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PETITIONER: COMMISSIONER OF GIFT TAX, ERNAKULAM

       Vs.

RESPONDENT: ABDUL KARIM MOHD. (DEAD) BY LRS.

DATE OF JUDGMENT10/07/1991

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) YOGESHWAR DAYAL (J)

CITATION:  1991 AIR 1847            1991 SCR  (2) 846  1991 SCC  (3) 520        JT 1991 (3)    67  1991 SCALE  (2)11

ACT:      Gift Tax Act, 1958/Indian Succession Act, 1925: Section 5(1)(xi)/Section   191-Gift  in  contemplation   of   death- Essential  requirements  of-Gift of  movable  property-Donor seriously  ill  at the time of execution of  deed  and  died shortly thereafter-Delivery of possession of gifted property effected-No  indication  in  the  document  specifically  or impliedly that gift would be effective only if donor died or liable  to be revoked in case donor  recovered-Whether  gift valid-Whether entitled to exemption.      Mohammedan  Law: Marz-ul-maut (death-bed  illness)-What is-Gift   made  during  marz-ul-maut-Whether   entitled   to exemption under Gift Tax Act-Section 191, Indian  Succession Act-Applicability of.

HEADNOTE:      Gift  to  certain  movable  assets  was  made  to   the respondent  assessee  by a Muslim businessman, when  he  was seriously  ill, and died of the illness after six  weeks  of the  execution  of  the document.   In  gift-tax  assessment proceedings,  the assessee claimed exemption for  this  gift under  Section  5(1)(xi) of the Gift Tax Act, 1958,  on  the ground  that  the gift was made in contemplation  of  death. The  Gift Tax Officer rejected the claim.  But,  on  appeal, the  Appellate Assistant Commissioner allowed the  exemption relying  on the circumstances under which the gift was  made and  the events followed thereafter and the evidence of  the Sub-Registrar,  who was brought to residence  for  effecting registration, and the doctor, who was treating the donor.      On  appeal  by  the  Gift-Tax  Officer,  the   Tribunal affirmed the finding of the Appellate Assistant Commissioner regarding  the  donor’s  illness  but  did  not  allow   the exemption  on the ground that, though there was delivery  of possession   of   the   gifted  movables,   the   gift   was unconditional   and   absolute,  since  it  had   not   been specifically  expressed  or  impliedly present in  the  deed that  the  gift must revert back in the event of  the  donor recovering from illness and that the gifted property had  to be  kept  as a gift in case the donor died of  his  illness. However, on a reference made at the instance of the assessee for opinion, the High Court held that such a condition  need

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not be mentioned in the deed and                                                        847 it could be inferred from the attending circumstances of the gift,  and since the donor was actually sick at the time  of execution  of the deed and died of the same illness  without recovery,  after  a short period, the gift in  question  was made  in contemplation of death and therefore,  entitled  to exemption from tax under Section 5(1)(xi) of the Act.      In  the  appeal  before this Court, on  behalf  of  the Department  it was contended that the gift in  contemplation of  death  should  be conditional, and  in  the  absence  of indications in the document to the effect that if the  donor did  not  die, he should be entitled to remain  in  complete domination  of  the gifted property, the gift  would  become inter  vivos  and  absolute, and that  the  exemption  under Section  5(1)(xi) of the Gift Tax Act was not  available  to the assessee, since Section 191 of the Indian Succession Act was not applicable to marz-ul-maut gift.      Dismissing the appeal by the Department, this Court      HELD: 1.1 Explanation (d) to sub-section (2) of Section 5  of  the  Gift Tax Act, 1958 states that a  gift  made  in contemplation  of death has the same meaning as  in  Section 191 of the Indian Succession Act, 1925.  The requirements of a gift in contemplation of death as laid down by Section 191 are: (i) the gift must be of movable property; (ii) it  must be  made in contemplation of death; (iii) the donor must  be ill  and  he  expects to die shortly of  the  illness;  (iv) possession of the property should be delivered to the  done; and (v) the gift does not effect if the donor recovers  from the  illness  or  the donee predeceases  the  donor.   These requirements  are similar to the constituent elements  of  a valid donatio martis causa. [853C-E]      Cain v. Moon, [1893] 2 Q.B. 283 @ 286, referred to.      1.2.   In   the  instant  case,  all   the   conditions prescribed, except perhaps the last one are found present by the fact finding authorities. [853G]      1.3.  The  recitals  in  the  deed  of  gift  are   not conclusive to determine the nature and validity of the gift. The  party  may produce evidence aliunde to prove  that  the donor  gifted  the property when he was  seriously  ill  and contemplating  his  death with no hope of  recovery.   These factors in conjunction with the factum of death of the donor may  be  sufficient  to  infer that the  gift  was  made  in contemplation   of   death.    It  is   implicit   in   such circumstances that the donee becomes the owner of the gifted property  only if the donor dies of the illness and  if  the donor  recovers  from  the  illness,   the  recovery  itself operates as a revocation of the gift. [854B-C]                                                        848      1.4 It is not necessary to state in the gift deed  that donee  becomes owner of the property only upon the death  of the donor.  Nor it is necessary to specify that the gift  is liable  to  be revoked upon the donor’s  recovery  from  the illness.   The law acknowledges these conditions  from   the circumstances under which the gift is made. [854C-D]      Halsbury’s Laws of England, 4th Edn. Vol. 20 p. 41 para 67;  Jerman on Wills, 8th Edn. Vol, 1 p. 46-47; Williams  on "Executors and Administrators", 14th Edn. p. 315, and Corpus Juris Secundum, vol. 38 p. 782 and p. 917 para 110, referred to.      1.5  In the light of this and in view of  the  findings recorded  by the Tribunal about the serious sickness of  the donor  and his state of mind at the time of making the  gift in  question, it can be reasonably concluded that  the  gift was not absolute and irrevocable.  On the contrary, it would

