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Abdulsakur Haji Vs. Abubakkar Haji Abba - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case Number O.C.J. Suit No. 1431 of 1928
Judge
Reported inAIR1930Bom191; (1930)32BOMLR215
AppellantAbdulsakur Haji
RespondentAbubakkar Haji Abba
Excerpt:
cutchi memon - will-bequest for dharma-kriya (religious ceremonies) of the death of the testatrix-bequest valid-legacy-contingent event-marriage of legatee-legatee marrying in the lifetime of testatrix -legacy not valid- indian succession act (xxxix of 1925), section 128.;a testatrix of the cutchi memon caste directed by her will : ' as to whatever may remain over, the same shall be spent in my name for other (and) further religious ceremonies in connection with my (death) (dharma-kriya) ' :--;on a construction of the clause, (1) that the ceremonies to be performed in connection with her death were those known as yearly anniversaries which recurred from year to year in perpetuity ;;(2) that the bequest was not vague for uncertainty, for religious ceremonies connected with death had a.....mirza, j.1. this is a suit by three of the legatees under the will of one fatmabai, widow of abdulla haji dawood, against the proving executor of the will and other legatees and heirs and legal representatives of such legatees as have died since the death of fatmabai for the administration of the estate of the testatrix and for payment to the legatees and the representatives of the legatees such legacies as are provided for by the will. fatmabai died on january 14, 1928, after having made her will on september 10, 1914. two of the executors appointed by the will died in the life-time of the testatrix, defendant no. 1, who is the third executor under the will, obtained probate of it on july 4, 1924. at the date of the will the testatrix owned an immovable property at eipon road. after the.....
Judgment:

Mirza, J.

1. This is a suit by three of the legatees under the will of one Fatmabai, widow of Abdulla Haji Dawood, against the proving executor of the will and other legatees and heirs and legal representatives of such legatees as have died since the death of Fatmabai for the administration of the estate of the testatrix and for payment to the legatees and the representatives of the legatees such legacies as are provided for by the will. Fatmabai died on January 14, 1928, after having made her will on September 10, 1914. Two of the executors appointed by the will died in the life-time of the testatrix, Defendant No. 1, who is the third executor under the will, obtained probate of it on July 4, 1924. At the date of the will the testatrix owned an immovable property at Eipon Road. After the date of the will she acquired another immoveable property at Malad. By a Judge's order dated October 1, 1928, the plaint and proceedings were ordered to be amended by making the Advocate General as representing public charities a party defendant to the suit. Pursuant to that-order the Advocate General was made defendant No. 11 in the suit and the plaint and proceedings were amended on October 4, 1928.

2. The Advocate General has filed no written statement and submits himself to whatever decree or order the Court may consider fit to pass. Defendant No. 1, as the proving executor of the will, also submits himself to the orders of the Court. Defendants Nos. 2 and 10 are sued in their respective representative capacity as the heirs and representatives of two deceased legatees-Jan Mahomed Abubakkar, a son of defendant No. 2 who is the same person as defendant No. 1 but in a different capacity, and Abdulla Abubakkar, another son of defendant No. 2 and the husband of defendant No. 10. They have filed no written statement, but have appeared by counsel and submit themselves to the orders of the Court. Defendants Nos. 3 and 4 also submit themselves to the orders of the Court. The remaining defendants are not represented in this case. Out of the several issues raised in the case the Court was invited to try issues Nos. 1,2,4, and 7 first. The issues relate to the residuary clause in the will which as translated is as follows :

3. After (directions) as (stated) above shall have been carried out, as to whatever may remain over, the same shall be spent in my name for other (and) further religious ceremonies in connection with my (death).

