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Q 9: Discuss the Law relating to DEATH BED GIFT (Gift Mazhar-ul-Maut)?
A: MARZ-UL-MAUT: Arabic equivalent for death-illness is ‘marz-ul-maut’, which is made up of two words (1) marz, and (2) maut. When a person suffering from a ‘marz’ (malady or illness) is under the apprehension of ‘maut’ (death) he is said to be suffering from ‘marz-ul-maut’ or death-illness.
It is an essential condition of marz-ul-maut, that is, death-illness, that the person suffering from the marz-ul-maut be under an apprehension of maut, i.e., death. Where the malady(ill) is of long continuance and there is no immediate apprehension of death, the malady is not marz-ul-maut; if it subsequently reaches such a stage as to render death highly probable, and does in fact result in death.
EFFECT OF GIFT MADE AT THE TIME OF MARZ-UL-MAUT: A gift made during marz-ul-maut cannot take effect beyond one-third estate of the donor, after paying funeral expenses and debts, unless the heirs give their consent, after the doner’s death. Nor such a gift can take effect if made in favour of an heir, unless the other heirs give their consent, after the donor’s death.
A gift in death-illness takes place only when the donor dies. Such a gift is subject to all the conditions necessary for the validity of a simple gift, including delivery of possession by the donor to the donee.
If the gift was made under pressure what the Privy Council described as “pressure of the sense of the imminence of death” then the gift would be hit by doctrine of marz-ul-maut. The same criterion was accepted by the Supreme Court. Both these precedent cases set out the following factors which the court should consider to sustain the conclusion that the impugned transaction was made under such pressure:
1. Was the donor suffering at the time of the gift from a disease which was the immediate cause of his death?
2. Was the disease of such a nature or character as to induce in the person suffering the belief that death would be caused thereby or to engender in him the apprehension of death?
3. Was the illness such as to incapacitate him from the pursuit of his ordinary avocations a circumstance which might create in the mind of the sufferer an apprehension of death?
1. Had the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality or to accustom sufferer to malady.
A gift made by a Muslim during mrz-ul-maut or death-illness cannot take effect beyond a third of his estate after payment of funeral expenses and debt, unless the heirs give their consent, after the death of the donor, to the excess taking effect; nor can such a gift take effect if made in favour of an heir unless the other heirs consent thereto after the donor’s death.
A gift made during marz-ul-maut is subject to all the conditions necessary for the validity of the validity of a hiba or gift, including delivery of possession by the donor to the donee.