Waqf, Marz- Ul- Maut

Introduction to Waqf

Waqf Amendment Bill, 2024, introduced in Lok Sabha on August 8, 2024. Amendments to Waqf Act, 1995 in regard to waqf property management in India. “Waqf” is an endowment of movable or immovable property for religious, pious, or charitable purposes made under Muslim law. Every state shall form a Waqf Board to supervise the management of such properties. Renaming of the amended Act to be “United Waqf Management, Empowerment, Efficiency and Development Act, 1995” is proposed in the amendment.

Changes in Creation of Waqf

• The waqf may at present be created by:
  • Declaration
  • Recognition on the basis of long-term use (waqf by user)
  • Endowment when the line of succession ends (waqf-alal-aulad)
• Only a person who has exercised Islam for at least five years can declare a waqf and must be the owner of the property.
• Waqf by user provision is removed.
• Waqf-alal-aulad shall not deprive heirs, including women, of inheritance rights.

Ownership and Government Property

• Government property declared as waqf will cease to be waqf.
• Collector to decide ownership uncertainty and report to state government.
• If property belongs to government, entries to be made in revenue records.
• Waqf Board’s power to determine waqf status removed.

Survey of Waqf Properties

Survey powers shifted from Survey Commissioner to Collectors. Pending surveys to be done under state revenue laws.

Central Waqf Council Changes

• Two members can be non-Muslims.
• MPs, former judges, and eminent persons need not be Muslims.
• Waqf Board chairpersons, scholars in Islamic law, and representatives must be Muslims (with at least two women).

Waqf Board Composition

• State governments may nominate one person from each category (MPs, MLAs, Bar Council members etc.) and nominees need not be Muslims.
• Board to include 2 non-Muslims.
• Representation required from different Muslim communities (Shias, Sunnis, Backward classes, Bohra, Agakhani communities).
• Two Muslim women members mandatory.

Tribunals and Appeals

• Member with Muslim law expertise removed; replaced by serving/retired joint secretary rank officer.
• Appeals to High Court allowed within 90 days (earlier tribunal decisions were final).

Audit & Separate Boards

• Central Government empowered to make rules regarding registration, accounts, and proceedings.
• Waqf accounts must be audited by CAG or authorized officer.
• Separate Boards for Bohra and Agakhani sects in addition to Sunni and Shia Boards.

Introduction to Marz Ul Maut

Article talks about “Marz- ul- Maut,” a concept in Islamic law about giving presents when someone is extremely sick or reaching the brink of death. Such is a legal practice in Islam that the article will talk about how it operates, the conditions, and how differently it is between the two religious sects, Sunni and Shia.

Marz Ul Maut Meaning

Marz ul Maut refers to gifts made while on one’s deathbed. It is a law that refers to the practice of bequeathing assets or property while an individual approaches the end of life because of either an illness or the expectation of death within the near future.

The term is of Arabic origin, where “Marz” would mean sickness or malady and “Maut” would mean death. The Marz ul Maut is subject to certain specific requirements to be a valid. These include among others, express declaration of the gift, requisite acceptance by the donee and passing of possession or its effective appropriation.

Essential Conditions for Marz Ul Maut

Conditions similar to Hiba apply to Marz ul Maut:

• Clear and express intention by the donor to make the gift.
• Declaration may be written or oral.
• Donee must accept the gift expressly or impliedly.
• Possession must be delivered really or constructively.

Only one-third of property may be bequeathed under Marz ul Maut unless heirs permit otherwise. It blends principles of wills (Wasiyat) and gifts (Hiba), making it a “Hybrid or Amphibious” doctrine under Mohammadan Law.

Apprehension Of Death

The common nature of the apprehension is raised out in the case Hassarat Bibi v. Golam Jaffar, where the definitions and indications of a death-illness are spelled:

• The donor must have been suffering from a sickness or malady which was the effective cause of that donor’s death.
• The sickness must have brought on an actual fear of death into the mind of the person and made that person feel that he would die.
• The illness must have incapacitating the individual to carry on his ordinary occupation, as has been observed in the case i.e., Mustak Ahmed v. Abdul Wahid and Karimamssa Bibi v. Hamidua.
• A person suffering from illness for a long period, the illness becomes of an acute nature and the person apprehends death.

In Mumtaz Ahmed v. Wasi-un-Nissa, it was said that the doctrine of Marz ul Maut applies only when the gift is made under the highest pressure of death. It is similar to an intuition for the patient that the person is going to die with no field of recovery.

Test For Marz Ul Maut

In Shaik Nurbi v. Pathan Mastanbi and others, the following were held to be the essential requisites of a valid deathbed gift under Mohammedan Law:

• The illness or malady must have directly been the cause of death of the donor.
• The sick person must have some subjective apprehension of death or preponderance of death.
• The presence of external symptoms, e.g. an inability to attend to ordinary business.
• There must exist a delivery of possession.

However, on this point, each case of a deathbed gift shall be scrutinized independently in view of the facts and circumstances to ascertain if the sickness is Marz ul Maut. It must be kept in mind on this point that the person must die due to the sickness or the malady specifically. If death is a consequence of some other thing, then in that case Marz ul Maut can be treated as a Hiba but all the essentials of Hiba should be there. Doner has to establish that the gift during death resulted from the apprehension of death of donor and that the sickness then present caused that death.

