SAFIA BEGUM Vs. ABDUL RAJAK

JUDGEMENT

(1.) THESE first appeals arise out of two suits filed in the Court of the First Class Subordinate Judge at Sholapur, one by the mother Sahebjadi and the other by her son Abdul Rahiman, defendant No. 1 in both the suits being her step-son Abdul Rajak. Her husband Hajimahamad died on May 14, 1939. A month before his death, on April 15, 1939, he made a gift of his bungalow and chawl to his son Abdul Rahiman, of his house and stable to his wife Sahebjadi and of his shop in Mangalwar Peth to his first son Abdul Rajak. THESE gifts were orally made by him in the presence of his lawyer Diwan Bahadur Limaye and he subsequently made applications to the City Survey Officer to enter the names of the donees against the respective properties. One of these suits was filed by Sahebjadi and the other by her son Abdul Rahiman to recover possession of the properties respectively given to them by Hajimahamad, or in the alternative they asked for a partition of the entire property and for possession of their respective shares according to Mahomedan Law. Defendant No. 1 Abdul Rajak, who was the only contesting defendant, contended inter alia that his father had made a gift of the shop in Mangalwar Peth to him on April 2, 1939, that the gifts alleged to have been made by him on April 15, 1939 were not admitted, that even if he had made any oral gifts on that day, they were not completed by the transfer of possession and were, therefore, ineffective, and that in any case he was then suffering from death-illness (Marz-ul-maut) and as the gifts were in favour of the heirs, they were not valid without the consent of the other heirs. The learned Subordinate Judge upheld Abdul Rajak's claim that the shop in suit had been given to him on April 2, 1939. He also held that Hajimahamad made a gift of the bungalow and chawl to his son Abdul Rahiman and of the house and stable to his wife Sahebjadi on April 15, 1939, and completed those gifts by transferring their possession to the donees as far as possession could be transferred, but he held that he was then suffering from death-illness (Marz-ul-maut), and as defendant No. 1 Abdul Rajak, who was one of the heirs, was not giving his consent to those gifts, they were invalid and incapable of being enforced. He, therefore, declared the shares of the different heirs in the bungalow, chawl, house and stable and ordered that a partition should be effected accordingly by the appointment of a Commissioner in execution proceedings. He rejected the plaintiffs' claim in respect of the shop which had been given to Abdul Rajak.

(2.) IN these two appeals filed by the plaintiffs they have not asked for any relief in. respect of the shop, but they contend that Hajimahamad was not in his death-illness when he made the gifts in their favour on April 15, 1939. There was some contention in the lower Court regarding the title of Hajimahamad to all the properties in suit, but the lower Court held that Hajimahamad acquired those properties from his brother Ladlesaheb and was their owner when he made the various gifts. Thus the only question which has now to be determined is whether Hajimahamad was suffering from Marz-ul-maut on April 15, 1939.

(3.) IT is pointed out that in the present case the third condition at any rate is not fulfilled, since Hajimahamad was able to go to a lawyer, discuss with him the best method of disposing of his property, get the drafts from him and then personally go to his family doctor to obtain his signatures on certain applications. I doubt, with respect, whether the third condition mentioned by Batchelor J. was intended to be a sine qua non. He said that those conditions which he had gathered from the earlier authorities had commended themselves to British Courts as the incidents of Marz-ul-maut and he referred to Fatima Bibee v. Ahmad Baksh (1903) I. L. R. 31 Cal. 319. In that case it was laid down that the texts on Mahomedan Law mentioned three matters (i) illness, (ii) expectation of fatal issue, and (in) certain physical incapacities, which indicated the degree of the illness. But this remark was to some extent modified by the following observations appearing in the judgment (p. 327) : The learned vakil for the defendants contends that the meaning of this is that, if the 1st and 3rd exist, then the 2nd must necessarily be presumed, namely, that there is an ex-pectation of death. The learned vakil for the plaintiff contends on the other hand, that there is no such necessary presumption, that the matters of the 3rd class are only evidence; and that the Court must decide from that and the other evidence whether the second actually exists, that is, whether there is expectation of death. The latter appears to us to be the correct view : for the passage from Fatawa-i-Alamgiri distinctly states twice that the definition of death-illness is illness in which death is highly probable, whether the incapacities mentioned exist or not. These incapacities, therefore, are not infallible signs of death-illness. Only one symptom is mentioned as conclusive, namely, that the man cannot stand praying. The explanation appears to be this : At the time when this law was laid down, little medical knowledge existed. IT was necessary, however, to decide when an illness was a death-illness ; and that could only be done by simple rules dealing with certain symptoms which all persons could notice and comprehend. Yet it appears from these passages that even while the lawyers suggested that certain physical incapacities indicated dangerous illness, they did not lay down positively that these incapacities are conclusive, as contended for by the learned vakil for the defendants : for it was no part of their definition of death-illness, whether the incapacities mentioned existed or not. IT is only with regard to the extreme case, where a man cannot stand up to perform the primary and simple obligation of saying his prayers, that they declared the illness should be deemed a death-illness. IT is clear from this that the last condition is only a symptom which may be said to be sufficient to presume the existence of an apprehension of death in the mind of the patient. Subsequent to these decisions the Privy Council had to consider the question in Ibrahim Goolam Ariff v. Saiboo (1907) L. R. 34 I. A. 167 : S. C. 9 Bom. L. R. 872. In that case it was held that the test laid down by the Courts in India was whether there was an apprehension of death in the mind of the donor at the time of the execution of the deed of gift, and their Lordships of the Judicial Committee approved of that test and observed (p. 177): The law applicable is not in controversy; the invalidity alleged arises where the gift is made under pressure of the sense of the imminence of death. Similarly in Fatima Bibi v. Ahmed Baksh (1907) L. R. 35 I. A. 67 : S. C. 10 Bom. L. R. 50 the Judicial Committee held that the test which was treated as decisive on the point of the validity of the gift was whether the deed of gift was executed by the donor under apprehension of death. In Hasanalli v. Ruhulla (1924) 27 Bom. L. R. 184 the three conditions laid down by Batchelor J. were accepted as the test without any reference being made to the two decisions of the Privy Council. But now it may be taken as settled by the privy Council that the crucial test of Marz-ul-maut is the subjective apprehension of death in the mind of the donor, that is to say the apprehension derived from his own consciousness, as distinguished from the apprehension caused in the minds of others, and the other symptoms like physical incapacities are only the indicia, but not infallible signs or a sine qua non of Marz-ul-maut.