3. It is submitted on behalf of the Advocate General that the residue bequeathed is the residue of the whole estate left by the deceased including the Malad property and that the bequest is valid under the Mahomedan law. Defendant No. 1 submits that the bequest comprises the residue of the whole estate and is valid in law, but only as a private charity and not as a public trust. It is submitted on behalf of defendant No. 4 that the residue does not comprise the Malad property but is to be restricted to the properties specifically mentioned in the will and that the bequest to charity contained in this clause is void for uncertainty. Mr. Shavaksha has stated that defendant No. 4 intends to apply the residue of the estate which she may get as an heir-at-law of her deceased son to the purposes mentioned in this clause as a matter of moral obligation devolving on her. Defendant No. 4 is the mother of one Abdul Kadar Abdulla Haji Dawood and the now surviving co-widow of the deceased. Abdul Kadar having survived the deceased was her sole heir according to Hindu law by which law the succession to the deceased is governed. It was urged before me by Mr. Kania on behalf of defendant No. 1 that Abdul Kadar had prior to his death signed a declaration under the Cutchi Memons Act that he was to be governed in all matters of succession by the Mahomedan law. That circumstance, in my opinion, would be immaterial as succession to the deceased would be governed by the law which is applicable to her and not the law which is applicable to the deceased. Change of religion would not disqualify a person from inheriting to another belonging to a different faith. Abdul Kadar having died if succession to him is to be governed by the Mahomedan law it is conceded that defendant No. 4 as his mother would be his sole heir. It was contended, however, that if Abdul Kadar died a Cutchi Memon leaving a will defendant No. 4 must prove that she is entitled to represent the estate of Abdul Kadar under that will. Defendant No. 4 has obtained probate of the will which was oral and is prepared to produce the probate if necessary. Under the terms of that will the deceased Abdul Kadar after having given a legacy of rupees one lac to one Mumtaz Begum, who was his kept mistress, constituted his mother defendant No. 4 his heir and residuary legatee. The subject-matter of this will was before me in a case I tried about two years ago in which the legacy of rupees one lac was claimed on behalf of an illegitimate infant daughter of the deceased Abdul Kadar by the said Mumtaz Begum as a gift made by Mumtaz Begum to her. Defendant No. 4 is entitled by virtue of her being the residuary legatee under the will of Abdul Kadar as well as by her having obtained letters of administration with the will annexed to represent the estate of Abdul Kadar in this case and receive as on intestacy whatever residue may not have been validly disposed of under the will of her co-widow Fatmabai.

4. The original will of the deceased is in the Gujarati language. The words appearing in the residuary clause are (Dharmakriya). They are translated by the official translator as 'religious ceremonies.' It was contended by Mr. Shavaksha, on behalf of defendant No. 4, that the correct translation of these words should be 'ceremonies of the nature of Dharma.' I asked Mr. Mehta, whose mother tongue is Gujarati and who is an interpreter attached to this Court, to translate the last clause of the will in Court. His translation agrees with the official translation. In his opinion the word 'Dharma' standing in this clause in the context in which it is used can mean only religion and 'kriya' means ceremonies, and the context in his opinion makes it clear that the two words taken together relate to religious ceremonies in connection with the death of the testatrix. I invited Mr. Shavaksha to cross-examine the interpreter if he did not agree with the view expressed by him; but Mr. Shavaksha did not wish to cross-examine the interpreter. In the absence of any other translation of this clause I must accept the official translation as correct.

5. Mr. Shavaksha has urged that the use of the word 'Dharma' in this clause of the will would bring it within the ruling of their Lordships of the Privy Council in Runchordas Vandrawandas v. Parvatibhai (1899) L.R. 28 I. A. 71 of their judgment their Lordships refer to the meaning of 'Dharma' as given in Wilson's Dictionary where it is defined to be law, virtue, legal, or moral duty. In their Lordships' opinion the fact that the word is capable of such various meanings would make a trust in respect of it vague and uncertain and comprise objects which may be charitable as well ' as those which may not be charitable but only philanthropic. Their Lordships at page 80 refer to the leading case of Morice v. Bishop of Durham (1804) 9 Ves. 399 where Lord Bldon L. C. has observed :

As it is a maxim that the execution of a trust shall be under the control of the Court, it must be of such a nature that it can be under that control so that the administration .of it can be reviewed by the Court, or if the trustee dies the Court itself can execute the trust-a trust therefore which in case of maladministration could be reformed and a due administration directed, and then, unless the subject and objects can be ascertained upon principles familiar in other cases, it must be decided that the Court can neither reform maladministration nor direct a due administration.

