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(On appeal from the judgment and order of the Lahore High Court, Lahore, dated 6th April 1976, passed in R. S. A. No. 150 of 1965).

(a) Civil Procedure Code (V of 1908)

-- O. VI, r. 6-Muhammadan Law-Gift-Pleadings-No specific issue framed as to non-delivery of possession by donor yet High Court finding delivery having not been made by donor-Finding. held, extraneous to record and thus not firmly founded. -[Gift-Pleadings Muhammadan Law].

(b) West Punjab Muslim Personal Law (Shariat Application Act (IX of 1948)

.-- [As amended by Punjab Muslim Personal Law (Shariat) Application (Amendment) Act (XI of 1951), S. 2]-Contention that in view of observations in P L D 1956 Lah. 934 notwithstanding amendment in Act including "gift" in matters to be governed by Shariat, parties still governed by custom and as such doctrine of maraz-ul-maut not applicable to case-Held : Not correct-Observations in P L D 1956 Lah. 934 cannot be construed as amounting to ouster of Islamic provisions relating to gift and rendering nugatory provisions inserted by Amending Act of 1951-Petitioner himself set up gift of ancestral property as basis of his claim which notwithstanding amendment of 1951 was found subject to customary restrictions.-[Gift].

In support of his argument for the non-applicability of the Muslim Personal Law, petitioner's counsel relied on the following observation from the judgment of Mr. Justice S. A. Rahman the then Chief Justice of the West Pakistan High Court in P L D 1956 Lah. 934: "It is clear at the same time that the position of the limited female owner mentioned in section 3 of the 1948 Act, which has been left unamended, would remain as before and her powers to deal with the property in her possession, would continue to be regulated by customary rules. This indicates that even by the 1951 amendment, the Legislature has not effectually put an end to all customary estates that exist. But if I am right in holding that even the male owner inheriting under custom is not really a full owner but, in a sense, a limited owner, it would be quite logical to say that even by way of gift of ancestral property, the male-holder can transfer no more than what he possesses. From the very nature of the case, a gratuitous transfer by way of gift of ancestral property, is not one supported by legal necessity, and where customary restriction on such alienations exist, the gift could not enure beyond the lifetime of the alienor '.

Held : The above observation does not help the petitioner. Firstly, it cannot be construed as amounting to an ouster of the Islamic provisions relating to gift rendering nugatory the provision inserted by the amending Act of 1951. Secondly, it is the petitioner who has set up the gift of ancestral property as the basis of her claim which notwithstanding the amendment by the 1951 Act was found to be subject to customary restrictions.

Bashir Ahmad and S others v. Muhammad and 8 others P L D 1956 Lah. 934 ref.

(c) Muhammadan Law-

-Gift -Maraz-ul-maut-No misreading by Courts below in coming to a concurrent finding on gift being made during maraz-ul-maut Consistent findings of three Courts in succession on point-Held Insurmountable hurdle to cross.-[Gift].

Maulvi Sirajul Haq, Advocate Supreme Court and Muhammad Afzal Siddiqi, Advocate-on-Record for Petitioner.

Nemo for Respondent. Date of hearing t 26th October 1976.

MUHAMMAD AFZAL CHEEMA, J

.-The dispute in this petition relates to the validity of a gift of agricultural property measuring 43 kanals 11 marlas alongwith proportionate share in the shamilat and a residential house made by one Muhammad Gul in favour of his sister Mst. Bibi Jan allegedly during marz-ul-maut the day preceding his death on 18-9-1961. The gift was challenged by Barkhurdar nephew of Muhammad Gul in a civil suit for joint possession. Issues relating to the competence of the suit, the locus standi of Barkhurdar respondent, the ancestral nature of the land, the application of custom and the validity of the gift during mortal illness were framed. The trial Court took the view that although the parties were governed by custom in the matter of succession as a result of the amendment introduced by the Punjab Muslim Personal Law (Shariat) Application (Amendment) Act, 1951, Muslim Personal Law was to apply in matters of gift which if made during marz-ul-maut was rendered invalid. Considering the evidence on the point, it was found that the mutation in this regard was entered on 17-9-1961 and attested by the Revenue officer on 18-9-1961 and Muhammad Gul donor expired the same day after a few hours. Accordingly, it was held that it was a case of a gift made during marz-ul-maut and was accordingly struck down. When the case came up before the Additional District Judge in appeal, he agreed with the trial Court's finding "that the gift of the property was made by Muhammad Gul in a state of serious illness and expectancy of death ; and that in fact he actually died on the same day on which the gift in favour of the appellant was made". Notwithstanding this, however, he accepted the petitioner's appeal and upheld the validity of the gift having been competently made under custom. Respondent preferred a Second Appeal in the High Court which was allowed by a learned Judge vide order dated 6-4-1976 from which leave to appeal is sought.

