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First Appeal No. 54 of 1951, decided on 21st July, 1954, from the decree of Salah‑ud‑Din Hanif, Senior Civil Judge, Gujranwala, dated the 5th February, 1951.
(a) Muhammadan Law
‑Gift in favour of some heirs to exclusion of others‑Valid‑Unfettered power of alienation.
The only restraint upon a Muslim in the matter of alienating his property imposed by the Muslim Law relates to wills and gifts on death‑bed. In other cases the power of alienation of a Muslim qua .his property is, apart from the conditions laid down by the law for completing a transfer, unfettered:
Gift in favour of some heirs to the exclussion of others is valid.
It may be impious for a Muslim to deprive some or all of his children of his property by alienating it in his lifetime- and it would be obviously so in all good sense if done without just cause‑; but there is nothing anywhere in the Holy Quran to forbid such gifts when made by a person not suffering from marz‑ul‑maut.
Nawab Umjad Ally Khan v. Mst. Mohumdee Begum, 11 Moore's Ind. App. 517, rel.
Ahmad Khan v. Mst. Zamroot Jan, A I R 1950 Pesh. 11, dissented from.
(b) Muhammadan Law‑
Gift‑Marz‑ul‑maut‑What is.
Per Akhlaque Husain, J.
‑According to Muslim Law, marz‑ul‑maut or mortal illness is a malady which (1) incapa citates the .sufferer from attending to his ordinary avoca tions (2) induces in him an apprehension of imminent death, or, as their Lordships of the Privy Council have aptly phrased it (341 A 167), causes in his mind "pressure of his sense of the imminence of death" and (3) eventually results in death. While it is true that the raison d'etre of the doctrine is that the deceased acted under pressure of the sense of the imminence of death, it is none the less essential that the other two pre‑requisites, namely, the external or physical indicia of the illness and the fatal issue must also be present. It is implicit rule the rule as stated above, that when the illness in question has lasted for long, e.g., for a year, it ceases to be marz‑ul‑maut, the reason being that if the illness has lasted for such a long time as to become chronic or part of the patient's constitution, the pressure of the sense of the immi nence of death is removed and the patient ceases to feel any apprehension of immediate' death.
There is consensus of authority, ancient as well as modern, that an illness cannot be considered to be death illness unless in fact it does end in death.
Hassarat Bibi v. Golam daf far 3 C W N 57 ; Abdul Ahad Khan v. Ahmad Nawaz Khan I L R 12 Lab. 683; Jahan Khan v. Feroz Pak L R 1951 Lab. 693=P L D 1951 Lab. 433 and Ibrahim Goolam Arif f v. Saiboo I L R 35 Cal. 1 ref. ,
Mst. Sakina Begum v. Khalifa Hafz‑ud‑Din A I R 1941 Lab: 58 and Hafiz Karim Bakhsh v. Mst. Begum clan 52 P R 1895 dissented from.
Per Kaikaus, J
.‑The only condition necessary for the existence of marz‑ul‑maut is the apprehension that death is most probable. The invalidity of gift or rather its change from a gift into a will results from the donor's state of mind alone.. In case the donor who made a gift under appre hension of death does not die, the gift should be presumed as not intended to take effect. In the absence of evidence rebutting this presumption' the gift should be regarded only as a testamentary disposition liable always to be revoked.
It should not be necessary that a person should die at all in order that a gift by him made at a time when he was overwhelmed with the apprehension of death be held invalid. The principle underlying the doctrine of marz‑ul‑maut is that in fact there is no intention on the part of the donor to make a gift during his life. He knows that he is going to die and his intention is to make a disposition that will take effect after his death. It is on account of this intention of his that the gift is regarded as a will, for alienations are governed by intentions with which they are effected. There is no good reason why the validity or invalidity of a gift should depend on accident of death of a person making it. The validity should in fact be judged at the time when the alienation is made and death cannot be allowed to have retrospective effect on it.
In some commentaries on Muslim Law we do find all the three elements stated above regarded as essential requisites of a death‑illness but this opinion is based on some cases decided in pre‑partition India and is hardly justified by the original Muslim authorities.
(c) Muhammadan Lain
‑Gift‑Delivery of possession of subject of gift‑Declaration in deed enough.
Per Akhlaque Husain, J.‑
A declaration by a donor regarding the delivery of the gifted property made solemnly, intelligently and freely, is irrevocably binding on him and those who may claim the property through him in disregard of his gift.
The true doctrine of the Muslim Law relating to gifts, does not require either that only a particular kind of possession be given ; or that possession can be given only in certain specified ways.
What is really required by Muslim Law is that there should be satisfactory evidence that the donor did in fact part with possession of the subject‑matter of his gift either physically or constructively.
A declaration that possession has been delivered, if satis factorily proved, is by itself sufficient to show that posses sion has been given to the donee.
[Case‑law referred to].
Per Kaikaus, J‑
The question to be answered in each case is whether possession has in fact been delivered to the donee. It is a matter to be decided on the circumstances of each case. Though decided cases may be of some help in appreciating the evidence of possession in a particular case, they do not provide any rule of law and the final decision must depend upon whether on a consideration of the evidence in a case we can reach the conclusion that possession has passed.
If it be not the case of the donee at all that the donor did anything beyond the making of a declaration in the deed, the value of the declaration as evidence of delivery of pos session is practically nil. However, in such cases, although declaration has no value as evidence, it may by itself be effective in transferring possession for possession may, in the circumstances of a particular case, be delivered even by a declaration. It would depend inter alia on the intention of the donor and the kind of possession the donor had. If there was a bona fide intention to transfer possession and if there was nothing further which the donor was under the circumstances capable of doing, the transfer of posses sion could very well be effective merely by a declaration. On the other hand, a formal recital without any intention on the part of the donor, of effecting transfer of possession would be of no avail for transferring possession. The matter has obviously to be decided according to the facts and circum stances of each case.
Siraj‑aid‑Din Ahmad, for Appellant.
Iftikhar‑ul‑Haq Khan , and Saleem Mazhar, for Respon dents.
AKHLAQUE HUSAIN, J.‑‑
This appeal arises out of a suit for possession by partition of 7/32nd share in the property in dispute instituted by the plaintiff‑appellant against the defendant‑respondents which was dismissed by the learned Senior Sub‑Judge, Gujranwala, by his judgment and decree dated the 5th of February, 1951. The circumstances leading to the present litigation may be briefly stated at the very outset. One Maulvi Nazir Husain, who was the owner of the property in suit, had two sons from his first wife, namely, the plaintiff‑appellant Muhammad Safi Ullah, and defendant respondent No. 1 Ghulam Jabbar. He took to himself probably after the decease of the mother of the appellant‑a second wife, namely, Mst. Said Begum, the defendant‑respon dent No. 5, from whom he had a son Muhammad Ashraf, the defendant‑respondent No. 2, and two daughters, Mst. Asmat Ara and Mst. Safia Pak Teenat, the defendant‑respondents Nos. 3 and 4. On the 24th of March, 1948, Maulvi Nazir Husain executed three deeds of gift, which were duly registered and by means of which he gifted the property in suit to the defendant‑respondents Nos. 2 to 5, that is to say, to his second wife, Mst. Said Begum, and her three children.
