MASODKAR, J. – On the principles that effect the dispositions under the doctrine of deathillness, law is fairly well settled. In “The Principles of Mohammedan Law” by Mulla, the gifts
made on the death-bed are the subject-matter of consideration in Chapter X and while explaining
the doctrine of marz-ul-maut the learned author says that it is a malady which induces an
apprehension of death in the person suffering from it and which eventually results in his death. It
is further noted that it is an essential condition of marz-ul-mauti.e. of death-illness that the person
suffering from the marz, i.e. malady must be under an apprehension of Maut i.e. death. The note
of the Explanation goes on to explain the various shades of the malady raising apprehension of
death and it is not necessary to refer to all that debate. In the celebrated work “Principles of
Muhammadan Jurisprudence” by Abdur Rahim, the learned author had made a basic and
notable effort to find out the juristic principles behind the Mohammedan precepts of law and has
dealt with the topic of death-illness at some great length. In his view, for which he takes his
support of Heiaya and Kifava the Marz-ul-maut is an illness from which death is ordinarily
apprehended in most cases and in particular cases it has actually ended in death. He observes that:
“The compilers of Al-Maiallah lay it down that death-illness is that from which death
is to be apprehended in most cases, and which disables the patient from looking after his
affairs outside his house, if he be a male and if a female the affairs within her house
provided the patient dies in that condition before a year has expired whether he has been
bed-ridden or not. If the illness protracts itself into a chronic condition and lasts like that
for a year, the patient will be regarded as if he was in health and his dispositions will be
treated like those of a healthy person…..”
Abdul Rahim quotes that “the definitions as given by the Shafil and Nanbali [Hanbali ] Jurists
are also to the same effect namely that death-illness is illness dangerous to life that is which
mostly ends in death provided the patient actually dies of it and he further observes that whether
such illness was dangerous should be left to the opinion of the competent doctors. According to
the learned author threfore while applying the true test of this doctrine the real question must be
the illness and its character from which death could be said to have been apprehended. He
observed:
“It is a cardinal principle of Muhammadan jurisprudence that the law takes note only
of perceptible facts. The original authorities do not lay down that the fears entertained by
the sick man himself form any criterion of death-illness. In fact, it is an event of nature,
the character of which cannot depend upon what the patient might think of it. The law in
placing an embargo on a sick person’s juristic acts puts it on the ground of illness and not
on the apprehension of death by the sick man. The reason or motive underlying the law is
that illness weakens a man’s physical and mental powers and he is likely therefore as
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experience shows to act under such circumstances to the detriment of his spiritual
interests by disappointing his heirs in their just expectations”.
If this proposition on the exposition of the doctrine and the test is the correct one then the
apprehension in the mind of the sick man cannot have the higher emphasis than the illness itself.
In other words it is the proof of the illness that will be decisive of the matter provided that has
caused the eventual death of the man. That proof can alone be tendered by the medical experts
and mere subjective apprehension of the person suffering illness could not carry the doctrine to its
logical end.
10. If these tests were applied then, it follows that there is some lack of evidence in the
present case, that is, no doctors have been examined and further the evidence is somewhat fluid in
the sense that 7 days prior Abdul Kadar had been laid ill he had returned from Chinchala and
ultimately died on 4th. He was in a position as appears from some evidence to make signs and
was thus capable of communicating.
