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Concept of Marz-Ul-Maut

Submitted by:
Saloni Sharma
Division C PRN 18010224174 Batch 2018-23

Symbiosis Law School, NOIDA


Symbiosis International (Deemed University), Pune.

In
January, 2020

Under the guidance of


Dr. Furkhan Admed (Professor)
&
Ms. Deepali Sahoo (Assistant Professor)

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CERTIFICATE

The project titled, “Concept of Marz-Ul-Maut” submitted to Symbiosis Law School, NOIDA
for Family Law-II as a part of internal assessment is based on my original work carried out
under the guidance of Dr. Furkhan Ahmed, Professor and Ms. Deepali Sahoo, Assistant
Professor. The research work has not been submitted elsewhere for award of any degree.
The material borrowed for other sources and incorporated in the research paper has been duly
acknowledged.
I understand that I myself would be held responsible and accountable for plagiarism, if any,
detected later on.

Saloni Sharma
29thJanuary, 2020

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INDEX

S. No. TOPIC PAGE No.

Abstract and Introduction 4-5


1.

Meaning and Explanation 5-8


2.

Issues 8-11
3.

Conclusion 11
4.

References
5.

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ABSTRACT and INTRODUCTION

The concept of Marz-Ul-Maut is actually the doctrine of death-bed gifts. In India Muslims are
allowed to follow their own personal civil law. This is a legacy of the British Raj which allowed
all religions to have their own personal civil laws. The governing tenet of Muslim personal
civil law is the Shariat. One of the provisions relates to Marz-ul-Maut (death bed Gifts). This
can only be executed in case there is genuine apprehension that the testator will die. In the
United States there is a uniform civil and criminal code for all its citizens. In India this is not
the case as the British rulers after the lapse of Muslim rule allowed the various communities
like Hindus, Muslims and Sikhs to have their own personal law, though the criminal law had
universal applicability. This has carried on after independence, though in the Directive
Principles of the Constitution it is enshrined that the endeavor of the state will be to enact a
uniform personal law for all citizens of India. One of the Muslim laws enshrined in the Shariat
is the Marz-ul-Maut or gifts made by a Muslim on his death bed. Muslim law in India means
that portion of Islamic civil law which is applicable only to Muslims. Generally the trend
among Muslims earlier was not to make a will or ‘Wasiyat’. Hence Islamic law thought it
prudent to lay down a set of laws regarding disposal of property when a Muslim was on his
death bed. This is referred to as Marz-ul-Maut. Gift during Marz-ul-Maut is one form of
testamentary succession. Gift during Marz-ul-Maut means gift on the death bed. When a person
is very seriously ill and on the apprehension of death and he makes a gift at that time, then it
will be a gift during Marz-ul-Maut. Gift on the death bed is a hybrid of 'Hiba' or gift and will.
It includes some essential elements of will and some essential elements of gift.1

As per Islamic personal law a gift made at a time when there is reasonable apprehension of
death of the testator will be distributed as per the canons of the Shariat. This is called death bed
gifts and is valid only if the testator dies after executing a will. As per the Shariat there are 2
restriction imposed on this gift on the death bed which are as follows:

a) There can be no disqualification of an heir or successor

b) The net value of the property that can be disposed should not be greater than 1/3rd of the
total value of assets.

1
India, l. (2020). Marz-ul-Maut in Muslim Law. [online] Legalservicesindia.com. Available at:
www.legalservicesindia.com [Accessed 29 Jan. 2020].

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The Shariat law is inviolable, except with the consent of the heirs. Thus on his own no Muslim
can disown any heir while making a will during Marz-ul-Maut. Some reasonable restrictions
are imposed by the Shariat on Marz-ul-Maut. These are:

a) There should be genuine apprehension of death due to an illness. In case a person does not
die, the will made will be null and void.

b) Mere apprehension of death due to old age is not a ground for Marz-ul-Maut. Thus a man
dying from natural causes due to old age does not come under the purview of this law.

