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2014 DIGILAW 550 (MAD)

Mehrunnissa Bee v. Mahaboob Bi (Deceased)

2014-02-28

R.S.RAMANATHAN

body2014
JUDGMENT 1. The second defendant in O.S.No.1689 of 1972 on the file of the First Assistant Judge, City Civil Court, Chennai, is the appellant. The deceased first respondent/plaintiff filed the above suit for partition of her half share in the suit property, for declaration that the settlement deed dated 27.11.1970 was not valid and void and not binding on the plaintiff and for rendition of accounts. 2. The case of the plaintiff is as follows: The plaintiff is the daughter of late Abdulla Sheriff through his first wife Choti Bi alias Rahima Bi and she is the only issue of late Abdulla Sheriff and she is entitled to half share in the properties left by her father. The other half share of her father's estate devolved upon the defendants 6 to 8. The defendants 1 to 5 are the children of Mahaboob Bi alias Choti Bi, who is the sister of the second wife of Abdulla Sherif. Therefore, they are not entitled to claim any share in the properties left by Abdulla Sherif. Abdulla Sherif died on 20.6.1971 leaving behind the suit properties, the plaintiff and the defendants 6 to 8. Items 1 and 2 were purchased by Abdulla Sherif in his own name and the last item was purchased by him in the name of his second wife Khatoon Bi. Abdulla Sherif was in exclusive possession and enjoyment of the properties exercising right of ownership. The second wife Khatoon Bi of Abdulla Sherif died on 17.11.1970 without leaving any issues and after her death, the defendants 1 to 5 started exercising undue influence and control over Abdulla Sherif and prevented the plaintiff from seeing her father. Abdulla Sherif, the father of the plaintiff was not keeping good health, was very old and had high blood pressure and was also suffering from paralysis on left hand and leg and he was ailing and bed-ridden for a long time prior to his death. After the death of his second wife, Khatoon Bi, his health deteriorated. Taking advantage of the health condition of Abdulla Sherif and when he was in contemplation of death, defendants 1 to 5 fraudulently obtained a registered settlement deed dated 27.11.1970 executed by Abdulla Sherif in their favour. After the death of his second wife, Khatoon Bi, his health deteriorated. Taking advantage of the health condition of Abdulla Sherif and when he was in contemplation of death, defendants 1 to 5 fraudulently obtained a registered settlement deed dated 27.11.1970 executed by Abdulla Sherif in their favour. The settlement deed dated 27.11.1970 is not legally valid and is hit by marz-ul-maut and no possession was delivered to the defendants pursuant to the settlement deed dated 27.11.1970 and at the time of execution of the document, Abdulla Sherif was not in a sound disposing state of mind. Anticipating that defendants 1 to 5 might create documents taking the precarious health condition of the father, the plaintiff made a publication in the Tamil daily, "Dinathanthi" on 17.11.1970 stating that she was the only daughter of Abdulla Sherif and nobody could deal with the properties of Abdulla Sherif. Another publication was also made on 20.11.1970 by the plaintiff. The defendants 1 to 5 made a counter publication on 27.11.1970 giving false information. On the same date, they also obtained settlement deed in their favour. A reading of the settlement deed would also prove that it was not executed by Abdulla Sherif and the birth of the plaintiff was suppressed and it was falsely alleged that the defendants 1 to 5 looked after Abdulla Sherif, and though Abdulla Sherif executed two settlement deeds namely on 27.1.1936 and 20.5.1952 in favour of his wife Khatoon Bi, those settlement deeds were sham and nominal, were not acted upon, were not given effect to and Abdulla Sherif continued to be in possession of the property and delivery of possession was also not made. The second wife of Abdulla Sherif namely, Khatoon Bi had no brother or sister and Syed Ismail and Mahboob Bi are not brother and sister of Khatoon Bi and they are not entitled to any share. The defendants 1 to 5 are collecting rents from the schedule properties and therefore, they are liable to account for the same. Hence, the suit was filed for the relief as stated supra. 3. The defendants 1 to 5 filed a statement contending that the plaintiff was not the daughter of Abdulla Sherif and therefore, the plaintiff had no cause of action to file the suit. Hence, the suit was filed for the relief as stated supra. 