1. This appeal, which has been preferred by the defendant, is directed against the judgment of the learned Second Additional Subordinate Judge, Tiruchirapalli, in O. S. 160 of 1962.
2. The suit properties originally belonged to one Abdul Sathar, who died on 17-12-1960, leaving him surviving his mother Gujar Bi alias Hamida Bi (the plaintiff-respondent) and his wife Bhoona Bi (the defendant-appellant). Under Ex. B-1 dated 13-11-1953, that is to say, about 7 years before his death, Abdul Sathar gifted items 1 and 2 of the plaint A schedule properties in favor of his wife. Under Ex. B-2, dated 21-10-1959, that is to say, about one year and two months before his death, Abdul Sathar gifted items 3 and 4 of the plaint A schedule and other properties in favor of his wife. The donee accepted the gifts, took delivery of possession of the gifted properties, collected rents therefrom and paid tax therefor. After the death of Abdul Sathar, however, his mother instituted a suit in forma pauper's for partition and separate possession of her 3/4th share in the properties on the basis that Abdul Sathar died possessed of these properties, without making any reference in the plaint to the gifts in favor of his wife.
3. The defendant in her answer pleaded, inter alia, that the gifts under Exs. B-1 and B-2 were valid and had been acted upon, and that as Abdul Sathar did not die possessed of the properties gifted to her or of the other properties mentioned in the plaint A schedule, the plaintiff was disentitled to any relief.
4. The plaintiff filed a reply statement, in which she made a reference for the first time to the two gift deeds and attacked the same as sham, nominal and colorable and vitiated by undue influence, fraud and coercion.
5. The defendant in her additional written statement denied that the gift deeds were sham and nominal or vitiated by undue influence, fraud or coercion.
6. As regards items 1 and 2 of the plaint A schedule, the learned Subordinate Judge held that they had been validly gifted in favor of his wife under Ex. B-1, and that the plaintiff was not entitled to any share therein. With reference to the gift of items 3 and 4 of the plaint A schedule under Ex. B-2, the trial court, after holding that the execution of the gift has been duly proved and that it was not vitiated by undue influence, coercion or fraud, proceeded to hold that Abdul Sathar was suffering from marz-ul-maut at the time he executed Ex. B-2, and consequently it was not valid under Mahomedan Law, and that the plaintiff would be entitled to 3/4th share in items 3 and 4 of the plaint A schedule. As regards the other items claimed in the plaint, the learned Subordinate Judge held that Abdul Sathar did not die possessed thereof, and the plaintiff was not, therefore, entitled to any share therein. Consequently, the plaintiff was granted a preliminary decree with costs for partition of her 3/4th share in respect of items 3 and 4 of the plaint A schedule and to past profits from 17-12-1960 and to future profits to be ascertained in a separate enquiry. The decree further directed that the court-fee due to the Government should be paid by the plaintiff.
7. The plaintiff has not preferred any appeal against the dismissal of her claim in respect of properties other than items 3 and 4 of the plaint A schedule.
8. The defendant in her appeal attacks the finding of the trial court regarding marz-ul-maut on the ground that the plea of marz-ul-maut was never raised by the plaintiff and the finding in that behalf was not warranted by the evidence on record.
9. The first question that arises for determination is whether the plea that Ex. B-2 was vitiated by marz-ul-maut was raised by the plaintiff in the pleadings, and if not whether the trial court was right in pronouncing the gift deed invalid upon a ground, which was never pleaded. An examination of the entire plaint discloses no reference whatsoever to the execution of Ex. B-2.
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(After discussing the facts His Lordship proceeded.)
A reference to paragraphs 14 and 15 of the judgment of the trial court shows that not only did the learned Subordinate Judge allow the plaintiff to raise this new-found plea in the course of the arguments, but also accepted it on the erroneous impression that the main point that arose for consideration in the suit was whether Ex. B-2 was vitiated by marz-ul-maut. As observed by the Supreme Court in Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd., : --
"The object of a pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. The plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading; if the particulars stated in the pleading are not sufficient and specific, the court should, before proceeding with the trial of the suit, insist upon the particulars, which give adequate notice to the other side of the case intended to be set up."
Though, no doubt, the case cited supra related to defective pleadings in respect of a plea of undue influence, the rule stated therein and embodied in Order 6, Rule 4, Civil Procedure Code is equally applicable to the facts of this case. Unlike in that case, even a vague or general plea has not been formulated relating to marz-ul-maut either in the plaint or in the series of replication statement that the plaintiff has been filing from time to time. This is the case of a plaint, which suffers not from a lack of particulars, but from an utter lack of the plea, the wrongful acceptance of which has been made the very basis of the judgment of the trial court.
10. Learned counsel for the respondent would, however, contend that though there is no foundation in the pleadings relating to the invalidity of the gift on the ground of marz-ul-maut, still it is open to the court to grant relief to the plaintiff on the basis of an admission made by the defendant herself from the witness box. In support of this proposition, reliance is placed upon a ruling of the Supreme Court in Srinivasaram Kumar v. Mahabir Prasad, . That was a case in which the plaintiff brought a suit for specific performance of an agreement to sell a house alleging that he had paid Rs. 30,000/-, towards the price and had been put in possession in part performance of the contract, but the defendant pleaded that the amount of Rs. 30,000/- was received as a loan and the plaintiff was put in possession only to facilitate payment of interest, and the court found that the defendant's plea was true. The Supreme Court held that a decree could be passed in favor of the plaintiff for recovery of the sum of Rs. 30,000/- and interest remaining due under the agreement of loan pleaded by the defendant, even though the plaintiff had not set up such a case, and it was even inconsistent with the allegations in the plaint. While granting this relief, their Lordships of the Supreme court observed as follows at page 282--
"The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had on opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement, but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot be possibly regarded with surprise by the latter, and no question of adducing evidence of these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit."