Marz-ul-Maut does not come under the purview of gifts and is not subject to gift tax. This was
upheld by a bench of the Supreme Court of India in Commissioner of Gift Tax vs. Abdul Karim
Mohd. on 10 July 1991( 1991 SCR(2)846). The Shariat and Marz-ul-Maut is further amplified
in Section 191 of Indian Succession Act 1925 and section 129 of the TP Act.

MEANING and EXPLAINATION

A person during his lifetime enjoys full power of disposal of his property. When the transfer is
to take effective immediately, he is competent to make a disposition of the entire property such
as by sale or gift, etc., but if the transfer is to take effect after the death of the person such as
through a will, under Muslim Law his powers of disposing of the property are limited and donot
extend generally beyond one-third of his net assets, calculated after his death. The latter is due
to the reason that the just claims of the rightful heirs should not be unreasonably interfered
with. If the owner genuinely feels that either of his heirs do not deserve to have his property,
or somebody else or even one heir has a better claim over it for whatsoever reason he can
always make a gift of his property in his favor. Since the gift takes effect immediately, the
owner must relinquish his control over the property and as a person can make a gift of his total
property, the divesting would extend to the whole of his estate. If he wants to enjoy the property
during his lifetime and relinquish its control only after his death, then he is not allowed to
disturb the devolution of the total property by the laws of inheritance. In a gift the ability of
transferring the total property in favor of anyone comes with a condition of immediate divesting
of ownership in property.

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One of the primary requirements in case of a gift is that it should be a voluntary or conscious
act of the donor who must be free from any mental infirmity, either natural or induced by
pressure, undue influence or fraud, etc. There may be cases where the gift is executed under
pressure or an apprehension that is real and grave, but is not the result of a fraud or undue
influence exercised by somebody else, rather it comes from within oneself due to sickness or
disease and is in the nature of the realization that death is very close. In fact, the real nature of
pressure is the awareness of the stark reality that the person may die any moment. Such gifts
executed by a person under an immediate apprehension of death, stand on a different footing
than ordinary gifts executed by a person under no such apprehensions, and which are a result
of a well thought out act with an ability to comprehend the consequences of his actions. An
ordinary gift does not indicate haste, but a gift under an apprehension of death is made with a
sense of urgency. These gifts are made at a time where it is doubtful that the mental facilities
were functioning properly were functioning properly or were absolutely normal due to the
apprehension of immediate death and have a separate status. Law treats them differently and
terms them as gifts made during “Death bed illness”2 or made by a person suffering from “Marz
Ul Maut”3

CONCEPT OF MARZ-UL-MAUT

“Marz” means illness, disease or a malady “maut” means death. “Marz-ul-maut” means an
illness that results in death. Illness or disease can be of several types even if they are termed
incurable or one which eventually results in the death of the patient. Illness or disease may
prove fatal immediately or within a very short span of time or may drag a person slowly, eating
him away gradually leading to an eventual death i.e the time frame of which is uncertain and
longer than what could be covered under the term “imminent” or “immediate”, or “very near
in point of time”. Baillie defines Marz-ul-maut as an illness, which is highly probable to issue
fatally. It is an illness dangerous to life, i.e, which mostly ends in death, provided the patient
actually dies of it. Mullah defines it as a malady which induces any apprehension of death in
the person suffering from it and which eventually results in his death. According to Abdul
Rahim it is an illness from which death is ordinarily apprehended in most cases and in particular
cases it has actually ended in death.