6. Their Lordships cite also In re Macduff: Maoduff v. Macduff [1896] 2 Ch. 451 where Lindley L. J., refering to Lord Eldon's remarks, says (p. 463) : ' That is the principle of that case, and has been enunciated or repeated from time to time.' In the case before Lord Lindley the words of bequest were 'purposes charitable or philanthropic.' In their Lordships' opinion the language of Lord Bldon's judgment would apply as strongly, if not more so, to dharam as to the words used in the English cases. In their Lordships' opinion the objects which can be considered to be meant, by the word dharam are too vague and uncertain for the administration of them to be under any control.

7. Mr. Shavaksha relies also upon the judgment of Mr. Justice Crump in Mariambi v. Fatmabai (1928) 31 Bom. L.R. 185 where the testator had directed his executor to apply one-third of his net estate towards his death ceremonies, and for 'Dharma Khairat vigere.' The learned Judge held that the words 'Dharma' and 'Khairat' were practically synonymous, the first being derived from the Sanskrit and the second from the Arabic, and that it would be very difficult to say what the objects were to which the property was to be applied. In the learned Judge's view the difficulty was not diminished by the addition of the word 'vigere' meaning 'et cetera.' On those grounds the learned Judge held that the bequest . of the one-third was void for uncertainty.

8. The words in the clause before us, ' for other (and) further' relate to the provision in clause 2 of the will whereby the testatrix directs that the executors shall make a proper outlay in connection with her death ceremonies. The ceremonies connected with the death of a Mahomedan can only be religious ceremonies in the nature of reading of the Koran, reciting the Fateha, and distributing alms and food in the name of the deceased among the persons more particularly the poor and the needy ones who assemble on such occasions and participate in the ceremonies. The provision made in clause 3 is for religious ceremonies connected with the death of the testatrix which are other than and in addition to those which the executors are directed under clause 2 to perform. Clause 3 comes into operation only after the directions contained in the previous clause in respect of the death ceremonies and payment of legacies have been carried out or secured. The executors are allowed by the law a year's time within which to carry out the directions of the will of which they are executors. Thus 'other (and) further' religious ceremonies in connection with the death of the deceased would relate not to what are regarded as the ceremonies immediately connected with the death, viz., removal of the corpse, its burial, the 3rd day ceremony, the 7th day ceremony, the 21st day ceremony, the 40th day ceremony, and possibly also the first sixth monthly ceremony and the first anniversary. The intention of the testatrix to be gathered from the will in respect of the directions contained in clause 3 seems to be that the ceremonies to be performed in connection with her death are those known as yearly anniversaries which recur from year to year in perpetuity.

9. Celebration of the death anniversaries of the settlor and of the members of his family was recognised as a valid object of wakf in Biba Jan v. Kalb Husain I.L.R. (1908) All. 136 and in Sayid Ismail v. Hamedi Bdgum (1921) 6 P. L. J. 218 Reading the Koran in public places, and also at private houses was recognised as a valid object of wakf in Mazhar Husain Khan v. Abdul Hadi Khan I.L.R. (1911) All. 400 Performance of the annual Pateha of the settlor and of members of his family was recognised as a valid object of wakf in Luchmiput Singh v. Amir Alum I.L.R. (1882) Cal. 176 in Phul Ghand v. Akbar Yar Khan I.L.R. (1896) All. 211 in Biba Jan v. Kalb Husain I.L.R. (1908) All. 136 in Mazhar Husain Khan v. Abdul Hadi Khan I.L.R. (1911) All. 400 (Stanley C. J. dubitante); in Mutu Ramchadan Chettiar v. Vava Levvai Marakayar (1916) L.R. 44 I. A. 21 and in Salebhai Abdul Kader v. Bai Safiabu 13 Bom. L.R. 1025

