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Petitioner: NOOR MUHA MAD KHAN And , Other VS Respondent: HABIBULLAH KHAN And 27 Other
Court Name: Supreme Court of Pakistan Judge(s): Saleem Akhter, Nasim Hasan Shah, Manzoor Hussain Sial Title: NOOR MUHA MAD KHAN And , Other vs HABIBULLAH KHAN And 27 Other Case No.: Civil Appeal No. ,174-P of 1990 Date of Judgment:1994-04-04 Reported As: PLD 1994 Supreme Court 650 Result: Appeal dismissed
JUDGMENT
JUDGMENT , SALEEM AKHTAR, J. --This appeal with the leave of the Court arises from the judgment passed by the learned Judges of the High Court whereby the regular first appeal filed by the appellants against the judgment and decree passed by the learned trial Court was upheld and appellants' suit was dismissed. 2. Briefly the facts are that Muhammad Aslam Khan, .a resident of Mardan District, died on 23-11- 1962 at the age of 78 years. He owned extensive movable and immovable properties. The immovable properties comprised agricultural and urban lands, houses and a market. The movable properties consisted of. Bank balances, commission bonds and shares in companies. He bad married thrice. One of his wives, namely, Mst. Khurshid Begum, died during his lifetime. She gave birth to a son who died before getting married. Of the other two wives, Mst. Shafa Jan was issueless. She lived with her brother in Hoti and was provided maintenance by her _ husband. The third wife Mst. Hajira Begum gave birth to for daughters, namely, Mst. Mumtaz Begum, Mst. Faheema Begum, Mst. Ameena Begum and Mst. Saeeda Begum. Mst. Mumtaz Begum also died during his lifetime. She had two daughters, namely, Mst. Naseema Begum and Mst. Naeema Begum. Of the other three daughters, Mst. Saeeda Begum remained unmarried. Mst. Faheema Begum was married to one Rehmatullah Khan. Habibullah Khan and Ikramullah Khan are her sons. Mst. Ameena Begum was married to one Col. Muhammad Hasan Khan. 3. The unmarried daughter Mst. Saeeda Begum lived with her father and looked after him. Muhammad Aslam Khan doted on her and transferred considerable property in her' favour. She constructed a market in Mardan with the funds provided to her by her father. She was recipient of other gifts also from her father. These gifts turned out to be her undoing. Out of sheer jealousy, Col..
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Muhammad Hasan Khan murdered her on 3-1-1962. He was convicted by a Military Court and sentenced to serve imprisonment for life. Muhammad Aslam Khan was badly affected by her death. In order to deprive the progeny of Col. Muhammad Hasan Khan from his estate after his death, he made a number of gifts between 6-3-1962 and 9-8-1962 whereby he transferred all his property, both movable and immovable, mainly in favour of the children of Mst. Mumtaz Begum and Mst. Faheema Begum. 4. After the death of Muhammad Aslam Khan, one of his third degree eollaterals, namely, Dost Muhammad Khan, filed a civil suit claiming 5/24th share in the properties formerly belonging to him. He challenged the legality of the gifts made by him on a number of grounds. He alleged that on account of the murder of his daughter Muhammad Aslam Khan who was already a sick man, suffering from diabetes, enlarged prostate and high blood pressure, had completely broked down. Taking advantage of his mental condition, Rehmatullah Khan, husband of Mst. Faheema Begum, isolated him from all outside contacts and then by exercising undue influence and pressure he made Muhammad Aslam Khan to gift above all his properties to his own children and the children of Mst. Mumtaz Begum. Apart from that, the shock of Mst. Saeeda Begum's death and his deteriorating health induced in him the fear of imminent death and as such the gifts had been made during Marz-ul-Maut. 5. The suit was resisted mainly by the donees and Mst. Hajira Begum, one of the widows. The other widow Mst. Shafa Jan, to begin with conceded the claim of Dost Muhammad Khan, but later she too sided with the donees. 6. Voluminous evidence was led at the trial by the parties regarding the validity of the gifts. During the course of trial Dost Muhammad Khan died and the appellants were impleaded in his place as his legal representatives. After considering the evidence led by the parties the trial Court upheld the gifts and dismissed the suit. The appellants preferred an appeal in the High Court. A Division Bench re appraised the evidence, affirmed the findings of the trial Court and dismissed the appeal. 