DEATH BED TRANSACTIONS UNDER MUSLIM LAW

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. The Arabic Term for death illness is Marz-ul-maut, which is made up of two words Marz i.e, illness and Maut i.e, 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. A person can make a will either during his lifetime or at the time of his death. The same rules will apply in the case of death bed transactions. A testator during his death illness cannot dispose of more than one-third of his property. 

The law of such a transaction is also partly of will and partly of gift. But the transaction essentially and basically being a gift, must satisfy all the formalities that are essential for the making of any other gift.  

The essentials of death bed gift are- 

 (1) declaration of the gift by the donor,  

(2) an acceptance of gift (express or implied) by or on behalf of the donee, and  

(3) delivery of possession of the subject-matter of the gift by the donor to the donee. 

 It is important to note that a death-bed gift is operative as such after the donor’s 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. 

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. 

As per Islamic personal law the following transactions are valid during Marz-ul -Maut. 

  1. Marriage- It is clearly stated that no marriage solemnized during Marz -ul-Maut is valid in Islamic law. Thus, a man on his death bed cannot marry.  
  1. Divorce- A man on his death bed can divorce his wife as per Islamic law. Both Shia and Sunni schools of Islamic law accept this provision of the Shariat. The Indian courts have upheld this provision of Islamic law. 
  1. Mahr- This is the dowry agreed for the bride at the time of the marriage. In case, a divorce takes place then the wife will be entitled to the dower. 
  1. Gift- This is one of the important death bed acts recognized in Islamic law.  During Marz-ul-Maut a man can make a gift of his property up to 1/3rd of its value. 

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

“In 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.” 

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