Tudball and Muhammad Rafiq, JJ.:— This appeal arises out of a suit brought by Syed Faiyaz Husain, the plaintiff respondent No. 1, to recover his legal share in the estate left by his elder brother, Syed Tajammul Husain.

It appears that Tajammul Husain was the eldest of four brothers and one sister. One of the brothers, Riaz-ud-din, died in the life-time of Tajammul Husain leaving him surviving a son called Nasir-ud-din. The other two brothers and the sister, namely, Faiyaz Husain, Ehurshed Husain and Musammat Fizza, are still alive.

On the 4th of July, 1911, Tajammul Husain executed a deed in respect of the whole of his property in favour of Khurshed Husain. The document was written out as a deed of gift, but was prior to its execution altered and described as a sale-deed, the consideration of which was remitted by the executant. Immediately after the execution of the document an application for mutation of names was made by Khurshed Husain, and the next day, on the 5th of July, 1911, Tajammul Husain was examined on commission and admitted the application of Khurshed Husain. Tajammul Husain died four days after, on the 8th of July, 1911.

On the 22nd of July, 1911, Faiyaz Husain instituted the suit out of which this appeal has arisen in the court of the Subordinate Judge of Meerut for the recovery of his legal share, i.e, two fifths in the estate left by Tajammul Husain by cancellation of the deed of the 4th of July, 1911. The suit was brought against Khurshed Husain and Musammat Fizza. Faiyaz Husain challenged the deed of the 4th of July, 1911, which he described as a deed of gift, on various grounds. He said that Tajammul Husain was at the time in his dotage and had been ill for about two months prior to his death, and because of old age and disease was incapable of transacting or understanding the nature of any business. Four days prior to his death, Khurshed Husain, who was on bad terms with the plaintiff (Faiyaz Husain), taking advantage of the latter's absence from Mawana, the village where the parties reside, by the exercise of undue influence and pressure on Tajammul Husain, at a time when he was in a weak state of mind and body and in terror of impending death and incapable of appreciating the consequences of his act, with no one by him to give him independent advice, got him to execute a deed of gift under the colour of a sale-deed and had it registered in collusion with the Sub-Registrar of Mawana. There were thus four grounds upon which the deed of the 4th of July, 1911, was impeached, viz., fraud, undue influence, unsoundness of Tajammul Husain's mind and the execution of the deed in contemplation of death. Khurshed Husain alone resisted the suit, Musammat Fizza being a pro formâ defendant. He denied the allegations made in the plaint on the strength of which the deed of the 4th of July, 1911, was questioned. He said that some years prior to the death of Tajammul Husain, Nasir-ud-din had fallen out with the latter and that the feeling between the two ran high. Faiyaz Husain had taken the part of Nasir-ud-din, while he, Khurshed Husain, had supported Tajammul Husain. The latter was naturally displeased with Faiyaz Husain. In order to show his displeasure and also to benefit Khurshed Husain, who had a large family and a small income, while Faiyaz Husain had a good income and had only a daughter, who was well provided for, being married well, Tajammul Husain executed a sale-deed of all his property on the 4th of July, 1911, in his (Khurshed Husain's) favour, the sale price of which Tajammul Husain remitted. The latter had made up his mind a year or more prior to his death to transfer all his property to Khurshed Husain, though the actual transfer was made on the 4th of July, 1911. Tajammul Husain had been suffering from asthma for several years prior to his death and had no other illness at the time of the execution of the deed. He had an unexpected attack of asthma in a severe form on the 8th of July, 1911, and died suddenly, never expecting himself, and no one else expecting, his death. It was further pleaded in defence that, even if Tajammul Husain be said to have executed the deed in question in marz-ul-maut (death-illness), it is not invalid, partially or wholly, under the Shia law, by which the parties, being Shias, are governed, as possession had been delivered by the donor prior to his death. The learned Subordinate Judge, after a careful consideration of the evidence in the case, found the allegation of fraud, undue influence and unsoundness of Tajammul Husain's mind baseless. He, however, held that the deed executed by Tajammul Husain was a deed of gift and that it was executed in marz-ul-maut (death-illness). He further held that under the law, the deed was operative only to the extent of one-third of the donor's estate. A decree for two-fifths out of two-thirds of the estate of Tajammul Husain was accordingly passed in favour of the plaintiff, Faiyaz Husain. Khurshed Husain has come up in appeal to this Court. The character of the deed is not disputed before us. The argument for the defendant appellant has proceeded on the admission that it is a deed of gift. He challenges the decree of the lower court on two grounds, one of fact and the other of law. He denies that the deed of the 4th of July, 1911, was executed during marz-ul-maut (death-illness) or if it was executed during marz-ul-maut it is invalid partially under the Shia Law. He contends that the onus of proving the character of the disease of Tajammul Husain, which would, according to the plaintiff respondent, vitiate the deed in part, lay upon the latter, which has not been discharged. On the contrary, the evidence for the defendant appellant proves that Tajammul Husain died of a long-standing complaint, more than a year old, by a sudden and unexpected attack of it; and under the Shia law a disease more than a year old is not considered marz-ul-maut. The case of Fatima Bibi v. Ahmad Bakhsh is relied upon in support of the contention that a disease that lasts more than a year cannot be described as marz-ul-maut (death-illness).

