JUDGMENT P.L. Bhargava, J. - This is a Plaintiff's appeal. It arises out of a suit for cancellation of a deed of gift executed by Sharfuddin in favour of Husna Jahan. on the 5th of March, 1915, in respect of half share in a house, which originally belonged to Mohammad Husain, who is dead. The plaintiff-applicant, Farid Mian, is the father of Mohammad Husain and the donor, Sharfuddin, was the son of Mohammad Husain. The done Husna Jahan; the defendant-respondent, is related to the donor as his aunt. 2. On the death of Mohammad Husain Sharfuddin as well as Farid Mian were entitled to a share in the house. Sharfuddin instituted Suit No, 61 of 1944 claiming partition of his share in the house against Parid Mian. On the 24th February; 1945, the suit was compromised and under the compromise a half share in the house was given to Sharfuddin and the other half to Farid Mian. Thereafter, on the 5th March, 1945, Sharfuddin made the gift in question. A forthright later Sharfuddin died on the 22nd March, 1945. 3. On the I7th April, 1945, Husna Jahan, the defendant-respondent, applied for execution of the compromise decree in Suit No. 61 of 1944 and to recover possession over the half share allotted to Sharfuddin, which had been gifted to her, Parid Mian, the plaintiff appellant, filed an objection u/s 147 of the Code of Civil Procedure. His petition of objection has been treated as a suit. In his petition of plaint Farid Mian alleged that the deed of gift was invalid as the time of the execution of the same Sharfuddin Was suffering from Marz-ul-Maut or death-bed illness and he was also not in a fit state of mind at the time- The validity of the deed of gift was also challenged on the ground that the possession of the gifted property had not been transferred by the donor to the donee. 4. The defence set up by Husna Jahan, the defendant-respondent; was that at the time of the execution of the deed of gift Sharfuddin was not suffering from any Marz-ul-Maut or death-bed illness: that the transaction was Hiba-bil Ewaz-, and that possession was transferred from the donor to the donee. 5. The Court below have held that Sharfuddin. 4. The defence set up by Husna Jahan, the defendant-respondent; was that at the time of the execution of the deed of gift Sharfuddin was not suffering from any Marz-ul-Maut or death-bed illness: that the transaction was Hiba-bil Ewaz-, and that possession was transferred from the donor to the donee. 5. The Court below have held that Sharfuddin. the donor, was at time of the execution of the deed of gift not suffering from any Marz-ul-Maut or death-bed illne33 and the donor had given such possession over the gifted property to the donee as he could. These findings have been challenged in the appeal. 6. I will first take up the question whether at the time of the execution of the deed of gift Sharfuddin was suffering from Marz-ul-Maut or death-bed illness. In connection with this question it is necessary to recapitulate the findings recorded by the courts below. They have found that at the time of the execution of the deed of gift Shirfuddin was suffering fro'" tuberculosis and that the illness was in Ian advanced stage. It appears from the deed of gift that Shirfuddin's condition of health at the time of the execution of the deed of gift was deteriorating from day to day; and that he died within 15 days of the execution of the deed of gift. The courts below have further found that at the time when the deed of gift was executed Sharfuddin was in a position to move about and he used to go to the hospital sometimes on foot and sometimes on a conveyance. 7. Learned counsel for the appellant has invited my attention to Tyabji'a Mohammedan Law, p. 372, (Third Edition) (1940), where it has been pointed out that in order to establish existence of Marz-ul-Maut or death illness there must be present at least four conditions:- (a) the illness must have caused death; (b) there must have been proximate danger of death, so that there was preponderance of apprehension of death; (i. e., that at given time death more probable than life. Of. the most valid definition of death-illness is, that it is one; which it is "highly probable, will issue finally: Bill. 1543 (552); (c) Some degree of subjects apprehension of death in mind of sick person; (d) Some external indicia, chief among which arc liability to attend to ordinary avocations. 8. Of. the most valid definition of death-illness is, that it is one; which it is "highly probable, will issue finally: Bill. 1543 (552); (c) Some degree of subjects apprehension of death in mind of sick person; (d) Some external indicia, chief among which arc liability to attend to ordinary avocations. 8. It has been found by the courts below that Sharfuddin died of tuberculosis, the illness from which he wa3 suffering at the time of the execution of the deed of gift. It i8 also not disputed that Sharfuddin died within 15 days of the execution of the deed of gift. It appears from the evidence of the plaintiff that Sharfuddin had more than on one occasion expressed his apprehension that he would not survive he illness from which he was suffering. The nature of the illness and the stage to which it had reached also must have caused such an apprehension in his mind. 9. Learned counsel for the respondent has laid stress on the fact that the fourth condition, has not been satisfied in the present case, inasmuch as the plaintiff had failed to prove that Sharfuddin had become incapacitated so much so that he was unable to attend to his ordinary avocations. He has in this connection also relied upon the finding recorded by the courts below to the effect that Sharfuddin was able to move about and used to go to the hospital. On the other hand, it has been strenuously argued on behalf of the appellant that the nature of the illness and the stage to which it had reached afford clear indication that Sharfuddin was not in a position to carry on his ordinary avocations. 