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. ‑‑ O. XLT, r. 23‑Remand (civil)‑No question brought under consideration by lower Court whether donor in present suit was gifted corpus of land by her husband so as to make her full owner and competent to make present gift‑Material issue, held, not decided Case remanded for redecision.‑[Remand of case]. [p. 31]A

S. M. Bashir and Ha/1 Sh. Ghlas Muhammad for Appellant.

Sh. Abdur Rehman for Respondent No. 1.

Date of hearing : 21st March 1978.

The facts of the case giving rise to this regular second appeal are that Niaz Ali was the owner of the property in dispute, who made gift of it to his wife Mst. Fatima Bibi. Niaz Ali had no male issue and bad three daughters, out of whom one Mst. Sardaran had died in his lifetime. Mst. Fatima Bibi gifted the property in dispute to Abdul Ghafoor by means of a registered gift deed dated 7‑7‑1954. The gift was challenged in a suit by her two daughters, namely, Gulzar Begum and Mst. Sharifan Begum. In the pendency of the suit Mst. Fatima Bibi died and her brother Abdur Rehman and sister Aisba Bibi were joined as plaintiffs because they also contested the gift. The gift was challenged on various grounds, that Mst. Fatima Bibi had no disposing mind, that she had made the gift under undue influence of the respondent and that the gift was the result of fraud practised upon her. It was also urged in the plaint that Niaz Ali created a trust and had not gifted the corpus of the land to Mst. Fatima Bibi therefore, she could not gift away the same to the respondent. This plea was brought under issue No. 9 which is "whether the donor was not competent to make the gift " The learned trial Judge found the issue against appellant holding that if after the gift was made Niaz Ali asked Mst. Fatima Bibi to gift away the property to his heirs, it was only .a wish and was not binding. The learned District Judge has not given finding on this issue. The learned District Judge missed to decide the issue because he took up the said issue alongwith three issues, i.e. 2, 3 and 10. He formulated three points whether Mst. Fatima Bibi was not of disposing mind, whether the gift was made under undue influence and whether the gift was result of fraud practised upon the lady. No question was brought under considera tion by the learned District Judge whether Mst. Fatima Bibi was gifted the corpus of the land by Niaz Ali and thus had become the full owner and competent to make the gift in favour of the respondent. This is a question of fact and if it is taken up in the second appeal, the parties may be deprived of one right of appeal. As a material issue has not been decided by the learned District Judge, I accept the appeal and setting aside the judgment and decree of the learned first appellate Court remand the case with the direction that the appeal be re‑decided after giving finding on issue No. 9 also, within two months.

2. The record should be sent back to the learned District Judge, Sialkot immediately. The parties are left to bear their own costs of the second appeal as the appeal has not been decided on all the points.

S. A. H. Appeal allowed.

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