1. On the principles that effect the dispositions under the doctrine of deathillness, law is fairly well settled. In 'The Principles of Mohammedan Law' by Mulla, the gifts made on the death -bed are the subject-matter of consideration, in Chapter X, and while explaining the doctrine of marz-ul-maut the learned author says that it is a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death., It is further noted that it is an essential condition of marz-ul-maut i.e. of death - illness that the person suffering from the marz, i.e. malady must be under an apprehension of Maut i.e. death. The note to the Explanation goes on to explain the various shades of the malady raising apprehension of death and it is not necessary to refer to all that debate, In the celebrated work 'Principles of Muhammedan Jurisprudence' by Abdur Rahim, the learned author had made a basic and notable effort to find out the juristic principles behind the Mohammedan precepts of law an has dealt with the topic of death-illness at some great length. In this view, for which he takes his support to Heiaya and Kifava the Marz-ul-maut is an illness from which death is ordinarily apprehended in most cases and in particular cases it has actually ended in death. He observes that:
'The compilers of Al-Majallah lay it down that death -illness is that from which death is to be apprehended in most cases, and which disables the patient form looking after his affairs outside his house if he be a male and if a female the affairs within her house, proved the patient dies in that condition before a year has expired, whether the has been bed-ridden or not. If the illness protracts itself into k a chronic condition and lasts like that for a year, the patient will be regarded as if he was in health, and his disposition swill be treated like those of a healthy person ............'
Abdul Rahim quotes that 'the definitions as given by the Shafil and Nanbali Jurists are also to the same effect namely, that death-illness is illness dangerous to life, that is, which mostly ends in death provided the patient actualities of it' and he further observes that whether such illness was dangerous should be left to the opinion of the competent doctors, According to the learned author therefore, while applying the true test of this doctrine the real question must be the illness and it character from which death could be said to have been apprehended. He observed:
'It is a cardinal principle of Muhammedan jurisprudence that the law takes note only of perceptible facts. The original authorities do not lay down that the fears entertained by the sick man himself from any criterion of death-illness. In fact, it is a event of nature the character of which cannot depend upon what the patent might think of it. The law in placing an embargo on a sick person's juristic acts puts it on the ground of illness and not on the apprehension of death by the sick man. The reason or motive underlying the law is that illness weakness a man's physical and mental powers and he is likely, therefore, as experience shows to act under such circumstances to the detriment of his spiritual interest by disappointing his heirs in their just expectations'.
If this proposition on the exposition of the doctrine and the test is the correct one, then the apprehension in the mind of the sick man cannot have the higher emphasis than teh illness itself. In other words, it is the proof of the illness that will be decisive of the matter provided that has caused the eventual death of the man. That proof can alone by tendered by the medical experts and mere subjective apprehension of the Persian suffering illness could not carry the doctrine to its logical end.
2. If these tests were applied then it follows that there is some lack of evidence in the present case, that is no doctors have been examined, and further the evidence is somewhat fluid in the sense that 7 days prior Abdul Kadar had been laid ill he had returned from Chinchala and ultimately died on 4th. He was in a position was appears from some evidence to make signs and was thus capable of communicating.
3. However, Abdul Rahim's view about the exposition of this doctrine does not appear to have found clear support in the judicial pronouncements on the present doctrine. In Fatima Bibee v. Ahmad Baksh, ILR (1904) 31 Cal 319, the Calcutta High Court while considering the doctrine of marz-ul-maut known to Mohammedan Law found three things as necessary to answer the same viz. (1) illness, (ii) expectation of fatal issue and (iii) certain physical incapacitates, which indicate the degree of illness. The second condition i.e. expectation of fatal issue, could be presumed to exist from the existence of the first and third, as the incapacitates indicated, with perhaps the single exception of the case in which a man cannot stand up to say his prayers, are no infallible sings of death-illness. These conditions were qualified by stating that a long continued malady would contraindicate the immediate apprehension of death. A person afflicted by such long drawn course of illness can still be possessed of his sense and his dispositions would not be invalid. The view of the Calcutta High Court appears to have been affirmed by the Privy Council in Fattier Bibee v. Ahmad Baksh, ILR (1907) Cal 271(PC) . No doubt it appears that in that case too there was evidence of a doctor. The deed was executed about 6 days before the date of the death. While considering the question of invalidity of such disposition under the law of marz-u;-maut, it was observed:
'The test which was treated as decisive of this point in both Courts was the deed of gift executed by Dadar Baksh under apprehension of death? This, which appears to there Lordships to be the right question, is essentially one of fact and of the weight and credibility of evidence upon which a Court of review can never be in quite as good a position l to form an opinion as the Court of first instance, and it would probably be enough to prevent this Board from interfering if it should appear that there was evidence such as might justify either view without any clear preponderance of probability'.
It is thus obvious that if there is preponderance of probabilities indicating that the gift was made under the apprehension of death by the deceased, it is invalid under the law of murz-ul-maut. That it is a question of fact to be determined on evidence is also clear on this authority. Further in Ibrahim Goolam Ariff v. Saiboo, ILR (1907) Cal 1 (PC), the first question that was begin canvassed before the Privy Council was about the physical condition the deceased at the date of the execution of the gift and that was answered by saving that this was a pure question of fact. As to the law the proposition stated is to the following effect:-
'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 the death'.
