1. The plaintiffs sued the executrix and other heirs under the will of their deceased grandfather Ismailji to recover a legacy alleged due to them under the will of the said deceased Ismailji.
2. The defendants pleaded that the claim was time-barred; that the legacy was invalid to more than the extent of one-third of the estate owing to the want of assent of the other heirs; that the legacy could not be given effect to owing to more than one-third of the estate having been already left by a prior clause of the will in Wakf.
3. The original Court decided that the suit was time-barred; that the legacy was invalid to more than the extent of one-third of the property; that there was no assent of the other heirs and that the legacy could, therefore, not be given effect to as one-third of the property had been validly left by a prior bequest in Wakf. The original Court, therefore, dismissed the suit with costs.
4. On appeal it has been argued with regard to the question of limitation that the Article applicable was not Article 120 but Article 123 of the first Schedule of the Limitation Act. It has been contended in answer that the suit was really an administration suit or one for an account, falling under the general provisions of Article 120, as the legacy did not receive the assent of the executrix under Section 112 of the Probate and Administration Act V of 1881, and was, therefore, inchoate and could not be made the basis of a suit for a legacy. In support of that contention several cases were quoted; but after giving them our best consideration it appears to us that they do not support the contention. The most that can be deduced from them is that where there has been no assent of the executor then the suit must include a demand for the administration of the whole estate. The cases included those of--Cursetjee Pestonjee Bottliwalla v. Dadabhai Eduljee ILR (1896) Mad. 425; Okhoy Coomar Bonnerjee v. Koylash Chunder Ghosal ILR (1890) Cal. 387 and Rajamannar v. Venkatakrishnayya ILR (1902) Mad. 361. It appears to us that the mere want of assent of the executrix cannot alter the substantial nature of the suit, which was to recover the legacy. Article 120 is merely an Article referring to suits for which there is no other provision in the Schedule. It is not an Article referring specifically to administration suits. Article 123 is, therefore the Article applicable, where the substantial' claim is to recover a legacy, whether or no the suit involves the administration of the whole estate. This suit must accordingly be held to have been brought within time as it was brought within the twelve years allowed by Article 123. It is unnecessary in this view of the case to deal with the further arguments based upon the minority of one of the parties and the alleged extension in favour of all of the period of limitation.
5. With regard to the question of the assent of the other heirs to the legacy it is sufficient to say that the matter has not been seriously pressed before us, as there was no evidence of the assent of all the heirs.
6. With regard to the question whether the prior bequest in wakf was valid, it is necessary to consider in some detail the terms of the bequest occurring in paragraph 4 of the will as follows:--
' As to whatever may come to in respect of a third share that is in respect of a third portion and of any above-mentioned property, and of such property my executrix Bai Fatmabu shall duly do such act as may perpetuate my name and as may do good. In lieu of the said amount one house and a moiety of another house in Bombay the particulars whereof are mentioned in the above written second clause. As to whatever income may be realized on the expenses relating to those houses being deducted the said income shall be appropriated towards the performance of the following works .---
' I have been giving Gadiulkhum feast at the holy Mecca through Mr. Abdul Ali Nakhuda. The same shall duly be given
'I have been giving a Gadi feast at Remanpura in Surat, the same shall be given.
' According to these particulars and agreeably to what is same shall be done and as to whatever may remain over on that being done my said executrix shall give therewith a Fattiah dinner on my and on my wife's Kulsambu's account, and I have given my full authority to the above named executrix to do the above mentioned works. She shall do the same during her life-time and after her, her children shall do the same.
7. The question of the validity of these bequests has been considered at considerable length by the learned Judge of the original Court from pages 8-11 of the printed judgment, and he came to the conclusion mainly it appears from certain dicta of Ameer Ali, that the bequests were good bequests as Wakf. It appears to us that the two first bequests at all events being for the celebration of the appointment of Ali as successor of the Prophet were properly held to be valid Wakfs. In paragraph 322 of Wilson's Anglo Mahomedan Law, it is stated that 'all works of religion, charity, or public utility, not condemned by the Mahomedan religion, are proper objects of Wakf' on the authority of the Hedaya.
8. But it is open to question whether the third bequest for Fattiah dinners 'on my and my wife Kalsumbu's account' is a valid Wakf. It is pointed out by Wilson in paragraph 323A of his work that the Madras High Court has recently held such a bequest not to be a valid Wakf in the case of Kaleloola Sahib v. Nuseerudeen Sahib ILR (1894) Mad. 201. A similar question also arose in the case of Biba Jan v. Kalb Husain ILR (1908) All. 136. And in the case of Zooleka Bibi v. Syed Zynul Abedin (1904) 6 Bom. L.R. 1058, it was held by Tyabji J.: 'that there is nothing in the Mahomedan law to justify the tying up of property for the purpose of maintaining the tombs of ordinary individuals. It can only be done with respect to shrines and tombs of great religious teachers which are regarded with very considerable feeling of reverence and sanctity by various Mussulman Communities throughout the world.'
9. But however that may be, it appears to us looking to the fourth paragraph of the will as a whole that the testator undoubtedly had a general charitable intention, and that consequently even if the third bequest in favour of the Fattiah dinner should fail, the property would have to be devoted to religious or charitable purposes according to the cy pres doctrine. The property actually bequeathed in Wakf was the 'one house and a moiety of another house in Bombay.' It is not possible in this suit to decide exactly how that property should be devoted to religious or charitable purposes. That would be a matter for consideration and decision in separate proceedings properly instituted by those interested in the religious or charitable purposes on the principles stated in the Tagore Law Lectures for 1907, by Abdur Rahira at page 305:--'If, however, the specified objects be limited or happen to fail, but a general charitable intention is to be inferred from the words of the grant, the Wakf will be good and the income or profit will be devoted for the benefit of the poor, and in some cases, to objects as near to the objects which failed as possible. This rule is analogous, to the doctrine of cypres of the English law.' All that can be decided in this suit is that the 'one house and moiety of another house in Bombay' were validly bequeathed in Wakf.
10. That being so, the only question remaining to be decided is whether upon an administration of the whole estate there would remain any balance out of the one third alone available for bequests to satisfy the legacy in suit after deducting the value of the two houses validly bequeated in priority in Wakf. For this purpose it will be necessary to remand the case to the original Court for a complete administration of the estate.
11. We, therefore, reverse the decision of lower Court upon these preliminary issues and remand the case for a complete administration of the estate, with reference to the foregoing observations and Order XX, Rule 13 of the first Schedule of the Civil Procedure Code.
12. Costs to be costs in the administration.