Chamier, C.J:— These appeals arise out of suits brought by Fatemah, Saera and Salemah, daughters of one Bibi Fasihan, contesting the genuineness and validity of certain deeds of gift executed by Fasihan a few weeks before her death in favour of her two sons Kalimuzaffer and Muhamad Umar and her youngest daughter Habiba. Fatemah and Saera brought a joint suit in respect of all the deeds of gift; Salemah brought four separate suits in respect of the different deeds of gift. The suits were originally instituted in the Court of the Subordinate Judge, Patna. They were transferred to the Court of the District Judge, where Fatemah and Saera's suit was numbered 6 of 1913 and Salemah's suits were numbered 9, 10, 11 and 12 of 1913. The suits will be referred to in these appeals by the numbers which they bore in the Court of the District Judge.
2. The principal defendants to Suit No. 6 were, (1) Muhamad Umar, son of Bibi Fasihan, (2) Kalimuzaffer, son of Fasihan, (3) Bibi Salemah, daughter of Fasihan, (4) Bibi Haniba, daughter of Fasihan, (5) Abdus Subhan, husband of Fasihan. Defendants 1 to 2 and 4 are donees under the different deeds of gift. Defendant 5 holds a deed of release from Bibi Fasihan. The rest of the defendants are either lessees, mortgagees or purchasers of some of the properties in the suit or decree-holders. In the suits brought by Salemah the defendants are the husband and children of Bibi Fasihan already mentioned. The lessees, mortgagees and purchasers were not impleaded as defendants. The learned District Judge held that all the deeds executed by Bibi Fasihan were invalid and inoperative except one, dated 7th May, 1909, in favour of the youngest son Kalimuzaffer. The District Judge accordingly decreed Salemah's Suits Nos. 9, 10 and 11 and dismissed her Suit No. 12. He dismissed suit No. 6 so far as it related to the deed of 7th May, be decreed it as far as it related to the other deeds. The details of the decree that have been given in Suit No. 6 need not be given here. All the suits were tried together and were disposed of by one judgment of the District Judge. No appeal has been preferred in Suits Nos. 10 and 12. The appeals before us relate to Suits Nos. 6, 9 and 11. In Suits No. 6 four appeals have been preferred to this Court, namely; (1) Appeal No. 112 of 1915 by the heirs of Mt. Fatemah and the heirs of Mt. Saera. The heirs of Saera were substituted by order of the Calcutta High Court, dated 23rd August, 1915. The heirs of Fatemah were substituted by order of the Calcutta High Court dated 5th November, 1914. (2) Appeal No. 219 of 1915 by Habiba, defendant 4. (3) Appeal No. 334 of 1914 by defendants 32, 33 and 34. This appeal relates to the ijara deeds executed by defendant 5 Abdus Subhan for himself and as guardian of his son defendant 2, Kalimuzaffer. We ordered that this appeal should stand out in order that certain steps might be taken by the appellants. Since hearing the arguments in the other appeals we have heard Appeal No. 334 and I propose to deal with it in this judgment. (4) Appeal No. 73 of 1915 by defendant 5 Abdus Subhan and his son defendant 2, Kalimuzaffer. In Suit No. 9, two appeals have been filed, namely, (1) Appeal No. 581 by Kazi Muhamad Sultan alias Kazi Farzand Ahmad Khan Bahadur, the husband, and Kazi Muhamad Usnuan alias Kazi Anwar Ahmad, the son, of the plaintiff Salemah deceased. (2) Appeal No. 42 of 1915 by Kalimuzaffer defendant 2 and his father Abdus Subhan, defendant 1 in respect of the second deed of gift in favour of Kalimuzaffer.
