The death-bed gifts are recognized in many systems of law, though to what extent and in what circumstances such gifts can be made, the laws differ. 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.
A gift to be valid as marz-ul-maut gift must be made during marz-ul-maut, or death-illness. The most valid definition of marz-ul-maut is that a malady which, it is highly probable, will issue fatally. A gift must be deemed to be made during marz-ul-maut, if it was made “under pressure of the sense of the imminence of death.
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.
It is now established that in order to constitute a marz-ul-maut gift, the following conditions must be satisfied:
(i) The malady or illness must result in death,
(ii) The malady or illness must cause a reasonable or genuine apprehension of death in the mind of the sufferer,
(iii) There should be some external indicia of a serious illness or malady, and
(iv) Delivery of possession must be given to the donee.
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.
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