JUDGMENT.-This appeal has been filed by the defendants in O.S. No. 37 of 1970 in the Court of the District Judge of Dharmapuri at Krishnagiri. “2. The suit property is a house which >”belonged to one Diwan Sahib who died about 25 years ago leaving behind him his widow Badibi alias Jamila Bi, his son Goodu Sahib (the first defendant) and five daughters. Plantiffs 1 to 4 are the four daughters, and the fifth daughter by name Syeda Bi is now no more. Diwan Sahib executed a sale deed in favour of his wife Badibi on 10th December, 1940 under Ex. B-2 for a sum of Rs. 300. The said Badibi executed a deed of gift on 6th December, 1969 marked as Ex. B.1 in the case, in favour of her son Goodu Sahib who is the first defendant in the suit. She died some time in January, 1970, i.e., about a month after the said gift. Plaintiffs 1 to 4, namely, the daughters of the said Jamela Bi and the fifth plaintiff, the son-in-law through the deceased daughter filed the present suit for partition and separate possession contending that the sale-deed in favour of the said Badibi alias Jamila Bi was only a nominal transaction that she was one of the heirs of Diwan Sahib on his death and that the deed of gift, if at all, would be valid only in respect of her l/8th share. There was a plea that the deed of gift had to fail because it was a death bed gift coming within the scope of the doctrine of marz-ul-maut known to Mohammedan Law. There was also an allegation that the said deed of gift had been taken from Badibi by undue influence, so as to be void and invalid. 3. The first defendant is the son of Badibi and also the donee. The other defendants are only tenants in the premises. 4. The first defendant in his written statement pleaded that the sale in favour of his mother Badibi was an absolute one for full consideration, that the gift could not fail as a death bed gift as, at the time of the gift, Badibi was hale and hearty and that there was no question of any undue influence being exerted on her by him. The trial Court framed the following material issues: 1. The trial Court framed the following material issues: 1. Whether the deed of sale executed by Diwan Sahib in favour of Badibi alias Jamila Bi was sham and nominal ? 2. Whether the deed of gift executed by Badibi alias Jamila Bi in favour of the first defendant was brought about by undue influence? 3. Whether the said deed of gift was executed by Badibi alias Jamila Bi during marz-ul-maut? 5. It was held that the sale-deed in favour of Badibi by Diwan Sahib was not a sham and nominal one and was valid. It was further held that Ex. B-1 the deed of gift was the result of undue influence practised by the donee upon his old helpless mother who had been depending on him all through. On the question of the gift being a death bed one, the finding was that the deed had been executed during marz-ul-maut in favour of one of her heirs by Badibi and it was totally invalid as the other heirs had not consented thereto. The trial Court granted a preliminary decree for partition and separate possession of the plaintiffs’ 29/42nd share in the schedule properties. It is this decree that is now attacked by the first defendant. 6. The learned counsel for the appellants contended that the deed of gift was executed by Badibi in full possession of her mental faculties, that she was not ill at the time when she executed the gift deed and that the gift deed could not be said to fall within the scope of the doctrine applicable to death bed gifts. He further contended that there was no question of any undue influence being exerted on her and that the transaction was open and voluntary. The respondents’ counsel contested these submissions. 7. Two questions call for consideration in this appeal. The first is whether the deed can be said to be one executed during marz-ul-maut, so as to be invalid. The second is whether the gift suffered from any infirmity of having been executed on account of any undue influence exerted by the first defendant over his mother, the donor. 8. Paragraph 135 of Mulla’s Principles of Mahomedan Law — Eighteenth Edition deals with gift made during marz-ul-maut. The second is whether the gift suffered from any infirmity of having been executed on account of any undue influence exerted by the first defendant over his mother, the donor. 8. Paragraph 135 of Mulla’s Principles of Mahomedan Law — Eighteenth Edition deals with gift made during marz-ul-maut. It runs as follows:- “...A gift made by a Mahomedan during marz-ul-maut or death — illness cannot take effect beyond a third of his estate after payment of funeral expenses and debts, unless the heirs give their consent, after the death of the donor, to the excess taking effect; nor can such a gift take effect if made in favour of an heir unless the other heirs consent thereto after the donor’s death. Explanation:-A marz-ul-maut is a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death.” 9. It has been pointed out by the same author that 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) and that the most valid definition of death-illness is that it is one which it is highly probable will issue fatally. Where the malady is of long continuance and there is no immediate apprehension of death, the malady is not marz-ul-maut. 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. It is not necessary however, to come to a definite finding that the disease which caused the apprehension of death was the immediate cause of death. (See page 147 and 148). The statement of the legal position on the above lines is not and cannot be in dispute. 10. A Bench of the Calcutta High Court, in Fatima Bibee v. Ahmed Baksh1observed: “ According to the Mahomedan Law, three things are necessary to constitute marz-ul-maut or death-illness viz., (i) illness, (ii) expectation of fatal issue, and (iii) certain physical incapacities, which indicate the degree of the illness. 