1. The facts of this case though the hearing has taken considerable time, are really not very complicated. They are shortly as follows: A certain Nanumiyan, a Musalman resident of Broach, had a daughter called Asha Begam. On January 12, 1912, he gave her certain property by a deed of gift. He, however, retained management of the property until his death in 1914. Thereafter Asha Begam assumed its management until her death in July l9l7. On April 14, 1917, she passed Exhibit 29, by which document she created a wakf of property worth Rs. 19,999 for the benefit of her deceased father Nanumiyan's soul in favour of her grand-father's mosque Gulamali Fozdar situated in Broach city. By the terms of the document she was to be Mutawali, during her life-time. On her death, her maternal uncle was to succeed as Mutawali, and after him his son Abasalli and others of his descendants. The income of this property was estimated at Rs. 900. Of this income she directed that Rs. 500, should be spent on the mosque and Rs. 400 reserved to the Mutawali. As I have said, Asha Begam died in July 1917, and in ordinary circumstances her husband and her own agnates would have succeeded to her estate. But Asha Begam had never lived with her husband, and her father Nanumiyan had been on bad terms with his relations. Thus, while her husband took possession of Asha Begam's property, claiming to be her heir, the maternal uncle has brought the present suit to eject him.
2. The husband is defendant No. 1; defendant No. 2 is one of the agents and defendants Nos. 3 and 4 are tenants of the property in dispute. The defendants contended that the gift of Nanumiyan was invalid as there had been no proper delivery of possession and that Asha Begam's wakf was invalid and inoperative in law.
3. In the trial Court, the Subordinate Judge, Mr. Bhat held that the deed of gift by Nanumiyan to Asha Begam was operative. He also held that the plaintiff had not proved that the deed of wakf executed by Asha Begam, a Pardanashin lady, had been made by her of her own free will and not under duress. He dismissed the suit.
4. The plaintiff appealed to the High. Court and their Lordships per Macleod, C.J. and Coyajee, J. remanded the case to the trial Court for a decision on the following issues:
(1) Whether Asha Begam thoroughly comprehended, and deliberately and of her own free will carried out, the deed of wakf?
(2) Whether the deed was executed during her death-illness?
5. On remand the case was heard by Mr. Bhat's successor, Mr. Cooper. After discussing the evidence in a careful and exhaustive judgment, he found on the issues (1) in the negative and (2) in the affirmative.
6. Against these findings Mr. Bahadurji, who represented the plaintiff, has argued that they were incorrect, and Mr. Thakor for the defendants has supported their correctness.
7. I should like, before proceeding further with my judgment, to thank the learned Advocates on both sides for the exhaustive way in which they have dealt with the case. Their arguments have occupied two days, and every conceivable point, which could have been taken on both sides, has, I think, been taken.
8. Coming to the two issues, there is no question but that where a Pardanashin lady is concerned, the burden of proof rests upon him who would seek to take advantage of a document executed by her. It is for the plaintiff in this case to show that Asha Begam comprehended thoroughly and deliberately and of her own free will carried out the deed of wakf. But in my opinion, this rule has to be followed intelligently. To put an extreme case, where a Pardanashin lady had brought a property for Rs. 5,000, and six months later sold it for Rs. 50,000, the person who wished to take advantage of the document by which the lady transferred her rights for Rs. 50,000, would have very little difficulty in persuading a Court that there was neither fraud, nor duress nor undue influence.