The donor, who had been ailing and bedridden for years, died on the 28th of August, 1948. On the 21st of November, 1948, the appellant instituted the present suit impleading as defendants all the four donees and his own real brother Ghulam Jabbar. In the plaint no mention of the deeds of gift was made and the plaintiff asked for possession of his legal share as a son of Maulvi Nazir Husain treating the property in suit as the inheritance of his father. In their written statement the defendants Nos. 2 to 5, who alone contested the suit, relied upon the deeds of gift mentioned‑ above. The plaintiff filed a replication in which he challenged the deeds of gift on numerous grounds and also raised certain: other pleas. The lower Court framed the following issues :‑
(1) Whether the property in dispute was validly gifted by Maulvi Nazir Husain in his lifetime to defendants Nos. 2 to 5 O. D.
(2) Whether the plaintiff and defendant No. 1 were disinherited by Maulvi Nazir Husain in his lifetime and what is its effect O. D.
(3) If issue No. 1 is decided in favour of the defendants, is the gift not binding on the plaintiff O. P.
(4) What was the amount of dower debt due to defen dant No. 5 O. D.
(5) Whether the dower debt has been paid O. P‑.
(6) Whether Maulvi Nazir Husain left movable property worth Rs. 10,000 and in whose possession O. P.
(7) If issue No. 6 is decided in favour of the plaintiff, is he not entitled to recover the price of his share to the movable property O. D.
(8) What is the share of the plaintiff O. P.
(9) Relief.
Issue No. 2 was not pressed by the contesting defendants and it was conceded that under the Muslim Law an heir cannot be disinherited. On issues Nos. 6 and 7 the learned lower Court recorded its finding as follows :‑
"On this point also there is no sufficient evidence. One or two witnesses have been examined, but it is difficult to rely upon mere oral evidence. The learned counsel for the defendants did not press this point and I find both these issues against the defendants.
The word "defendants." in the last sentence is obviously 'a mistake, because the allegation which was the subject‑matter of the sixth issue was made by the plaintiff in paragraph 6 of his plaint and had been denied by the contesting defendants in their written statement.. These two issues were, therefore, actually decided against the plaintiff who has not challenged before us the findings thereon. The 4th, 5th and the 8th issues were found against the defendants. The Court, how ever, found the first and the third issues in favour of the defendants and dismissed the suit.
At the hearing of the appeal learned counsel for the appellant has confined his attack on the judgment and decree of the lower Court only to the following three grounds :‑
"(1) That the gifts, being in favour of only some of the heirs, are against the spirit of Islamic Law because their effect is to deprive other heirs from inheriting the property according to the shares enjoined by the Holy Quran and that Maulvi Nazir Husain, being a Muslim, was not com petent to do that.
(2) That the deeds were executed while Maulvi Nazir Husain was on his death‑bed and having been made in favour of some of the heirs could not be considered as valid.
(3) That the gifts were not completed by delivery of physical possession of the gifted properties, and were, therefore, void."
The anchor‑sheet of the first contention of the appellant is a ruling of the Peshawar Judicial Commissioner in Ahmad Khan v. Mst. Zamroot Jan (A I R 1950 Pesh. 11) in which it was laid down by the learned Judicial Commissioner that :‑
"It is the policy of the Muslim jurists to prevent any interference with the course of devolution of property amongst the testator's heirs as laid down in the Holy Quran. The law would be the same if a certain transaction, though on the face of it a gift, is in fact a device to deprive a lawful heir of his share in the property. No person can be permitted to defeat the object of Muslim Law by entering into such colourable transactions. It is an admitted principle of law that a gift intended to defeat or defraud the creditor is voidable. On the same principle a gift intended to disinherit an heir would be a sham transaction, and, there fore, nugatory."
It does not appear from the judgment as to what is the common principle governing a gift intended to defeat or defraud creditors and those intended to disinherit .an heir ; nor has it been made clear as to why a gift of the latter kind would be "a sham transaction", as distinguished from an illegal transaction. Be it as it may, I am, with the greatest respect, unable to subscribe to the view expressed in this ruling. I am not aware of a single ruling or text book in which such a gift has ever been held to be illegal or void.
The contention upheld in Ahmad Khan's case was raised, as far back as 1867, in Nawab Umjad Ally Khan v. Mst. Mohumdee Begum (11 Moore's I A 517), and was, once for all, rejected by their Lordships of the Judicial Committee in the following words :‑
"The object of the disposition is correctly stated by Mr. Fraser to have been to give the son a larger share of the father's property than would come to him by succession ab intestato. Mr. Cambell, the Judicial Commissioner, treats that intention and act as evasive of the testamentary law of Mahomedans, and as inconsistent with their law of gifts. Upon the first ground of decision it is to be observed, that in the absence of immoral or illegal purposes accompanying and promoting an act of disposition of property, a disposition which the law admits, cannot be evasive of the law. The law of succession ab intestato applies only to the assets which constitute the succession. If the law allows aliena tion so as to defeat a succession the question, whether a subject of property is part of the assets, or not raises simply the question, whether the transfer of it is legally complete. The design to alter, and so in one sense to defeat, the disposition of property, is simply a design to conform to the law, whilst working out an unforbidden design. The other view of the subject, that this is an incomplete gift by the Mahomedan Law, is one which presents more difficulty, and will be presently considered. On moral grounds the trans action cannot be impeached. It seems to have proceeded simply from the cause assigned for it in Mr. Fraser's judgment, viz., a desire to maintain the dignity of the eldest branch of the family ; neither can the policy of the law be invoked, for the reasons above assigned, that the policy of the law is to be collected from its whole body, and not from a detached portion of it ; so that if the law suffers a father by an act, inter vivos, to alter his succession, his exercise of that power cannot be deemed a fraud upon the law".
The only restraint upon a Muslim in the matter of alienating his property imposed by the Muslim Law relates to wills and gifts on death‑bed. In other cases the power ox alienation of a Muslim qua his property is, apart from the conditions laid down by the law for completing a transfer, unfettered. A misapprehension appears to have arisen‑in the last century in the Court of the Judicial Commissioner of 0udh and nearly a century afterwards in the Peshawar Judicial Commissioner's Court‑on account of certain obser vations of old Muslim jurists that the making of such gift is sinful. But every transaction which is sinful or impious is not ipso facto a nullity and the Holy Quran does not confer the authority upon temporal powers to punish every act which may savour of sin or impiety. Great stress was laid by the learned counsel for the appellant on the verses of the Holy Quran in Sura Al‑Nisa, relating to the law of inheritance. After the shares of the children, parents, wives, brothers and sisters have been laid down in the 11th and 12th verses, the thirteenth verse opens with the words "A' 3ja‑ dw". This and the following verse, as translated by the late Allama Yusuf Ali, run thus :‑
"(13) Those are limits
| Set by God : those who Obey God and His Apostle Will be admitted to Gardens With rivers flowing beneath, |
| To abide therein (for ever) And that will be The Supreme achievement. |
(14) But those who disobey
| God and His Apostle And transgress His limits Will be admitted To a Fire, to abide therein And they shall have A humiliating punishment." |
The appellant's learned counsel has strenuously contended that these verses show that God has commanded the observance of the "limits set by God" and their transgression cannot be permitted‑"especially" as the learned counsel put it, "in a Muslim country by an Islamic Court". The argument can shortly be disposed of by pointing out that the "limits set by God" in these verses relate to intestate succession alone and not to gifts inter vivos. It may be impious for a Muslim to deprive some or all of his children of his property by alienating it in his lifetime‑and it would be obviously so in all good sense if done without just cause‑; but there i4 nothing anywhere in the Holy Quran to forbid such gifts when, made by a person not suffering from maraz‑ul‑maut.