7.Leave was granted to consider the question whether the gifts made by p Muhammad Aslam Khan were obtained by duress, coercion and that he was not in a fit state of mind. 8. Mr. A.R. Sheikh, learned counsel for the appellants contended that Muhammad Aslam Khan was not of sound disposing mind at the time of making gift, he was under pressure of Rehmatullah Khan who had confined him in the house therefore the gifts made were not the result of free disposition and voluntary acts on his part. The trial ~ Court had framed issue No.1, which reads as follows:--- Whether the gifts in question were the result of duress and fraud and were executed when the donor was not in his proper senses to understand the implications of the transfers? The learned trial Court after examining the evidence on record and by referring to the witnesses produced by both the parties came to the conclusion in the following manner:--- "The extracts from the evidence of witnesses of both the parties as mentioned above clearly show that the evidence of most of the witnesses of the plaintiffs is hearsay no P.W. Ever saw Muhammad Aslam Khan .After the death of Mst. Saeeda Begum and as such their evidence about his mental incapacity is just hearsay. The theory of duress and undue influence has not been proved by any evidence. In fact there is no evidence from the plaintiff's side to prove that any person on behalf of defendants ever exercised any undue influence upon Muhammad Aslam Khan. Till the time of his death, he was keeping good health. He went many times to Rawalpindi to seek the advice of the legal advisors about the gift deeds. He appeared before the Registrars and signed and admitted the contents of documents. He appeared before the Revenue Officer in connection with the attestation of gift mutations. In fact he submitted application to show that he was making the gifts with a free mind and voluntarily to set at rest any controversy which may arise after his death. It has been pleaded by the plaintiff that Muhammad Aslam Khan used to rave after the death of Mst.
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Saeeda Begum. No doubt people do rave when they are in extreme anger, sorrow or pain. It cannot be said by any stretch of imagination that they have become mad or have lost mental balance. A sane person may rave some times but it does not prove that he is insane. The other contention of the plaintiff is that the gifts were obtained by fraud. This contention stands unproved for two-fold reasons, firstly the contents and circumstances of fraud were not mentioned in the plaint as they were required by the provisions of Order 6, rule 4, C.P.C. And secondly there is no evidence on the file to prove fraud. Muhammad Aslam Khan had voluntarily made the gifts in favour of his maternal grandchildren. It is preposterous to think that the grand--children could exercise undue influence upon their grandfather. It is difficult to understand that a grandchild could dominate the will of a grandfather. Ordinarily it happens otherwise. The witnesses produced by the defendants are all disinterested and command a respectable status in the society. All of them have unanimously deposed that at the time of making the gifts Muhammad Aslam Khan was in good health and perfect senses and that he understood the implications of what he was doing." The same contention was raised before the High Court where it was repelled and it was observed as follows:-- "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 met 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. 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." While referring to the witnesses produced by the defence the learned Judges observed as follows:- - "Justice Muhammad Daud Khan, who was then Presiding Officer of the Civil Court, appeared as witness before the trial Court in this case and stated the deceased was personally known to him, he had appeared before him on 9-4-1962 on which date he had recorded his statement and did not notice that the deceased was suffering from any mental ailment." On this issue we have also examined the evidence with the assistance of the learned counsel for the appellants and find that the respondents had examined mostly official witnesses to show that at the time of gift the deceased was in a mentally fit condition and was neither under duress nor suffering from any disease which may affect the validity of the gift. From these witnesses it has been established that the gifts were made during 5-2-1962 to 8-2-1962, 17-2-1962, 6-3-1962 and 9- 3-1962. Muhammad Aslam Khan died on 23-11-1962. The conclusion and the findings given by both the Courts are duly supported by reliable evidence produced by the defence. These findings are concurrent and are unexceptionable. 9. It was also contended that Muhammad Aslam Khan was suffering from disease which ultimately resulted in his death and therefore the gifts are hit by the principles of Marz-ul-Maut. This issue was also dealt with by the learned trial Court and the learned Judges of the High Court who have been unanimous in their finding that in the facts and circumstances of the case the question of Marz-ul- Maut did not arise: In this regard principles governing the applicability of doctrine of Marz-ul-Maut were examined in the impugned judgment with reference to the judgments of the Supreme Court reported in Mst. Chanan Bibi v. Muhammad ShaF (PLD 1977 SC 28) in which taking note of the
