BALQEES BEGUM Versus KHAN BIBI
This revision petition is directed against the order dated 26‑10‑1996, dismissing the appeal filed by the petitioners Mst. Balqees Begum and Mst. Azmat Khatoon, against the judgment and decree dated 2‑1‑1993, of the learned Civil Judge, Sargodha, whereby the suit filed by the petitioners for declaration on the basis of the Will executed in favour of the petitioner by one Fathey Khan, father‑in‑law of the petitioner, was dismissed.
2. The brief facts of the case are that Fateh Khan son of Zubair Khan predecessor‑in‑interest of the respondent and father‑in‑law of the petitioners Mst. Balqees Begum and Mst. Azmat Khatoon, was owner of land measuring 1008 Kanals and 12 Marlas situated in the Revenue Estate of Shamali Chak No.39, Tehsil and District Sargodha. Out of the said land measuring 90 Kanals, 12 Marlas, was bequeath by the said Fateh Khan in favour of Mst. Balqees Begum widow of Allah Bakhsh and Mst. Azmat Khatoon widow of Ansar Hayat, his daughter‑in‑law and executed a deed of Will on 18‑11‑1984 subsequently Fateh Khan died. His natural death was on 18‑12‑1984. Mutations of Inheritance Nos. 395, 1842 and 695, dated 24‑3‑1985, 23‑1‑1985 and 17‑2‑1985, were sanctioned in favour of the legal heirs of said Fateh Khan. Since the petitioners Mst. Balqees Begum and Mst. Azmat Khatoon claimed land on the basis of Will deed dated 18‑11‑1984, therefore, suit seeking the declaration, was filed by the respondents in the Court of the learned Civil Judge, Sargodha, that the Will Deed dated 18‑11‑1984 in favour of Mst. Azmat Khatoon and Mst. Balqees Begum on behalf of Fateh Khan is fictitious, collusive, against law and the above sale‑deed' has been executed by Fateh Khan is during "Maraz‑ul‑Maut".
3. The petitioners Mst. Balqees Begum and Mst. Azmat Khatoon daughter‑in‑law of the said Fateh Khan also filed a civil suit on 30‑7‑1985 against Mst. Khan Bibi etc. The legal heirs of Fateh Khan seeking declaration to the effect that they are owners of the suit land on the basis of Will referred above.
4. Since both the suits were contested by the respective parties Thereto, and therefore, were consolidated by filing respective written statements.
5. The learned Civil Judge on the basis of the pleadings of the parties proceeded to frame the following issues:‑‑
(1) Whether the Will dated 18‑11‑1984 in favour of defendants Nos. 1 and 2 on behalf of Fateh Khan was result of fraud and forgery, illegal, void, result of coercion, made during "Maraz ul‑Maut" of the testor and is liable to be cancelled? OPP
(2) If issue above is not proved then what will be the shares of his legal hers in the suit property? OPP
(3) Whether the impugned order dated 24‑3‑1985, 23‑1‑1985, 17‑2‑1985, 29‑5‑1985 and 14‑4‑1985 are illegal, void, mala fide, collusive and as such inoperative on the rights of the defendants Nos. 1 and 2? OPD 1‑2.
(4) Whether the suit is not maintainable in its present form? OPD
(5) Whether the suit is bad for misjoinder of the parties? OPD 1‑2
(6) Whether the, suit is incorrectly valued for the purposes of court fee and jurisdiction? OPD
(7) Whether the Suit No.995 of 1985 is incorrectly valued for the purposes of court‑fee and jurisdiction? OPD
(8) Whether the defendants are entitled to any special costs? OPD.
(9) Relief.
6. Respondent‑plaintiff produced Dr. Nasrullah Khan of Civil Hospital, Sargodha. The Bed Head Ticket of the deceased was produced as Exh.P.1. The test reports were produced as Exh.P.2 to Exh.P.8. The report of the Laboratory Tests were produced as Exh. P.8/1 to Exh. P.8/10. Wajid Ali, Ahmad Khan were produced as P. Ws. Nos.2 and 3. whereas, one of the plaintiff‑respondent Sultan Khan appeared as P. W .4. The learned counsel for the plaintiff‑respondent produced Register Haqdaran‑e‑Zamin for the year 1987‑88 Exh.P.9, copy of Mutation No. 18,42 Exh.P.10, copy of order of the Collector, Exh.P.11, copy of Mutation No. 395 Exh. P.12 and copy of the order of Collector Exh.P.13 and closed the affirmative evidence.
