JUDGMENT - The original defendants Nos. I and 2 have filed this second appeal against the concurrent findings of the Courts below that the deed of gift dated February 3, 1956, produced at Exh. D-3, was made during the death-illness and as such is not binding on the interest of the plaintiffs. 2. Certain facts are not in dispute. The donor one Abdul Kadar Beg died on February 4, 1956. Plaintiff No. 1 sahebbi is his widow, while plaintiffs Nos. 2 to 5 are his daughters. Defendants Nos. 1 and 2 are the sons of Abdul Habib Beg. Abdul Habib Beg died in 1952. Under Exh. D-3, i. e. the gift, Abdul Kadar Beg, who was aged about 80 years of age, purported to gift away the properties, being field properties, at mouza Paoni, mouza Chendkapur, mouza Yenoda and mouza Wali and house property at mouza Paoni. There is a recital that the donee were placed in possession under the deed itself. Thus considerable property was affected by this document. It is not in dispute that though this document purports to have been written or scribed on 2nd of February 1956, it was actually registered on the next day by getting Registrar to the place where Abdul Kadar Beg was residing as he was unable to go out of his house. The registration itself took place on 3rd, though Registrar came in the evening of 2nd. It is not also in dispute that on the very next day Abdul Kadar Beg breathed his last. 3. For the purpose of the present appeal and the controversy herein it is not disputed on behalf of the appellants that the letters exhibited at Exh. 80 and Exh. 81 were written by defendant No.1. Abdul Hafiz Beg, was residing in the very same house where Abdul Kadar Beg was residing and died ultimately. Those letters were written from Paoni and they intimated that Abdul Kadar Beg, who was also called Dadamiya, was suffering from double pneumonia and he was being given injections worth Rs. 8 by the Government doctor; that on Wednesday and Thursday, i.e. just two days prior, his condition was extremely bad and further that he was weeping thinking about the lives of others. It is stated therein that some doctor's treatment is being continued. 8 by the Government doctor; that on Wednesday and Thursday, i.e. just two days prior, his condition was extremely bad and further that he was weeping thinking about the lives of others. It is stated therein that some doctor's treatment is being continued. Defendant No.1 has categorically admitted in his evidence given as D. W. 1 that the contents of these letters are all correct. 4. The controversy, however, raised in the present appeal as is submitted on behalf of the appellants is twofold. According to the learned counsel Mr. Ghate, the Courts below have not properly applied the test of the doctrine of marz-ul-maut, i. e. the death illness, as is understood by the Muslim Law and thus there is an error of law in appreciating the respective cases. Alternatively, it is submitted that there is no specific issue of marz-ul-maut framed and that has vitiated the trial. 5. The second submission has clearly no merit for the matter has been understood, tried and decided on that footing. Turning to the first submission it appears that the Courts have taken into account the evidence led by the parties and recorded findings which are really not open to challenge in this second appeal. These findings are to the effect that Abdul Kadar Beg was seriously ill at least from February I, 1956 and was apprehensive of his death because of his illness. It is further found that the document of gift was executed and registered by him under such subjective condition satisfying all the requirements of marz-ul-maut. 6. As Mr. Ghate the learned counsel for the appellant made some complaint about the appreciation of evidence for reaching these conclusions. I may briefly indicate that such a complaint is clearly not warranted. The evidence of P. W. 1 Sahebbi who is the widow of Abdul Kadar Beg and P.W. 2 Batulbi daughter of Abdul Kadar Beg who were present in the very same house is to the effect that his health was not very good since about It months; that he was experiencing aching in front and back portions of his chest and was under some treatment; and that two weeks before his death he expressed a desire that he should settle the marriage of his grandson during his lifetime. Therefore, he had gone to Chinchala and after he returned from that place he complained of suffering and in fact was helped even to go to his bed by others. It appears that thereafter he was completely bed-ridden. During this illness, which appears to have set in just a week before or so, he had expressed that all the daughters should be called for because he was apprehensive as to whether he will survive or net and accordingly daughters were asked to come. Slowly his talk became inaudible and his condition was showing all the signs of severe deterioration. When his daughters arrived, he was looking at them and tears used to roll from his eyes. He was not even in a position to utter a single word or express himself. In the cross-examination of these two witnesses effort is made to indicate that he was being treated by some compounder or by some doctor and further that at one stage there was a little improvement in his health. P. W. 3 Abdul Rahim is the son-in-law of Abdul Kadar Beg. He had received Exh. 80 written by defendant No.1. He had similarly received Exh. 81 another letter written on 3-2· 1956. These two letters, which are reefer red to earlier and which are not in dispute, speak volumes