Judgement Appeal from two decrees of the Chief Court of Lower Burma (May 30, 1904), affirming two decrees (July 22, 1903) of Chitty J., sitting on the original side of the said Court, and dismissing the appellants suits. The first suit was brought by Ibrahim Goolam Ariff, as executor of the will of his father, Goolam Ariff, against his two surviving widows and five minor children, and also against the Goolam Ariff Estate Company, to set aside seven deeds of gift, dated April 2, 1902, by the deceased to his widows and minor children, the first seven respondents, and also to set aside a deed of conveyance and assignment, dated May 3, 1902, by which the deceased, the two widows, and the five minor children, Hashim Cassim Patail being their guardian, assigned certain property (shares in which had been granted by the deeds of gift aforesaid) to the said company in return for shares in the same. The third suit (the second of the three suits not being the subject of this appeal) was instituted by the same plaintiff in the same capacity of executor against three minor sons of the deceased (the third, fourth, and fifth respondents in the first suit) to set aside four deeds of gift, dated April 2, 1902, by which the deceased conveyed undivided shares in certain lands and buildings in Rangoon, including a certain freehold house and land, No. 47, Merchant Street, Rangoon, with the furniture therein, in certain proportions set out in the deeds aforesaid to his said three minor sons. The appellant alleged in his plaint in the first suit, so far as is now material, that the conveyances purporting to be effected by the seven instruments of April 2, 1902, and by the instrument of May 8, 1902, were pretended conveyances, whereby Goolam Ariff attempted to defeat the provisions of the Mahomedan law of succession, and were void and of no effect, and that there fore all the properties to which they related were divisible among the heirs of the deceased according to Mahomedan law. It was also alleged that the said instruments were invalid in that— (a) At the time of their execution Goolam Ariff, who died on May 16, 1902, was in his death-illness, and therefore the gifts purporting to be made by the said instruments were death-bed gifts, and as such invalid by Mahomedan law ; (b) The instrument of May 8, 1902, was invalid, as being made without consideration. Chitty J., in his judgment, said that the appellant had based his objections to the validity of the whole scheme of gifts and transfers as having been made for the purpose of defeating the Mahomedan law on three grounds— (a) That the gifts are void as being death-bed gifts; (b) That none of the gifts were completed by delivery ; (c) That such gifts contravene the provisions of Mahomedan law, as being “hiba-bil-mushaa," or gifts of joint undivided pro perties, which are partible in their, nature, and which are in some cases invalid by Hanafi law. Before dealing with these in detail the learned judge held that the law applicable to the case was the Mahomedan law as to gifts. As to (a) the learned judge referred to various ancient and modern authorities on Mahomedan law as to the legal signification and essential elements of " death-illness," and in particular cited the following passage from the judgment of the High Court of Calcutta in Hassarat Bibi v. Golam Jaffar (( 1898) 3 Calc. W. N. 57.) " A careful study of the principles enunciated in the most authoritative Hanafi works would shew that in determining whether the donation of a person suffering from a mortal illness comes within the doctrine applicable to marz-ul-mout (or death-bed) gifts, several questions have to be considered, namely (1.) Was the donor suffering at the time of the gift from a disease which was the immediate cause of his death ? (2.) Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby, or to engender in him the apprehension of death? (3.) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations or standing up for prayers—a circumstance which might create in the mind of the sufferer an apprehension of death ? (3.) