1. This is an originating summons taken out in order to have certain provisions of an indenture of trust dated March 15, 1909, construed. The indenture of trust was executed on March 15, 1909, by Datoobhai Sajan, a Khoja Mahomedan inhabitant of Bombay. It settled upon trust a certain immoveable property. The income of the property was to be given to the settlor Datoobhai; after his death to his wife Bajbai; and after the death, of the survivor of them, the income was to be divided into two equal parts and to be paid to the two sons of the settlor, the two plaintiffs to this originating summons. On the death of plaintiff No. 1 the moiety of the trust property and the income thereof was given absolutely to his sons, and similarly the other taoiety of the trust property and the income thereof was given absolutely to the sons of plaintiff No. 2. At the date of the settlement neither of the two plaintiffs had any children. Defendants Nos. 2 and 3 are the sons of plaintiff No. 1 and defendant No. 4 is the son of plaintiff No. 2 who were born subsequently to the execution of the indenture of trust. Defendant No. 1 is the sole trustee of .the trust.
2. The main question that is raised by the originating summons is whether the dispositions in favour of defendants Nos. 2, 3 and 4 are valid inasmuch as they were not In existence at the date of the settlement. The parties before me are governed by Shia law.
3. There are certain principles of Mahomedan law which, are elementary and well established. Under Mahomedan law a gift cannot be made to a person not in existence and a trust other than a wakf is merely a medium through which a gift may be made. But in the case of a trust all the principles that are applicable to the making of a gift equally well apply. If a simple gift cannot be made under Mahomedan law, it would be equally bad if it is made through the medium of a trust. It is therefore contended that inasmuch as defendants Nos. 2, 3 and 4 were not in existence at the date of the settlement, any gift in their favour is void. Now it has got to be remembered that there is no direct gift in favour of defendants Nos. 2, 3 and 4. In the first place, there is a gift in favour of the settlor and his wife, then in favour of their two sons, and ultimately in favour of defendants Nos. 2, 3 and 4. The gift, therefore, is in the first instance in favour of persons in existence and it is followed by a gift in favour of persons not in existence. In other words, life estates are created in favour of living persons and finally the vested remainder is conferred upon persons not in existence.
4. There is a sharp difference between Hanafi and Shia law as to the effect of life estates. Hanafi law recognizes life estates only to a limited extent, but Shia Jaw recognizes them to the fullest extent and also recognizes vested reminders. It is well-settled law that a Shia can create life estates and also confer a vested remainder; but whether he could create a vested remainder in favour of an unborn person has not been so far clearly established and there seems to be no decisive authority laying down the principle one way or the other.
5. When we turn to the recognized text-books on Mahomedan law, Sir Dinshah Mulla expresses the opinion that the Shia law recognizes life estates and vested remainders.
A Shia may therefore create such estates through the medium of a trust, but not in favour of unborn persons.(Mulla's Mahomedan Law, 12th ed., p. 183).
6. Ameer Ali, Vol. I, p. 64, on the other hand, says:
A gift, therefore, to an unborn person, one not in case, either actually or presumably, is invalid. It is different, however, under the Shia law, where an estate may be devised to an unborn person if the commencement is made with a person in case.
Tyabji takes the same view as Ameer Ali and he says at p. 524 (3rd Edition) :
The grantee of a limited interest must be in existence at the time when the grant is made he must be competent to own property, and must be distinctly indicated; provided that where a succession of limited interests is created by the same grant, the grantee of the first interest alone need be in existence at the time of the grant, and if the succeeding grantees come into existence when their respective interests open out, the grants to them are valid.
Therefore there is a clear conflict between the views held by Sir Dinshah Mulla on the one hand and Ameer Ali and Tyabji on the other. When we turn, however, to the most authoritative exposition of Shia law which is contained in Baillie's Mahomedan Law, Vol. II, the position is made perfectly clear. At p. 214 this is how the law is summed up in Baillie:
Conditions that relate to the mowkoof alehi , or person on whom the settlement is made. Add in him three conditions are required. He must be in existence, and capable of owning property; he must be distinctly indicated; and he must be one on whom it is not unlawful to make a totikf. Hence, if one should make a settlement beginning with a person not in existence, as for instance, one to be born, or ' foetus not yet separated from its mother, the wufcf would not be valid. But if it were in favour of one not in existence, in succession to a person -actually in being, it would be quite good.
