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Abdul Hafiz Beg vs. Sahebbi (1975)

September 3, 2024

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Nishimita Tah has written this article which provides a critical analysis of the landmark judgement of the case named Abdul Hafiz Beg And Anr. vs Sahebbi And Ors.(1974). The article exhaustively covers the concept of marz-ul-maut which is examined in the form of court ruling. However, the ruling in the present case revolves around determining the conditions of Marz-ul-Maut and the legal validity of the transactions during the imminent death. The author has taken the initiative to clear the concept of marz-ul-maut by analysing the case in her own words in a precise manner.

Introduction

The rules and principles guiding every aspect of life and property for Muslims apply both while they are alive and after they pass away. Muslims have the freedom to make a will under the Muslim personal law. The transfer of Property during a deathbed illness or Marz-ul-Maut falls between a living transaction and a testamentary disposition. In general, marz-ul-maut is a deathbed illness and not a gift made in that situation. When a person is seriously ill and fears that they die, any gift they make during this time is considered a gift during marz-ul-maut.

A Muslim individual is always permitted to make gifts (Hiba). The concept of deathbed gifts are considered under the Muslim personal laws, but it differs from the circumstances and facts of each case. The derivation of marz-ul-maut is based upon the nature from both, “Hiba” i.e. law of gifts, and the law of wills. This type of gift becomes valid upon the death of the giver due to terminal illness. The main condition of this genre of gift is that the gift should be made in contemplation of his death, which is stated under the scope of Section 191 of the Indian Succession Act, 1925.

In general, it is presumed that the muslims are ready with will (wasiyat) before their death or the estate of the person would succeed through the process of intestate succession in accordance with Shariah. The term Shariah refers to the regulations of the religion that governs the lives of Muslim individuals. In cases, when an Islamic person dies without a will, prior to his death, and in its expectancy, he can make a gift known as ‘marz-ul-maut’. In the case of Nazar Husain vs. Rafeeq Husain (1911), it was held that the gift of marrz-ul-maut can only be initiated till 1/3rd extent of the property without the consent of the heirs, the rest of the estate will proceed according to the intestate succession under the scope of the Muslim Personal Law (Shariat) Application Act,1937.

Details of the case

Name of the case: Abdul Hafiz Beg And Anr. vs Sahebbi And Ors. (1974)

Parties in the case: Abdul Hafiz Beg And Anr. (Plaintiff) and Sahebbi And Ors. (Defendant)

Citation: AIR1975 BOM 165

Date of Judgement: 25th July, 1974

Court: Bombay High Court

Case type: A.P.A.D No. 10 of 1965

Bench: Masodkar,J.

Background of the case

The case of Abdul Hafiz Beg And Anr vs Sahebbi And Ors (1974) deals with the doctrine of Marz-ul-Maut under the ambit of Islamic law. It means a gift to be valid as a Marz-ul-Maut gift when it is made or gifted during the death illness. The dispute in the present case revolves around the ownership and possession of property that has been transferred by Abdul Kadar during his deathbed illness. Under the ambit of Islamic law, transactional activities conducted during the period of Marz-ul-Maut were subject to specific restrictions for protecting the rights of heirs. However, this case is related to determine whether a gift made by an ailing muslim man named Abdul Kadar fell under the scope of the doctrine of Marz-ul-Maut. The case revolves around the deteriorating health and eventual death of a man named Abdul Kadar.

Facts of Abdul Hafiz Beg vs. Sahebbi (1975)

Abdul Kadar fell seriously ill and never recovered from his sickness. Throughout the sickness, Abdul Kadar was incapable of taking care of himself, which led to his demise.
At the extreme of his health deterioration, he remained in a state of extreme weakness and mental distress where he reached the point, Abdul Kadar was unable to communicate and express his feelings.
When his daughters visited him during his final days, he could only express himself through gestures and tears, which highlighted his extreme helplessness and suffering.
Abdul Kadar had been suffering from a serious illness prior to 1st February and his sickness persisted until his demise on 4th February.
The circumstances strongly made him make a gift approximately 24 hours before his death. Abdul Kadar was overwhelmed by an immediate sense of imminent death.

Issues raised in the case

Whether the transactions made by the deceased during his marz-ul-maut were valid?
Was the gift made due to the pressure of an imminent sense of death?

Arguments of the parties

The doctrine of “marz-ul-maut” in the context of gift transactions in the Indian and Pakistani legal context has been discussed in the judgement of the case. The doctrine deals with gifts made by a person who is severely ill, which leads to death. The applicability of the doctrine in the Indian context can be proven and considered when the donor is apprehensive about death and makes the disposition, as a gift, while in that condition.

Plaintiff

The plaintiff contended that the deceased was suffering from a fatal disease at the time of executing the gift transactions which constituted marz-ul-maut.
It was also contended that gift transactions made during marz-ul-maut were treated as testamentary disposition and subjected to limitations of will under the scope of Islamic law which allowed only 1/3rd of the possession to be disposed of without the consent of heirs.
It was also contended that the gift transaction was not valid.