2
“Donation Mortis Causa” under the Indian Succession Act, 1925, Section 191
3
Gifts made during marz ul maut under Muslim Law

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MARZ-UL-MAUT DISTINGUISHED FROM OTHER ILLNESSES

The distinguishing feature of Marz-ul-Maut is its highly probable character and apprehension
and death ensuing within a very short span of time. If it is a disease, that is of long continuance,
or it is incurable or even if it cripples a person for life, that would not be called marz-ul-maut.
Though the rule is that the person suffering from the disease dies within a time period of one
year, the disease can be called a death bed illness, but this does not constitutes a hard and fast
rule. Long and lingering illnesses, make a person familiar with it, which dilutes the
apprehension of death to some extent and would not be called marz-ul-maut.4 Chronic asthma5,
paralysis6, lingering consumption7, albuminuria for more than a year, sudden bursting of a
blood vessel in the stomach are not cases of marz-ul-maut.8 Where a disease, that is lingering
to be began with, becomes grave and reaches a point where imminent death becomes evident
to the sufferer and in fact happens, it would be called Marz-ul-Maut. An apprehension on the
part of an old man when he is not afflicted by any disease is not the one that is contemplated
here. “old age” is not a disease, for the purposes of understanding this doctrine, and even if an
old man nurses an apprehension of death, and dies later, it is not sufficient to answer that
description. Accordingly, the English phrase “death illness” is not an appropriate equivalent
and does not exactly connote the meaning of this term “marz-ul-maut”.

ESSENTIAL CONDITIONS FOR MARZ-UL-MAUT

The first and foremost condition is that the person must be suffering from an illness; second,
that there must be an apprehension of death in the mind of the patient; and the third, that he
actually dies.9 The Supreme Court has given three tests to determine whether an illness is to be
regarded as marz-ul-maut or not. According to the court, ther must be some

i. Proximate danger of death

ii. Some degree of subjective apprehension of death in the mind of the sick person; and

iii. Some external indicia, chief among which would be the inability to attend to ordinary
avocations

4
Mohammad Gulshere Khan v. Mariam Begum,(1881) ILR 3 AII 731
5
Zanrao v Sher Mohammad, AIR 1934 Pesh 91; Hassarat Bibi v. Golam Jaffar, (1898) 3 CWN 57
6
Sarabai v Rabiabai, (1906) 37 Bom 264
7
Jahar Ali Khan v Nasimanissa Bibi , AIR 1937 Cal 500
8
Janjira v Mohammad, AIR 1922 Cal 429
9
Fazal Ahmad v Rahim Bibi, (1918) 40 AII 238

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The Calcutta High Court10 while considering the doctrine of marz-ul-maut three things
necessary to constitute the same, that is,

i. Illness

ii. Expectation of fatal issue; and

iii. Certain physical incapacities which indicates the degree of illnesss. The second
condition cannot be presumed to exist from the existence of the first and the third as the
incapacities indicate, with perhaps the single exception of the case in which a man cannot stand
up to say his prayers are not infallible signs of death illness.

The Bombay High Court11 has held that the crucial test is the proof of 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 mind of others and other
symptoms , like physical incapacities, are only the indicia but not infallible signs or a sine qua
non for marz-ul-maut. While laying down the principles on which the law of marz-ul-maut is
based, the Supreme Court of Pakistan has stated the following necessary questions that must
be raised:

i.Was the donor suffering at the time of the gift from a disease which was the immediate cause
of his death ?

ii.Was the disease of such a nature or character as to induce in person suffering the belief that
death would be thereby, or to engage in him the apprehension of death ?

iii.Was the illness such as to incapacitate him from the pursuit of his ordinary avocations, a
circumstance which might create in the mind of the sufferer an apprehension of death ?

iv.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 ?

What is required to be proved upon the preponderance of probabilities is whether the gift was
made by the ailing person while under the apprehension of the death and further whether in
such ailing he met his death.

10
Fatima Bibee v Ahmad Baksh, (1903) 31 Cal 319
11
Safia Begum v Abdul Razak, AIR 1945 Bom 438

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ISSUES (explained)

 What type of gifts can be made during Marz-Ul-Maut?