7. On the other hand, Abdur Rashid Bhatti, Advocate, appeared as D.W.1. Muhammad Azhar, Muhammad Khurshid and Ilyas are ascribes and the marginal witnesses of the Will deed dated 8‑11‑1984, have appeared as D.Ws. Nos.2, 3 and 4. Attorney of Mst. Balqees Begum and Mst. Azmat Khatoon, Muhammad Khan appeared as D.W.5, whereas, Muhammad Ansar Hayat, the husband of the petitioner Mst. Azmat Khatoon appeared as D.W.6. In documentary evidence the learned counsel produced copy of Mutation No.695 Exh. D.3, copy of Register Haqdaran‑e‑Zamin for the year 1982‑83 Exh. D.4 and closed the evidence.
8. The learned Civil Judge under Issue No. 1 held that, "the most factual discrepancy regarding the writing of completion of the document exists among the whole evidence which makes the document Exh. P. 1 highly suspicious".
9. As regarding the factum of "Marz‑ul‑Maut", the I‑earned Civil Judge, proceeded to record the finding that, "from the evidence of the P. Ws. it can be well‑ascertained that the deceased was seriously ill during that period and there is very likelihood that the deceased had not made the alleged Will with his own tree consent and it transpired just after coming from the hospital".
10. The learned Additional District Judge while dismissing the appeal on 26‑10‑1996 observed that, "it is proved that the Will was not made by Fateh Muhammad. It is fake document. It was prepared during "Marz‑ul‑Maut". It does not create any title in favour of the appellant".
11. The learned counsel for the petitioners has contended that the respondent‑plaintiff failed to prove that late Fateh Khan was not in perfect state of mind on 18‑11‑1984 when the alleged will deed was executed in favour of the petitioner. According to the learned counsel the respondent‑plaintiff has not brought any record before 23‑11‑1984, of the hospital, therefore, document Exh.P.1 to Exh.P.8 pertaining to the period 23‑11‑1984 to 9‑12‑1984 were not helpful to the respondent‑plaintiff to discharge their onus of proving that the testor was not in fact state of mind and that the alleged Will was executed-under "Maraz‑ul‑Maut" on 18‑11‑1984. Reliance has been placed on the cases of Noor Muhammad Khan and 3 others v. Habib Khan and 27 others (PLD 1994 SC 650), Mst. Chanan Bibi v. Muhammad Shafi and 3 others (PLD 1977 SC 28) and Bakht Zamin v. Said Majeed (1986 CLC 1805). Further contends that onus to prove the Will has been discharged by the petitioner by producing the scribe Muhammad Khurshid D.W.3, who entered the writing/document Exh. D. I, in Serial No. 6261 in the Register on 18‑11‑1984 and also the marginal witnesses namely Muhammad Azhar D. W.2 and Ansar Hayat D. W.2. Further contends that minor contradiction in the statement of the witnesses could have not been made basis for decreeing the suit of the respondent‑plaintiff as it is preponderance of evidence which goes to prove or disprove a point in issue. Reliance has been placed on Muhammad Ilyas v. Ghulam Muhammad and others (1999 SCMR 958).
12. On the other hand, the learned counsel for the respondent, has argued that the Will was executed by the testator when he had the apprehansion of death, therefore, the same was under 'Marz‑ul‑Maut' and therefore, while elucidating his contention, the learned counsel argued that the testator was very old and seriously ill. He remained hospitalized from 23‑11‑1984 to 9‑12‑1984. The Will was executed on 18‑11‑1984 whereas, Fateh Khan died on 18‑12‑1984 just after one month of the execution of the sale deed. Further contends that the document has not been proved to have been got executed by Fateh Khan. Finally he has argued that there is concurrent finding of fact based on the evidence that the Will deed Exh.D.1 is suspicious document, therefore, this Court in exercise of its revisional jurisdiction under section 115, C.P.C: may not disturb the concurrent findings of fact recorded by the two Courts below, of competent jurisdiction.