3. In Suit No. 11, we have. Appeal No. 339 by Habiba, defendant 1, but no one has appeared for the appellant. The facts in connexion with the execution of the several deeds of gift by Bibi Fasihan are as follows: Bibi Fasihan was a Muhammadan pardanasheen lady of rank belonging to the Sunni sect of Mussulmans. She was first married to Mir Abu Syed Khan Bahadur who died in 1882. They had four daughters, nimed Fatemah, Saera, Salemah and Habiba, and a son, called Muhammad Umar. Abdus Subhan was tutor of the first son Umar. In 1884 Bibi Fasihan was married to him and she appointed him her am mukhtiar and manager in that year. The only child of this marriage was a son the above named Kalimuzaffer. All the four daughters and Umar were married during the lifetime of Bibi Fasihan. Kalimuzaffer, the second son, was unmarried at the time of the lady's death. On 7th May, 1909, Bibi Fasihan executed a deed of gift in consideration of a ring and a copy of the Koran in favour of Kalimuaffer. This deed was registered on 9th May, 1909 at her house and is described as hibabilewaz. The deed purports to give to Kalimuzaffer about half the property of the Musammat. Under the Mahomedan law Kalimuzarfer and his father Abdus Subhan were together entitled to a share of 7 annas to the properties of the lady. The intention of the lady was to give eight annas in lieu of 7 annas, the legal share of Kalimuzaffer and his father, though the deed does not sty so. I shall revert to this later when considering the validity of the gift. Besides the deed of the 7th May the lady executed the following deeds:
(1) On 5th June, 1909, a deed of gift in favour of Kalimuzaffer purporting to convey to him her residential house at Lodi Katra in Patna City. This was registered on 8th June, 1909. (2). On 6th June, 1909, a deed of gift in favour of Mt. Habiba, her voungest daughter, by her first husband. This deal is said to be in consideration of an armlet and is also described as a hibabilewaz. (3) On 6th June, 1909 a deed of gift in favour of Muhammad Umar in respect of a house and on the same date another deed of gift in his favour in respect of a share in immovable property. (4) On 8th June, 1909 a deed of release in favour of her second husband Abdus Subhan purporting to exonerate him from all liabilities in respect of accounts for the whole period of his management of the estate, etc. The lady did no execute any deed of gift in favour of her first three daughters, Fatemah, Saera and Salema, She died on 2nd July, 1909, leaving surviving her, as her heirs, her second husband Abdus Subhan, four daughters and a son by her first hushand and a son Kalimuzaffer by her second husband. After the death of the lady the donees caused their names to be registered as proprietors in the Collectorate Register D, under Act 7 of 1876, in respect of the shares conveyed to them by the lady. Kalimuzaffer caused his name to be registered also in respect of his legal share by inheritance, namely, 6-32 in the remaining eight annas not covered by the deed of 7th May, 1909, though this was contrary to the intentions of the lady, his mother. The donees took possession of the properties conveyed and began to deal with them and to give leases and mortgages, etc., in favour of other persons.
4. The first three daughters in whose favour no gift was made by the lady brought the suits detailed above to have the deeds declared invalid and to recover their full legal shares as heirs in the properties left by their mother. In suit No. 6 there is a further claim for the administration of the estate, for partition of it among the heirs, and for other reliefs. The result of the decision of the District Judge is that all the aforesaid deeds of June 5th to 8th have been cleared null and void, whereas the deed of gift of 7th May in favour of Kalimuzaffer has been upheld the learned District Judge has held that the lady did execute all the deeds in question but that she was at the time suffering from death illness, technically called marzulmaut under the Mahommedan law, and hence all the deeds of June 5th to 8th were invalid. The deeds of June have been held to be invalid on the further ground that the lady did not execute them of her free will but on account of undue influence and pressure exercised upon her by Abdua Subhan and the donees. The learned District Judge has held that the deed of 7th May being a hibabilewaz or a deed for consideration was not rendered invalid by reason of its having been executed while the lady was under marzulmaut. The first question that arises for consideration in these appeals is whether the deed of 7th May, 1909 as well as the deeds of June 5th to 8th were executed while the lady was suffering from a death sickness called marzulmaut. The learned District Judge has held that the lady was under marzulmaut when she executed the deeds in question. Upon the evidence in the case it is certain that the lady was actually bed-ridden and was suffering from various dangerous diseases which terminate fatally and that she knew she was going to the for sometime before the execution of the deeds. The plaintiff Abdul Rahman, son of Mt. Fatemah, states that he used to visit the lady frequently for 5 or 6 months before her death during her illness and that she gradually got worse and in May she could not sit up in bed, “her hands, feet and belly” were swollen she got no sleep she was always groaning and could not stand up to say her prayers. In June she was even worse than in May and “looked as if she was on the point of death.” He says that it was of this illness that she died on the 2nd July. He further says that in March the lady said that she would not recover, as also on the 15th May she said “ham nahin jienge” (I will not live). In cross-examination he says that he saw Dr. Asdar Ali Khan in April 1909. Saiyed Muhammad Abdul Haq, son of Saera, corroborates him in all essential particulars and says also that Dr. Asdar Ali saw the patient in April 1909. Dr. Asdar Ali and Dr. Ramkali Gupta have been examined. They in their evidence do not fix the date of their visits, but the former says that he went to Darjeeling in March and that it was not long after his return from Darjeeling and before the beginning of May that he saw her and the latter says that he was called in while Dr. Asdar Ali was there as a consultant.