The defendant appellant relies upon passages from nineteen writers on Shia Law in support of his said contention that a deed of gift executed during marz-ul-maut is valid with regard to the whole of the property of the donor, provided possession is given by the latter prior to his death.

We take up the question of fact first. But before considering the evidence on the point, it may be conceded that the onus of proving the character of the disease lay upon the plaintiff respondent. It may also be conceded that, under the Shia law, if a person dies of a disease of more than one year's duration such disease is not considered a death-illness. But there is this condition attached to it that if the illness increases to such an extent as to give, or another supervenes which gives, an apprehension of death in the mind of the donor, the increase or the new disease is a death-illness.

[After discussing the evidence the judgement proceeded.]

We, therefore, hold that the gift in favour of the defendant appellant was made by Tajammul Husain in marz-ul-maut (death-illness).

One more argument remains to be considered in connection with this point. It is urged on behalf of the defendant appellant that he has proved, both by oral and documentary evidence, that Tajammul Husain had intended from a year or more prior to his death to give all his property to the former. It was merely an accident that the gift was made by him during his death-illness. The argument assumes that a gift made during marz-ul-maut is not invalid if the donor intended to make it or thought about it before his last illness. The argument does not relate so much to the question of fact under discussion, viz., the character of Tajammul Husain's disease, as to a question of law, viz., the Validity of a gift made during death-illness which the donor had thought of making from before such illness. No authority has been cited in support of this contention. Besides, it appears that it was not so much to benefit the defendant appellant as to show his resentment to the plaintiff respondent, that Tajammul Husain wanted to give away all his property to the defendant appellant, and he was not going to, and did not, part with his property in his life-time and place himself at the mercy of his brother. He made up his mind and carried out his intention when he was in his last illness and despaired of his life. Under such circumstances, whatever intention he had prior to his death-illness would not affect the character of the gift. It would still remain a gift made during marz-ul-maut (death-illness.)

We now proceed to consider the second point raised in this appeal, viz., whether a gift made in marz-ul-maut (death-illness) is valid with regard to the whole of the property of the donor in case of the delivery of possession to the donee prior to the donor's death. The question raised by the defendant appellant is not free from difficulty. The difficulty is due, not to the absence of any definite opinion on the point, but to the diversity of opinion among the Shia jurists. One group of eminent Shia doctors would maintain the gift in respect of the whole of the donor's estate, while the other, equally high in learning and authority, would have it that a gift made in marz-ul-maut is valid to the extent of one-third only of the estate of the donor in spite of the delivery of possession prior to his death. The different opinions and the reasons in support of each will appear from the passages relied upon by the parties, which will be referred to presently. The defendant appellant has cited nineteen authorities in support of his contention. They are as follows:—

(1) Kifayat-ul-Ahkam, (2) Ar-Rauz-ul-Ariz, (3) Majma-ul-Masail, (4) Maqama, (5) Minhaj-ul-Idia, (6) Hadaiq-i-nazaira, (7) Nihaya, (8) Khilaf-ush-Shaikh (of Tusi), (9) Nikat-un-nihaya, (10) Shara-i-Lama, (11) Jawahar-ul-Kalam, (12) Khilaf-ush-Shaikh (of Suduq), (13) Riaz-ul-Masail, (14) Burhan-i-qata, (15) Maqnea Mufid (16) Hadaiq-i-Bahrani, (17) Jama-ush-Shattat, (18) Intesar and (19) Ghunnia.

