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Sheikh Fazal Ahmad and anr. Vs. Musammat Rahim Bibi and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in51Ind.Cas.633
AppellantSheikh Fazal Ahmad and anr.
RespondentMusammat Rahim Bibi and ors.
muhammadan law - maraz-ul-maut, what is--gift in favour of heir during maraz-ul-maut, validity of--applicability of doctrine to sales and wakfs. - - 1. this and the connected appeals arise out of two suits which related to certain property, moveable and immoveable, which belonged to one manzur ahmad, who died on the 2nd of september 1912. manzur ahmad, although he bad been married (four times it is stated), never had any children. , be included). 2. very shortly before his death, manzur ahmad bad transferred the two last mentioned villages to his mother musammat rahim bibi. the deceased continued to suffer from fistula but he was much better and he dedicated some property as a thank offering for his recovery, (making himself, however, the mutwalli). in 1912 dr. banerji later in his.....1. this and the connected appeals arise out of two suits which related to certain property, moveable and immoveable, which belonged to one manzur ahmad, who died on the 2nd of september 1912. manzur ahmad, although he bad been married (four times it is stated), never had any children. his heirs were, first, fazal ahmad (his paternal uncle), secondly, his mother musammat rahim bibi, and thirdly, his two widows musammat qamarannissa and musammat jilani begam. under the muhammadan law of inheritance fazal ahmad would have been entitled to 10 sihams out of 24, rahim bibi to 8 sihams and the two widows to 6 sihams between them. fazal ahmad was not only uncle to the deceased but he was also the father of musammat jilani begam, his youngest wife. before his death manzur ahmad was possessed of a.....

1. This and the connected appeals arise out of two suits which related to certain property, moveable and immoveable, which belonged to one Manzur Ahmad, who died on the 2nd of September 1912. Manzur Ahmad, although he bad been married (four times it is stated), never had any children. His heirs were, first, Fazal Ahmad (his paternal uncle), secondly, his mother Musammat Rahim Bibi, and thirdly, his two widows Musammat Qamarannissa and Musammat Jilani Begam. Under the Muhammadan Law of inheritance Fazal Ahmad would have been entitled to 10 sihams out of 24, Rahim Bibi to 8 sihams and the two widows to 6 sihams between them. Fazal Ahmad was not only uncle to the deceased but he was also the father of Musammat Jilani Begam, his youngest wife. Before his death Manzur Ahmad was possessed of a considerable amount of property. He had deposited in the bouse of Lala Khub Chand {.banker) the sum of Rs. 16,876. He had also in cash in his house the sum of Rs. 8,500 and 4,000 sovereigns (equal to Rs. 60,000) which was buried in a house which was occupied by Jilani Begam. He had also Rs. 58,000 on fixed deposit with the Allahabad Bank. Besides this cash, the deceased was possessed of some house property and a considerable amount of Zemindari property, including two villages called Mauza Bithaura Kalan and Manza Amkhera. These two villages were worth about two lakhs of rupees. The property of the deceased was worth probably between 5 and 6 lakhs (if jewellery, ornaments etc., be included).

2. Very shortly before his death, Manzur Ahmad bad transferred the two last mentioned villages to his mother Musammat Rahim Bibi. He had also given her the 4,000 sovereigns. He caused the Rs. 16,876 deposited with Lala Khub Chand to be transferred to her name. The Rs. 8,500 in cash had also been brought to the house of Lala Khub Chand and placed to the credit of Musammat Rahim Bibi. It thus appears that the deceased transferred, very shortly before his death, property and money to the extent of Rs. 2,85,376.

3. After the death of Manzur Ahmad there was litigation in the Revenue Court as to mutation of names with regard to the two villages to which we have referred, with the result that Fazal Ahmad succeeded in having his name recorded as one of the heirs of Manzur Ahmad, and he was appointed Lambardar. This suit was thereupon instituted in the Civil Court and Musammat Rahim Bibi claims against the other heirs that she is entitled to the villages by virtue of a deed, dated the 29th of August 1912. In the other suit Fazal Ahmad in plaintiff and seeks therein (amongst other things) his share of the four thousand sovereigns, of Rs. 16,876 and of Rs. 8,500.

