JUDGMENT : 1. This appeal arises out of a suit in which the plaintiffs sought to have a deed of gift cancelled and prayed for a decree for possession of certain shares in immovable property. The plaintiff claimed that she as a daughter of one Haji Muhammad Salim, who is dead; that the deceased made or was induced to make a certain deed of gift shortly before his death, which she contended was void under the Mahomedan law of maraz-ul-maut, and that consequently she was entitled to her share of her father's property as one of his heirs under the Mahomedan law. The question to be decided is whether or not the deed of gift mentioned above was or was not void as having been made when the donor was suffering from his death illness. If we are in favour of the plaintiff on this point it will not be necessary to consider whether the gift was obtained by undue influence or whether any condition binding on the defendant was attached thereto. 2. Haji Muhammad Salim was a pleader who practised for a considerable period at Azamgarh in these provinces. He seems to have been a man of some position, to have belonged to a respectable family, and to have been successful in his profession. He had twice made pilgrimages to Mecca. There cannot be the smallest, doubt that he died of Bright's disease. It is also clearly shown by the evidence that he suffered from this disease for several years prior to his death. The attacks in previous years were sufficient to make him for the time being give up his practice but he recovered and resumed his practice. Some time in the summer of 1908 he had a great attack. He went to Lucknow in July of the year and placed himself under the treatment of Dr. Abdur Rahim. He stayed there for something over two months when he left and came to Allahabad and placed himself under the treatment of Dr. S.P. Roy. On 14th December 1908, he left Allahabad and returned to his home, a place called Phariha, in the Azamgarh District. He died on 14th February 1909. The document in question bears date 26th December 1908, but the plaintiff alleges that it was really executed on 7th January 1909 the same day as it was registered. S.P. Roy. On 14th December 1908, he left Allahabad and returned to his home, a place called Phariha, in the Azamgarh District. He died on 14th February 1909. The document in question bears date 26th December 1908, but the plaintiff alleges that it was really executed on 7th January 1909 the same day as it was registered. The deceased left Lucknow and removed himself from the care of Dr. Abdur Rahim on account of some real or imaginary social grievance. The evidence of the two doctors who attended the deceased clearly shows that his condition was extremely grave. Their evidence does not show that his case was hopeless, or that his life might not be prolonged for some time if he received proper care but they considered his condition grave. It is to be borne in mind that the deceased was at this time well advanced in years, being about 63 years of age. Beyond all doubt the deceased never recovered or got any better than he was when he left Allahabad on 14th December 1908. On the contrary, in our opinion, the evidence shows that his condition got steadily worse from that time. 3. The learned District Judge has found in favour of the plaintiff; and inasmuch as we agree for the most part with his judgment, we do not consider it necessary to go at any very great length into the evidence. It is necessary to fix the date of the execution of the deed, because it is of very great importance to ascertain, if possible, the condition of the deceased on the day upon which the deed was executed. We have already mentioned that the deed bears date 26th December 1908. The learned District Judge has found that the deed was not executed upon that date but that it was executed on 7th January 1909. We entirely agree with this finding. 4. A letter, which will be found at p. 40 of the respondent's book, and is numbered Ex. 166-A, was admittedly written by the defendant Sheikh Muhammad. In that letter he states that he is sending a draft of the deed of gift to Hafiz Hasan Ali, a pleader and friend of his father, the deceased Haji. The draft, it appears from the letter, was being sent for perusal and consideration to Hafiz Hasan Ali. 166-A, was admittedly written by the defendant Sheikh Muhammad. In that letter he states that he is sending a draft of the deed of gift to Hafiz Hasan Ali, a pleader and friend of his father, the deceased Haji. The draft, it appears from the letter, was being sent for perusal and consideration to Hafiz Hasan Ali. The defendant admits in his evidence that when this letter was written by him the deed of gift had not been executed. In a very halfhearted way he attempted to throw doubt, upon the word “Id-ul-zuha” but when further examined all he could say was “the words, no doubt, resemble my handwriting but I cannot say with certainty if they are in my handwriting.” We have not the least doubt that the words were in his handwriting and that letter was dated 3rd January 1909. Hafiz Hasan Ali returned the draft endorsing on the letter that he was doing so and that he had made corrections, and dates the endorsement 3rd January 1909. One of the amendments suggested by him was a statement that the donee had accepted the gift. This was an important