about the serious affrication from which Abdul Kadar Beg was counting his numbers. That lends all corroboration and support to the testimony of the widow and his daughter, referred to above. In these letters Abdul Hafiz has stated that on February 1, i. e. just three days before his death Abdul Kadar Beg was suffering from double pneumonia and he was being administered injections every day by Government doctor. He was not in a position to eat and was being given only juice. On 3rd he wrote that condition of the patient was extremely bad, he was weeping and "thinking about our lives." According to his wishes on Thursday, i. e. on 2nd, Sub-Registrar was called to Paoni and gift-deed was made in favour of two brothers. He was made to sit by giving support to his neck. He was unable to eat anything and was being given juice and doctor's treatment was continuing though injections were stopped. His hands and feet were all &baking-presumably unstable-and he was not in a position to talk. He was made to sit by giving support to his neck. He was unable to eat anything and was being given juice and doctor's treatment was continuing though injections were stopped. His hands and feet were all &baking-presumably unstable-and he was not in a position to talk. Ht: was in a position merely to make signs to express himself and his capacity to follow was affected very much. 7. All this description of the condition of the patient given out by these two letters between 1st and 3rd, i. e. the day prior to the death, clearly points out that the old man was seized by a disease or an affliction, he was not in a -position to stand or use his hands; he was not in a position to talk; he was communicating by making signs; he was weeping and expressing apprehensions about the lives of others and when the daughters came near him tears were rolling from his eyes. It is a matter of inference to observe that both physically and mentally such a person must have had sunk to a very low stage of health, gradually proceeding towards the final end which came on 4th itself. It is reasonable to infer that such person would act under a clear fear or apprehension of his death that has proved to be a certainty. The evidence therefore given by the widow and the daughter and as furnished by these two letters is enough to hold that between the period of these four days, i.e. Ist to 4th of February, Abdul Kadar Beg was seriously afflicted by physical malady and his mental condition must be such that he was apprehending death as a certainty. The document itself has been made on 2nd and 3rd; and the disposition evidenced by it is surely under the cloud of the doctrine of death-illness and can net be relieved from eventual eclipse. 8. Furthermore, it appears, these appellant defendants have made systematic efforts to withhold the evidence about the health and condition of Abdul Kadar Beg. By the two letters, Exh. 80 and Exh. 81, P.W. 3 was informed that Abdul Kadar was being given injections by some doctors. All these contents of Exh. 80 are admitted to be correct by D. W. 1 i.e. the appellant No. 1. By the two letters, Exh. 80 and Exh. 81, P.W. 3 was informed that Abdul Kadar was being given injections by some doctors. All these contents of Exh. 80 are admitted to be correct by D. W. 1 i.e. the appellant No. 1. If this was a true state of affairs, as was disclosed at the earliest time, i. e., on 1st February, followed by a letter dated 3rd of February Exh. 81, it was expected of the defendants to put the said doctor in the witness-box and to produce all the material evidence of the treatment given to Abdul Kadar. Surprisingly the evidence that is led by the defendants is as if Abdul Kadar Beg was in good health during that period. It is not necessary to deal with all the evidence, but suffice it to say that there is clear attempt to gloss over the whole matter. D. W. 1 Abdul Hafiz who was the male member in the family and near Abdul Kadar goes on saying that the old man had barely. a pain in his waist and some gastric trouble from 10 to 12 years. Except saying this, he does not speak about the condition of Abdul Kadar prior to his death. In the cross-examination, however, he admits that whatever is written in these letters referred to above is correct. Evidence brought by these defendants similarly indicates an attempt to keep back the facts which must be very well known to them. One compounder has been examined by name Kesheo as D. W. 4 and he goes on to· assert that Abdul Kadar was having good health when he had gone three days before the death of Abdul Kadar to visit him. As Abdul Kadar was having good health, no medicine was given tahim. This evidence, to say the least, is clearly a got-up one. Abdul Kadar died on 4th and Exh. 80 which is a letter of 1st states that Abdul Kadar was suffering from double pneumonia on that date and was being administered injection every day by a doctor. On 3rd also that was the condition. Such attempts to introduce witnesses are factors raising suspicion about the disposition set up by the defence and that by itself lends support to the case of the plaintiffs and their witnesses about the condition of Abdul Kadar. On 3rd also that was the condition. Such attempts to introduce witnesses are factors raising suspicion about the disposition set up by the defence and that by itself lends support to the case of the plaintiffs and their witnesses about the condition of Abdul Kadar. Surely the defendants cannot merely rest themselves in this appeal on the abstract doctrine of onus of proof having known the case they have to meet and they had set up. The evidence led by the defendants about the health of Abdul Kadar being worthless similarly is suggestive of the truth about the case spoken to by plaintiffs' witnesses. 