4. The defendants in the suit brought by Rahim Bibi pleaded (1) that Manzur Ahmad was so ill that he knew nothing about the transfer at all, (2) that if he was capable of understanding the transaction, it was in truth and in fact a gift and that the gift being to an heir, was void, having regard to the Muhammadan Law of Maraz-ul-maut. Rahim Bibi answered these pleas by contending (1) that tbe transaction was not a gift but a sale, in which case 'Maraz ulmaut' did not apply, (2) that having regard to the nature of the illness which was long protracted, the doctrine of Maraz ul-maut did not apply, and (3) that even if the doctrine of Maraz-ul-maut did apply, the transaction was a waqf and was valid to the extent of one-third of the entire property of Manzur Ahmad. In answer to the suit brought by Fazal Ahmad, Rahim Bibi pleaded that the gift of the money was valid because Maraz-ul-maut did not apply and that the money was transferred not as a gift but in discharge of a debt due by the deceased to her.

5. Both suits were tried together upon the same evidence. We have come to the conclusion, for reasons which we shall state later on, that the transfers of the villages and of the money, etc., to Rahim Bibi were in truth and in fact gifts to Rahim Bibi, made by the deceased because he wished to benefit her more than his other heirs. In this view of the case, the all-important issue is whether or not the illness of Manzur Ahmad was such as to render the gifts void according to Muhammadan Law that gifts made in Maraz-ul-maut are invalid, Rahim Bibi has, since Manzur Ahmad's death, attempted to make a waqf of the property (perhaps more or less illusory) and she has given away most of the money to her own relatives who are not heirs of Manzur Ahmad. We may mention here that the learned Counsel for Fazal Ahmad in the appeal before us abandoned the contention that the deceased did not know and understand what he was doing when he made the transfer and learned Counsel laid no stress on the evidence of Fazal Ahmad or his witness.

6. We propose, in the first place, to deal with the evidence relating to the illness of Manzur Ahmad. He was a man of vicious habits. He lived at a place called Dhundru, about six miles from Pilibhit. Or. Nil Satan Banerji was Civil Surgeon at Pilibhit in the year 1909, and in that year Manzur Ahmad was treated by him. Manzur Ahmad was then suffering from urinal complaints due to venereal disease. Dr. Banerji operated but the operation was not altogether successful. Some of the urine continued to come through the wound instead of the natural channel. The deceased continued to suffer from fistula but he was much better and he dedicated some property as a thank offering for his recovery, (making himself, however, the Mutwalli). In 1912 Dr. Banerji was transferred to Bara Banki (a long way from Pilibhit) but the deceased came to him on the 26th of June 1912 and remained under the doctor's care till the 7th of August preceding his death. Deceased was then suffering from an abscess or fistula in the anus and consumption had commenced. Dr. Banerji later in his evidence says that consumption had clearly developed. Dr. Banerji again operated and the wound caused by the abscess in the anus had nearly healed, but not quite, when the deceased returned home on the 7th of August. Between the 26th of June and the 7th of August consumption made rapid progress; and, when the deceased left for home, the second stage of the disease had almost passed. The doctor says, 'when I sent off Manzur Ahmad from Bara Banki his case was hopeless.' The doctor says that be had not impressed upon Manzur that he would not recover but 'he (the deceased) had come to understand that he would not recover.' When he went to Pilibhit from Bara Banki he was hopeless of his recovery. 'He could not get up himself.... He required assistance to rise or to sit.'

7. Dr. Banerji gave Manzur Ahmad, when he was leaving, a certificate, stating that he was not suffering from any contagious or infectious disease. The doctor gave him this certificate so that he might not be troubled on the journey by reason of the authorities thinking he was suffering from Plague or some such disease. Dr. Banerji was a witness for Rahim Bibi. He appears to have given his evidence in a straightforward manner, and we consider that reliance may safely be placed upon what he says.