Of these the first four are said to have been written within the last twenty-five years, Nos. 1, 3 and 4 being by Persian authors. The author of Ar-Rauz-ul-Ariz was Saiyid Allan Sahib, a member of one of the mujtahid families of Lucknow. The authority of these four books is disputed by the plaintiff respondent and there is nothing to show what weight is to be attached to them. In any case they cannot rank as high as the other authorities cited by the appellant or those relied upon by the respondent. We will not, therefore, discuss them. We would, however, remark that the author of Majma-ul-Masail is against the contention of the defendant appellant, but a marginal note by one Saiyid Kazim, who is said to be a mujtahid in najaf at present, is to the effect that the stronger opinion is in favour of the gift holding good in respect of the whole of the donor's estate. The author of Ar-Rauz-ul-Ariz, after giving the two opinions on the point and accepting the view contended for by the defendant appellant, however, remarks that “it is safer that the gift should receive effect to the extent of one-third according to the traditions and the better views.” The appellant is unable to say who was the author of Minhaj-ul-Idia. We cannot, therefore, say what weight it carries among the Shias, and we, therefore, leave it out of account. As to Hadaiq-i-nazaira, the passage relied upon is not quite explicit and we, therefore, do not discuss it. Of the remaining thirteen books, Shara-i-Lama and Jawahar-ul-Kalam do not support the case of the defendant appellant. Indeed, on the contrary, they are against him. Those passages have been cited by the defendant appellant from Shara-i-Lama and Jawahar-ul-Kalam where opinions of other writers are given. The authors of Shara-i-Lama and Jawahar-ul-Kalam uphold the gift in respect of only one-third of the donor's estate, as will be shown later in this judgement. It is, therefore, unnecessary to reproduce the passages referred to by the defendant appellant. The Nihaya and the Khilaf-us-Shaikh of Abu Jafar Tusi and the Nikat-un-Nihaya of Abul Kasim, the famous author of the Sharaya, need not also be referred to, as both Tusi and Abul Kasim in their later books, the Mabsut and the Sharaya, retracted their first opinion and gave the Fatwa that a gift made in marz-ul-maut held good to the extent of one-third only of the donor's estate in spite of the delivery of possession to the donee by the donor prior to his death. Both the Mabsut and the Sharaya will be referred to presently.

There now remain eight books, viz.

(1) Maqnea Mufid of Shaikh Mufid, (2) Khilaf-ush-Shaikh of Saduq, (3) Hadaiq-i-Bahrani, (4) Intesar, (5) Ghunnia, (6) Burhan-i-Qata, (7) Jama-ush-Shattat and (8) Riaz-ul-Masail.

Some of these books are undoubtedly of great authority, having been composed by some of the most eminent Shia jurists, Chief among them being the author of Maqnea, viz. Shaikh Muhammad Ibn Muhammad Ibn Al-Numani Abu Abdullah surnamed ‘Al-mufid’ because of his numerous pupils. He says in Maqnea, that “if a gift is made during illness or a sadaqa is made, it is valid to the extent of the whole of the property and no one has a right to interfere with it. Sale in illness is valid like gift and sadaqa if a man is of sound mind and is capable of forming his own opinion, but if the illness has affected his reasoning faculty and interfered with his judgement, only those acts which are for the sake of virtue and piety are valid and all other acts are invalid.” It will be seen that this passage merely gives the opinion of the author and gives no reason in support of it. Saduq in Khilaf-ush-Shaikh, on the other hand, admits that there are two, opinions among the Shia lawyers and accepts the view that a gift is valid in respect of the whole of the donor's estate. He says as follows:—“The lawyers are unanimous that a disposition by a sick person exceeding one-third of his property is invalid if this disposition is not to have immediate operation. If the act is to have immediate operation, as manumission, gift and connivance at loss in contracts of exchange, there are among us two opinions, one of which is that it is valid and the other that it is invalid. The latter is the view of Shafai and all the jurists (Sunnis). They do not mention any difference of opinion. Our arguments for the first opinion are the traditions prevalent according to the narration of our Ulamas which we have mentioned in our book (Kitab-ul-Kabir).” It should be observed here that Saduq held the contrary view at one time, as is mentioned by other writers, but it is not quite clear which was his latest dictum.

