Case : Abdul Hafiz Beg v/s Sahebbi

BACKGROUND OF THE CASE

On the principles that effect the dispositions under the doctrine of death illness 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-maut is. 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 to 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 Muhammedan Jurisprudence" by Abdur Rahim, the leamed author had
made a basic and notable effort to find out the juristic principles behind the Mohammedan
precepts of law an has dealt with the topic of death-illness at some great length. In this
view, for which he takes his support to 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-Majallah lay it down that death -
illness is that from which death is to be apprehended in most cases, and which disables the
patient form looking after his affairs outside his house if he be a male and if a female the
affairs within her house, proved the patient dies in that condition before a year has expired,
whether the 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 disposition will be treated like those of a healthy person Abdul Rahim quotes that
"the definitions as given by the Shafil and Nanbali 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 actualities 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 therefore, while applying the true test of this doctrine the real question must be the
illness and it character from which death could be said to have been apprehended.

ISSUE OF THE CASE

The case questioned whether the onus of proof regarding the doctrine of Marz-ul-maut
could be open in the second appeal under the Mohammedan Law It was held that the
crucial test of Marz-ul-maut is the proof of subjective apprehension of death in the mind of
donor - This means that the apprehension derived from the consciousness of the donor
would be distinguished from the apprehension caused in the minds of other and other
symptoms like physical incapacities are only in the indicia, but not the infallible signs or a
sine qua none of Marz-ul-maut.

OBSERVATION
It is a cardinal principle of Muhammedan 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 from any criterion of death-illness. In fact, it is a event of nature the
character of which cannot depend upon what the patent might think of it. The law in placing
an embargo on al 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 weakness a man's physical and mental powers and he is likely, therefore, as
experience shows to act under such circumstances to the detriment of his spiritual interest
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 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 by tendered by the
medical experts and mere subjective apprehension of the Persian suffering illness could not
carry the doctrine to its logical end 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 was
appears from some evidence to make signs and was thus capable of communicating.
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 Bibce
v. Ahmad Baksh, ILR (1904) 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. (1) illness. (ii) expectation of fatal issue and (ii) certain physical
incapacitates, 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
incapacitates indicated, with t perhaps the single exception of the case in which a man
cannot stand up to say his prayers, are no infallible sings 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 Fattier Bibee v. Ahmad
Baksh, ILR (1907) 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 marz-ul maut, it
was observed:

The test which was treated as decisive of this point in both Courts 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, and 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
preponderance of probabilities indicating that the gift was made under the apprehension of
death hy the deceased, it is invalid under the law of murz-ul-maut. That it is a question of
fact to be determined on evidence is also clear on this authority. Further in Ibrahim Goolam
Ariff v. Saiboo, ILR (1907) Cal 1 (PC), the first question that was begin canvassed before the
Privy Council was about the physical condition 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.

DECISION

This exposition was requited to be made so as to explain the earlier decisions of this Court
reported in Sarabai v. Rabiabai, ILR (1906) 30 Bom 537 and Rashid. v. Sherbanoo, ILR (1907)
31 Bom 264. In Sarabai's case learned Single Judge of this Court had laid down three
conditions which must be satisfied so as to answer the requirements of marz-ul-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
ordinarily vocations. In Rashid's 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's
case. ILR (1904) 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 Safi's case
MANU/MH/0123/1944: AIR 1945 Bom 438 this Court ultimately fond 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 incapacitates were merely the indicia which may
throw light on such mental state of the donor. 6. Thus as far as the decision 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.

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 PLD43. Shamshad Ali
Shah v. Saved Hasan 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
principles on which the law of murz-ul-maut has to be found 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 the induce in the
persons 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 (iv) Had the illness continued for such a length of time as to remove
or lessen the apprehension of immediate facility 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 the imminence of death.

So far as the legal aspect of marz-ul-maut is concerned, what is really needed is as pointed
out in ILR (1907) 35 Cal 1 (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.
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 the 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 that the English phrase "death -illness" is not a sufficient, adequate or
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 illness, it is common experience, casts ominous elongated shadows discernible along the
lines of conduct of the person how 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 conditions 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 disposition
scan to be validated.. Once the subjective apprehension of death. its possibility or
preponderance is established and there’s evidence of accelerated dissipation of the life
itself leading unto death due to madly or affliction the dispositions made by such person are
treated as if it were an outcry against the demonic fear of death itself and thus basically a
non-juristic action.

CONCLUSION

Therefore, it is clear that all the circumstances surrounding the disposition itself, the
physical and psychical condition of the person afflicted, the nature of the malady and the
proximity of death of 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 they have any static approach or to put up any given praxis in
that regard. Obviously it is all a matter of eminent and entire appreciation of facts and
circumstances involved in a given case wherein the ultimate cases of the drama of life
leading unto death will have to be properly canned and constructed.

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 that period, 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 taken 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 an they were
obliged to lead evidence on the 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 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 to rebut the proof that may be indicative 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.