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of <h1>Appellate Court Upholds Gift Validity for Joint Residence, Orders Finding on Possession.</h1> <h3>S.V.S. Muhammad Yusuf Rowther and Ors. Versus Muhammad Yusuf Rowther and Ors.</h3> The appellate court dismissed the plaintiffs' objections regarding the residential house, upholding the validity of the gift due to joint residence. A ... - Issues Involved:1. Validity of the gift deed due to undue influence.2. Validity of the gift deed as a death-bed gift (Marz-ul-Maut).3. Delivery of possession under Muslim Law.4. Validity of the gift deed due to Musha (undivided shares).Detailed Analysis:1. Validity of the Gift Deed Due to Undue Influence:The plaintiffs argued that the gift deed dated 1st February 1947 was invalid because it was executed under undue influence when Muhammad Ismail, the donor, was of advanced age and unable to take care of himself. Both the trial court and the appellate court found no evidence to support this claim. The courts determined that the finding on this issue was one of pure fact, which could not be challenged in the second appeal.2. Validity of the Gift Deed as a Death-Bed Gift (Marz-ul-Maut):The plaintiffs also contended that the gift deed was invalid because it was made when Muhammad Ismail was seriously ill and expecting to die, invoking the rule of Marz-ul-Maut, which limits the effect of such gifts to one-third of the donor's property. Both the trial court and the appellate court rejected this argument, and this finding was also considered a pure fact, making it unchallengeable in the second appeal.3. Delivery of Possession Under Muslim Law:The trial court decreed the suit in favor of the plaintiffs, stating that the defendants had not established that possession of the gifted properties was delivered to them by the donor, a requirement under Muslim Law for a valid gift. The appellate court upheld this decision for the lands but made an exception for the residential house, where the donor and donees were jointly residing. The defendants appealed, arguing that there was no specific issue raised about the delivery of possession and that the courts below erred in considering this point.The appellate court noted that the pleadings did raise the issue of delivery of possession and that the trial judge should have framed a specific issue on this point. Despite the absence of a formal issue, the court found that the parties understood the case they had to meet, and the defendants did not object to the consideration of this point during the trial or the first appeal. Therefore, the appellate court rejected the argument that the defendants were taken by surprise.The defendants also argued that the recital in the deed of gift, which stated that possession was delivered, should create a rebuttable presumption in their favor. The appellate court agreed that the courts below had wrongly placed the burden of proof on the defendants instead of the plaintiffs. The court cited precedents from the Privy Council, which held that such recitals by the donor are admissions binding on the heirs and create a rebuttable presumption of delivery of possession.Given the long delay since the suit was filed and the absence of a specific issue on delivery of possession, the appellate court decided to call for a finding on fresh evidence regarding whether possession was delivered as required by Muslim Law.4. Validity of the Gift Deed Due to Musha (Undivided Shares):The plaintiffs also claimed that the gift deed was invalid because it involved undivided shares (Musha). This issue was raised in the pleadings but did not figure in the issues framed or the discussions in the judgments of the courts below. The appellate court noted that there was no evidence or argument presented on this point during the trial or the first appeal, suggesting that this objection was either not seriously put forward or abandoned. Therefore, the court decided not to permit further evidence on this point.Conclusion:The appellate court dismissed the plaintiffs' memorandum of cross-objections regarding the residential house, agreeing with the lower court's finding that the gift was valid due to the joint residence of the donor and donees. The court called for a finding on fresh evidence regarding the delivery of possession for the other properties and remanded the case to the trial court to submit a finding within three months. The second appeal will be posted for final disposal after the receipt of this finding.
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