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations or standing up for prayers—a circumstance which might create in the mind of the sufferer an apprehension of death ? (4.) Had the illness continued for such a length of tune as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady? The limit of one year mentioned in the Jaw books does not in our opinion lay down any hard and fast rule regarding the character of the illness; it only indicates that a continuance of the malady for that length of time may be regarded as taking it out of the category of a mortal illness." Taking this as the basis of investigation, the learned judge examined the evidence on this point. He rejected most of the evidence of the non-medical witnesses in regard to Goolam Ariff’s health on the ground that many of them were obviously biassed, and he relied chiefly on the medical evidence. As to this the learned judge said, " The evidence leaves no doubt whatever on my mind that death was sudden and unexpected"; and also, " Taking the whole evidence on the question of death-illness into consideration, I am of opinion that it has not been shewn that Goolam Ariff was suffering at the time of making these gifts, or any of them, from a disease which was the immediate cause of his death; or that he was suffering from a disease of such a nature as to induce in him a belief that death would be caused thereby. His illness was not until after the date of the gifts such as to incapacitate him from the pursuit of his ordinary avocations, or from moving about the town to transact such business as he might have on hand. For these reasons I hold that none of the gifts can be said to have been made while Goolam Ariff was suffering from his death-illness, and that there is no reason to set them aside on that account." He believed death was caused suddenly by the bursting of a blood-vessel, and probably of one in the stomach, but there was no evidence to shew to what that bursting was due. As to (b) and (c) (invalid delivery and mushaa), the learned judge said that they could be conveniently taken together, but as the gifts comprised two classes of property, movable and immovable, which stand on a different footing, they should be considered separately. He stated the rules of Mahomedan law as to mushaa to be (1.) The gift of mushaa in what does admit of partition is not lawful. (2.) Such a gift is not void, but invalid, and even if invalid, possession taken under it transfers the property see Mumtaz Ahmad v. Zubaida Jan. (L. R 16 Ind. Ap. 205.) (3.) Actual possession not necessary; the authority to take possession is sufficient see Ameer Ali, 1, 75. (4.) No actual transfer of posses sion is necessary in the case of a house given by a husband to a wife, or property given by a father to his minor child see Ameeroonissa Khatoon v. Abedoonissa Khatoon (( 1875) L. R. 2 Ind. Ap. 87.); Mohinudin v. Manchershah. (( 1882) I. L. R. 6 Bomb. 650.) As to the movable property—the shares in the public companies—the learned judge said it was suggested that Goolam Ariff might have divided up the shares among the donees ; but as a fact he did not do so, but gave each so many 2000th parts in each and every share, but as a share in a company is property not capable of partition, the shares were therefore not subject to the doctrine of mushaa. In regard to their valid transfer and the completeness of their delivery, he said that Goolam Ariff indorsed over all the share certificates to the Goolam Ariff Estate Company and sent the deeds and certificates for registration to the offices of the several companies which were not situate in his own office; and that, having done this, he had done all that was incumbent on him to do. Further, that in three of the companies, viz., the Surati Bazaar Company, the Kimmendine Company, and the Iron Bazaar Company, the transfers were accepted by the directors and duly registered, in two others, the Poozoodaung and Bogalay Companies, the directors indorsed the share certificates with the fact of transfer and thereby accepted and allowed the transfers, and in the one remaining company the directors did not refuse to register the transfer, but only omitted to do so. Under these circumstances he held that Goolam Ariff, if he were alive, could compel the directors of the last three companies to rectify their registers and insert the name of the Goolam Ariff Estate Company as holder of the shares, and, though it had been argued that no formal application for transfer had been made to the several directors as provided by the articles of association of their respective companies, yet the evidence shewed clearly that no such application is usually made, but that the course generally folio wed-wasthat adopted by Goolam Ariff. The learned judge then dealt with the immovable property. He said that, though it might be argued with reason that the doctrine of mushaa applied, as immovable properties are capable of partition, yet " the doctrine relating to the invalidity of gifts of mushaa is wholly unadapted to a progressive state of society and ought to be confined within the strictest rules" Mahomed Mumtaz Ahmad v. Zubaida Jan. (L.R. 16 Ind. Ap. at p. 215.) "Applying those rules as set out in the previous paragraph, there would seem to be no question that the gifts to the minor children on April 2, 1902, were valid and that Goolam Ariff held as trustee for them, no actual transfer of possession being necessary. The minors property vested in Hashim Cassim Patail (their guardian), who was appointed by order of the Court, and the latter was therefore competent to convey it, as in fact he did, to the Goolam Ariff Estate Company. The gifts to the two widows stood on a similar footing. In any case the joint conveyance on May 3, 1902, by all parties, including Goolam Ariff himself, conveyed the property to that company, which, in law, is one person, and therefore the doctrine of mushaa does not apply. As to both classes of property there was complete transfer of possession, and therefore the doctrine had no application on this ground also. In the third suit the learned judge remarked, as to the deeds of gift the subject thereof, that his rulings in the first suit applied with equal force to them. As to both classes of property there was complete transfer of possession, and therefore the doctrine had no application on this ground also. In the third suit the learned judge remarked, as to the deeds of gift the subject thereof, that his rulings in the first suit applied with equal force to them. As to the house, the subject of one of them, even more formal possession had been given than was the case with the shares of immovable properties in the first suit; for rents were actually collected on behalf of the infants, and Goolam Ariff had agreed to become a tenant at a fixed rent. In appeal the Chief Court held that the Court below was right in holding that the validity of the gifts in question must be determined by Mahomedan law only. As to the question of fact whether Goolam Ariff was in his death-illness when he made the gifts (there being no question as to his mental capacity), the Court held that the learned judge was correct in basing his decision mainly on the medical evidence, and, as he had had the advantage of seeing and hearing the witnesses, they adopted without further question the view he had taken of the value of the testimony of the non-medical witnesses. Having regard to the medical evidence and the actual doings and movements of Goolam Ariff, which were beyond dispute, they held that Goolam Ariff was not in his death-illness as defined by the Mahomedan law at the time of the execution of the instruments of April 2, 1902, and May 8, 1902. Having regard to the medical evidence and the actual doings and movements of Goolam Ariff, which were beyond dispute, they held that Goolam Ariff was not in his death-illness as defined by the Mahomedan law at the time of the execution of the instruments of April 2, 1902, and May 8, 1902. After reviewing the authorities on marz-ul-mout (or death-bed illness), Bigge J., who delivered the principal judgment, said " So I would put it that the term applies to a gift made under the pressure of the sense of the imminence of death." And further he said " As with the evidence of the other doctors, marz-ul-mout is not in any way established by the evidence of Colonel Frenchman and Colonel Davis, and I think that the learned judge, after an exhaustive review of the medical and other evidence, came to a very sound and satisfactory conclusion on the point." The Chief Justice, after observing, "It is not disputed that a Mahomedan of the Sunni sect, as was Goolam Ariff, may make gifts of all or any part of his property during his lifetime, even though the effect may be to defeat the Mahomedan law of succession," said that, in view of the conflict of testimony and of the nature of the evidence of friends and relations as to the health of Goolam Ariff, " reliance must be placed exclusively on the medical evidence on this point," and, added the Chief Justice, " There is abundance of it.....I agree that when he executed the deeds of gift Goolam Ariff was not under the apprehension that his sickness would have a fatal issue. The doctors who examined and attended him did not expect that his illness would terminate fatally.....As a matter of fact, as has been found by the Court of first instance, it is not proved that Goolam Ariff died from any of his diseases. If he did not die from them, but from the bursting of a blood -vessel which had not been foreseen or expected, it does not seem possible to hold that he was in his death-illness when he executed the deeds of gift. Whichever test may be applied, I concur in holding that the gifts were not invalid because they were made when the donor was in his death-illness. Whichever test may be applied, I concur in holding that the gifts were not invalid because they were made when the donor was in his death-illness. I think it is clear that they were not so made." With regard to delivery of possession, the Court held that this was one of the exceptions to the ordinary rule of Mahomedan law in which delivery of possession was not necessary in that it was a gift by husband and father to wives and children. It referred to Ameeroonissa Khatoon v. Abedoonissa Khatoon. (L. R. 2 Ind. Ap. 87.) On the question of the alleged invalidity of the gifts by reason of the doctrine of mushaa, both learned judges pointed out that the tendency of judicial decisions has been to restrict the application of this doctrine within the narrowest limits. They referred especially to Mumtaz Ahmad v, Zubaida Jan (L. R. 16 Ind. Ap. 205.), citing the following passage from their Lordships judgment in that case " The authorities referred to shew that possession taken under an invalid gift of musha transfers the property according to the doctrines of both the Shia and the Sunni schools. The doctrine relating to the invalidity of gifts of musha is wholly un-adapted to a progressive state of society and ought to be confined within the strictest rules." They also described the rule as being " that the gift of an undivided part in property capable of partition is invalid"; but both judges held that the estate, regarded as a whole, was not capable of division, the Chief Justice observing " The shares in companies taken together were incapable of division, and so I think was the immovable property, even if it be held that any individual house could be divided, which seems to me open to question." As to the intention of the deceased, he remarked " The subject-matter of the gifts in the present cases consisted of undivided parts of a large number of shares in six companies, and of nineteen pieces of land and the buildings standing thereon. The wish of the donor was not to give to each of the donees property of a certain value. If that had been his desire he could have given a definite number of shares to one, specific immovable property to another, and so on. The wish of the donor was not to give to each of the donees property of a certain value. If that had been his desire he could have given a definite number of shares to one, specific immovable property to another, and so on. But what he desired to do was to give to each of the donees a specific share in his whole estate (or the greater part of it)." Hence both judges held that the doctrine of mushaa was not applicable to this property, it being impartible or indivisible; but they held, further, that even if the property were capable of a partition, and that the doctrine did apply, it ceased to be applicable either where transfer of possession had taken place or where the gift was of such a nature that delivery of possession was not necessary. C. M. Bailhache and H. G. Snowdon, for the appellant, contended that the deeds in suit of April 2 and May 3, 1902, were in effect death-bed gifts, and therefore invalid by Mahomedan law as an attempt to defeat its provisions as to succession. The evidence adduced by him shewed that the diseases of which Goolam Ariff died on May 16 were oppressing him at the dates of the deeds to an extent which brought his mind under the sense of approaching death, and induced him to make gifts which were of a testamentary character. The intention to give to his wives and children was expressed for the first time in March and speedily carried into effect. The medical evidence ought not to be regarded to the exclusion of the evidence of acts and of members of his family and others surrounding him. Even the medical evidence was to the effect that his case was serious, qualified by the statement that it was not imminently fatal. The surrounding facts shewed that he was himself rightly apprehensive of approaching death. It was contended that the Courts below had attached too much importance to the statements as to death being unexpectedly speedy and the doubts as to the extreme gravity of the case. Further, the gifts were not completed by delivery of possession, to effect which some symbolical act indicating change of possession was necessary. It was contended that the Courts below had attached too much importance to the statements as to death being unexpectedly speedy and the doubts as to the extreme gravity of the case. Further, the gifts were not completed by delivery of possession, to effect which some symbolical act indicating change of possession was necessary. They were not intended to take effect till after the donors death; at least, there was no evidence of any act which unequivocally denoted to the contrary see Ameer Alis Mahomedan Law ( 1904 ed.), pp. 68, 66 ; Amina Bibi v. Khatija Bibi. (( 1864) 1 Bomb. H. C. 157.) Under such circumstances the gifts