5. He heard of the lady's death three or four months later. It is therefore clear that these doctors saw the lady in the month of April as stated by plaintiff's witnesses referred to above. The lady was under their treatment for about two weeks during which they made frequent visits. Both the doctors agree that the lady was suffering from dropsy and regurgitant heart described by Dr. Ramkali as chronic valvular disease of the heart with prominent symptoms of dropsical swelling of the abdomen and legs and murmuring over the region of the heart. Dr. Asdar Ali says that she was in a condition technically known as vicious circle.” These doctors emphatically say that no recovery was possible, though by a skilful treatment her life might have been prolonged 3 to 6 months but not beyond 6 months. They further say that she would necessarily be bed-ridden for this period and Ramkali Gupta says that there was no reasonable probability that she would ever be able again to kneel in prayer, that when he saw her she was certainly not in a condition to stand up or say her prayers and that she said that she did not expect to live and that there was no use in her taking medicine and that she herself had no hope of recovery. Saiyed Afzal, witness 6 for the plaintiff, an Assistant Surgeon and a Professor of the Temple School, Bankipur and Hakim Basiruddin Nabi, a native practitioner, corroborate the above doctors. The former saw the lady in May or June 1909 and the latter a month before her death. Upon their evidence it is clear that the lady had no hope of recovery and could not stand or kneel to say her prayers and that her condition was hopeless. The former says that he told Abdus Subhan and Umar of this.
6. Against this overwhelming evidence there is no evidence worth the name on behalf of the defendants. Abdus Subhan, husband of the lady is too much interested in the case to be believed when he says that the lady had been suffering from dyspepsia and asthma for 5 or 6 years and that she had in the month of May only dyspepsia and asthma. He does not say of what the lady died. His statement is against the evidence of the doctors. The evidence of the plaintiff regarding the illness of the lady in the months of May and June is consistent with the evidence of the doctors and should in my opinion be accepted. It is clear upon the evidence that certainly as early as the beginning of May and probably earlier the lady was suffering from dropsy consequent upon a regurgitant heart and the disease from which she was suffering was incurable, that she was in a hopeless condition, was bedridden and unable to stand up or kneel for prayers and that she knew that she would not recover and had become hopeless of her life. Her husband Abdus Subhan and her son Umar also knew this. Such was her condition in the months of April, May and June and her condition was getting worse and worse. She never recovered of her illness and she ultimately died on the 2nd July. The disease from which the lady died was certainly one which is technically known in the Mahomedan Law as marzulmaut. It satisfies the tests of marzulmaut as laid down in authoritative works on Mahomedan Law. According to the Fatwai-Alamgiri:
“a death illness is one which it is highly probable will end fatally, whether the sick person has taken to his bad or not, or whether in the case of a man it disables him from rising up for necessary avocations out of the house or not, such for instance when he is a fakih or lawyer from going to the musjid or place of worship and when he is a merchant from going to shop, or where in the case of a woman it does or does not disable her from necessary avocation within doors.”