Defendant

The defendant argued that the deceased was not suffering from a fatal illness at the time of the transactions.
The defendant contended that the transactions were valid, and it was executed with actual knowledge and consent of the deceased. There was no such act committed like undue influence and coercion.

Concepts involved in the case

Doctrine of marz-ul-maut

The term is derived from Arabic, where “marz” translates to sickness and “maut” means death. Marz-ul-maut involves specific conditions for validity, including a clear declaration of the gift, acceptance by the recipient, and the actual or constructive transfer of possession.

The doctrine of marz-ul-maut, also known as deathbed gifts, is rooted in Sharia law and pertains specifically to the Muslim community under Indian Islamic law. This doctrine governs the disposal of a Muslim’s possessions when they are on their deathbed, a condition referred to as “marz-ul-maut”. Gifts made during this period are treated as a form of testamentary succession. According to Islamic law, if a person is gravely ill and fearful of impending death , any gifts they make during the time are classified under marz-ul-maut.

In the case of Commissioner of Gift Tax vs. Abdul Karim Mohd.(1991), it was upheld by a bench of the Supreme Court that marz-ul-maut does not come under the purview of gifts and is not subjected to gift tax. The three essentials of valid gift under Muslim Law are:

declaration of gift by the donor
express or implied acceptance of the gift by the donee
the delivery of possession of the gift by the donor to the donee.

As per Sharia law, the restrictions imposed on the death-bed gifts are:

There can be no disqualification of an heir.
The net value of the property that can be disposed of must not be greater than 1/3rd of the total value of assets.

“The Principles of Mohammedan Law” by Mulla, the author explains that it is an illness that causes a person to experience a fear of death, which ultimately leads to demise.

In the book “Principles of Muhammadan Jurisprudence” by Abdur Rahim, he discussed the foundational efforts to identify the juristic principles underlying the scope of Mohammedan legal precepts. It particularly focuses on the concept of death-illness. Rahim took the references of Heiya and Kifava describing marz-ul-maut as an illness that generally incites a fear of death and in particular cases it actually ends with death.

Essential conditions for marz-ul-maut

Gifts made by someone on their deathbed face limitations. This difficulty arises for oral gifts which requires clear evidence. Marz-ul-maut is similar to a gift and must follow the same rules as a regular gift (Hiba). These essential conditions include:

The donor clearly and unmistakably states their intention to give a gift.
The declaration, whether oral or written
Acceptance of the gift by the donee either explicitly or implicitly.
Actual or constructive delivery of the possession of the subject matter.

In a leading case, Shaikh Nurbi vs. Pathan Mustanbi & others (2004) discuss the three essential conditions required for application of marz-ul-maut. Those are:

The malady must have caused the death of the person making the gift.
There must be subjective apprehension of death in the mind of the person suffering from that illness and,
The presence of some external indicia such as inability to attend daily routine matters.

In the case of Cain vs. Moon (1896), the Judicial Committee emphasised that the decisive factor in determining the validity of the gift is whether the deed of gift was executed by the donor under the apprehension of death.

In the case of Bhoona Bi vs. Gujar Bi (1972), the Madras High Court held that all evidence and circumstances must be considered, and a decision on a gift made during marz-ul-maut (deathbed illness) cannot be made if it was not mentioned in the original complaint. In the judgement reported in the case of Commissioner of Gift Tax, Ernakulam vs. Abdul Karim Mohd.(1991), the Supreme Court reaffirmed the same principles related to marz-ul-maut and based on the evidence in particular case, held that the gift was indeed a marz-ul-maut.

Apprehension of death

The subjective nature of the apprehension is highlighted in the case of Hassarat Bibi vs. Golam Jaffar (1898), where the definition of death illness has been specified:

The donor should be suffering from a sickness that ultimately causes their death.
The sickness should induce fear of death in the person, making them believe they are going to die.
The illness should render the person unable to attend to their day to day tasks.
A person with long standing sickness suddenly takes a serious turn into fear of death.

Relevant judgements referred to in the case

Fatima Bibee vs. Ahammad Baksh (1904)

In the case of Fatima Bibee vs Ahammad Baksh (1904), the Calcutta High Court considered the doctrine of marz-ul-maut and identified three essential conditions: illness, expectation of fatal issue, and certain physical capacities which indicate the severity of illness. These conditions state about a long-affected illness which has caused immediate apprehension to death. It was also considered that even if a person is suffering from a severe illness, if they were still of sound mind, their disposition would not be taken as invalid.
In this case, the question was raised on the validity of disposition under the law of Marz-ul-maut. The above-mentioned observation of the Calcutta High Court has been affirmed by the Privy Council. It appears that there was no doubt subject to the evidence of the doctor.
The observation was also made that the gift was made under the anxiety of death by the deceased, it is invalid under the ambit of the doctrine of marz-ul-maut.

