CHANAN BIBI Versus MUHAMMAD SHAFI

1. MUHAMMAD GUL, J. - This appeal by leave of this Court is from the judgment of a Division Bench of the late High Court of West Pakistan dated the 13th November 1968 arising in a suit by Mst. Ghulam Fatima (since deceased and now represented by the respondents) to recover her legal share in the estate of her brother Rajwali. The appellants herein who were defendants in the suit, on the other hand claimed the entire estate of Rajwali on the basis of a registered gift in their favour.

2. The following pedigree will help in understanding the facts :

MUHAMMAD ALAM

3. Mst. Glulam Fatima ????????????????????????????????????????????????????? Rajwali

4. ???????????????????????? ?????????????????????????????????????????????????????????? (deceased)

5. Mst. Chanan ???? Mst. Amino ????? Mst. Begun Bibi- Muhammad

6. ??????????????????????????? Bibi ? ???????????? Bibi ???? ?????????????????????????????????????????? Fazil

7. ?? ????????????????????? (defendant 1) ?????? (defendant 2) ???????? (defendant 3)

8. ??????????? Mst. Inayat ?????????????????? ????????????????????????????????????? Mat. Shafaat Bibi

9. ??????????? Begum ????????????????????????? ?????????????????????????????????????????? (defendant 5)

10. ??????????? (defendant 4)

11. Rajwali owned land measuring about 448 kanals in Chak No. 2, N.B., Tibsi1 Rhalwal. His son Muhammad Fazil predeceased him leaving him (Muhammad Fazil) surviving his widow Mst. Begun Bibi and two daughters Inayat Begun and Shafaat Begum (appellants 3 to 5). Rajwali had also two daughters Chanan Bibi and Amino Bibt appellants 1-and 2. By a registered deed dated 1-9-1955 (Exh. D-1), he gifted his entire land in favour of the five appellants and died on 12-9-1955, that is to say, 12 days thereafter. His sister Mst. Ghulam Fatima being thus excluded from inheritance sued to recover her legal share in his estate. She challenged the gift on the ground that it was executed under undue influence exercised by the appellants on the donor who was then suffering from paralysis therefore was not possessed of disposing mind either. Alternatively it was pleaded that the gift was made by Ralwali during marz-ul-maul-.mortal illness-and therefore, if at all, took effect as his last will and as such operated in respect of 1/3rd share in the estate of the deceased, and that too, in favour of appellants Nos. 3 to 5 only who were non-heirs under Muslim Law. The appellants-donees maintained the validity and binding character of the gift in their favour and denied allegations concerning undue influence and marzul maul.

12. On the evidence produced in the case the trial Court found that Rajwali at the relevant time was possessed of sound disposing mind and the gift by him was voluntary and not a result of any undue influence. In reaching that conclusion, apart from other evidence, the learned trial Judge was influenced by the fact that Rajwali, after the death of his son and his own wife, continued living with his widowed daughter-in-law and her two grand daughters (appellants 3 to 5) who looked after him during his illness which lasted almost a year before he died. The evidence produced also showed that Rajwali was on bad terms with his sister and therefore, it was perfectly natural that to defeat his sister's right of succession under Muslim Law and to make adequate provision for his widowed daughter-in-law and her two minor daughters who under Muslim Law were not his heirs, he should make the gift in their favour and In favour of his own two daughters. The fact that earlier on 11-5-1955, Rajwali had executed a will Exh. D.2 in favour of the appellants was relied upon as a pointer to his wish to benefit the appellants. Nevertheless the learned trial Judge found that the gift deed was executed by Rajwali during marzul maul while he was suffering from paralysis. On this aspect of the case, the conclusion of the learned trial Judge is in these terms ; "in my opinion, Rajwali was suffering from marz-ul-maul when the deed was executed . . . . . . In any case a patient of paralysis always feels himself in imminent danger of death and there is the apprehension of impending imminent death malvering in his mind. Particularly in this case when Rajwali had almost completed his quota of life and got an attack in the last days to which he succumbed, we cannot exclude the apprehension of the imminent death from the mind of Rajwali."

