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Civil Appeal No. 301 of 1970, decided on 14th April 1976.

(On appeal from the judgment of the High Court at Lahore dated 8‑11‑1966 in Regular Second Appeal No. 496 of 1956).

-----S. 16 read with Muhammadan Law‑Gift‑Undue influence Gift deeds proved by petition‑writer and attesting witness to have been executed at donor's instance‑Deeds read over to executant twice, once by petition‑writer and secondly before Registrar‑Executant walking three miles on foot to get deeds registered at Registration Office‑Deceased executant of deeds, held, clearly shown to have had his mental and physical capacity, intact in spite of his advanced age‑Plaintiffs having incurred donor's wrath by involving him in protracted and frivolous litigation, all ending in judgments against them, donor held, for obvious reasons, made gifts deliberately in favour of defendants who served him and with whom he was pleased at cost of plaintiffs‑Plaintiffs having failed to discharge burden of proof in respect of transactions having been induced by undue influence, no room, held, to warrant interference with findings of High Court, not shown to be based on no evidence.

Inche Noriah binte Muhammad Tahir v. Ahaik Allie bin Omar bin Abdullah Bahushuan A I R 1929 P C 3 and Allcard v. Skinner (1888) 36 Ch. D 145 ref.

Sh. Abdur Rehman, Advocate instructed by Masud Akhtar, Advocate‑on- Record for Appellants.

Mazharul Haq, Advocate instructed by Muhammad Mehdi Anwar Advo cate‑on‑Record (absent) for Respondents.

Date of hearing : 14th April 1976.

This is the plaintiff's appeal by special leave froth the judgment and decree passed by a Division Bench of the then High Court of West Pakistan at Lahore on the 8th November, 1966.

Briefly the relevant facts are these. On the 10th January, 1951, one Mohammad Din son of Nazir resident of Village Aada, Tehsil Daska, District Sialkot gifted lands measuring 34 kanals 13 marlas in favour of his adopted son, Mohammad Shafi respondent No. 2 and measuring 58 kanals 11 marlas along with the kotha in favour of respondent No. 1, Allah Rakha, father of said Mohammad Shafi, by means of two registered deeds (Exh. D‑1 and D‑2). He died afterwards on the 5th August, 1951. On this on the 9th January, 1954, the appellants, Nawab Din and 9 others, brought the suit, out of which this appeal has arisen, against the two respondent in the civil Court at Daska for possession of the land by avoiding the two gifts in dispute, inter alia on the grounds that the donor was old and invalid and not in sound disposing mind to make them. Even otherwise they were made by the donor during Marzul Maut (death‑bed illness). At any rate, they were procured by undue influence exercised on him. The two defendants denied these allegations of the plaintiffs and contested the suit and the trial Court framed a number of issues arising out of the pleadings of the parties.

After recording the evidence the trial Court found that the two gifts were made during Marzul Maut and that Mohammad Din, being an old man, had shifted to the house of Allah Rakha who was in a position to dominate his will. He, in fact, took advantage of his position in securing the gift in his own favour. In so far as the gift in favour of Mohammad Shafi was con cerned, the trial Court was of the opinion that that had been effected with the free consent of Mohammad Din in favour of his own adopted son out of his love and affection for him and could not be said to have been induced by undue influence exercised upon the old man. But because the two gifts were made by the donor during Marzul Maut they were held to be void and ineffective against the plaintiffs. The Court, therefore, passed a decree for possession of 9/10 share of the disputed property in favour of the plaintiffs Nos. 1 to 9 and 1/10th share was held to have devolved on respondent No. 1 as one of the heirs entitled to succeed along with the plaintiffs to estate of the deceased.

The two defendants went up in appeal against the decree. Before the District Judge, Sialkot, the counsel for the plaintiffs conceded that on the facts and in the circumstances of this case the question as to whether the two gifts in dispute were made by the donor during Marzul Maut and hence vitiated, did not really arise for determination. The disputed gifts were made in January, 1951 and the Shariat Law was amended only in March, 1951 laying down that the rule of decision in relation to gifts will also be the Muhammadan Law. The amendment thus made was not retrospectively applicable to this case. As such, it was conceded that the donor being governed by the customary law at the time of the execution of the gift deeds, the rule of Marzul Maut under Shariat Law was not applicable to these two gifts deeds. In the opinion of the District Judge, it could not be said that the donor was incapable of watching his interest and did not possess a sound disposing mind when he made the two gifts. According to him the gift in favour of Mohammad Shall respondent, his adopted son, was made by the donor with his free consent. However, in the opinion of the Court Allah Rakha respondent was in a position to dominate the will of the deceased and had used his position to gain this advantage to the prejudice and at cost of the interests of the adopted son and other heirs of the donor. In this view of the matter, the District Judge upheld the gift in favour of Mohammad Shafi respondent but set aside the gift made by the donor in favour of Allah Rakha respondent as having been procured by undue influence practised on him.

Dissatisfied, Allah Rakha filed Regular Second Appeal No. 496 of 1956 against the judgment and decree and the plaintiffs‑appellants filed Regular Second Appeal No. 542 of 1956 against Mohammad Shall respondent. The two appeals were disposed of together by a Division Bench of the then High Court of West Pakistan at Lahore on the 8th November, 1966. The Court found the plaintiffs had failed to establish that the two gifts in dispute made by the donor in favour of Allah Rakha and Mohammad Shafi respondents were procured by any undue influence exercised on him. But as during the pendency of the two appeals before the High Court some of the necessary parties had died and their legal representatives were not duly brought on the record within time, the two appeals were held to have abated to the extent of their share in the property in dispute. Subject to this abate ment the suit of the plaintiffs relating to both the gift deeds in dispute was dismissed by the High Court.