7. The rules laid down in the authorities on Mahomedan law for determining whether the donor was suffering from marzulmaut at the time of the execution of the deed were summed up by Mr. Ameer Ali, then a Judge of the Calcutta High Court, in the case of Hassarat Bibi Golam Jaffar(1). He said that tests of marzulmaut were: (1) Was the donor suffering at the time of the gift from a disease, which was the immediate cause of his death? (2) Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby, or to engender in him the apprehension of death? (3) Was the illness such as to incapacitate him from the pursuit of his ordinary avocations or standing up for prayers, a circumstance which might create on the mind of the sufferer an apprehension of death? (4) Had the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality, or to accustom the sufferer to the malady? The above tests were applied by the Calcutta High Court in Fatima Bibee v. Ahmad Baksh(2), which was affirmed by their Lordships of the Privy Council in Fatima Bibi v. Sheikh Ahmed Buksh(3), by the Bombay High Court in Sarabai v. Rabiabai(4) and in Rashid Kamralli v. Sherbanoo(5), by the Allahabad High Court in Khurshed Hussain v. Faiyaz Hussain(6) and in Sheik Muhammad v. Khadijah Bibi(7). Lord Robertson, when delivering the judgment of the Privy Council in Ibrahim Goolam Ariff v. Saiboo(8), held that the invalidity of a gift arises when it is made “under pressure of the sense of imminence of death.”
8. Applying the above tests it may at once be said that the conditions requisite for marzulmaut were all satisfied in the case of the lady in question. The learned District Judge has held that the lady was in death illness from the beginning of May to the end of June. The finding of the Court below, as observed above, is amply borne out by the evidence on the record. I therefore agree with the view of the learned District Judge that all the deeds in question executed by the lady on 7th May and on 5th, 6th, 8th and 9th June, 1909 were executed while the lady was in marzulmaut. The question then arises whether the deeds in question are rendered invalid and inoperative on account of their having been executed by the lady while in marzulmaut. Now it may be taken as settled that a disposition made at a time when the disposer is suffering from a disease, which is technically called marzulmaut or death illness, stands, so far as its legal effect is concerned, on the same footing as a testamentary disposition. Mr. Ameer Ali on p. 56 of Vol. 1 of his work on the Mahomedan Law says that under the Hanafi law any disposition by a person suffering from an illness which in the ordinary sense is fatal and from which he eventually dies takes effect only partially. When a bequest is made to any one of several heirs, it is not valid without the consent of the others, Bafatun v. Bilaiti Khanum(9), Khajooroonissa v. Rowshan Jehan(10).
9. A devise made in favour of non-heirs or for pious and charitable purposes is valid and operative in respect of one-third of the testator's estate without the consent of the heirs and in respect of more than one-third with their consent. In the present case the gifts were all made in favour of the heirs of the lady and therefore they were not valid without the consent of the other heirs, if in fact the gifts were affected by marzulmaut. It has been contended by Mr. Pugh in support of the deeds of gift that the doctrine of marzulmaut does not apply to gifts for consideration, which are called hibabilewaz. Without much discussion it may be taken as having been proved in this case that the deed of 7th May, 1909 was a hibabilewaz as the deed itself is described and was executed in consideration of a valuable gold ring and a volume of the Holy Quran. It has also been established in this case that the consideration mentioned in the deed, namely, the ring and the Quran, did actually pass from the donee to the donor. So far back as August 1908 the lady had contemplated the execution of a deed of gift in favour of Kalimuzaffer and for that purpose she had consulted Khan Bahadur Fakhruddin, a leading pleader of the Patna Bar, who was deputed by her to take the opinion of lawyers in Calcutta. She was advised that in a hibabilewaz the delivery of possession is not necessary for its validity nor need there be adequacy of consideration, but that there must be an actual payment of consideration by the donee and a bona fide intention on the part of the donor to divest himself in praesenti of the property and confer it on the donee. This is also the view taken by the Privy Council [see Khajooroonissa v. Rowshan Jehan and Nawab Amjad Ully Khan v. Mt. Mohumdee Begum(11)] and is the settled principle of Mahomedan law.
