Rehman is suffering from Blood Cancer and is bedridden. When he comes to know of it he makes a gift of all of his property in favour of his wife, 6 months later he dies. His legal heir challenges the gift (Hiba), Will they succeed? Discuss.

Question: Rehman is suffering from Blood Cancer and is bedridden. When he comes to know of it he makes a gift of all of his property in favour of his wife, 6 months later he dies. His legal heir challenges the gift (Hiba), Will they succeed? Discuss. [DJS 1996]

Find the question and answer of Muslim Law only on Legal Bites. [Rehman is suffering from Blood Cancer and is bedridden. When he comes to know of it he makes a gift of all of his property in favour of his wife, 6 months later he dies. His legal heir challenges the gift (Hiba), Will they succeed? Discuss.]

Answer

Gift or Hiba literally means a donation of a thing from which donee may derive a benefit. It is the conferring of property without consideration. During the lifetime of a Mohammedan, he can make gifts of all or any part of his property but his right to do so by way of will or while on the death bed is subject to some restrictions.

Death bed-illness (Marz-ul-maut)

When a person suffering from `Marz' (Illness) and is under the apprehension of his `Maut' (death) he is said to be suffering from `Marz-ul-Maut'. The best and most accepted definition of death-illness is given by Baillie. According to him, it is an illness "which is highly probable, will ensue fatally".

In Safia Begum v. Abdul Rayaz, AIR 1945 Bom. 538, it was held that the crucial test of Marz-ul-Maut is the subjective apprehension of death in the mind of the donor i.e. apprehension derived from his own consciousness as distinguished from the apprehension caused in the mind by others of other symptoms or physical incapacities are only indications but infallible signs of `Marz-ul-maut'.

Essentials of Death bed Gift

A gift that is made during death illness is called a death bed gift and is subject to certain restrictions. Death bed illness gift transaction essentially and basically being a gift must satisfy all the formalities that are essential for making a gift which is: (a) Declaration of gift by donor (b) acceptance of the gift and (c) delivery of subject matter of gift from the donor to the donee. It is important to point out that a death bed gift is operative as such after the donor's death.

In A.R. Abdul Latheef v. A.R. Mohammed Iliyas, (2008) 5 M.L.J. 1368, the Madras High Court categorically declared that under Muslim Law, a gift made during death bed illness (Marz-ul maut) is not valid, when it is made to one of several heirs to the exclusion of other heirs. Even if the gift is given by way of a registered document, under Muslim Law, for a valid gift, delivery of possession is mandatory, which cannot be dispensed with. The Court further held that the settlement deed executed 2 years and 10 months prior to the death of the deceased cannot be called a death-bed gift.

Though a Muslim has unlimited power to dispose off his property by way of the gift and the donor's power to dispose off his property by gift during death illness is subject to the following restrictions:

(i) Gift to non-heir: He cannot make a gift of more than 1/3 of his property in favor of the non-heir unless the other heir gives consent to the excess taking effect.

(ii) Gift to an heir: The gift to an heir made during death illness is altogether invalid unless the other heirs consent to it.

A gift made during death illness is subject to all conditions and formalities necessary to constitute a gift inter-vivos so there must be a declaration, acceptance, and actual or constructive delivery of possession.

Given the foregoing discussion, it is evident that Rehman's deathbed gift of his whole estate to his wife is invalid and unenforceable, and as a result, other legitimate heirs of Rehman will be entitled to his property in accordance with Muslim law's succession rules.

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