The second requirement is that the gift be made by the person in illness due to the fear or apprehension of death by reason of the sickness. This must be apparent and known to the persons attending on him, namely physicians. The definition of death-illness is held good if it is highly likely to terminate fatally.

The third condition requires that the sickness of the person be of such a nature that he is not capable of maintaining the regular activities.

It has been defined in Mustak Ahmed v. Abdul Wahid that Marz ul Maut or mortal sickness, is that in which the sick person has a fear of death, is unable to attend to business and death results within a year due to such condition, whether confined to a deathbed or not.

Where the sickness is prolonged and one year has elapsed and yet there is no change, so that the sick person may, to all intents and purposes, be taken as one in health, there if the change supervening should cause death before the completion of a year, then he is taken as sick with mortal sickness.

Angling Aspect Of Marz Ul Maut

This chapter, thus, deals with relevant areas including disease under Marz ul Maut, deathbed gifts under other religions, and the consideration of Marz ul Maut as a contract.

Disease Under Marz Ul Maut

Obviously, unless the donor or the testator is fallen ill, the Marz ul Maut cannot have any application. The sickness can be of any kind, while it must be remembered that the fear of death varies from individual to individual. There are persons who have mild illnesses like the common cold, caused by a weak immune system, while some suffer from aggressive diseases like cancer. Though it is not a necessity that the person has to be bedridden; the sickness, however, should prevent the person from going about their daily life as they used to.

Now with the advancement of medicines, an individual can prolong his life well over a year even though he has a chronic disease. Therefore, in order to establish Marz ul Maut, it has to be taken into account that the sickness that turned mortal once more from the point when it became mortal according to a doctor. Usual diseases like diabetes and blood pressure, which can be usually be controlled by modern medicine are not Marz ul Maut.

Conditions such as paralysis, diabetes, asthma, etc., are also generally held to be outside the scope of mortal sickness, unless of such a character that it becomes an actual medical cause for concern. The case Muhammed Gulshere K. v. Mariyam B. once again threw light on the dictum that long and lingering diseases diluting the apprehension of death over a year cannot be categorized as sickness for Marz ul Maut.

On the other hand, rapid consumption and racing conditions, such as pneumonia, come within the doctrine of Marz ul Maut if they cause contemplation of immediate death, and if they reduce the party to impotency. If such is the case, then a gift by a person in such condition is a Marz ul Maut gift.

Deathbed Gifts In The Other Religions

Even the gifts in contemplation of death, which are called Donatio Mortis Causa, are valid in Hindu law. They are dealt with under Section 191 of the Indian Succession Act, 1925. A close discussion on all the vestal conditions for a gift is clearly communicated in the case of Deo Saran v. Deoki Bharathi. The gift has to be either movable or immovable property, conditional on the death of the donor from illness.

Other Legal Effects of Marz Ul Maut

Marriage On The Death Bed Is A Null Marriage

A marriage on the death bed; before death is void. Although this can be revived, should the person continues to live after the disease leaves his body, then a marriage on the bed of death will be considered a valid one.

Marz Ul Maut Waqf

Waqf is a legal institution in Islam governed and authenticated under the Waqf Act, 1995. It is an endowment of the Muslim during his lifetime for religious, educational, or charitable purposes.

A deathbed waqf is subject to the rules that apply to any other disposition made to the extremis. It will operate only 1/3rd of the estate, unless the intention of the heirs is taken.

Comparison Of Applicability Of Marz Ul Maut In Shia And Sunni Law

There are some distinctions in the Sunni and Shia Islamic traditions regarding the applicability of Marz ul Maut (gifts made at deathbed) in various aspects.

• According to Sunni law, the consent of all heirs is necessary for bequests to an heir.
• In Shia law, the bequest up to 1/3rd of the property is valid even without unanimous consent.
• Regarding a bequest to an unborn child:
  • Sunni law: valid only if the child is born within 6 months of making the will (Marz ul Maut).
  • Shia law: the limit is extended to 10 months.
• Delivery of a child is considered under Marz ul Maut in Sunni but not in Shia.
• Acknowledgment of any debt on the death bed in favor of an heir:
  • Sunni law: non-effective.
  • Shia law: effective and bound up to 1/3rd of the property.

These differences can illustrate many not-so-obvious but critically important ways in which Marz ul Maut can manifest in applied actuality in two legal systems, Sunnism, and Shiaism.

Conclusion

Marz ul Maut is a gift in contemplation of death recognized under both the Sunni and Shia laws. This legal issue deals with the requirements and effects of gifts given to someone approaching the end of the world owing to disease or sure death.

The prerequisites for a valid Marz ul Maut are that the gift should be explicitly declared, the donee should accept it, and the possession has to be actually or primarily delivered. The quantum that can be bequeathed and the rules surrounding a “Marz ul Maut” differ between the Sunni and the Shia traditions, thereby circumventing easy classification and understanding within the Islamic laws of inheritance.