8. From Bara Banki Manzur Ahamd proceeded to Pilibhit, a journey of about 10 hours in the train. At Pilibhit he stopped for a few hours at the house of Alauddin, a brother of Rahim Bibi, and thence he proceeded to his own house at Dhundru, a journey of about six miles. Within a.few day be suffered from a pain in his side, and be sent for another doctor who was then Civil Surgeon at Pilibhit, named Baldeo Singh. Even before Manzur Ahmad left Bara Banki, he had felt this pain and complained of it to Dr. Banerji. Dr. Baldeo Singh considered that he had an abscess near the kidneys but he was not very certain about the locality. He advised him to come in to Pilibhit to be operated upon. The deceased was lying on a bed when Dr. Baldeo Singh saw him at Dhundru. On the 14th of August Manzur Ahmad was brought back to Pilibhit in order to be attended to by Dr. Baldeo Singh. He came again to the house of Alauddin, his mother's brother. Dr. Baldeo Singh assisted by another doctor (Dr. Chatterji) operated upon him on the 15th of August, No less than two pounds of very evil smelling pus was taken from the abscess. The deceased was very weak and Dr. Baldeo Singh continued to treat him for some days. The wound was dressed daily, and the operation seems to have been fairly successful. Dr. Baldeo Singh ceased to treat the deceased after some days; first, because, Manzur Ahmad would not take the medicines he directed and, secondly, because the doctor became seriously unwell himself. Dr. Baldeo Singh was also a witness for Rahim Bibi.

9. Another witness for Rahim Bibi was Dr. Chatterji, whom we have mentioned above as assisting Dr. Baldeo Singh. When he gave his evidence he was Civil Surgeon at Pilibhit. He continued in attendance upon the deceased after Dr, Baldeo Singh had ceased to attend him. He says that after the operation Manzur Ahmad never gained sufficient strength to move about. On the 2nd of September he died. Dr. Chatterji says that he and Dr. Baldeo Singh, before they operated upon him, found that he was suffering from consumption, that his heart was weak, and they accordingly performed the operation without chloroform. He says that when he first saw Manzur Ahmad, the apex of his lung was affected. Before he died about one-sixth of both lungs was affected. The consumption had extended to his throat and the deceased was Buffering from tubercular laryngitis, his voice had become hoarse and he eventually died from asphyxia, being unable to breathe in consequence of the laryngitis.

10. During all this time, and when the deceased died, he was staying in the house of Alauddin. In the same house also lived Wisaluddin, a nephew of Rahim Bibi, that is to say, the son of her deoeased brother. Wisaluddin and hie brothers are the persons in whose favour Rahim Bibi has since parted with the greater part of her property and they were not heirs of Manzur Ahmad.

11. As already stated, while the deceased was staying in this house, he had sent to Dhundru to have the four thousand sovereigns dug up from the house of Jilani Bibi in order that they might be reburied in the house of his mother Rahim Bibi. Directions were also given to bring the Rs. 8,500 to Khub Chand, banker. The latter money duly reached Khub Chand, but the sovereigns, after being dug up, were stolen (half were afterwards recovered). This happened about the 20th of August or a little later. On the 29th of August the deceased executed a deed of transfer in favour of his mother Rahim Bibi in the following form:--'I, while in a, sound state of body and mind, have absolutely sold of my own free will the entire 20 biswas Zemindari property in Mauza Bithaura Kalan, Parganah and Distriot Pilibhit, and the entire 20 biswa Zamindari property in Mauza Amkhera, including the hamlets called Zahurganj, Manzargunj, Samaria, and Makruli, Pargana Richa, Tahsil Baheri, District Bareilly, and with all the appurtenances and interests appertaining thereto, without the exception of any right or share, to my mother, Musammat Rahim Bibi, wife of Sheikh Zahur Ahmad, Sheikh, resident of Mauza Dhundru, Pargana Jahanabad, District Pilibhit, for two lakhs of rupees, half of which is one lakh of rupees, and made over the possession of both the properties sold to the vendee. Now neither I nor any of my representatives have any right in the above mentioned properties sold. Out of the entire sale consideration I have received Rs. 10,000 in cash, and have left Rs. 1,90,000 with the vendee with my directions, in order that she may spend it with her own authority and at her own discretion for good purposes for the benefit of my soul in the next world. Hence I executed this document as a sale deed giving authority in respect of the sum held in deposit for charity, on a stamp paper of Rs. 2,000 under Article 23 and on a stamp paper of Rs. 15 under Article 7, Schedule I, Act II of 1889, so that it may serve as evidence.' Registration was duly effected and the deed has the following endorsement:

