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.

MAHARAJAN, J. :- 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-l 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 favour 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 favour 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 pauperis 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 favour 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 colourable 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 favour of his wife under Ex. B-l, 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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