amendment having regard to the rules of Mahomedan law as to the acceptance of a gift by the donee. This amendment was suggested in the margin of the draft. The amendment was adopted, though not in actually the same words, and is found put into the draft in the handwriting of the defendant; and the amendment thus made by the defendant finds its way into the deed of gift itself in the identical words of the draft as altered in the handwriting of the defendant himself. We need say no more on this matter. It is abundantly clear that the finding of the learned District Judge that the deed was executed on 26th December 1908 is correct. There can, of course, have been only one reason for ante-dating the document, that is to say, that the condition of the deceased was better on that date than it was at a later date. We see no reason whatever to doubt the evidence of the witnesses including Hafiz Hasan Ali who state that the document was in fact executed on 7th January 1909, the very day on which the deceased came to Azamgarh for the purpose of having the document registered. We see no reason whatever to doubt the evidence of the witnesses including Hafiz Hasan Ali who state that the document was in fact executed on 7th January 1909, the very day on which the deceased came to Azamgarh for the purpose of having the document registered. If there was and reason for antedating the deed other than because the condition of the deceased was not satis factory on 7th January, the defendant has not given us such reason. The important date therefore to ascertain the condition of the deceased is 7th January 1909. No important independent evidence is given by the defendant as to the condition of the deceased on this day. The evidence which he has adduced, such as it is, applies to the earlier date on which the document was alleged to have been executed. 5. We have however the evidence of two independent witnesses who were examined on behalf of the plaintiff, namely Hafiz Hasan Ali Khan and Haji Inayatullah. Hasan Ali states in his evidence, and we have no reason to doubt its truth, that he was a very great friend of the deceased. Admittedly he was consulted by him as to the disposition of his property. He came to see him in December 1908. The witness said he went to see him four or five times. He saw him some time before Christmas and he says that when he first saw him the deceased's hands, legs and face were swelled. We may mention that according to the evidence of both Dr. Abdur Rahim and Dr. Roy dropsy had set in whilst the deceased was still under their care and treatment. The witness proceeds to say that he rose from his charpoy with the help of other men. The Sunday before Christmas he considered his case had become more critical: “he had become weak and had cough and could speak with great difficulty. There was swelling on his hands, feet, face and all over the body. He could say his prayers lying but could not perform ablution. He performed tayammum (purifying before prayer with send or dust when water cannot be had)”—he was unable to perform his ablutions with water and had to use send or dust. The deceased was unable to perform his private work. When he had to answer a call of nature he would make signs to the witness to leave him. He performed tayammum (purifying before prayer with send or dust when water cannot be had)”—he was unable to perform his ablutions with water and had to use send or dust. The deceased was unable to perform his private work. When he had to answer a call of nature he would make signs to the witness to leave him. He paid the deceased a third visit during the Christmas holidays and on this occasion he found him in the same condition as on his last visit. He says he saw him again when he came in to execute the deed of gift and finally some time during the Muharram holidays. He describes his condition on the day on which the deed of gift was registered. He says he was “sitting on a palanquin. He was ill and confined to bed. He could not walk or move about. He offered the afternoon prayers lying in his palanquin. After saying his prayers he was lying supported by a big pillow and looked as if he was sitting.” He says that he considered that the deceased was in his death illness. In answer to a further question he said that he (the witness) had no hope, and then added voluntarily that the Haji Sahib also had no hope of recovery. This witness has apparently nothing to gain by giving false evidence. He does not appear to be a partisan of either one side or the other. He was the trusted friend of the deceased and was consulted by him about his private affairs. He was the very person to whom the defendant sent the draft deed of gift for correction addressing him as “kind friend Hafiz Sahib.” The learned counsel on behalf of the appellants stated that there is nothing on the record which would justify him in attacking the truthfulness of this witness. 