9. In the converse case, however, where a Pardanashin lady owning property apparently worth Rs. 50,000, sold it for Rs. 5,000, the person, who wished to take advantage of the second transfer, would have to discharge a heavy burden and prove fully that the executant knew and understood all that she was doing. I am fortified in this opinion by the cases of Mahomed Buksh Khan v. Hosseni Bibi)  15 Cal. 684 and Kali Bakhsh Singh v. Ram Gopal Singh  36 All. 81 . In the former case we find the following passage at p. 91:- 'Then comes the question, was the deed executed under such circumstances that it ought not to be allowed to stand? Duress and coercion may be laid out of consideration. The witnesses who speak to anything of that kind were discredited by both Courts. But there remains the more subtle form of undue influence. Their Lordships desire not to say a word which could interfere with the settled principles on which the Court acts in considering the deeds of Pardanashin ladies or could tend to lessen the protection which it is the duty of the Court to throw around those who are unable to protect themselves. They do not forget that this lady was a Pardanashin lady. They do not forget that at the time of the execution of the deed she was living in more than ordinary seclusion; that she was in very deep distress; and that she was surrounded by members of that branch of the family to which the objects of her bounty more immediately belonged. But bearing all these things in mind, and reviewing the whole evidence, they come to the conclusion that the lady knew perfectly well what she was doing, and that in every sense the act was her own act.'
10. In the second case, that of Kali Bakhsh Singh v. Ram Gopal Singh  36 All. 81 we find this passage at p. 31:
Their Lordships, as already mentioned, have fully in view the fact that the lady was a Pardanashin lady but the evidence as to her strength of will and business capacity, and the fact that the deed as granted is not in the circumstances of her life in any way an unnatural disposition of part of her property, so far, taken together with the evidence in this case, to convince them that the deed was granted by her as the expression of her deliberate mind and apart from any undue influence exerted upon it. In short their view is that if independent outside advice, which is an essentially different thing from independent outside control, had been obtained the lady would have acted just as she did. Much as their Lordships support and approve of the protection given by law to a Pardanashin lady, they cannot transmute such a legal protection into a legal disability.
11. The learned advocate for the respondents has relied on the case of Kamawati v. Digbijai Singh A.I.R. 1922 P.C. 14. But there the Pardanashin lady had passed a document substantially without consideration by which she relinquished all her rights in respect of her inheritance.
12. This appears to be really the second part of my proposition that the Court will gauge the burden of proof, which the plaintiff has to discharge, on a careful consideration whether the document by which he seeks to profit was or was not injurious to the Pardanashin lady who executed it.
13. [His Lordship discussed the facts and the evidence in the case and proceeded:-]
14. I, therefore, find on the first issue in the affirmative, and not in the negative as the learned Subordinate Judge has found.
15. Coming to the second issue, it must be borne in mind that here the burden of proof rests no longer on the plaintiff but on the defendants. The defendants have sought to base their arguments on a peculiarity of Mussalman law which requires that the document to be effective should not be executed during death-illness of Marz-ul-maut. In Sardbai v. Rabiabai  30 Bom. 532 Batchelor, J. laid down with great lucidity the principles of Mahomedan law as gathered by him from earlier authorities. The pertinent passage runs 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 mo to the conclusion that in order to establish Murz-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 in ability to attend to ordinary avocations.
16. These incidents, as laid down by Batchelor, J., were accepted in the case of Rashid v. Sherbonoo  31 Bom. 364 by a Division Bench of this Court consisting of Batty and Pratt, J.
17. We have, therefore, to consider whether the defendants have established that at the time when Exhibit 29 was exeouted, Asha Begam was in proximate danger of death or was in fear of death, and was unable to attend to her ordinary avocations. There seems no doubt but that some months before her death Asha Begam was suffering from chronic diarrhoea, or the kindred disease sprue. That is the evidence of Dr. Kellawalla whose evidence is relied upon by the lower Court, and there is no reason to suppose it to be untrue. But both chronic diarrhoea and sprue are diseases which can be cured, and there is really no evidence before us that Asha Begam died either of diarrhoea or of sprue. The death register merely contains an entry that she died of fever. But even if it be assumed that she did die of sprue, where is the evidence that she was at the time when she executed Exhibit 29 in fear of death? There is absolutely none except that of one witness who said that she was sick of life. That witness, however, is defendant No. 2, who is deeply interested in the decision of this case.
18. As regards the question whether she was unable to attend to her ordinary avocations, all the evidence goes to show that at the time when she executed Exhibit 29 Asha Begam was not confined to her bed, and that she was able to walk about and attend to her household business. This is indeed what one would naturally expect in the case of a lady who executed the document, and did not die until three months later, even though she may have been suffering, in April from sprue to which she eventually succumbed in July.