10. A Bench of the Calcutta High Court, in Fatima Bibee v. Ahmed Baksh1observed: “ According to the Mahomedan Law, three things are necessary to constitute marz-ul-maut or death-illness viz., (i) illness, (ii) expectation of fatal issue, and (iii) certain physical incapacities, which indicate the degree of the illness. The second condition cannot be presumed to exist from the existence of the first and the 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. When a malady is of long continuance and there is no immediate apprehension of death, it is not a death-illness so that a gift made by a sick person in such circumstances, if he is in the full possession of his senses, is not invalid....” This decision was taken on appeal in. Fatima Bibi v. Ahmed Baksh.2The decision was affirmed and it was held that whether the donor was or was not under apprehension of death at the time the deed was executed was the decisive test and that was a question essenially of fact. 11. It is in the light of those principles that the facts here have to be examined. The witnesses for the plaintiffs have all. stated that Badibi was suffering from some kind of bone tuberculosis and paralysis. There is a parrot-like repetition of the relevant vernacular expressions in each one of the depositions of P.Ws. 1 to 8. Curioulsy enough, there is absolutely no mention of any such illness in the plaint itself. The absence of any mention of the illness in the plaint shows that the repetitive statements in the depositions are only after-thoughts put into the mouth of the witnesses who came to give evidence. There is evidence to show that the lady Badibi had sustained a hip fracture some time prior to her death. According to the first defendant, it was about ten years prior to her death. Some of the witnesses for the plaintiffs have given the time of fracture from two years to one year preceding her death. Whether it was ten years or one or two years prior to her death, the fracture must have healed by the time the document came to be executed. In fact, this fracture is not by itself mentioned even in the depositions as the death-illness. Whether it was ten years or one or two years prior to her death, the fracture must have healed by the time the document came to be executed. In fact, this fracture is not by itself mentioned even in the depositions as the death-illness. The result of the fracture was that she had to walk with some support. Beyond. that, she appears to have been moving about with some kind of assistance. There is absolutely no reliable evidence about the bone T.B. or paralysis. Except one of the witnesses, the rest of them do not even say as to which part of the body was struck by paralysis. P.W. 7 is the only witness who says that the paralysis was on the left-side. If really she was struck by paralysis on the left-side, one would not have expected her to move about at all. The evidence of P.W.8 who claims to be a Unani doctor who had administered some medicines to her some time prior to her death, cannot be accepted as truthful as he is related as a sambandhi. His daughter is married to the second plaintiff’s son. He was thus interested in securing a share for the second plaintiff. There is thus no independent or reliable testimony in regard to the illness much less about it being a death-illness, so as to hold that the gift deed was executed during marz-ul-maut. The finding of the learned District Judge to the contrary cannot be supported by the evidence on record. 12. The next question is as regards the exertion of undue influence by the first defendant on his mother. In paragraph 5 of the plaint, after referring to the execution of the gift during marz--ul-maut, it is stated “the first defendant using undue influence and coercion got a gift deed executed by her in his favour on or about 6th December, 1969 of all these suit properties.” 13. Order 6, rule 4, Civil Procedure Code, provides that in all cases in which the party pleading relies on among others undue influences, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms provided in the Code, particulars (with dates and items if necessary) shall be stated in the pleadings. Order 6, rule 4, Civil Procedure Code, provides that in all cases in which the party pleading relies on among others undue influences, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms provided in the Code, particulars (with dates and items if necessary) shall be stated in the pleadings. Thus, in the case of undue influence, there is a mandatory requirement of the particulars having to be set out in the pleadings. 14. The Supreme Court in Subash Chandra v. Ganga Prosad 1laid down that before a Court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. Reference has been made to this aspect of the pleading having been given great stress in an earlier decision of the Supreme Court, namely, in the case of Ladli Prasad Jaiswal v. Karnal Distillery Co., Ltd.2At page 295 of that decision, it was observed: “ A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other.” 15. I have already referred to the portion of the pleading regarding undue influence and except for a bare assertion or a vague reference of undue influence, there is nothing in the plaint which gives any kind of particulars of undue influence said to have been exerted. The plaintiff’s claim based on undue influence has, therefore, to fail even on the threshold. 16. The learned counsel for respondents submitted that the plaint had been drafted in the mofusssil and it must not be scrutinised strictly and that so long as the circumstances that are present in the case made out undue influence, the inference regarding undue influence should be drawn. 