There donor’s state of mind at the

There are two aspects of a gift made during death-illness; in its formation it is a pure gift but in its legal consequences it is a will. Describing the nature of a ‘gift during death-illness’ (donatio mortis causa) Buckley, L.J. observed that it is a gift of amphibious nature; not exactly a gift nor exactly a legacy but partaking of the nature of both.

The doctrine of death-bed gifts is based on the donor’s state of mind at the time of the transfer. When a person makes a gift during death- illness, he intends to distribute his properties according to his own scheme giving up all the hopes for his life.

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A person suffering from mortal-disease believes, beyond reasonable doubt that he would die very soon. With these apprehensions in mind, he attempts to give away his properties. The result is that although the transfer is inter-vivos but the idea behind such transfer is that it is likely to take place only after the donor’s death.

Through a gift, a Muslim donor on his death-bed may transfer his properties without any restriction of its quantity although in its effects, the transaction is a will. This may frustrate the very purpose of one-third rule in respect of Muslim wills. Accordingly, in order to prevent the evasion of restrictions on the testamentary capacity of a Muslim, a death-bed gift is interpreted as a will.

Essentials of a Death-bed-Gift:

A gift during death-illness is a pure Hiba in its formation but after the donor’s death it operates like a will. Therefore, the essential conditions for a gift during death-illness are: (i) there is a valid and complete gift, and (ii) this gift is made during death-illness (Marz-ul-maut) of the donor.

(i) A valid and complete gift:

The only difference between a simple gift and a death-bed gift is that if a gift is made by a donor during his death-illness, the gift is testamentary; if it is made normally, the gift is inter vivos i.e. pure Hiba. Thus, in a death-bed gift all the essentials of a valid Hiba are necessary.

There must be declaration, acceptance and the actual or constructive delivery of possession. In brief, the gift must be valid in all respects according to the provisions of Muslim personal law.

(ii) Death-illness (Marz-ul-maut):

Death-illness is an illness which ultimately results in the death of a person. However, there must also be a reasonable apprehension in the mind of that person that he would die on account of that illness. In other words, any disease or ailment may be regarded as a death-illness if the person suffering from it believes that there are no chances of his survival. It is to be noted that the crucial test for Marz-ul-maut is the subjective apprehension of death in the mind of the donor.

The seriousness of the disease or apprehension of death caused in the minds of other persons is not relevant. Whether a disease is a death-illness or not depends upon the donor’s state of mind rather than the gravity of that disease. According to Tyabji, for establishing the existence of death-illness following conditions are necessary:

(a) The illness must have caused death;

(b) There must have been proximate danger of death, so that there was preponderance of apprehension of death (i.e. at given time death is more probable than life);

(c) Some degree of subjective apprehension of death in the mind of sick person; and

(d) Some external indicia, chief among which are inability to attend to ordinary avocations.

There cannot be any objective criterion for determining the existence of death- illness. If a disease causes the death and the donor thought it highly probable that this illness would soon end fatally, it is death-illness. Whether an illness is mortal-illness or not is a question of fact and each case must be examined in the light of evidence produced before the court.

It has been held that paralysis is not a death-illness. In Mohammad Gulshere v. Mariyam, it was held by the Allahabad High Court that boils or corbuncle for long continuance for over a year may not cause apprehension of death, therefore, it cannot be regarded as death-illness.

Similarly, asthama, lingering consumption and sudden bursting of blood-vessels have not been regarded as death- illness. But, a rapid consumption, tumour in the stomach and tuberculosis of the last stage has been held to be death-illness.

A serious case of pneumonia was held to be a death-illness. In Abdul Hafiz v. Sahib Bi,4i an aged Muslim of over eighty years remained ill very seriously for four days. On the last day, i.e. just before his death, he made a gift.

It was held by Bombay High Court that the gift was made during a death- illness. The Court observed that what are required to be proved upon the preponderance of probabilities are whether the gift was made by the ailing person while under the apprehension of death and, that whether in such ailing he died. During the delivery of a child, the pains of child-birth may also be regarded as death-illness.

It is to be noted that a gift during Marz-ul-maut is established only where the donor dies. If the donor survives that illness, the transaction continues to be a gift.

Legal Consequences of Death-Bed Gifts:

Gifts made during mortal-disease have testamentary effects. That is to say, although the transaction may be constituted as a gift but, it would be interpreted like a will. In its operation, such a gift is governed by the Muslim law of wills. Accordingly, where the donee is a stranger or non-heir, he cannot get more than one-third of total assets without consent of the donor’s legal heirs.

Where donee is one of the legal heirs of the donor, the consent of the remaining legal heirs is necessary even though the property given is less than one-third. However, if the donor is a Shia Muslim, a gift during death-illness is valid up to one-third even if the donee is an heir of the donor. To conclude, in the words of Wilson:

“A gift made in mortal sickness is so far regarded as a bequest that it cannot operate on more than one-third of the testator’s net assets unless with the consent of all the heirs nor in favour of one heir without the consent of all heirs.”