CONCEPT OF MARZ-UL-MAUT

Submitted in partial fulfillment of the requirements

for the award of the degree B.Com., LL.B. (Hons)

Submitted by

A.MANORANJAN
BC0150014

Submitted to

Mrs.Deepika(Asst Professor)

TAMIL NADU NATIONAL LAW SCHOOL

TIRUCHIRAPPALLI – 620 009

JULY- 2017

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Mrs. Deepika
Assistant Professor in Family law
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu – 620 009

CERTIFICATE

This is to certify that the project work entitled “CONCEPT OF MARZ-UL-

MAUT” is a bonafide record of the research work done by A.MANORANJAN, under
my supervision and guidance. It has not been submitted by any other University for
the award of any degree, diploma, associate ship, fellowship or for any other similar
recognition.

Place: Tiruchirappalli
Date:
Signature of the Guide

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A.MANORANJAN
Reg. No. BC0150014
II – B.Com., LLB. (Hons.)
Tamil Nadu National Law School
Tiruchirappalli
Tamil Nadu – 620 009

DECLARATION

I, A.MANORANJAN, do hereby declare that the project entitled “CONCEPT OF

MARZ-UL-MAUT” submitted to Tamil Nadu National Law School in partial
fulfilment of requirement for award of degree in Under Graduate in Law to Tamil
Nadu National Law School, Tiruchirappalli, is my original research work. It and has
not been formed basis for award of any degree or diploma or fellowship or any other
title to any other candidate of any university.

Counter Signed Signature of the Candidate

Project Guide

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 ACKNOWLEDGEMENT

At the outset, I take this opportunity to thank my Professor Mrs. Deepika., from
the bottom of my heart who have been of immense help during moments of anxiety and
torpidity while the project was taking its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor Kamala Sankaran

IAS and the administrative staff of TNNLS who held the project in high esteem by
providing reliable information in the form of library infrastructure and database
connections in times of need.

Thirdly, the contribution made by my parents and friends by foregoing their

precious time is unforgettable and highly solicited. Their valuable advice and timely
supervision paved the way for the successful completion of this project.

Finally, I thank the Almighty who gave me the courage and stamina to confront all
hurdles during the making of this project. Words aren’t sufficient to acknowledge the
tremendous contributions of various people involved in this project, as I know ‘Words are
Poor Comforters’. I once again wholeheartedly and earnestly thank all the people who
were involved directly or indirectly during this project making which helped me to come
out with flying colours.

A.MANORANJAN

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 INDEX

S.NO TOPICS PAGE NO.

1 INTRODUCTION 6

2 CONCEPT OF MARZ-UL-MAUT 6

3 RECOGNIZATION OF MARZ-UL-MAUT 7

4 DISEASES THAT MARZ-UL-MAUT 8

INCLUDE
5 ESSENTIALS OF GIFTS MADE DURING 9
MARZ-UL-MAUT
6 VALIDITY OF GIFTS MADE DURING 10
MARZ-UL-MAUT
7 WHAT IF DONOR RECOVERS FROM 11
ILLNESS?
8 CONCLUSION 11

9 BIBLIOGRAPHY 12

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INTRODUCTION:

In India Muslims are allow to follow their personal civil law. This is because of the
British who allowed all religions to follow their own personal civil law. The Muslim laws were
governed by Shariat. One of the provisions is marz-ul-maut (death bed gifts). During the year
1991 many unusual number of cases appeared regarding Muslims laws in the law reports. Those
cases covered topics like Wakfs, Hiba (gift), gifts made in marz-ul-maut. If the essentials or the
aspects of this are not done properly then it has the power to change the entire nature of the
inherited property. Marz-ul-maut is not an independent concept and is dependent on the facts and
circumstances under which the gift has been granted by the donor to the donee. This following
paper includes the study conducted on the concept of marz-ul-maut of Muslim Law.