10. Mr. Justice Crown in Haji Abdul v. Haji Hamid (1903) 5 Bom. L.R. 1010 has held that a bequest by a Cutchi Memon for the anniversary ceremonies of himself and his wife and parents for Maulud Sheriff and for Agiari Hajrat Pir is not void. At page 1015 the learned Judge sets out the evidence on this point which he accepts. The finding is:

Among the Memons fakirs are feasted on the day of the month on which the person whose ceremony is performed died. It is believed it tends to the religious benefit of the person in whose behalf it is performed. Mowlud Sheriff has reference to a recital of the praises of Mahomed accompanied by a distribution of sweets and food to those present. The money is spent as the person performing the ceremony thinks proper-on sweats or feasting. The ceremony of Agiari Hajrat Pir is of the same nature and the money is spent in the same way. The food is distributed indiscriminately to the poor and well-to do Mahomedans who are present. In most cases these ceremonies are performed at private houses, but if performed at a mosquo the expenditure is on a larger scale and includes a fee for the learned man who performs the recitation and the cost of flowers and illuminations.

11. Mr. Shavaksha has relied on the case of Kaleloola Sahib v. Nuseerudeen Sahib I.L.R. (1894) Mad. 201. In that case the learned Judges in reversing the judgment of Mr. Justice Davies state that in the absence of any express authority showing that a dedication for ceremonies at a private tomb-and for that purpose only-is valid under Mahomedan law, the deed creating such a wakf should not be upheld. They remark (p. 213) :

The observance of these ceremonies may be considered by the Mubammadans as a pious duty, but it is certainly not one which seems to fall within any definition of a charitable duty or use. These observances can lead to no public advantage, even if they can solace the family of the lady herself. The case bears a close analogy to one in which a Roman Catholic has devised property for masses for the dead, which has been hold to be invalid in India on grounds of public policy irrespective of any territorial law, Colgan v. Administrator -General of Madras I.L.R. (1892) Mad. 424. A similar bequest in a Chinese will has also been held to be invalid in an appeal to the Pr ivy Council from the Supreme Court of the Straits Settlements, Teap Cheah Neo v. Ong Cheng Neo (1875) L.R. 6 P. C. 381. Had it been shown that such perpetuities were recognised as valid under Muhammadan law, we should have felt constrained to uphold the deed ; but in the absence of such proof, we think the general rule of public policy should prevail.

12. At page 211 the learned Judges stated that the objects indicated in the deed were of a religious character.

13. Kaleloola Sahib v. Nuseerudeen Sahib was decided before the Mussalman Wakf Validating Act, 1913, was enacted. That Act defines, wakf as meaning: 'the permanent dedication by a person professing the Mussalman faith of any property for any purpose recognised by the Mussalman law as religious, pious or charitable.' Under this definition not only objects which are charitable but those which are religious or pious are recognised as ralid objects of a wakf. The religious ceremonies in connection with the death of the testatrix would be recognised by the Mahomedan jurists as religious or pious objects. Having regard to the definition of ' wakf ' in this Act the ruling in Kaleloola Sahib v. Nuseerudeen Sahib, on the subject of religious ceremonies in connection with the tomb of a person who has not attained the dignity of being regarded as a saint, does not appear any longer to be an authority on the point it determines.

14. Clause 3 of the will does not specifically state whether the 'other (and) further'' religious ceremonies in connection with the death of the testatrix are to be performed in perpetuity or not. That would depend upon what the residue is to be. It can be urged that as the testatrix at the date of the will was not sure what the value of the residue of her estate would come to, she has made no specific provision for the residue being applied in perpetuity to the objects mentioned in the clause. If the residue left over were small the whole corpus may not suffice beyond defraying the expenses of one or two such ceremonies. In such a case it would be a sadaqa and not a wakf. A sadaqa would be a charitable bequest whereby the corpus itself would be consumed in applying it to the charitable object, e.g., a bequest of Es. 100 to feed the poor. The intention to be gathered from clause 3 seems to be that whatever amount is left over as the residue in the hands of the executors is to be applied for the religious ceremonies set out in the clause. That would seem to vest a discretion in the executors whether to apply any part of the corpus to these objects or to tie up the corpus in perpetuity and apply only the income. In the former case it would be a sadaqa, in the latter a wakf. If the bequest is valid the matter could be adjusted between the Advocate General and the executor after it is ascertained what the amount of the residue left over is.