4. As far as this Court is concerned the law has been stated in Safia Begum v. Abdul Razak, AIR 1945 Bom 438. It was observed by referring to the two Privy Council decisions supra,. that it may be taken as settled that crucial test of marz-ul-maut is the (proof of 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.
5. This exposition was requited to be made so as to explain the earlier decisions of this Court reported in Sarabai v. Rabiabai, ILR (1906) 30 Bom 537 and Rashid, v. Sherbanoo, ILR (1907) 31 Bom 264 . In Sarabai's case learned Single Judge of this Court had laid down three conditions which must be satisfied so as to answer the requirements of marz-ul-maut the same being (1) proximate danger of death so that there is a preponderance of apprehension of death, (2) some degree of subjective apprehension of death in the mind of the sick person and (3) some external indicia, chief among which would be inability to attend to ordinarily vocations. In Rashid's case, the Division Bench of this Court doubted as to the existence in every case of the third condition laid down in Sarabai's case, i.e. the physical inability to attend to ordinary avocations of the person must be available. There Fatima's case, ILR (1904) 31 Cal 319 was expressly mentioned as laying down the principles on the text of Mohamedan Law. After noting all this passage of decisions in this Court, in Safi's case AIR 1945 Bom 438 this Court ultimately fond that what is required is subjective apprehension of death in the mind of donor at the time of disposition. The other circumstances and symptoms of incapacitates were merely the indicia which may throw light on such mental state of the donor.
6. Thus as far as the decision of Indian Courts are concerned, the law of marz-ul-maut is answered if it is proved that the ailing donor was apprehending death and in that condition had proceeded to effect disposition.
7. Even the Pakistan Courts have not taken any other view of the matter, I may usefully refer to the judgment of the Supreme Court of Pakistan available in 1964 All PLD43. Shamshad Ali Shah v. Saved ***ere the learned Judges have summarised the law of the gifts and the doctrine of marz-ul-maut. There a woman of 65 suffering from pneumonia had succumbed after execution of the deed of gift almost after a period of two hours. The gift made by such woman was held to be affected by the doctrine. While laying down the principles on which the law of murz-ul-maut has to be found the Supreme Court of Pakistan has stated as to what questions must be raised and the same read as under:-
'(i) Was the donor suffering at the time of the gift from a disease which was the immediate cause of his death?
(ii) Was the disease of such a nature or character as the induce in the persons suffering the belief that death would be caused thereby or to engender in him the apprehension of death?
(iii) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations - a circumstances which might create in the mind of the suffer an apprehension of death?
(iv) Had the illness continued for such a length of time as to remove or lessen the apprehension of immediate facility or to accustom the sufferer to the malady?
In short the Court has to see whether the gift in question was made 'under the pressure of the sense of the imminence of death'. (Emphasis Provided)
I have extracted the above passage from the judgment of learned Mr. Justice Fazle Akbar with which learned Chief Justice, A. R. Cornelius has concurred. In the judgment separately delivered by Kaikaus, J., the following observation on the matter in controversy and which help the decision on principle can be usefully extracted:-
'If the finding as to the date of death of Mst. Husan Bano is not interfered with no ground remains for interference with the finding of marz-ul-maut in spite or the fact that no doctor had been produced, Mst, Husan Bano was old and k ailing and if she died only two hours after the registration of the gift it is easy to accept that she was suffering from some disease which caused serious apprehension of death.
So far as the legal aspect of marz-ul-maut is concerned, what is really needed is as pointed out in ILR (1907) 35 Cal 1 (PC) that the gift should be made 'under the pressure of the sense of imminence of death'. The rest of the matters which are generally stated in commentaries on Muslim Law as matters requiring investigation in a case of marz-ul-maut are really matters relating to evidence. If the gift had in fact been made 'on account of pressure of the sense of imminence of death' the gift would be affected by doctrine of marz-ul-maut'. This datum - line of the doctrine found by the Supreme Court of Pakistan is clearly in accord with what the Privy Council observed in Ibrahim Goolam Arif's case ILR (1907) 35 Cal 1 (PC) (supra) Similarly the law is understood and applied in this Court. Therefore what is required to be proved upon the preponderance of probabilities is whether the gift was made by the ailing person while under the apprehension of the death and further whether in such ailing he met his death.