CONCEPT OF MARZ-UL-MAUT:

In Arabic terms ‘marz’ means illness,disease or a malady and ‘maut’ means death.yhus
marz-ul-maut means an illness that results in death .1 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. Illnesses or diseases can be several types even if they are termed
incurable or one which would eventually result in the death of the patient. baillie defines marz-ul-maut as
an illnesses,which it is highly proble will issue fatally. 2Mulla defines it as a malady which includes an
apprehension of death in the person suffering from it and which eventually results in his death. 3

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

2 Baillie, Digest of Moohummudan Law, Part-I,1865,p552.
3 Mulla’s Principles of mahomedan law, 19 edn.,

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RECOGNIZATION OF MARZ-UL-MAUT:

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.

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. They are:-

 There can be no disqualification of a heir or successor

 The net value of the property that can be disposed should not be greater than 1/3 rdof the
total value of the assets

In Faszil Ahmed v. Rahim Bibi,4 the court held that:-

 the first and foremost condition is that the person must be suffering from an illnesses.
 There must be an apprehension of death in the mind of the patient.

In Commissioner of Gift Tax, ernakulam v. Abdul Karim Mohammad, 5 the Supreme Court has
given three types tests to determine whether an illness is to be regarded as marz-ul-maut or not.

 Proximate danger of death;

 Some degree of subjective apprehension of death in the mind of the sick person; and
 Some external indicia chief among which would be the inability to attend to ordinary
avocations.

In Fatima Bibee v. Ahammad Baksh,6 the Calcutta High Court while considering the doctrine of
marz-ul-maut found three things to constitute the same viz.,

4 (1918) 40 All 238.

5 Manu/SC/0417/1997,decided on 10 july,1991.
6

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  Illness;
 Expectation of fatal issue; and
 Certain physical incapacities where indicate the degree of illness. The second condition
cannot be presumed to exist from the existence of first and the third 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.

DISEASES THAT MARZ-UL-MAUT INCLUDE

Not, all the diseases like cripples, incurable diseases..etc cannot that would not be called
as marz-ul-maut. Through the rule is that a person suffering from the disease dies within a time
period of one year, the disease can be called as death bed illness, but this does not constitute a
hard and fast rule.

In Mohammad Gulshere khan v. Mariam Begum, the court said that the 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.

Chronic asthma, paralysis, lingering consumption, albuminuria for more than a year 7, sudden
bursting of blood vessel in the stomach 8 are not the cases of marz-ul-maut, but rapid or galloping
consumption9 or pneumonia may be covered under marz-ul-maut. Where a disease that is
lingering to begin with some grave and reaches a point where imminent death becomes evident
to sufferer and in fact happens, it would be called marz-ul-maut.

ESSENTIALS OF GIFTS 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 (Wasiyat). All the three essentials ingredients of valid gift must be complied with, namely:
7 Fatima bibee v. ahmad baksh, (1903) 31 CAL 319.
8 Ibrahim goolam arif v. saiboo, (1908) 35 CAL 1.
9 Musi imran v. ibn hussain,AIR 1933 All 341.

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  A declaration by the donor,- There must be a clear and unambiguous intention of the
donor to make a gift.
 Its acceptance by the donee himself.- a gift is void if the donee has not given his
acceptance. Legal guardian may accept on behalf of a minor.
 Delivery of possession by the donor and taking of the possession by the donee. In Muslim
law the term possession means only such possession as the nature of the subject is
capable of. Thus, the real test of the delivery of possession is to see who - whether the
donor or the donee - reaps the benefits of the property. If the donor is reaping the benefit
then the delivery is not donee and the gift is invalid.

In addition to this, as it is also treated as a will, it cannot be made of more than one-third of the
total 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. The legal position on this point is the same
under Sunni and Shia law. However, the rule that one- third of the property can be bequeathed
even to an heir is one of the primary distinctions between Shia and Sunni Law and is applicable
here as well. 10

VALIDITY OF GIFTS MADE DURING MARZ-UL-MAUT:

Under Muslim Law, gift made during where a person is suffering from marz-ul-maut is
subject to very strict scrutiny for its validity.