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judgment in Ibrahim Ghulam Ariff v. Saiboo (34 IA 167) and Hamidullah v. - Khurshid Ahmad Khan (PLD 1958 SC (Pak.) 516) it was observed as follows:-- "Both these precedent cases set out the following factors which the Court should consider to sustain the conclusion that the impugned transaction was made under such pressure (Marz-ul- Maut):-- (i)Was the donor suffering at the time of gift from a disease which was I 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 H 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." The learned Judges of the High Court applied these for principles to the evidence produced by the parties and came to the conclusion that the gift was not made under immense pressure or under apprehension of death. The medical evidence produced on behalf of the appellants was not believed due to deficiencies and overwriting in the medical certificate. Muhammad Aslam Khan had made gifts from time to time and before that when his daughter was murdered he had applied for succession certificate which he obtained and had inherited all those properties which he had gifted in her name. These facts show that the conscious mind and voluntary act of the deceased to gift away the property from time to time. The disease which is alleged to have been the cause of death was not of such a nature and had prolonged to such a period that it could have caused any apprehension in the mind of the deceased that he was about to die and thus dispose of the properties. The concurrent finding of fact on this issue is also unexceptionable and no valid ground even after reading the evidence on this issue could be made out to enable us to disturb this finding. 10. The next contention which requires consideration is that according to Mr. A.R. Sheikh, Muhammad Aslam Khan gifted away his entire property in favour of some of his heirs to the exclusion of other heirs and therefore such a gift was not valid under the Islamic -law. The question for consideration is whether under Islamic law a person can validly make a gift favour of some heirs while excluding the others. The finding of both the Courts is that as Col. Muhammad Hasan Khan, who was married to Mst. Ameena Begum had murdered Mst. Saeeda Begum, the deceased with a view to deprive Col. Muhammad Hasan Khan and his progeny from benefitting from the property, made the gifts to other heirs. Under Muslim Law a person owning a property has a right to dispose of wholly or partially and there can be no objection to it. A property can be disposed of by sale, gift, will or creating a Waqf. The other noteworthy characteristic of Muslim Law is that an heir can claim a right in the !. Property only after the death of the predecessor from whom he is to inherit the property. Keeping these principles in mind we have now to examine whether a Muslim can dispose of his property by way of gift with the intention to deprive other heirs. This knotty question has been agitating the minds of Muslim Jurists from the early days of Islam and in this sub-continent it has come up for consideration by the Judges of the superior Courts. Now it is well-settled that a gift of immovable property otherwise validly made in favour of an heir completely excluding other heirs is not void. The Jurists against this view have sought support from Hadith (sayings of the Holy Prophet) and the views expressed by some Jurists and Scholars. All Jurists and Judges agree that the Holy Our'an does not prohibit a gift in favour of an heir excluding other heirs. F Analogy is sought against this view by interpreting the verses of the Holy J Qur'an in which general principles regulating the conduct and dealings with the heirs and relations have been stated. Reference was made to Surah Al-Nisa relating to the law of inheritance. The Holy
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Qur'an has laid down rules for spending money on individual and collective rights. Particular reference has been made to Surah al Araaf, Ayah 31, Surah Asrar, Ayah 26, Surah Furqan, Ayah 67 and Surah Baqar, Ayah 219. From a deep and concentrated. Study of these Ayats, it- is clear that the Holy Qur'an enjoins upon the Muslims and the entire world to spend money in a proper, judicious and beneficial manner. It prohibits Asraaf (wasteful expenses) and also enjoins to spend money not only on oneself alone, but on one's relations, neighbours, orphans, slaves, travellers, destitutes and needy persons. The manner for spending the money as laid F down cuts the root of wasteful