Let it be known that the executant is ill and he submitted a certificate of his illness given by the Assistant Civil Surgeon, Pilibhit, who is now Civil Surgeon in charge of Pilibhit, with his application for issue of a commission, which is in the office.

12. The certificate is as follows: 'I came to dress Sheikh Manzur Ahmad of Dhundru at the time when the deed was presented and execution admitted by him before the Sub-Registrar. I found his mental faculties unimpaired and he answered to every question referring to the deed quite correctly.'

13. The deed was registrered between 5 and 6 o'clock in the evening on the 29th of August 1912. This certificate was given by Dr. Chatterji at 5.30 in the evening. At 9.30 in the morning of the same day, Dr. Chatterji had given another certificate as follows: 'Certified that I examined Sheikh Manzur Ahmad, Zemindar of Dhundru, this morning at the request of the Sub-Divisional Magistrate and found his mental faculties not affected yet, although his general condition is extremely weak.'

14. It is pretty dear that the Sub-Registrar had some hesitation in registering the deed, having regard to the condition of the deceased, and notwithstanding the explanation which Dr. Chatterji gave when giving his evidence, we think that his first certificate shows that the deceased's condition was very critical on the morning of the 29th of August. The certificate was given in English and Dr. Chatterji understands English. The words 'found his mental faculties not affected yet' are significant. Immediately after the execution of the deed men were sent off post haste to make collections at the two villages and to apply for mutation of names. It was not the time of year at which collections are made, and the collections which were in fact made were more or less of a formal character obviously the intention was to show that the deed had been acted upon and possession taken. Certainly those steps were taken with the least possible delay.

15. Rahim Bibi also examined Abdul Jabbar, a Hakim, who says that he had occasionally to see Manzur Ahmad one or two years before his death, and that he had been suffering from syphilis and gonorrhoea. The importance of the evidence of this witness is to show that the deceased had been suffering from consumption fox a considerable period. The witness would not be in a position to speak of the deceased suffering from consumption from any scientific examination of the sputum. There was no blood in the sputum. Any suspicion he might have about consumption would be the consequence of his observation of the general state of health of the deceased and the fact that he suffered from fever. The fever from which Manzur Ahmad suffered might no doubt be attributed to consumption, but it also might be attributed to the other diseases deceased suffered from no doubt says that the progress of the consumption was slow, but we think that this statement is negatived by the evidence of Dr. Banerji, which shows that even between the 26th of June 1812 and the 7th of August of the same year consumption was making rapid progress. We also think that the statement of Dr. Chatterji about the progress of the disease is negatived by the facts that he himself has deposed to. At first the apex of the lungs was affected, that is about the 15th of August, and by the time he died one-sixth of both the lungs was affected. Moreover, the disease had spread to his throat and tubercular laryngitis had set in. Signs are not wanting in the evidence or examination and cross-examination of Dr. Chatterji that he had become to some extent a partisan (see his attempt to wittle down the significance of his certificate in which he says that the mental faculties of the deceased had not yet been affected,' although his general condition is extremely weak.') The witness seems to have lent himself a little to an attempt which was being made to suggest that the illness of Manzur was of long duration without any rapid increase. The doctrine of Maraz-ul-Maut does not apply to cases of lingering and protracted illness.