3. The defendants 1 to 5 filed a statement contending that the plaintiff was not the daughter of Abdulla Sherif and therefore, the plaintiff had no cause of action to file the suit. They also denied the allegation that the settlement deed dated 27.1.1936 and 20.5.1952 were sham and nominal documents and were not acted upon. As per the settlement deed referred to above and after the death of Khatoon Bi, Abdulla Sherif became entitled to half share in the suit properties as inherited from his wife Khatoon Bi and the remaining half share is inherited by brother and sister of Khatoon Bi. Abdulla Sherif settled his half share which he inherited from his wife on the defendants 1 to 5 and therefore, the settlement deed dated 20.11.1970 was valid one and was acted upon. Abdulla Sherif was not in marz-ul-maut when he executed settlement deed nor was he under the control or influence of the defendants 1 to 5. He was hale and healthy and was keeping good health and was in a sound disposing state of mind and he was not under the undue influence or coercion of the defendants 1 to 5 at the time of execution of the settlement deed. Abdulla Sherif died 7 months after the execution of the settlement deed. The settlement deed was executed by Abdulla Sherif when he was in a sound disposing state of mind and therefore, the settlement deed was valid and the same cannot be challenged by the plaintiff. The earlier settlement deeds dated 27.1.1936 and 20.5.1952 were not sham and nominal and they were valid and the plaintiff cannot claim any share in the properties of late Abdulla Sherif. 4. An additional written statement was filed by taking plea that the suit is bad for non-joinder of necessary parties, namely, Khader Sheriff who is Abdulla Sherif's father's brother's son. The defendants 6 to 8 are not the residuary heirs of late Abdulla Sherif. 5. On the basis of the above pleadings, the following points were framed:- (i) Whether the plaintiff is entitled to half share in the suit property? (ii) Whether the settlement deed dated 27.11.1970 vitiated by fraud and misrepresentation? (iii) Whether the settlement deeds dated 27.1.1936 and 20.5.1952 are sham and nominal? (iv) Whether the defendants 1 to 5 are entitled to any share? (ii) Whether the settlement deed dated 27.11.1970 vitiated by fraud and misrepresentation? (iii) Whether the settlement deeds dated 27.1.1936 and 20.5.1952 are sham and nominal? (iv) Whether the defendants 1 to 5 are entitled to any share? (v) Whether the defendants 1 to 5 are liable to render accounts of the rental collections? (vi) To what relief? 6. In addition to the above, the following additional issues were framed:- (a) whether D9 excludes D6 to D8 from the list of residuary heirs? (b) Whether the suit is bad for non-joinder of the heirs of Khatoon Bi? 7. On the side of the plaintiff, she examined her as PW.1 and examined PWs.2 to 5 on her side and marked Exs.A.1 to A.10. On the side of the defendants 4 witnesses were examined and Exs.B.1 to B.18 were marked. 8. The trial Court tried issues 1 to 4 together and held that the plaintiff was the daughter of Abdulla Sherif and the same was proved by Ex.A.9 Extract from the Nikha Register and its English version Ex.A.10. The evidence of PWs.2 to 5 would prove that late Abdulla Sherif was very aged person, was having high blood pressure, suffering from paralytic stroke and his face was defaced and he was not capable of managing his affairs. Therefore, he was in a state of marz-ul-maut and at that stage, the settlement deed was obtained by practising undue influence and fraud and therefore, that is not valid in law and the earliest settlement deeds dated 27.1.1936 and 20.5.1952 were also sham and nominal documents as the properties were owned by Abdulla Sherif and the plaintiff was his only daughter and she is entitled to half share and the settlement deed dated 27.11.1970 is not binding on the plaintiff and therefore, she is entitled to half share and the suit was decreed as prayed for. Aggrieved by the same, this Appeal is filed. 9. The learned counsel for the appellant submitted that the trial Court erred in holding that the plaintiff was the daughter of Abdulla Sherif and Ex.A.9 and its translated version Ex.A.10 will not prove that the plaintiff was the daughter of Abdulla Sherif. In Exs.A.9 and 10, it was only stated that the name of the bride was recorded as Mehaboob Bibi as per the direction of father, Mohideen Sheriff. Therefore, it cannot be relied upon to prove paternity of the plaintiff. In Exs.A.9 and 10, it was only stated that the name of the bride was recorded as Mehaboob Bibi as per the direction of father, Mohideen Sheriff. Therefore, it cannot be relied upon to prove paternity of the plaintiff. He also submitted that at the time of execution of settlement deed dated 27.11.1970 Abdulla Sherif was not in contemplation of death and he was hale and healthy and he was suffering from paralytic stroke and therefore, he was not able to sign his name correctly and otherwise, he was keeping his good health. He also submitted that DW.3 spoke