Therefore a settlement can be made in favour of a person not in existence provided it is not an independent settlement but is one which follows upon a settlement in favour of a person who is in existence. In view of this clear text, I cannot accept the exposition of the law as contained in Mulla's Mahomedan Law on this point as correct.
7. Let me now turn to the decided cases. Abdul Oadur Haji Mahomed v. C.A. Turner I.L.R.(1848) 9 Bom. 158 was a case of Sunni Mahomedans. There was a bequest in favour of a legatee not in existence, and the Court held that the persons not in existence are incapable of taking a bequest under a will. There was no question in this case of any life estates that preceded the bequest.
8. The report of the case of Mahomed Shah v. Official Trustee of Bengal I.L.R.(1909) Cal. 431 does not show whether the parties were Shias or Snmris. The settlor created a life interest in his own favour and remainder over in favour of his widow and children. A son was born to the settlor after the settlement and the Court held that the remainder in favour of the son was void. The distinction between Shia and Sunni law was not considered.
9. Musammat Surtaj Fatima v. Syed Muhammed Jawad I.L.R.(1930) Luc. 423 also does not show whether the parties were Shias or Sunnis, The Court consisting of Mr. Justice Muhammad Raza and Mr. Justice Pullan held that there is nothing contrary to the terms of the Mahomedan law in a gift by one person to another of a guzara for the lifetime of the latter with a continuance in favour of male heirs of the donee, and such a gift could be made without offending any principle of Mahomedan law. This case is not directly in point because this was not a case of a gift but the provision was contained in an award and, therefore, the principles of the Mahomedan law of gift did not fall to be considered.
10. The only ease which directly considers this point and where the parties were Shias is the case of Mirza Hashim Mishkee v. Aga Abdul Hoosain Bwidanett I.L.R. (1927) Ran. 252 . In that case a Shia Mahomedan lady executed a trust deed by which she settled all her properties upon trust in her favour for life, after her death to her husband if he should survive her, and after that to her children, and after their death to their children, the corpus going to them when the youngest attained the age of eighteen years. Mr. Justice Chari trying the case on the original side held that a Shia could create a life interest and a vested interest to take effect after the expiry of a life interest but he could not create such a vested remainder in favour of persons unborn at the time of the settlement. The learned Judge reviewed the authorities and disagreed with the views taken by Mr. Tyabji and Mr. Ameer Ali. But, with great respect to the learned Judge, he does not seem to have attached sufficient importance to the statement of the law as contained in Baillie and to which I have already referred. He has referred to it in passing, but he has overlooked the fact that Baillie contains the translation of Sharaiul-Islam which is a work of the highest authority on Shia law. The case which Mr. Justice Chari decided went in appeal, and the decision of the Appeal Court of the Rangoon High Court is reported in Mirza Hashim Mishkee v. A.A.H. Bindaneem I.L.R(1928) . Ran. 343. The Court upheld the decision of Mr. Justice Chari but on a different ground. They held that there was no gift in praesenti as the settlor had reserved to herself a life interest and she had not divested herself of all dominion over the corpus of the property as it could he sold with her consent. The Court of Appeal refused to express any opinion on the point decided by Mr. Justice Chari.
11. In my opinion, therefore, it is open to a Shia Mahomedan to make a settlement in favour. of an unborn person provided that such a settlement follows upon a settlement in favour of a person in existence; or to put it in other words, a this Mahomedan can create a vested remainder in' favour of an unborn person provided that the life estates are created in favour of persons in existence.
12. The trust deed also provides that it shall be lawful for the trustees or trustee at their or his discretion but with the consent in writing of the beneficiaries then entitled to any estate or interest in the trust property and premises to dispose of the trust hereditaments and premises. The plaintiffs say that they are desirous of selling the trust property having regard to the very high prices prevailing at the present moment, and the question arises whether the eunsent of defendants Nos. 2, 3 and 4 is necessary for such a sale. As I have already held that there is a vested remainder in favour of defendants Nos. 2, 3 and 4, they have undoubtedly a present interest in the trust property. It is an interest which can be sold or attached. It was so held by Sir Lawrence Jenkins, Chief Justice, and Mr. Justice Heaton, in Banoo Begum v. Mir Abed Ali : (1907)9BOMLR1152 . Therefore, in my opinion, the property cannot be sold without the consent of defendants Nos. 2, 3 and 4.
13. Costs of the plaintiffs fixed at Rs. 600. Costs of defendants Nos. 2 and .9 fixed at Rs. 350 and of defendant No. 4 fixed at Rs. 320 to come out of the trust estate. No order as to the costs of defendant No. 1.