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be legitimate to infer that the gift was in contemplation of death.  any other view would be inappropriate. [856A-B]      2.1  Marz-ul-maut  is also entitled to  exemption  from gift  tax under Section 5(1)(xi) of the Gift Tax Act,  1958. [856B]      2.2 The exemption to gift in contemplation of death  is provided under Section 5(1)(xi) of the Gift Tax Act, and not under Section 191 of the Indian Succession Act, Section  191 furnishes  only  the  meaning or  requirements  of  gift  in contemplation of death.  It a gift in contemplation of death is recognised by the personal law of parties satisfying  the conditions  contemplated  under Section 191  of  the  Indian Succession  Act,  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. [856C-D]      2.3 Under Mohammedan Law gift made during  marz-ul-maut (death-bed-illness)  is subject to very strict scrutiny  and subject  to all other conditions necessary for the  validity of  a hiba or gift, including delivery of possession of  the donor to the  donee. [856D]      Mulla’s  Mohammedan  Law, pp. 111 Sections 135  &  136, referred to.      2.4   Marz-ul-maut  is  a  malady  which   induces   an apprehension  of  death inthe 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; (i) Proximate danger of death                                                        849 so that there is 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. [856E-F]      Rashid  Karmalli and anr. v. Sherbanoo, [1907]  31  ILR Bombay 2641, referred to.      2.5 Therefore, under the Principles of Mohammedan  Law, the gift made in marz-ul-maut could be regarded as gift made in  contemplation of death, since it has all the  requisites prescribed  under Section 191 of the Indian Succession  Act, 1925.   The  only  limitation is  that  the  disposition  is restricted to a third on account of the right of the  heirs. [857C-D]      Syed  Ameer Ali: Mohammedan Law, Vol. 1, 4th Edn.  1985 p. 59-60, referred to.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 526 (NT) of 1979.      From  the Judgment dated 16.12.1976 of the Kerala  High Court in I.T.R. No. 101 of 1974.      Dr. V. Gauri Shankar, S. Rajappa and Ms. A.  Subhashini for the Appellant.      Santosh  N. Hegde, E.M.S. Anam and K.L. Mehta  for  the Respondents.      The Judgment of the Court was delivered by      K.  JAGANNATHA SHETTY, J. This appeal by special  leave is  against  the  decision of the High Court  of  Kerala  in Income-Tax Reference No. 101/1974 and it raises an important issue  concerning  the  requirements  of  a  gift  made  "in contemplation  of  death"  within  the  meaning  of  Section 5(1)(xi) of Gift Tax Act, 1958 (‘The Act’).  That  reference