The learned author of Hadaiq-i-Bahrani, in addition to admitting the diversity of opinion on the point, admits that the question is not free from doubt and difficulty, but he upholds the gift in respect of the whole of the donor's estate.

Shaikh Syed Murtaza, surnamed Al-Huda, a pupil of Shaikh Mufid and Ibn-i-Zohra, the authors of Intesar and Ghunnia, are also of the same opinion. Ibn-i-Zohra bases his opinion on the Ijmaa, or the consensus of opinion of the doctors, and Al-Huda on the Ijmaa or consensus of opinion and on the principle that a sane man has a right to dispose of his property as he chooses. The relevant passages from Intesar and Ghunnia are as follows:—

“The Imamia jurists are divided with regard to the doctrine that if a man makes the gift of a thing during his death-illness while of sound mind and capable of forming a rational judgement it is valid and covers not one-third but the whole of his property, while other Non-Imamia jurists differ on this point. They say that a gift made during death-illness applies to one-third of the property. The arguments of the Imamias are Ijmaa and the fact that the appropriation of his property by a man of sound mind is valid and the heirs have nothing to do with his property so long as he is alive. Hence the gift made by him is valid and for this very reason it is lawful for him to spend all he possesses in maintaining himself and there is no difference of opinion of the jurists (on this point).” (Intesar).

“A gift made in death-illness will apply to the whole and not to one-third of the property on the ground of Ijmaa: such a gift will not be tantamount to a will. A gift made (by a person) in death-illness is enforceable and during his life-time his heirs have nothing to do with his property. A will takes effect after the death of a person and the heirs acquire right in the property after his death and so a will is applicable to one-third.” (Ghunnia).

Jama-ush-Shattat also supports the view advanced by the defendant appellant. No reasons in support of the opinion enunciated in the book are given. The book is a collection of dicta and decisions of the leading Mujtahids of Teheran in Persia within the last contrary. The passages relied upon by the defendant appellant are given at length in Mr. Ameer Ali's Book on Muhammadan Law, Vol. I., pages 54 to 56. They need not be reproduced here. The author of Burhan-i-Qata is also in favour of upholding the gift in respect of the whole of the donor's estate. He says that the contrary opinion is ascribed to the latter generation of Ulamas and was held by Allama Hilli and the author of Sharaya. He mentions the names of the lawyers who are in favour of the doctrine of the whole, but admits that consensus of opinion cannot be claimed for either view. He uses the word mutraddid about the consensus of opinion, which means that it cannot be said with certainty that the consensus of opinion is one way or the other. The passage dealing with the point under discussion is as follows:—

“At all events, the opinion that such a gift will take effect against one-third is ascribed to the general opinion of the later generation of (Ulamas.) If this ascription be true it is due to the dicta of the two Fazils (Allama Hilli and Sahib-i-Sharaya) and of those who followed them in spite of the fact that two of them have either dissented from or hesitated in this dictum at places in the books Sharaya, Irshad, Ghayat-ul-Murad and Masalik. The other opinion is apparent from the views of Kulaini in “Kan”, Saduq in “Faqih”, Mufid in “Maqnea”, Sayed in “Intesar”, Shaikh in “Tahzib Istibsar”, “Nihaya” and “Khilaf” at different places. This is also apparent from “Sarair” “Mohazzab”, “Wasila”, “Ghunnia” “Jama-ush-Sharaya”, “Kashfur-Rumooz”, “Majma-ul-Burhan”, “Wasail”, “Kifaya”, “Wafi” and “Riaz.” And this is the general opinion of the early generation of Ulamas, as has been stated by many, and it has been supported by the fact that it has been followed. In “Intesar” the consensus of opinion is claimed for this view. He says:—“The doctrine that if any person of sound mind and judgement makes a gift in death-bed illness, such gift will be valid and will take effect not only against one-third, but against the whole of his property, is exclusively held by Imamia jurists. All the other jurists (Sunnis) have differed and have gone to hold, that a gift in death-bed illness takes effect against one-third. Our view is that this consensus of opinion is doubtful.”