about the health of the deceased Abdulla Sherif and the settlement deed dated 27.11.1970 cannot be characterised as a document executed while Abdulla Sherif was in marz-ul-maut. He also submitted that even according to the plaintiff she never came and visited her father and none of the witnesses spoke about the physical condition of the father Abdulla Sherif and therefore, the finding of the trial Court that Abdulla Sherif was not keeping any good health and the document dated 27.11.1970 was also hit by marz-ul-maut and therefore, not binding on the plaintiff is erroneous and liable to be set aside. He also submitted that under the settlement deed dated 27.1.1936 and 20.05.1952 Abdulla Sherif settled all the properties to his wife, Khatoon Bi and therefore, after her death, husband Abdulla Sherif, became entitled to half share and the remaining half share was inherited by the brother and sister of Khatoon Bi as per Mohamaden law and half share inherited by the husband, Abdulla Sherif was settled in favour of the defendants 1 to 5 and therefore, it cannot be contended that the settlement deed is not valid and hit by marz-ul-maut. He submitted that Dws.2 to 4 gave evidence regarding physical condition of Abdulla Sherif and settlement deed dated 27.11.1960 was the registered settlement deed and Abdulla Sherif also appeared before the Registrar and admitted execution in the presence of witnesses and therefore, the settlement deed dated 27.11.1970 was not executed when Abdulla Sherif was in contemplation of death. He also submitted that paper publication was made by Abdulla Sherif and that was evidenced by Ex.B.6. He also submitted that paper publication was made by Abdulla Sherif and that was evidenced by Ex.B.6. He also submitted that Muthavalli sent letter Ex.B.7 to Abdulla Sherif regarding the claim made by the plaintiff and Abdulla Sherif sent a reply Ex.B.8 wherein he denied that the plaintiff was his daughter and Exs.B.9 and B.10 were the letters of Abdulla Sherif to Mahaboob Bi Sahib. In his letter to Jamathdars, he also made it clear that on his own volition, he settled the properties to defendants 1 to 5. Therefore, settlement deed dated 27.11.1970 is valid one and as per the settlement deed Abdulla Sherif settled his half share in favour of the defendants 1 to 5 and they became absolute owners of the property with respect to half share and these were not properly appreciated by the trial Court. 10. On the other hand, Mr.Inamdar Ameernur Rahman, learned counsel for the respondents submitted that the trial Court after properly appreciating the oral and documentary evidence rightly held that the plaintiff was the daughter of Abbulla Sherif through his first wife and the settlement deeds dated 27.1.1936 and 20.5.1952 executed by Abdulla Sherif in favour of his second wife Khatoon Bi were not valid and no delivery was given and Abdulla Sherif continued to be in possession and enjoyment of the properties and in the absence of any delivery, the gift deed has not taken effect. He, further, submitted that even assuming that two settlement deeds dated 27.1.1936 and 20.5.1952 were true, they were not acted upon as the delivery was not given and the properties were enjoyed by Abdulla Sherif till his death. He also submitted that the evidence of PW.2 would prove that Abdulla Sherif was not keeping good health and PW.2 is the doctor who attended on the deceased Abdulla Sherif and therefore, his evidence was properly appreciated by the trial Court to arrive at the conclusion that the settlement deed was executed when he was in contemplation of death. Similarly, PW.3 to PW.5 also spoke about the health condition of Abdulla Sherif and their evidences were not impeached and considering these evidences, the trial Court rightly held that the settlement deed dated 27.11.1970 was hit by marz-ul-maut and is not valid and binding on the plaintiff. Similarly, PW.3 to PW.5 also spoke about the health condition of Abdulla Sherif and their evidences were not impeached and considering these evidences, the trial Court rightly held that the settlement deed dated 27.11.1970 was hit by marz-ul-maut and is not valid and binding on the plaintiff. As the properties belong to Abdulla Sherif, the plaintiff has inherited half share and the remaining half share devolved on the other defendants 6 to 8 and therefore, the suit was rightly decreed and therefore, no need for any interference. 11. He also relied upon the judgments reported in support of his contention:- (i) A.I.R. 1919 Allahabad 148 (Fazal Ahmad and another v. Mt.Rahim Bibi and others) (ii) A.I.R. 1921 Sind 177 (Mt.Bhagbhari and others v. Mt.Khatun and others) (iii) 1925 Bombay 305 (Hassanalli Degumiya v. Ruhulla Hamad) (iv) A.I.R. 1928 Patna 441 (Ali Zamin and another v. Syed Muhammad Akbar Ali Khan and others) (v) A.I.R. 1941 Lahore 58 (Mt.Sakina Begum v. Khalif Hafiz.Ud.Din and others) (vi) A.I.R.