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Published : December 16, 2012 | Author : krishnaa
Category : family law | Total Views : 9054 | Rating :

Sunita Saran I am a law student.

A Brief study of the Concept of Marz-ul-Maut in Muslim Law

The following paper will include the study conducted on the concept of Marz-ul-Maut in Islam. The concept is actually a 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 endeavour 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.

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 the assets.

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.

In a Malayasian case Mustak Ahmed v/s Abdul Wahid, it was stated that,

Marz-ul-Maut (mortal sickness) is the kind of sickness, such that in the condition of the sick person there has generally been fear of death for him, and the sick person being unable to attend to his business, if he is a man, his business outside the house, if she is a woman, her business inside the house, has died before a year has passed on account of his condition, whether the person has been confined to his death-bed or not. And if when the illness of a sick person is prolonged, one year passes, while he is always in one state, unless the illness of the sick person gets worse and his state is changed, he is like a man who is well, and his transactions are like the transactions of a man who is well. But if his illness gets worse and his state changes and he dies before a year passes, his state until he dies, calculating from the time of change, is mortal sickness.”

In another translation the passage in the Majelle reads:
“A mortal sickness is that sickness which on the one hand brings with it for the most part the fear of death and on the other part hinders the sick person, if he be a man from seeing to his business outside the house and if she be a woman the business inside the house and ends in death before a whole year has passed after the sick man come to this state.”

It is not to be taken into consideration whether a sick person is confined to his bed or not; but if the condition of the sick person extends for more than a year, continuing always the same, the sick person is considered as in health so long as his sickness does not change for the worse and all his acts are considered as those of a healthy man. If however, his sickness changes for the worse and the sick man dies before a whole year has elapsed, the condition in which he continued to be from the day on which his sickness began to get worse until his death is considered as a death sickness.

The statement that an illness which has lasted for over a year ceases to be regarded as Marz-ul-Maut does not lay down a rule of law, it only gives expression to the general doctrine that a long continued illness unattended with any circumstances of aggravation as is likely to cause apprehension of death, is not to be treated in its effect as a “fatal malady.” Where, however, the disease is long-standing but becomes suddenly aggravated and the patient becomes confined to his bed “it would be like a new illness,” that is, it would be taken as likely to create a fear of death in the mind of the sufferer, and his acts in that state, would, therefore, in case of death from the illness, take effect with respect to a third.

Review Of Literature:
The book titled, “Law Students Companion QA” by Manish Arora states about the provisions and cases related to the Law of Contracts. The Agent’s right to indemnity has been stated briefly in the book.

The Book titled, “MULLA on Muslim Laws” by Pollock & Mulla states the detailed description of all the laws related to Muslim Law.

A textbook on ‘Family Law’ by Paras Diwan has also been referred for the research to get the general idea related to the project.

Statement Of Problem
The issues which will be mentioned in the research project are actually related to Muslim personal laws related to succession, definitions and commencement. This is the only Act that covers my topic of discussion. The concept of Marz-ul-Maut means death-illness. The gifts given during marz-ul-maut are called as death-bed gifts. Here, the study will be focused on the legal efficiency of ,marz-ul-maut.

This project will cover only the Muslim Personal Laws related to succession and gifts. It will only deal with the Muslim laws (both Shiya and Sunni laws) and will only deal with the concept of Marz ul maut (death bed illness) under Muslim laws.

The Cases On ‘Marz Ul Maut’ And The Legal Perspective
In Fazal Husain Khan vs Ali Husain And Ors., an appeal was filed by the appellants against the judgment delivered by lower court. The suit which had given rise to this appeal was brought by the plaintiff respondent for possession of property the bulk of which belonged to one Gazanfar Husain. The remainder of the property was alleged to have belonged to Azima Bibi, sister of the plaintiff and aunt of Gazanfar Husain. The plaintiff claimed as heir to both these persons.