It appears clear that there is no analogy between the case cited supra and the present case. The defendant never admitted in her written statement that her husband was suffering from marz-ul-maut at the time he executed Ex. B-2, nor did she put forward that plea as an answer to the claim which the plaintiff made in the suit. A demand of the plaintiff for negativing the gift deed upon a ground neither raised in the plaint not admitted in the written statement must have come as a great surprise to the defendant, who had never been called upon to meet such a plea and never had any opportunity to meet it. The admission alleged to have been made by the defendant was made, not in her written statement, but elicited under pressure of cross-examination, and in a context entirely unconnected with the plea raised for the first time in argument to the effect that Ex. B-2 was invalid because it was vitiated by marz-ul-maut. A perusal of the deposition of the defendant (D.W. 3) shows that she was eager to make lout that Ex. B-2 was not obtained by coercion, fraud or misrepresentation; whereas the cross-examining counsel was equally eager to frustrate that attempt. The defendant deposed that her husband was in bed for only two days prior to his death and that at the time of the gift deed which had been executed 14 months before his death, her husband was in a sound disposing state of mind. It is in this context that the following admission was elicited from her "I requested him (my husband) to give a gift prior to the date of Ex. B-2. He executed Ex. B-2 in the apprehension of his death". There is nothing in this statement to indicate that she either admitted that at the time of the execution of Ex. B-2 her husband was suffering from death-illness or that Ex. B-2 was executed under pressure of a sense of imminent death. We are not prepared to tear the statement of the defendants out of their legitimate context and give them a meaning which she never intended and which the plaintiff's counsel subsequently wished to give in the light of his new-found plea. As has been observed by a Division Bench of the Madras High Court in Nagayasami v. Kochadai, , to which one of us (Ramamurti J.), was a party--
"It has to be recognized that a party cannot be awarded relief on a basis not pleaded by him and on which there is no issue, merely taking advantage of some statements in the pleadings or in the evidence made or given for a different purpose and with reference to a different issue. Such deviation from the pleading is permissible, very rarely and only in exceptional circumstances, if it can be postulated that the other side has unambiguously and unequivocally admitted completely the factual or the legal basis on which relief could be moulded. In other words, it is the clear admission of the opposite party in the pleadings that confers jurisdiction upon the court to award relief on a basis different from the one covered by the issues on which the parties went to trial". In the absence of any plea and in the absence of any unequivocal admission from the witness box, the trial court ought not to have either permitted the plaintiff to raise the plea in question or accepted it, when the evidence on record hardly justifies its acceptance.
11. Assuming that the plea can be permitted to be raised, we shall next consider whether there is any evidence in support of it. It is settled law that a gift made by a Mahomedan during marz-ul-maut cannot take effect if made in favor of an heir unless the other heirs consent thereto after the donor's death. Marz-ul-maut is a malady which induces in the person suffering from it an apprehension of death and which eventually results in his death. As observed at page 57 in Syed Ameer Ali's Mahommedan Law, 4th Edn:--
"The policy of the law with respect to the dispositions of a person stricken by a mortal malady proceeds on the assumption that dealings with property, especially 'acts of bounty', in such circumstances might not improbably spring from a wish to deprive the lawful heirs of their legal rights, and that such dealings should, therefore, b restricted by those rights-and not be allowed to take effect beyond the limit of testamentary dispositions."
At page 134 of Mullah's Principles of Mahomedan Law, 16th Edn., the ingredients of marz-ul-maut have been stated as follows--
"To constitute a malady, marz-ul-maut, there must be (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 ordinary avocations. (Sarabai v. Rabiabai, 30 Bom 537, 551), although his attending his ordinary avocations does not conclusively prove that he was not suffering from marz-ul-maut".
In Ibrahim Goolam Ariff v. Saiboo, (1907) 34 Ind App. 167, 177, the Privy Council ruled that a gift must be deemed to be made during marz-ul-maut, if it was made under pressure of the sense of imminence of death...................................................................... ..
(His Lordship discussed the evidence in the case and proceeded):
It is true that D.W. 3 admitted that her husband executed Ex. B-2 in the apprehension of his death. We do not think that this admission would make out that he was suffering from marz-ul-maut at that time. any sensible and prudent man would carry with him a sense of mortality and enter into secular transactions on the basis that death might strike him any moment. But this wholesome sense of the evanescence of life, which if we interpret D.W. 3's evidence properly, her husband must have had at the time of Ex. B-2, falls far short of the conditions of marz-ul-maut, to constitute which there must be, first, a malady which in all probability is likely to issue fatally and, second, a conscious apprehension in the mind of the patient of the imminence of death. We are satisfied upon the evidence of D. Ws. 1 to 3 and the admissions made by P.W. 1 (the plaintiff) that at the time Abdul Sathar executed Ex. B-2, he was not suffering from marz-ul-maut, and that consequently, the gift under Ex. B-2 is perfectly valid in the eye of the Mahomedan law.
12. In the result, we reverse the judgment and decree of the court below, allow the appeal, and dismiss the plaintiff's suit with costs throughout. The plaintiff will pay the court-fee due to the Government on the plaint.
13. Appeal allowed.