(32) 1945 Bombay 438 (Safia Begum and others v. Abdul Rajak and others. 12. On the above submissions, the following points for consideration arise in this Appeal:- (i) Whether the plaintiff was the daughter of Abdulla Sherif through his first wife? (ii) Whether the suit properties originally belong to Abdulla Sherif? (iii) Whether the settlement deeds dated 27.1.1936 and 20.5.1952 executed by Abdulla Sherif in favour of his second wife Khatoon Bi were valid? (iv) Whether the Abdulla Sherif was in contemplation of death at the time of execution of settlement deed dated 27.11.1970? (v) Whether the settlement deed dated 27.11.1970 was vitiated by fraud and undue influence and also hit by marz-ul-maut? 13. The suit was filed by the plaintiff stating that she was the daughter of Abdulla Sherif through his first wife. To prove the same, she marked Ex.A.9, the extract of the Nikha Register and Ex.A.10 translated copy of Matrimonial Certificate from the office of the Moulvi Mohamed Fasihuddeen, Government Khazai of Ahle Sunnat (The Sunis), Madras. It is seen from the various columns in the Nikha Register Ex.A.9 that the name of the bride was mentioned as Mahaboob Bibi, daughter of Abdulla Sherif. Further, it is seen in Ex.A.9, opposite to the column of "the name of bride's father" it is stated Abdullah Sehriff, as per the direction of Father Mohieen Sheriff. It is seen from the various columns in the Nikha Register Ex.A.9 that the name of the bride was mentioned as Mahaboob Bibi, daughter of Abdulla Sherif. Further, it is seen in Ex.A.9, opposite to the column of "the name of bride's father" it is stated Abdullah Sehriff, as per the direction of Father Mohieen Sheriff. In Ex.A.10, it is stated in the column, "name of patron with his generation : by the order of father Mohideen Sheriff Saheb, Railway Driver, son of Shaik Nargan Sahib, deceased". As Ex.A.9 is written in Urdu, we will have to depend upon the English translation by the official translator of this Court, and also the translation copy marked as Ex.A.10. Except Exs.A.9 and A.10, no other document was filed by the plaintiff to prove that she was the daughter of Abdulla Sherif. The witness examined on the side of the plaintiff did not specifically state that the plaintiff was the daughter of Abdulla Sherif. PW.2 would state that the plaintiff used to sit in Abdualla Sherif's house and the plaintiff was the daughter of Abdulla sherif. PW.3 and PW.5 also deposed that the plaintiff was the daughter of Abdulla Sherif. Therefore, considering the evidence of PW.1, PW.3 and PW.5 and also Exs.P.9 and 10, the trail Court has rightly come to the conclusion that the plaintiff was the daughter of Abdualla Sherif and I do not find any infirmity in the said finding and Point No.(i) is answered in favour of the plaintiff/first respondent. 14. Point No.(ii): It is the contention of the plaintiff that items 1 and 2 were purchased in the name of Abdulla Sherif and item 3 was purchased by Abdulla Sherif in the name of Khatoon Bi as benami and Abduall Sherif was enjoying the properties as his own and Khatoon Bi never exercised any right of ownership. However, Abdualla Sherif himself admitted in Exs.B.2 and B.3, settlement deeds dated 27.1.1936 and 20.5.1952 that the suit properties were his properties and he settled those properties on the second wife Khatoon Bi and therefore, I hold that the suit properties were the absolute properties of Abdulla Sherif and answer the issue accordingly. 15. However, Abdualla Sherif himself admitted in Exs.B.2 and B.3, settlement deeds dated 27.1.1936 and 20.5.1952 that the suit properties were his properties and he settled those properties on the second wife Khatoon Bi and therefore, I hold that the suit properties were the absolute properties of Abdulla Sherif and answer the issue accordingly. 15. Point No.(iii): It is the contention of the plaintiff that the settlement deeds dated 27.1.1936 and 20.5.1952 i.e. Exs.B.2 and B.3 were not acted upon and possession was not given and therefore, these deeds were not valid and Khatoon Bi never became owner of this property. Exs.B.2 and B.3 are registered documents and settlement deeds were executed by the husband in favour of his wife and under Ex.B.2, entire property was given to Khatoon Be, the second wife of Abduall Sherif retaining the life interest for him in respect of item 3. When the settlement deed was executed by the husband in favour of his wife and when both of them are living in the same house, there was no necessity to deliver possession. Further, no document was produced by the plaintiff to prove that even after the settlement deeds Exs.B.2 and B.3, Abdulla Sherif continued to exercise the ownership and there was no change of name in the revenue