Muhammed Vavukhan v. Kunju Pouthammal — 1955 DIGILAW 111 (KER)

JUDGMENT : Joseph Vithayathil, J. Plaintiff is the appellant. The suit is for partition after setting aside certain gift deeds and sale deeds. The plaint properties belonged to one Mohomed Vava Khan who was a Hanafi Muslim. He died intestate on 22.2.1119 leaving his widow (first defendant) and his three daughters (defendants 2 to 4) as heirs and plaintiff and defendants 10 to 14 as residuaries. Plaintiff and defendants 10 to 14 are entitled to 5/24 share in the properties, the plaintiff being entitled to 5/144 share. Vava Khan executed seven gift deeds and four sale deeds. They are Exts. I to XI. Ext. VI is a gift deed dated 7.4.1102 executed in favour of defendants 2 to 4 in respect of 52 acres and 42 cents in plaint item No. 1. Ext. VII dated 15.7.1103 is a gift deed in favour of the first defendant for 2 acres in item No.1. Ext. VIII dated 2.2.1113 is a gift deed in favour of the third defendant for 16 acres in item No. 1 and the whole of item No. 11. Ext. IX dated 2.2.1113 is a gift deed to the fourth defendant for 16 acres in item No. 1 and also a building (item No. 2) standing in item No. 1. Ext. X dated 2.2.1113 is also a gift deed in favour of the 7th defendant, the daughter of the fourth defendant for 2 acres in item No. 1. Ext. XI dated the same day is a gift to the second defendant for 16 acres in item No. 1. Ext. I dated 20.7.1116 is a sale deed in favour of defendants 2, 4, 8 and 9 for plaint items 3, 4 and 5 for Rs. 950/-. Ext. II dated 7.7.1118 is a sale deed in favour of the first defendant in respect of item No. 6 and 1 acre 48 cents in item No. 1 for Rs. 1500/-. Ext. IV dated 7.7.1118 is a sale deed in favour of the fifth defendant, the husband of the second defendant, in respect of one-half of item, No. 7 for Rs. 200/-. Ext. V dated the same day is a sale deed in favour of the sixth defendant for one-half of item No. 7 and items Nos. 8, 9 and 10 for Rs. 300/-. Ext. 200/-. Ext. V dated the same day is a sale deed in favour of the sixth defendant for one-half of item No. 7 and items Nos. 8, 9 and 10 for Rs. 300/-. Ext. III dated 22.11.1118 is a gift deed executed in favour of a Muslim institution, Nurul Islam Druss, represented by defendants 17 to 21 in respect of items 12 and 13. The gift deeds were impeached by the plaintiff as sham transactions, and it was alleged that there was no delivery of possession of the properties to the respective donees. The sale deeds also were impeached as sham transactions and it was alleged that they were not supported by consideration and that possession of the properties continued with Vava Khan. It was further alleged that Exts. II, IV and V, though styled as sale deeds, were really gift deeds and that they and Ext. III were executed during marz-ul-maut (death illness) of Vava Khan and that they could not take effect beyond a third of his estate after payment of funeral expenses and debts. 2. Defendants 1 to 4, 5 and 6, 7, 10 to 12 and 14, and the 19th defendant filed written statements. Defendants 1 to 4 in their joint written statement contended as follows: The plaintiff's sisters are necessary parties to the suit. The suit, as framed, is not maintainable. Plaintiff is not entitled to 5/144 share in the assets of deceased Vava Khan. The gift deeds and the sale deeds executed by Vava Khan are valid and are not liable to be set aside. Possession of property passed under the gift deeds. The sale deeds are supported by consideration and they took effect. The donees and the vendees have effected valuable improvements in the respective properties. The plaintiff is not entitled to any share in respect of the properties covered by the gift deeds and the sale deeds. 3. Defendants 5 and 6 supported the contentions of defendants 1 to 4. They further contended that the sale deeds in their favour were valid and were supported by consideration and that possession of property passed under those sale deeds. 4. The seventh defendant contended that the gift deed in his favour was valid and that it took effect. 5. 3. Defendants 5 and 6 supported the contentions of defendants 1 to 4. They further contended that the sale deeds in their favour were valid and were supported by consideration and that possession of property passed under those sale deeds. 4. The seventh defendant contended that the gift deed in his favour was valid and that it took effect. 