15. The dedication made in clause 3 of the will is at least partly that of money. Prior to the Wakf Validating Act there were conflicting rulings of various High Courts in India as to whether a valid wakf could be made of money. Our Court in common with the High Courts of Calcutta and Madras inclined to the view that a wakf cannot validly be made of moveable property unless the moveable property was accessory to some immoveable property of which wakf was being made or unless the wakf of moveables was allowed by custom : see Bai Fatmabai v. Gulam Husen : (1907)9BOMLR1337 ; Kulsom Bibee v. Golam Hossein Cassim Ariff (1905) 10 C. W. N. 449 and Kadir Ibrahim Rowther v. Muhmned Mahwmadulla Rawther I.L.R. (1909) Mad. 118 The High Court of Allahabad had held that a wakf of moveables would be valid oven apart from the considerations Bet out in the rulings of these three Courts : see Abu Sayid Khan v. Bakar Ali I.L.R. (1901) All. 190. In my judgment the controversy is now set at rest by the definition of wakf under the Wakf Validating Act, 1913, which speaks of the permanent dedication of ' any property.' ' Any property' would include moveable as well as immoveable property.

16. It is clear from clause 3 of the will that the dedication of the residue is a permanent dedication. The clause, in my opinion, is not vague for uncertainty. 'Religious ceremonies connected with death have a definite meaning and the objection that the use of the word 'Dharma' makes the object uncertain cannot, in my opinion, be sustained in respect of such ceremonies. The bequest contained in this clause, in my opinion, is valid.

17. The next point that arises for consideration is whether the bequest should be restricted to the residue left over from the properties described in the will or can be said to comprise the residue of the -whole estate left over by the deceased including the Malad property. In this connection it is necessary to remember certain general principles that attach to wills. A will speaks from the date of the death of the deceased. There might be accretions to or diminutions from the property of the testator as they existed at the date of the will. Another principle to remember in this connection is that a testator is presumed to dispose of all the property that the may die possessed of and not only what he possessed at the date of the will. When specific legacies are given under the will they would be governed by the language of the will. When the residue is given by way of legacy the language of the will will govern it as to whether it is the residue left over from a particular property or fund only or is the general residue of the estate. At the date of the will the testatrix owned only one immoveable property. That fact she recites in clause 2 of the will. Clause 2 provides that the executors are to sell that property and out of the moneys that may be realised from the sale and out of the moneys that may be realised in respect of whatever furniture and household things and articles there may be which also are to be sold by the executors, the executors shall defray certain expenses and pay out certain legacies. Clause 3 states that after the directions as stated above (meaning in clause 2) shall have been carried out, as to whatever may remain over the same shall be spent in a particular manner.

18. Mr. Shavaksha has contended, that ' as to whatever may remain over ' in clause 3 has reference only to the sale proceeds of the Ripon Road property, furniture and household things and articles. Mr. Shavaksha has relied upon Theobald on Wills, 8th Edn., p. 247, where the distinction between a general and a particular residue is stated as follows:-

Where the testator deals with particular property, and then gives the rest or remainder generally without defining it, the proper inference may be that only the residue of the particular property is intended. It is a question of construction.

