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Question: What is a death-bed gift? [RJS 1992]Find the question and answer of Muslim Law only on Legal Bites. [What is a death-bed gift?]AnswerA gift made by a Mohammedan during marz-ul-maut or death-illness cannot take effect beyond a third of his estate after payment of funeral expenses and debts, 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...
Question: What is a death-bed gift? [RJS 1992]
Find the question and answer of Muslim Law only on Legal Bites. [What is a death-bed gift?]
Answer
A gift made by a Mohammedan during marz-ul-maut or death-illness cannot take effect beyond a third of his estate after payment of funeral expenses and debts, 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.
Explanation — A marz-ul-maut is a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death.
To constitute a malady, marz-ul-maut, there must be:
(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, although his attending his ordinary avocations does not conclusively prove that he was not suffering from marzul-maut.
It is not necessary, however, to come to a definite finding that the disease which caused the apprehension of death was the immediate cause of death.
Further, it is an essential condition of marz-ulmaut, that is, death-illness that the person suffering from the marz (malady) must be made under an apprehension of maut (death) and that the most valid definition of death-illness, is, that it is one which is highly probable will issue fatally. Where the malady is of long continuance and there is no immediate apprehension of death, the malady is not marz-ulmaut.
A Bench of the Calcutta High Court in Fatima Bibee v. Ahmed Baksh, (1904) ILR 31 Cal 319, observed:
"According to the Mohammedan Law, three things are necessary to constitute marz-ulmaut or death-illness viz ., (i) illness, (ii) expectation of fatal issue, and (iii) certain physical incapacities, which indicate the degree of the illness. The second condition cannot be presumed to exist from the existence of the first and the third as the incapacities indicate, with perhaps the single exception of the case in which a man cannot stand up and say his prayers, are not in fact the signs of death-illness.
When a malady is of long continuance and there is no immediate apprehension of death, it is not a death-illness; so that a gift made by a sick person in such circumstances, if he is in the full possession of his senses, will not be invalid..."
Mayank Shekhar
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