9. On the principles that affect the dispositions under the doctrine of death· illness, law is fairly well settled. In "the Principles of Mohamedan, Law" by Mulla, the gifts made on the death· bed are the subject-matter of consideration, in Chapter X, and while explaining the doctrine of marz-ul-maut the learned author says that it is a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death. It is further noted that it is an essential condition of marz-ul-maut i. e. of death· illness that the person suffering from the marz, i.e. malady, must be under an apprehension of maut, i.e. death. The note to the Explanation goes on to explain the various sheds of the malady raising apprehension of death and it is not necessary to refer to all that debate. In the celebrated work "Principles of Muhammadan Jurisprudence" by Abdul Rahim, the learned author has made a basic and notable effort to find out the juristic principles behind the Mohamedan precepts of law and has dealt with the topic of death illness at some great length. In his view, for which he takes his support to Hedaya and Kifaya, the marz-ul-maut is an illness from which death is ordinarily apprehended in most cases and in particular cases it has actually ended in death. He observes that: "The compilers of Al-Majallah lay it down that death illness is that from which death is to be apprehended in most cases, and which disables the patient from looking after his affairs outside his house if he be a male and if a female the affairs within her house, provided the patient dies in that condition before a year has expired, whether he has been bedridden or not. If the illness protracts itself into a chronic condition and lasts like that for a year, the patient will be regarded as if he was in health, and his dispositions will be treated like those of a healthy person " Abdul Rahim quotes that "the definitions as given by the Shafii and Hanbali jurists are also to the same effect, namely, that death· illness is illness dangerous to life, that is, which mostly ends in death provided the patient actually dies of it", and he further observes that whether such illness was dangerous should be left to the opinion of the competent doctors. According to the learned author, therefore, while applying the true test of this doctrine the real question must be the illness and its character from which death could be said to have been apprehended. He observes: "It is a cardinal principle of Muhammadan jurisprudence that the law takes note only of perceptible facts. The original authorities do not lay down that the fears entertained by the sick man himself farm any criterion of death-illness. In fact, it is an event of nature. the character of which cannot depend upon what the patient might think of it. The law in placing an embargo on a sick person's juristic acts puts it on the ground of illness, and not on the apprehension of death by the sick man. The reason or motive underlying; the law is that illness weakens a man's physical and mental powers, and he is likely, therefore, as experience shows, to act under such circumstances to the detriment of his spiritual interests by disappointing his heirs in their just expectations." (Emphasis provided) If this proposition on the exposition of the doctrine and the test is the correct one, then the apprehension in the mind of the sick man cannot have the higher emphasis than the illness itself. In other words, it is the proof of the illness that will be decisive of the matter provided that has caused the eventual death of the man. That proof can alone be tendered by the medical experts and mere subjective apprehension of the person suffering illness could not carry the doctrine to its logical end. 10. In other words, it is the proof of the illness that will be decisive of the matter provided that has caused the eventual death of the man. That proof can alone be tendered by the medical experts and mere subjective apprehension of the person suffering illness could not carry the doctrine to its logical end. 10. If these tests were applied, then it follows that there is some lack of evidence in the present case, that is, no doctors have been examined, and further the evidence is somewhat fluid in the sense that 7 days prior Abdul Kadar had been laid ill he had returned from Chirichala and ultimately died on 4th. He was in a position, as appears from some evidence, to make signs and was thus capable of communicating. 