The validity of a gift under Muslim law is affected by the doctrine of marz-ul-maut, which requires proof of subjective apprehension of death in the mind of the donor, along with physical incapacities indicating the degree of illness.

JUDGMENT - The original defendants Nos. I and 2 have filed this second appeal against the concurrent findings of the Courts below that the deed of gift dated February 3, 1956, produced at Exh. D-3, was made during the death-illness and as such is not binding on the interest of the plaintiffs.

2. Certain facts are not in dispute. The donor one Abdul Kadar Beg died on February 4, 1956. Plaintiff No. 1 sahebbi is his widow, while plaintiffs Nos. 2 to 5 are his daughters. Defendants Nos. 1 and 2 are the sons of Abdul Habib Beg. Abdul Habib Beg died in 1952. Under Exh. D-3, i. e. the gift, Abdul Kadar Beg, who was aged about 80 years of age, purported to gift away the properties, being field properties, at mouza Paoni, mouza Chendkapur, mouza Yenoda and mouza Wali and house property at mouza Paoni. There is a recital that the donee were placed in possession under the deed itself. Thus considerable property was affected by this document. It is not in dispute that though this document purports to have been written or scribed on 2nd of February 1956, it was actually registered on the next day by getting Registrar to the place where Abdul Kadar Beg was residing as he was unable to go out of his house. The registration itself took place on 3rd, though Registrar came in the evening of 2nd. It is not also in dispute that on the very next day Abdul Kadar Beg breathed his last.

3. For the purpose of the present appeal and the controversy herein it is not disputed on behalf of the appellants that the letters exhibited at Exh. 80 and Exh. 81 were written by defendant No.1. Abdul Hafiz Beg, was residing in the very same house where Abdul Kadar Beg was residing and died ultimately. Those letters were written from Paoni and they intimated that Abdul Kadar Beg, who was also called Dadamiya, was suffering from double pneumonia and he was being given injections worth Rs. 8 by the Government doctor; that on Wednesday and Thursday, i.e. just two days prior, his condition was extremely bad and further that he was weeping thinking about the lives of others. It is stated therein that some doctor's treatment is being continued. Defendant No.1 has categorically admitted in his evidence given as D. W. 1 that the contents of these letters are all correct.

4. The controversy, however, raised in the present appeal as is submitted on behalf of the appellants is twofold. According to the learned counsel Mr. Ghate, the Courts below have not properly applied the test of the doctrine of marz-ul-maut, i. e. the death illness, as is understood by the Muslim Law and thus there is an error of law in appreciating the respective cases. Alternatively, it is submitted that there is no specific issue of marz-ul-maut framed and that has vitiated the trial.

5. The second submission has clearly no merit for the matter has been understood, tried and decided on that footing. Turning to the first submission it appears that the Courts have taken into account the evidence led by the parties and recorded findings which are really not open to challenge in this second appeal. These findings are to the effect that Abdul Kadar Beg was seriously ill at least from February I, 1956 and was apprehensive of his death because of his illness. It is further found that the document of gift was executed and registered by him under such subjective condition satisfying all the requirements of marz-ul-maut.

6. As Mr. Ghate the learned counsel for the appellant made some complaint about the appreciation of evidence for reaching these conclusions. I may briefly indicate that such a complaint is clearly not warranted. The evidence of P. W. 1 Sahebbi who is the widow of Abdul Kadar Beg and P.W. 2 Batulbi daughter of Abdul Kadar Beg who were present in the very same house is to the effect that his health was not very good since about It months; that he was experiencing aching in front and back portions of his chest and was under some treatment; and that two weeks before his death he expressed a desire t

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