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Abdul Hafiz & Anr.

v
Sahebbi & Ors.

AIR 1975 Bom 165


FACTS
• Abdul Kadar was seriously ill from before 1st February and he never
recovered from that illness.
• During that illness he was not able to look after himself and died
shortly on 4th February.
• He had reached the mental low of such kind that he was asking for his
near and dear ones to stay by his side and when his daughter came
near him he was not even able to express himself.
• He could only make signs and shed tears while looking at his
relatives.
• He gave the gift 24 hours before his death.
Principles that affect the
dispositions under the Doctrine of
Death-Illness (Marz-ul-Maut
hereinafter referred to as “MuM”)
VIEW HELD BY MULLA
• Gifts made on death bed are the subject matter of consideration.
• MuM is a malady which includes an apprehension of death in the
person suffering from it and which eventually results in their death.
• It is an essential condition of MuM that the person suffering must be
under an apprehension of death.
• While applying this doctrine the real question must be the illness and
its character from which death could be said to have been
apprehended.
MULLA CONTD.
• “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 from 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 they
have 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 ………..”
OPINIONS CONTRADICTING MULLA
Calcutta HC in Fatima Bibee v. Ahammad Baksh (1904) ILR 31 Cal 319
Three things are necessary to answer the doctrine of MuM:
1. Illness
2. Expectation of fatal issue
3. Certain physical incapacities which indicate the degree of illness.
The court stated 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.
OPINIONS CONTRADICTING MULLA CONTD.
• This view was further affirmed by the Privy Council in Fattier Bibee v.
Ahmad Baksh (1907) ILR 35 Cal 271 (272) (PC). It was also observed
that if there is preponderance of probabilities indicating that the gift
was made under the apprehension of death by the deceased, it is
invalid under the law of MuM.
• In Ibrahim Goolam Ariff v. Saiboo (1907) ILR 35 Cal 1 (PC) the court
while determining the question about the physical condition of the
deceased at the date of the execution of the gift stated that “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 death”
OTHER VIEWS ON MuM
Safia Begum v. Abdul Razak, AIR 1945 Bom 438
• The crucial test of MuM 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 and not apprehension caused in
the minds of the others. And the symptoms like physical incapacities
are only the indicia but not infallible signs or a sine qua non of MuM.
OTHER VIEWS ON MuM CONTD.
Sarabai v. Rabiabai (1906) ILR 30 Bom 537
The court laid down three conditions which must be satisfied to answer
the requirements of MuM:
1. Proximate danger of death so that there is preponderance of
apprehension of death.
2. Some degree of subjective apprehension of death in the mind of
the sick person.
3. Some external indicia, chief among which would be the inability to
attend ordinary vocations.
FINAL VERDICT ON MuM
• As far as Indian Courts are concerned, the the law of MuM is
answered if it is proved that the ailing donor was apprehending death
and in that condition had proceeded to effect disposition.
• As far as legal aspect of MuM is concerned the only question that
must be probed is whether the gift was made under pressure of the
sense of imminence of death. Everything else that requires
investigation pertains to evidence.
• Therefore, what is required to be proved upon preponderance of
probabilities is whether the gift was made by the ailing person while
under the apprehension of death and further if the person met his
death in such ailment.
FINAL VERDICT ON ABDUL KADAR
• The facts of the case prove that Abdul was seized or gripped by the
subjective and imminent apprehension of his death. The illness did
not leave him till last. All the facts unmistakably answer that the gift
evidenced is within the law of MuM as understood by Mohammedan
prospects and cannot be sanctioned.
• Therefore, the appeal fails and is dismissed.