1. Musammat Taubat-un-nissa, sister of the plaintiff, was the wife of the defendant Muhammad Anwar Husain Khan. According to the common practice prevailing amongst Muhammadans her dower was fixed at a sum of Rs. 1,25,000, a sum which was out of all proportion to the position in life and means of her husband. She died at the early age of 20, or thereabouts, on the 23rd of July 1906, leaving her husband, the plaintiff, who is a brother, and three other brothers as her heirs. The suit out of which this appeal has arisen was brought by the plaintiff on the 3rd of November 1906 to recover his share of his sister's dower. The defendant filed a defence and set up the case that his wife, on the 18th of July 1906, executed a deed of relinquishment in respect of her dower debt in his favour. In his written statement ho alleges that his wife was not suffering from 'Death illness' when she executed this deed, that she executed it voluntarily, without any pressure or undue influence, and that she fully understood its meaning and import.
2. The Court below dismissed the plaintiff's suit, holding that the evidence adduced by him fell far short of proving that Musammat Taubat-un-nissa was suffering from murzulmaut when she executed the deed of release. In the concluding portion of his judgment, the learned Subordinate Judge sums up his finding thus:
The fact seems to be that Taubat-un-nissa suffered from some womb complaint for a long time, which must have greatly affected her health. While she was in this state of health, kidney pain supervened and from the shock of this she died. The facts of this case are very much similar to that of Fatima Bibee v. Ahmad Baksh 31 C. 319. In that case it was held that a man, who suffered from diabetes when he made a gift and died from the effects of a carbuncle, was not suffering from death, illness when he made the gift and consequently the gift was not invalid.
3. From this decision the present appeal has been preferred. In the memorandum of appeal five grounds of objection to the decree are stated, but the only one which has been pressed in argument before us is the fourth, which is that the evidence on the record conclusively proves that Musammat Taubat-un-nissa was suffering from murzulmaut when she executed the deed of agreement.
4. The rule for determining what a death illness is to be found in Hamilton's Hedayat Volume IV, Book 52, Chapter 2, at page 685. It is there thus stated:
Paralytic, gouty or consumptive persons, where their 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), hence 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 familiarised 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 bed-ridden, 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 bed-ridden, 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 a death-bed illness.
5. In the case of Muhammad Gulshere Khan v. Mariam Begam 3 A. 731, the law relating to Murzulmaut was considered. It was there held that according to the Muhammadan law a gift by a sick person is not invalid, if at the time of the gift his sickness was of long continuance, that is it lasted for a year, and he was in full possession of his senses and there was no immediate apprehension of death. It was also considered by Rampini and Pargiter, JJ., in the case of Fatima Bibee v. Ahmad Baksh 31 C. 319. The learned Judges in that case observe that too narrow a view must not be taken of the doctrine of death illness and they express their agreement with the statement of the doctrine contained in Hassarat Bibi's case 3 C.W.N. 57, namely, Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby, or to engender an apprehension of death? 'and was the illness such as to incapacitate him from the pursuit of his ordinary avocations, or standing up for prayers, a circumstance which might create in the mind of the sufferer an apprehension of death?' They found nothing in the evidence to indicate that the deceased in that case was under an apprehension of death when he made the gift which was impeached, that the increase of illness which was deposed to did not constitute a death illness. An appeal was preferred from this decision to their Lordships of the Privy Council and we find the case reported in L.R. 35 I.A. p. 67 35 C, 271 Lord Collins affirming the judgment of the High Court, observed: The only point which the appellants have argued on this occasion was that which no doubt goes to the root of the matter, namely, whether the gift was invalid under the law of murzulmaut. The test which was treated as decisive on this point in both Courts was, was the deed of gift executed by Dadar Baksh under apprehension of death? This, which appears to their 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 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.'
6. Accepting then the test so laid down by the Privy Council let us see what was the condition of Musammat Taubat-un-nissa on the 18th of July 1906, the day on which she released, her dower in favour of her husband. On the 27th of June she had gone to Bareilly. On the 18th of July the deed of release was executed, and on the 23rd of July she died.