6. Next, we have the evidence of Haji Inayatullah. This witness was employed at the Registration Office on the day upon which the deed of gift was executed. He had gone on a pilgrimage to Mecca the very year upon which he was giving evidence. He knew the deceased and went to see him about a week before the registration of the document. He says that when he saw him he had a swelling of both his feet and was having powder rubbed on them. He had gone on a pilgrimage to Mecca the very year upon which he was giving evidence. He knew the deceased and went to see him about a week before the registration of the document. He says that when he saw him he had a swelling of both his feet and was having powder rubbed on them. He also rubbed powder on them. He could not see the condition of the other parts of the body as only the feet were exposes. He goes on to describe the condition of the deceased when the deed was being registered. He says that he came there in a palanquin which was placed in front of the western door of the verandah. Questions relating to the registration were put to him while he was lying in the palanquin. He says that he was very nearly in the same condition as he was when he saw him at Phariha but he had not much opportunity of observing his condition as he was engaged in his office work. His opinion was that the deceased was past recovery. There is no reason whatever to suggest that this witness is not telling the truth. He is not related to either side. It was attempted to show that he was under the influence of another witness of the name of Muhammad Umar, who is, no doubt, interested in the litigation. But all that could be said was that at one time he was in the same office and Sub-ordinate to Muhammad Umar. At the time of the registration of the deed he was not in the same office as Muhammad Umar nor was he in Muhammad Umar's office when he was giving evidence. 7. Of course, if we were to believe all the evidence adduced on behalf of the plaintiff, it would prove that the deceased was in a very bad condition from the moment he arrived back from Allahabad right up to the time of his death. If, on the other hand, we were to believe all the evidence adduced on behalf of the defendant it would show that there was very little difference in the condition of the deceased after he left Allahabad than for many years previous. We more or less discard the evidence of all the interested witnesses. If, on the other hand, we were to believe all the evidence adduced on behalf of the defendant it would show that there was very little difference in the condition of the deceased after he left Allahabad than for many years previous. We more or less discard the evidence of all the interested witnesses. But, considering the evidence of the doctors, the nature and history of the disease, coupled with the evidence of the two witnesses we have just named, we have come to the conclusion without hesitation that the deceased died of Bright's disease, that he was in a serious condition when he left Allahabad, that he never rallied, but that on the contrary his condition grew worse from day to day, and that on the date upon which he executed the deed of gift he was, and knew himself to be, in a very serious condition. 8. We are strengthened in this opinion by the fact that the defendant, or those who were responsible for the execution of the deed of gift, thought it necessary to ante-date it by some 12 days. We consider that at the date upon which the deed was executed the deceased was suffering from the very disease which was the immediate cause of his death. We consider that the disease was of such a nature and character on that day as to induce the deceased to believe that death might result, or at least it was sufficient to engender in him an apprehension of death. We also consider that upon the day on which the deed was executed the illness of the deceased was sufficient to restrain him from the pursuit of ordinary avocations and from saying his prayers, save in recumbent position. All these things were calculated to create in the mind of the sufferer an apprehension of death. If we believe the statement of Hafiz Hasan Ali the impression given by the deceased to him was that he had no hope of recovery. 9. We have been referred to the case of Fatima Bibee v. Ahmad Baksh, [1904] 31 Cal. 319. The decision of the Calcutta High Court in this case was subsequently affirmed by their Lordships of the Privy Council. In that case, which is somewhat like the present case, the donor had for a number of years been suffering from diabetes. 9. We have been referred to the case of Fatima Bibee v. Ahmad Baksh, [1904] 31 Cal. 319. The decision of the Calcutta High Court in this case was subsequently affirmed by their Lordships of the Privy Council. In that case, which is somewhat like the present case, the donor had for a number of years been suffering from diabetes. On the facts of that particular case the Court found that owing, to the long continuance on the illness, the deceased had no apprehension of death. The case, we think, was decided (as all these cases must be) entirely on its own facts and circumstances. 10. Arriving at the conclusion on the evidence at which we have arrived, and assuming that conclusion to be correct, it is quite clear that the decision of the Court below on the main question was right and ought to be upheld. 11. There is only one other question, namely, that relating to a grove, which was claimed by the defendant as belonging to him absolutely and not as forming portion of his father's estate. On this question we entirely accept the view of the learned District Judge. The result is that we dismiss the appeal with costs including in this Court fees on the higher scale.