TABLE OF CONTENTS

1. Acknowledgement……...………………………………………………………….…4

2. Introduction……...…………………………………………………………………...4

3. Concept of Marz-ul-Maut…………………………………………………………....5

4. How Marz-ul-Marz is different from other Illness…………………………………5

5. Essentials for Marz-ul-Maut………….……………………………………………..5

6. Gift during Marz-ul-Maut………………...…………………………………………7

7. Position where donor recovers from Illness……...…………………………………7

8. Reasons for combining Gifts with Will…………………………………………...…7

9. Validity of gifts made during Marz-ul-Maut……….………………………………8

10. Burden of Proof………………………………………………………………………9

11. Difference between Marz-ul-Maut and Donatio Mortis Causa………..………...10

12. Conclusion……………………………………………………………………….…..12

13. Bibliography……………………………………………………………………...…12

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 TABLE OF CASES

1. Sakina Begum v. Khalifa Hafiz-ud-din, AIR 1941 Lah 58

2. Mohammad Gulshere khan v Mariam Begum(1881)3 All 731
3. Masood Ali v. Mohammad khan AIR 1957 All 395,
4. Fazal Ahmed v. Rahim Bibi(1918) 40 All 238
5. Commisionaer of gift tax ,Ernakulam v. Abdul Karim Mohammad
6. Safina Begum v. Abdul Razak, AIR 1945 Bom 438
7. Shamshad Ali shah v Syed Hassan shah, 1964 All Pakistan Legal Decisions
8. Shamshad Ali shah v. Hassan shah, PLD 1964 SC 143 (Pakistan)

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 ACKNOWLEDGEMENT

I owe a great many thanks to a great many people who helped and supported me during the
writing of this project. I’ like to convey my heartfelt thanks to Mrs. Sudha Kavuri, faculty
for Family Law, Damodaram Sanjivayya National Law University, Visakhapatnam for her
guidance and supervision regarding this project, without who’s sincere help, this project
wouldn’t have been the same. I would also thank and appreciate the helpfulness of the
Librarian. I also extend my heartfelt thanks to my family and well wishers.

INTRODUCTION

The death-bed gifts are recognized in many systems of the law, though to what extent and in
what circumstances such gifts can be made, differs. Marz-ul-Maut gifts of Muslim law derive
their rules from two branches of Muslim law, the law of gifts and the law of wills. The law
relating to the Marz-ul-Maut is a combination of rules derived from both the branches. It has
been described as Donatio Mortis Causa, as a gift of amphibious nature; not exactly a gift,
nor exactly a legacy, but par-taking the nature of both. The different schools of Muslim law
take divergent views on the Marz-ul-Maut gifts. The Malikis take the view that the Marz-ul-
Maut gifts are void. The Hanafis and the Shia hold that such gifts to the extent of one-third
are valid. One of the primary requirements in the case of gifts 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. 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 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 a realisation that death is very close. In fact the real
nature of pressure is the awareness of a stark reality that the person may die any moment.
Such gifts executed by a person under an immediate apprehension of death, stands on
different footing than ordinary gifts executed by a person under no such apprehension, and
which are result of a well thought out act with the ability to comprehend the consequences of
his action. An ordinary gift does not indicate haste, but a gift under the apprehension of death
is made with a sense of urgency. These gifts are made at the time where it is doubtful whether
the mental facilities were functioning properly or were absolutely normal due to the
apprehension of immediate death and have a separate status. Law treats them differently and
term them as gift made during death bed illness or made by a person suffering from Marz-ul-
Maut.

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 CONCEPT OF MARZ-UL-MAUT

Marz means illness, disease or malady whereas Maut means death. Thus Marz-ul-Maut
means an illness that result in death1. Illness or disease can be of several types even if they
are termed incurable or one which would eventually result in the death of the patient. Illness
or disease may prove fatal immediately or within a very short period of time or drag a person
slowly, leading him to an eventual death. The time frame of which is uncertain and longer
than what could be covered under immediate or very near point if time. It is an illness
dangerous to life which mostly ends in death provided the patient actually dies of it.
Therefore it is an illness that caused an apprehension in the mind of the patient that he is
going to die soon and he actually dies due to it.

HOW MARZ-UL-MAUT IS DIFFERENT FROM OTHER ILLNESS

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
continuation or it is incurable or even if it cripples a person 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 would be called a death bed illness but this does not
constitute a hard and fast rule. Long and lingering, makes a person familiar with it which
dilutes the apprehension of death to some extent and would not be called Marz-ul-Maut2.
Where a disease that is lingering to begin with become grave and reaches a point where
imminent death becomes evident to the sufferer and the fact happens it would be called Marz-
ul-Maut3.