Reliance has also been placed upon a hadees reported in Saheeh Bokhari in the 12th Chapter of the Book on Gifts. One Noman‑bin‑Bashir, whose father apparently had children from more than one wife, has related that his father gave him something; but his mother objected to the gift unless the Holy Prophet (May' God's peace be on Him) was made a witness to the gift. When the father, Bashir, went to the Holy Prophet and reported the incident, the latter enquired from him whether he had given similarly to his other children. On Bashir's replying in the negative the Prophet exclaimed "Fear God and observe equality (justice) amongst your children " There is nothing in this report to suggest that the Holy Prophet ruled the gift in question to be void or that by his conduct or words he meant anything more than to advise the father that he should deal with all his children with justice. Learned counsel also relied upon certain books in which it has been stated that such gifts are sinful or obnoxious ; but there is no decided case, apart from the ruling of the learned Judicial Commissioner of Peshawar, or text‑book on Muslim Law in which it has been laid down that a gift which deprives the heirs of the shares to which they would be entitled in the inheritance of the donor is void. In any case, I am bound by the ruling of their Lordships of the Judicial Committee of the Privy Council in Nawab Amjad Ali Khan's case.
When the question was put to the learned counsel for the appellant whether a gift whose object was to reward a meri torious son will be void simply because it will have the effect of depriving his other brother in part or in whole of his share in the inheritance, he replied that the gift would be void only if its sole object was to deprive the heirs of the inheritance of the donor. Even if the rule were as stated by the learned counsel (which of course it is not) it is not easy to conceive of cases where it can be established beyond doubt that this was the sole object of the donor. In the present case there is no satisfactory evidence to show that this was the object of the deceased, Maulvi Nazir Hussain, in making the gifts in dispute. For this purpose reliance was placed upon the defendants' allegations which was the subject‑matter of the second issue which runs as follows :‑
" 2. Whether the plaintiff and defendant No. 1 were disinherited by Maulvi Nazir Hussain in his lifetime, and what is its effect."
This issue was not pressed or proved in the lower Court. But even if this allegation had been proved, it could not have advanced the appellant's case on this point any further. There is ample evidence on the record to show that during his last years when he was ill and bed‑ridden the donor was served from amongst his heirs only by the donees and that the plaintiff and his real brother, the defendant No. 1, did not perform their filial duties towards their father. Does the Muslim Law lay down that no preference should be given to a dutiful and loving child over his less deserving brothers Or has the Muslim Law taken away the right of the parents to punish an ungrate ful or sinful child by depriving him of his share in their inheri tance Mr. Khurshid Alam, plaintiff's own witness has stated, " The attitude of these two brothers (i. e., of the plaintiff and defendant No. 1) was not respectful . . . . The plaintiff and defendant No. 1 were living separately from their father."
The next contention of the appellant is that the gifts are void because they were made when the deceased was suffering from death‑bed illness. There is no agreement between the witnesses produced in this case on the exact nature of the ailment with which the deceased suffered. P. W. 2 has stated that " he (Maulvi Nazir Husain) had gout and had been suffering from paralysis". Mian Chiragh Din, who was examined on commission on behalf of the defendants and who had been on brotherly terms with the deceased for nearly sixty years, said that the Maulvi Sahib had been suffering from gout and had died of that disease. It is, however, certain that the deceased had been suffering from a long time, 10 or 20 years; and that he had become bed‑ridden for at least five or six years prior to his death. There is no evidence that his prolonged illness had taken any serious turn at or about the time he made the gifts in dispute. There is no manner of doubt that the deceased's illness at no stage affected his mental fitness and that he remained in his full senses until his death. In fact it was conceded by the appellant's counsel that the mental capacity of the donor at the time when the gifts in question were made was sound and that he made the gifts of his own free will.
According to Muslim Law, marz‑ul‑maut or mortal illness is a malady which (1) incapacitates the sufferer from attending to his ordinary avocations; (2) induces in him an apprehension of imminent death, or, as their Lordships of the Privy Council have aptly phrased it (34 I A 167), caused in his mind "pressure of his sense of the imminence of death"; and (3) eventually, results in. death. While it is true that the raison decree of the doctrine is that the deceased acted under pressure of the sense of the imminence of death, it is none the less essential that the other two pre‑requisites, namely, the external or physical indicia of the illness and the fatal issue must also be present. It is implicit in the rule as stated above, that when the illness in question has lasted for long, e.g., for a year, it ceases to be marz‑ul‑maut, the reason being that if the illness has lasted for such a long time as to become chronic or part of the patient's constitution, the pressure of the sense of the imminence of death is removed and the patient ceases to feel any appre hension of immediate death. The original authorities laid down that in order that an illness should cease to be marz‑ul- maut it should have lasted for more than a year; but as was pointed out by the late Mr. Justice Ameer Ali in Hassarat Bibi v. Golam Jaffar (3 C W N 57) " the limit of one year mentioned in the law books does not in our opinion lay down any hard and fast rule regarding the character of the illness ; it only indicates that a continuance of the malady for that length of time may be regarded as taking it out of the category of a mortal illness". It is of course obvious that if at any time an illness of long standing increases in virulence and brings about death, the increased illness would become death‑illness.
As has already been seen the deceased Maulvi Nazir Husain had been ailing for a very long time and had become bed‑ridden about five or six years before his death. This long‑drawn‑out illness, whether it was actually paralysis or gout, cannot be considered as mortal illness. There is no satisfactory evidence on the record to show that at the time the gifts in question were made the old malady had increased or taken a serious turn. Nor is there any reliable evidence to show that the deceased actually died of his old malady. There is consensus of authority, ancient as well as modern, that an illness cannot be considered to be death‑illness unless in fact it does end in death. A discordant note, however, was struck by Sale J. in Mst. Sakina Begum v. Khalif a Hafiz‑ud- Din (A I It 1941 Lah. 58) when he observed: " I would hold that it is not necessary to come to a definite finding that the disease was the immediate cause of death. The learned judge relied on a case decided by the late Chief Court of the Punjab (52 P R 1895). There are, however, cases decided by this High Court, both before and after 1941 which have unequivo cally held that in order that an illness may be treated as marz- ul‑maut it must be the immediate cause of the deceased's death, e.g., Abdul Ahad Khan v. Ahmad Nawaz Khan (1 L R 12 Lab. 683) and Jahan Khan v. Feroz (Pak. L R 1951 Lab. 693=P L D 1951 Lah. 433).
The judgment in Hafiz Karim Bakhsh v. Mst. Begam Jan (52 P R 1895), relied on by Sale J., is obviously based on a misap - prehension of a certain passage from the 'Fatawa Alamgiri' as would appear from the following quotations : ‑
"Death‑illness has been somewhat differently defined by the various authorities on Muhammadan Law. According to the District Judge, the approved doctrine is that it is an illness from which death results, though the sufferer be not confined to his bed. It would be difficult to reconcile this view with that of the 'Fatawa Alamgiri' and particularly the illustration given of the 'sick woman who has given her dower to her husband and whose gift is valid if she recovers from her illness and is equally valid even though she should die of that illness if it was not a death‑illness'."
