khan had lost his mental balance on account of coalgas poisoning, as it was the medical witness produced by the plaintiff who disproved their claim that late Muhammad Aslam Khan was a mental case. The plaintiff also produced a certificate to show that late Muhammad Aslam Khan was suffering from cancer. A look at this certificate will show that the word 'cancer' was interpolated in the said certificate. The certificate is, therefore. Doubtful, the moreso as no other evidence was brought on record to show that late Muhammad Aslam Khan was suffering from cancer. We are satisfied that the ailment of cancer attributed to late Muhammad Aslam Khan was an attempt on behalf of the plaintiff to lend support to his case but there is no satisfactory evidence about it and the learned trial Judge was, therefore, right to disbelieve the plaintiff in this behalf. ' Learned counsel for the appellants contended that in any case late Muhammad Aslam Khan was suffering from Marz-ul-Maut (mortal illness) on account of his heart case and high blood press therefore, according to the learned counsel, he was always under the pressure of the sense of imminence of death. In support of his contention, he referred to an authority of the Supreme Court reported in the case of Mst. Chand Bibi and 4 others v. Muhammad Shafi and 3 others (1) to show that if gift made under the pressure of the sense of the imminence of death, it will be hit by the doctrine of Marz-ul-Maut. The learned counsel for the respondents also relied upon the above authority of the Supreme Court and contended that the law laid down by the Supreme Court in that authority is not that if a person had executed gift during the course of a particular ailment, it will always be regarded a gift on account of Marzul-Maut. The learned counsel for the respondents urged that in the present case the deceased had not executed the gifts in favour of his clients under the pressure of the sense of imminence of death or for that matter on account of Marz-ul- Maut and this fact, according to the learned counsel, is clear from the facts and circumstances of the case. ' There can be no quarrel with the proposition of law laid down in the cited authority but by going through the same, we find that what has been laid down therein is that if a person had died during tne period of a particular disease and during that period he had made a gift, it will not always be the ground that he had made the gift on account of Marz-ulMaut unless it is shown that he had made the gift under the pressure of the sense of the imminence of death on account of Marz-ul- Maut. Muhammad Gul, the Hon'ble Judge of the Supreme Court (as he then was) who recorded the judgment took note of the two authorities reported in the case of Hamudullah Khan v. Khurshaid Ahmad Khan (2) and in the case of Ibrahim Ghulam Ariff v. Saiboo (3) and observed that in order to
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sustain the conclusion that a person has made a gift under the pressure of the sense of the imminence of death, the following factors shall be taken into consideration :- (1) 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 engender in 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 ?" ' As regards the first factor, the Supreme Court observed that this question is essentially a question of fact and the best evidence could be that of a medical attendant who treated the deceased at the relevant time. It was further observed that although the evidence of laymen particularly of relatives may be relevant but it cannot be conclusive particularly when it is partisan and exaggerated. It may be pointed out that in the cited case the deceased made the gift on 1-9-1955 and died on 12-9-1955 i. e. Eleven days after he made the gift. The Supreme Court with reference to the evidence on record observed that the plaintiff admitted that the (1) PLD 1977 SC 28 (2) PLD 1958 SC (Pak.) 516 (3) 34 1 A 167 deceased remained under the treatment of a Hakeem but he was not examined and this omission was held as a serious drawback in the plaintiff's case. As against the cited case, the deceased in the present case made the gifts between 5-2-1962 and 8-2-1962. 17-2-1962, 6-3-1962 and 9-3-1962 and died on 23-11-1962. Thus, in the present case the deceased was alive for months after he made the gifts. While in the cited case the deceased died within a few days after he made the gifts but even so the learned Supreme Court, in the absence of medical evidence, ruled out the possibility that the donor was suffering at the time of the gift from a disease which was the immediate cause of his death. The dictum of law laid down by the Supreme Court in the cited authority, therefore, squarely fit in with the present case, as there is no direct and positive evidence that the deceased in the present case made the gifts on account of immediate cause of his death, the moreso as he lived long after he made the gifts. ' The Supreme Court then dealt with the second factor and observed that this fact is germane to the state of mind of the donor at the time of execution of the impugned instrument and this fact is not capable of direct proof by any objective standard but it is a matter of inference to be raised from certain proved or admitted facts. It was further observed that the question whether or not an inference has been rightly raised is always a matter of law or at any rate a mixed question of law and fact and not purely of fact. Having formulated this question, the Supreme Court dealt with the merit of the case in this behalf and observed as under :- "Again the mental condition of a deceased person at a given point of time is a subtle problem moreso as in the instant case where the deceased has been suffering for a long time and the ambient circumstances are equivocal. On this fact of the case, it is difficult to brush aside the evidence of Abdul Rahman, Naib-Tehsildar D. W. 1 who registered the gift deed on 1-9-1955 and Ghulam Rasul, Sub-Treasurer D. W. 7 who sold the stamp to Rajwali. According to both these witnesses Rajwali was mentally fit and answered the questions. Old age and illness per se according to the Privy Council's dictum in Ariff's ease noticed already are insufficient to sustain the inference that the donor was under 'pressure of sense of the imminence of death'. In that case Ghulam Ariff executed seven deeds of gift and a deed of conveyance and assignment on 2-4-1902 and 3-5-1902 in favour of his two widows and minor children. He died on 16-5-1902. A number of suits were brought by another widow and her children for setting aside these gifts and conveyance inter alia on the ground that these were death-bed transactions and, therefore, invalid. The
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findings of fact were that Ghulam Ariff was an elderly man who had not led a careful life ; he suffered and 'knew that he suffered from degeneration of the arteries and liver, and he had been sharply ill'. Notwithstanding these facts, it was held by the trial Court and the Chief Court of Lower Burma that marz-ul-maut was not in any way established. In reaching that conclusion, non- medical evidence produced was ignored and reliance was placed exclusively on the evidence of two doctors Colonel Frenchman and Colonel Devies who had. Examined and attended the deceased and stated that they did not expect that ..His illness would terminate fatally. Their Lordships of the Privy Council on the dictum referred to above, upheld the above decision." ' Now in the present case, we have already come to the conclusion that there is no direct proof on record to show that late Muhammad Aslam Khan was under the pressure of…
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