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was  made under Section 26(1) of the Gift Tax Act,  1958  by the   Income-Tax  Appellate  Tribunal  Cochin  Bench.    The Tribunal  referred to the High Court two questions  for  its opinion,  out of which we are concerned only with the  first question which reads:          "Whether on the facts and circumstances of the case          the                                                        850          Tribunal  was  right in holding that  the  gift  of          movables valued at Rs.67,578 is not a gift made  in          contemplation  of  death  within  the  meaning   of          section 5(1)(xi) of Gift-Tax Act, 1958?"      The  facts  of the case as found by  the  Tribunal  are simple  and not unusual. Abdul Karim Mohammed a  businessman in  Cochin executed a document styled as  "settlement  will" gifting  certain movables to the assessee  respondent  inthe shape  of business assets valued by the Gift-Tax Officer  at Rs.67,578. The document was executed on 4 April 1964 and  at the time of execution, the donor was seriously ill.  He died of   the  illness  after  about  six  weeks.   In   gift-tax assessment  proceedings the assessee claimed  exemption  for this  gift under section 5(1)(xi) of the Act which  provides that  a gift shall not be charged under the Gift-Tax Act  in respect  of  a gift made by any person in  contemplation  of death.      The Gift-Tax Officer rejected the claim of the assessee and  brought  the  said amount to tax.  But  on  appeal  the Appellate  Assistant Commissioner held to the contrary.   He allowed the exemption sought for on the ground that the gift was  in  contemplation  of death.  He has  relied  upon  the circumstances  under which the gift was made and the  events followed  thereafter  to  reach  his  conclusion.   He   has described  the  facts and circumstances as follows:  "Now  I agree  with  Sri  Karunakaran,  that  the  absence  of   any reference   in  the deed of settlement to the  illness  from which  the  donor  was  suffering  does  not  lead  to   the conclusion that there was no illness, or that the donor  was nor apprehensive of death resulting from the same.  There is ample evidence to show that he was seriously ill at the time when he made the gift.  He was aged about 72 at the time and he was also suffering from paralysis, diabetes, hernia  etc. In  fact,  in view of the seriousness of  the  condition  he could   not  proceed  to  the  Sub-Registrar’s  office   for registration  of  the document; on the other hand  the  sub- registrar  ws  brought to his residence for the  purpose  of effecting  the registration.  In an affidavit filed  by  him before  the  Gift-Tax Officer on the 3rd August,  1969,  the sub-registrar has affirmed that at the time of execution  of the  document the settler was in sick bed and was unable  to move  out of the same.  He has also stated that the  settler 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  settler  was in his proper sense, but  soon  after  the execution of the deed, further complications set in and  his power  of  speech and movements became  impaired.  Dr.  V.B. Mohammed who was treating him has certified that                                                        851 on  4th  June  1964  patient was  unable  to  recognise  the surroundings  properly,  and that his mental  condition  was impaired  to a great degree.  On 9th June, 1964 i.e.  within about six weeks from the date of the settlement he died.  In these circumstances, I am satisfied that the donor, an  aged gentleman  who seriously ill at the time of  the  settlement entertained  no hope of recovery, and that it was in such  a

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state of mind, that he made the settlement.  Hence the gifts must be taken to have been made in contemplation of death."      The  Gift-Tax Officer appealed to the Tribunal  against the  decision of the Appellate Assistant Commissioner.   The Tribunal has affirmed the finding of the Appellate Assistant Commissioner that the donor at the time of gift was ill  and expected  to  die  shortly of  his  illness.   The  Tribunal observed "But we are satisfied that the Appellate  Assistant Commissioner was on the facts and circumstances of the  case right  in his conclusion that the donor, an aged  gentleman, who  was  seriously  ill  at  the  time  of  the  settlement entertained  no hope of recovery and that it was in  such  a state  of mind that he made the settlement.   The  materials referred,   relied  on  and  discussed  by  the    Appellate Assistant Commissioner in the appellate order are sufficient enough  to  lead to a reasonable conclusion that  the  donor was, at the time of execution of the document, ill and  that he  expected to die shortly of his illness."   The  Tribunal however,  did  not agree with the exemption allowed  to  the assessee.   It has stated that the finding recorded  by  the Assistant Commissioner that the donor was ill at the time of gift and he died thereafter out of the illness alone is  not sufficient  to hold that the gift was made in  contemplation of gift death.  In order to satisfy the requirements of gift in contemplation of death there must be two other conditions to be satisfied; (i) There must be delivery of possession of the  gifted  movables  to the donee; (ii)  that  a  gift  is entitled  to  take effect only in the event of  the  donor’s death  and that if the donor recovers from the  illness  the property  should  revert back.  On the first  condition  the Tribunal   found  on  facts  that  there  was  delivery   of possession of the gifted movables.  On the second condition, the Tribunal observed that the gift was unconditional and it was in nature of settlement deed, pure and simple.   It  was executed  to settle absolutely forever the property  of  the donor  without  any condition.  It is just  like  any  other settlement executed by a person without the contemplation of death.   It  has not been expressly specified  or  impliedly present  in the deed that the gift must revert back  in  the event  of  the donor recovering from  illness.   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.                                                        852      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  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 execution of  the deed  and  expected  to die shortly of  that  illness.   The factum  of delivery of the gifted assets to the donee  at  a time when the donor was seriously sick and the donor’s death shortly  thereafter  were  also relied upon.   It  was  then stated that in as much as the donor was actually sick at the time  of execution of the deed and died of the same  illness without recovery, after a short period, the gift in question