16. The conclusion that we have come to is that the illness of Manzur Ahmad all along rapidly progressed and increased between June and the 2nd of September when be died, and that it cannot possibly be said that he suffered from a lingering disease. There is no very satisfactory evidence when consumption commenced, but even if we assume that the seeds of the disease were present for some time, the progress of the disease was rapid between June and 2nd September. We believe Dr. Chatterji when he says that when Manzur Ahmad left him on the 7th of August the deceased was under the apprehension of death--and if this view be correct, nothing which subsequently happened was at all likely to lessen that apprehension. The sufferings of the deceased continued steadily to increase. The evidence of Rahim Bibi herself shows that the deceased apprehended death and that she was frequently trying to console him and remove his apprehension. 'We think that the two certificates which Dr. Chatterji gave show that those about Manzur Ahmad believed that he was, going to die, and that this apprehension was shared by the Sub-Registrar. That those who were about him (near relations of Rahim Bibi) believed he was going to die is also shown by the very great haste there was in sending off men to make the collections at the two villages and filing an application for mutation of names on 30th August. What other people thought who were daily seeing the deceased is not without some bearing on what the deceased was likely to think himself. The learned Judge referring to the evidence of Abdul Aziz, a witness for Fazl Ahmad, says that the deceased told the witness that he was better and that as soon as he would recover he would show him the villages that required water. This is not quite what the witness said. Witness said that the deceased said 'if he recovered.' The learned Advocate for Rahim Bibi admitted that if there was a rapid increase in the disease about the time when the 'gift' was made, and if the deceased was under apprehension of the near approach of death, the rule of Maraz ul-Maut would apply, even though the deceased had been suffering from consumption for more than a year before he made the gift. In our opinion the illness of the deceased was not a lingering disease and he was under the apprehension of near approaching death and if the transfers of the money and of the land ought to be regarded as 'gifts' to Rahim Bibi, they were void under the Muhammadan Law as having been made when the donor was Buffering from his death illness. The doctrine of Maraz ul-Maut is founded on the Koran which ordains that the heirs must inherit. Even though our sympathies may be to some extent more with Rahim Bibi, the affectionate mother of the deceased, we are bound to administer the law.

17. The next question we propose to deal with is, what was the real nature of the transaction. If the transaction was a sale the doctrine of Maraz ul Maut does not apply. If the transaction was the creation of a Waqf by the deceased, the transaction would be good to the extent of one-third of the entire estate of the deceased. If it was a gift to Rahim Bibi, one of the heirs, it was altogether void. On the face of it the deed is a sale-deed. But it is abundantly clear that Rahim Bibi had nothing like 2 lakhs of rupees wherewith to purchase the property. At the time the deed was registered the sum of Rs. 10,000 was produced before the Sub-Registrar, but we are absolutely convinced that this Rs. 10,000 did not belong to the Musammat. It was brought from the house of Khub Chand, banker, and was beyond all question money which had belonged to the deceased, at least up to the time that the money had been changed from the account of the deceased to the account of Rahim Bibi in the books of the firm of Khub Chand, and this change took place while the deceased was lying ill in the house of Ala-ud-din. It is said that the deceased owed money to his mother and that the sale was made in consideration of the discharge of this debt. In the first place, we must point out that the sale does not purport to be in consideration of the discharge of a debt. It is made in consideration of 2 lakhs of rupees, Rs. 1,90,000 being left with the vendee. In the nex place Rahim Bibi tried to make out that the debt due to her by her son represented a fortune which she had received many years before (at the time of her marriage) of Rs. 40,000. She says that her husband kept this Rs. 40,000, that after his death it was handad over to her eldest son to be in-vested, and upon his death in the year 1905 it was handed over to Manzur Ahmad and that Manzur Ahmad owed her the original amount of her fortune together with a large sum accumulated during the lives of her husband and two sons. The learned Judge in the Court below is careful to say when he finds certain matters in favour of Rahim Bibi, that he must not be at all taken as endorsing this story of hers. We altogether disbelieve the story. There is no evidence worthy of name to support the allegation that Rahim Bibi ever had a gift of Rs. 40,000 which had been kept intact for her by the male members of the family. It is true that Rahim Bibi also states that she had some Zemindari property and that the deceased used to collect the profits, handing over to her from time to time small sums which she required, retaining the balance for her. We find that in the year 1892 after the death of Zahur Ahmad, the husband of Rahim Bibi, an award was made under which she got a village called Purenia which brought in profits of about Rs. 1,000 per annum. In the year 1896 she got Rs. 2,000 a year in lieu of the village Purenia and in the year 1906 on the death of her eldest son she got property which brought her in about Rs. 4,500. (This was not in addition, it must be remembered, to what she had previously.) We find that the Musammat had an establishment of her own. She has been four times to Mecca. She had a number of relatives of her own to whom she would probably make gifts from time to time. She would also perhaps make some charitable gifts. Bearing in mind that the Musammat was the widow of a rich man and the mother of rich sons, we think that her means were no more than sufficient for her own support and maintenance and that certainly there was no room for large accumulations. The probabilities are that one year with another she got from her son at least the amount of the profits of her property, probably a good deal more