10. The consideration of the ring and the Quran was therefore purposely mentioned in the dead. The oral evidence in this case of Mahabir Prasad, Mahomad Qaim, Sub-Registrar, and Mohammad Raza is to the effect that the ring and the Quran were actually made over by Kalimuzaffer to the lady at the time of the execution of the dead. The lower Court has accepted this evidence. On a careful consideration of the evidence I think that the lower Court is right and I hold that the consideration mentioned in the document did actually pass and that the document was a hibabilewaz. In respect of the document conveying the house to Kalimuzaffer, a gold armlet is said to have been given in consideration of the gift. The evidence as to the passing of the consideration in respect of this deed is scanty and not reliable. There is no evidence as to the passing of consideration as regards the other deeds, nor were the (deeds of 5th, 6th, 8th and 9th June, 1909 in favour of Umar and Habiba executed for any consideration, so that there can be no doubt that the documents of 5th, 6th, 8th and 9th June were invalid and inoperative as having been executed during marzulmaut. The lower Court has held this and I can discover no reason for disturbing the finding of the Court below. These documents are therefore invalid and inoperative. As regards the document of 7th May, 1909, the learned District Judge says:
“that it was a conveyance for consideration. A hibabilawaz is not therefore invalidated by the fact that the lady was in her death sickness at the time.”
11. Mr. Pugh's contention is the same in this Court. The question then is whether a marzulmaut affects gifts for consideration called hibabilewaz. In support of this consideration Mr. Pugh has relied upon the following authorities, none of which in my opinion applies to the present case. In Ghulam Mustafa v. Hurmat(12) it was held that the provisions of the Mahomedan law applicable to gifts made by parsons labouring under a fatal disease do not apply to a so called gift made in lieu of dower debt which is really in the nature of a sale. In that case the husband transferred by a deed his share of a village to his wife the consideration being part of a debt due by him to his wife on account of dower, while the husband was at the time of the execution of the deed in death illness or marzulmaut it is not clear from the judgment that the deceased was really in death illness at the time of the execution of the deed, for the judgment says that
“from the medical evidence it is doubtful whether he was then labouring under the disease which caused his death shortly afterwards.”
12. The reason for the decision is said to be that just claims of the heirs are not interfered with by the payment of debts which must be paid before the heirs can enter upon the inheritance. Mr. Amir Ali in his book has doubted the correctness of this authority. He says that the doctrine of marzulmaut applies to gifts in lieu of dower debt inasmuch as it applies to sales also.
13. In Esahuque Chowdhary v. Abedanissa(13) the above ruling in Ghulam Mustafa v. Hurmat was cited as authority in respect of a kabala or sale-deed executed by a husband for a portion of a dower debt that was outstanding at the date of the execution of the kabala and the rule of marzulmaut was held not to apply. The learned Judge who delivered the judgment said that the matter was not res integra, and felt himself concluded by the Allahabad authority. In Mubarakun-Nisa v. Muhammad Munsub Hasan, Khan(14) at p. 429 it was held that a husband is competent to convey his property in lieu of dower debt. In Khamrunnissa v. Shah Hazarath Saib(15) and in Abas Ali v. Karim Bakhsh(16), it was held that a transfer of immovable property by a Mahomedan to his wife purporting to be made in consideration of a dower debt was a sale, and not a hibabilewaz. In the latter case it was pointed out that the so called hibabilewaz was a sale and the consideration was a dower debt. A gift in lieu of dower is desorihed in Baillie's Digest as a by