Thursday, 31 May 2012

Validity of Gift under the law

PLJ 2009 Karachi 222

Present: Zafar Ahmed Khan Sherwani, J.

Syed ABDULLAH ABIDI--Plaintiff

versus

Mst. HAJRA ABIDI and another--Defendants

Suit No. 1058 of 2005, decided on 3.3.2009.

Transfer of Property Act, 1882 (IV of 1882)--

----Ss. 123 & 129--Gift under statutory law and Islamic Law--Distinction stated--Requirement of a valid gift are somehow different as compared to statutory law as provided u/S. 123 of the Transfer of Property Act, 1882, under which execution of such document in presence of two attesting witnesses is mandatory besides its registration--However, S. 129 of the Act is an exception to the same--In Islamic Law, only such voluntary declaration in express terms with transfer of possession from the donor in favour of the donee and the acceptance by the donee are sufficient to fulfil all requirements of a valid gift hiba--However, the only exception to that rule is that the donor must not be suffering from any disease having immediate threat of death) which is called Marz-ul-Maut--In case the donor and the donee are in joint possession of property, if the purpose of the gift at the time of declaration shared between the donor and the donee, the donee is not required to vacate and may continue jointly in possession with the donee without entailing any adverse repercussions on the factum of the gift, for example when a gift is made by a husband to his wife, the husband can continue to receive accruing returns on the subject matter of the gift and the required element of delivery of possession would remain un-affected.

      [Pp. 226 & 227] A & C

Gift--

----There are three essentials of gift under Islamic Law: declaration of gift by the donor, (ii) express or implied acceptance of the donee, and (iii) the seisin or the delivery of possession of the gift property by the donor to the donee.  [P. 227] B

1972 SCMR 50 and 1998 SCMR 2114 fol.

Islamic Law--

----Gift of house by father in favour of son excluding two daughters--Burden of proof--Suit by brother for recovery of possession of house and mesne profits from sisters after death of father--Sisters' plea was that donor of 80 years age at relevant time was incapacitated due to tongue cancer and mentally retarded after he was operated; that as per family settlement, donor had agreed to gift house to them and two shops to plaintiff-brother, and that plaintiff being in possession of title documents got gift deed registered in his favour fraudulently and sold both shops--Plaintiff stated that donor, prior to operation on account of cancer, had first executed a will disclosing therein gift of suit house in his favour-- Validity--Execution of such will proved that donor must be having immediate danger of death on account of cancer disease, otherwise there was no reasons to execute same when he had gifted house in favour of plaintiff--Nothing was available on record to show that donor, after operation, had fully recovered while executing gift deed in favour of plaintiff--Plaintiff as sole son of donor was earning member of family--Gift in favour of plaintiff on account of his such advantageous position and infirmity of donor, could not be said to be out of free will--Plaintiff had failed to prove a valid gift in his favour--Plaintiff could not claim possession of suit house and mesne profits from defendant for being in legal occupation thereof as legal heirs of its deceased owner--Suit was dismissed.

      [Pp. 227 & 229] D, E & G

1972 SCMR 50; 1998 SCMR 2114; PLD 1964 SC 143 and

1981 CLC 962 ref.

Qanun-e-Shahadat Order, 1984 (10 of 1908)--

----Art. 117--Gift--Burden of proof--Onus to prove all ingredients of a valid gift would lie upon a person desirous to take benefit thereof.

      [P. 227] D

1972 SCMR 50 rel.

Gift--

----Islamic Law--Invocation of doctrine of Maraz-ul-Maut--Scope--For invoking such doctrine it is not necessary that death of donor must be result from disease.    [P. 228] F

PLD 1964 SC 143 fol.

Specific Relief Act, 1877 (I of 1877)--

----S. 8--Civil Procedure Code, (V of 1908), S.2(12)--Suit for recovery of possession and mesne profits--Failure of plaintiff to prove his exclusive ownership over suit house on basis of gift in his favour by his deceased father--Effect--Plaintiff could not claim possession and mesne profits from defendants being in occupation of suit house as legal heirs of its deceased owner--Suit was dismissed. [P. 230] H

Tort--

----Damages for mental shock, pressure, physical torture and social disgrace alleged to have been suffered by plaintiff on account of illegal acts of defendant--Failure of plaintiff to prove any particular act of defendant--Validity--Mere such allegations without any tangible evidence would be of no consequence--Plaintiff was, now entitled to such relief in circumstances.    [P. 230] I

Mr. Shafaat Hussain, Advocate for Plaintiff.