7. Musammat Kulsum Begam, who was anaunt of Taubat-un-nissa, deposed that she saw her 4 days before she went to Bareilly and she described her condition then in these words: She was then on the point of death. Her hands, feet, and belly were swollen and she had motions. She could not do any household work. She could not either say her prayers or keep fast. She used to be seated with the help of two persons 'and When we met together before she went to Bareilly we wept. She said that her state of health was so bad that she despaired, of her life'
8. Musammat Jamil-un-nissa, who describes herself as a sister of Taubat-un-nissa but who in reality was only a cousin, stated in her deposition that she saw Taubat-un-nissa at the time she went to Bareilly. 'On that day,' she said, the state of her health was such, that she could neither move about nor talk. She had become very emaciated and could not do any household, work. She suffered from a disease to which women are subject. Her belly, hands and feet were swollen. 'Then she referred to conversations which she had with her and stated that she used to say: sister my state of health is very bad. I cannot survive' Then the witness deposed that she had a talk with. Taubat-un-nissa at the time of her departure to Bareilly and that Taubat-un-nissa then said 1 am going to a place where I am destined to be buried. I cannot comeback alive '
9. Shafi-un-nissa, the wife of a brother of Taubat-un-nissa, deposed that she used to see Taubat-un-nissa daily before she went to Bareilly and that she was present on the day she started for Bareilly. She says that the mother-in-law of Mashhud Hasan Khan and she held her and seated her in the palanquin, that her belly, hands and feet were swollen, that she complained of having great pain in her stomach, and that on the day of her departure she said to the witness: bhawaj, I shall not survive'
10. Mrs. Phillips, an assistant in the Civil Hospital at Delhi went from Delhi to Bareilly to see Taubat-un-nissa on receipt of a telegram, from Anwar Husain Khan. She stayed at Bareilly for one day only and she described Taubat-un-nissa's illness as follows:
The symptoms of illness appeared to be as follows, Her liver was affected and hence her hands, feet, belly and heels were swollen. She was very weak. She was suffering from diarrhoea and could not digest food. When I saw her she appeared to have been ill for two or three months. No medicine could have done her good, because she was very weak and it was her last moment. I, therefore, declined to take her under my treatment. I had a talk with Tabban (i.e. Taubat-un-nissa). She told me how she was and stated in the presence of all the persons that she despaired of her life.' In cross-examination this witness stated that on account of the diseases from which she was suffering, Taubat-un-nissa lost the power to move about, she had become very weak, she died of general debility. She would have died merely of the inflammation of the liver, that is, the inflammation of the liver was sufficient to cause her death.
11. Maulvi Azam Shah, who claimed to have some skill in the art of healing, was also examined, deposed to the condition of Taubat-un-nissa but his evidence does not carry much weight. The same remark applies to the evidence of Abdul Hakim.
12. The next witness to whose evidence we would refer is the plaintiff Muhamad Mashhud Hasan Khan. He deposed that Taubat-un-nissa was very unwell at the time of her death, being unable to move on her bed without assistance, that she fell ill in March or April 1906, and that he accompanied by his wife took her to Bareilly, Nathu Khan and the defendant's son and daughter and three women accompanying them. He stayed, he said, 16 or 17 days at Bareilly and then left for Shahjahanpur. On the 17th of July he returned to Bareilly on receipt of a telegram from his son Nathu Khan. He remained only one day. On that occasion Taubat-un-nissa told him that she would execute a relinquishment as to her dower in favour of Anwar Hasan, that she was dying and she should relieve her husband of the burden of the debt due to her and she asked him to sign the deed as an identifying witness, that to console her he told her that she was not very seriously ill and should not talk despondently. He told her if necessary she could send for him again that he did not return. He wrote a letter to his sister saying that she was not incurably ill and there was no need of executing the document referred to. In the letter to which reference is here made, dealing with the deed of relinquishment, the witness stated that he did not wish his sister without the consent of all her brothers to have the deed of relinquishment executed and in it he says: 'Thank God, you are not in such a bad state of health at present as to make it necessary to do so. It means that everything is wrested from you during your lifetime.' This letter is relied upon as showing that the plaintiff did not consider that his sister was in a dangerous state of health at the time but it is apparent, as he stated in his evidence, that the words he used were merely intended to give her encouragement; that Taubat-un-nissa was seriously ill at the time, is evident from a letter which was written by the defendant himself before she went to Bareilly addressed to one Juma Khan. In this letter reference was made to the desire expressed by Taubat-un-nissa to place herself under the treatment of a lady Doctor at Delhi. The defendant refers to the heavy expense of sending her to Delhi and placing her under medical treatment there. He mentions the fact that the lady Doctor in question treated the patient several times at Shahjahanpur but could not eradicate the disease and that it was useless to take the trouble to remove her to Delhi for the purpose of treatment by this lady Doctor. Then the defendant writes: 'As the patient is very weak it will be very troublesome to her to travel such a long distance without breaking the journey in the hot weather,' and later on he adds: Delhi is very far away from home. Moreover, it is not proper for the patient to go there while she is so weak and ill. 'There is the following significant postscript to this letter 'please tear this letter to pieces after you have gone through it.' The evidence to which we have referred, if it be credible, and we see no reason to distrust it, abundantly shows that Taubat-un-nissa was in a precarious state of health when she went to Bareilly and that she apprehended that she would not recover from her illness.
13. We now come to the witnesses who were examined in support of the defendant's case. The defendant himself deposed that when his wife arrived at Bareilly her condition was good, and that she could move about, that she was placed under the treatment of the Assistant Surgeon at Bareilly and that a lady Doctor used to come with him to examine the Musammat and give the particulars of her case to the Assistant Surgeon. The Assistant Surgeon to whom he refers is Babu Har Prasad and the lady is Miss A.C. Roy. The defendant further stated that up to the day preceding her death, the condition of his wife was good and that the disease did not increase but on the contrary was on the decrease. This evidence is clearly untruthful.
