Law: Civil Procedure Code (V of 1908)

Section: 4

Law: Constitution of Pakistan, 1973

Section: 185(3)

(a) Civil Procedure Code (V of 1908)--   ---O.XXII, R.4--Constitution of Pakistan (1973), Art.185 (3)--Leave to appeal was granted to consider whether during pendency of Regular Second Appeal of appellant before High Court when one of respondents had died and his legal representatives were not brought on record, High Court was justified in consigning appeal as having abated in toto.   (b) West Pakistan Muslim Personal Law (Shariat) Act (Amendment) Ordinance (XIII of 1983)--   ---S.2--Gift--Competency of customary land-holder to make gift—Court below holding concurrently that gift made by customary land-holder to appellant was under undue influence and its possession which was an essential ingredient of a valid gift was not delivered to donee and that donor being last male holder of property could not at all make any gift because he was governed by custom--Appellant unable to make out a case to come to a finding different from one arrived by Courts below--Gift was declared invalid and of no legal effect and suit property ordered to devolve upon heirs of donor under Muhammadan Law. JUDGMENT ALI HUSSAIN QAZILBASH, J.--Hakim Din respondent (now represented by his L. Rs) and five others claiming to be fifth degree collaterals of one Arura brought a suit for possession of 1/2 share of land described in the plaint, situate in Mauza Dugree, Tehsil and District Sialkot. Their case was that the land acquired by Arura was ancestral and he was governed by custom; that he died on 23-1-1957 at the age of 70 or 80 years and that he made a gift of the disputed land to Mst. Barkat Bibi (now appellant) on 16-1-1957, i.e. , only seven days prior to his death. They challenged the validity of the gift through the present suit on the ground that under customary law such gift could not be made, that the gift was invalid because its possession was not delivered to Mst.Barkat Bibi and that the gift was made at the time when the mental and physical condition of Arura, donor, was not normal. The suit was contested, as a result of which as many as eleven issues were framed. The learned trial Court after recording the evidence led by the parties decreed the suit of the…

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