13. In this case Issue No. 1 is consisting to two parts. First part is regarding execution of the Will by Fateh Khan and the second part is of Marz‑ul‑Maut'. Before adverting to the second part, regarding question of Marz‑ul‑Maut, it is appropriate to see whether Fateh Khan deceased had in fact executed the Will deed on 28‑11‑1984, and' whether on the preponderance of evidence the petitioners have proved valid execution of the Will deed dated 23‑11‑1984, by Fateh Khan in their favour. In this regard Article 79 of the Qanun‑e‑Shahadat Order is relevant which reads as follows:‑‑
"79. Proof of execution of document required by law to be attested ‑‑‑ If a document is required by law to be attested, it shall not be ‑used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
14. On the touchstone and the requirement of the Article 79 of the Qanun‑e‑Shahadat Order, it is noted that the petitioner has produced Muhammad Azhar as D.W.1 the marginal witness of the Will deed Exh.D.1 who stated that the Will deed was reduced into writing by the petition‑writer, Muhammad Khursheed, who appeared as D.W.3. He was summoned and he signed the Will deed. He proved his signatures on the 'will deed Exh.D.1. He stated that the writing was read over to Fateh Khan who thumb‑marked the same. He further stated that Muhammad Ilyas and other marginal witnesses also signed the Will deed. Muhammad Khurshid son of Muhammad Sharif Petition Writer has appeared as W.3. He stated that he is the scribe of the Will deed Exh.D.1 which as written at the instance of Fateh Khan. Fateh Khan endorsed his thumb‑impression. In cross‑examination he has stated that Exh.D.1 was entered in the Register at No.6 dated 19‑11‑1986. The other marginal witness of the Will deed Exh.D.1 has appeared as D.W.4. He stated that Will deed Exh.D.1 was executed which was in favour of the petitioners who are the wives of Ansar and Allah Bakhsh son of Fateh Muhammad. He further stated that he signed the Will deed Exh.D.1 and he proved his signatures on the Will deed as Exh.D.1/2. There is yet another circumstance which is very material. One of the plaintiffs namely Sultan Khan appeared as P.W.4 and stated in the cross examination that:
From the above‑stated evidence irresistible conclusion cannot be drawn that Fateh Khan executed the Will deed Exh.D.1 in favour of the petitioners. The learned Civil Judge observed that:
"No doubt the defendant has examined the required marginal witnesses to prove this document as is required under the Evidence Act, but there are very material discrepancy between the statement of all the D. Ws."
If the petitioners have proved the execution of Will deed Exh.D.1 by producing the scribed and required marginal witnesses under Article 79 of the Qanun‑e‑Shahadat Order and thumb‑impression of Fateh Khan on the Will deed was admitted by one of the plaintiff Sultan Khan who appeared as P.W.4. There was no occasion for the learned Civil Judge as well as the learned Additional District Judge to hold that the document has not been executed by Fateh Khan. It is preponderance of evidence which goes to prove or disprove a point in issue. It has been ruled in the case of Muhammad Ilyas (1999 SCMR 958) that preponderance of evidence in civil matter is not judged on the touchstone of the proof in a criminal matter where the charge is required to be proved, to the hilt on the basis of unimpeachable evidence.
15. Merely that petitioners who were Pardahnashin ladies, have not appeared before the Court, was no ground to‑ hold that Fateh Khan has not executed the Will, ordinarily party to suit must enter witness‑box in order to make statement in support of its pleadings and depose to facts exclusively within its knowledge. Contesting parties must undergo test of cross‑examination for ascertaining truth or otherwise of their claims failing which adverse presumption, could be drawn against them under Article 129 of the Qanun‑e‑Shahadat Order 1984, but where there was sufficient material on record to prove the fact in issue, then mere failure of party to enter the witness‑box to prove same tact was no fatal to his case. Reliance is placed on the case of Anjuman‑e‑Islamia, Sialkot v. Haji Muhammad Younas and 3 others (PLD 1997 Lahore 153). Similarly, the learned Additional District Judge‑non‑suited the petitioners on the .testimony of D.W.1 Abdur Rashid, who stated that Fateh Khan came in his office 4/6 days prior to his death, therefore, according to the Additional District Judge, it was not possible that Fateh Khan could have executed the sale‑deed on 18‑11‑1984 because there was no occasion to obtain advice after execution of the Will. I am afraid, the finding of the learned First Appellate Court is not on the appreciation of the cumulative evidence of the parties. The learned Judge has recorded the finding by mathematically calculation. There was minor discrepancy in the statement of D.W.2 to D.W.4 which is natural phenomina as the witness appear‑d before the Court after a long time of the execution of the document. Minor discrepancies are not sufficient to hold that there was no execution of the Will deed specially that one of the defendants Sultan Khan has admitted thumb‑impression of Fateh Khan on the deed itself. Therefore, finding on Issue No.1 of the. Courts below regarding execution of the deed that the same was not executed by Fateh Khan was result of misreading and non‑reading of evidence.