11. However, Abdul Rahim's view about the exposition of this doctrine does not appear to have found clear support in the judicial pronouncements on the present doctrine. In Fatima Bibee v. Ahamad Baksh1, the Calcutta High Court while considering the doctrine of marz-ul-maut known to Mohammedan Law found three things as necessary to answer the same, viz; (i) illness, (ii) expectation of fatal issue and (iii) certain physical incapacities, which indicate the degree of illness. The second condition, i. e. expectation of fatal issue, could be presumed to exist from the existence of the first and third, as the incapacities indicated, with perhaps the single exception of the case in which a man cannot stand up to say his prayers, are no infallible signs of death-illness. These conditions were qualified by stating that a long continued malady would contra indicate the immediate apprehension of death. A person affected by such long-drawn course of illness can still be possessed of his senses and his' dispositions would not be invalid. The view of the Calcutta High Court appears to have been affirmed by the Privy Council in Fatima Bibee v. Ahmad Baksh. No doubt, it appears that in that case too, there was evidence of a doctor. The deed was executed about 6 days before the date of the death. While considering the question of invalidity of such disposition under the law of marz-ul-maut, it was observed: "The test which was treated as decisive of this point in both Courts was, was the deed of gift executed by Dadar Baksh under apprehension of death? The deed was executed about 6 days before the date of the death. While considering the question of invalidity of such disposition under the law of marz-ul-maut, it was observed: "The test which was treated as decisive of this point in both Courts was, 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 probabilities." It is thus obvious that if there is preponderance of probabilities indicating that the gift was made under the apprehension of death by the deceased, it is in· valid under the law of marz-ul-maut. That it is a question of fact to be determined on evidence is also clear on this authority. Further in Ibrahim Goolam Ariff v. Saiboo2, the first question that was being canvassed before the Privy Council was about the physical condition of the deceased at the date of the execution of the gift and that was answered by saying that this was a pure question of fact. As to the law, the proposition stated is to the following effect:- "The law applicable is not in controversy; the invalidity alleged arises where the gift i$ made under pressure of the sense of the imminence of the death." (Emphasis added) 12. As far as this Court is concerned the law has been stated in Sofia Begum v. Abdul Razak3. It was observed by referring to the two Privy Council decisions supra, that it may be taken as settled that crucial test of marz-ul-maut is the proof of the subjective apprehension of death in the mind of the donor, that is to say, the apprehension derived from his own consciousness, as distinguished from the apprehension caused in the minds of others, and the other systems like physical incapacities arc only the indicia, but not infallible signs or a sine qua non of marz-ul-maut. 13. 13. This expostulation was required to be made so as to explain the earlier decisions of this Court reported in Sarabai v. Rabiabai4 and Rashid v. Sherbanoo5. In Sarabai's case, learned Single Judge of this Court had laid down three conditions which must be satisfied so as to answer the requirements of marz-ul-maut, the same being - (I) 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~ In Rashid's case the Division Bench of this Court doubted as to the existence in every case of the third condition laid down in Sarabai's case, i. e. the physical inability to attend to ordinary avocations of the person must be available. There Fatima's case was expressly mentioned as laying down the principles on the test of Mohammedan Law. After noting all this passage of decisions in this Court, in Safia's case this Court ultimately found that what is required is subjective apprehension of death in the mind of donor at the time of disposition. The other circumstances and symptoms of incapacities were merely the indicia which may throw light on such mental state of the donor. 14. Thus as far as the decisions of Indian Courts are concerned, the law of marz-ul-maut in answered if it is proved that the ailing donor was apprehending death and in that condition had proceeded to effect dispositions. 15. Even the Pakistan Courts have not taken any other view of the matter. I may usefully refer to the judgment of the Supreme Court of 'Pakistan available in Shamshad Ali Shah and others v. Syed Hassan Shah and others6, where the learned Judges have summarised the law of the gifts and the doctrine of marz-ul-maut. There a woman of 65 suffering from pneumonia .had succumbed after execution of the deed of gift almost after a period of two hours. The gift made by such woman was held to be affected by the doctrine. There a woman of 65 suffering from pneumonia .had succumbed after execution of the deed of gift almost after a period of two hours. The gift made by such woman was held to be affected by the doctrine. While laying down the principles on which the law of marz-ul-maut has to be found out, the Supreme Court of Pakistan has stated as to what questions must be raised and the same read as under:- "(i) Was the donor suffering at the time of the gift from a disease which was the immediate cause of his death ? (ii) 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? (iii) Was the illness such as to incapacitate him from the pursuit of his ordinary avocation a circumstance which might create in the mind of the sufferer an apprehension of death? (iv) Had the illness continued for such .a length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady? In short the Court has to see whether the gift in question was made under the pressure 01 the sense of the imminence of death· (Emphasis provided) I have extracted the above passage from the judgment of learned Mr. Justice Fazle-Akbar with which learned Chief Justice, A. R. Cornelius has concurred. In the judgment separately delivered by Kaikaus J. the following observations on the matter in controversy