18. There are no accounts to show that her son had any monies of hers in his hands. The only important evidence to support the allegation that the deceased owed his mother money is a deposition which Manzur Ahmad made on the 25th of August 1912, that is to say, at or about the very time when he was trans ferring a large amount of property to his mother. In this deposition Manzur Ahmad says that whilst he was lying ill in the house of Ala ud-din, he had sent one Amir Khan (his mother's karinda) to take possession of the four thousand sovereigns on her behalf and that he had also told Amir Khan to get the Rs. 8,500 to deposit in the Kothi of Khub Chand to credit of his mother. In the deposition he says: 'I said to Amir Khan that I owed money to my mother.' It is contended that this admission by Manzur Ahmad of his indebtedness to his mother is very strong evidence that he owed her money. The deposition came to be made under the following circumstances. After the sovereigns were unearthed, they were made away with by the servants who were sent to get them. The Rs. 8,500 were duly deposited with Khub Chand but the sovereigns were stolen. For some time the loss of the sovereigns was kept from Manzur Ahmad, because it was thought that the news would have a very serious effect upon him in his delicate state of health. In the end, however, when the criminal Jaw was set in motion against those alleged to be responsible for the theft, it was decided to get a deposition from Manzur Ahmad. The weight to be attached to the statement by Manzur Ahmad that he owed his mother money is greatly lessened by the fact that he had a motive for making the statement, even if it was untrue. Moreover, the statement was made at the very time he was handing over to his mother a large portion of his estate and when he knew (as we believe) that he was about to die. Manzur Ahmad did not even say he owed his mother money. He says that he told Amir Khan that he owed the money.