The statement in the illustration that the gift is "equally valid even though she should die of that illness if it was not a death illness" becomes perfectly clear if it is borne in mind that no illness which does not induce in the mind of the sufferer an apprehension of immediate death can be regarded as death illness. If a person suffers from a disease and dies of it but at no stage feels that death is imminent, he cannot be said, within the meaning of the doctrine, to have suffered from death illness. The earlier assertion in the illustration that a gift of a sick woman, if she recovers from her illness, is valid is intell igible only with reference to the rule that in order to be considered as death‑illness, the illness must result in death. The passage from the Fatawa strongly supports the proposition which the learned judge negatived. Yet another reason which caused the misapprehension in the mind of the learned Judges would appear from the following passage in the judgment:
"The correct definition according to this authority (Fatawa Alamgiri) is 'that when the illness is such that it is highly probable that death will be the result, it is a death illness, whether the sick person has taken to her bed or not'."
This definition is not exhaustive and does not embody all the ingredients of marz‑ul‑maut. This is apparent from the fact that the external indicia of the illness, which are a sine qua non of the doctrine, find no place in the passage quoted by the learned judges from the Fatawa. It is rather the essence or basis of the doctrine, than a comprehensive definition of it, which has been brought out in this passage.
There is absolutely no evidence in this case to show that the deceased made the gifts in question "under pressure of a sense of the imminence of death". I have already pointed out that at the relevant time there was no increase in his old malady; nor had any other complications set in. Apprehen sion of immediate death on the part of the deceased cannot be inferred from the mere fact of his having suffered from gout or paralysis for five or six or even ten or twelve years. In order to establish that such an apprehension did exist in the mind of the deceased, the learned counsel for the appellant strongly relied on recitals in the deeds of gift to the effect that the donor was old, had been ill for a long time and was weak; and that this ephemeral life is uncertain, etc. A complete answer to this argument is contained in the judgment of the Privy Council in Ibrahim Goolam Arif v: Saiboo (ILR35Cal.1). One Ariff who was about 65 or 70 years of age and had been suffering from certain illness for a long time, made certain gifts of his property on the 2nd of April 1902 and died on the 16th of the following month. Their Lordships concurred with the judgments of the two lower Courts which had rejected the plea of marz‑ul‑maut and upheld the validity of the deeds of gift. The following passage in that judgment effectively dis poses of the appellants' argument in this case :‑
Goolam Ariff was an elderly man, who had not led a careful life; he suffered, and he knew that he suffered, from degeneration of the arteries and of the liver and he had been sharply ill. His life, therefore, was an old and bad one. It is highly probable that the execution of the disputed deeds was suggested by his realising the prudence of setting Bis house in order, but this is the motive of all wills and especially of the wills of the old and ailing."
The contention which was most vehemently pressed on behalf of the appellant, and which alone now remains to be examined, is that the disputed deeds of gift are invalid because the donor did not deliver the possession of the gifted properties to the donees. Each of the three deeds of gifts contain the declarations by the donor that the possession of the gifted properties had been delivered to the donees on the date of the execution of the deeds, and that the donees had become full owners of the gifted properties with which the donor and his heirs had ceased to have any connection from that day. There can be no doubt that these declarations, at least, shift the onus of the proof from the donees to those who deny the delivery of possession; and a heavy burden is cast on the latter to show that these declarations are untrue and false and that possession was not in fact given to the donees.
In the case of Muhammad Mumtaz Ahmad v. Zubaida Jan (ILR11All.460), the first Court had found that the donor was in fact in possession of all the gifted properties and that ' the donee had died before she could obtain possession of‑ them. Delivering the judgment of the Board, Sir Barnes Peacock observed :
"In the deed of gift she (the donor) declared (an admis sion by which Usman as her heir and all persons claiming through him were bound) that she had made the donee possessor of all properties given by the deed ; that she' had abandoned all connections with them ; and that the donee was to have complete control of every kind in respect thereof."
This ruling has been consistently followed in all subsequent cases decided by the Privy Council and the High Courts it India, e.g., Muhammad Sadiq Ali v: Fakr Jahan Begum (A I R 1932 (P C)) Abdul Razak v. Zainab Bi (A I R 1933 Mad. 86) and Jamilunnissa v. Sheiky Muhammad Zia (A I R 1937 All. 547).
The admissions of a party to a transaction are relevant against him under the Evidence Act and in the face of such an admission on the part of the donor a heavy burden lies upon him and 'those claiming through him to satisfactorily prove that the admission was untrue. The true effect of such admissions, according to law of evidence, was explained by the Privy Council in Chandra Kunwar v. Narpat Singh (34 1 C 27), .where at page 35 they observed :‑
"The learned Chief Justice in his judgment points out that the burden of proving that the adoption relied upon took place rests on the defendant. That is undoubtedly so, but it is difficult to conceive how she could, as against Makund Singh‑prima facie, at all events‑discharge that burden more effectually than by proving his solemn statement under hand and seal that it did take place. The proof of this admission shifts the burden, because, as against the party making it, as Parke B. says in Slatterie v. Pooley (6 M & W 664 at 669) 'what a party himself admits to be true may reasonably be presumed to be so'. No doubt, in a case such as this, where the defendant is pot a party to the deeds. and there is therefore no estoppel, the party making the admission may give evidence to rebut this presumption, but unless and until that is satisfactorily done, the fact admitted must betaken to be established. The law upon the point is clear. In Heane v. Rogers (9B&C577), Bayley; J. in delivering the judgment of the Court, lays it down that. There is no doubt but that the express admissions of a party to the suit, or admissions implied from: his conduct, are evidence and strong evidence against him ; but we think he is at liberty to prove that such admissions were mistaken or were untrue, and is not estopped or concluded by them unless another person has been induced by them to alter his condition. In such a case the party is estopped from disputing their truth as against that y person (and these claiming under him) and that transaction, but as to third parties he is not bound'."
In the Allahabad case referred to, above (A I R 1937 All. 547) a Division Bench laid down :‑
"We think that the admission made by the donor that possession had been delivered is binding on him, and even if. it does not amount to estoppel it certainly throws a heavy burden on the donor to show that the statement was untrue and false."
The declaration; however, of a Muslim donor that he has divested himself of the ownership and possession of the gifted property and conveyed the title and delivered the possession to the donee cannot be displaced or rebutted by showing that it is false or untrue. Its untruth or falsity can be demonstrated only be proving that in fact the physical possession was not delivered to the donee but was retained by the donor. But it is well established that the Muslim Law does not insist upon the‑ delivery of physical possession constructive possession or a change in tile character of the donor's possession is deemed quite sufficient . Therefore the moment a donor solemnly declares that he gives, or has given, the possession to the donee, the character of his possession would change in the eye of law, and thenceforth his possession of the property would be deemed to be oh behalf of the donee, who would be considered juridically to be in constructive .possession. The only way, therefore, to render the declaration ineffective and not binding is to show either that it was procured through undue influence or fraud or that it‑was made in an unsound state of mind. But such a declaration is, in the eye of law, no declaration at all., and the irresistible conclusion is that a declaration by a donor regarding the delivery of the gifted property made solemnly, intelligently and freely, is irrevocably binding on him and those who may claim the property through him in disregard of his gift.