and which help the decision on principle can be usefully extracted :- "If the finding as to the date of death of Mst. Husan Bano is not interfered with no ground remains for interference with the finding of marz-ul-maut in spite of the fact that no doctor had been produced Mst. Husan Bano was old and ailing and if she died only two hours after the registration of the gift it is easy to accept that she was suffering from some disease which caused serious apprehension of death. So far as the legal aspect of marz-ul-maut is concerned. what is really needed is. Husan Bano was old and ailing and if she died only two hours after the registration of the gift it is easy to accept that she was suffering from some disease which caused serious apprehension of death. So far as the legal aspect of marz-ul-maut is concerned. what is really needed is. as pointed out in Ibrahim Goolam Ariff v. Saiboo and others that the gift should be made "under the pressure of the sense of imminence of death," The rest of the matters which are generally stated in commentaries on Muslim Law as matters requiring investigation in a case of marz-ul-maut are really matters relating to evidence. If the gift had in fact been made "on account of pressure of the sense of imminence of death" the gift would be affected by doctrine of marz-ul-maut." (Emphasis added) This datum-line of the doctrine found by the Supreme Court of Pakistan is clearly in accord with what the Privy Council observed in Ibrahim Goolam Arif's case (supra). Similarly the law is understood and applied in this Court. Therefore what is required to be proved upon the preponderance of probabilities is whether the gift was made by the ailing person while under the apprehension of the death and further whether in such ailing he met his death.' 16. It is true that mere apprehension on the part of an old man, who is not afflicted by any malady would not be sufficient to answer the doctrine. Mere accident of death which is a fact certain in human life does not afford good reason to invalidate the depositions. The basic juridcial thinking and the pronouncement of the Courts upon the instant doctrine clearly spell out that the English phrase "death· illness" is not a sufficient, adequate or 'complete connotation of the term "marz-ul-maut", for, that doctrine appears to comprehend an affliction or malady leading upto death or involving the death of the person concerned. Because of that, with the proof of death, its causation and the condition of person have its own and clear significance~ Death is the certain and central fact. Proximate danger of death in an illness, it is common experience, casts ominous elongated shadows discernible along the lines of conduct of the person who is subject to the process of dissolution of life. In that there is all the apprehension of withering away of human faculties and rational capacities. Proximate danger of death in an illness, it is common experience, casts ominous elongated shadows discernible along the lines of conduct of the person who is subject to the process of dissolution of life. In that there is all the apprehension of withering away of human faculties and rational capacities. Such process may set in and became pronounced as the journey's end comes near. Mind under such condition would get seized by the fright of the final full stop and all winged and animated spirits involving free will clarity and reasonable and purposeful action may be clipped and caught in the mesh of progressing paralysis. The apprehension that the curtain is wringing down on the life in such a state would easily grasp all the consciousness as the physical malady surely affects every faculty clouding the will and reason of human being. It is no doubt that when such preponderance of an onset of physical and psychological atrophy operating over the field of free and balanced will can be inferred, the dispositions cannot be validated. The light of reason at such moment is not expected to burn bright as the flame of life itself flickers drawing ghastly shadows on the cold, deadly wall of the inevitable. It is conceivable, therefore, that the pragmatic philosophy of Mohamedan Law thought it wise to put under eclipse the acts and dispositions done upon the promptings of a psychosis indicating apprehension or clear fear of death either induced by or during the last suffering or illness of the person dying. Law assumes that apart from the dominant danger of loss of free will, such person may clearly lose touch with his spiritual dictates and may hasten even against the need of his clear obligations and interests to do the things which he might not have normally and in times of health, done. Once the subjective apprehension of death, its possibility or preponderance is established and there is evidence of accelerated dissipation of the life itself, leading unto death due to malady or affliction, the dispositions made by such person are treated, as if, it were an outcry against the demonic fear of death itself and thus basically a non-juristic action. 17. Once the subjective apprehension of death, its possibility or preponderance is established and there is evidence of accelerated dissipation of the life itself, leading unto death due to malady or affliction, the dispositions made by such person are treated, as if, it were an outcry against the demonic fear of death itself and thus basically a non-juristic action. 