19. As to the question of Waqf, the deed does not say that the villages were to be held as Waqf property. If the deceased wanted to dedicate the villager, there is no reason why he should not have expressly dedicated them as he did the property in 1906 on the occasion of his previous illness If he did not think he was going to die, be might have named himself as Mutwalli as he did in 1909 or he might have named his mother Mutwalli. The deed only says that Rs. 1,90,000 of the price (which was not and could not be paid) was to be applied for charitable purposes at the discretion of his mother. Looking at the evidence of Ala-ud-din, of Rahim Bibi herself, the condition of the donor and the surrounding circumstances, we have come to the conclusion that the handing over of the sovereigns and the transfer of the Rs. 8,500, Rs. 16,876 and of the two villages were in truth simply gifts made by the deceased to his mother and the provision in the deed that Rs. 1,90,000 should be applied in charity at the discretion of Rahim Bibi was a somewhat ingenious device to give the transaction the appearance of a sale so as to evade the Muhammadan Law, which forbids a Musalman in his death illness to make a gift to one heir at the expense of the others. It will be seen from the evidence of Ala ud-din and Rahim Bibi that they did not think that a Waqf was being made of Rs. 1,90,000, said to be left with Rahim Bibi. We may mention here that neither side relied on the evidence of witnesses other than those we have mentioned. On both sides there was, as the learned Judge says, a considerable amount of hard swearing. Fazal Ahmad not only alleged but stated in his evidence that the deceased did not even know the contents of the deed; while we think that the deceased was in a very weak condition when he executed the deed, we agree with the Court below that he understood what he was doing. This is borne out by the fact that on the 25th of August he was able to make a deposition about the loss of the sovereigns. If Fazl Ahmad bad confined himself to exaggerating the condition of the deceased, it might be said that one side was as bad as the other. But a litigant must be held responsible for the witnesses he produces to support his case and Fazl Ahmad produced a doctor who stated that he had examined the deceased shortly before his death. This witness was named Warris, who states that he is the most senior practitioner in Lucknow. He states that he saw the deceased at Pilibhit after the operation for the abscess in the intestines. He went to visit him early in the morning without informing Dr. Baldeo Singh or Dr. Chatterji. He removed the bandage, probed the wound, came to the conclusion that the case was quite hopeless and decided to have nothing more to do with the patient. He left Pilibhit without seeing either of the Doctors. He gives a most extraordinary account of his journey from Bareilly to Pilibhit and from Pilibhit back to Bareilly by road. The learned Judge was of opinion that this witness had never visited the deceased at all, and we fear there are grave reasons for thinking that the learned Judge was right. It is almost unbelievable that a Doctor who had taken his degree at Edinburgh University, would have visited the deceased without informing the Doctors, who had just operated upon him. It was even more extraordinary that he should have interfered with the wound. His account of his journey by road in the height of the rains looks rather like as if he was afraid to say he came by train, because it should have been proved that he did not. The learned Judge comments upon the evidence given by another witness produced by Fazl Ahmad. 'Maulvi Bashir-ud-din, Vakil, is guilty either of perjury or its abetment or of gross misconduct as a legal practitioner. No one would believe him that with the knowledge of forgery and incapacity in the executant he acted as a Vakil for Rahim Bibi and supported her title on the invalid forged deed. He is condemned on his own admission. I need not waste time in commenting on his evidence beyond saying that he fully deserves prosecution. His story is that he was brought to Pilibhit to fair out the sale-deed, but he refused to take part in the forgery after looking at Manzur Ahmad who was senseless.' Maulvi Bashir-ud-din undoubtedly gave the evidence to which the learned Subordinate Judge refers. He had undoubtedly previously acted for Rahim Bibi and we find (see page 70 of the respondent's book in First Appeal No. 21 of 1916) that he actually sent to Rahim Bibi a paper containing on one side a number of questions which he as her Vakil intended to ask her on examination and re-examination. On the other side he dictated the answers which she was to give to the questions which he intended to ask. We need only refer to two of these questions. One was 'what was the condition of Manzur Ahmad's senses at the time?--Answer--they were very good.--Question--up to what time did Manzur Ahmad remain in his proper senses?--Answer--he was in his senses till he breathed his last.' It thus appears that the witness was prepared to come into Court and swear that the deceased was so bad that he refused to have anything to do with the deed, and with this knowledge he told Rahim Bibi to answer his questions exactly to the contrary.

20. We have come to the conclusion that this appeal must be allowed. But to mark our strong disapproval of some of the evidence adduced on behalf of Fazl Ahmad we disallow all costs of witnesses in the Court below. The order of the Court is that the appeal is allowed, the decree of the Court below set aside and the claim of Rahim Bibi dismissed with costs in both Courts, save as mentioned above. Costs in this Court will include fees on the higher scale.

21. We direct the Receiver to prepare and bring in as soon as reasonably possible a final account with a view to his being discharged.

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