13. In reaching that conclusion, the trial Judge did not much rely on oral evidence of the parties which in his opinion was "exaggerated". No medical evidence was produced in the case. The only dependable evidence on the point was the death entry Exh. P. W. 6/4, according to which Rajwali died of paralysis at the age of 80 after illness lasting for about a month. On the basis of that evidence and certain admissions by some of the witnesses examined by the appellants that Rajwali was suffering from paralysis and died within 12 days of making the gift, the learned trial Judge raised an inference that it was made during marz-ul-maul.

14. Having reached that conclusion the learned trial Judge on review of a number of cases and relying on Monograph No. 17 of Mulla's Muhammedan Law, 1955 Edition, went on to hold that the gift took effect as the deceased's last will and therefore was effective to the extent of 1/3rd of his estate after the payment of funeral expenses etc. that too in favour of the donees who are non-heirs. Since the plaintiff had not given her consent to the gift in favour of the donor's daughters, respondents 1 and 2, the trial Court held that the gift was valid to the extent of 1/3rd in favour of appellants 3 to 5 only. With regard to the remainder 2/3rd the trial Court held Mst. Ghulam Fatima to be entitled to 1/3rd of the remainder 2/3rd or 2/9th of the entire estate and the remainder 4/9th devolved under Muslim Law Inheritance op the appellants 1 and 2, in equal shares as daughters of Rajwali.

15. On appeal the learned District Judge summed up his conclusions in the following terms :

16. "It cannot be gainsaid that Rajwali died within 12 days after the gift and before his death he suffered from paralysis for many months. It is true that the paralysis causes lingering death but it is reasonable to think that Rajwali who was more than 80 years of age and unable to speak was expecting death at any moment when he executed the deed of gift . . . . ."

17. On further appeal the learned Judges of the Division Bench observed about the conclusion reached by the trial Judge as follows :

18. "According to the oral evidence led by the plaintiff herself, Rajwali was suffering from paralysis for more than a year . . . . . . . . This was a lingering malady in him and it could not be said that the deceased was suddenly taken by an attack of paralysis to which he had succumbed. The learned Senior Civil Judge, appears to be in error in assuming that he had an attack of paralysis within one month of his death. Moreover his observation to the effect that a patient of paralysis always feels himself in imminent danger of death and there is the apprehension of impending imminent death malvering in his mind, cannot be accepted as the universal truth . . . . . . . Therefore, in our opinion the learned trial Court was not quite right in taking for granted that Rajwali was under an apprehension and pressure of the imminent danger to his life at the time of the execution of the deed."

19. About the judgment of the learned District Judge, the learned Judge observed :

20. " . The learned District Judge seems to be fully conversant with the law. But in summing up, he does ? not appear to have placed all the facts together though he was not wrong in his conclusions "

21. Leave was granted for a fresh appraisal of the evidence and to consider whether the findings of the Courts below proceeded on the correct basis that the impugned gift was executed by Rajwali during mart-ul-maul?

22. I have reproduced excerpts from the judgments of the three Courts below, because of somewhat strenuous argument by Mr. Fazle Hussain, the respondents' learned counsel that there was concurrent findings by the three Courts on what. he described as a question of fact, namely that the impugned "t gift was made during marzul maul and therefore this question should not be reopened by this Court. In support of his argument learned counsel relied on the Federal Court's judgment in Pathana v. Wasal PLD1965SC134 and Shamshad Ali Shah etc. v. Hassan Shah PLD1964SC143.

23. The first case concerned the jurisdiction of a High Court under section 100, C. P. C. which is different from that exercised by this Court under the Constitution. The second case however, concerned the application of doctrine of rnarzul maul and head note (c) of the report tends to support the argument of learned counsel. But the head note proceeds on a superficial view of the case. According to the statement at page 149, the facts concurrently found were these :

24. "Now the facts found in this case are that on the 19th December 1939, at the time of execution of the deed of gift Mst. Husan Bano, aged 65 years. was suffering front pneumonia; and that one or two hours after the registration of the said deed on the 21st December 1939, she died. The facts as regards her illness and the time and date of her death were challenged by the defendants."