19. Of the authorities cited in support of this preposition Mr. Shavaksha has relied only upon two. The first of these is the case of Ommanney v. Butcher (1823) 1 T. & R. 260. There the testator had directed by his will that certain books, jewels, plate and household furniture were to be sold by the executors and certain payments made out of the sale proceeds. The will them proceeded : 'In case there is any money remaining I should wish it to be given in private charity.' Other parts of the will showed that certain disposals were made by the testator out of his personal estate consisting of a leasehold estate, money in funds and a balance in cash leaving an undisposed residue out of that estate. It was held that these were not comprehended under the residuary clause, which was confined to the residue of the produce of the articles which the testator had directed to be sold. The second case relied on by Mr. Shavaksha is that of Jull v. Jacobs (1876) 3 Ch. D. 703. In that case the testator, after disposing specifically of most of his property, had enumerated certain funds out of which ho directed that his debts, funeral and testamentary expenses should be paid and had added : ' the remainder to be equally divided to my surviving children.' In construing the will it was held that, considering the general frame of the will, only what was left of the particular funds passed under that clause. The wills in these two cases had set out the other properties the residue of which it was held did not pass under the residuary clause which the Court had to construe. In the will before me the language of clause 3 by itself does not show that only the residue of the sale-proceeds of the properties mentioned in clause 2 was to be applied to the objects mentioned in clause 3. The language of clauses is general. It is ' what-ever may remain over.' No doubt by reference to clause 2 of the will it would appear that the testatrix possibly contemplated the residue to be the residue of the sale proceeds. This intention does not appear to be clearly expressed anywhere in the will. The intention appearing from the will seems to be to dispose of the whole estate of the testatrix. A mere recital as to what that estate consisted of at the data of the will would not future acquisitions from the disposals contained in the will. The object of the testatrix to be gathered from the will appears to have been to benefit certain relations and dependents. Her nearest relation who was to be her heir was her step-son who was otherwise well provided for. He is given a legacy of Rs. 2000 on the occasion of his marriage. After payments of the death expenses, debts and legacie the testatrix intended that whatever she might die possessed of should be spent in charity for the benefit of her own soul. In the absence of a clear intention expressed to the contrary the general presumption should, in my judgment, prevail that the testatrix intended to dispose of by her will the whole estate she died possessed of. The residuary bequest, in my opinion includes the Malad property and whatever other property the testatrix may have left including the Bipon Road property, the furniture and household things and articles mentioned in clause 2.

20. The case was then heard on the other issues arising in the case, and the following judgment was delivered on April 9, 1929.

Mirza, J.

21. When this suit first came on for hearing before me on the application of the parties I tried certain issues and gave my findings on them. The parties then desired to have time to consider their respective positions in view of my findings and endeavour to come to a settlement with the Advocate General, and in case such settlement was not feasible, the plaintiffs also desired to consider whether they should make the Official Assignee a party to the suit. The matter not having been settled between the parties the plaintiffs intimated to the Official Assignee whether he would like to be substituted in the suit for plaintiff No. 2. The Official Assigee replied that ho would actively prosecute the suit if plaintiff No. 2 agreed to indemnify him against all costs he may have to pay failing which ha would abide by the orders of the Court. The correspondence which took place has been put in and is marked collectively Exhibit B. The Official Assignee has not been added as a party to the suit.

22. The main question now to consider is the validity of the various legacies given by the will. The Advocate General as the party interested in the residue has challenged some of these legacies as being invalid in law. It is conceded by Mr. Bastavala that some of the legacies set out in the will are valid and may be given effect to. These are :-

(1) A legacy of Rs. 1000 to defendant No. 3.

(2) A legacy of Rs. 2000 to defendant No. 1.

(3) A legacy of Es. 1000 to one Jan Mahomed Abubakar who died after the testatrix leaving defendant No. 2 as his heir and legal representative.

(4) A legacy of Rs. 1000 to one Abdulla Abubakar who died sifter the testatrix leaving defendants Nos. 2 and 10 as his heirs and legal representatives.

(5) A legacy of Bs. 3 00 to defendant No. 8. And

(6) A legacy of Es. 100 to defendant No. 9.