Nemo for Defendants.

Date of hearing: 4.2.2009.

Judgment

This is a suit for declaration, possession, perpetual injunction and mesne profits in respect of house Bearing No. A-530, Block H, North Nazimabad, Karachi measuring 225 square yards (the suit house). The Plaintiff has claimed that by virtue of gift-deed executed and registered as No. 1378 Book No. 1 dated 13-7-2002 before Sub-Registrar, T-Div-VII-B, Karachi, by his deceased father with delivery of its possession along with the original title documents and his acceptance, he became its owner and got the same mutated in the record and City District Government, Karachi vide order No. CDGK/KDA Wing Sch-2/572/2003 dated 13-8-2003 in his favour. He alleged that on account of the said gift the attitude of the defendants, his real sisters towards him and the father suddenly changed and started to make quarrel with them and made their lives miserable, therefore, they shifted from the suit house in October 2002 leaving the defendants in its possession. His father died on 24-7-2004 thereafter he served a legal notice dated 18-9-2004 upon them to vacate the suit house but to no avail, hence this suit for declaration that on account of gift he is exclusive owner of the suit house, for damages of Rs.500,000 for causing mental torture and physical disturbance and further sum @ Rs.5,000 per month form October, 2002 as mesne profit till realization of the possession and for perpetual injunction restraining the defendants not to create third party interest in the suit house and for costs of the suit.

The defendants in their joint written statement pleaded with regard to non-maintainability of the suit and alleged that the gift was fraud and void under the law as the donor, their ailing aged father, was incapacitated due to tongue cancer and was operated therefore, on that account he had become mentally retarded. It was also alleged that as per family settlement their father had agreed to gift his two shops situated in Rampura, Bombay Bazar and Ram Swami, Karachi to the plaintiff and the suit house to the defendants, therefore, all the documents were handed over to the plaintiff by their father but the plaintiff got the gift deed registered in his favour fraudulently and also sold both the shops. It was also alleged that the behaviour of the plaintiff towards their father was cruel as he used to keep him under pressure, coercion, which made him mentally retarded. They finally prayed for dismissal of the suit.

Out of the pleadings following issues were settled:--

(1)   Whether the suit of the plaintiff is maintainable under the law?

(2)   Whether, the plaintiff is lawful bona fide owner of the suit property by virtue of gift Deed Regd. No. 1378 dated 13-7-2002?

(3)   Whether, the plaintiff being owner is entitled for the possession of the suit property?

(4)   Whether, the plaintiff is entitled for the mesne profit @ Rs.5000 (Rupees Five Thousand only) per month from the defendants?

(5)   Whether, the plaintiff is entitled for the damages if so, to what extent?

(6)   Whether, the plaintiff is entitled to the relief claimed?

(7)   What, should the decree be?

In support of his case the plaintiff has examined himself by way of Affidavit-in-Evidence and produced all the relevant documents including the registered gift deed, mutation order in respect of the suit house, telephone and other utility bills in respect thereof. In his support he also examined one of the attesting witnesses of the gift deed namely Syed Nusrat Hussain Rizvi. Whereas both the defendants examined themselves through their Affidavit-in-Evidence before the Commissioner appointed for such purpose by this Court.

I have heard the learned Advocate for the plaintiff; none was present for the defendants.

It was contended by the learned Advocate for the plaintiff that the plaintiff has proved through tangible evidence that he was validly gifted the suit house by his father during his life time and therefore became owner thereof but the defendants forced both of them to leave the same by such behavior, consequently, they are in illegal occupation thereof, therefore, he is entitled for the decree as prayed by him.

I have carefully considered the above arguments of the learned counsel for the plaintiff in the light of the record.

Issue No. 1

Since none has appeared on behalf of the defendants during the course of the arguments therefore, the issue remained unattended on their behalf. Anyhow from face of the record there is nothing to maintain that the suit is not maintainable. Prima facie this suit is for declaration, injunction, possession and mesne profit and there appears no bar of any nature to entertain the same specially on the facts as mentioned above. The issue is decided in the affirmative.

