ABDUL HAFIZ BEG Vs. SAHEBBI

JUDGEMENT

(1.) On the principles that effect the dispositions under the doctrine of deathillness, law is fairly well settled. In "The Principles of Mohmmedan Law" by Mulla, the gifts made on the death -bed are the subject-matter of consideration, in Chapter X, and while explaining the doctrine of marz-ul-maut the learned author says that it is a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death., It is further noted that it is an essential condition of marz-ul-maut i.e. of death - illness that the person suffering from the marz, i.e. malady must be under an apprehension of Maut i.e. death. The note to the Explanation goes on to explain the various shades of the malady raising apprehension of death and it is not necessary to refer to all that debate, In the celebrated work "Principles of Muhammedan Jurisprudence" by Abdur Rahim, the learned author had made a basic and notable effort to find out the juristic principles behind the Mohammedan precepts of law an has dealt with the topic of death-illness at some great length. In this view, for which he takes his support to Heiaya and Kifava the Marz-ul-maut is an illness from which death is ordinarily apprehended in most cases and in particular cases it has actually ended in death. He observes that:

(2.) If these tests were applied then it follows that there is some lack of evidence in the present case, that is no doctors have been examined, and further the evidence is somewhat fluid in the sense that 7 days prior Abdul Kadar had been laid ill he had returned from Chinchala and ultimately died on 4th. He was in a position was appears from some evidence to make signs and was thus capable of communicating.

(3.) However, Abdul Rahim's view about the exposition of this doctrine does not appear to have found clear support in the judicial pronouncements on the present doctrine. In Fatima Bibee v. Ahammad Baksh, (1904) ILR 31 Cal 319, the Calcutta High Court while considering the doctrine of marz-ul-maut known to Mohammedan Law found three things as necessary to answer the same viz. (1) illness, (ii) expectation of fatal issue and (iii) certain physical incapacitates, which indicate the degree of illness. The second condition i.e. expectation of fatal issue, could be presumed to exist from the existence of the first and third, as the incapacitates indicated, with perhaps the single exception of the case in which a man cannot stand up to say his prayers, are no infallible sings of death-illness. These conditions were qualified by stating that a long continued malady would contraindicate the immediate apprehension of death. A person afflicted by such long drawn course of illness can still be possessed of his sense and his dispositions would not be invalid. The view of the Calcutta High Court appears to have been affirmed by the Privy Council in Fattier Bibee v. Ahmad Baksh, (1907) ILR 35 Cal 271 (272) (PC) . No doubt it appears that in that case too there was evidence of a doctor. The deed was executed about 6 days before the date of the death. While considering the question of invalidity of such disposition under the law of marz-u;-maut, it was observed: