Judgement Appeal from a decree of the High Court (August 14, 1903), affirming a decree of the Subordinate Judge of Cuttack (August 20, 1900). The respondent sued for declaration of title and recovery of possession of the properties in suit, basing his claim on a deed of gift, dated May 21, 1897, executed by Moulvi Dadar Baksh in his favour. The appellants, his five sisters, contended that the deed was invalid with reference to the Mahomedan law regarding gifts made during marz-ul-maut, or death-illness. Both Courts upheld its validity as not having been executed during a death-illness, and decreed the suit. The evidence relating to the donors illness at the date of the deed of gift, and his alleged apprehension of death, is thus dealt with by the High Court. After referring to three text-books on the question, and the cases Labbi Beebee v. Bibbun Beebee (( 1874) 6 N. W. P. H. C. R.159.) and Muhammad Gukshere Khan v. Mariam Begam (( 1881) I. L. R. 3 Allah. p. 731), it recorded that there was no dispute that Dadars health failed after he suffered from albuminuria, and that his illness was sufficient to entitle him to a medical certificate, but it considered that albuminuria did not constitute a death-illness in his case. The judgment then gave a translation of a passage cited from the Fatawa-i-Shami, and proceeded "The meaning of this passage is this, that if the illness increases and death then ensues, the increase is the death-illness ; and both sides agree in this view. Now it is clear from the evidence on both sides that, although his symptoms improved on his return home, Dadar did have an increase of illness about ten days before the deed was executed; and the question arises whether that increase constituted a death-illness. Now it is clear from the evidence on both sides that, although his symptoms improved on his return home, Dadar did have an increase of illness about ten days before the deed was executed; and the question arises whether that increase constituted a death-illness. To decide this we must apply the law as stated above regarding death-illness." Having discussed the two different constructions by the parties of the passages cited from the text-books and cases mentioned above, the judgment continued — " For these reasons we agree with the remark made in Hassarat Bibi v. Golam Jaffar (3 C. W. N. 57.) that too narrow a view must not be taken of the doctrine of death-illness; and our view is in agreement with the way in which the doctrine is stated in that case, namely, 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 an apprehension of death ? and was the illness such as to incapacitate him from the pursuit of his ordinary avocations or standing up for prayers, a circum-stance which might create in the mind of the sufferer an apprehension of death ? " We have thus to decide whether the increase in the illness which began about May 12 constituted a death-illness; and we must apply the foregoing principles to that increase. The principal question, then, is whether Dadar was under apprehension of death when he executed the hibanama. If he had marked physical incapacities at the time, they did not necessarily imply that he must have been under such apprehension, but they are matters to be considered in deciding the question. " Now it is quite certain that each party has adjusted its evidence regarding that increase in his illness with reference to the above-mentioned rules of Mahomedan law. Thus the plaintiffs witnesses assert that the illness did not prevent Dadar from undertaking his necessary avocations, and the defendants witnesses assert that he was absolutely confined to his bed and was very seriously 111. Hence each partys evidence cannot be trusted much regarding its own case. But statements which favour the opposite party may be relied on ; and the best evidence is the prescription register, which was written up at the dispensary in the ordinary course of business, and is unimpeachable. Hence each partys evidence cannot be trusted much regarding its own case. But statements which favour the opposite party may be relied on ; and the best evidence is the prescription register, which was written up at the dispensary in the ordinary course of business, and is unimpeachable. That register, coupled with the deposition of Dr. Zorab, the civil surgeon, shews that Dadar was treated for fever on May 14. His illness became more serious on May 20, for Dr. Meadows, the civil surgeon, was called in and prescribed four medicines, a stomachic tonic, a febrifage, a sedative and an antithirst draught. But Dr. Zorab said in his deposition, from the above prescription I think the doctor who was treating the patient could not have thought he was to die within a short time. There is nothing in the prescription to indicate he was in a critical state. Dr. Meadows prescribed again on May 21, and only added an extra ingredient (a diaphoretic) to the stomachic tonic. He prescribed similar medicine on May 22 and 23. He was not called in again, and the nurse left about May 23, for Nural Huq, the principal witness on the defendants side, says she stayed only three or four days. Dadar seems, therefore, to have improved under this treatment, and Dr. Bhusan, who visited him twice on May 26, prescribed only Mellins Food and a sleeping draught in the evening. Next morning Dadar died. What the immediate cause of his death was is not known. No medical evidence about it has been given. Neither party has examined Dr. Keshab Chandra, who treated Dadar through-out the increase of illness till his death, nor Mrs. Anderson, the nurse. Dr. Meadows is dead. We have, therefore, only Dr. Bhusans testimony. He visited rarely, and prescribed only on the evening of May 26 ; and he did not then think that Dadar would die shortly. He says he cannot say exactly what Dadar died of. "All that is known then from the evidence is that Dadar got fever on May 12 and was much weakened by it, so that he had been most of his time reclining in the inner apartments upstairs for convenience. But there is no good evidence that he was incapable of standing up to say his prayers. The evidence on the defendants side is highly exaggerated. But there is no good evidence that he was incapable of standing up to say his prayers. The evidence on the defendants side is highly exaggerated. The symptoms did not indicate that he must have been under apprehension of death. There was nothing in the medicines prescribed to shew that he was in a critical condition, and there is no reason to suppose that Dr. Meadows in prescribing for him and in engaging a nurse had any further idea than that the fever required and would yield to careful treatment. There is no reason, then, to suppose that Dr. Meadows or any one else could have told Dadar he was in a critical state on the 21st. The albuminuria had become chronic and required rest and change. Fever is a common ailment. There was nothing, therefore, in his symptoms which should necessarily have excited in him apprehension of death. Moreover, no hurry was shewn in getting the deed registered. There was nothing, therefore, to indicate that Dadar was under apprehension of death on May 21; hence the increase of illness did not constitute a death-illness. We accordingly find that the hibanama is valid." Jardine, K.C., and Ross, for the appellants, contended that the deed of gift was invalid as having been executed by the donor during death-illness. To prove a death-illness it was not necessary to establish that the donor had apprehension of death at the time he executed the deed. Proof of this apprehension would not prove the actual existence of death-illness. It is the increase of the original illness, terminating in death, which is the decisive test in this case. Even if apprehension of death had to be proved, it can only be as an inference from surrounding circum-stances, and follows necessarily from the evidence given in this case of increase of illness before the execution of the deed, with its fatal result. All the surroundings must be considered, and it was contended that the Courts had taken an erroneous view of the rule of Mahomedan law of evidence, and had disregarded the important circumstance that death had resulted in only six days from the date of the deed, from the proved aggravation of illness on the part of the donor. Reference was made to Baillies Digest, 2nd ed. ( 1875), ch. 8, p. 552 ; Ameer Alis Mahomedan Law, vol. 1, pp. Reference was made to Baillies Digest, 2nd ed. ( 1875), ch. 8, p. 552 ; Ameer Alis Mahomedan Law, vol. 1, pp. 51, 53; and to an article in the Calcutta Law Journal, vol. 1, No. 12, p. 131—note Appendix C, which gives a full translation of the passage shortly given in Baillies Digest, as quoted from the Doorr-ul-Mookhtar, p. 246. De Gruyther, for the respondent Ahmed Baksh, relied on concurrent findings of fact as to the state of the patient and con-sequent validity of his deed of gift. The right test was applied, namely, "Was he under apprehension of death at its date? Both Courts found he was not under such apprehension, and it has not been shewn by the appellant that they were clearly wrong in so finding, or that their findings were highly improbable having regard to all the circumstances. Reference was made to Sarabai v. Rabiabai (( 1905) I. L. R. 30 Bomb. 537,551.) ; Rashid Karmalli v. Sherbanoo. (( 1907) I. L. R. 31 Bomb. 264.) Jardine, K.C., replied. The judgment of their Lordships was delivered by Lord Collins. The question in this case is whether a certain deed of gift made by one Moulvi Dadar Baksh, deceased, in favour of his son Sheikh Ahmed Baksh is invalid by reason of the Mahomedan law of marz-ul-maut relating to gifts made in death-illness. The deed was executed on May 21, 1897, and on the 27th of the same month Moulyi Dadar Baksh, the donor, died. A great number of objections to the deed were urged by the appellants (the defendants) before the Subordinate Judge, all of which were considered in great detail and overruled by him in a most elaborate judgment in favour of the respondents. That judgment was affirmed on appeal by the High Court at Fort William, and it is the concurrent judgments of these two tribunals that this Board is now called upon to overrule. The only point which the appellants have argued on this occasion was that which no doubt goes to the root of the matter, namely, whether the gift was invalid under the law of marz-ul-maut. The test which was treated as decisive of this point in both Courts was the deed of gift executed by Dadar Baksh under apprehension of death? The only point which the appellants have argued on this occasion was that which no doubt goes to the root of the matter, namely, whether the gift was invalid under the law of marz-ul-maut. The test which was treated as decisive of this point in both Courts was the deed of gift executed by Dadar Baksh under apprehension of death? This, which appears to their Lordships to be the right question, is essentially one of fact, and of the weight and credibility of evidence upon which a Court of review can never be in quite as good a position to form an opinion as the Court of first instance, and it would probably be enough to prevent this Board from interfering if it should appear that there was evidence such as might justify either view without any clear preponderance of probability. Their Lordships are, however, clearly of opinion that the reasons given both by the Subordinate Judge and by the High Court, which they will not repeat, establish a large preponderance of probability in favour of the conclusion at which they both arrived. Their Lordships will therefore humbly advise His Majesty that this appeal be dismissed. The appellants will pay the costs of the first respondent, who alone defended the appeal.