expenditure and expenses made on luxuries, lavishness, pomp and show. The main criterion laid down by the Holy Qur'an is that a man should remain within the limits of justice and fairness. Adl-o-Insaf and Ehsan (justice and equity) are the cornerstone of Islamic Jurisprudence and daily life. On the basis of these broad principles laid down by the Holy Qur'an some of the jurists are of the opinion that any gift made with the intention to exclude an heir would not be doing justice amongst the heirs. It will create dissension, heart-burning and rivalry amongst heirs which should be avoided. In Majmooa-e-Qawaneen-e-Islam, Vol. III by Dr. Tanzil-ur-Rehman, the views of the Jurists of all Muslim sects have been stated in an analytical and detailed manner. The view expressed by Hanfi sect as stated in Baday-al-Sanae by Imam 0asani published in Egypt, 1910, Vol. VI, page 127, referred in Majmooa-e-Qawaneen-e-Islam, Vol. III, is that maintaining equality amongst the children brings peace and to give preference to one over the other creates disturbance and therefore the principle of equality should be practised. But if any person gifts the property to one heir thereby depriving the other, then irrespective of the fact that the heir deprived is a pious and religious person or illiterate and characterless, such gift will not be void. The reason given is that the donor disposes of the property of which he is the sole owner and no other person has a right in it. Although such a gift will not do justice amongst the heirs, it will not be void. While referring to Kitabul Mizan al-Kubra by Imam Shirani Shafii, published in Egypt, Vol. II, page 100 it has been stated that the three Imams (Imam Abu Hanifa, Imam Malik and Imam Shafii) have stated that the father must observe equality amongst his sons (heirs). According to these Imams if a father gives preference to one heir, then such preferential "gift will not be void. For further details and a useful study on the subject reference can be made to Majmooa-e-Qawaneen-e-Islam, Vol. III, referred to above. The superior Courts have also noted this controversy in their judgments. The earliest judgment seems to be of Nawab Amjad Ali Khan v. Mst. Muhammadi Begum (11 Moore's IA. 517) in which the contention that a preferential gift excluding other heirs is void was rejected. This question came up for consideration in Ahmad Khan v. Mst. Zamroot Jan (AIR 1950 Pesh. 11) where it was observed as follows:-- "The only restraint upon a Muslim in the matter of alienating his property imposed by .The Muslim Law relates .To wills and gifts on death-bed. In other cases the power of alienation of a Muslim qua his property is, apart from the conditions laid down by the law for completing a transfer, unfettered. A misapprehension appears to have arisen in the last century in the Court of Judicial Commissioner of Oudh and nearly a century afterwards in the Peshawar Judicial Commissioner's Court -- on account of certain observations of old Muslim jurists that the making of such gift is sinful. But every transaction which is sinful or impious is not ipso facto a nullity and the Holy Our'an does not confer the authority upon temporal powers to punish every act which may favour of sin or impiety. Great stress was laid by the learned counsel for the appellant on the verses of the Holy Qur'an in Sura IV, AI-Nisa relating to the law of inheritance. After the shares of the children, parents, wives, brothers and sisters have been laid down in the 11th and 12th verses, the thirteenth verse opens with the words ". This and the following verse, as translated by the late Allama Yusuf Ali, run thus:--
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`(13) Those are limits Set by God those who Obey God and His Apostle With rivers flowing beneath ,To abide therein (for ever) And that will be the Supreme achievement. (14) But those who disobey, God and His Apostle And transgress His limit Will be admitted To a Fire, to abide therein: And they shall have a humiliating punishment.' The appellant's learned counsel has strenuously contended that these verses show that God has commanded the observance of the `limits set by God' and their transgression cannot be permitted `especially' as the learned counsel put it, `in a Muslim country by an Islamic Court.' The argument can shortly be disposed of by pointing out that the `limits set by God' in these verses relate to intestate succession alone and not to gifts inter vivos. It may be impious for a Muslim to deprive some or all of his children of his property by alienating it in his lifetime -- and it would be obviously so in all good sense if done without just cause---; but there is nothing anywhere in the Holy Qur'an to forbid such gifts when made by a person not suffering from Maraz-ul-Maut. Reliance has also been placed upon a