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was  made in contemplation of death and therefore,  entitled to exemption from tax under Section 5(1)(xi) of the Act.      The legality of the view expressed by the High Court is under challenge in this appeal.  First, we may refer to  the relevant  statutory  provisions  bearing  on  the  question. Section 3 of the Act is the charging section and it provides that in respect of gifts there shall be charged tax referred to  as the gift-tax at the rate specified in  the  schedule. Section  5 provides exemption in respect of  certain  gifts. Section  5 sub-section (1)(xi) provides that gift tax  shall not be charged under the Act in respect of gifts made by any person  in contemplation of death.  Explanation (d) to  sub- section  (2)  of  Section  5  states  "that  gifts  made  in contemplation  of death" has the same meaning as in  Section 191 of the Indian Succession Act, 1925.  Section 191 of  the Indian  Succession Act deals with the requirements of  gifts made in contemplation of death.  It reads as follows:          "191.   Property  transferable  by  gift  made   in          contemplation of death.          (1)   A   man  may  dispose,  by   gift   made   in          contemplation  of  death, of any  movable  property          which he could dispose of by will.          (2)  A  gift said to be made  in  contemplation  of          death  where a man, who is ill and expects  to  die          shortly his illness,                                                        853          delivers  to another the possession of any  movable          property to keep as a gift in case the donor  shall          die of that illness.          (3)  Such a gift may be resumed by the  giver;  and          shall  not  take  effect if he  recovers  from  the          illness during which it was made; nor if e survives          the person to whom it was made.      The requirements of a gift in contemplation of death as laid  down by Section 191 of the Indian Succession Act  are: (i)  the gift must be of movable property; (ii) it  must  be made in contemplation of death; (iii) the donor must be  ill and  he  expects  to  die  shortly  of  the  illness;   (iv) possession of the property should be delivered to the donee; and (v) the gift does not take effect if the donor  recovers from the illness or the donee predeceases the donor.      There is nothing new in the requirements provided under Section 191 of the Succession Act.  They are similar to  the constituent  elements of a 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: firs, 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 some-what  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 donor follows; it is not necessary  to say  which  way of putting it is the better." (See  Cain  v. Moon, [1896] 2 Q.B. 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.  The gift was made when the donor was seriously ill  and apprehending his death.  The donor died within  six weeks  after the execution of the deed.  The  possession  of

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the  property gifted has been delivered to the donee  before the death.  But it is said that there is nothing to show  in the  document expressly or impliedly that the gift was  made under such circumstances that the thing was to revert to the donor in case he should recover.  Dr. Gauri Shankar  learned counsel   for  the  Revenue  contends  that  the   gift   in contemplation of death should be conditional that is, on the term that if the donor would not                                                        854 die he should be entitled to remain complete dominion of the property,  the subject matter of the gift.  There should  be indications  in the document to that effect  without  which, counsel  states  that  the  gift  becomes  inter-vivos   and absolute.      It  seems to us that the recitals in the deed  of  gift are  not conclusive to determine the nature and validity  of the  gift.  The party may produce evidence aliunde to  prove that  the donor  gifted the property when he  was  seriously ill  and contemplating his death with no hope  of  recovery. These factors in conjunction with the factum of death of the donor  may be sufficient to infer that the gift was made  in contemplation   of   death.    It  is   implicit   in   such circumstances that the donee becomes the owner of the gifted property  only if the donor dies of the illness and  if  the donor  recovers  from  the  illness,  the  recovery   itself operates  as a revocation of the gift.  It is not  necessary to  state that in the gift deed that the donee  becomes  the owner of the property only upon the death of the donor.  Nor it  is  necessary to specify that the gift is liable  to  be revoked upon the donor’s recovery from the illness.  The law acknowledges  these conditions from the circumstances  under which  the  gift  is made.  Reference may  be  made  to  the following  passage from Halsbury’s Laws of England (4th  ed. vol. 20 p. 41 para 67):          "There is an implied condition that the gift is  to          be retained only in the event of death, even though          the donor does not expressly say so.  The death may          take  place some time afterwards, or the donor  may          actually  die from some other illness, but  if  the          donor recovers from illness, during which the  gift          is  made the donee has no title, and can only  hold          what was delivered to him in trust for the donor."      Jerman  on Wills (8th ed. vol. 1 p. 46-47)  also  lends light on 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          confers   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 that 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                                                        855 Administrators" (14 ed. 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