The conclusions stated in the preceding paragraph are borne out by a consideration of the nature of the possession which is required by Muslim Law to complete a gift. The reason of the rule requiring delivery of possession to complete a gift was thus stated by their Lordships of the Judicial Committee in Muhammad Abdul Ghani khan v. Fakhr Jahan Begum (A I R 1922 (P C) 281) :‑
"The object of Muhammadan Law as to gifts apparently was to prevent disputes as to ‑ whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee, and that the banding over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift."
The reason for the insistence by the early Muslim jurists upon the delivery of possession by certain specified modes was obviously due to the fact that in those days other, and in certain respects surer, ways of procuring testimony of the completion of a gift were not available ; for example, regis tration of gift deeds and mutation of the gifted property. The essence of a 'completed gift, as indeed of all voluntary contracts and transfers, is that the transferor should com pletely divest himself of all rights in the property ; and the delivery of possession, in the circumstances prevailing in the early times, was considered to be the most reliable 'proof of such divestiture. This is borne out by the following pronouncement of the judicial Committee in Muhammad Abdul Ghani Khan's case :‑
"In considering what is the Muhammadan Law on the subject of gift, inter vivos, their Lordships have to bear in mind that when the old and admittedly authoritative texts of Muhammadan Law were promulgated there were not in the contemplation of any one any Transfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down for all tune what should alone be the evidence that titles to lands had passed."
I do 'not, by any means, intend to lay down that delivery of the possession of the gifted property is not necessary to complete a gift. Possession is the most important ingredient of ownership and no one can become the owner without acquiring either actual possession or the right to possess. My only endeavour is to point out that .the true doctrine of the Muslim Law relating to gifts does not require either that only a particular kind of possession be given ; or that possession can be given only in certain specified ways.
Even in its earlier days the Muslim Law was never so archaic as to insist on an actual physical delivery of posses sion as a sine qua non for a valid gift. The late Mr. Ameer Ali in his book on Muhammadan Law says:‑
"It must be admitted that unless ikbaz (constructive or actual) can be presumed in the donee after the gift, if would not be operative. But a full consideration of the dicta on the subject shows that an actual delivery of possession is not necessary. If the character of the possession changes, the mere retention of the subject‑matter of the gift in the hands of the donor would not affect the validity of the gift." (Page 64, Vol. I, 3rd Edition).
In the same book at page 114, it is stated, "power to take possession is equivalent in certain instances to actual delivery of possession". This dictum was relied on in Pathumma Umma v. Thittu Umma (A I R 1936 Lah. 92). ' It has always been held that if the donee has been put in a position to take possession the, rule of Muslim Law regarding the delivery of this possession would be satisfied (e.g. A I R 1937 All. 547 ; A I R 1927 Pat. 20). A Division Bench of this High Court held in Nazir Din v. Muhammad Shah (36 Mad. L J 159) that "it is unnecessary that the donor should physically part with the possession of the property and that a mere intention on his part to treat the property as that of the donee and to divest himself of his own ownership, is enough to constitute a valid gift".
It would be thus seen that what is really required by Muslim Law is that there should. he satisfactory evidence that the donor did in fact part with possession of the subject matter of his gift either physically or constructively. If this be the correct statement of the rule of Muslim Law, there does not seem to be any reason as to why a solemn declaration contained in a registered deed that the possession has been delivered should not be considered as sufficient, and indeed conclusive, evidence of the delivery of constructive possession. It has always been held, and to my knowledge there is not a single ruling to the contrary, that mutation in the name of a donee is equivalent to the actual delivery to him of the posses sion of the property. Mere mutation, however, is at best evidence of the fact that the donor by his word conveyed con structive possession of the property to the donee. In principle, there appears to be no reason as to why a statement to that effect by the donor in a solemnly executed and registered deed should not have the same effect. This was probably the reason which led their Lordships of the Privy Council to lay. down in Zubaida's clan case that the donor and his heirs and all persons belonging to him are bound by such a declaration. It must, therefore, be held that in view of the declaration by the late Maulvi Nazir Hussain in the deeds of gift, the possession of the gifted properties had in fact passed to the donees.
Now the rule of Muslim Law itself regarding the effect of the donor's declaration that he has delivered the possession of the gifted property to the donee may be considered. At page 335 of Volume IV of the 'Tohfa (cited in 1 B H C R 157) it is laid down : "The thing of which a gift has been made does not become the property (of the donee) without possession, as is the case with things that are sold, and the declaration of a donor to the effect that he has given possession is sufficient to denote (real) possession." It will be observed that according to this authority the declaration of the donor is conclusive on the, question of the delivery of possession. The proposition . is repeated ,in similar words at page 59 of that book. In Fatawa Alamgiri, Hiba, Chapter IX it is stated :‑
"The subject of gift is in the possession of D and another claims it saying 'a gift of it was made by D, who gave me possession' which D denies. The claimant asserts that D had acknowledged that he had made the gift and that he had given possession which the donee had taken. Abu Hanifa had at first held that this evidence would not be acceptable but later he altered his view, and the two disciples agreed with the later view . . . . And if the slave (the subject of gift) be in the possession of the donee and the witnesses depose "to the donor having acknowledged to have given possession to the donee, then the testimony is valid accord ing to both the earlier and the later views expressed by the great Imam (Abu Hanifa). This is in the Zakhira. And if the donor acknowledges before the Qazi, then though the slave is at the time in the possession of the donor, he will be taken from the donor and given to the donee . . . This is from the Muhit."
This is clear authority for the proposition that a declaration that possession has been delivered, if satisfactorily 1 proved, is by itself sufficient to show that possession has been given to the donee, nor there appears to be any substantial reason as to why an acknowledgment made in a solemnly executed and registered deed, the execution of which has been admitted before a public officer, should be placed on a footing much different from the acknowledgment made before a Qazi. In Hassarat Bibx d. Golam rlaffar the late Mr. Justice Ameer Ali observed : "As already mentioned, Ehsan Ali not only executed a deed of gift in his lifetime, but also had it registered. It has been held in several cases that registration of a deed of gift is tantamount to seizure. In Muhammad Mumtaz Ahmad v. Zubaida Jan their Lordships of the Privy Council had also emphasised the fact‑that the deed of gift was registered. "Acknowledgment by the donor that he has transferred possession (though it has not really been trans ferred) may, it is stated in the Sharaya‑ul‑Islam, take the place of actual transfer of possession", Bailley's Digest of Muhammadan Law, Volume II, page 204. It will be thus seen that according to the Muslim authorities the declaration of the donor that possession had been delivered is conclusive and it is in this sense that the ruling of the Privy Council in Muhammad Mumtaz Ahmad v. ' Zubaida clan must be understood.