Gazanfar Husain had died on the 13th of May, 1907, but; two days before his death, that is, on the 11th of May, 1907, he executed a deed of waqf in respect of the whole of the disputed property under which the appellants were appointed trustees of the waqf. The validity of the waqf was disputed by the plaintiff on various grounds, the principal grounds being that the donor was suffering from death-illness, (marz-ul-maut); that he had no mental capacity to make the waqf, and that possession was not delivered under it. The court below had found that Gazanfar Husain was suffering from death-illness of which he died, that he was in the full possession of his senses when he made the waqf and that he delivered possession of the property to the mutawallis. On these findings the learned Judge had held the waqf to be valid only as regards a one third share by reason of marz-ul-maut (death-illness) and had granted a decree to the plaintiff for a pare only of the property claimed. The defendants had preferred the appeal, and the plaintiff had filed objections under order XLI, Rule 22, of the Code of Civil Procedure, as regards the portion of the claim dismissed.

Accepting the findings of fact of the court below, the appellants contended that as possession was delivered the waqf was valid in respect of the entire property, under the Shia law. It was admitted that Gazanfar Husain belonged to the Asna Asharya or Imamia sect of Shias. It was stated, however, that he was an Asuli and followed the tenets of that school among Imamias, but this was denied by the plaintiff. Holding the view that they did, they deemed it unnecessary to determine whether he was an Asuli or an Akhbari.

It was common ground that among Sunnis, who comprise the great majority of the Musalmans of India, a gift or waqf made in mortal illness (marz-ul-maut), unless assented to by the heirs, is valid only to the extent of one third. It was urged, however, that a different rule prevails among Shias. If this was so, they should have applied the case of Shias, the law of that sect under the rule of justice, equity and good conscience which they were bound to administer. [See the ruling of their Lordships of the Privy Council in Rajah Deedar Hossein v. Ranee Zuhoor-oon Nissa]. They had, therefore, to determine whether under the Shia law a waqf made in death-illness was valid as regards the entire property if possession had been delivered under it.

In the appellate court’s opinion the weight of authority was in favor of the view that under the Shia law a waqf made in death-illness was valid only to the extent of one third, if not assented to by the heirs, even if possession had been delivered by the maker of the waqf. A similar view was held by Mr. Justice Piggott in the case of a gift in Nazar Husain v. Rafeeq Husain. The decision of the court was that it dismissed the appeal filed by the appellants.

In the above stated case, the concept of marz ul maut is the main point of contention of the entire case and the references were made both from the shiya and sunni laws.

In another case of Shaikh Tufail Ahmad vs Mt. Umme Khatoon And Ors., it was stated that the concept of marz ul maut was not properly interpreted by the Trial court. The doctrine of marz ul maut was not applied by the Hon’ble appellate court as the lady so called suffering from marz ul maut was nowhere under the apprehension of death.

In the case of Shaik Nurbi vs Pathan Mastanbi And Ors, it was stated that,

“Mohammedan Law, three conditions have to be satisfied to establish Marz-ul-Maut, which are - (1) proximate danger of death, so that there is a preponderance of apprehension of death; (2) some degree of subjective apprehension of death in the mind of the sick person and (3) some external indicia, chief among which would be inability to attend to ordinary avocations. These three conditions are lacking in this case to term the gift made by Alikhan as death-bed gift, in that, Alikhan was suffering from Tuberculosis for the last about two-three years before his death and there is no proximate danger of death or apprehension of death in his mind. Therefore, the gift cannot be termed as Marz-ul-maut. He placed reliance on the judgments reported in Bhagbhari v. Khatun, Mt. Zamro v. Sher Mohammad,and Jafar Ali v. Nasimannessa Bibi.

In the case of Safia Begum vs Abdul Rajak, it was stated that the burden of proving the existence of the donor's death-illness at the time of the gift lies on the party asserting it.

All these cases have been referred over here to substiate the legal significance of the concept of the Marz ul maut and how death-bed illness has been interpreted by various courts of law.

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.

§ “Book on Family Law” , By Poonam Pradhan Saxena
§ “Family Law” , by Paras Diwan
§ “Law Students Companion QA”, by Manish Arora

[1] Law Students Companion QA, By Manish Arora, page no. 138
: Radd-ul-Muhtar, by Mohammed Amin, vol 5, page 648.
# (1914) ILR 36 All 431
# (1841) 2 Moo. I. A. 441
# (1911) 8 A. L. J. 1154
# AIR 1938 All 145
# AIR 1921 Sind 177
# AIR 1934 Peshawar 91
# AIR 1937 Cal. 500
# (1945) 47 BOMLR 38

Authors contact info - articles The  author can be reached at: krishnaa@legalserviceindia.com

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