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        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  expected          or impending death, as appears infra $$ 75,78.  The          vital distinction between a gift inter vivos and  a          gift   causa   mortis  is  that   the   former   is          irrevocable, while the latter may be revoked at any          time before the donor’s death, and may be  defeated          by  the  recovery or survival of the  donor.   More          fully, a gift causa mortis is liable to  revocation          by the donor and does not pass an irrevocable title          until  the death of the donor, while a  gift  inter          vivos  vests an irrevocable title on  delivery;  in          the  case  of a gift inter vivos the title  is  not          only  transferred and vested in the donee at  once,          but  the  gift  is  immediately  completed  and  is          absolute  and irrevocable, while in the case  of  a          gift  causa  mortis the transfer is subject  to  be          defeated  by  the  happening  of  any  one  of  the          conditions implied by  the law."      It is further stated (at p. 917 para 110):          "A gift causa mortis is revoked by the recovery  of          the  donor,  from the particular  illness,  or  his          survival of the peril, which existed at the time of          the gift and in contemplation of which the gift was          made.             The  recovery of the donor from  the  particular          illness,  or  his  survival  of  the  peril,  which          existed   at   the  time  of  the   gift   and   in          contemplation  of which the gift was made  will  of          itself operate as a revocation of the gift."                                                        856      In  the  light of these principles and in view  of  the findings recorded by the Tribunal about the serious sickness of the donor and his state of mind at the time of making the gift  in question, 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.  Any other view in this case  would be inappropriate.      No  account in this regard would be complete unless  it is  held that marz-ul-maut gift with which we are  concerned is  also entitled to exemption from gift tax  under  Section 5(1)(xi)  of the Act.  Counsel for the Revenue  argues  that the exemption provided under Section 5(1)(xi) of the Act  is not  available  to  the assessee since Section  191  of  the Indian  Succession  Act is not  applicable  to  marz-ul-maut gift.   We  do not find much substance in  this  submission. The exemption to gift in contemplation of death is  provided under Section 5(1)(xi) of the Act and not under Section  191 of  the Indian Succession Act.  Section 191  furnishes  only the  meaning  or requirements of gift  in  contemplation  of death.  If a gift in contemplation of death is recognised by the  personal  law  of  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 Mohammedan Law 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.

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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. (See:  Rashid Karmalli and Anr. v. sherbanoo, [1907] 31  ILR Bom  264.  The gift made during marz-ul-maut is  subject  to all other conditions necessary for the validity of a hiba or gift,  including delivery of possession by the donor to  the donee.   (See: Mulla’s Mohammedan Law pp. 109,  111  Section 135  & 136). Syed Ameer Ali in his book on "Mohammedan  Law" throws  some  more light on the principles of ‘gift  of  the sick’.   It  is  stated: "In the  chapter  in  the  "Fatawai Alamgiri" dealing with "the gift of the sick" the principles are  set  forth at some length.  In the first  place  it  is stated from the Asal that neither a gift nor a sadakah by  a mariz a person suffering from                                                        857 marz-ul-maut  of which the definition is given later  on  is effective without possession: and if possession is taken, it is  valid  inrespect of a third.  If the donor were  to  die before  delivery  (taslim) the whole  disposition  would  be invalid.   It is, therefore, necessary to understand that  a gift  by  a mariz is a contract and not a  wasiat,  and  the right of disposition is restricted to a third on account  of the right of the heirs which attaches to the property of the mariz.  And as it is an act of bounty it is effective so far only  as  the law allows and that is a third.  And  being  a contractual    disposition    it   is   subject    to    the conditions relating to  gifts,  among  them  the  taking  of possession by the donee before the death f the donor." (Vol. 14th ed. 1985 p. 59-60).      From  these  principles of Mohammedan Law  it  will  be clear  that the gift made in marz-ul-maut could be  regarded as gift made in contemplation of death since it has all  the requisites  prescribed  under  Section  191  of  the  Indian Succession Act.  The only limitation under Mohammedan Law is that the disposition is restricted to a third on account  of the right of the heirs.  Marz-ul-maut gift cannot  therefore take effect beyond a third of the estate of the donor  after payment of funeral expenses and debt unless 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 refered to the High  Court relates to the  validity of the gift beyond a third of the estates 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. We,  therefore,  refrain from expressing any views  on  that matter.      From  the foregoing discussion, the view taken  by  the High Court is correct and it does not call for interference. We accordingly dismiss the appeal with costs. N.P.V.                                     Appeal dismissed.                                                        858