Issues No. 2

The burden of proof of the issue was upon the plaintiff. It is his case that he has become absolute owner of the suit house by virtue of gift deed executed by his late father during his lifetime and registered on 13.7.2002. In his affidavit-in-evidence he has deposed that prior to the gift his father had executed a Will dated 23-5-2002 in his favour depriving the defendants from their shares after his death. The copy of the Will dated 10-5-2002 was also produced. He also deposed that thereafter he executed the gift deed in respect thereof in his favour and handed over its possession along with original documents to him and his name was mutated in the record of C.D.G.K. vide letter dated 13-8-2003. The registered gift-deed along with deed of acceptance of gift and possession were produced as Annexures P-3/1 to P-3/6. He has also deposed that at the time of the gift he and his father were residing in the suit house but after his marriage they both shifted to a rented house on account of misbehaviour of the defendants. One of the attesting witnesses of the gift-deed namely Syed Nusrat Hussain Rizvi fully supported the plaintiff in all respect in his cross-examination.

In rebuttal both the defendants in their evidence have denied the evidence produced by the plaintiff and reiterated the allegations as made in their written statements that the gift-deed is a fictitious document obtained by the plaintiff under coercion and that as per settlement their father had agreed to gift the two shops in favour of the plaintiff whereas the suit house in their favour and since the documents had been handed over to the plaintiff for preparation of the gift-deed but he got the gift-deed registered in his favour as their father was patient of tongue cancer and was operated and that he was mentally retarded. They also deposed that the plaintiff had shifted along with the deceased father in March, 2002 from the suit house to a rented house.

To determine whether the plaintiff has discharged the burden of proof of a valid gift in his favour by his deceased father, it is necessary to examine  the  ingredients of a valid gift under the Muslim Personal Law. The requirement of a valid gift are somehow different as compared to statutory law as provided under Section 123 of the Transfer of Property Act under which execution of such document in presence of two attesting witnesses is mandatory besides its registration. However, Section 129 of the said Act is an exception to the same. In Muslim law, only such voluntary declaration in express terms with transfer of possession from the donor in favour of the donee and the acceptance by the donee are sufficient to fulfil all requirements of a valid gift/hiba. However, the only exception to that is that the donor must not be suffering from any disease having immediate threat of death, which is called Marz-ul-Maut as held in Ashiq Hussain v. Ashiq Ali 1972 SCMR 50, that there are three essentials of the gift under Muhammadan Law (i) declaration of gift by the donor, and (ii) as express or implied acceptance of the donee, and (iii) the seisin or the delivery of possession of the gift property by the donor to the donee. With regard to the transfer of the possession in case the donor and the donee are in joint possession thereof it has been held in Ali Khan v. Mumtaz Begum and another 1998 SCMR 2114 that if the purpose of the gift at the time of declaration shared between the donor and the donee, the donee is not required to vacate and may continue jointly in possession with the donee without entailing any adverse repercussions on the factum of the gift, for example when a gift is made by a husband to his wife, the husband can continue to receive accruing returns on the subject-matter of the gift and the required element of delivery of possession would remain unaffected.

It is also to be observed that the burden of proof is always upon a person who is desirous to take a benefit of gift, hence he is to prove all the ingredients of valid gift as held by Hon'ble Supreme Court in the above, Ashiq Hussain (supra).

Now it is to be proved by the plaintiff that the donor was not suffering from any disease which comes within the definition of Maraz-ul-Maut. As admitted by the plaintiff in his affidavit-in-evidence that the donor was suffering from cancer and he was also operated in 2002 and he incurred all the expenditure on his treatment. Although he averred that in his evidence that his father was enjoying good-health at the time of marriage and he himself made arrangements of his marriage in the suit house but the fact that prior to the operation on account of cancer in May, 2002 his father had first executed a Will Exh.P-10 dated 10th May, 2002, in which he had disclosed that he had gifted the suit house in favour of the plaintiff proves the fact that he must be having immediate danger of death on account of cancer disease otherwise there was no reason to execute such Will when he had gifted the suit house in favour of the plaintiff. Similarly the plaintiff has not brought anything on record that after the operation his father had fully recovered when he executed another   declaration   of   gift.   The   photograph   Exh.P-6  showing  his presence in the marriage is of no consequence. It may be appreciated that it is no necessary at all that death should in fact result from disease if the doctrine of marz-ul-maut is to be invoked. In this regard the Hon'ble Supreme Court in the case of Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143 has made the following observations :--

