This article is written by Ananya Garg, from Chanakya National Law University. It talks about the concept of testamentary transfer that is Marz-ul-Maut and the conditions which a transfer must follow to be considered as made under Marz-ul-Maut.

Introduction

The Muslim population of India is governed by the Muslim Personal Law(Shariat) Application Act, 1937. Shariat is a personal civil law which deals with succession, inheritance, marriage, and charity among Muslims. Except for the state of Goa, India does not have a uniform civil code, and thus Muslims are allowed to follow their personal civil law. Under this law exists a provision for a gift which is kind of ambiguous, that is, neither exactly a gift, nor exactly a legacy, but partaking in the nature of both, Marz-ul-Maut. Marz-ul-Maut means death-bed gift, which is a concept recognized by many systems of law. It is based on the principle of mortis causa meaning in contemplation of approaching death.

The rules concerning Marz-ul-Maut inculcate the ideas of the gift as well as will. But such transfers differ from both. These transfers can only be executed in cases where there is genuine apprehension of death in the mind of the transferor. Transfer during Marz-ul-Maut is a type of testamentary succession which has some essential elements of both Hiba, or gift, and will. In case a person is seriously ill and in the apprehension of death, the gift made by him at that time will be a gift during Marz-ul-Maut. A gift, which is made at such time when there is a reasonable apprehension of death in the mind of the transferor, is distributed as per the general rules of Shariat law. Such gifts are valid only if the testator dies after executing the will. The following article discusses the essential elements which must be present for a gift to be considered as a death-bed gift and their validity as upheld in various cases. It also discusses the conditions where a transfer will not be considered as made under Marz-ul-Maut.

Important provisions

As per Shariat law, following two restrictions are imposed on the death-bed gifts:

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

Except with the consent of the heirs, the Shariat law is inviolable. Therefore, no Muslim, on his own, can disown any heir while making a will during Marz-ul-Maut. Shariat also imposes certain conditions on Marz-ul-Maut, these are as follows:

1. The illness or malady must result in death.
2. Such illness must cause a genuine apprehension of death in the mind of the sufferer.
3. In case a person does not die, the will made by him will be null and void.
4. Mere apprehension of death because of old age is not a ground for Marz-ul-Maut. Therefore, a man dying from natural causes owing to his old age does not come under the purview of this law.
5. There should be some external indication of the malady or serious illness.
6. Delivery of possession must be given to the donee.

Conditions stated above are discussed as follows:

Death of the testator

The person who makes a transfer under Mar-ul-Maut must be suffering from a serious illness or malady which results in his death. In case the person does not die, the transfer will not be considered valid. The death of the donor is an essential ingredient of Marz-ul-Maut gift, in case the transferor does not die, such transfer is not considered as Marz-ul-Maut and then the only question will be whether there has been a valid Hiba. If it is a valid Hiba then it will take effect as Hiba.

Genuine apprehension of death

The gift must be made under the pressure of the sense of death which happens when the transferor is suffering from a serious illness that has a high probability of imminent death. The apprehension of death is requisite only in the mind of the transferor and not those who are attending to him. Thus, if the people attending him or even the physician do not apprehend his imminent death but the transferor genuinely does, then the gift made under Marz-ul-Maut is valid. If such apprehension is present in the mind of the transferor then it is not taken into consideration whether he is confined to a bed or not.

But, in case the sickness of such person extends for more than a year, always remaining the same, then the actions performed by him are not considered as the actions of a sick man but a healthy one. If his condition starts to get worse and he dies within a year of such worsening conditions, then such period is considered as death sickness, and a gift made under Marz-ul-Maut in such period is considered valid. This provision is based on the reasoning that if an illness has lasted for a period of more than a year without any circumstances of aggravation then it is not treated as a fatal malady as there has been no reason for the apprehension of imminent death.

However, if the disease is long-standing, but the patient suffers from sudden aggravating symptoms which may even confine him to bed then this becomes a new illness which would be taken as likely to create the fear of death in the mind of the sufferer, and thus his act of gift under such state can take the effect of a transfer made under Marz-ul-Maut. In the case Shaik Nurbi vs Pathan Mastanbi And Ors, it was said by the court that there are three conditions which have to be satisfied for a transfer to be considered as Marz-ul-Maut, these conditions are: 

1. a proximate danger of death which causes the preponderance of apprehension of death,
2. A certain degree of subjective apprehension of death in the mind of the sick person, 
3. some external indicia, chiefly, the person’s inability to attend to ordinary avocations.

There was a lack of these conditions in the respective case to turn the gift made by Alikhan as a death-bed gift. Alikhan had been suffering from tuberculosis for the past 2-3 years before his death and thus there was no proximate danger of death or subjective apprehension, in his mind, of imminent death.

Sharaya-ul-Islam holds that any malady which is always accompanied by a genuine apprehension of death of the sufferer is Marz-ul-Maut. Thus, headache, ophthalmia, temporary fever, etc, are not considered as Marz-ul-Maut unless there is a very apparent apprehension of imminent death. Thus, apprehension in the mind of an old man that he may suddenly die does not constitute an apprehension of imminent death.