In this appeal before us at the hearing the controversy between the parties was narrowed down and confined against the finding recorded by the High Court on issue No. 5 alone to the effect that the two gifts in dispute were not effected by any undue influence exercised by the defendants on the donor. The findings on none of the other issues in the suit were at all addressed before us at the hearing.

It is common ground between the parties that before the execution of the two gift deeds in favour of the respective defendants, the deceased had shifted to the house of Allah Rakha and was living with him as his wife had died a few years earlier. According to the plaintiffs, Mohammad Din was nearing 100 years in age at the time. But according to the defendants, he was about 80 years of age at the time of his death. According to the entries in his death certificate (Exh. P‑2) Mohammad Din died on the 5th August, 1951, at the advance age of 85 years after having remained ill of fever for one year. It cannot be disputed that during those days the donor was living with Allah Rakha in his house. He used to look after him and he became increasingly dependent on him. In this state of affairs, the trial Court as well as the District Judge in appeal concurred in holding that Allah Rakha was in a position to dominate the will of the donor at the relevant time. But that finding alone does not necessarily lead to the conclusion that the gifts were procured by him by undue influence exercised upon the donor. In this connec tion section 16 of the Contract Act lays down that a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and "uses that position" to obtain unfair advantage over the other. In particular, it is further laid down in this section that a person is deemed to be in a position to dominate the will of another (a) where he holds a real or apparent authority over the other or (b) where he makes contract with a person whose mental capacity is temporarily affected by reason of age, illness or mental or bodily distress. Subsection (3) of section 16 is particularly in point and lays down that where a person who is in a position to dominate the will of another enters into a contract with him, and the transaction appears on the face of it or on the evidence adduced, to be unconscionable, the burden of proving that, A such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other.

In this connection, their Lordships of the Privy Council in Inche Noriah binte Mohammad Tahir v. Ahaik Allie bin Omar bin Abdullah Bahashuan (AIR 1929 P C 3) quoted with approval from the judgment of Lord Justice Cotton in the well known case of Allcard v. Skinner ((1888) 36 Ch. D 145) the rule that is followed in such like cases, wherein it was, inter alia, observed that :‑---

. . where the relations between the donor and the donee have at or shortly before the execution of the gift been such as to raise a presump tion that the donee had influence over the donor. In such a case the Court sets aside the voluntary gifts, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor's will."

Now applying this test to the facts in the instant case, we find from the evid ence of Ghulam Sarwar (P. W. 1) and Ilahi Bakhsh (D. W. 1), petition writer, that the two deeds were executed at the instance of the deceased. They were read over to him twice once by the petition‑writer and on the second occasion before the Registrar. It is in the evidence of the witnesses for the defendant that the deceased Mohammad Din walked on foot to Sialkot and it was he who asked the attesting witnesses to accompany him to Sialkot for the purpose of attesting the two deeds of the gifts. The High Court in relying on the evidence of Ilahi Bakhsh (D. W. 1), petition‑writer, observed that he was an independent witness who bore testimony to the effect that the deceased was not ailing at the time. Similarly, in the opinion of the Court, Ghulam Sarwa (P. W. 1), the other attesting witness, was not able to contradict the suggestion that the deceased had covered a distance of three miles on foot from his village to Sialkot to make the gifts. This shows that in spite of the advanced age the mental and physical capacity of the deceased had not been impaired.

On the 16th March, 1936, Mohammad Din adopted Mohammad Shafi as his son vide the deed (Exh. D‑3). Before it on the 4th July, 1929, some of the plaintiffs brought a suit against Mohammad Din and some others challenging alienation by way of registered mortgage dated 1st July, 1922. Their suit was eventually dismissed by the Civil Judge on the 5th February, 1929, inter alia, on the main ground that the land in that case was not proved to be ancestral qua them. Their appeal against the decree was also dismissed by the District Judge on the 1st July, 1929 (Exh. D‑5). It also appears that on the 7th of March, 1930, Mohammad Din effected another mortgage of his land in favour of Allah Rakha respondent and the alienation was again challenged by a suit brought by some of the plaintiffs herein in the civil Court at Sialkot on the 26th February, 1936. But that suit was also dismissed by the trial Court on the 9th July, 1936 on the finding that the land was not ancestral. All this must have annoyed Muhammad Din. These are some of the obvious reasons which must have weighed in making the gifts deliberately in favour of the defendants who had served him and with whom he was pleased at the cost of the plaintiffs who had incurred his wrath and displeasure merely because of their own attitude towards him by involving him in protracted and frivolous litigation. We agree with the High Court in holding that the plaintiffs having sought to array themselves against Mohammad Din, he irrevocably cast hi, lot with Allah Rakha and his family by making these gifts in favour of the two respondents. In relying on all these facts and circumstances the High Court has drawn its own conclusion from the evidence in finding against the plaintiffs. These findings cannot he held to be based on no evidence and these conclusions are fully borne out from the record. There is thus no room to warrant our interference with the judgment of the High Court.

This appeal has, therefore, no force and, is dismissed with no orders as to costs.

Appeal dismissed.

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