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. Rabiabai I.L.R (1905) Bom. 537 : 8 Bom. L.R. 35 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.
4. These incidents, as laid down by Batchelor J., Were accepted in the case of Rashid v. Sherbanoo I.L.R (1907) Bom. 264 : 9 Bom. L.R. 252 by a division bench of this Court consisting of Batty and Pratt JJ.
5. 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 I.L.R (1903) 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 IndAp 167 : 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 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.
6. The burden of proving the existence of the donor's death-illness at the time of the gift lies on the party asserting it. In the present case that burden on defendant No. 1 Abdul Rajak is considerably lightened by the admission made by Sahebjadi in her very examination-in-chief. Hajimahamad was admittedly suffering from diabetes and was under the treatment of Dr. Raje since 1936, and referring to the incident leading to his making the gifts on April 15, 1939, Sahebjadi says :-' On one day he told me that he was diffident of his life.' Mr. Patwardhan for the appellants has tried to explain this as nothing more than a general statement made by Hajimahamad that man is mortal and life is uncertain, and that it does not follow from this that he apprehended that he was going to die soon. The Marathi expression used by her in her deposition is : (img), which may mean that life is uncertain. But we have to take into consideration the circumstances under which he made that statement. He had two sons and two daughters and a wife to provide for, and although he was suffering from diabetes since 1936, he had never thought of making any will or gift, but suddenly on April 15, 1939, he took! it into his head to make a disposition of his property. He first entertained the idea of making a will after consulting his relative Moulvi Hanif. Then he, his wife, Moulvi Hanif and Ramalinga went to the house of Diwan Bahadur Limaye and told him that he intended to dispose of his estate and consulted him as to whether the will which he had got drafted would serve the purpose. According to the evidence of Diwan Bahadur Limaye he showed him the will but was advised that the will was not proper and that he should make an oral gift of his property according to his wishes. Defendant No. 1 Abdul Rajak was not then present. On the instructions given by Hajimahamad Diwan Bahadur Limaye made notes and also prepared drafts. The declaration of gifts was made in his presence and accepted by Sahebjadi and his minor son. Diwan Bahadur Limaye then gave certain applications giving intimation of the gifts to the City Survey Officer and asked Hajimahamad to go to his family doctor and get his signatures on those applications. Below the applications he made suitable endorsements and Hajimahamad took them to Dr. Raje who read out the applications and after Hajimahamad admitted the correctness of their contents he made his signatures below the endorsements on them. Hajimahamad also gave intimation to the Old Mills to whom he had let out his bungalow and chawl and asked the mills to attorn to his son Abdul Rahiman to whom he had made a gift of them. Thus the gifts were completed. Yet the evidence leaves no doubt that they were made when he was in his death-illness.
7. Dr. Raje, who was his family doctor and was treating him for diabetes ever since 1936, has been examined on behalf of the plaintiffs, but unfortunately he was not questioned about the details of the illness from which he was suffering and the cause of his death. Dr. Raje says that when Hajimahamad took the applications to him for his signatures, he thought he had merely to see whether he was in his full senses or not and he only took care to ascertain whether he was in a position to understand the contents of the applications. Evidently he was not asked to find out whether there was any danger to his life or whether he was under any apprehension of death at that time. All that he is able to say, therefore, is that there was nothing wrong in his mental faculties and that he was in normal condition, though ailing from diabetes. It is significant that Diwan Bahadur Limaye, who must have known that the gifts would be invalid if the donor was suffering from Marz-ul-maut and who was responsible for the warding of the endorsements below the applications, did not take care to have it mentioned in them that there was no imminent danger to the donor's life and he had no reason to apprehend that he was suffering from a malady likely to result in death soon. It is argued by Mr. Chundrigar that perhaps it was apprehended that an endorsement to that effect might not be signed by Dr. Raje. Whatever be the reason, the endorsements do not disclose that Hajimahamad was not then apprehend-ing death from the illness from which he was suffering. On the other hand, the manner in which Hajimahamad made his signatures on the applications and on the notice to the Old Mills shows that his hand was considerably shaking and he was unable to make his signature in the usual manner. His previous signatures show that he was a good writer and there is no evidence to suggest that his hand had become shaky sometime previously. Dr. Raje frankly admits that from 19th April Hajimahamad was not in a position to move about and that he used to visit him in his house from that day till