17. Therefore, it is clear that all the circumstances surrounding the disposition itself, the physical and psychical condition of the person afflicted, the nature of the malady and the proximity of death to the actual act of disposition and further the fact of death, are all the matters which should furnish to the Court as a feedback to find out a. to whether the disposition is within the mischief of this doctrine. Once probabilities hold out that there was even some degree of subjective apprehension of death in the mind of the sick person who eventually died, suffering from his last illness, the subjective test implicit in the doctrine is satisfied both on principle and policy. To find that, with the growth of medical and psychological sciences in the modern times, several indicia would be easily available. However, it is not necessary to have any static approach or to put up any given praxis in that regard. Obviously it is all a matter of eminent and entire appreciation of facts and circumstances involved in a given case wherein the ultimate crisis of the drama of life leading upto death will have to be properly scanned and constructed. 18. Therefore, once there is evidence to support the findings reached 'by the Courts of fact either coming from those who were near the deceased during I the relevant period or as may be disclosed by the documentary evidence throwing light on the period, the matter is not open to investigation in second appeal for the provisions of section 100 of the Code of Civil Procedure do not permit such a challenge unless the appreciation of evidence can itself be shown to be perverse or against record. Merely because medical evidence is not put forth, the principle does not change. Adequacy of evidence and its fullness are still the matters in the ken of considerations that satisfy the conscience of the Court which is required to find facts. By that no question of law is raised. Merely because medical evidence is not put forth, the principle does not change. Adequacy of evidence and its fullness are still the matters in the ken of considerations that satisfy the conscience of the Court which is required to find facts. By that no question of law is raised. The usual submission based on the principle of onus of proof would be irrelevant once the matter had been understood by the parties and they were obliged t6 lead evidence on the relevant facets of the doctrine. No doubt, the initial burden to prove the requirements of marz-ul-maut is on the person who sets up such a plea as affecting the disposition of a dead person; that can be discharged by the proof of facts and circumstances in which such person met his death and the attendant events preceding and succeeding the disposition itself. Once the possibility of a subjective apprehension of death in the mind of suffering person who made the gift is raised, clearly the burden shifts to that party who takes under the disposition or set up the title on its basis. Such party may prove the facts and circumstances which would enable the Court to hold that the disposition itself was not made while the suffering person was under the apprehension of death; for, as I said earlier, there may be several answers to the problem and mere accident of death of the person making the disposition would not be enough. An old man meeting a natural death may be well disposed to see that the matters are settled in his lifetime and such dispositions would be perfectly valied and would not answer marz-ul-maut. It is, therefore, necessary for the party setting up the disposition to rebut the proof that may be indicative that the disposition is within mischief of marz-ul-maut. That cannot be done by merely relying on the abstract doctrine of onus of proof or insisting upon the evidence' of medical experts not tendered by the opposite party. In a given case such evidence may not be at all available. 19. Even assuming that the question is open for being examined in second appeal, the facets of the present case bear out that Abdul Kadar was taken seriously ill from before 1st February and he never recovered from that illness. In a given case such evidence may not be at all available. 19. Even assuming that the question is open for being examined in second appeal, the facets of the present case bear out that Abdul Kadar was taken seriously ill from before 1st February and he never recovered from that illness. During that illness he was not even able to look after himself and died shortly, i. e. on 4th February. He had reached the mental low of such kind as he was asking for his near and dear ones to be by his side and when his daughters came near him, he was even unable to express himself. He was merely making signs and shedding tears while looking at his relatives. That shows the sense of helplessness with which Abdul Kadar was seized during his last suffering. All this raises a clear possibility that while he was making the gift which is about 24 hours before death, he was seized or gripped by the subjective and imminent apprehension of his death. In fact, the signs of such psychosis had already set in. The malady or illness did not leave him till last. The bed on which he rested proved to be the death-bed and at the mellowed age of eighty this leaf fell from the tree of life. 20. All this unmistakably answers that the gift evidenced by Exh. D·3 is within the law of marz-ul-maut as understood by the Mohamedan precepts and cannot be sanctioned. 21. In the result, therefore, the appeal fails and is dismissed. However, in the circumstances, there would be no orders as to costs. Appeal dismissed.