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 not disputed that Hajimahamad was suffering from diabetes from 1936 and it is proved satisfactorily that on April 15, 1939, he went in person to the house of Diwan Bahadur Limaye pleader and in his presence made the gifts which are now impugned as having been made during his death-illness, that is to say an illness (marz) which induces an apprehension of death (maut) in the mind of the person suffering from it and which eventually results in his death. If that illness is of long continuance or lingering, as in the case of consumption, and there is no immediate apprehension of death, it cannot be regarded as Marz-ul-maut, but it may become so if it subsequently reaches such a stage as to cause an apprehension of immediate death and does in fact result in death. In some of the texts on Mahomedan Law (e g. Hedaya), one year is prescribed as the period sufficient to take a lingering illness out of the category of Marz-ul-maut. But it is now well settled that there is no hard and fast rule and one year is only an approximate period. In Sarabai V/s. Rabiabai (1905) I.L.R. 30 Bom. 537 Batchelor J. (sitting singly) laid down with great lucidity the principles of Marz-ul-maut as gathered by him from an examination of the earlier authorities as follows (p. 550): I admit that this question is not to be decided merely upon medical principles as now ascertained among Western peoples : but my examination of the authorities leads me to the conclusion that in order to establish marz-ul-maut there must be present at least these conditions : (a) proximate danger of death, so that there is as it is phrased, a preponderance (ghaliba) of khauf or apprehension, that is, that at the given time death must be more probable than life: (b) there must be some degree of subjective apprehension of death in the mind of the sick person: (c) there must be some external indicia, chief among which I would place the inability to attend to ordinary avocations.