A gift made by a person during marz-ul-Mat is treated as a combination of both a gift as well
as a will (wasiyat). All the three essential ingredients of a valid gift must be compiled with,
namely, a declaration by the donor, its acceptance by the done himself or, on his behalf, by a
competent person, followed by immediate delivery of possession of gifted property during the
lifetime of the donor. In addition to this, as it is also treated as a will, it cannot be made as more
than one-third of the total property unless the heirs whose share would adversely affected give
their consent for the validity of the excess bequest after the death of the donor. The legal
position on this point is the same under Sunni and Shia law, But the rule that one-third of the
property can be bequeathed even to an heir is on of the primary distinctions between Shia and
Sunni law and is applicable here as well.

 What is the position where donor recovers from illness?

Even though one of the essential ingredient made by Marz-ul-Maut is that death actually
happens, yet, where a gift is made during an apprehension of death, and the donor recovers
from the illness, this would not be called as a gift made during Marz-Ul-Maut and would
operate as an operate as an ordinary gift. In such a case this gift would not require the
application of testamentary restrictions of disposal of only one-third of the property, and the
gift can validly be operative if it extends to the whole of the property.

 The main reasons for combining gifts with the will?

The gift that gift made under Marz-Ul-Maut involves the compliance of mandatory formalities
of a gift and testamentary restrictions, of a Will is based upon the reason that where a person
makes a gift during an apprehension of death, his mental facilities and state of mind is not par
with that of a person who is not under such an apprehension. Illness coupled with apprehension
of death can weaken a man’s physical and mental powers and he is likely to make a disposition,
which may harm him spiritually and which may be to the detriment of his heirs.

These gifts are executed with a sense of urgency or haste and are not a result of well-
contemplated actions of a reasonable man. The Bombay High Court Explained the reasons for
putting these gifts in a different class together:

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Death is the certain and central act. Proximate danger of death in an illness, it is common
experience, casts ominous elongated shadows discernible along the lines of conduct of the
person who is subject to the process of dissolution of life. In that there is al, the apprehension
of withering away of human faculties and rational capacities. Mind under such condition would
get seized by the fright of a final full stop and all winged and animated spirits involving free
will, clarity and reasonable and purposeful action may be clipped and caught in the mesh of
progressing paralysis. The apprehension that the curtain is wringing down on the life in such a
state would easily grasp all the consciousness as the physical malady surely effects every
faculty clouding the will and reason of human being. It is no doubt that when such
preponderance of an onset of physical and psychological atrophy operating over the field of
free and balanced will be inferred, the disposition cannot be validated. The light of reason at
such moment is not expected to burn bright as the flame of life itself flickers drawing ghastly
shadows on the cold deadly wall of the inevitable. It is conceivable therefore that the pragmatic
philosophy of Mohammedan law thought it wise to put under the eclipse the acts and
dispositions done upon the prompting f a psychosis indicating apprehension or clear fear of
death either induced by or during the suffering or illness of the person dying. Law assumes that
apart from the dominant danger of loss of free will, such person may clearly lose touch with
his spiritual dictates and may hasten even against the needs of his clear obligations disinterests
to do the things which he might not have normally and in times of health done. Once the
subjective apprehension of death, its possibility or preponderance is established and there is
evidence of accelerated dissipation of life itself leading unto death due to malady or affliction
the dispositions made by such person are treated as if it were an outcry against the demonic
fear of death itself and thus basically a non-juristic action.12

Gifts made during Marz-ul-Maut, i.e., made under pressure and a sense of imminence of death
are operative to the extent of one-third of his property only and divests the donor of the property
with immediate effect.

 What is the validity of gifts made during Marz-Ul-Maut?