16. Now I will proceed to decide the question of 'Marz‑ul‑Maut'. To decide the controversy between the parties para. 135 of Muhammadan Law by F. D. Mulla is relevant which is as under:‑‑‑
"135. Gift made during Marz‑ul‑Maut .‑‑‑A gift made by a Mahomedan during Marz‑ul‑Maut' 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 (a)."
Explanation . ‑‑‑A Marz‑ul‑Maut is a malady which induces an apprehension of death in the persons suffering from it and which eventually results in his death."
17. The parameters of 'Marz‑ul‑Maut' were highlighted and discussed at length in the case reported in PLD 1977 SC 28 and PLC 1994 SC 650. The gist of the observation made therein is that the controversy in regard to 'Marz‑a-Maut' should be settled in accordance with the following guidelines:‑‑
(i) Was the donor suffering at the time of 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 hereby 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 sufferers an apprehension of death?
(iv) Had the illness continued for such length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady?"
18. After testing the Will deed in question on the touchstone of the above guidelines I am convinced that the respondent‑plaintiff has singularly failed to prove that the Will in question was made by the testor during ' Marz‑ul‑Maut' . There is no medical evidence on record from which it could be gathered that the donor was suffering from a particular disease which had caused a sense of imminent death and had eventually resulted in his death. The oral evidence also does not point to any such disease. It was observed in the case of Mst. Chanan Bibi and 4 others v. Muhammad Shafi and 3 others reported as PLD 1977 SC 28 that old age and illness are not per se sufficient to sustain inference of donor having been under pressure of sense of imminent, death. It appears that in view of his old age the learned lower Court took for granted that he was under apprehension of death. Mere fact that he had died 20 days after making the Will is also enough to hold that Will was not executed in Chanan Bibi's case (PLD 1977 SC 28) the, gift was held to be valid despite the fact that the donor had died 12 days thereafter. The execution of the Will deed in question stands proved. The evidence was certainly misread by the learned lower Court. The same point was discussed in the case of Noor Muhammad Khan and 3 others v. Habib Ullah Khan and 27 others (PLD 1994 Supreme Court 650) and the relevant paras. are as under:‑‑
"(i) Was the donor suffering at the time of 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 incapaciate 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 length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady."
19. After learned Civil Judge non‑suited the petitioner on the ground that as Fateh Khan deceased remained hospitalized as he was ill prior his s death from 23‑11‑1984 to 9‑12‑1984 and since the Will was made by Fateh Khan on 19‑11‑1984 only 5 days before his admission in the hospital, therefore, the gift was made under the influence of Marz‑ul- Maut. The statement of P.W.1 Dr. Naseei Ullah Khan, P.W.2 Wajid Ali, P.W.3 Ahmad Khan and P.W.4 Sultan Khan does not inspire confidence to hold that Fateh Khan was under the influence of 'Marz‑ul -Maut'. Therefore, the finding recorded by the two Courts below on Issue No.1 is result of misreading of evidence of P.Ws.1 to 4 regarding Marz‑ul‑Maut' and non‑reading of evidence of D. W.2 and D. W .4, the marginal witnesses, D.W.3, Scribe and Sultan Khan P.W.4, who admitted the thumb‑impression of Fateh Khan on the Will deed. Therefore, finding on Issue No.1 recorded by the Courts below are reversed as the same was result of misreading and non‑reading of evidence. Suffice to say that High Court can set aside the concurrent finding of fact, if it is based on non‑reading and misreading of evidence in its revisional jurisdiction under section 115, C.P.C. as held in the case of Mst. Anwar Bibi v. Abdul Hameed (2002 SCMR 144).
Resultantly, this revision petition is accepted and judgment and decree of the learned Civil Judge dated 2‑1‑1993 and 26‑10‑1996 of the learned Additional District Judge, Sargodha, dismissing the suit of the petitioner, is set aside. The suit filed by the petitioner is decreed whereas the suit filed by the respondents is dismissed with costs.
S.A.K./B‑95/L Order accordingly.