16. The learned counsel for respondents submitted that the plaint had been drafted in the mofusssil and it must not be scrutinised strictly and that so long as the circumstances that are present in the case made out undue influence, the inference regarding undue influence should be drawn. He relied for this purpose on the following circumstances: (1) the relationship between the first defendant and Badibi; (2) the stamp papers having been purchased by the first defendant and he had himself paid the registration fee; (3) the scribe and attestors having all been assembled by him; (4) the absence of independent advice available to Badibi; (5) the scribe not having been examined; and (6) the onus to prove that the document was free from undue influence being on the propounder. I shall take each one of these circumstances and examine the contention even on the basis that the failure to set out the necessary particulars in the plaint may be left out of consideration. 17. The Privy Co,uncil in Poosathurai v. Kannappa Chettiar1pointed out as follows: "To treat undue influence as having been established by proof of the relations of the parties having been such that the one naturally relied upon the other for advice, and the other was in a position to dominate the will of the first in giving it, is erroneous. That merely proves influence. But both by the Law of India and the Law of England more than mere influence must be established so as to render it, in the language of the Law, ‘undue. ‘It must be established that the person in a position of domination has used that position to obtain unfair advantage for himself and so as to cause injury to the person relying upon his authority or aid. When the relation of influence as above set forth has been established, and it is also made clear that the bargain is with the person who influences the other, and is in itself unconscionable, then the person in a position to use his dominating power has the heavy burden thrown on him of proving affirmatively that no domination was practised so as to bring about the transaction but that the grantor of the deed was scrupulously kept separately advised in the independence of a free agent.." 18. The Supreme Court in Afsar Shaikh v. Soleman Bibi2pointed out as follows: "The law as to undue influence in the case of a gift inter vivos is the same as in the case of a contract. It is embodied in section 16 of the Indian Contract Act. Sub-section (1) of section 16 defines ‘undue influence’ in general terms. It provides that to constitute ‘undue influence’ two basic elements must be cumulatively present. First, the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other. Second, the party in dominant position uses that position to obtain an unfair advantage over the other. Both these conditions must be pleaded with particularity and proved by the person seeking to avoid the transaction" ‘(italicised by me) Even in dealing with a will, the Supreme Court pointed-out in H. Venkatachala Iyengar v. B.N. Thimmajamma3that if there was any allegation of fraud, undue influence etc., the onus would be on the person making the allegation. " 19. The relationship between the first defendant and his mother cannot thus by itself be a ground for inferring undue influence. The onus is on the person making the allegation of undue influence. Undue influence has not been proved on the facts here. Though he may have had influence over his mother, there must be proof of something done unduly and that has not been discharged in this case. 20. The evidence on record shows that the first defendant and his mother were living together. The evidence of the defendants’ witnesses is to the effect that she came to the shop in which the document was executed with some support. She was obviously limping because of the fracture. That she was in a position to move is established by the fact that she came to the Registrar’s Office and herself presented the document for registration. A lady like her had necessarily to rely on some male help for the purpose of getting the necessary-assistance in having the document executed. It is not as if the document was got executed in a hole and corner way. It was done in the full lime-light in the presence of a number of persons in the bazaar. There is no evidence to show that the document was written to the dictation of the first defendant. It is not as if the document was got executed in a hole and corner way. It was done in the full lime-light in the presence of a number of persons in the bazaar. There is no evidence to show that the document was written to the dictation of the first defendant. The learned counsel for the respondents submitted that he having assembled the scribe and the witnesses and also paid the registration fee should be taken to have exerted undue influence and got the document in the manner desired by him. However, there is absolutely no evidence to the effect that the whole document was got executed only to the dictation of the first defendant. 21. The contention that there was no independent advice available to her was sought to be based on the fact that the scribe and the attesting witnesses were all chosen by the first defendant whom he had brought together. However, the lady was in full possession of her senses. If really she was being made to write a document which she did not approve of, then one would have found protest from her. At the Registrar’s Office, P.W. 4 was present. P.W. 4 is none other than the fifth plaintiff, i.e. the son-in-law of Badibi through her deceased daughter. He is stated to have gone to the Registrar’s Office to enter his protest to the registration of the document. According to the learned counsel for the respondents, the Sub-Registrar referred the parties to a civil suit, if so advised. However, if Badibi was executing a document which she did not approve of, then she should have made capital of the sight of the fifth plaintiff and would have raised her objection against the first defendant getting her to execute such a document. There is no evidence of any such protest from her. The learned counsel for the respondents referred