emakasa, which is also sale. The above authorities relied upon by the learned counsel in support of hibabilewaz during death sickness shew only that a gift in lieu of a dower debt in marzulmaut may be valid, though this view does not appear to be approved by Mr. Ameer Ali. Even if it be admitted for the sake of argument that gifts in consideration of dower debts during a marzulmaut are valid, it does not follow that the doctrine applicable to dower should be extended to hibabilewaz. Dower debts are debts already incurred by the husband and the husband is bound to pay the debt. The dower debt has priority over legacies and the rights of the heirs, and when the wife obtains actual and lawful possession of the estate of her husband under a claim for her dower she is entitled to retain possession until the debt is satisfied: Mt. Beebee Bechun v. Sheik Hamid Hossein(17), Muhammad Kurimullah Khan v. Amani Begam(18) and Amanatunnissa v. Bishirunnissa(19). The transfer to a wife in lieu of an existing dower debt amounts to a sale and not to a hibabilewaz. The dower debt is a sufficient and valid consideration for the transfer by the husband. Hibabilewaz is not a sale at all but is a kind of gift. All authorities on the Mahomedan law have divided gifts into three classes:
1. A gift pure and simple. 2.A hibabilewaz, or a gift for consideration or a return. 3. A hibabashartulewaz that is a, gift conditioned upon a consideration to be paid in future in return for the gift. This division has been maintained in Rasool Bee v. Gulam Kasim(20). Hibabilewaz is distinguished from a sale in that in a hibabilewaz the ewaz or return need not necessarily be adequate, whereas in a sale the consideration must be sufficient and adequate. In Bahimjan Bibi v. Imanjan Bibi(21) the distinction between a sale and hibabilewaz was pointed out and it was said that in a case of a sale the adequacy of consideration would be a very important element affecting the validity of the document. No question as to the adequacy of the consideration in respect of a hibabilewaz can arise. Marzulmaut as affecting the validity of a hiba appears to apply both to a hiba pure and simple and to a hibabilewaz. In Khurshed Hussain v. Faiyaz Hussain a gift in marzulmaut for consideration called hiba bilewaz was held valid only to the extent of one-third in spite of the delivery of possession prior to the death of the donor. The case was one under the Shia-law but there is no distinction between Shia and Sunni law as to marzulmaut and hence the principle of that ruling applies to a case of hibabilewaz executed by a Sunni Mahomedan under marzulmaut.
14. Hamilton's Hidaya, Vol. 3, p. 391, defines mahabat as buying an article at an over value or selling it at an under-value. It is sometimes done with a view to induce the party to engage in some other transaction of a more advantageous nature. A mahabat is declared lawful for a mukatib as a transaction traffic, to enable merchants come times to buy or sell by way of mahabat in one bargain in order that they may derive a profit from some other bargain. Now in Hidaya, Vol. 4, p. 483, it has been laid down that a mahabat executed in a deathbed is valid as a bequest of property to any amount not exceeding one-third of the testator's estate. In that paragraph it is said that mahabat literally signifies a gift.
15. In the language of the law it means a gift interwoven in some compact or deed by a person who sells a part of his property to another at an inferior value. If a mahabat is affected by the doctrine of marzulmaut, there appears to be no reason why a hibabilewaz should act be affected. Mr. Ameer Ali goes further and holds that even a sale is affected by marzulmaut. In my opinion, the doctrine of marzul maut applies to a hibabilewaz. In this view the document of 7th May, 1909 was affected by marzulmaut and is invalid. In my opinion, therefore, the learned District Judge was wrong in holding that the hibabilewaz of 7th May, 1909 was not invalid on account of its having been executed in death sickness.