23. Plaintiff No. 1 is given a legacy of Es. 1000 in the following terms : ' To Abdul Sakur Haji Rahimtulla Daud on the occasion of his marriage shall be paid in my name Es. 1000,' The legacies to plaintiffs Nos. 2 and 3 are also for Es. 1000 each and are in the same terms. It is admitted by the parties that plaintiff No. 1 married in 1917 in the life-time of the testatrix and so did plaintiff No. 8. It is also not disputed that plaintiff's. 2 first married on May 7, 1925, and a second time on January 2, 1929. Both these marriages were subsequent to the death of the testatrix. Plaintiff' No. 2 has alleged that his first marriage on May 7, 1925, was illegal and relies on his subsequent marriage on January 2, 1929, as entitling him to the legacy. Plaintiff' No. 2 was adjudicated insolvent on April 6, 1926, and obtained his discharge on August 16, 1927. If his first marriage on May 7, 1925, entitles him to the legacy under this will the amount would go to the Official Assignee in whom it became vested by virtue of the insolvency. The second marriage of plaintiff No. 2 on January 2, 1929, was subsequent to the date of plaintiff No. 2's discharge in the Insolvency Court and if the legacy has become payable to him on account of that marriage it would belong to him personally.

24. The legacies given by the will to the three plaintiffs appear all to be in the nature of contingent legacies which become payable if and when a certain event, viz., the marriage of the legatees, takes place. The testatrix was a Cuchi Memon Mahomedan. If the interpretation of this will is to be governed by the Mahomedan law, the bequests would be void : see Baillie's Mahomedan Law, Vol. I, pp. 515-516. On the other hand, if the will is to be interpreted according to Hindu law the bequests would not be invalid merely on the ground that they are to take effect on the happening of a contingency. In Advocate-General of Bombay v. Jimbabai I.L.R. (1915) 41 Bom. 181 Mr. Justice Beaman had before him the case of a will made by a Cutchi Memon and the contention was that the provisions of the Muhammadan law applied to it. The learned Judge in a well considered judgment came to the conclusion : (1) that the Cutchi Mentions had acquired by custom the power to dispose of the whole of their property by will ; (2) that it was not proved in the case before him, and never had been proved affirmatively before, that the Cutchi Memons had ever adopted as part of their customary law the Hindu law of the joint family, as a whole, or the distinction existing in that law between ancestral family, and joint family and self-acquired property; (3) that Cutchi Memons were subject by custom to the Hindu law of succession and inheritance as it would apply to the case of an intestate separated Hindu possessed of self-acquired property and no more; and (4) that the will challenged was a good and valid will in all respects. At page 206 of the judgment, the learned Judge has discussed the question whether wills made by Cutchi Memons are to be interpreted by the Mahomedan or the Hindu law, and has come to the conclusion that the wills made by Cutchi Memons should be interpreted for the purpose of ascertaining the validity or otherwise of bequests therein contained according to Mahomedan law and not the Hindu law. The point directly before the learned Judge in that case was whether a Cutchi Memon had the power of disposing of the whole of his property by will, or whether that power was restricted to one-third of the estate only the testator having left heirs whose consent to the testamentary disposal beyond one-third had not been obtained. The will did not contain any contingent bequest upon which the interpretation of the Court was sought. The words in the judgment are wide enough to include the case of a contingent bequest. Had that point been directly before the learned Judge I should be bound to follow the decision, as was laid down by our Appeal Court in the case of Tyabji Dayahhai & Co. v. Jetha Devyi & Co. I.L.R. (1927) 51 Bom. 855 In my opinion, however, the remarks of the learned Judge appear to be in the nature of obiter dicta; and their application to the case of a contingent bequest under the will of a Cutchi Memon would lead to certain inconsistencies and be otherwise undesirable. A convenient mode of regarding the legal position of a Cutchi Memon is to regard him while alive as being governed by the Mahomedan law and after his death by the Hindu law. A will speaks from the date of the death of a person. The heirs under the two systems of law are different. If inheritance and succession to a Cutchi Memon are to be governed by the Hindu and not the Mahomedan law, I see no forcible reason why interpretation of his will should not be governed by the law which would govern him in case of intestacy. The learned Judge held in Jimbabai's case that the Cutchi Memons have acquired by custom the power of disposing of the whole of their property by will. By that is meant that many instances were produced before the Court in which Cutchi Memons had made wills disposing of the whole of their property and those wills had not been challenged on that account. The Court's attention was not directed to any details in such wills such as contingent bequests. If Cutchi Memons have by custom acquired the power of disposing of the whole of their property by will contrary to the provisions of the Mahomed an law, it is not easy to follow why such power of disposal should be restricted by any rules of interpretation which are applicable to Mahomedan wills only. One of the rules of the Mahomodan law is that a Sunni Mahomedan cannot make a bequest in favour of an heir without the consent of the co-heirs being given in that behalf after his death. If this rule of the Mahomedan law is to be made applicable to the will of a Cutchi Memon, is the heir to be determined with regard to the Mahomedan or the Hindu law Whichever law may be found applicable, would the provisions as regards the consent of the co-heirs be obligatory before such a bequest can be given effect to If this provision of the Mahomedan law were to be applied to the wills of Cutchi Memons it would materially curtail the right which the Cutchi Memon is held to have acquired of disposing of the whole of his estate by will and there would be an inconsistency in the assertion that a Cutchi Memon may dispose of his whole estate without the consent of his heirs yet he may not dispose of any part of his estate in favour of an heir without the consent of the other heirs given after his death. With great respect, having regard to these and other difficulties in the way of adopting the proposition as one which should apply to the wills made by Cutchi Memons, I am unable to accept it.