But the best exposition of the view that a gift holds good in respect of the whole of the donor's estate is perhaps to be found in Riaz-ul-Masail. We give the relevant passage below:—

“The dispositions of a sick person, if contingent upon death, which are considered as a will, take effect against a third even though the heirs do not consent, as has been narrated, and its reasons have been hinted. If those dispositions are prompt and are not contingent upon it (the death) and in them are the sale at a lower or purchase at a higher price than the actual value, pure gift, waqf, manumission or sadaqah, then there are two opinions. Among the later generation of Ulamas the more current and the better of the two is that they take effect against a third, which is in agreement with the view of Iskafi and as is said with one opinion of Saduq. Perhaps he (Saduq) has taken this view in his work other than Faqih, as will appear from his adopting the other view in it (Faqih). And it has been said that this view is apparent from Khilaf and is expressly stated in Mabsut. But the passage of Mabsut quoted in Sarair does not support this. For he (the author of Mabsut) has said that manumission in dangerous illness according to some of our doctors takes effect against the whole and according to the others against one-third, which is the view of our opponents (Sunnis); then he (the author of Mabsut) says that if this view be established and some be liberated it will be seen what he has said at the end. And this passage as you will see is not explicit in showing that he has adopted this view, rather, this is not even inferred from it. Rather on many occasions he (the author of Mabsut) has shown hesitation on account of the well-known traditions which are between express and evident in their significance in which are authentic and trustworthy and other traditions; some of which fall short on account of their authenticity while others on account of their import, which short-coming is made good by the repute in the later generation. But this view is against Nihaya, Maqnea Qazi and Saduq in Faqih and Kulaini in Kafi, for they (the two last mentioned) have said that the owner of property has the best right to it as long as he is alive and then have mentioned the traditions relating to it specifically and have not mentioned other traditions relating to the other view. All this is expressed as to their view on the point. Helli, Murtaza and Ibn-Zohra have given effect to it as against the whole and, as is apparent, this had repute in early Ulamas; rather there is no doubt about its being so. The two Syeds have claimed in their discussion of the gift that the consensus of Imamias is on this view and in Sarair it is mentioned as the most evident view of the Imamia sect on account of its repute, none the less on account of other well-known traditions, amongst which are authentic and trustworthy and others, which also are between express and evident in their import. The point is a difficult and doubtful one, on account of the conflict of traditions and because the best of them accept the interpretation which can be used in favour of the other views, the points of preference and the reliable argument being on both sides. But the preference is for the latter traditions (viz. of the whole) on account of their being supported by the established principle and the repute in early Ulamas, which is preferable to the repute among latter Ulamas on account of there being a conflict between the two (opinions) as in the question relating to Ijmaat (consensus of opinion) which are narrated, and because of most of them not accepting the interpretation which can be used in favour of the former view (of the one-third) and their being opposed to common people (Sunnis). The opinion which is in conformity with the first traditions is the opinion of all their jurists, as is apparent from Intesar, Mabsut, Sarair, Ghunnia, and Tazkera. So, adopting the other view (viz., that it takes effect as against the whole) is more reliable. The rest say that (it will take effect) against one-third. And this is the view adopted by the opponents (Sunnis). This view which is in harmony with first tradition, is the general view of their jurists, as appears from the clear wordings of Intesar, Mabsut, Sarair, Ghunnia and Tazkera. These traditions should be treated and based upon tahayya as is supported by the views of Iskafi which thou hast learnt more than once.”