25. These then were the facts in the precedent case, in which the Courts below had concurred and "each judgment (was) supported by careful and elaborate consideration of evidence adduced . . . . . . " and therefore the appellants ? in that cast were not "permitted to challenge the concurrent findings of fact." It was on these findings on facts that an inference of marz-ul-maul was raised. There is absence of such agreed findings in the instant case.

26. That apart, it is well settled that once leave bas been granted, in the absence of clear indication to the contrary, the whole case is open for review by this Court. In Hamidullah v. Xhurshid Ahmad Khan P L D 1958 S C (Pak.) 516 it was pointed out that this Court grants leave ex debilo justiliae and is not hedged by any consideration of technical nature. It was also recently observed by this Court in Civil Appeal No. 3 of 1973 (Shah Nawaz and another v. Nawab Khan) that once leave is granted. there is no reason why an appeal by special leave should be treated differently from an appeal as of right. Both the appeals stand on the same footing and should be determined on the same principles of justice. This is however, not to dispute the proposition that as a Court of ultimate jurisdiction, this Court will ordinarily give due weight to the opinion of the Courts below particularly the Court of the first instance in the matter of appreciation of evidence.

27. Thus it will be seen that the entire gamut of the case, so far it concerned the application of dectrine of marz-ul-maul is open for the examination of this Court. That apart, on the above analysis of the, three judgments in this case, it would be a misnomer to say that there is concurrence of findings, much less on a question of fact. As observed already, the trial Court did not much rely on oral evidence examined by the parties. However, on the basis of the broad facts appearing in the case namely that before his death, Rajwali was suffering from paralysis, the learned trial Judge at once concluded that "a patient of paralysis always feels himself in imminent danger of death" as if it were a presumption of law which he was obliged to raise. This was entirely wrong approach and the learned Judges in the High Court, if I may say so with respect, rightly disapproved this part of the conclusion of the trial Court. On the question of the duration of Rajwali's illness, the learned Judges also found the trial Judge to be wrong. According to them it was a "lingering" malady and Rajwah did not die within one month of its onset. as the trial Judge had found. About the judgment of the first appellate Court, the learned Judges observed that though it reached the right conclusion it did not keep in view all the facts. Thus it is not right to suggest that there is concurrent finding of three Courts on a question o fad. They merely concurred in applying the principle of marz-ul-maut to the gift by Rajwali. This is a matter for inference.

28. The law applicable to the case is not in controversy. If the gift by Rajwali was made under, what the Privy Council described in Arabi Ghulam Arif v. Saiboo 34 I A 167 as "pressure of the sense of the imminence of death" then the gift would be hit by doctrine of marz-ul-maut. The same criterion was accepted by this Court in the case of Shamshad Ali Shah noticed earlier. 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 ;

29. "(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 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 o lessen the apprehension of immediate fatality or to accustom the sufferer to the malady?"

30. The first 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 is noteworthy that in various cases cited at the Bar some doctor or Hakim had appeared to testify to the condition of the patient at or about the time the impugned instrument was executed. Evidence of laymen particularly of relatives may be relevant. But it cannot be conclusive particularly when it is partisan and exaggerated. In the instant case, it was admitted by Ghulam Fatima plaintiff that though Rajwali remained under the treatment of a Hakim at Bhera but he was not examined. I consider this as a serious drawback in the plaintiff's case. The burden of proof of issue relating ; marz-ul-maut lay heavily on the plaintiff, and the oral evidence did not inspire the confidence of the trial Judge. Therefore, what remains of the evidence produced by the plaintiff is the death entry Exh. P. W. 6/4, according to which Rajwali died of paralysis. I will presently advert to the evidential value of this entry for the relevant purpose The second fact is germane to the state of mind of the donor at the time of execution of the impugned instrument. This is not capable of direct proof by any objective standard as is the case of a height of a person. it is a matter of inference to be raised from certain proved or admitted facts. Whether or not an inference has been rightly raised is always a matter o law or at any rate a mixed question of law and fact and not purely of fact as contended by the respondent's learned counsel. 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 case 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 alit on the ground that these were death-bed transactions and therefore, invalid. The 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 bad 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.