a couple of days before his death. He further says that before April 15, 1939, there was no fear of his death. But he does not say whether he had reason to entertain such a fear on the 15th when the gifts were made. He has produced Hajimahamad's case papers prepared by him since he began to treat him in 1936. It appears from them that Hajimahamad was visiting him and he used to be given insulin injection off and on. It also appears that he was suffering from indigestion and constipation. In the month of April he took medicine from Dr. Raje almost every day from the 1st to the 7th and was given one injection in that period on April 2. But Dr. Raje's treatment was suddenly stopped from April 7 to 19. It is hard to believe that during that interval of twelve days he was not taking any medicine at all when the case papers show that there was no such gap in his treatment ever since 1936. Sahebjadi says that Hajimahamad was also under the treatment of Dr. Vaishampayan and it is very likely that during the interval between April 7 and 19 he was trying the treatment of Dr. Vaishampayan. Unfortunately Dr. Vaishampayan has not been examined and Dr. Raje also was not asked why he had stopped treatment in that interval. It was during that interval that the gifts in dispute were made by him, and if these circumstances are considered along with the admission of Sahebjadi that he told her that he was diffident of his life and wanted to make dispositions of his property, it is easy to understand the reason behind his sudden desire to make such dispositions. It is true that on April 15 he personally went to Diwan Bahadur Limaye's house, but he! went in a tonga, and it is admitted that within four days his condition became so serious that he was unable to move about and thereafter he had to send for Dr. Raje to his own house every day. It is also admitted that when the City Survey Officer asked him to be present to swear to the contents of his applications, he was not able to go to his office. He sent his pleader Mr..Shaikh and in the applications made by him Mr. Shaikh says that Hajimahamad had become too feeble and was unable to attend the Court, and that he being not able to write, his thumb impressions had been taken on the vakalatnamas instead of his . signatures. This shows that his malady became worse and worse day by day and he must have apprehended that his death was nearing. The draft will which had been shown to Diwan Bahadur Limaye is not forthcoming and it is stated that it has been destroyed, possibly because therein he might have stated that as he was not certain of living much longer he wanted to dispose of his property. It is true that defendant No. 1 has not led much oral evidence to, prove that on April 15, 1939, Hajimahamad was suffering from a malady amounting to Marz-ul-maut, and he might have thought that the admission made by Sahebjadi herself was sufficient to discharge the burden of proof which lay on him. When that admission is read with the various circumstances that have come out in the evidence, we think that the learned Subordinate Judge is right in holding that Hajimahamad was suffering from Marz-ul-maut when he made the gifts. As defendant No. 1, who is one of the heirs, has not given his consent to the gifts in favour of the two plaintiffs, they must be held to be incapable of being enforced. The appellants are, therefore, not entitled to the properties gifted to them by Hajimahamad, and the learned Subordinate Judge is right in giving them a share in those properties, excepting the shop which is held to have been already given to defendant No. 1.
8. In this view it is not necessary to consider whether the gift of the bungalow1 and the chawl to Abdul Rahiman was duly completed by a symbolical delivery of possession.
9. There is, however, one flaw in the decretal order passed by the learned Subordinate Judge. He has passed a final decree and directed the partition to be effected by the appointment of a Commissioner in execution proceedings. According to Order XX, Rule 18(2), of the Code of Civil Procedure, where the Court passes a decree for the partition of property or for the separate possession of a share therein, then, if and in so far as such decree relates to any immoveable property other than property assessed to the payment of revenue to the Government, the Court should, if the partition cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required. Such a decree will be a preliminary decree and under Order XXVI, Rule 13, of the Code, the Court should issue a commission to such person as it may think fit to make the partition or separation according to the rights as declared in such decree. Thereafter, after perusal of the Commissioner's report it should proceed to pass a final decree as provided in Order XXVI, Rule 14(5). Until such final decrees are passed, the suits should be treated as still pending, and therefore the records should be retained until the final decrees are passed therein as provided in Rule 1 of ch. XII of the High Court Civil Manual, Vol. I, p. 145.
10. We, therefore, modify the decrees of the lower Court accordingly and pass preliminary decrees declaring the shares and directing the appointment of a Commissioner to effect a partition as directed by the lower Court. In other respects the decrees of the lower Court are confirmed. The appellants shall pay the costs of the respondents in both the appeals and bear their own.