ESSENTIAL CONDITION FOR MARZ-UL-MAUT

The first and foremost condition is that the person must be suffering from an illness second
there must be apprehension of death in the mind of the patient and the third that he actually

1
Sakina Begum v. Khalifa Hafiz-ud-din, AIR 1941 Lah 58,Family law-II,3rd edition by Dr Poonam Pradhan Saxena
2
Mohammad Gulshere khan v Mariam Begum(1881)3 All 731, Supra1
3
Masood Ali v. Mohammad khan AIR 1957 All 395,Supra1

4
dies4. The Supreme Court5 has given three test to determine whether an illness is to regard as
Marz-ul-Maut or not, according to Court there must be ‘proximate danger’ of death. Some
degree of subjective apprehension of death in the mind of the sick person Some external
indicia chief among which would be the inability to attend to ordinary avocation, the Calcutta
high Court while considering the doctrine of Marz-ul-Maut found 3 things necessary to
constitute the same, illness, expectation of fatal issue and certain physical in capabilities
which indicates the degree of illness. The second condition cannot be presumed to exist from
the existence of the first and the third. The incapability indicates with perhaps the single
exception of the case in which a man cannot stand up to say his prayer is not infallible sign of
death illness.

The Bombay High Court6 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 from his own consciousness as
distinguished from the apprehension caused in the mind of others symptoms like incapacities
are only the indicia but not infallible signs or a sine qua non Marz-ul-Maut. While laying
down the principle on which the law of Marz-ul-Maut is based. The Supreme Court of
Pakistan stated7 following necessary question to be raised:

1. Was the donor suffering at the time of gift from a disease which was immediate
caused 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 engage in him the apprehension of
death?

3. Was the illness such as to incapacitate him from the pursuit of his ordinary avocation
a circumstances which might create in 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?

4
Fazal Ahmed v. Rahim Bibi(1918) 40 All 238,Supra1
5
Commisionaer of gift tax ,Ernakulam v. Abdul Karim Mohammad, manu/SC/0417/1991 decided on 10 th july,
1991
6
Safina Begum v. Abdul Razak, AIR 1945 Bom 438,Supra1
7
Shamshad Ali shah v Syed Hassan shah, 1964 All Pakistan legal decisions,Supra1

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Thus, 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.

GIFT MADE DURING MARZ-UL-MAUT

A gift made by a person during Marz-ul-Maut is treated as a combination of both a gift as

well as a will. 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 passion of gifted property during lifetime of the
donor. In addition to this as it is also treated as a will it cannot be made of more than one
third of the property unless the heirs whose share would be adversely affected give their
consent for the validity of excess bequest after the death of the donor. Both Sunni and Shia
accept this.

POSITION WHERE DONOR RECOVERS FROM ILLNESS

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

REASONS FOR COMBINING GIFTS WITH WILL

The principle that a gift made under Marz-ul-Maut involves the compliance of the mandatory
formalities of a gift and the testamentary restriction of a will is based on the reason that
where a person makes a gift during an apprehension of death his mental faculties and state of
mind is not on par with that of a person who is not under such an apprehension. Illness

6
coupled with apprehension of death may weaken a man`s physical and mental power and he
is likely to make disposition, which may harm spiritually and which may be to the detriment
of his heirs. Thee gifs are executed with a sense of urgency or haste and are not a result of
well contemplated action of a reasonable man. The Bombay high Court explained the reason
for putting these in a different class altogether.

Death is the certain and the central fact. Proximate danger of death in an illness, it is common
experience cast ominous elongated shadows discernible along the lines of conduct of the
person who is subjected to the process of dissolution of life. In that there is all 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 sprits involving
fee will clarity and reasonable and purposeful action may be clipped and caught in the mesh
of progressing paralysis. That is why the Courts allowed gifts under Marz-ul-Maut because a
person in the apprehension of death is in the apprehension of death. Thus the gifts made
during Marz-ul-Maut under pressure and a sense of imminence of death is operative to the
extent of one third of his property only and divests the donor of the property with immediate
effect.

VALIDITY OF GIFS MADE DURING MARZ-UL-MAUT

Under Muslim law gift made where a person is suffering from Marz-ul-Maut is subject to
very scrutiny for its validity. In a case before the Supreme Court 8 a Muslim executed a
document styled as settlement will gifting certain movables to 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 donor. The
donor died within six weeks and possession of the property was delivered to done before his
death. The question of the character and validity of gift arouse because the done claimed an
exception from paying gifts tax, under s 5(1)(xi) of the gift tax act 1958, which provides that
gift tax shall not be charge in respect of gifts made by a person in contemplation of death.
The Supreme Court held that in view of serious sickness of the donor and state of mind at the
time of making gift, it can be concluded that the gift was not absolute, on the contrary it will

8
Commissioner of gift tax ,Ernakulum v. Abdul karim Mohammad, manu/SC/0417/1991 decided on 10 th july,
1991

7
be legitimate to infer that the gift was in contemplation of death and if this is recognised as
valid under personal law of the parties and also satisfied the condition of Donatio Mortis
Causa as incorporated under the Indian succession act 1952, then notwithstanding the fact
that the act did not apply to Muslim deceased, the done would be granted exemption under
gift tax act in another case9 an 80 year old donor was taken seriously ill, and never recovered
from the illness. During this illness he was unable to look after himself and had reached a
mental law of such kind that he would ask for near and dear ones to be by his side. However,
when his daughter came by his side he was unable to express himself. His sense of
helplessness was evident as he would make sign and shed tears while looking at his relatives.
He made gift of his property barely 24 hours before he died and at time when he was seized
by the subjective and imminent apprehension of his death. The Court held that the gift was
made by him during Marz-ul-Maut. In another case from Pakistan10 a 65 years old women
made a gift when she was suffering from pneumonia and died within two hours. The Court
held that the gift was made during Marz-ul-Maut.