31. On the third point the evidence in this case is contradictory t or at any rate it is deficient. Even if it may be assumed that Rajwali was bed-ridden and rendered immobile that would not necessarily import death-bed illness, When spinal-cord gets affected at lumber region than only limbs are affected. In such paralysis as will be seen presently, it is not fatal.

32. As to the fourth condition each case has to be decided on its own facts and no hard and fast rule can be laid as to when the relevant state of mind can I be inferred. Rather it has been observed in some cases that if the illness has lasted for a long time, it often becomes part of the patient's constitution and the pressure of the sense of imminence of death recedes and it becomes his habit to live with it. In Corpus Juris Secundum, Volume LXVII, page 557, the symptoms and general effect of paralysis on the victim is stated as under

33. "Paralysis.-A medical term meaning abolition of function, whether complete or partial; especially, the loss of the power of voluntary motion, or of sensation, in any part of the body..... ????? There are two types of the disease: (1) The type that frequently follows encephalitis, which may occur at any age. (2) The senile, arterial-sclerotic type which usually begins when a person is between fifty and sixty years of age and may extend from five to fifteen years. The cause of the disease is unknown to medical science, and it is incurable."

34. Thus it is wrong to suggest that stroke of paralysis is immediately dangerous to life and that merely because Rajwali was suffering from paralysis it must be inferred that he was under pressure of the sense of the imminence of death.

35. In support of above proposition, Sh. Abdur Rashid learned counsel for the appellants referred to Safiullah v. Ghulam Jabbar P L D 1965 Lah.

191. In that case one M. N. H. had been ailing for a very long time and bed-ridden about five or six years before his death. On 24-3-1948 he executed three deeds of gift in favour of his second wife and his three children by her and died on 28-8-1948. In a suit by his first wife and children by her for their Muslim law share in his estate, the deeds of gift were set up in defence by the second wife and her children which the plaintiff sought to invalidate on the plea of marzul maut. The long drawn out illness of M. N. H. was stated to be paralysis or gout which it was alleged had engendered an apprehension of immediate death in him when he executed the deeds of gift. The plea was repelled and effect was given to the three gifts. Thus mere prolonged suffering from paralysis or gout per se was held insufficient to sustain plea of marzul maut.

36. Learned counsel for the appellants also referred to Jahan Khan v. Feroze P L D 1951 Lah. 433 and submitted that the facts of that case were similar to the instant case and yet the plea of gift being invalid on the principle of marzal maut was repelled. In that case Maula Dad, an asthmatic old man of more than 50 years executed a registered deed of gift on 3-8-1948 in favour of his wife and her nephews. The donor died four days later on 9-8-1948. Ferozo a collateral of the donor and his next heir sued for the possession of his 7/8th share of the land on the ground, inter alia, that the deed of gift was executed by the donor while he was in apprehension of imminent death and that therefore, the gift could only take effect to the extent of 1/3rd of the land as a testamentary disposition and that too in favour of the non-heirs namely the nephews of the donor's wife. The evidence produced in that case showed that the donor was being treated by a Hakim who stated that the former suffered from asthma and used to consult him often. The last occasion the Hakim saw the donor was 7 days prior to his death when he advised him to consult a Doctor. There was also some evidence to show that at the time of the execution of the gift deed, the donor was asked by one of the attesting witnesses to lie down on the cot. This was apparently because he was weak. On these facts it was held by S. A. Rahman, J. (as he then was) with whom another Judge agreed, that it did not necessarily follow that the donor was in immediate expectation of death when he executed the gift deed in favour of his wife and her nephews.

