JUDGMENT Rachhpal Singh, J.
1. This is a defendant's appeal arising out of a suit to recover a sum of money. Mohammad Saiyad Husain, the plaintiff-respondent, who is the father-in law of Sajjad Husain alias Ata Husain, defendant-appellant, instituted a suit against defendant to recover a sum of Rs. 6,000. Mt. Saira Khatoon, the daughter of the plaintiff, who was married to the defendant on 3rd November 1923, died after a prolonged illness on 5th August 1925. The plaintiff's case was that on the occasion of the marriage of his daughter with the defendant he had given her jewellery, clothes and untensils of the value of Rs. 1,000 as dowry, and that on her death ha was entitled to recover the same; but as the defendant declined to return these articles he sued for their value. Admittedly the dower of the deceased lady was Rs. 5,000. The plaintiff claimed to recover this amount also from the defendant. The claim was resisted by the defendant who pleaded that his wife had relinquished the whole of her dower in his favour on 11th July 1925 and that the value of the articles given as dowry was not more than Rupees 600 and that these articles remained in possession of the plaintiff himself. He further alleged that he had spent a sum of Rs. 1,555 in the obsequies and other religious ceremonies, which he was entitled to take into account and that in no case the plaintiff could get more than half of the assets of the de. ceased lady. The learned Subordinate Judge held that the plea about the dower having been relinquished by the deceased wife was not made out, that the value of articles given as dowry was only Rs. 753 and that the defendant had failed to establish that he spent any money on the funeral ceremonies of the deceased lady. He however held that the plaintiff could not claim the entire assets of the deceased lady as according to Mahomedan Law he and the defendant were both her heirs and were entitled to one-half share each. The plaintiff therefore "was given a decree for half the dower and for a sum of Rs. 376 8-0 on account of the value of the articles given at the time of the marriage as dowry. The present appeal has been preferred by the defendant against the decree made by the learned Subordinate Judge. The first important question for consideration in this case is whether the defendant was able to establish that his wife had relinquished her dower in his favour as alleged by him. (After examining the evidence on this point, his Lordship held that, the wife had relinquished her dower in favour of her husband. His Lordship next proceeded to examine whether the relinquishment was voluntary and made of her own free will. After considering the evidence on this point, the judgment proceeded). Under the law there is no doubt that it was for the defendant, who set up a case of relinquishment to show that the relinquishment was made by the lady voluntarily and of her own free will and without any pressure of any kind. I am of opinion that the defendant has discharged this burden. The most important witness in the case on the question of relinquishment is Saiyad Aqa Husain Sahib. Saiyad Aqa Husain Sahib could not be in a position to know as to whether or not influence had been exercised on behalf of the defendant on the lady to make her relinquish the dower. He was a witness of the things that had happened in his presence. Najmul Hasan however was a witness who had been with the lady all through the illness at Lucknow and it is noteworthy that no serious attempt seems to have been made during the cross-examination which was inordinately and unnecessarily long to show that it was not a case of voluntary relinquishment. After a consideration of the circumstances and the probabilities I have come to the conclusion that Mt. Saira Khatoon relinquished the dower of her own free will and accord in view of her relations with her husband.
2. The next question for our consideration is whether the relinquishment of dower which amounts to gift was made by the deceased lady during death-bed illness (marz-ul maut). Marz-ul-mant is said to-be malady which induces an apprehension of death in the mind of the person suffering from the malady and which, eventually results in his or her death. It has been considered by the Mahomedan jurists that it is an essential condition of marz-ul-mant, that the person suffering from the marz (malady) must be under art apprehension of maut (death). Baillie in his Mahomedan Law, para. 552, says:
The most valid definition of death illness is that it is one which it is highly probable will issue fatally.
