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TMI Blog1991 (7) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... on the donor's recovery from the illness. The law acknowledges these conditions from the circumstances under which the gift is made. Thus it can be reasonably concluded that the gift was not absolute and irrevocable. On the contrary, it will be legitimate to infer that the gift was in contemplation of death. The only limitation under the Mahommedan law is that the disposition is restricted to a third on account of the right of the heirs. A Marz-ul-maut gift cannot, therefore, take effect beyond a third of the estate of the donor after payment of funeral expenses and debts unless the heirs give their consent after the death of the donor, to the excess taking effect. Whether there is any such consent given in this case by his heirs is the subject-matter of enquiry to be made by the Tribunal. It may be stated that the second question referred to the High Court relates to the validity of the gift beyond a third of the estate of the donor. On that question, the High Court has not expressed any view and it has directed the Tribunal to consider that issue afresh. Appeal dismissed. - - - - - Dated:- 10-7-1991 - Judge(s) : K. JAGANNATHA SHETTY., YOGESHWAR DAYAL JUDGMENT The ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gift. He was aged about 72 at that time and he was also suffering from paralysis, diabetes, hernia, etc. In fact, in view of the seriousness of his condition, he could not proceed to the Sub-Registrar's office for registration of the document; on the other hand, the, Sub-Registrar was brought to his residence for the purpose of effecting the registration. In an affidavit filed by him before the Gift-tax officer on August 3, 1969, the Sub-Registrar has affirmed that at the time of execution of the document, the settlor was in sick bed and was unable to move out of the same. He has also stated that the settlor as well as his children showed anxiety and haste in the matter of registration on account of the serious nature of the illness. At that time, according to the Sub-Registrar, the settlor was in his proper senses, but, soon after the execution of the deed, further complications set in and his power of speech and movements became impaired. Dr. V. B. Mohamed who was treating him has certified that on June 4, 1964, the patient was unable to recognise the surroundings properly and that his mental condition was impaired to a great degree. On June 9, 1964, i.e., within about six weeks ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has not been expressly specified or impliedly present in the deed that the gift must revert in the event of the donor recovering from illness. That the gifted property has to be kept as a gift in case the donor shall die of his illness has also not been satisfied in the case. With these findings, the Tribunal allowed the appeal of the Gift-tax Officer. Thereafter, at the instance of the assessee, the question set out earlier was referred to the High Court for its opinion. The High Court has answered the question in the negative and in favour of the assessee. The High Court expressed the view that it is not necessary that there must be a recital in the deed stating that the property would revert to the donor in the event Of his recovery from the illness or the donor surviving the donee. Such a condition could be inferred from the attending circumstances of the gift. The High Court has referred to the affidavits filed by the Sub-Registrar who registered the document and the doctor who treated the donor to come to the conclusion that the donor was seriously ill at the time of the execution of the deed and expected to die shortly of that illness. The factum of delivery of the gift ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he donor. There is nothing new in the requirements provided under section 191 of the Succession Act. They are similar to the constituent elements of valid donatio mortis causa. The essential conditions of a donatio mortis causa may be summarised thus : "For an effectual donatio mortis causa, three things must combine : first, the gift or donation must have been made in contemplation, though not necessarily in expectation, of death ; secondly, there must have been delivery to the donee of the subject-matter of the gift; and, thirdly, the gift must be made under such circumstances as shew that the thing is to revert to the donor in case he should recover. This last requirement is sometimes put somewhat differently, and it is said that the gift must be made under circumstances shewing that it is to take effect only if the death of the donor follows ; it is not necessary to say which way of putting it is the better." (See Cain v. Moon [1896] 2 QB 283 at 286). Now, all the conditions of a valid gift in contemplation of death, except perhaps the last condition prescribed under section 191 of the Indian Succession Act, are found present in this case by the fact-finding authorities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (8th edn., vol. 1, p. 46-47) also lends light to this aspect: "The conditional nature of the gift need not be expressed : It is implied in the absence of evidence to the contrary. And even if the transaction is such as would, in the case of a gift inter vivos, confer a complete legal title, if the circumstances authorise the supposition that the gift was made in contemplation of death, mortis causa is presumed. It is immaterial that the donor in fact dies from some disorder not contemplated by him at the time he made the gift." Similar is the statement of law in Williams on "Executors and Administrators" (14 edn., p. 315): "542. Conditional on death: "The gift must be conditioned to take effect only on the death of the donor. But it is not essential that the donor should expressly attach this condition to the gift ; for if a gift is made during the donor's last illness and in contemplation of death, the law infers the condition that the donee is to hold the donation only in case the donor dies." The principles in the Corpus Juris Secundum (Vol. 38, p. 782) are not quite different: "A gift causa mortis differs from a gift inter vivos in that it is made in view of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in contemplation of death. If a gift in contemplation of death is recognised by the personal law of the parties satisfying the conditions contemplated under section 191 of the Indian Succession Act, it cannot be denied exemption under section 5(1)(xi) of the Act even assuming that section 191 as such will not be applicable to the parties. Under the Mahomedan law a gift made during marz-ul-maut (death-bed illness) is subject to very strict scrutiny for its validity. Marz-ul-maut is a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death. There are three tests laid down to determine whether illness is to be regarded as Marz-ul-maut. They are : (1) Proximate danger of death so that there is a preponderance of khauf or apprehension that at the given time death must be more probable than life. (2) There must be some degree of subjective apprehension of death in the mind of the sick person. (3) There must be external indicia chief among which would be the inability to attend to ordinary avocations. ( Rashid Karmalli v. Sherbanoo [1907] ILR 31 Bom 2641). A gift made during marz-ul-maut is subject to all other conditions nec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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