5. Defendants 10 to 12 and 14 supported the plaintiff and contended that the gift deeds and sale deeds mentioned in the plaint did not take effect and that they were invalid. They claim 5/144 share each in the plaint properties. They admitted that the 13th defendant also was entitled to an equal share. The 13th defendant is the husband of the third defendant, and it was contended that he was siding with defendants 1 to 9. 6. The 19th defendant contended that the Nurul Islam Druss was not properly represented in the suit, that the gift deed dated 22.11.1118 was valid and that it was not liable to be set aside. Plaintiff filed a replication traversing the contentions of defendants 1 to 4, 5, 6,7 and 19 and affirmed the averments in the plaint. 7. The court below found that the gift deeds, Exts. VI to XI, took effect, that possession of property passed under them and that they were not liable to be set aside. It was also held that Ext. I sale deed was supported by consideration and that it was not liable to be set aside. Exts. II to V were also held to be valid. It was held that they were not executed during death illness of the Vava Khan. Excluding the properties covered by the gift deeds and the sale deeds, Vava Khan had 6 and odd acres in item No. 1 at the time of his death. The court held that the plaintiff was entitled to 1/144 share in the assets left by Vava Khan. Plaintiff was accordingly given a preliminary decree for partition of 1/144 share in the 6 and odd acres in item No. 1 and for proportionate mesne profits and costs of commission and execution costs. The suit was dismissed in other respects and the parties were directed to bear their respective costs incurred til the date of decree. Plaintiff was accordingly given a preliminary decree for partition of 1/144 share in the 6 and odd acres in item No. 1 and for proportionate mesne profits and costs of commission and execution costs. The suit was dismissed in other respects and the parties were directed to bear their respective costs incurred til the date of decree. Defendants 10 to 14 were also allowed to recover their respective shares in the 6 and odd acres with proportionate mesne profits on payment of court fees and proportionate costs of commission. 8. The question for decision in this appeal are:- (1) Whether the gift deeds, Exts. VI to XI, took effect and whether they are valid? (2) Whether Ext. I sale deed is supported by consideration and whether it is valid? (3) Whether the sale deeds, Exts. II, IV and V are supported by consideration? Whether they are really gift deeds? Whether they and Ext. III gift deed were executed by Vava Khan during death illness? 9. With regard to the first question, there is ample evidence in the case to show that the gift deeds, Ext VI to XI, took effect and that there was transfer of possession of property under those gift deeds. Ext. VI gift deed is dated 7.4.1102 and was executed in favour of defendants 2, 3 and 4 in respect of a portion of item No.1. Item No. 1 is within the Poonjar Edavakai Patta was issued to the donees for the property included in the gift deed, and they were also paying pattom for the property. Exts. XIX series are receipts issued from the Edavakai for pattom paid by the donees. Ext. VII was executed in favour of the first defendant on 15.7.1103 in respect of a portion of item No. 1. Ext. XII is the Thelivu Chit, and Ext. XIII the patta, issued in her favour in respect of the property. Exts. XIV and XV are receipts for payment of pattom, Ext. VIII is dated 2.2.1113 and is in favour of the third defendant for a portion of item No. 1 and for item No. 11. Ext. XXVI is the receipt for payment of pattom by the third defendant for the property. Ext. IX was executed in favour of the fourth defendant on 2.2.1113 for a portion of item No. 1 and also a building, item No. 2, standing in item No. 1. Ext. Ext. XXVI is the receipt for payment of pattom by the third defendant for the property. Ext. IX was executed in favour of the fourth defendant on 2.2.1113 for a portion of item No. 1 and also a building, item No. 2, standing in item No. 1. Ext. XXXIII is a receipt for pattom paid by the fourth defendant. Ext. X was executed in favour of the seventh defendant on 2.2.1113 for a portion of item No. 1. Ext. XXXIV is the Thelivu Chit issued in favour of the seventh defendant for the property and Ext. XXXV series are receipts obtained by her for payment of pattom. Ext. XI gift deed was executed on 2.2.1113 in favour of the second defendant for a portion of item No. 1. Exts. XXI and XXII series are receipts obtained by the second defendant for payment of pattom for the property. It will thus be seen that Exts. VI to XI took effect and that possession of the properties passed to the respective donees. There is nothing to show that the gift deeds were executed as a result of any undue influence. There is, therefore, no reason to hold that they are not valid. We, therefore, uphold the finding of the court below that Exts. VI to XI gift deeds took effect and that they are valid. 