Now it is evident from this passage that the learned author of Riaz admits that there are two opinions on the point under discussion; that the point is not free from difficulty and doubt; that there are good reliable traditions in favour of both the views, and that the better opinion among the later generation of Ulamas is in favour of the gift holding good in respect of one-third only of the donor's estate. But he favours the opposite view on the grounds that it was the view of the earlier lawyers; that the traditions in support of it are on the whole more preferable, and that the common people, i.e, the Sunnis, hold the contrary view. He appreciated the necessity of explaining the dicta of some of the early and most eminent Shia doctors who had pronounced in favour of the doctrine of one-third. He gets over the difficulty by saying that they gave the dicta under takayya (i.e, under mental reservation) to avoid persecution at the hands of the Sunnis (who were in power then). Briefly put, the reasons to be gathered from the authorities quoted above in support of the validity of a gift in respect of the whole of the donor's estate, appear to us to be these:—Ijmaa or consensus of opinion of the doctors; right of a sane man to dispose of his property as he chooses; early Ulamas in favour of this view, more preferable tradition in support of it and that the common people, i.e, the Sunnis, oppose it.

Now we will refer to other Shia jurists of equal eminence who have directly controverted all those reasons except those based on sectarian grounds, which they have met by implication. Shaikh Muhammad Husain and Najafi the learned author of Jawahar-ul-Kalam contradict the statement made in Riaz-ul-Masail that those early Ulamas who gave their decision in favour of one-third did so under takayya. He says that “the most curious thing is to ascribe these numerous texts (or explicit dicta) to takayya, the non-existence of which, in addition to the fact that some of these dicta are incapable of it, may be believed in respect of the texts like these, among the realtors of which are confidential personages. Nay, those who are conversant with the traditional sayings of the doctors (may God bless them) know that it is customary with them (the doctors) in the passages based on takayya, to hint at it (takayya) by using the word nas (people) or some similar expression. Further, the non existence of takayya is believed as certain in this particular place. For if this doctrine of ours were contrary to the view of the Aamma (the Sunnis), there would have been in these texts a hint at the dissension from them, at the exposition of the invalidity of their views and at their being against the Kitab and sunnat, as is the custom of our doctors (to throw such hints). Nay this (their being based on takayya) would have been well-known among their disciples, as in the case of other weighty doctrines of general use. Besides these there are other reasons which show that the texts are not based on takayya.”

Shaikh Muhammad Husain further says that the early Ulamas and the best traditions, as also the consensus of opinion, are in favour of validating the gift in respect of one-third only and not in respect of the whole, as stated in Riaz. The relevant passage is as follows:—

“But despite all this, the best opinion is that there is prohibition against a gratuity exceeding the third. So it will not operate against the heirs except by their permission. This is the unanimous opinion of Fazil, Shahidain, Kurki and what has been related from Saduq, Abi Ali and Shaikh in Mabsut and what has been related from others. Nay, many persons have attributed this opinion to the modern jurists in general, and in Masalik it has even been attributed to the majority of the jurists and all the moderns. Again, what has been repeatedly related by Shaikh in the chapter of emancipation shows that this is the opinion widely known among us. In Mafatih it is given that the traditions about it are most numerous and wide spread. It is given in Jami-ul Makasid that it is supported by the best traditional authority. And in another place in the same book it is mentioned that explicit dicta of public and universal notoriety support the opinion. And this amounts to a consensus of opinion.”