10. All that the courts below have found that Sharfuddin was moving about and going to the hospital." It is apparent from the record that Sharfuddin was not well-off and he had to go to the hospital for treatment. Consequently, the mere fact that Sharfuddin was able to move about and go to the hospital for treatment does not necessarily mean that he was able to carry on his ordinary avocations. My attention was invited by the teamed counsel for the respondent to the statement of the defendant that Sharfuddin was able to say his prayers and to do something else. My attention was invited by the teamed counsel for the respondent to the statement of the defendant that Sharfuddin was able to say his prayers and to do something else. In that state of health the fact that Sharfuddin was able to say his prayers would also not be very material. According to the statement of the Medical Officer, who attended him during his illness, it appears that Sharfuddin's case was advanced, case of T. B, of both the lungs and there were complications in the abdomen also. This' coupled with the end which came within 15 days of the execution of the deed of gift, would show that the illness from which Sharfuddin was Suffering had reached the final stage and in that stage of the illness it is difficult to believe that Sharfuddin was able to carry on his ordinary avocations. The courts below have not recorded any finding that Sharfuddin was able to carry on his ordinary avocations. In my opinion, in the circumstances which have been established, there can be no doubt that at the time of the execution of the deed of gift, Sharfuddin was not in a position to carry on his ordinary avocations. 11. I may also refer at this stage to a decision of this Court to which reference has been made on behalf of the appellant. That is the case of Mast. Imran v. Ibne Hasan (1). In that case the learned Judges observed : We are of opinion that person suffering from, tuberculosis in its final stages when he has no hope of recovery could come under the conditions of Marz-ul-Maut, although it would not necessarily follow that a person in the earlier stages of phthisis, when he may have a very good hope or expectation of." recovery would come under that legal doctrine. It is a question of fact in each case as to whether the person was in such a condition that the doctrine of Marz-ul-Maut would apply. 12. I have pointed out above that at the time of the execution of the deed of gift the illness from which Sharfuddin was Buffering, namely tuberculosis, had reached its final stages and all the conditions necessary to constitute Marz-ul-Maut, as understood in Mohammedan Law, have been fulfilled in this case. 12. I have pointed out above that at the time of the execution of the deed of gift the illness from which Sharfuddin was Buffering, namely tuberculosis, had reached its final stages and all the conditions necessary to constitute Marz-ul-Maut, as understood in Mohammedan Law, have been fulfilled in this case. In this view of the matter, the finding of the courts below that Sharfuddin was, at the date of the execution of the deed of gift, not suffering from Marz-ul-Maut cannot be sustained and must be set aside. 13. Another point, which has been awed on behalf of the appellant, is that the deed of gift is invalid for want of deli-very of possession. Learned counsel for the respondent has in this connection contended that a gift of an undivided Bhare (Mushaa) in the property which is capable of division is irregular, but not void. That proposition of law has not been disputed on behalf of the appellant. Learned counsel for the appellant has however, urged that an irregular gift of this. nature could his validated by subsequent partition and delivery to the donee of the share given to him but that has not been done in this cafe. It is clear from the record that the possession over the half share after separation by partition has not been delivered to the donee. In fact, the donor died before he could do anything of the kind. Learned counsel for the respondent has relied upon an exception to the above rule mentioned in Mulla's Mohammedan Law (1950 edition) at page 147. It says :- "A gift of an undivided share (Mushaa), though it be a share in property capable of division is valid from the moment of the gift even if the share is not divided off and delivered to the donee, in the following cases : - (1) "Where the gift made by one coheir to another; (2) where the gifts is of a share in a Zamindari or taluka; (3) where the gift is of a share in freehold property in a large commercial town; (4) Where the gift is of shares in a land company; Learned counsel has pointed out that this case is covered by the third case as the house is situate in the city of Banarap. The third case mentioned in the exception is based upon a decision of their Lordships of the Privy Council in Ibrahim Goolam Arif v. Saiboo ILR 35. Cal l where it was held, in accordance with the principles laid down in Muhammad Mumtaz Ahmad v. Zubaida Jan (3), that assuming the law of Mushaa to apply to the succession of Mahomedans residing in Rangoon that doctrine was not applicable to shares in companies nor to shares in freehold property in a large commercial town. In Muhammad Mumtas Ahmad v. Zubaida Jan ILR 11 All. 460, 475 it was pointed out that "the doctrine relating to the invalidity of gifts of Mushaa is wholly un-adopted to a progressive state of society and ought to be confined within the strictest bounds. 14. Sharfuddin had sued for partition and got a decree for a half shara in the house before the gift deed was executed by him. He was living in the house at time of his death. It appears that after the death of his parents the donee, Husna Jahan, was locking after Sharfuddin and his treatment. Consequently, she might have been living with him as stated by the plaintiff. In my opinion, therefore, the validity of the gift cannot be challenged on the ground of want of delivery of possession by actual Separation of the half share. The validity of the deed of gift is, however, affected by the fact that it was executed during Mars-ul-Maut or death-bed illness. 15. Counsel for the respondent has contended that the fact that the gift-deed was executed during Marz-ul-Maut or deathbed illness does not invalidate the whole deed, it is not disputed before me that Husna Jahan is not an heir of Sharfuddin and as such the deed of gift is Valid to the extent of one-third. 16. The courts below have found that the deed of gift is a deed of gift pure and simple and it is not Hiba bil-ewas as was contended on behalf of the defendant-respondent. That finding has not been challenged before me in this appeal, it is, therefore, not necessary to deal with that question. 17. 16. The courts below have found that the deed of gift is a deed of gift pure and simple and it is not Hiba bil-ewas as was contended on behalf of the defendant-respondent. That finding has not been challenged before me in this appeal, it is, therefore, not necessary to deal with that question. 17. In the result, the appeal is allowed to this extent that the dead of gift, dated the 5th of March, 1945, 'executed by Sharfuddin in favour of Husna Jahan is held to be valid only to the extent of one-third and the decree of the courts below is modified to that extent. The parties shall receive and pay costs in proportion to their success and failure throughout' 18. Leave to file further appeal is granted.