11. However, Abdul Rahim’s view about the exposition of this doctrine does not appear to
have found clear support in the judicial pronouncements on the present doctrine. In Fatima
Bibeev.Ahammad Baksh [(1904) ILR 31 Cal 319], the Calcutta High Court while considering the
doctrine of marz-ul-maut known to Mohammedan Law found three things as necessary to answer
the same, viz. (i) illness, (ii) expectation of fatal issue and (iii) certain physical incapacities
which indicate the degree of illness. The second condition i.e. expectation of fatal issue could be
presumed to exist from the existence of the first and third as the incapacities indicated with
perhaps the single exception of the case in which a man cannot stand up to say his prayers are no
infallible signs of death-illness. These conditions were qualified by stating that a long continued
malady would contraindicate the immediate apprehension of death. A person afflicted by such
long drawn course of illness can still be possessed of his sense and his dispositions would not be
invalid. The view of the Calcutta High Court appears to have been affirmed by the Privy Council
in Fatima Bibeev. Ahmad Baksh [(1907) ILR 35 Cal 271 (PC)]. No doubt, it appears that in that
case too there was evidence of a doctor. The deed was executed about 6 days before the date of
the death. While considering the question of invalidity of such disposition under the law of marzul-maut it was observed:
The test which was treated as decisive of this point in both Courts was, was the deed
of gift executed by Dadar Baksh under apprehension of death? This which appears to
their Lordships to be the right question is essentially one of fact, and of the weight and
credibility of evidence upon which a Court of review can never be in quite as good a
position to form an opinion as the Court of first instance it would probably be enough to
prevent this Board from interfering if it should appear that there was evidence such as
might justify either view without any clear preponderance of probability.
It is thus obvious that if there is preponderence of probabilities indicating that the gift was
made under the apprehension of death by the deceased it is invalid under the law of murz-ul-
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maut. That is a question of fact to be determined on evidence is also clear on this authority.
Further in Ibrahim GoolamAriffv.Saiboo [(1907) ILR 35 Cal 1 (PC)], the first question that was
being canvassed before the Privy Council was about the physical condition of the deceased at the
date of the execution of the gift and that was answered by saving that this was a pure question of
fact. As to the law the proposition stated is to the following effect:
“The law applicable is not in controversy, the invalidity alleged arises where the gift
is made under pressure of the sense of the imminence of the death”.
12. As far as this Court is concerned the law has been stated in Safia Begum v. Abdul Razak
[AIR 1945 Bom 438]. It was observed by referring to the two Privy Council decisions supra that
it may be taken as settled that crucial test of marz-ul-maut is the (proof of the subjective
apprehension of death in the) mind of the donor that is to say the apprehension derived from his
own consciousness as distinguished from the apprehension caused in the minds of others and the
other symptoms like physical incapacities are only the indicia but not infalliable signs or a sine
qua non of marz-ul-maut.
13. This expostulation was required to be made so as to explain the earlier decisions of this
Court reported in Sarabaiv. Rabiabai [(1906) ILR 30 Bom 537] and Rashid v.Sherbanoo
[(1907) ILR 31 Bom 264]. In Sarabai case learned Single Judge of this Court had laid down three
conditions which must be satisfied so as to answer the requirements of marzul-maut the same
being (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. In Rashid
case the Division Bench of this Court doubted as to the existence in every case of the third
condition laid down in Sarabai’s case, i.e. the physical inability to attend to ordinary avocations
of the person must be available. There Fatima case (1904) ILR 31 Cal 319 was expressly
mentioned as laying down the principles on the text of Mohamedan Law. After noting all this
passage of decisions in this Court in Safiacase, this Court ultimately found that what is required
is subjective apprehension of death in the mind of donor at the time of disposition. The other
circumstances and symptoms of incapacities were merely the indicia which may throw light on
such mental state of the donor.
14. Thus as far as the decisions of Indian Courts are concerned the law of marz-ul-maut is
answered if it is proved that the ailing donor was apprehending death and in that condition had
proceeded to effect disposition.
15. Even the Pakistan Courts have not taken any other view of the matter. I may usefully refer
to the judgment of the Supreme Court of Pakistan available in 1964 All-Pakistan Legal Decisions
at p. 143 Shamshad Ali Shah v. Syed Hassan Shah where the learned Judges have summarised
the law of the gifts and the doctrine of marz-ul-maut. There a woman of 65 suffering from
pneumonia had succumbed after execution of the deed of gift almost after a period of two hours.
The gift made by such woman was held to be affected by the doctrine. While laying down the
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principles on which the law of murz-ul-maut has to be found out the Supreme Court of Pakistan
has stated as to what questions must be raised and the same read as under:-
“(i) Was the donor suffering at the time of the gift from a disease which was the
immediate cause of his death?