Even assuming, but without admitting, that it is open to the plaintiff‑appellant to show that the declaration of his father is untrue by proving that in fact he himself retained the posses sion and did not deliver it to the donees, I am clearly of the opinion that he has failed to prove it. The evidence of the plaintiff‑appellant relating to this matter has been carefully and critically considered by the learned lower Court at length. There is no sufficient reason for us to set aside the rejection of the testimony of P. Ws. 8 and 10 by the learned Senior Civil Judge. The only fact which the plaintiff has succeeded in establishing is that the rent of one of the gifted houses was received by the donor even after the gift. It appears that a school of the Municipal Committee Gujranwala, known as Bakhtanwala Girls School. is housed in one of the houses in dispute which was rented by the Committee from Maulvi Nazir Husain. The statement of P. W. 7 and Exhs. P. 6, P. 7, and P: 9 show that the rent of the house up to May, 1948, was received by Maulvi Nazir Hussain and that a cheque for the rent for June and July was issued by the Committee and received by Maulvi Nazir Husain on the 26th of August, 1948. This cheque, however, was not cashed by the deceased and subsequently another cheque for the same amount was issued by the Committee in favour of the defendant‑respondent Mst. Said Begum. It has been contended for the appellant that this shows that the possession of this particular house had not been delivered to the donee by the donor in his lifetime. I do not think that these facts support the contention. It appears from the evidence of P. W. 7 that the rent wis not paid promptly every month ; and therefore the possibility that the cheque was issued in the name of Maulvi Nazir Husain because, besides the rent for April and May, it also included the amount due as rent for certain months prior to the gift, is not excluded.
Moreover, the house which had been rented by the Committee had been gifted in its entirety by Maulvi Nazir Husain to Mst. Said Beguni alone. This fact is borne out by the plaintiff's own evidence, namely, Exhs. P. 8, P. 9 and P. W. 7; and there is nothing to rebut the clear statement in Exhs. P. 8 and P. 9 that the house had been gifted to Said Begum and that, therefore, she had become its sole owner. In Exh. P. 8 the house is stated to be situate outside Sheikhupura Gate. In the girt‑deed Ex. D. 2 the. only house in connection with which the word "Sheikhupura" is mentioned is the second house which is stated to be bounded on the east by Sheikhupura Road. In the body of the deed it is mentioned that this house had‑ been gifted to Mst. Said Begum and the shops attached to it to the defendants‑respondents Mst. Asmat Ara and Mst. Safia Pak Tinat. The fact that a husband manages or realizes the income of the property belonging to his wife does not disprove either the ownership or the possession of the wife. As was pointed out in Humera Bibi v. Najm‑un‑Nisa Bibi (I L R 28 All. 147) "The residence of the husband in a house of which he has made a gift to his wife, or the reliza tion by him of the rents and profits of the property he has given to her, is explainable by the relationship of the donor and the donee". Thus it is clear that the plaintiff‑appellant entirely failed to prove the non‑delivery of the possession of even a single item of the gifted properties to the donees.
On the other hand, there is positive indication in the evidence produced by the plaintiff himself that possession was in fact delivered. to the donees. P. W. 12 has stated :‑
"The receipt Exh. D. 1 for the land revenue of Rabi 1948 is in my handwriting and I received that from Muhammad Ashraf, Mst. Said Begum, Mst. Asmat Ara and Mst. Safia Pak Tinat. I knew Maulvi Nazir Husain personally. The entry of mutation about the gift was made in his lifetime."
Exh. D. 1 has not been included in the printed record of this appeal and it was vehemently urged by the learned counsel for the appellant that we should discard that document from our consideration. I feel that if we accept the learned counsel's contention, we shall, in the circumstances of this case, be‑ abusing our discretion in the matter. The learned lower Court strongly relied on this document in support of its judgment against the plaintiff‑appellant. At page 28 of ,the printed record the judgment contains the following :‑
" . . . . and there is also Exh. D. 1, a receipt of the land revenue paid by defendants Nos. 2 to 5 on the 30th July, 1948, to Faiz Rasul, P. W. It was executed before the death of Maulvi Nazir Husain and was for Rabi harvest 1948."
The onus lay on the appellant to displace the judgment of the lower Curt and he cannot successfully discharge that onus without himself refusing to, and explaining, the docu ment on which the judgment against him is to a large extent founded. The appellant's learned counsel was altogether unable to challenge the inference which obviously flows from Exh. D. 1 and which has been drawn by the lower Court. He frankly admitted his inability to do so and has contented himself by appealing to our discretion' to rule it out of consideration.
It was alleged by the defendants‑respondents in paragraph 12 of their written statement that the plaintiff was aware of the gift deeds in question and ‑ that he had obtained their copies before filing the present suit. P. W. 12 has, as has already been noted in the preceding paragraph, stated that the entry of mutation on the basis of the gift had been made in the lifetime of the donor. The plaintiff, as P. W. 13, was cross‑examined on both these points and stated, "I did not appear at the time of the mutation of the gift, because I had not received any information. I do not remember if I got copies of the gift deeds on the 12th June, 1948," (i.e., more than two months before the death of the donor). The plaintiff's inability to deny that he had obtained copies of the deeds of a gift two months before the donor's death leads to the fair conclusion that in fact he came to know of the gift deeds and the consequent mutation almost contemporaneously. The deeds of gifts were executed in the donor's shop which is situate in a bazar and adjoins the police station (vide P. W. 2), and were duly registered. The donor Maulvi Nazir Husain was, according to P. W. 2 Captain Manzur Hussain, one of the richest men in the city and was an honorary Magistrate, a member of the Municipal Committee (vide P. W. 1) and a Hakim and, therefore, was a well‑known and an important personage in the city. The disposition of all his property by such a man, already known to a lawyer (D. W. 1), petition‑writer, two marginal witnesses of status, an Assistant Sub‑Inspector of Police (D. W. 11) and a Sub Registrar must have become the talk of the town before the day he died. The plaintiff does not deny the knowledge of the execution of the deeds of gift. Having come to know of the gifts the plaintiff would naturally try to find out if mutation had been, or was going to be, made. Therefore, he must have come to know, during the lifetime of the donor, of the mutation and, consequently, of the fact that possession of at least a large part of the gifted property had passed to the donees.
Maulvi Nazir Husain lived for about five months after making the gifts in dispute. The plaintiff knew that he had been completely deprived of any share in his father's property and must have been keen and anxious to discover some ground for challenging the disposition in question ; yet he failed to find out any definite evidence of the non‑delivery of the possession of the gifted properties. In these circumstances, there cannot be any doubt that the plaintiff has entirely failed to prove that the declaration in the gift deed that the donor had divested himself of the possession of the gifted properties and delivered it to the donees is false. This is sufficient to dispose of the challenge to the validity of the gifts on the ground of non‑delivery of possession.
But even if the onus lay on the donees to affirmatively prove that possession had been delivered to them I would, in the circumstances of this case, have no hesitation in holding that the donees have satisfactorily discharged that onus. It will be noted that the first deed namely, Exh. D/2, relates to house property in the city and the other two deeds, Exhs. D/3 and D/4, relate to agricultural property. As regards the agricultural property, the lower Court has very rightly held that it is proved by Exh. D.1 that the donees paid the land revenue on the 30th July, 1942, that is to siv, after tile gift and before the death of the donor. The plaintiffs own witness, P. W. 12, admitted that the mutation on the basis of the gifts had been made in the lifetime of the donor. The facts that the plaintiff was not a party to the mutation proceedings and that it may have been made ex parte solely at the instance of the donees, to may mind, in no way mitigates the significance of the mutation. The donor had placed the donees in a position to take possession and they took it. Constructive possession had been delivered by the donor by his declaration in the deeds of gift and the donees took similar possession by obtaining the mutation in their favour. A significant fact in this connection is that the plaintiff knew of the gifts and the mutation but raised no objection during the lifetime of the donor for the obvious reason that if he had raised his vice he would have been vehemently opposed by his father who was determined to give him nothing.