A gift made where a person is suffering from marz-ul-maut is subject to very strict scrutiny for
it validity. In a case before Supreme Court a Muslim executed a document styled as “settlement

12
marz ul maut. (2020). Retrieved 29 January 2020, from indiankanoon.org

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will” gifting certain movables to the done. The gift was made by the donor when he was
seriously ill and apprehending his death. There was nothing to show that it was made under
such circumstances that the gifted property would revert to the donor. The donor died within 6
weeks and the possession of the property was delivered to the done before his death. The
question of the character and the validity of the gift arose because the donee claimed an
exemption from paying tax, under section 5(1)(xi) of the Gift Tax Act, 1958 which provides
that gift shall not be charged in respect of gifts made by a person in contemplation of death.
The Supreme Court held in view of the serious sickness of the donor and state of mind at the
time of making of the gift, it can be concluded that the gift was not absolute, on the contrary it
was legitimate to infer that the gift was in contemplation of death and if this gift is recognized
as valid under the personal laws of the parties and also satisfied, the conditions of donatio
mortis causa as incorporated under the Indian Succession Act, 1925, then notwithstanding the
fact that the act did not apply to the Muslim deceased, the done would be granted an exemption
under the Gift Tax Act. In Abdul Hatiz Beg vs. Sahebbi, an 80 year old donor was taken
seriously ill and never recovered from the illness. During his illness he was unable to look after
himself and he had reached a mental low of such a kind that he would ask his near and dear
ones to be by his side. When his daughters came by his side he was unable to express himself.
His sense of helplessness was evident as he would make signs and shed tears while looking at
his relatives. He made a gift of his property barely 24 hours before he died and at a time when
he seized by the subjective and imminent apprehension of his death. In S. Ajija Begum vs S.
Aisha Bevi a gift deed exceeding more than one-third of the property was executed by a Muslim
man during his illness but he survived 5 years thereafter. A year after the execution, the validity
of the gift was challenged. The court held that it would cease to have the character of a gift
executed during Marz-Ul-Maut.

 On whom lies the Burden of proof?

The court is required to access the validity of gifts made during Marz-Ul-Maut by a complete
and thorough scrutinisation. The initial burden to prove the requirements of marz-ul-maut is on
the person who sets up such a plea as affecting the disposition of a dead person, that can be
discharged by proof of the facts and circumstances in which such person met his death and the
attendant events preceding and succeeding the disposition itself. Once the possibility of
subjective apprehension of death in the mind of the suffering person who made the gift is raised
clearly, the burden shifts to the party who takes under the disposition or sets up the title on its
basis. Mere accident of death of a person making the disposition would not be enough. It is

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necessary for the party setting up the disposition to rebut the proof that may indicate that the
disposition is within the mischief of Marz-Ul-Maut.

CONCLUSION

With the study conducted on the concept of Marz-ul-Maut, it can be concluded that the
hypothesis in the research conducted has been proved to nullity. The concept of marz-ul-maut
is having a significant legal value as per the Muslim laws are concerned. The entire concept
has the ability to change the nature of the property inherited by the person under Muslim laws.
Marz-ul-maut is not an independent concept and is dependent on the facts and circumstances
under which the gifts has been granted by the donor to the donee. There should be a reasonable
apprehension of death of the person suffering from fatal illness and there cannot be any scope
of recovery. Also, it should not be a long term illness. By fulfilling all the mentioned criteria,
the gift deed can be accepted under the marz ul maut in Islam.

BIBLIOGRAPHY

 India, l. (2020). Marz-ul-Maut in Muslim Law. (online) Legalservicesindia.com.


Available at: www.legalservicesindia.com which was Accessed 29 Jan. 2020.
 “Donation Mortis Causa” under the Indian Succession Act, 1925, Section 191
 Gifts made during marz ul maut under Muslim Law
 Mohammad Gulshere Khan v. Mariam Begum,(1881) ILR 3 AII 731
 Zanrao v Sher Mohammad, AIR 1934 Pesh 91; Hassarat Bibi v. Golam Jaffar, (1898) 3
CWN 57
 Sarabai v Rabiabai, (1906) 37 Bom 264
 Jahar Ali Khan v Nasimanissa Bibi , AIR 1937 Cal 500
 Janjira v Mohammad, AIR 1922 Cal 429
 Fazal Ahmad v Rahim Bibi, (1918) 40 AII 238
 Marz-ul-maut. (2020)which is retrieved 29 January 2020 from indiankanoon.org

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