10. The second question relates to the validity of Ext. I sale deed which was executed in favour of defendants 2, 4, 8 and 9 on 20.7.1116 for Rs. 950 in respect of items 3, 4 and 5. It was argued on behalf of the plaintiff that the properties covered by Ext. I were worth much more than Rs. 950, the consideration recited in the document. Item No. 3 is a paddy land, 20 acres and 26 cents in extent. Item No. 4 consists of two buildings and item No. 5 is a garden land, 24 cents in extent. Item No. 3 was purchased by Vava Khan in 1115 for Rs. 9900. There can be no doubt that the consideration mentioned in Ext. I is quite inadequate. The consideration is stated to be ready cash payment. There is every reason to believe that Ext. I was really a gift deed and not a sale deed. But, that is no reason why it should be set aside. 9900. There can be no doubt that the consideration mentioned in Ext. I is quite inadequate. The consideration is stated to be ready cash payment. There is every reason to believe that Ext. I was really a gift deed and not a sale deed. But, that is no reason why it should be set aside. Vava Khan was free to dispose of his properties as he liked. The only question for consideration is whether Ext. I took effect and whether there was actual transfer of possession of property. There is clear evidence in the case to show that Ext. I took effect. Exts. XV to XVIII are receipts obtained by the first defendant for payment of pattom in respect of the properties covered by Ext. I. In the circumstances, no value can be attached to the evidence of Pw. 4 to the effect that Vava Khan continued to be in possession of the properties until his death. Plaintiff has no case that Ext. I was executed by Vava Khan during death illness. It was, therefore, to be held that the vendees under Ext. I got full right to properties covered by it. 11. The third set of documents are Exts. II to V. Exts. II, IV and V are sale deeds executed by Vava Khan on 7.7.1118 and Ext. III is a gift deed executed by him on 22.11.1118. Plaintiff's case is that Exts. II, IV and V are really gift deeds, that they and Ext. III were executed by Vava Khan during death-illness and that, therefore, the donees under those documents cannot get anything more than one-third of the properties. It is not disputed that Ext. III is a gift deed. Assuming that Exts. II, IV and V are also gift deeds and not sale deeds executed for consideration the question is whether they were executed during death-illness of Vava Khan. 12. Exts. II, IV and V were executed on 7.7.1118. Vava Khan died, as stated already, on 22.2.1119 - 7 1/2 months after the execution of those documents. Ext. III was executed on 22.11.1118. Plaintiff's case is that Vava Khan was laid up with rheumatism for about two years before his death, that his left leg and hand were paralysed and that he had no power of speech or proper memory during that period. 13. Pw. 1 is the person who, according to the plaintiff, treated Vava Khan. Ext. III was executed on 22.11.1118. Plaintiff's case is that Vava Khan was laid up with rheumatism for about two years before his death, that his left leg and hand were paralysed and that he had no power of speech or proper memory during that period. 13. Pw. 1 is the person who, according to the plaintiff, treated Vava Khan. He swears that Vava Khan's left leg and hand were paralysed, that he was weak in his faculties and was not able to move about. The witness massaged him in the months of Kanni and Thulam 1118 and gave him medicine for 90 days after the massaging. He also says that Vava Khan had what he called during the time he was treating him. This he explains in one place as and in another place as want of proper memory. Pw. 1 is admittedly not a qualified physician. He admits that it is usual to give massaging to old people who have rheumatic complaint. The witness also swears that Vava Khan improved a little as a result of his treatment. The evidence of the witness does not at all go to show that Vava Khan had apprehension of