were neither bona fide nor completed. They were testamentary dispositions, which required the consent of the other heirs in order to make them completely valid see Ameer AH, vol. 1, pp. 361, 468 (3rd ed.); Ameeroonissa Khatoon v. Abedoonissa Khatoon. (L. R. 2 Ind. Ap. 87, 99.) Lastly, the gifts were invalid, being in contravention of the Mahomedan law of mushaa. They were gifts of undivided shares in property which was capable of division, and which was not actually and physically partitioned, the gifts, therefore, not being followed by possession. On this subject they referred to the case already cited in L. E. 2 Ind. Ap. 87, and to Mumtaz Ahmad v. Zubaida Jan (L. R. 16 Ind. Ap. 205.); Emnabai v. Hajirabai (( 1888) I. L. R. 13 Bomb. 352.) ; Ameer Ali, pp. 54, 55. Sir R. Finlay, K.C., Jardine, K.C., and J. W. McCarthy, for the respondents other than Mirian Beebee, the second widow of Goolam Ariff, contended that there were concurrent findings of fact by the Courts below to the effect that Goolam Ariff was not in his death-bed illness, that is, not suffering from the illness which caused his death at the dates of his deeds of gift; and that he was not at that time apprehensive of death. The Courts were justified in relying on the medical evidence and disregarding any vague and indefinite fear of death as reasonable ground for invalidating the gifts. They referred to Sir E. Wilsons Digest ( 1903 ed.), p. 332, art. 284, expl. 1 ; Baillies Digest of Mahomedan Law (2nd ed. 1875), bk. 8, c. 8, of gifts by the sick, pp. 551, 552; Macnaghtens Mahomedan Law, c. 5, p. 51, para. They referred to Sir E. Wilsons Digest ( 1903 ed.), p. 332, art. 284, expl. 1 ; Baillies Digest of Mahomedan Law (2nd ed. 1875), bk. 8, c. 8, of gifts by the sick, pp. 551, 552; Macnaghtens Mahomedan Law, c. 5, p. 51, para. 11; Ameer Alis Mahomedan Law, vol. 1 (3rd ed.),pp. 24,26,and c. 18, pp. 469-72 ; Muhammad Gulshere Khan v. Mariam Begam (( 1881) I. L. R. 3 Allah. 731.) ; Labbi Beebee v. Bibbun Beebee (( 1874) 6 Allah. H. C. 159.); Hassarat Bibi v. Golam Jaffar (3 Calc. W. N. 57.) ; Enaet Hossein v. Kureemoonissa(( 1865) 3 Suth. W. R. 40.) ; Fatima Bibi v. Ahmad Baksh.(( 1903) I. L. R. 31 Calc. 319.) As to delivery of possession, in the first (place actual delivery was not necessary, the gifts being by a husband and father to his wives and minor children; in the second place delivery of possession was made so far as the nature of the property admitted—authority to take possession was given by the donor, who declared in the deeds that he had given possession. He did all that was necessary under the circumstances to divest himself of the property and to vest it in the donees see Amina v. Khatija Bibi (1 Bomb. H. C. 157.); Ebrahimbhai Rahimbhai v. Fulbai. (( 1902) I. L. R. 26 Bomb. 577.) With regard to the doctrine of mushaa relied on by the other side, it was submitted that it was inapplicable. It does not apply where the property is indivisible, or where possession has been given, The doctrine must be strictly defined, and it cannot be extended by implication, so as in all cases to prohibit gifts of undivided shares where the property is divisible. Here there were shares in a company and buildings on plots the subject of gift, and invalidity of gift ought not to be declared in virtue of a rule of law which was obsolete so far as it was inapplicable to modern life. Reference was made to Muhammad Mumtaz Ahmad v. Zubaida Jan (L. R. 16 Ind. Ap. Here there were shares in a company and buildings on plots the subject of gift, and invalidity of gift ought not to be declared in virtue of a rule of law which was obsolete so far as it was inapplicable to modern life. Reference was made to Muhammad Mumtaz Ahmad v. Zubaida Jan (L. R. 16 Ind. Ap. 205, 215.), in which judgment, it was submitted, a correct and applicable summary of the law of mushaa was given, and it was held that a declaration by a donor of his having given possession binds all who claim under him Mullick Abdool Guffoor v. Muleka (( 1884) I. L. R. 10 Calc. 1112, 1122.); Ameer Ali (3rd ed.), c. 1, pp. 49, 50; Baillie, pp. 522, 524; Sir E. Wilsons Mahomedan Law, p. 351, ss. 308, 309, 311 ; Ameeroonissa Khatoon v. Abedoonissa Khatoon (L. R. 2 Ind. Ap. 87, 104, 105.) ; Jiwan Baksh v. Imtiaz Begam. (( 1878) I. L. R. 2 Allah. 