As regards the house property, it is an admitted fact that one of the houses was occupied exclusively by the donees. The donor himself was living in a shop, and after the gift the donees were in actual physical possession of the residential house as owners. Another house which had been gifted solely to the wife, Mst. Said Begum, was occupied by the. Bakhtanwala Girls School and the receipt of the rent for two months after the gift by the husband must be deemed to have been received on behalf of his wife. As regards the shop in which the donor lived and died, he would be deemed to be in possession of it after the gift, on behalf of his wife and children. As has been pointed out by Mr. Amir Ali in his book, "the residence of the husband in a house of which he made a gift to his wife, or the realization by him of the rents and profits of the property he has given to her, is explainable by the relationship of the donor and the donee". Surely, Muslim Law did not require that the ailing and bed‑ridden donor should have been asked to vacate the shop even for a moment
D. W. 2 Ch. Muhammad Hussain, Advocate, has stated that the defendant‑respondent, Muhammad Ashraf used to manage the property on his father's behalf and this accords with the facts of the situation. Maulvi Nazir Hussain had been bed‑ridden for several years and was ill. He was, therefore, himself unable to go about and manage his property and it is but natural that under the circumstances he would entrust the management to his only faithful son. This being so, the possession of Muhammad Ashraf as a manager was converted into his possession as owner after the gifts and thereafter he held the properties on his own behalf as well as on behalf of his mother and sisters. Muhammad Ashraf has also stated that the deceased had instructed the tenants who used to visit him after the execution of gifts to pay the rent to the donees. This is supported by D. W. 3: I have, therefore, no hesitation in holding that, in view of the above‑noted positive evidence in favour of the donees' posses sion, of the fact that there was a strong motive on the part of the donor to‑deprive the plaintiff and the defendant No. 1 of his property, and the donor's clear and solemn declaration contained in the deeds, made intelligently and as a result of his own free volition, it has been satisfactorily proved that the donor did deliver such possession of the gifted properties to the donees as was reasonably possible under the circumstances. Were it necessary, I would further hold that the rule, laid down in A I R 1922 P C 281, 1927 Pat. 20 and 1936 Lah. 92, that the delivery of the possession of any part of the gifted property is tantamount to the delivery of the constructive possession of the whole is applicable to the circumstances of this case.
No other point was urged by the appellant's learned counsel. I would dismiss this appeal with costs.
KAIKAUS,J.‑I
agree that this appeal be dismissed and will briefly state my views.
So far as the first question, namely, that relating to the capacity of a person to make a gift befitting the rights of his heirs is concerned, I am of the opinion that the matter is covered by the judgment of their Lordships of the Privy Council in Nawab Umjad Ally Khan v. Mst. Mohumdee Begum (Moore's Indian Appeals 517). Even apart from that judgment, I would hold on this point against the appellant. An owner of property is, under Muhammadan Law, an absolute owner of it. He can, with the object of defeating the right of inheritance of his heirs, destroy or spend it and I see no reason why he cannot make a gift of it with that object. As regards death‑illness, I cannot, with all respect, agree that death‑illness is one which :‑
(1) incapacitates the sufferer from attending to his ordi nary avocations;
(2) .induces in him an apprehension of imminent death ; and
(3) eventually results in his death.
I have gone through Hamilton's Hedaya and Baillie's Muhammadan Law for the purposes of finding out whether they support the conclusion that all the three ingredients mentioned above are essential elements of marz‑ul‑maut. They do not support this conclusion. I find the following statement in Hamilton's (one volume edition) Hedaya at page 684 :‑
"It is to be observed, as a general rule, that where a person performs, with his property, any gratuitous deed, of immediate operation (that is, not restricted to his death), if he be in health at the time, such deed is valid to the extent of all his property, or, if he be sick it takes effect to the extent of one‑third of his property ; and where a person performs such deed, with his property, restricted to the circumstances of his decease, it takes effect to the extent of a third of his property, whether, at the time, he be sick or in health." '
Further on I find the following passage at page 685 :‑
"Rule for ascertaining a deathbed illness.‑Paralytic, gouty, or consumptive persons, where there disorder has continued‑for a length of time, and they are in no immediate danger of death, do not fall under the description of sick (mareez), whence deeds of gift, executed by such, take effect to the extent of their whole property ; because, when a long‑time has elapsed, the patient has become familiarized to his disease, which is not then accounted as sickness. (The length of time requisite, by its lapse, to do away the idea of sickness in those cases is determined at one year ; and if after that time the invalid should become bedridden, he is then accounted as one recently sick). If, therefore, any of the sick persons thus described make a gift in the beginning of their illness, or after they are bedridden, such gift takes effect from the third of their property, because at such a time there is apprehension of death (whence medicine is then administered to them), and therefore the disorder is then considered as .a deathbed illness."
This is all that is stated in Hedaya in respect of the definition of marz‑ul‑maut. In Baillie's Muhammadan Law, I find the following statement of law at page, 542 :‑
"It is stated‑ in the Asul that neither a gift nor a suddukah, or charitable disposal of property, by a sick person, is lawful, except when possession has been taken of the sub jects of them ; that when such possession has been taken, they are both lawful, to the extent of one‑third part of the sick person's estate ; and that if he should die without making delivery, they are both void."
Further on at page 543 I find :‑
"As to the definition of a death‑illness, it has been said, and this is approved for the futwa, that when the illness is such that it is highly probable that death will be the result, it is a death‑illness."
There is nothing further to enlighten us as to the elements of marz‑ul‑maut. The definition of death‑illness given in the Fatawa Alamgiri has already been quoted by my learned brother. It does not mention all the three elements,
With respect to the first ingredient, viz., that death‑illness is one which incapacitates the sufferer from attending to his ordinary avocations, I may refer to Baillie as well as Amir Ali for the proposition that it is not an essential condition in marz‑ul‑maut at all. The following passage occurs in Baillie's Muhammadan Law at page 543 :‑
"The most valid definition of death‑illness is that it is one which it is highly probable will issue fatally, whether, in the case of a man, it disables him from getting up for necessary avocations, out of his house or not, such as, for instance, when he is a fukeeh, or lawyer, from going to the musjid, or place of worship ; and, when he is a merchant, from going to his shop ; and whether, in the case of a woman, it does or does not disable her from necessary avocations within doors."
With respect to this ingredient, Amir Ali says at page 63 (Muhammadan Law, Fourth Edition) :‑
"It must be noted, however, that the last element which seems to have been regarded as a condition is merely a test".