records in respect of those properties. Further, in Ex.B.3 specific recital was made regarding delivery of possession in respect of items 1 and 2. Therefore, having regard to the fact that settlement deeds were executed by the husband in favour of his wife and the settler did not challenge the settlement deeds for more than 30 years and no evidence was let in by the plaintiff to prove that it was not acted upon or properties continued to be in the name of the settler and also having regard to the fact that the recitals are there in the documents to the effect that possession was delivered, I hold that Exs.B.2 and B.3 were validly executed by Abdulla Sherif and they were acted upon and under those documents, Khatoon Bi, second wife of Abdulla Sherif, became the absolute owner of the suit properties. 16. Point No.(iv) and (v): It is the specific case of the plaintiff that Absulla sherif was not keeping good health and he was having high blood pressure suffering from paralytic attack and was in contemplation of death. 16. Point No.(iv) and (v): It is the specific case of the plaintiff that Absulla sherif was not keeping good health and he was having high blood pressure suffering from paralytic attack and was in contemplation of death. Admittedly, Abdulla Sherif died on 20.6.1971 and the settlement deed had been executed on 27.11.1970. Therefore, he lived for more than 7 months after the execution of the settlement deed. The settlement deed dated 27.11.1970 was registered one and the signature of Abdulla Sherif found in Ex.B.1 would prove that it was signed by Abdulla Sherif. The defendants 1 to 4 examined D.W.3 the Doctor to prove the health condition of Abduall Sherif and DW.2 is one of the attesting witnesses. Therefore, DW.1 to DW.4 proved that Abduall Sherif was in a sound disposing state of mind at the time of execution of Ex.B.1 settlement deed. The main contention of the plaintiff was that Abdulla Sherif was in death bed and undue influence was exerted on him and the settlement deed was obtained by defendants 1 to 5. To prove the health condition of Abdulla Sherif, the plaintiff examined PW.2. He deposed that he gave treatment for one month and thereafter, Abduall Sherif was taking treatment from the other doctor and he saw Abdulla Sherif for 20 days prior to his death. He also deposed that Abdulla sherif was not able to identify people and he was not having full mental faculties. He also stated that Abduall Sherif was having diabetics and he was also suffering from paralytic stroke. PW.1 admittedly has not seen her father for more than one year prior to his death and she has also not spoken anything about the health condition of her father. 17. In this background we will have to see the law on this point:- The Hon'ble Supreme Court in the Judge reported in (1991) 3 Supreme Court Cases 520 (Commissioner of Gift Tax, Ernakulam Vs. Abdu Karim Mohd. (Dead) by LRs.) while interpreting Section 191 of the Indian Succession Act, held as follows:- There is nothing new in the requirements provided under Section 191 of the Succession Act. They are similar to the constituent elements of a valid donation mortis causa. Abdu Karim Mohd. (Dead) by LRs.) while interpreting Section 191 of the Indian Succession Act, held as follows:- There is nothing new in the requirements provided under Section 191 of the Succession Act. They are similar to the constituent elements of a valid donation mortis causa. The essential conditions of a donation mortis causa may be summarised thus: "For an effectual donation mortis causa three things must combine: first, the gift or donation must have been made in contemplation, though not necessarily in expectation of death; secondly, there must have been delivery to the donee of the subject matter of the gift; and thirdly the gift must be made under such circumstances as shew that the thing is to revert to the donor in case he should recover. This last requirement is sometimes put somewhat differently, and it is said that the gift must be made under circumstances shewing that it is to take effect only if the death of donor follows; it is not necessary to say which way of putting it is the better." Jerman on Wills (8th ed. vol. 1 p. 46-47) also lends light on this aspect: "The conditional nature of the gift need not be expressed: It is implied in the absence of evidence to the contrary. And even if the transaction is such as would in the case of a gift inter vivos confers a complete legal title, if the circumstances authorise the supposition that the gift was made in contemplation of death, mortis causa is presumed. It is immaterial that the donor in that dies from some disorder not contemplated by him at the time he made the gift. Similar is the statement of law in Williams on 'Executors and Administrators' (14 ed. p. 315): "542. Conditional