It is thus clear that three of the reasons advanced by the writers quoted on behalf of the defendant appellant in support of the view that the gift holds good in respect of the whole of the donor's estate, viz., Ijmaa, or consensus of opinion, earlier Ulamas favouring that view and better traditions supporting it, are disputed. Both sides claim consensus of opinion and the authority of early writers and traditions in support of their respective views. The fast seems to be that traditions of equal weight can be found in support of either view, and that the earlier lawyers are divided on the point just as the modern are. Even the learned author of Riaz admits that there is doubt as to the Ijmaa or consensus of opinion. The explanation of the author of Riaz that some of the early writers who favour the contrary Fatwa did so under takayya has also been shown to be unfounded by the author of Jawahar-ul-Kalam. There remain then two reasons, viz., the principle that a sane man has a right to dispose of his property as he chooses “as long as the soul is in his body” and secondly, the sectarian reason, that is, that the Sunnis uphold the gift in respect of one-third of the donor's estate. The obvious reply to both the reasons is “why is a bequest held to be valid in respect of one-third only of the estate of the testator?” The Sunnis hold the same doctrine. And when a man makes a gift in his last moments and delivers possession he has no more interest left in the property and cannot enjoy it any more. His act really amounts to a bequest. The delivery of possession by the donor shortly before his death does not make any difference; for the object both in the case of such a gift and in that of a bequest is to defeat the heirs without in any way affecting the donor or the testator. The principle that a sane man has absolute right over his property and can dispose of it as he chooses must be qualified in the case of a gift made in mayz-ul-maut in respect of the whole of the donor's estate, though attended with possession, by the same consideration as a bequest is qualified in respect of the whole of the testator's property. It was on this consideration that Shabid Sani, Sheikh Muhammad Husain and Najafi, Sheikh Najm-ud-din, Abul Kasim, Jaffar Ali, Abu Yahya, surnamed “Al-Mohakkik” the learned and widely known author of the Sharaya and Sheikh Muhammad Ali Hasan Ibn Ali Abu Jaffar Tusi surnamed the “Sheikh of the Imamite faith” in their books and other jurists pronounced in favour of the view that a gift made in marz-ul-maut held good to the extent of one-third only of the donor's estate, in spite of the delivery of possession in his life-time. We quote some of them below. Tusi in ‘Mabsut’ the most important and most erudite of all his books (according to Mr. Ameer Ali, Vol. 1, page 30), says as follows:—

“I have already mentioned that a gratuitous act is of two kinds, Munajjaza (of immediate operation) and Muakhkhara (deferred till death). The Muakhkhara is one in which a man makes a bequest for the emancipation of a slave or bequests for Mababat or Sadaqa, for it becomes binding on death. When a person performs Mahabat sale or emancipates or makes a gift and himself delivers possession it is called Munajjaza. The whole of this is Munajjaza gift. Then it will be further observed if the gratuitous act takes place in a state of health or a disease which is not dangerous it will be enforceable in respect of his entire estate. But if it takes place in a dangerous illness, it will operate in respect of one-third.”

The statement in Riaz that Mabsut contains a passage in favour of the doctrine of the whole was made on the authority of Sarair. The author of Sarair must have misquoted Mabsut. Shara-i-Lama, a book of high and undoubted authority, has the following passage:—“And a sick man is prohibited from making a disposal of what exceeds the ‘third’ when he makes a gratuitous disposal; but when he takes in return for it an adequate price, it (the disposal of more than the third) shall be effective. Even though he gives immediate effect to what he does gratuitously in his illness, for example, he makes a gift of it or wills it or gives it by way of charity or remits consideration in sale or lease.” “This is the strongest opinion, because of numerous traditional authorities supporting it, some expressly and some by implication. If he makes a gift, waqf or sadaqa in his death-illness it shall take effect to the extent of one-third according to the more, sound of the two dicta unless the heirs permit it.” These two passages from Shara-i-Lama are from the Chapters on Prohibition and Gift, pages 344 and 246 respectively.

Shahid Sani in Masalik says as follows:—“The other (opinion) is that they (such transactions) shall take effect to the extent of the third. This opinion is held by a party of the ancients, one of them being Sheikh Saduq according to one of his two dicta, and this is the opinion approved of by the modern jurists in general, one of them being the author himself. And this is the strongest view, because of the numerous explicit dicta supporting it some by implication and some expressly.”

Sheikh Muhammad Husain-an-Najafi gives his opinion in Jawahar-ul-Kalam in no uncertain words. His opinion is as follows:—

“It has now become known to you by God's grace, that it is impossible to say that it (a transfer without consideration) takes effect to the extent of (the) whole, and verily it is not proper for any jurist to go against the principle of one-third.