14. Miss A.C. Roy made a sorry exhibition of herself in the witness box. She is a young woman, aged 26, practising as a Doctor at Bareilly. She stated that Taubat-un-nissa was suffering from chronic hysteritis and that she was as vigorous as purdahnashin ladies usually are. 'She was unable to state of what disease she died but admitted that chronic hysteritis is not fatal. She diagnosed the disease to be nothing but hysteritis, though in the beginning of her treatment she suspected from the pain which the patient complained of that she was perhaps suffering from abdominal phthisis, she was confronted with a death certificate which she gave to the plaintiff on the 11th of August 1906, in which she certified that Taubat-un-nissa was suffering from abdominal phthisis when she was called to see her in the month of July 1906. In that certificate she states: I paid many visits and found that she was going rapidly, and then one day I was informed that she was dead.' Questioned as to this certificate she stated that it was not quite true and that she wrote down what the plaintiff wanted her to write in order to get rid of him. She further stated that at the time she was not serious and did not remember what she wrote. The question was then put to her: Is it possible for you to have stated in the certificate that the lady was suffering from an illness of which, she was not actually suffering 'and she answered It is possible, I might have, because I do not remember. I might have mentioned any symptom which may have been taken for a disease.' Then later on she stated that she gave the certificate because she was asked to do so by the plaintiff' but that it was not true. No disease of the liver' she said 'was diagnosed.' The patient was merely suspected to be suffering from such disease.' She further stated that she treated the patient without consulting Dr. Har Prasad and without informing him of her complaint, that she consulted him as regards the medicine to be taken but did not consult him as regards the medicines to be applied, that she used to treat the patient, Dr. Har Prasad being her adviser. Then she was asked to state the reasons why Dr. Har Prasad wrote prescriptions when the Musammat was her patient and he was the witness' adviser. Her answer was: It was my wish that he did so.' Then she was asked how she obtained prescriptions from Dr. Har Prasad when she did not relate full particulars of the disease to him and her answer was: I obtained prescriptions from him with reference to the account of the patient 1 gave to him.' Then she was asked: Is it against professional etiquette that when two Doctors are treating one and the same patient in consultation with each other, the junior should treat the patient independently of the senior.' Her answer was: As the patient gave me permission to do so, with regard to the purdah system and as I was not under Har Prasad, that is, I was not appointed by the Government to be a subordinate to him, I could do what I thought best without having regard to his seniority.' No serious weight can be attached to a witness of this type. We look upon the evidence of Miss Roy as wholly unreliable.
15. Dr. Har Prasad did not see the patient as she was a pardahnashin. He had to depend upon' the information which he received from Miss Roy, and from what we gather from this lady's evidence it is obvious that Dr. Har Prasad's evidence loses the weight which might otherwise be attached to it. He was examined and deposed that Taubat-un-nissa was suffering from chronic inflammation of the womb and this he inferred from her statement that she was suffering from pain below the navel since her child was born. On the morning of the day on which she died he stated that she had a severe pain in her kidneys, that on the day previous she was in a normal state of health as he used to see her. He said: her condition was not bad in any way. She complained to me of pain in the kidneys on the day on which she died. Previous to this she did not complain of pain in her kidneys.' Then he certifies that the cause of her death was pain in the kidneys. In cross-examination he was asked as to how he came to know there was pain in the kidneys and his answer was that he touched the portion of the body where she complained of pain and ascertained that it was where the kidneys were.
16. The learned Subordinate Judge upon this evidence came to the conclusion that the cause of death was the kidney pain which Taubat-un-nissa had on the night of the 22nd of July and that she never had this pain before and did not suffer from it when she executed the deed of release. We are wholly unable to agree in the conclusion at which he arrived. The severe pain in the kidneys was the indication of a diseased condition of the kidneys, it is not in itself a disease. The evidence irresistably loads to the conclusion that Taubat-un-nissa was for weeks at least prior to her death suffering from a fatal malady or maladies, whether they were kidney or liver troubles or abdominal phthisis or a complication of troubles, it matters not. It is not now possible to say what was the precise cause of death but this is abundantly clear that at the date on which the release was executed she was suffering from a fatal illness and she was aware that death was imminent. The case is unlike that of Fatima Bibee v. Ahmad Baksh (1), upon which the learned Subordinate Judge relied. In that case the patient suffered from diabetes for 8 or 9 years and then albuminuria supervened in 1896. Then later on, on the 12th of May 1897, he was attacked with fever and died on the 27th of May, after having executed a hibanama on the 21st of that month. Both Courts found that there was nothing in the symptoms of the patient which would necessarily have excited in him an apprehension of death, and there was nothing to show that he was under apprehension of death when he executed the hibanama. In the case before us we have most cogent evidence that Taubat-un-nissa at the date of the relinquishment of her dower and for weeks before was under apprehension of death.
17. The probabilities lend strong support to the plaintiff 's case. It is in the highest degree improbable that Musammat Taubat-un-nissa, a young married woman, would have relinquished her dower if she had not been apprehensive that death was imminent. There is no reason why she should do so.
18. This case affords another illustration of the mischief which results from the practice which prevails amongst Muhammadans of fixing dower at an extravagant sum out of all proportion to the means of the parties.
19. We allow the appeal, set aside the decree of the Court below and decree the plaintiff's claim with costs in both Courts including fees in this Court on the higher scale.