on death: The gift must be conditioned to take effect only on the death of the donor. But it is not essential that the donor should expressly attach this condition to the gift; for if a gift is made during the donor's last illness and in contemplation of death, the law infers the condition that the donee is to hold the donation only in case the donor dies. The principles in the Corpus Juris Secundum (vol. But it is not essential that the donor should expressly attach this condition to the gift; for if a gift is made during the donor's last illness and in contemplation of death, the law infers the condition that the donee is to hold the donation only in case the donor dies. The principles in the Corpus Juris Secundum (vol. 38 p. 782) are not quite different: "...A gift causa mortis differs from a gift inter vivos in that it is made in view of expected or impending death, as appears infra $$ 75, 78. The vital distinction between a gift inter vivos and a gift causa mortis is that the former is irrevocable, while the latter may be revoked at any time before the donor's death, and may be defeated by the recovery or survival of the donor. More fully, a gift causa mortis is liable to revocation by the donor and does not pass an irrevocable title until the death of the donor, while a gift inter vivos vests an irrevocable title on delivery; in the case of a gift inter vivos the title is not only transferred and vested in the donee at once, but the gift is immediately completed and is absolute and irrevocable, while in the case of a gift causa mortis the transfer is subject to be defeated by the happening of any one of the conditions implied by the law." 18. In the judgment reported in 2014 (1) LW 337 (M.Abdul Hasan vs. A.Maimoonamal and 16 others), I had an occasion to deal with law relating to marz-ul-maut and at Paragraph No.15, I held as follows:- "15.Mulla, Principles of Mohamedan Law, 20th Edition 2013, in Paragraph 135 in Chapter - X deals with the death-bed gifts and acknowledgements, which reads as follows:- 135. Gift made during marz-ul-maut. ...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": Baillie, 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 subsequently reaches such a stage as to render death highly probable, and does in fact result in death. 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 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 "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 familiarized 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 of 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 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 cause of death. 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 made 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. 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. The statement of the legal position of the above lines is not and cannot be in dispute." It is also held by this Court in the Judgment reported in AIR 1973 Madras 154 [Bhooma Bi vs. Gujar Bi] that total evidence and all circumstances should be examined and a finding of gift being made in marz-ul-maut cannot be given when it is not alleged in the plaint or raised at the trial. It is not for the Court to raise the point suo motu. In the judgment reported in (1991) 3 SCC 520 , the very same principles were reiterated in the case of marz-ul-maut and having regard to the evidence in that particular case, it was held that the gift was a marz-ul-maut. 19. In the judgment reported in A.I.R. 1921 Sind 177 supra relied upon by the learned counsel for the respondents 8, 10 to 14, 15 to 21 and 27 to 36, the same principles are stated, which are as follows:- "In order to establish Marz-ul-maut there must be present at least three conditions:- 1. Proximate danger of death, so that there is a preponderance of apprehension or Khouf that at a given time death must be more probable than life; 2. there must be some degree of subjective apprehension of death in the mind of the sick person; and 3. there must be some external indicia chief among which would be the inability to attend to ordinary avocations. 20. In A.I.R. (32) 1945 Bombay 438 supra, it is held as follows:- "The crucial test of marz-ul-maut is 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 symptoms, like physical incapacities, are only the indicia, but not infallible signs or a sine qua non of marz-ul-maut." 21. In the judgment reported in A.I.R.1941 Lahore 58 supra, it is held as follows:- "In order to invalidate a death-bed gift it must be shown that at the time of the execution of the deed of gift, the donor was suffering from a serious disease which it was known would in all probability terminate fatally, that the disease was such as to engender in the patient the apprehension of death and that the illness incapacitated him from the pursuit of his ordinary avocations. It is however not necessary to show that the disease was in fact the immediate cause of death." 