8. It is true that mere apprehension on the part of an old man who is not afflicted by any malady would not be sufficient to answer the doctrine. Mere accident of death which is a fact the certain in human life does not afford good reason to invalidate the dispositions. The basic juridical thinking and the pronouncement of the Courts upon the instant doctrine clearly spell out that the English phrase 'death -illness' is not a sufficient, adequate or complete connotation of the term 'marz-ul-maut'. for , that doctrine appears to comprehend an affliction or malady leading unto death or involving the death of the person concerned. Because of that with the proof of death. Its causation and the condition of person have its own and clear significance. Death is the certain and central fact, proximate k danger of death in anilines, it is common experience, casts ominous elongated shadows discernible along the lines of conduct of the person how is subject to the process of dissolution of life. In that there is all the apprehension of withering away of human faculties and rational capacities. Such process may set in and become k pronounced as the journey/'s end comes near. Mindunder such conditions would get seized by the fright of the final full -stop and all winged and animated spirits involving free will, clarity and reasonable and purposeful action may be clipped and caught in the mesh of progressing paralysis. The apprehension that the curtain is wringing down on the life in such a state would easily grasp all the consciousness as the physical malady surely affects every faculty clouding the will and reason of human being. It is no doubt that when such preponderance of an onset of physical and psychological atrophy operating over the filed of free and balanced will k can be inferred, the disposition scan to be validated. The light of reason at such moment is not expected to burn bright as the flame of life itself flickers drawing ghastly shadows on the cold., deadly wall of the inevitable, It is conceivable, therefore, that the pragmatic philosophy of Mohamedan Law thought it wise to put under eclipse the acts and dispositions done upon the prompting of a psychosis indicating apprehension or clear fear of death either induced by or during the last suffering or illness of the person dying. law assumes that part from the dominant danger of loss of free will, such person may clearly lose touch with his spiritual dictates and may has ten even against the need of his clear obligations and interest to do the things which he might not have normally and in times of health done. Once the subjective apprehension of death, its possibility or preponderance is established and there s evidence of accelerated dissipation of the life itself leading unto death due to madly or affliction the dispositions made by such person are treated as if it were an outcry against the demonic fear of death itself and thus basically a non-juristic action.
9. Therefore, it is clear that all the circumstances surrounding the disposition itself, the physical and psychical condition of the person afflicted, the nature of the malady and the proximity of death of the actual act of disposition and further the fact of death are all the matters which should furnish to the Court k as a feedback to find out as to whether the disposition is within the mischief of this doctrine. Once probabilities hold out that there was even some degree of subjective apprehension of death in the mind of the sick person who eventually died suffering from his last illness the subjective test implicit in the doctrine is satisfied both on principle and policy. To find that, with the growth of medical and psychological sciences in the modern times, several indicia would be easily available. However, it is not necessary the have any static approach or to put up any given praxis in that regard. Obviously it is all a matter of eminent and entire appreciation of facts and circumstances involved in a given case wherein the ultimate cases of the drama of life leading unto death will have to be properly canned and constructed.
10. Therefore, once there is evidence to support the findings reached by the Courts of fact either coming from those who were near the deceased during the relevant period or as may be disclosed by the documentary evidence throwing light on that period, the matter is nt open to investigation in second appeal for the provisions of Section 100. Civil P. C. do not permit such a challenge unless the appreciation of evidence can itself be shown to be perverse or against record. Merely because medical evidence is not put forth, the principle does not change. Adequacy of evidence and its fullness are still the matters in taken of considerations that satisfy the conscience of the Court which is required to find facts. By that no question of law is raised. The usual submission based on l the principle of onus of proof would be irrelevant once the matter had been understood by the parties an they were obliged to lead evidence on the relevant facets of the doctrine. No doubt, the initial burden to prove the requirements of marz-ul-maut is on the person who sets up such a plea as affecting the disposition of a dead person: that can be discharged by the proof of the facts and circumstances in which such person met his death and the attendant events preceding and succeeding the disposition it self. Once the possibility of a subjective apprehension of death in the mind of suffering person who made the gift is raised., clearly the burden shifts to that party who takes under the disposition or sets up the title on its basis. Such party may prove the facts and circumstances which would enable the Court to hold that the disposition itself was not made while the suffering person was under the apprehension of death for, as I said earlier, there may be several answers to the problem and mere accident of death of the person making the disposition would not be enough. An old man meeting a natural enough. An old man meeting a natural death may be well disposed to see that the matters are settled in his lifetime and such dispositions to rebut the proof that may be indicative of marz-ul-maut. That cannot be done by merely relying on the abstract doctrine of onus of proof or insisting upon the evidence of medical experts not tendered by the opposite party. In a given case such evidence may not be at all available.
11. Even assuming that the question is open for being examined in second appeal, the facts of the present case bear out that Abdul Kadar was taken seriously ill from before 1st February and he never recovered from that illness. During that illness he was not even able to look after himself and died shortly i.e. on 4th February. He had reached the mental low of such kind as he was asking for his near and dear ones to by his side and when his daughters came near him he was even unable to express himself. He was merely making signs and shedding tears while looking at his relatives. That shows the sense of helplessness with which Abdul Kadar was seized during his last suffering. All this raises a clear possibility that while he was making the gift which is about 24 hours before death, he was seized or gripped by the subjective and imminent apprehension of his death. In fact, the signs of such psychosis had already set in. The malady or illness did not leave him till last. The bed on which he rested proved to be the death-bed and at the mellowed age of eighty this leaf tell from the tree of life.
12. All this unmistakably answers that the gift evidenced by Exh. D-3 is within the law of marz-ul-maut as understood by the Mohamedan prospects and cannot be sanctioned.
13. In the result, therefore, the appeal fails and is dismissed. However, in the circumstances, there would be no orders as to costs.
14. Appeal dismissed.