death during the time when Exts. II to V were executed. Pw. 3 swears that Vava Khan had an attack of rheumatic paralysis and that he was ill for about a year and half before his death. The witness, however, admits that the patient was completely laid up only for about three months. According to Pws. 4 to 6, Vava Khan was laid up for about a year. According to Pw. 8, Vava Khan was ill for about two years and his condition was bad for about a year. Pw. 9 is the plaintiff, and he says that Vava Khan was completely laid up only for about seven or eight months before his death. This is all the evidence on the plaintiff's side regarding the alleged death-illness of Vava Khan at the time when Exts. II to V were executed. 14. Dw. 3 was an intimate friend of Vava Khan. Exts. II, IV and V were executed by Vava Khan in his house which is about thirty miles away from Vava Khan's house. Vava Khan was able to travel this distance at the time when he executed the documents. Dw. II to V were executed. 14. Dw. 3 was an intimate friend of Vava Khan. Exts. II, IV and V were executed by Vava Khan in his house which is about thirty miles away from Vava Khan's house. Vava Khan was able to travel this distance at the time when he executed the documents. Dw. 3 is a physician and he swears that it was he who was treating Vava Khan. According to him Vava Khan was laid up only for about three or four months. The witness also swears that Vava Khan's left side was fully paralysed only during that period although for about two years the left leg was in a weak condition as a result of the rheumatic attack. Dw. 3 further swears that nobody also treated Vava Khan. The court below was impressed with the evidence of Dw. 3, and we also find no reason to disbelieve the witness. Even according to the plaintiff's evidence Vava Khan was suffering from a long-standing disease, and there is nothing in the evidence to show that he had reason to apprehend death at that time when he executed Exts. II to V. 15. Death-illness or marz-ul-maut is defined thus by Mulla:- “A marz-ul-maut is a malady which induces an apprehension of death in the person suffering from ti and which eventually results in his death”, The learned author explains: “It is an essential condition of marz-ul-maut, that is, death illness, that the person suffering from the marz (malady) must be under an apprehension of maut (death). “The most valid definition of death illness is that it is one which it is highly probable will issue fatally” Billie, 552. Where the malady is of long continuance, as, for instance, consumption or albuminuria, and there is no immediate apprehension of death, the malady is not marz-ul-maut; but it may become marz-ul-maut if it is subsequently reaches such a stage as to render death highly probable, and does in fact result in death. According to the Hedaya, a malady is said to be of 'long continuance', if it has lasted a year; a disease that has lasted a year does not constitute marz-ul-maut, for “the patient has become familiarised to his disease, which is not then accounted as sickness”: Hedaya, 685. But 'this limit of one year does not constitute a hard-and-fast rule, and it may mean a period about one year'. But 'this limit of one year does not constitute a hard-and-fast rule, and it may mean a period about one year'. In short, a gift must be deemed to be made during marz-ul-maut, if, as observed by the Privy Council, it was made 'under pressure of the sense of the imminence of death'. To constitute a malady marz-ul-maut, there must be (1) proximate danger of death, so that there is a preponderance of apprehension of death, (2) some degree of subjective apprehension of death in the mind of the sick person, and (3) some external indicia, chief among which would be inability to attend to ordinary avocations, although his attending to his ordinary avocations does not conclusively prove that he was not suffering from marz-ul-maut. It is not necessary, however, to come to a definite finding that the disease which caused the apprehension of death was the immediate case of death”. (Principles of Mohommedan Law, by Mulla, 13th Edition, pages 131-132). 16. The question is discussed as follows by Tyabji: 'Whether or not a particular illness is marz-ul-maut is a mixed question of law and fact. Pains of child birth are considered by the texts as prima facie death-illness, where as lameness, gout, paralysis, consumption, a withered or paralysed hand, after they have continued for a long time, and have no immediate danger of death, are not considered to constitute death-illness”. (Mohammadan Law by Tyabji, 3rd Edition, Pages 373-374). 