93.) As to the effect of there having been concurrent findings on all material questions of fact, reference was made to Allen v. Quebec Warehouse Co. (( 1886) 12 App. Cas. 101.); Ramanugra Narain Singh v. Chowdhry Hanuman Sahai. (( 1902) L. R. 30 Ind. Ap. 41.) Bailhache replied. The judgment of their Lordships was delivered by LORD ROBERTSON. The questions raised by this appeal relate to the succession of Goolam Ariff, a wealthy Mahomedan resident of Rangoon, who died on May 16, 1902. He left a will dated April 19, 1902, by which he bequeathed his property to his heirs according to Mahomedan law. The controversy between the parties is concerned with the validity of certain deeds of gift, dated April 2, 1902, by which he conveyed to certain of his minor children and wives a certain number of undivided 2000th shares in certain valuable properties. These deeds are attacked by the executor of the will on two main grounds, the first relating to the physical condition of the deceased at the date of execution, the second founded on the law of mushaa, which is said to forbid them. These deeds are attacked by the executor of the will on two main grounds, the first relating to the physical condition of the deceased at the date of execution, the second founded on the law of mushaa, which is said to forbid them. (The attack on the deeds as " colourable " so entirely failed that it is unnecessary to do more than state that it was made.) The first of these is a pure question of fact; the two Courts have concurred ; and each judgment is supported by careful and elaborate reasoning. The law applicable is not in controversy; the invalidity alleged arises where the gift is made under pressure of the sense of the imminence of death. The difficulty is in applying this to the subtle and conjectural problem of the mental condition of the testator in each case. It would be inappropriate that their Lordships, in reviewing concurrent judgments, should rediscuss the evidence in detail. Goolam Ariff was an elderly man, who had not led a careful life; he suffered, and knew that he suffered, from degeneration of the arteries and of the liver, and he had been sharply ill. His life, therefore, was an old and a bad one. It is highly probable that the execution of the disputed deeds was suggested by his realizing the prudence of setting his house in order, but this is the motive of all wills, and especially of the wills of the old and ailing. Having examined the evidence, their Lordships consider that the conclusion of the Courts was sound. The other disputed question is of a very different legal quality. The property which the deceased had to dispose of consisted of freehold land in Rangoon and shares in six companies. Their Lordships assume the law of mushaa to apply to the succession of Mahomedans who reside in Rangoon; but the serious question is whether it applies to property of the nature described. What was done by Goolam Ariff was this (notionally) divided the property to be dealt with into 2000 shares; he kept to himself 1150 shares, and the remaining 850 he distributed among the persons to be benefited, giving 200 shares apiece to three of them, 100 shares apiece to two of them, and twenty-five shares apiece to two of them. What was done by Goolam Ariff was this (notionally) divided the property to be dealt with into 2000 shares; he kept to himself 1150 shares, and the remaining 850 he distributed among the persons to be benefited, giving 200 shares apiece to three of them, 100 shares apiece to two of them, and twenty-five shares apiece to two of them. Now it is said that this gift was void, as being contrary to the doctrine of mushaa. In the first place, even if the duty of the Courts were to construct a prohibition of gifts of undivided shares of what is divisible, which should be applicable to the conditions of modern life, it would seem impossible in the case of the shares, and extremely difficult in the case of freehold property in a town, to carry it out. But the attitude of the law towards this doctrine of mushaa does not involve any such constructive application of the doctrine. It was laid down in the Privy Council ease of Mumtaz Ahmad v. Zubaida Jan(L. R. 16 Ind. Ap. 207, at p. 215.) that " The doctrine relating to the invalidity of gifts of mushaa is wholly un-adapted to a progressive state of society, and ought to be confined within the strictest rules." Their Lordships concur in the conclusion arrived at below, that it would be inconsistent with that decision to apply a doctrine, which in its origin applied to very different subjects of property, to shares in companies and freehold property in a great commercial town. The argument of the appellant was not that the law of mushaa did in fact embrace (in the sense of having been applied to) such property, but that, if the same aspect of life and things were logically applied, it involved the invalidity of the gifts in dispute. But this is not the true criterion. Their Lordships will humbly advise His Majesty that the appeal ought to be dismissed. The appellant will pay the costs of the appeal.