(ii) 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?
(iii) 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?
(iv) Had the illness continued for such a length of time as to remove or lessen the
apprehension of immediate fatality or to accustom the sufferer to the malady?
In short the Court has to see whether the gift in question was made under the
pressure of the sense of imminence of death”. (Emphasis provided)
I have extracted the above passage from the judgment of learned Mr. Justice Fazle Akbar
with which learned Chief Justice A.R. Cornelius has concurred. In the judgment separately
delivered by Kaikaus J., the following observations on the matter in controversy and which help
the decision on principle can be usefully extracted:
“If the finding as to the date of death of Mst. HusanBano is not interfered with no
ground remains for interference with the finding of marz-ul-maut in spite of the fact that
no doctor had been produced. Mst. HusanBano was old and ailing and if she died only
two hour after the registration of the gift it is easy to accept that she was suffering from
some disease which caused serious apprehension of death.
So far as the legal aspect of marz-ul-maut is concerned what is really needed is as pointed out
in (1907) ILR 35 Cal I (PC) that the gift should be made under the pressure of the sense of
imminence of death’. The rest of the matters which are generally stated in commentaries on
Muslim Law as matters requiring investigation in a case of marz-ul-maut are really matters
relating to evidence. If the gift had in fact been made “on account of pressure of the sense of
imminence of death” the gift would be affected by doctrine of marz-ul-maut”. (Emphasis added)
This datum-line of the doctrine found by the Supreme Court of Pakistan is clearly in accord with
what the Privy Council observed in Ibrahim GoolamArif case [(1907) ILR 35 Cal 1 (PC)].
Similarly the law is understood and applied in this Court. Therefore what is required to be proved
upon the preponderance of probabilities is whether the gift was made by the ailing person while
under the apprehension of the death and further whether in such ailing he met his death.
16. It is true that mere apprehension on the part of an old man who is not afflicted by any
malady would not be sufficient to answer the doctrine. Mere accident of death which is a fact
certain in human life does not afford good reason to invalidate the dispositions. The basic
juridical thinking and the pronouncement of the Courts upon the instant doctrine clearly spell out
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that the English phrase “death-illness” is not a sufficient adequate of complete connotation of the
term ‘marz-ul-maut’, for that doctrine appears to comprehend an affliction or malady leading unto
death or involving the death of the person concerned. Because of that with the proof of death its
causation and the condition of person have its own and clear significance. Death is the certain and
central fact. Proximate danger of death in an illness it is common experience, casts ominous
elongated shadows discernible along the lines of conduct of the person who is subject to the
process of dissolution of life. In that there is all the apprehension of withering away of human
faculties and rational capacities. Such process may set in and become pronounced as the
journey’s end comes near. Mind under such condition would get seized by the fright of the final
full-stop and all winged and animated spirits involving free will clarity and reasonable and
purposeful action may be clipped and caught in the mesh of progressing paralysis. The
apprehension that the curtain is wringing down on the life in such a state would easily grasp all
the consciousness as the physical malady surely affects every faculty clouding the will and reason
of human being. It is no doubt that when such preponderance of an onset of physical and
psychological atrophy operating over the field of free and balanced will can be inferred, the
dispositions cannot be validated. The light of reason at such moment is not expected to burn
bright as the flame of life itself flickers drawing ghastly shadows on the cold deadly wall of the
inevitable. It is conceivable therefore that the pragmatic philosophy of Mohamedan Law thought
it wise to put under eclipse the acts and dispositions done upon the promptings of a psychosis
indicating apprehension or clear fear of death either induced by or during the last suffering or
illness of the person dying. Law assumes that apart from the dominant danger of loss of free will,
such person may clearly lose touch with his spiritual dictates and may hasten even against the
need of his clear obligations and interests to do the things which he might not have normally and
in times of health done. Once the subjective apprehension of death, its posibility or
preponderance is established and there is evidence of accelerated dissipation of the life itself
leading unto death due to malady or affliction the dispositions made by such person are treated as
if it were an outcry against the denomic fear of death itself and thus basically a non-juristic
action.