“What the learned Riaz has written on this subject is very wonderful. He has said that in his early period he compiled a brochure on this subject where he approved of the principle of one-third, but at that time he was not aware of the consensus of opinions of both Murtaza and Ibn-i-Zohra and he afterwards turned from it (his first view). The fact is that he did not know that the ancients have differed from them, and it is also not established that the majority of the ancients have held their views. Likewise some of those of whom it is related that they held the first view, as for instance, Ali Hamza, I have shown in his description positively that he held the contrary view. There are some about whom different sayings are related on this subject and there are others in whose books there is nothing clear, as for instance, Kulaini, who has prefaced his chapter with the word of (nusua aamma) about which it has already been described that it is not clear on the point. You have already known that about Shaikh it is related that he has said ‘what is known among ourselves during this age is the principle of one-third.’ This decides the whole question.”

Al-Mohakkik also is to the same effect:—

“A patient is prohibited from bequeathing more than one-third according to all unless the heirs permit it. But as regards his prohibition against gratuities of immediate operation exceeding the third there is a conflict of opinions between us. But the best opinion is that there is prohibition.”

“On the other hand if a waqf is made during the death-illness (it is valid) if allowed by the heirs, otherwise it is valid only to the extent of one-third, like gift and sale without consideration. It is said that it (waqf) takes effect to the extent of the entire assets. But the first view is the most correct. If a person makes a waqf or a gift or manumits (a slave) or sells (a property) and remits the sale consideration and the heirs do not permit, then it is valid only if the subject matter does not exceed the limit of one-third. On the other hand, if it exceeds one-third, the waqf will operate from the first till the limit of one-third is reached and as regards the rest it becomes void.”

It is clear from these authorities that some of the most eminent Shia jurists uphold a gift made in marz-ul-maut in respect of one-third only of the donor's estate in spite of the delivery of possession to the donees before the death of the donor. But it is urged for the defendant appellant that the books relied upon by him are of higher authority, and in any case his view is supported by just as great doctors as those who hold the contrary view and there is no reason why his contention should not be allowed. We do not think that it can be said, or at least no authority has been referred to enable us to hold, that the opinions of the jurists quoted for the defendant appellant carry more weight than the dicta of those relied upon by the plaintiff respondent. But it must be conceded that the defendant appellant has just as good authority in support of his view as the plaintiff respondent has if reliance is to be placed on early writers. But the majority of the modern lawyers, modern as compared with early writers, are undoubtedly in favour of upholding the gift in respect of one-third of the donor's estate. We have, therefore, to choose between the two. We think that the Shia doctors who support the view of the plaintiff respondent are preferable and for two reasons: first, because the reasons given by them appear to us to be more sound and consistent with the generally accepted principle that the heirs are not to be defeated by a disposition which does not in reality affect the person who has made the disposition. The second reason is that the opinion of the learned author of the Sharaya must carry greater weight than the opinion of other Shia jurists, as he has been held by the courts in this country from early times as the chief authority on the law of the Shias. In support of the fact that the Sharaya has been considered the leading book for the laws of the Shias we quote two passages from Morley's Digest and Shama Charan Sircar's Tagore Law Lectures of 1874. Morley in his Digest at page cclxxvii says as follows:—“The most generally known of all the Shia lawyers is the Shaikh Najm-ud-din Abu-al-Qasim. Jafar Ben Muayyid-al-Hilli, commonly called the Shaikh Muayyid. He died in A.H 676 (A.D 1277). His great work, the Sharaya-ul-Islam is more universally referred to than any other Shia law book and is the chief authority for the law of the Indian followers of Ali.”

Shama Charan Sircar in his Tagore Law Lectures for 1874 says as follows:—“As to the authority of the Sharaya, the Sharaya-ul-Islam written by Shaikh Najm-ud-din Abu-al-Qasim Jafar Ben Muayyid-al-Hilli, commonly called Shaikh Muayyid, is a work of the highest authority, at least in India, and is more universally referred to than any other Shia law-book and is the chief authority for the law of the Shias of India.”

We, therefore, hold that under the Shia Law a gift made in marz-ul-maut (death-illness) holds good to the extent of only one-third of the donor's estate in spite of the delivery of possession prior to his death.

The result of our findings on the two points raised in the appeal is that the appeal fails. We dismiss it with costs.

Appeal dismissed.