17. The conditions necessary to constitute marz-ul-maut were discussed by the Calcutta High Court in Fatima Bibi v. Ahamed Baksh (31 Calcutta 319). Referring to the decision in Hassarat Bibi v. Goolam Jaffar (1898 (3) Calcutta W.R. 57), in which a passage from Fatawa-i-shami relating to marz-ul-maut was cited, the learned Judges observed that three conditions are necessary for constituting death-illness, viz., (1) illness, (2) expectation of a fatal issue and (3) certain physical incapacities which indicate the degree of the illness, and that the court must decide from the nature of the first and third conditions and from the other evidence whether the second condition existed, that is, whether there was expectation of death. In that particular case the disease was a long standing one and it was held that the circumstances did not show that the patient had apprehension of death when he executed the gift deed in question. In that particular case the disease was a long standing one and it was held that the circumstances did not show that the patient had apprehension of death when he executed the gift deed in question. This decision was affirmed by the Privy Council in 35 Calcutta 271. The principles relating to marz-ul-maut were discussed by the Privy Council in Ibrahim Goolam Ariff v. Saiboo (35 Ca. 1) where their Lordships affirmed the proposition mentioned above. 18. Reference may also be made to the decision of the Lahore High Court in Rashid-ud din v. Nazir-ud din (A.I.R. 1929 Lahore 721). Agha Haidar, J., observed in that case: “As to what is marz-ul-maut under Musalman Law has been explained in a number of cases: Vide Hassarat Bibi v. Golam Jaffar (3 Cal W.N. 57), Fatima Bibi v. Ahamed Baksh (31 Cal. 319), Sarabai v. Rabiabai (30 Bom. 537), Rashid Karmalli v. Sherbanno (31 Bom. 264), Fazlur Rahiman v. Mohomed Umar (3 Patna Law Weekly 222, and, finally, by their Lordships of the Privy Council in Ibrahim Goolam Ariff v. Saiboo (35 Cal. 1) and Fatima Bibi v. Ahamed Baksh (35 Cal. 271). In view of the affirmance in Fatima Bibi v. Ahamed Baksh (35 Cal. 271) of the case reported as Fatima Bibi v. Ahamed Baksh (31 Cal. 319) which itself was founded upon Hassarat Bibi v. Goolam Jaffar (3 Cal W.N. 57), the weight of authority attaching to the last mentioned case becomes very great indeed. Ammer Ali, J., in Hassarat Bibi v. Goolam Jaffar (3 Cal W.N. 57) laid down the following propositions of law as regards marz-ul-maut: (1) that the donor was suffering at the time of the disposition in dispute from a disease which was the immediate cause of his death; (2) that the disease was such as to engender in him the apprehension of death; and (3) that the illness incapacitated him from the pursuit of his ordinary avocation and prevented him from saying his prayers while standing. The learned Judge further observed that, if the illness had continued for such a long time so as to remove or lessen the apprehension of death, that circumstance would take it out of the category of marz-ul-maut. The learned Judge further observed that, if the illness had continued for such a long time so as to remove or lessen the apprehension of death, that circumstance would take it out of the category of marz-ul-maut. It follows, therefore, that if a malady has continued for a sufficiently long time and has, on fact, become a part of the physical system of the mariz (patient), so that he has become more or less accustomed to it and has consequently lost all fear of death on its score, it would cease to be marz-ul-maut. Their Lordships of the Privy Council emphasised the importance of proving immediate apprehension of death in the mind of the executant at the time of the disposition in dispute as a condition precedent to the applicability of the doctrine of marz-ul-maut”. The evidence in this case does not at all go to show that, at the time of the execution of Exts. II to V, Vava Khan had any apprehension of death as the result of the rheumatic complaint he was suffering from. We, therefore, hold that those documents were not executed by Vava Khan during marz-ul-maut. 19. It follows that neither the plaintiff nor defendants 10 to 14 are entitled to get any share in respect of the properties covered by Exts. I to XI. We, therefore, confirm that judgment and decree of the court below and dismiss the appeal with costs. Dismissed.