Hadees reported in Saheeh Bokhari in the 12th Chapter of the Book on Gifts. One Noman-bin--Bashir, whose father apparently had children from more than one wife, has related that his father gave him something; but his mother objected to the gift unless the Holy Prophet (May God's peace be on him) was made a witness to the gift. When the father, Bashir, went to the Holy Prophet and reported the incident, the latter enquired from him whether he had given similarly to his other children. On Bashir's replying in the negative the Prophet exclaimed `Fear God. And observe equality (justice) amongst your children'. There is nothing in this report to suggest that the Holy Prophet ruled the gift in question to be void or that by his conduct or words he meant anything more than to advise the father that he should deal with all his children with justice. Learned counsel also relied upon certain books in which it has been stated that such gifts are sinful or obnoxious; but there is no decided case, apart from the ruling of the learned Judicial Commissioner of Peshawar, or textbook on Muslim Law in which it has been laid down that a gift which deprives the heirs of the shares to which they would be entitled in the inheritance of the donor is void. In any case, I am bound by the ruling of their Lordships of the Judicial Committee of the Privy Council in Nawab Amjad Ali Khan's case:' This question was again considered in Safiullah v. Ghulam Jabbarr (PLD 1955 Lah. 191) by a Division Bench consisting of B.Z. Kaikaus and Akhlaque Hussain, JJ. Akhlaque Hussain, J. Speaking for the Court noted Verses of the Holy Qur'an, Hadith and the afore stated judgments and concluded that a preferential gift is not void. After due consideration of all the authorities referred to above we are of the opinion that under Islamic Law a preferential I gift is not void. It may be, as described by some jurists, sinful, but as it is not prohibited, it cannot be declared to be void. 11. After the hearing by oral order the appeal was dismissed. However, before the reasons could be prepared, Maj. Hamid Hasan son of Late Hamida Begum, respondent No. 6 filed an application that he was not heard in the case although he was present. This application was opposed by the respondents as according to them he was heard and further that in the suit Mst. Amina Begum was declared ex parte. In the High Court she wanted to be transposed as an appellant, but the prayer was rejected. She did not file any appeal at any stage. However, as Maj. Hamid Hasan was not represented by an Advocate in earlier hearing, we allowed his counsel to re-argue. We have heard Mr. Chaudhry Khalilur Rehman, learned counsel for Maj. Hamid Hasan and have maintained the order announced earlier. The main contention of the learned counsel was that the gifts were invalid as the lands were gifted to more than one donees jointly with unspecified area and possession had not been given to the donees. It is pertinent to point out that in the High Court where the judgment of the trial Court was challenged this plea was not raised. Even in the petition for. Leave to appeal such issue was neither agitated nor argued before this Court at the time of hearing of the petition. The leave was also granted on the question whether the gift was obtained by coercion and undue
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influence and was hit by the principle of Maraz-ul-Maut. We have, however, allowed the learned counsel to argue on the question raised by him. In fact issue No. 3 was framed by the trial Court that "are the gifts invalid because of their being made jointly in favour of more than one donee?" The learned trial Court has given its finding in the negative while in the High Court this plea was not pressed at all. Mr. Abid Minto, learned counsel for the respondents has contended that Mutation No. 66 was attested on 16-7-1962 and Mutation No. 1384 was attested on 15-6-1982 solely in the name of Fehmida Begum and therefore the question of Musha does not arise. The other gifts are in favour of Mst. Fehmida Begum along with Mst. Naseema Begum, but in all these gifts shares of the donees have been specified in the landed estate gifted to them. The share of Mst. Fehmida Begum is to the extent of half and the other two ladies were gifted rest of the half in equal share. The mutation in favour of Habibullah Khan and Ikramullah Khan sons of Mst. Fehmida Begum is not hit by Mushaa because their share in the land is definite and ascertainable and the land is capable of enjoyment, possession of which had been taken by each donee. Before considering the question of law, it may be pointed out that from the evidence of the narratives it is raved that Muhammad Aslam Khan (MAS) had gifted his property, (2) the gifts were…
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