1. These are three Second Appeals Nos. 434, 435 and 758 of 1930, arising out of three cases. The pedigree of the family is as follows:
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Ali Moosi Mt. Mt. Mt. Mt.
Imran. Imran. Bint Moha- Saira Iffatun-
Sakina. madi Begam. nissa.
2. Mt. Bint Sakina was the daughter of Aliali by his second wife, and his other children were by his first wife. Mt. Bint Sakina married Ibne Hasan, who is the respondent in these second appeals. Mt. Bint Sakina died on 9th June 1925. On 25th June 1925, she executed a deed of relinquishment of her dower, which amounted to Rupees 25,000, and on 6th June 1925, she executed a deed of gift of all her immovable property, in favour of her husband, the respondent. By these two documents she disposed of all her estate. It is the deed of gift which is in question in S.A. No. 758 of 1930. The question which has been raised in Second Appeals Nos. 434; and 435 of 1930 is whether this relinquishment of her dower, which also amounts to a gift, is valid, and if so, to what extent. It has been held by the lower appellate Court that these deeds are valid to the extent of one-third. The dower debt and the immovable property comprised the whole property which was possessed by Mt. Bint Sakina. It is found by the lower appellate Court that she executed these documents under the conditions which amounted to marzulmaut, that under the Shia law the gifts are valid to the extent of one-third only. The appellants have challenged this finding on the ground that the gifts should be held under the Shia law to be altogether invalid, and the respondents have challenged the finding in cross-objection on the grounds that the conditions of marzulmaut are not fulfilled. The learned Counsel for the appellants relies on three rulings as follows: Fahidma Khanam v. Jafri Khanam (1908) 30 All 153, Amrit Bibi v. Mustafa Husain A.I.R. 1924 All 20 and Husaini Begam v. Mohammad Mehdi A.I.R. 1927 All 340.
3. All these are cases of wills and it has been laid down in the first ruling quoted that a Shia cannot make a valid bequest of all his property to one of his heirs to the exclusion of the other heirs, unless the heirs so excluded, consent to it subsequent to his death: but that a bequest of only one-third of his estate will be valid, if made to one of the heirs without the consent of the other heirs. We consider that we are not called upon to pronounce our opinion upon the validity of this particular doctrine of law because we consider that the present case is clearly distinguishable from the cases which have been dealt with in the rulings relied on by the learned Counsel for the appellants. The distinction lies in the fact that in the present case we are not dealing with a will which is in favour of one heir only. We are dealing with a gift made during marzulmaut, and the law on this point is contained in authorities other than those quoted in the rulings in question. The authorities on the question of the validity of a gift during marzulmaut by a Shia have been very ably considered in a judgment by the late Rafiq, J., in a Division Bench case of this Court reported in Kharshed Husain v. Faiyaz Husain A.I.R. 1914 All 6. It is to be noted that there was no question raised that the gift was altogether invalid. On p. 423 (of 12 A.L.J.) it is stated:
One group of eminent Shia doctors would maintain the gift in respect of the whole of the donor's estate while the other equally high in learning and authority would have it that a gift made in marzulmaut is valid to the extent of one-third only of the estate of the donor in spite o the delivery of possession prior to his death.
4. After considering the authorities at length the learned Judges came to the conclusion that under the Shia law a gift made in marzulmaut holds good to the extent of only one-third of the donor's estate in spite of dilivery of possession prior to his death. We consider that this authority is conclusive on the point, and accordingly we dismiss these appeals with costs. We now turn to consider the cross-objections. In one of these appeals, S.A. 434 of 1930, the learned lower Court dealt with the question of marzulmaut somewhat briefly and referred to his judgment in Suit No. 366 of 1928. That judgment is contained in the record of S.A. 758 of 1930. The judgment sets forth the conditions under which the doctrine of marzulmaut applies as follows:
Its chief ingredints are (1) that the illness must be the immediate cause of death; (2) there must he an apprehension of death in the mind of the donor; and (3) that physical weakness must be so great that the persons may be incapable of pursuing their ordinary avocations.
5. It is undoubted that the first two conditions are necessary for the doctrine of marzulmaut to apply. Two questions have been argued by the learned Counsel for the respondents before us. The first point which was argued was that a person suffering from 'consumption' cannot be said to act under marzulmaut. In the present case the lower appellate Court states that the donor was suffering from galloping phthisis. We were not shown any authority for the proposition that tuberculosis can never amount to marzulmaut. We are of opinion that a person suffering from tuberculosis in its final stages when he has no hope of recovery could come under the conditions of marzulmaut, although it would not necessarily follow that a person in the earlier stages of phthisis, when he may have a very good hope or ex-pectation of recovery, would come under that legal doctrine. It is a question of fact in each case as to whether the person was in such a condition that the doctrine of marzulmaut would apply. What we have to see is whether there is such a finding in the present case that the doctrine would apply. The finding of the lower appellate Court is that the doctor stated that the patient was hopelessly weak, that she could not sit up without somebody's help, and that she died four or five days after the execution of the gift, and that she died from galloping phthisis. This medical evidence of Ha-kim Bashir Ahmad was accepted by the lower appellate Court. So far as his evidence goes, it does establish that the illness was the immediate cause of death. On the point as to whether there was an apprehension of death in the mind of the donor, the lower appellate has by an apparent oversight not made any definite finding. But we find from the judgment of the learned Munsif in S.A. 434 of 1930 of the paper book, p. 11, the following finding:
Hakim Bashir Ahmad admittedly treated her last. This Hakim was for some time in the service of the late Rafique, J. He states that Mt. Sakina was not in a sound state of mind five or six days before her death, and that she was suffering from tuberculosis and was in the last stage of the illness, and that she definitely told him that she would not survive, and that she could not even sit up without the help of others.
6. We consider that the learned lower appellate Court intended to uphold this finding of the Court of first instance. In any case it is open to this Court in second appeal to come to a finding of fact on any point on which a finding is necessary and on which the lower appellate Court has omitted to come to a finding. The learned Counsel for the respondent was invited to lay be-fore us the evidence of the witness in question Hakim Bashir Ahmad to show If he could that the finding of the Munsif in regard to the evidence of this witness was incorrect, but the learned Counsel would not accept this suggestion. Accordingly we find that the second condition was fulfilled and that there was an apprehension of death in the mind of the donor. The conditions therefore for the execution of a gift in marzulmaut existed in the present case. We consider that the finding of the lower appellate Court was correct. Accordingly we dismiss the cross-objection in these three appeals with costs.