to the fact that she was about or more than 75 years old at the time of the execution of the document. Old age itself is no proof of loss of mental faculties and I do not, therefore, find any scope to draw any inference of undue influence on the facts here. Reliance was also placed on the fact that all the daughters had been disinherited. In the document itself, there is reference to the fact that the daughters had been married. Old age itself is no proof of loss of mental faculties and I do not, therefore, find any scope to draw any inference of undue influence on the facts here. Reliance was also placed on the fact that all the daughters had been disinherited. In the document itself, there is reference to the fact that the daughters had been married. It is in evidence that they were married by expending about Rs.2,000 to Rs. 4,000 in each case. There was only one family house in which the first defendant and his mother were residing. The lady appears to have considered her son to deserve the gift of these properties so that he was not disturbed by any of the daughters from residing there. There is nothing unnatural about it. As the daughters had been properly married off, the lady apparently considered that the son should have his house for himself and I do not find anything improper improbable, or unreasonable in the conduct of the lady. He being the only son, she could naturally have some greater-affection for him. There is nothing to disturb one’s conscience about it. 22. As pointed out by a Bench of his Court in Ponnayya v. Suppammal1, he fact that the settlor is amenable to persuasion is by no means a sufficient ground for setting aside transactions which he or she has executed when in full possession of his or her faculties. 23. The learned counsel for the respondents submitted that there is no esssential difference between the onus in the case of a will and in the case of a settlement. The onus of proof in a case like this has already been indicated by the decisions in Poosathurai v. Kannappa Chettiar2and in Afsar Shaikh v. Soleman Bibi3, the passages from which have already been extracted. 24. In a Bench decision of this Court: in Athayee v. Shanmugha Goundan,4the essential distinction in the two cases has been pointed out. At page 263 it was observed: " ... In the case of the former (will) the question always would arise after the death of the testator because the will takes effect as on his death unlike a conveyance which takes effect according to its tenor immediately or on a specified date. At page 263 it was observed: " ... In the case of the former (will) the question always would arise after the death of the testator because the will takes effect as on his death unlike a conveyance which takes effect according to its tenor immediately or on a specified date. Of course, in the case of a will as well as a settlement deed, the person who relies on either will have to prove its execution that is to say, that the executant signed the document and it was duly attested. But once that is done, we do not think that the person who relies on a settlement deed would be further called upon to show that the executant executed the document while he was in a sound and disposing state of mind. Where the fact is disputed, it is the party who asserts it, that will have to prove it. Where the execution is proved, it may well be taken for granted in the case of a conveyance or settlement deed that the executant knew its contents and was capable mentally and otherwise of making the disposition and understanding the same, unless the person asserting the contrary establishes his case.." 25. The law as regards onus is thus clear. The person who propounds a will is under a greater obligation to prove by clear evidence that the Will was executed by the testator and at the time of the execution he was a free agent and possessed of a sound and disposing state of mind. However, in the case of a settlement, as well as a Will, so long as the execution of the document is proved, the onus is on the person who asserts that the document had been obtained by undue influence. In cases other than a will, at any rate, the person who alleges has to prove that the executant did not have the mental capacity to comprehend the nature of the transaction. In the present case, I am unable to rely on the evidence adduced on behalf of the plaintiff that the lady was so ill that she could not understand the nature of the document that she was executing. She has herself attended the Registrar’s Office and presented the document for registration. Her physical capacity is clearly made out. There is no evidence to the contrary as regards her mental capacity. She has herself attended the Registrar’s Office and presented the document for registration. Her physical capacity is clearly made out. There is no evidence to the contrary as regards her mental capacity. In those circumstances, there is no scope for inference of lack of mental capacity on the part of the executant in executing the document. 26. A very persistent attempt was made by the learned counsel for the respondents to show that it was for the first defendant to examine the scribe. As I have already pointed out, the onus is on the plaintiffs to show that the document ‘had been got up by undue influence. The plaintiffs have not discharged the onus. It was they who should have examined the scribe. There is nothing to show that the scribe was a person who was at the control of the first defendant, so that he can be required to produce him. Having considered the evidence let in by both parties, I am satisfied that the question of undue influence or lack of mental capacity on the part of the executant has not been -established on the facts of the case. 27. In the result, the suit for partition has to fail. The preliminary decree for partition is set aside and the appeal is allowed. There will be no order as to costs.