I am of the opinion that if we accept the first ingredient we will be substituting the evidence' of the ingredient for the ingredient: The fact' that a person is unable to follow his ordinary avocations may be evidence of the fact that his illness is so serious as to cause apprehension of death but it is not by itself a fact which must be present in order to constitute death‑illness. There may be cases where the condition of a sick person is such that he is quite able to follow his ordinary avocations and yet medical opinion is quite certain that‑he may at any moment collapse. In the case of a diseased heart, for instance, it may be that the patient is quite capable of carrying on his ordinary avocations. He may be just a cleark who does not stand in need of any serious physical or mental exertion or he may be carrying on any other business which does not call for a serious application of the mind. I may even say that in some cases serious application of mind may be possible to a person who on account of ill‑heath is in constant fear of death. We are frequently hearing of cases where people die of heart failure while they were apparently looking healthy and were busy in their ordinary avocations. Such sudden collapses are not always un expected and a medical man may well be able to predict them. If the patient has been informed by the doctor and has the sense of imminence of death all the time he is at work, it cannot be said that the illness is not marz‑ul‑maut. It is really, as explained at page 57 of Amir Ali's Muhammadan Law, a question of the patient's state of mind. I may quote the following passage :‑
"As the operativeness of dispositions made by a person suffering from a mortal illness depends on the sufferer's state of mind, the Mussulrnan lawyers have indicated certain tests, more or less of an empirical character, for the purpose of determining whether at the time of the dealings in question he was labouring under the fear (ﻑﻭﺧ) of death. This was the only course possible, as a learned Indian Judge observes in Sarabai v. Rabiabai, before the science of diagnosis had attained the perfection of modern times. Symptoms and conditions were indicated from which one might infer whether the malady was such as would be likely to create to or in fact, created that fear in the sufferer's mind. But those tests were in no sense to be regarded as conclusive either with respect to the disease. or to the mental condition".
"As regards the third ingredient, I cannot see why, if a person who is suffering from galloping tuberculosis, which is admittedly a fatal disease, actually dies of an attack of cholera, this fact should validate a gift made by him during galloping tuberculosis nor will it make any difference in my opinion if he dies of violence or an accident if at the time when he made the gift he was in fact suffering from a disease so that he had, in the words of their Lordships of the Privy Council, a sense of the imminence of death. In fact it appears to me that it, should not be necessary that a person should die at all in order that a gift by him made at a time when he was overwhelmed with the apprehension .of death be held invalid. The principle underlying the, doctrine of marz‑ul‑maut is that in fact there is no intention' on the part of the donor to make a gift during his life. He knows that he is going to die and his intention is to make a disposition that * will take effect after his death. It is on account of this intention of his that the gift is regarded as a will, for alienations are governed by intentions with which they are effected. I can see no good reason why the validity or invalidity of a gift should depend on accident of death of a person making it. The validity should, in fact, be judged at the time when the alienation is made and death cannot be allowed to have a retrospective effect on it.
In some commentaries on Muslim Law we do find all the three elements stated above regarded as essential requisites of a death‑illness but this opinion is based on some cases decided in pre‑partition India and is hardly justified by the original Muslim authorities.
The doctrine of invalidity of a gift in marz‑ul‑maut is not peculiar to Muhammadan Law and is present in one form or another in a number of legal systems. Donatio mortis causa is well known in Roman Law as well as in English Law and its principle is embodied in section 191 of our Succession Act. There is no doubt that for the applica tion of that section the intention that the gift would be effective only in case the donor dies is a necessary condition but one can assume, as has been held in Gardner v. Parker ((1818) 56 E R 478), that a person who makes a gift in contemplation of death intends it to take effect only in case of his death. The funda mental principle on which gifts like the one in dispute are not regarded as valid is that they are made in contemplation of death and, therefore, should be regarded as testamentary dispositions.
I am of the opinion that the only condition necessary for the existence of marz‑ul‑maut is the apprehension that death is most probable. The invalidity of gift or rather its change from a gift into a will results from the donor's state of mind alone. I am of opinion also that in case the donor who made a gift under' apprehensions of death does not die, the gift should be presumed as not intended to take effect. In the absence of evidence rebutting this presumption the gift should be regarded only as a testamentary disposition liable always to be revoked,
However, applying my own criterion I do not find it proved that in the present case that deceased had such an apprehension of death as is required for constituting marz‑ul maut, at a time when he made the gift in question. He had been suffering from the malady for long and as stated in Hedaya, from which I have already quoted; in such a case J there is no presumption of the apprehension of death.
As regards the delivery of possession to the donee, it should be remembered that the question to be answered in each case is whether possession has in fact been delivered to the donee. It is a matter to be decided on the circum stances of each case. Though decided cases may be of some help in appreciating the evidence of possession in a particular case, they do not provide any rule of law and the final decision must depend upon whether on a consideration of the evidence in a case we can reach the conclusion that possession has passed. If we keep in mind this simple proposition, we would not be lost in the labyrnth of rulings. If on the record of a case I were to come to the conclusion ' that possession had in fact remained with the donor, no amount of similarity between the circumstances of the case before me and of any reported case would be of any avail to the donee, and if I come to the conclusion that possession had in fact passed, no amount of authority would convince me that the gift was on this ground invalid. It cannot be denied that under Muhammadan Law the delivery of posses sion, actual or constructive, is essential. The kind of posses sion that is delivered would of course depend upon the nature of the subject of gift. We have to decide in such cases the question of possession as we would decide it in any other case. In spite of all that is said in the judgments it remains a fundamental principle of Muhammadan Law that "gifts are rendered valid by tender, acceptance, and seisin"
The Prophet (Peace of God be on Him) has said that "a gift is not valid without seisin (meaning that the right of property is not established in a gift until after seism)".
The statement as to delivery of possession in a deed has two aspects.‑ Firstly, it may be evidence of delivery of possession. Secondly, it 'may by its own force effect a transfer of possession. In its first aspect it raises, no doubt, a presump tion that possession had in fact passed, but when considering the vale of the recital as evidence the true point to be considered is when the donee has pleaded delivery of possession apart from the recital of delivery of possession. For instance, if it be the case of the donee that physical possession had passed, the recital would be presumptive evidence of the fact that physical possession had in fact passed, and it would be for those challenging the gift to establish that possession had remained with the donor. But if from the circumstances of a case it should be clear that the donor did nothing to give possession apart from the statement in the deed, the statement is sufficiently rebutted by proof of the fact that the donor did nothing more. If it be not the case of the donee at all that the donor did M anything beyond the making of a declaration in the deed, the value of the declaration as evidence of delivery of possession is practically nil. However, in such cases although declaration has no value as evidence, it may by itself effective in transferring possession for possession may, in the circumstances of a particular case, be delivered even by a declaration. It would depend inter alia on the intention of the donor and the kind of possession the donor had. If there was a bona fide intention to transfer possession and if there was nothing further which the donor was under the circumstances capable of doing, the transfer of possession could very well be effective merely by a declaration. On the other hand, a formal recital without any intention on the part of the donor of effecting transfer of possession would be of no avail for transferring possession. The matter has obviously to be decided according to the facts and circumstances of each ease.
I would hold that in this case there had been a sufficient transfer of possession for it appears from the evidence that Ashraf was himself managing the property on behalf of the donor The land was in possession of .the tenants and it stand to reason that it was Ashraf who was dealing with the tenants on behalf of the donor who was confined to bed. In these circumstances it would be‑ quite sufficient for the 'purpose of a transfer of possession to make a declaration that the possession had been transferred.
For the reasons given above, I would decide all the three points in favour of the respondents. I agree that this appeal be dismissed with costs.
A. H. Appeal dismissed.
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