19. This disposes of the two main points in the case. But the learned advocate for the respondents has referred to two other minor points for our consideration. He has contended that the document Exhibit 29 left 91 shares out of 100 of Asha Begam's property undisposed of. But that matter has really been dealt with by the learned Subordinate Judge Mr. Cooper. I agree with him in holding that although there was some confusion in the way the document was worded, the meaning is really quite clear, and that the intention of the executant was to divide her property as 5 is to 4 between the mosque and the Mutawali.
20. The second point is whether the gift to Asha Begam by Nanumiyan, her father, was invalid. This point has been dealt with very clearly by the first learned Subordinate Judge who tried this case. The argument of the learned advocate was that there was no proper transfer of possession. But the case cannot be better stated than in Mr. Bhat's own words:-
It was clear intention to part with the gifted property. He effected the transfer and he did all that could possibly be done under the events....
In the present instance Nanumiyan did declare his intention to part with the possession of the gifted property and his intention was manifested by actual transfer of the property in the name of Asha Begam in the Municipal and Government Land Records and he asked his tenants defendants Nos. 3 and 4 to attorn to Asha Begam.' 'The act of Nanumiyan in residing with Mithi shows his declaration that he wanted to make the deed of gift complete.
21. The view of the learned Subordinate Judge is agreeable to the view of their Lordships of the Privy Council in Sheikh Muhammad Mumtaz v. Zubaida Jan  11 All. 460. For the above reasons we reverse the decree of the lower Court and pass a decree for possession of the property, as prayed for, against the four defendants together with mesne profits from the institution of the suit until delivery of possession to the plaintiff or the expiration of three years from the date of the decree whichever event first occurs. Mesne profits to be determined by the trial Court.
22. The appellant to get costs throughout from defendants Nos. 1 and 2.
Shah, Ag. C.J.
23. [His Lordship held on the facts that the Pardanashin lady had executed the deed in full realisation of its provisions and their effect on her position, and proceeded-]
24. As regards the question whether the document was executed during marz-ul-niaul in addition to the cases which have been referred to by my learned brother, I would refer to the observation in Fatima Bibi v. Sheikh Ahmed Baksh, (1907) 35 Cal. 271 that 'the right test was whether the deed of gift was executed by the donor under apprshension of death.'
25. Even assuming in this case that she died in July 1917 of chronic diarrhoea, which she was apparently suffering from, it is very difficult, under the circumstances, to draw the inference that she was under the khauf or apprehension of death on April 14, 1917, when the document, Exhibit 29, was executed. This was nearly three months before death. The evidence of witnesses on either side is really very unsatisfactory, and does not enable the Court to come to any conclusion with any degree of confidence. There are, however, references to illness in the letters written by the plaintiff about this time to her, and it is a reasonable inference that in April about this time she was suffering from diarrhoea. As to what the exact nature of the complaint then was, we are not in a position to determine. We have the evidence of Dr. Kellawalla, which has been believed by the learned Judge, and which we may accept. But the infirmity of that evidence is that it does not fix with any degree of precision the time when Dr. Kellawalla examined Asha Begam. There are no notes of the case from which the Doctor could have refreshed his memory, He gave evidence a long time after he examined Asha Begam, and he says that he examined her once. His opinion that she suffered from sprue is entitled to weight. But, on the questions whether the disease was diagnosed to be incurable then of whether she was under apprehension of death in April when the document was executed, the evidence of the Doctor does not throw any useful light. The rest of the evidence as to the nature of the illness leaves the matter in a very unsatisfactory condition. After a careful consideration of the evidence in the case, I have come to the conclusion that the document was duly executed by Asha Begam, that she knew what she was doing, and that the main object she would have in view, namely, to see that her heirs according to law did not get this property was secured by this document. Also, on the question of illness I am satisfied that though she was ill in April 1917, she was under no khauf of death at the time. It does not appear clearly what the duration of the illness was at that time; and if it was no more than a chronic complaint, there would be no good reason to hold that she was under any apprehension of death in April, nearly three months before she died.