22. In the judgment reported in 1925 Bombay 305 supra, it is held as follows:- "In order to establish marz-ul-maut there must be present at least these conditions:- (a) Proximate danger of death, so that there is, a preponderance of apprehension, that is, at the given time death must be more probable than life. (b) there must be some degree of subjective apprehension of death in the mind of the sick person; (c) there must be same external indicia, chief among which may be placed the inability to attend to ordinary avocations." 23. In the judgment reported in A.I.R. (35) 1948 Oudh 301 supra, it is held as follows:- "The doctrine of marzulmaut, applies to cases where the fit is made under pressure of a sense of imminence of death. The essential condition, thus, for its application is that there must be a subjective feeling in the mind of the patient that he is not going to recover; in other words, there must be proximate danger of death resulting subjectively in the preponderance of apprehension. The facts have to be proved like any other fact and may be evidenced by some external indicia in the patient's condition or his expressions and declarations" 24. Therefore, from the above decisions, it is made clear that if the documents were executed when the executent was in contemplation of death, that document was hit by marz-ul-maut and the executent cannot convey more than 1/3rd share in the properties. As stated supra, no evidence was let in to prove that Abdulla Sherif was in death bed and was in contemplation of death at the time of execution of settlement deed dated 27.11.1970. Exs.B.8 and B.9 would also prove that Abdulla Sherif was conscious enough to execute the settlement deed Ex.B.1. As stated supra, no evidence was let in to prove that Abdulla Sherif was in death bed and was in contemplation of death at the time of execution of settlement deed dated 27.11.1970. Exs.B.8 and B.9 would also prove that Abdulla Sherif was conscious enough to execute the settlement deed Ex.B.1. Ex.B.7 was the letter from Muthavalli to Abduall Sherif regarding the complaint given by the plaintiff and Ex.B.8 was the reply sent by Abdulla Sherif and Exs.B.9 and B.10 were also the letters sent by Abdulla Sherif to Alijanab Secretary Committee Majid Ahrar. He also sent a letter to the editor, "Daily Thanthi" requesting them to issue his counter publication to the publication made by the plaintiff as evidenced by Ex.B.6. Therefore, in the absence of any evidence on the side of the plaintiff to prove the health condition of Abduall Sherif and having regard to Ex.B.6, I am of the opinion that the plaintiff failed to prove that Abduall Sherif was in death bed at the time of execution of Ex.B.1. As laid down in the above judgments, mere illness cannot characterise a document executed in contemplation of death. Unless the plaintiff is able to prove that Abduall Sherif was in death bed or was suffering from some disease from which he should not have recovered and he was also conscious of the said fact and at that time, he executed settlement deed Ex.B.1, the plaintiff cannot challenge Ex.B.1. According to me, the plaintiff miserably failed to prove that Ex.B.1 was executed by Abdulla Sherif while he was in contemplation of death. 25. These aspects were not properly appreciated by the trial Court and the trial Court erred in holding that Ex.B.1 was not valid and was executed when Abdulla Sherif was in contemplation of death. Therefore, I hold that Ex.B.1 was executed validly by Abdulla Sherif and it is binding on the plaintiff and answered Issues 4 and 5 in favour of the appellant and against the first respondent/plaintiff. 26. As stated supra, Khatoon Be, became the absolute owner of the suit property as per Exs.B.2 and B.3 and on her death, her husband Abdulla Sherif inherited half share and the remaining half share was inherited by the brother and sister of Khatoon Bi and under Ex.B.1, Abdulla Sherif settled his half share in the suit properties in favour of defendants 1 to 5. This fact would also indicate that Abdulla sherif was conscious of his right over the suit properties. 27. In the result, the plaintiff failed to prove that Abdulla Sherif was in death bed at the time of execution of Ex.B.1 and therefore, Ex.B.1 is a valid document and properties belonged to Khatoon Bi and on her death, Abdulla Sherif and the brother and sister of Khatoon Bi inherited the suit properties and Abdulla Sherif validly settled his half share on defendants 1 to 5. Therefore, the plaintiff is not entitled to claim any share. 28. In the result, the Judgment and Decree of the trial Court are set aside and the Appeal is allowed. No order as to costs.