17. Therefore, it is clear that all the circumstance surrounding the disposition itself the
physical and psychical condition of the person afflicted the nature of the malady and the
proximity of death to the actual act of disposition and further the fact of death are all the matters
which should furnish to the Court as a feedback to find out as to whether the disposition is within
the mischief of this doctrine. Once probabilities hold out that there was even some degree of
subjective apprehension of death in the mind of the sick person who eventually died suffering
from his last illness the subjective test implicit in the doctrine is satisfied both on principle and
policy. To find that, with the growth of medical and psychological sciences in the modern times,
several indicia would be easily available. However, it is not necessary to have any static approach
or to put up any given praxis in that regard. Obviously it is all a matter of eminent and entire
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appreciation of facts and circumstances involved in a given case wherein the ultimate crisis of the
drama of life leading unto death will have to be properly scanned and constructed.
18. Therefore, once there is evidence to support the findings reached by the Courts of fact
either coming from those who were near the deceased during the relevant period or as may be
disclosed by the documentary evidence throwing light on thaperiod, the matter is not open to
investigation in second appeal for the provisions of Section 100 Civil P.C. do not permit such a
challenge unless the appreciation of evidence can itself be shown to be perverse or against record.
Merely because medical evidence is not put forth the principle does not change. Adequacy of
evidence and its fullness are still the matters in the ken of considerations that satisfy the
conscience of the Court which is required to find facts. By that no question of law is raised. The
usual submission based on the principle of onus of proof would be irrelevant once the matter had
been understood by the parties and they were obliged to lead evidence on th relevant facets of the
doctrine. No doubt the initial burden to prove the requirements of marz-ul-maut is on the person
who sets up such a plea as affecting the disposition of a dead person; that can be discharged by
the proof of the facts and circumstances in which such person met his death and the attendant
events preceding and succeeding the disposition itself. Once the possibility of a subjective
apprehension of death in the mind of suffering person who made the gift is raised clearly the
burden shifts to that party who takes under the disposition or sets up the title on its basis. Such
party may prove the facts and circumstances which would enable the Court to hold that the
disposition itself was not made while the suffering person was under the apprehension of death
for as I said earlier there may be several answers to the problem and mere accident of death of the
person making the disposition would not be enough. An old man meeting a natural death may be
well disposed to see that the matters are settled in his lifetime and such dispositions would be
perfectly valid and would not answer marz-ul-maut. It is, therefore, necessary for the party setting
up the disposition to rebut the proof that may be indicative that the disposition is within the
mischief of marz-ul-maut. That cannot be done by merely relying on the abstract doctrine of onus
of proof or insisting upon the evidence of medical experts not tendered by the opposite party. In a
given case such evidence may not be at all available.
19. Even assuming that the question is open for being examined in second appeal the facts of
the present case bear out that Abdul Kadar was taken seriously ill from before Ist February and he
never recovered from that illness. During that illness he was not even able to look after himself
and died shortly i.e. on 4th February. He had reached the mental low of such kind as he was
asking for his near and dear ones to be by his side and when his daughters came near himhe was
even unable to express himself. He was merely making signs and shedding tears while looking at
his relatives. That shows the sense of helplessness with which Abdul Kadar was seized during his
last suffering. All this raises a clear possibility that while he was making the gift which is about
24 hours before death, he was seized or gripped by the subjective and imminent apprehension of
his death. In fact the signs of such psychosis had already set in. The malady or illness did not
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leave him till last. The bed on which he rested proved to be the death-bed and at the mellowed
age of eighty this leaf fell from the tree of life.
20. All this unmistakably answers that the gift evidenced by Exh. D-3 is within the law of
marz-ul-maut as understood by the Mohamedan precepts and cannot be sanctioned.
21. In the result, therefore, the appeal fails and is dismissed.
