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2. The Court below dismissed the plaintiff's suit, holding that the evidence adduced by him fell far short of proving that Musammat Taubat-un-nissa was suffering from murzulmaut when she executed the deed of release. In the concluding portion of his judgment, the learned Subordinate Judge sums up his finding thus:

The fact seems to be that Taubat-un-nissa suffered from some womb complaint for a long time, which must have greatly affected her health. While she was in this state of health, kidney pain supervened and from the shock of this she died. The facts of this case are very much similar to that of Fatima Bibee v. Ahmad Baksh 31 C. 319. In that case it was held that a man, who suffered from diabetes when he made a gift and died from the effects of a carbuncle, was not suffering from death, illness when he made the gift and consequently the gift was not invalid.

15. Dr. Har Prasad did not see the patient as she was a pardahnashin. He had to depend upon" the information which he received from Miss Roy, and from what we gather from this lady's evidence it is obvious that Dr. Har Prasad's evidence loses the weight which might otherwise be attached to it. He was examined and deposed that Taubat-un-nissa was suffering from chronic inflammation of the womb and this he inferred from her statement that she was suffering from pain below the navel since her child was born. On the morning of the day on which she died he stated that she had a severe pain in her kidneys, that on the day previous she was in a normal state of health as he used to see her. He said: her condition was not bad in any way. She complained to me of pain in the kidneys on the day on which she died. Previous to this she did not complain of pain in her kidneys." Then he certifies that the cause of her death was pain in the kidneys. In cross-examination he was asked as to how he came to know there was pain in the kidneys and his answer was that he touched the portion of the body where she complained of pain and ascertained that it was where the kidneys were.

16. The learned Subordinate Judge upon this evidence came to the conclusion that the cause of death was the kidney pain which Taubat-un-nissa had on the night of the 22nd of July and that she never had this pain before and did not suffer from it when she executed the deed of release. We are wholly unable to agree in the conclusion at which he arrived. The severe pain in the kidneys was the indication of a diseased condition of the kidneys, it is not in itself a disease. The evidence irresistably loads to the conclusion that Taubat-un-nissa was for weeks at least prior to her death suffering from a fatal malady or maladies, whether they were kidney or liver troubles or abdominal phthisis or a complication of troubles, it matters not. It is not now possible to say what was the precise cause of death but this is abundantly clear that at the date on which the release was executed she was suffering from a fatal illness and she was aware that death was imminent. The case is unlike that of Fatima Bibee v. Ahmad Baksh (1), upon which the learned Subordinate Judge relied. In that case the patient suffered from diabetes for 8 or 9 years and then albuminuria supervened in 1896. Then later on, on the 12th of May 1897, he was attacked with fever and died on the 27th of May, after having executed a hibanama on the 21st of that month. Both Courts found that there was nothing in the symptoms of the patient which would necessarily have excited in him an apprehension of death, and there was nothing to show that he was under apprehension of death when he executed the hibanama. In the case before us we have most cogent evidence that Taubat-un-nissa at the date of the relinquishment of her dower and for weeks before was under apprehension of death.