Sarabhai vs. Rabiabai (1905)

In the case of Sarabhai vs Rabiabai (1905), the court had laid down three conditions which satisfies as to the requirements of Marz-ul-maut :

Proximate danger of death so that there is a prevalence of death.
Degree of anxiety of death in the mind of a sick person.
Some external indicia such as an inability to perform one’s ordinary avocations.

Safia Begum vs Abdul Razak (1944)

In the case of Safia Begum vs Abdul Razak (1944), it was observed by referring to the two privy council decisions that were taken as settled that the test of marz-ul-maut is the proof of the apprehension of death in the mind of the donor. However, the fear of death derived from his own consciousness as the fear was caused in the mind of others. The other symptoms like physical incapacities are only the indications of marz-ul-maut. It was taken into account that the person claiming to be a donor for someone with a terminal illness must provide proof of their illness.

Shamshad Ali Shah vs Syed Hassan Shah (1964)

The judgement of the case was laid down by the Pakistan Supreme Court where the learned judges summarised the law of the gifts and the doctrine of Marz-ul-maut.

The fact of the case starts with:

A woman of 65 suffering from pneumonia, succumbed after the execution of a deed of gift after a period of two hours.
The gift made by such a woman was held to be affected by the scope of Marz-ul-maut.

Following questions were raised, on the law of Marz-ul-maut, which was decided by the Hon’ble Supreme Court of Pakistan.

Was the donor suffering, at the time of the gift, from a disease which was the immediate cause of his death?
Was the disease of such a nature or character as to induce, in the person suffering, the belief of death?
Was the illness such as to incapacitate him from the pursuit of his ordinary avocations? A situation which might create in the mind of the sufferer an apprehension of death?
Had the illness continued for such a length of time as to remove the anxiety of immediate death or to accustom the sufferer to illness?

In Shamshad Ali Shah vs Syed (1964), the court emphasised that the transactions made during marz-ul-maut would be scrutinised for validity, particularly, if it appeared that the transactions could harm the legal heirs. In the present case, it was observed that Husan Bano was suffering from disease that caused serious apprehension of death and she died shortly after making a gift, the gift could be treated under the doctrine of Marz-ul-maut.

Judgement of the Bombay High Court

The Bombay High Court examined the concept of marz-ul-maut and its inference under the ambit of Islamic Law. The definition of the marz-ul-maut refers to the condition of illness that leads to death. It is characterised by three elements:

The illness must be severe and lead to death.
The patient must have a consciousness of impending death.
The illness must actually result in death.

The court also decided about the validity of transactions. It was stated that the transactions made during marz-ul-maut were subjected to restrictions which are imposed for the protection of the rights of heirs. The disposition of the property made during this period must not exceed one-third of the net estate, unless the heirs give the consent to the disposition. The court dismissed the appeal and held that the gift in question is within the scope of marz-ul maut.

The transactions were held to be valid. The deceased was in marz-ul-maut at the time of the execution. The plaintiff’s claims were dismissed and the transactions stood as lawful and binding in the eyes of the law. The court also held that there will be no specific orders related to cost.

Rationale behind the judgement

The rationale behind the judgement was rooted in principles of justice and equity inherited in the doctrine of marz-ul-maut. The court aimed to protect the interests of the heirs and to ensure that transactions made during a period of the severe illness are genuine and not influenced by the person’s vulnerable state. There is a process of scrutinising such gift transactions by further evidence so as to prevent any exploitation or undue influence on the person during their final days.

Conclusion

In the case of Abdul Hafiz Beg vs. Sahebbi (1975), the court provided a clear understanding of Marz-ul-maut which means the condition where the person is aware of the danger of death due to severe illness. The case provides significant insights into the application of the doctrine of Marz-ul-maut under the ambit of Muslim law. The court highlighted several critical aspects of the ruling which underscored the importance of the burden of proof in the cases involving the doctrine of marz-ul-maut. The plaintiff in the present case should have provided concrete evidence to establish the condition of the deceased and its impact on his mental health.

Frequently Asked Questions (FAQs)

Is Marz-ul-maut different from Hiba?

Marz-ul-Maut refers to the final illness of a person who is near to the end of their life. In legal terms, gifts in death bed illness are scrutinised closely to ensure they are not given the gift under the pressure or coercion. Whereas, hiba is generally a voluntary gift or made during a person’s lifetime. It is not limited to the final illness but can occur at any time.

What is the difference between donatio mortis causa and marz-ul-maut?

Donatio mortis causa is rooted from Roman and common law, while marz-ul-maut is rooted in Islamic law. Donatio mortis causa is the gift which is conditional on the donor’s death, while marz-ul-maut is the gift which is valid if the donor dies from the illness but is subject to inheritance laws. Donatio mortis causa can be revoked if the donor recovers, whereas marz-ul-maut gifts are typically not revocable once the donor dies, but their validity depends on compliance with Islamic law. Donatio mortis causa does not have any specific limitations, while marz-ul-maut limits the gift to one-third of the estate unless the heirs consent.