A perusal of the impugned judgment shows that two considerations weighed with the learned Judge in striking down the gift ;firstly, it was found to have been made during mortal illness ; and secondly, delivery of possession as essential ingredient both under custom as well as under Muslim Law was not found to have been established. In support of the petitioner, learned counsel contended before us on the basis of Bashir Ahmad and 3 others v. Muhammad and 8 others P L D 1956 Lah. 934 a Full Bench decision of a high authority that notwithstanding the provision contained in the amendment of the West Punjab Muslim Personal Law (Shariat) Application Act (Act IX of 1948) by the amending Act of 1951, whereby "Gift" was also included for the first time in the list of matters to be governed by Muslim Personal Law, the parties in the instant case were still governed by custom and as such the Islamic Law doctrine of gift during marz-ul-maut was not relevant. Alternatively, it was contended that even otherwise, there was no evidence on the record to establish that the gift was in fact made during marz-ul-maut, it was submitted that the finding in this regard was based on misreading of evidence. Lastly, it was submitted that finding of the High Court as to the non-delivery of possession was based on no evidence whatever and was wholly beyond the scope of the pleadings of the parties.

Taking the last point first, we do feel that no specific issue was framed on this point and therefore, the High Court's finding a9 to the non-delivery of possession was not firmly founded being extraneous to the record. In support of his argument for the non-appllicability of the Muslim Personal Law, learned counsel relied on the following observation from the judgment of Mr. Justice S. A. Rahman the then Chief Justice of the West Pakistan High Court in P L D 1956 Lah. 934 mentioned above

"It is clear at the same time that the position of the limited female owner mentioned in section 3 of the 1948 Act, which has been left unamended, would remain as before and her powers to deal with the property in her possession, would continue to be regulated by customary rules. This indicates that even by the 1951 amendment, the Legislature has not effectually put an end to all customary estates 1B that exist. But if I am right in holding that even the mate owner inheriting under custom is not really a full owner but, in a sense, a limited owner, it would be quite logical to say that even by way of gift of ancestral property, the male-holder can transfer no more than what he possesses. From the very nature of the case, a gratuitous transfer by way of gift of ancestral property, is not one supported by legal necessity, and where customary restrictions on such alienations exist, the gift could not enure beyond the lifetime of the alienor."

In our view the above observation does not help the petitioner. Firstly, it cannot be construed as amounting to an ouster of the Islamic provisions relating to gift rendering nugatory the provision inserted by the amending Act of 1951.. Secondly, it is the petitioner who has set up the gift of ancestral property as the basis of her claim which notwithstanding the amendment by the 1951 Act was found to be subject to customary restrictions: Coming now to the last point; namely, the finding on the question of the gift having been made during marz-ul maut, learned counsel did not have the evidence before trim so as to point out the alleged misreading by the Courts below in coming to a concurrent finding. No doubt the District Judge accepted the petitioner's appeal but he nevertheless gave a categorical finding that it was case of gift during mart-ul-maut. Thus the position as it finally emerges. is that on this question of fact the petitioner Is confronted with consistent finding of three Courts in succession. This indeed is an insurmountable hurdle for her to cross.

Accordingly, we see no force in this petition which is hereby dismissed.

S. A. H. Petition dismissed.

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