10 Khurshad v. Faiyaz, (1914) 36 All 289.

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In Commissioner of Gift Tax, ernakulam v. Abdul Karim Mohammad 11, a case before the
Supreme Court a Muslim executed a document styled as ‘settlement will’ gifting certain
movables to donee. The gift was made by the donor when he was ill and apprehending to 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 six weeks and possession of the
property was delivered to the donee before his death. The question of the character and validity
of gifts arose because the donee claimed an exemption from paying gift tax, under s,5(1) (xi) of
the Gift Tax Act 1958, which provides that gift tax shall not be charged in respect of gifts made
by a person in contemplation of death. The Supreme Court held that in view of the serious
sickness of the donor and state of mind at the time of making of gift, it can be concluded that the
gift was not absolute, on the contrary it will be legitimate to infer that the gift was in
contemplation of death and if this was recognized as valid under the personal law of the parties
and also satisfied, the condition of donatia moris causa as incorpated under the Indian succession
act, 1925, then notwithstanding the fact that the act did not apply to the Muslim deceased, the
doneee would be granted an exemption under the Gift Tax Act.

In Abdul Hafiz Beg v. Sahebbi,12 case- an 80 year old donor was taken seriously ill, and never
recovered from illness. During this illness he was unable to look after himself and had reached a
mental low of such kind that he would ask for his 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 signs and shed tears while looking at his relatives. He made a gift
of his property barely 24 hours before he died and at time when he was seized by subjective and
imminent apprehension of his death. The court held that the gift was made by him during marz-
ul-maut.

In another case Shamshad Ali Shah v. Hassan Shah,13 from Pakistan-an 65 year old women
made a gift when she was suffering pneumonia, and died within two hours. The Court held that
the gift was made marz-ul-maut.

11 Manu/SC/0417/1997,decided on 10 july,1991
12 AIR 1975 Bom 165.
13 PLD 1964 SC 143 (Pakistan)

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WHAT IF DONOR RECOVERS FROM ILLNESS?

Even though one of the essentials ingredients of a marz-ul-maut is that death actually
happens, yet where a gift made during an apprehension of death, and the donor recovers from
illness, this would not be called a gift made during marz-ul-maut and would operate as an
ordinary gift. In such 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 even if it
extends to the whole of the property.14

CONCLUSION

The death bed gift is recognized in many system of law, but the extend till what it is
allowed, the circumstances in which it is allowed, essentials and other aspects change from one
system to the other. And hence this paper dealt with the Muslim law aspect of the Marz-ul-maut
(death bed gift) in India. The Marz-ul-maut is a concept which is derived from two rules of
Muslim law, which are the law of gift and law of will. The concept of Marz-ul-maut is based on
the concept of donatio mortis causa, as a gift of ambiguous nature, not exactly a gift and not
exactly a legacy, but partaking the nature of both. This marz-ul-maut is having a significant legal
value as for as the Muslim laws are concerned. This concept has the ability to change the entire
nature of the property inherited by the person under Muslim law. There should be a reasonable
apprehension of death of the person suffering from fatal illness and there cannot be any scope of
that person to come back to life or recovery. By fulfilling all the mentioned criteria in this
project, the gift deed can be accepted under the marz-ul-maut.

BIBLIOGRAPHY

 Family Law, Paras Diwan, Allahabad Law Agency.

 Family Law II, Third Edition, Dr. Poonam Pradhan Saxena, lexis nexis.
 Family Law in India, Tenth Edition, PROF. G.C.V. Subba Rao’s.

14 Family Law, Paras Diwan, Allahabad Law Agency.

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 https://googleweblight.com/i?u=https://www.lawctopus.com/academike/concept-of-gift-
under-muslim-law/&grqid=vcPOkwuX&hl=en-IN&geid=1005
 http://www.shareyouressays.com/117471/get-complete-information-on-death-bed-gifts-
under-muslim-law

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