37. Learned counsel for the respondents on the other hand strongly relied on the cases of Shamshad Ali to which a reference is already made and Mst. Humain Jan etc. v. Mst. Asmat Begum P L D 1964 S C 173 in both of which gifts made by the deceased were declared invalid having been executed during marzul maul. But as wilt be seen presently, the facts of both these cases were materially different.

38. In the first case the donor was an old lady of more than 65 years of age suffering from pneumonia. She died within "one or two hours" after the registration of the deed of gift. The Sub-Registrar was called to her residence to register the deed. Another distinguishing feature of the case was that Sub-Registrar was not examined and reliance was placed merely on the endorsement made by him that the donor admitted the execution of document before him. It was in these circumstances that it was held that gift impugned in that case was made during death-bed illness.

39. Similarly, there is nothing common between the facts of this case and the case of Mst. Hussain Jan. In that case, one Abdul Salam who had been suffering from tuberculosis for a long time was admitted into the T. B. Sanitorium on 22-7-1946. He stayed there until 26-8-1946 but his condition, instead of showing improvement further deteriorated and was discharged from the Sanitorium on his own request. On 5-9-1946 he made a gift in the presence of Sub-Registrar of his entire property in favour of his mother to the detriment of his estranged wife who was living with her parents and infant daughter who was born a few days before and about whom he was not informed. He died thirteen days thereafter. In a suit on behalf of his daughter, the gift was held invalid as having been executed during marzul maut. In that case the Medical Superintendent of the Sanitorium was examined by the plaintiff who described the condition of Abdul Salam a.9 "hopeless". Another Doctor produced by the defendants stated that Abdul Salam "even could not move and the Sub-Registrar was called to his house for the registration of the gift deed. Another material fact in the case was, that when the deed was going to be registered, the donor protested that his sister should also be included. But his mother consoled him and then he did accept the contents of the deed. It was in these circumstances that doctrine of marzul maut was applied to invalidate the gift.

40. Learned counsel for the respondents also relied on Khurshid Hussain v. Faiyaz Hussain I L A (1914) 39 All. 289 in support of plea of marz-ul-maut. it was a case of a gift by a man of 80 years who was suffering from asthma, each attack of which weakened his constitution. He executed gift on 22-7-1911. After the execution of deed of gift he had a bad fit and died four days later, on 8-7-1911. It was held on these facts that gift was made in marzul maut and took effect as last will of the donor. The report of the case creates an impression that the facts as to malady from which the donor was suffering and its acuteness at the relevant time were not much in dispute. The main discussion is devoted to the question whether a gift of land executed during marzul maut operates as will ? Upon a review of the original texts, the question was answered in the affirmative The fact that the donor died within four days of the gift is not without significance.

41. Lastly learned counsel for the respondents laid great emphasis on the recital in the gift deed wherein Rajwali had stated that he was an old ailing person and to prevent any dispute about his property after his death he was making gift of the same in favour of the donees named therein. It was urged that these admissions clearly raise an inference that the donor was under an apprehension of death and thus was in hurry to make the gift. I was observed in Allah Rakha v. Nawab P L D 1967 Lah. 613 that recital in the deed of gift to the effect that "life is uncertain and one does not know when the cup of life may overflow " cannot be interpreted to denote that the gift was made while the donor was under an apprehension of imminent death.

42. The above discussion leads me to the conclusion that it is not satisfactorily proved that the impugned deed of gift was executed by Rajwali during marzul maut. In reaching that conclusion, I have been influenced by the fact that the onus of proof of the third issue in the case relating to the alleged execution of the deed of gift by Rajwali during marzul maut lay on the respondents which in my opinion they have not been able to discharge. In the cases relied upon by the respondents' learned counsel, the donor was either suffering from a malady which ordinarily was much more dangerous to human life than paralysis or the donor died within much shorter time than in the instant case.

43. Accordingly, I would accept the appeal and dismiss the respondents' suit leaving the parties to bear their own costs throughout.

44. S. A. H. ????????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.