BURDEN OF PROOF

The Court is required to assess the validity of gifts made during Marz-ul-Maut by a complete
and thorough scrutinisation. The initial burden to prove the requirement 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 the proof of the facts and circumstances in which such person met his death
and the attendant events preceding and succeeding in disposition itself. Once the possibility
of a subjective apprehension of death in the mind of the death in the mind of the suffering
person who made the gift is raised clearly, the burden shifts to the party who takes under
disposition or sets up the titles on its basis. Such party may prove the facts and circumstances
which would enable the Court to hold that the disposition itself was not made while the
sufferer was under the apprehension of death. Mere accident of death of a person while
making the disposition would not be enough. It is necessary for the party setting up the

9
Abdul hafiz beg v. Sahebibi, AIR 1975Bom 165,Supra1
10
Shamshad Ali shah v. Hassan shah, PLD 1964 SC 143(Pakistan),Supra1

8
disposition to rebut the proof that may indicate that the disposition is within the mischief of
Marz-ul-Maut11.

DIFFERENCE BETWEEN GIFTS MADE DURING MARZ-UL-MAUT AND

DONATIO MORTIS CAUSA

The Indian Succession Act, 1925, enables an Indian not being a Muslim to make gifts in
contemplation of death. These gifts are called ‘Donatio Mortis Causa’. This act deals
primarily with the principles relating to intestate and testamentary succession. Section 191 of
the act provides that a man may dispose of, by gift made in contemplation of death, any
movable property which he could dispose of by will. A gift is said to be made in
contemplation of death where a man who is ill and expects to die shortly of his illness,
delivers to another the possession of any property to keep as a gift in case the donor shall die
of that illness. Such a gift maybe resumed by the giver, and shall not take effect if he recovers
from the illness during which it was made, nor he survives the person to whom it was made.
According to Supreme Court there are five essentials features of donation mortis cause

(i) Gifts must be of moveable property

(ii) It must be made in contemplation of death

(iii) The donor must be ill and he expects to die shortly of illness

(iv) Possession of the property should be delivered to the done and

(v) The gift does not take effect if the donor recovers from illness or if the done
predeceased the donor.

Therefore, Donatio Mortis Causa differs from gifts made during Marz-ul-Maut in three
different aspects, first it permits the transfer of only movable property, but the subject
matter of a gift made during Marz-ul-Maut can either be movable or immovable property.
Secondly, in Donotio mortis causa, there is no impediment to the power of the donor to
make a gift with respect to the extent of property or even the class of donees. The entire

11
Abdul Hafiz Beg v. Sahebbi, 1975 Bom 165,Supra1

9
property can be gifted and can be given to anyone including heirs. It is a unilateral action
on the part of the donor in the sense that it does not require validation from the heirs
whose shares are likely to be adversely affected by the operation of this gift. In the case of
gifts made under Muslim Law where a person is suffering from Marz-ul-Maut, the doner
can make a gift of only one third of the property, and that too in favour of a non heir
unless the excess is validated by the heirs. Under Shia Law, a gift can be valid to the
extent of one third of the property in favour of an heir also. Thirdly in case of Donatio
Mortis Causa, if the recovers from illness and escape death, the gift fails in its entirety.
The donor regains possession of the subject matter of the gift, but a gift made during
Marz-ul-Maut is subject to different rules. Here if the donor recovers from the illness and
comes out of the apprehension of imminent death, the gift is called an ordinary gift and
would take effect validity.

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 CONCLUSION

This project studies the concept of Marz-ul-Maut, ‘marz’ meaning disease and ‘maut’
meaning death; therefore, Marz-ul-Maut means ‘death caused by disease'. So the concept is
when a person is about to die if gifts his property to someone then it is a valid as there must
be some conditions the first and foremost condition is that the person must be suffering from
an illness second there must be apprehension of death in the mind of the patient and the third
that he actually die, there must be Proximate danger of death Some degree of subjective
apprehension of death in the mind of the sick person. In Marz-ul-Maut if the person recovers
from illness then the gift will be an ordinary gift. After doing this project, I found that Marz-
ul-Maut is a very interesting concept in Muslim Law.

BIBLIOGRAPHY

BOOKS
1. Family Law Lectures by Dr. Poonam Pradhan Saxena, 3rd Edition, LexisNexis
ButterworthsWadhwa, Nagpur
2. Mayne’s Hindu Law & Usage by Justice Ranganath Misra and Dr. Vijenderkumar,
16th Edition, Bharat Law House, New Delhi
3. Mohammedan Law by Aqil Ahmad, revised by Prof. I. A. Khan, 23rd Edition

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