16. The next question for determination is whether the documents in question were induced by undue influence. It is essential for a valid gift in the Mahommadan law that the donor should be subject to no undue influence, coercion or duress in the execution of the deeds of gift. The learned District Judge has held that there is no proof that the documents of 5th June, 6th 8th and 9th were read out and explained to the lady or that she was aware of their contents. These documents were grossly unfair to the lady. The lady does not appear to have been a free agent at the time of the execution of these deeds. She was under the influence of her second husband Abdus Subhan and of Mahommed Umar and Habiba, who used to shadow her during her illness. Upon the evidence it cannot but be held that all the documents of June were executed under pressure and undue influence brought to bear upon the mind of the lady. The document of 7th May, 1909 has been held by the Court below to have been duly executed after consideration by the lady and without any undue inflence or fraud or duress exercised upon her mind by Abdus Subhan. It is true that the lady had wished for some years to execute a deed of gift in favour of her second son Kalimuzaffer. It is clear from the evidence of Khan Bahadur Fakhruddin that the lady's intention was to give to Kalimuzaffer 8-annas out of her property in lieu of the 7-annas which Kalimuzaffer and his father Abdus Subhan were entitled to inherit under the Mahomedan law. The evidence of Fakhruddin leaves no manner of doubt on this point. He says that the idea of the lady had been to give Chhedi 8-annas in a village instead of the 7-annas that he and his father would be entitled to. His evidence is:
“The lady said that Abdus Subhan's share was 4-annas and Chedi's 3-annas and that Chedi's education was incomplete and that his marriage had not been arranged. Therefore he was to have an extra anna.”
17. This conversation took place in 1909 but the document in question was executed on 7th May, 1909. The document does not say that the 8-annas share in her property was conveyed to Kalimuzaffai in lieu of the 7-annas that he and his father would be entitled to or that he was not to get any share in the other 8-annas not conveyed to him. The result of the deed has been that Kalimuzaffer, after the death of the lady, took 8-annas of her property under the hibabilewaz and also took possession of his legal share in the property left after satisfying the gifts made to Umar and Habiba. It appears therefore that the lady did not realize at the time of the execution of the deed that the deed did not provide that Kalimuzaffer should get only 8-annas in lieu of the share that he and his father would have inherited, and nothing more. Although the evidence is that the document was read over to her by the scribe, yet it is not proved that the lady did really understand it.
18. It appears that her intentions were not carried out by the document, for there is no evidence that at any time the intention of the lady was to give Kalimuzaffer more than 8-annas altogether. Abdus Subhan, father of Kalimuzaffer, no doubt managed to get the deed executed in terms which did not give effect to the real intention of the lady. As the document does not give effect to the intentions of the lady, it is not valid under the Mahomedan law, which says that the legal effect of every transfer depends upon the intention of the transferor and that intention is an essential element in considering the legal effect of a voluntary transfer. The document therefore cannot be given effect to it has been urged in support of the deed by Mr. Pugh that Kalimuzaffer renounced his share in his mother's estate outside the 8-annas conveyed to him by the deed. He however had his name registered in the dakhil kharij and took possession of a share exceeding the 8-annas given to him and he thereby deprived the other heirs of their legitimate shares in the property. Subsequent verbal renouncement by his representative at the trial cannot validate a document which is invalid as being contrary to the intentions of the donor. The result is that the deed in question cannot have any effect higher than that of a will; as the gift was made without the consent of the other heirs, it is invalid and inoperative as being contrary to the intentions of the donor.
19. All the deeds of gift including the hibabilewaz of 7th May must be set aside and declared invalid and inoperative. The deeds of gift therefore do not stand in the way of the heirs of Bibi Fasihan taking their shares under the Mahomedan law. Her husband Abdus Subhan inherited a share of one-quarter of the lady's properties; her two sons Umar and Kalimuzaffer each took 6-32; and each of her four daughters Fatemah, Saera, Salemah and Habiba took 3-32 of the properties left by her.
20. The heirs of such of the aforesaid persons as have died since the death of the lady have succeeded to the shares inherited by their predecessors. The properties left by the Mussamat are there fore liable to be distributed among her heirs and the heirs of her heirs unaffected by dealings or transfers of interests in excess of their legal shares. As the donees and the heirs have been dealing with the properties since 1909 and the matter is complicated by claims of creditors and others, it is useless to give each of the heirs a decree of his or her share in the ordinary way. The result of passing such decree would be endless litigation. The proper course appears to be to direct a general administration of the property of Mt. Fasihan under the orders of the Court.
V.S/R.K
21. Decree modified.