External indicia

In order to impress upon the apprehension of the imminent death of the transferor, because of a serious illness, there may be certain external indications to his poor condition such as his inability to attend to the ordinary avocations of life or even his main occupation. A very serious illness completely drains the health of an ordinary man, and he is not able to perform his domestic and social duties or obligations. For example, when a man is not able to perform his household duties and in case of a woman, her duties inside the house. There is another test that has been laid down which shows the presence of external indication of the depreciated condition of a person, when he or she is unable to offer prayers standing up it must be regarded as an illness or death.

Hectic fever, bloody swellings, fetid purgings, haemorrhage, etc. have been considered as Marz-ul-Maut by Muslim authorities. However, the ability of the transferor to do his ordinary vocations does not conclusively prove that the person is not suffering from Marz-ul-Maut, the inability to do one’s occupation, or perform ordinary life functions by a person merely stresses the dire condition of a person but is not necessary. If the transferor has been ill for more than a year, then his illness is not considered to impose a genuine apprehension of imminent death. But, if his condition worsens meanwhile and he is rendered incapable of performing his duties, then this period may be considered as fatal sickness.

In addition to these conditions, the following must be kept in mind:

• A gift made under Marz-ul-Maut is only effective so far as the law allows which is one-third, the same was held in the case of Fazal Husain Khan vs Ali Husain And Ors. A Marz-ul-Maut gift cannot exceed 1/3rd of the properties of the deceased. Under Hanafi law, a Marz-ul-Maut gift to an heir is only valid if the other heirs consent to it. Also, among the Ismailia Shias, such gifts cannot be made to an heir without the consent of other heirs.
• A transfer under Marz-ul-Maut does not come under the purview of gifts and is not subject to gift-tax. This was held by the Supreme Court of India in Commissioner of Gift Tax vs. Abdul Karim Mohd.

Case laws

The apprehension of imminent death in the mind of the transferor is an important element that must be present in case of a transfer made under Marz-ul-Maut provisions. In the case of Shaikh Tufail Ahmad vs Mt. Umme Khatoon And Ors, the appellate court decided that the doctrine of Marz-ul-Maut was not applicable because the transferor died of sudden heart failure. She may have anticipated a possible death but her actions and conditions, that is, the circumstances of the case dictated that there was no apprehension of imminent death. In the case of Ibrahim Goolam Ariff v. Saiboo, the court found that Goolam Ariff was an old and ill man, he suffered from degeneration of the arteries and of the liver. The Privy Council ruled that a gift must be deemed to be made during Marz-ul-Maut if it was made under the pressure of the sense of the imminence of death

In the case of Sarabai v. Rabiabai, the court said that to constitute a malady as Marz-ul-Maut, there must be a proximate danger of death which causes the preponderance of the apprehension of death, a degree of subjective apprehension of death in the mind of the sick person, and some external indicia, such as an inability to perform one’s ordinary avocations. Although, if a person is attending to his ordinary vocation it does not imply that such a person is definitely not suffering from Marz-ul-Maut.

Safia Begum vs Abdul Rajak case upholds the principle that the burden of proving the existence of the death-illness of the donor, falls upon the party asserting it.

Conclusion

The concept of Marz-ul-Maut has significant legal value as per the Muslim Laws. It is not an independent concept. It depends on various conditions and facts and circumstances of the cases. When a person who is suffering from a very serious illness, which has rendered the person incapable of performing his daily avocations and has thus caused serious apprehension of imminent death in his mind, makes a gift, such gift is considered as a gift under Marz-ul-Maut. Death due to old-age is not considered under the concept of Marz-ul-Maut. Thus if a person dies due to natural causes because of his old age, then the gift made by him will not come under Marz-ul-Maut.

Gifts made under Marz-ul-Maut are not taxable as they do not come under the purview of gifts. The essential ingredient of such transfer is an apprehension of imminent death in the mind of the transferor. The apprehension of death must come in the mind of the transferor, the presence of such apprehension in the minds of the attendees of the transferor is not important. The transferor must die because of such illness and such illness must not extend for more than a year. Marz-ul-Maut gift is unique as it consists of all the requirements of a valid Hiba, such as the delivery of the possession of the property, as well as the restrictions imposed by the provisions of a will. Thus it is a kind of a hybrid of Hiba, i.e., the gift and the will.

References

• http://www.legalservicesindia.com/article/1412/Marz-ul-Maut-in-Muslim-Law.html#:~:text=%E2%80%9CMarz%2Dul%2DMaut%20(,inside%20the%20house%2C%20has%20died 
• https://www.researchgate.net/publication/256009936_Marz-Ul-Maut_the_Death-Bed-Transaction
• https://scoop.eduncle.com/which-of-the-following-is-an-essential-condition-in-marz-ul-maut
• https://www.shareyouressays.com/knowledge/marz-ul-maut-death-illness-gifts-and-acknowledgements-under-muslim-law/117583