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Home / Muslim Law

Civil Law

Death Bed Transactions under Gift

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 01-Dec-2023

Introduction

  • The Arabic term for death illness is Marz-ul-maut.
  • A person’s physical health rather than their subjective experience determines their ‘Marz-ul-Maut'.
    • It specifically refers to a state in which there is little chance of recovery and a person’s death is near.
    • A medical practitioner usually makes this decision.
  • A person can make a will either during his lifetime or at the time of his death.
    • The same rule will apply in the case of death bed transactions.
    • A testator during his death illness disposes of more than one-third of his property.

History and Current Applicability of Marz-ul-Maut

  • Muslims are permitted to follow their own personal civil law because India, with the exception of the state of Goa, does not have a unified civil code.
    • The Shariat is the guiding principle of Muslim civil law.
  • The rules concerning ‘Marz-ul-Maut' inculcate the ideas of the gift as well as will.
    • A sort of testamentary succession known as transfer during Marz-ul-Maut combines several key characteristics of both Hiba (gift) and will.
  • If a person is seriously ill and on the close to passing away, his donation will be considered as made on Marz-ul-Maut.
  • A gift that is given at a time when the transferor reasonably anticipates dying is distributed in accordance with Shariah law’s general principles.
    • Such gifts are valid only if the testator dies after executing the will.

Essentials of Death Bed Transactions Under Gift

  • Declaration of the gift by the donor.
  • An acceptance of gift (express or implied) by or on behalf of the donee, and
  • Delivery of possession of the subject-matter of the gift by the donor to the donee.
  • A death-bed gift is operative as such after the donor’s death.

Applicability of Marz-ul-Maut in Shia and Sunni law

  • The majority of Muslims identify as Sunni. The term Sunni is derived from the term ‘Sunnah’, which refers to the Islamic prophet Muhammad’s religiously higher conduct or, taken literally, the teachings, deeds, or examples of Muhammad.
    • As a result, ‘Sunni’ refers to someone who supports or follows Muhammad’s sunnah.
  • Shia is the second-largest branch of Islam. Shia Muslims mainly differ from Sunni Muslims, who hold the viewpoint that Muhammad did not name a successor.
    • They believe that Abu Bakr was the right Caliph.
    Basis Sunni law Shia law
    Bequests to an heir The consent of all heirs is a must. Bequest up to 1/3rd of the property is valid even without consent.
    Bequests to an unborn child Bequest to unborn child is valid only if the child is born within 6 months of making the will (Marz-ul-Maut) Valid if the child is born within 10 months of making the will (Marz-ul-Maut).
    Giving birth to a child Considered under Marz-ul-Maut. Not considered to be under Marz-ul-Maut.
    Acknowledgement of debt A death bed acknowledgement of debt in favour of an heir is completely non effective. Such acknowledgement is recognised and binding for up to 1/3rd of the property.

    Legal effects of Marz-ul-Maut

    • Marriage contracted on death bed:
      • A marriage contracted on death bed is invalid. But there is a way to make it valid- if the person survives the illness and is alive, then the consummation will make the marriage valid.
    • Deathbed waqf:
      • A waqf is a concept in Islam and is governed by the Waqf Act, 1995. It basically means an endowment made by a Muslim to a religious, educational, or charitable cause.
      • A death bed waqf is subject to same rules that govern other death bed dispositions i.e., it will take effect only to the extent of 1/3rd of the property unless the heirs consent to it.

    Case Laws

    • Khurshid v. Faiyaz (1914):
      • The Allahabad High Court held that a gift made by a Shia Muslim to his heir under marz-ul-maut was valid to the extent of 1/3 without the consent of other heirs.
    • Sharif Ali v. Abdul Ali Safiaboo (1935):
      • The Madras High Court held that the rule laid down in Khurshid case was tenable only if the donor was an Ithna Ashari Shia but a death bed gift by an Ismailia Shia to an heir without the consent of other heirs was altogether void.
    • Fatima Bibee v. Ahmad Baksh, (1904):
      • The Calcutta High Court held in this case that Marz-ul-Maut is death illness, or the patient is suffering from such disease which induces in the person suffering and a belief that death would be caused thereby.