"There is one point which may be clarified here. It is stated in some commentaries and judgments that death should in fact result from a disease if the doctrine of marz-ul-maut is to be invoked, I am unable to agree with this proposition. If a person was suffering from galloping tuberculosis and was therefore under apprehension of death when he made the gift, but he was shot dead by some person or died of an accident, or of cholera or some other epidemic a short time after the gift I do not see why the doctrine of marz-ul-maut should not be applicable. Truly speaking even the fact that a person survives and does not die at all should not validate a gift which he made under apprehension of death. The validity of the gift is to be determined with reference to the circumstances as they exist at the time of making the gift. Subsequent failure to die cannot have a retrospective effect, so as to validate an invalid transaction. The true reasons for the invalidity of the gift is the state of the mind of the donor who believes that he is going to die. As he believes that he is going to die he has no intention of making a transfer inter vivos and his only intention is to make a transfer which will take effect after his death. A transfer takes effect according to the intention of the transferor. If the transferor has no intention of making a gift-during his life time no such gift will result. The reasons why a gift in marz-ul-maut operates as a will is that the intention is to gift in marz-ul-maut operates as a Will is that the intention is to make a testamentary alienation only. This doctrine is not only confined to Muslim Law. In Roman Law it is called donation mortis causa and it also appears in Section 191 of our Succession Act. In accordance with Section 191 gift "made in contemplation of death" are resumable by the donor if he survives and the power to make such gifts is co-extensive with the power of testamentary disposition. It is true that gifts "in contemplation of death" are gifts which are to take effect in case the donor dies, but authority can be found in any commentary for the proposition that although the donor does not say so the presumption in the case of gifts made during apprehension of death is that they are to take effect only in case of death. In Jarman On Wills (1951 edition) at p.46 it is stated that "the conditional nature of the gift need not be expressed, it is implied in the absence of evidence to the contrary", and that "if the circumstances authorize the supposition that the gift was made in contemplation of death mortis causa is presumed."

It is also surprising to note that although the plaintiff and the donor had been shifted from the suit house in October, 2002 after the marriage of the plaintiff but neither the donor nor the plaintiff intimated the defendants through any correspondence with regard to the gift of the suit house in favour of the plaintiff either prior to execution of will or there after and to vacate the same. However, as soon as the donor died on 24-7-2004 as admitted by the plaintiff in his affidavit-in-evidence, he served a legal notice upon the defendants dated 18-9-2004. There appears no reasons as to why the plaintiff did not file this suit against the defendants during the period of about two years from his shifting from the suit house to the rented house and kept waiting the death of his father (donor). There is no explanation in this regard. This is an important factor because the valuable rights in respect of the suit house inherited by the defendants are involved. The plaintiff was required to act in bona fide and transparent manner, if he was actually gifted the suit house by his father bonafidely. Even otherwise, there appears no reasons as to why the father would deprive his two daughters from their valuable rights in the suit house specially in the circumstances when both of them were having no shelter and living in the suit house. Until and unless some tangible evidence is brought to prove that the gift fulfilled all the requirements of a valid gift it is not possible to hold it accordingly particularly in a situation when the donor had already gifted one of the shops in his favour and the defendants did not raise any objection to this effect.

If this gift was also genuine why they would raise objection. Admittedly the second shop of the deceased is also in his possession to which the defendants have also not raised any objection.

Next is the free will of the donor. Admittedly the donor was an old aged person of 80 years old at the time of gift and suffering from cancer whereas the plaintiff was the only son and earning member of the family in whose favour one shop had already been gifted by the same donor therefore, on account of such an advantageous position of the plaintiff and infirmity of the doner it cannot be said that the gift was out of free will. Reference can be made on Mst. Hussain Bibi and others v. Mst. Aisha Bibi 1981 CLC 962.

In view of the above discussion it is clear that the plaintiff has failed to prove that the gift of the suit house in his favour by his father was a valid gift therefore he is lawful owner in respect thereof, hence the issue is decided in negative.

Issues Nos. 3 and 4.

Since the plaintiff has failed to prove his exclusive ownership over the house in question in his favour and since the defendants being the legal heirs of its owner therefore they are in its legal occupation thereof and the plaintiff can neither claim possession nor mesne profits. The issues are therefore decided accordingly.

Issue No. 5.

The plaintiff has failed to bring any evidence on record except his words that an account of illegal acts of the defendants he has suffered mental shock, pressure, physical torture, social disgrace for which the defendants are liable to pay Rs.500,000, as damages. He has failed to refer any particular act of the defendants. Mere such allegations without any tangible evidence is of no consequence, therefore, the issue is decided in negative.

Issues Nos. 6 and 7.

In view of the above, the plaintiff is not entitled for any relief and therefore, suit is dismissed with no order as to costs in the circumstances of the case.

(R.A.)      Suit dismissed.


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