3. It has been held in some cases that, where the malady is of long continuance, as, for instance, consumption, and there is no immediate apprehension of death then the malady is not marz-ul-maut; but that it may become so if it subsequently reaches such a stage as to render death highly probable and does result in. death. The question as to what is marz-ul-maut came up for consideration in a recent case Musi Imran v. Ibne Hasam A.I.R. 1933 All. 341. Niamatullah and Bennet, JJ., held in this case that the chief ingredients of marz-ul-maut are : (1) that the illness must be the immediate cause of death; (2) that there must be an apprehension of death in the mind of the donor; and (3) that physical weakness must be so great that the persons may be incapable of pursuing their ordinary avocations. The first two conditions are necessary for the-doctrine of marz-ul-maut to apply the question as to whether or not in a particular case a gift was made during marzuls maut will depend on the circumstances of each case and no hard and fast rule can be laid down which will be applicable to all cases. In the case before us we have evidence that the lady had been suffering for a long time and because of this it was argued by the learned Counsel appearing for the defendant that it could not be said that the relinquishment was made during marz-ul-maut. Having regard to all the circumstances of the case before us I am of opinion, that it should be held that the relinquishment was made during marz-ul-maut. The condition of the lady, it would appear, was not good and that was the reason that she was sent to Lucknow foe treatment. The fact that Saiyad Aqa Husain Sahib was sent for, so that khaki shafa may be administered and dual tauba may be recited, are points from which it can be safely gathered that the condition of the lady had become hopeless and it was therefore considered desirable that duai tauba may be recited by her. Along with these circumstances we have to take into consideration the fact that the lady died a few days after the date of relinquishment. It appears to me that the lady was suffering from tuberculosis and during her last stage, when her condition became hopeless and when she thought that there was no chance of recovery, she relinquished the dower in favour of the husband. I have, therefore, not the least doubt in my mind that the relinquishment was made because the lady had an apprehension of death in her mind. For these reasons it must be held that the relinquishment was made during death-bed illness. According to the Mahomedan law such a relinquishment is valid only to the extent of one-third.
4. As regards the articles given in dowry the learned Subordinate Judge has found that their value was Rs. 753. After hearing the learned Counsel on both sides I do not see any reason to differ from the view taken by him. The defendant had taken a plea that he had spent a sum of Rs. 1,555 in the obsequies and other religious ceremonies following the death of the deceased lady and that he was entitled to be reimbursed. The learned Subordinate Judge on this point has given a finding against the defendant. According to the Mahomedan law the assets of the deceased are liable for the money spent on the funeral ceremonies of the deceased, but t he amount which may have been spent for securing the peace of the soul of the deceased would not be a charge on the assets. In my opinion the defendant was entitled to take into account the expenses which he might have incurred on the funeral ceremonies of the deceased lady. The learned Subordinate Judge in his judgment says that there was no satisfactory evidence on behalf of the defendant that any such amount was spent by him. I find myself unable to agree with the view taken by the Court below. It is not denied by the plaintiff that the funeral expenses were defrayed by the defendant. The defendant himself was not present in Lucknow and so it was Najmul Hasan through whom funeral expenses were paid. The learned Subordinate Judge says that the evidence in the case proves that the defendant had in his possession rough accounts showing the amount of expenses but that they had not been produced. One would be justified in presuming from the non production of such amount that the defendant was exaggerating the expenses incurred by him; but simply be-1 cause of this non production we would not be justified in coming to the conclusion that no expenses had been proved The plaintiff's own letters to the defendant, to which a reference has been made above, show that it was the defendant who had been spending money on the funeral expenses and other ceremonies after the death of the lady. In my opinion it would not be unreasonable to award a sum of Rs. 500 to the defendant on account of expenses incurred on the funeral ceremonies of the deceased lady. Both the plaintiff and the defendant are heirs of the deceased and their shares are half and half. The relinquishment of dower by the deceased lady holds valid to the extent of one-third and the balance Rs. 3,333- 5-4 : is available for distribution among the heirs. The plaintiff's share is one-half, which comes to Rs. 1,666-10-8, Then the plaintiff is entitled to recover Rs. 376-8-0 on account of his one-half share in the value of the articles given to the deceased lady as her dowry, the total being Rs. 2,043-2.8. Out of this there should be a deduction of Rs. 250 which the defendant on account of funeral expenses is entitled to receive from the--plaintiff. The plaintiff is entitled to recover Rs. 1,793-2-8 from the defendant.
Niamatullah, J.
5. I concur.