25. With regard to the legacies in favour of plaintiffs they are made contingent on the event of their respective marriages taking place. The marriages contemplated in the will, in my opinion, were the first marriages of the plaintiffs which would occur after the will. Mr. Maneksha has argued that both the plaintiffs Nos. 1 and 3 have satisfactorily fulfilled the condition imposed under the will by getting married although that occurred in the lifetime of the testatrix. He relies upon Section 128 of the Indian Succession Act, illustration (6), He has relied also on the case of Park, In re: Bott v. Chester [1910] 2 Ch. 323 and on Jarman on Wills, Vol. II, (6th Edn.), page 1534. The section of the Indian Succession Act and the authorities relied on, in my opinion, would not apply to the case of plaintiffs Nos. 1 and 3. The legacies do not appear to be given to them absolutely with a condition attached that the plaintiffs should get married. The legacies arc to become payable only if and when they marry. As this contingency occurred in the. life-time of the testatrix theirs is no room left now for plaintiffs Nos. 1 and 3 to claim the legacies given to them under the will which speaks only from the date of the death of the deceased. The testatrix died on January 14, 1923.

26. With regard to plaintiff No. 2 the contingency contemplated by the will has taken place inasmuch as he married after the death of the testatrix. Ho would be entitled to his legacy of Rs. 1000 with interest at six per cent, from January 2, 1929, if that is to be regarded as his first legally contracted marriage. The amount, however, should not be paid over to him without notice to the Official Assignee. The Official Assignee should be allowed a period of three months after such notice in which if necessary to take such stops as he may be advised to establish his claim to this sum by an action at law.

27. It has been contended that defendant No. 1 should be ordered to render an account on the footing of wilful default. It appears that defendant No. 1 has not carried out the testatrix's direction in the will to sell off her property and to pay the legacies out of the sale proceeds. Defendant No. 1 obtained probate on July 4, 1924, but did not file his accounts until after the institution of this suit. Until those accounts are investigated it cannot be properly ascertained whether he has or has not committed wilful default. The Commissioner on going through the accounts will be in a better position than the Court now is to determine whether there has or has not been wilful default on the part of defendant No. 1. I would reserve this point for the Commissioner who may, at any stage of the accounts before him, if he is satisfied that such a direction is necessary or desirable from the Court, make a separate, report and sand the case down to this Court for a direction that accounts be taken on the footing of wilful default.

28. With regard to the bequests in favour of defendants Nos. 1 and 3 the deceased Jan Mahomed Abubakar and the deceased Abdulla Abubakar who are represented by their heirs defendant No. 2 and, defendants No. 2 and 10 respectively, and defendants Nos, 8 and 9, there is no dispute that the legacies are valid, and are payable to them respectively. Those legacies would each carry interest at six per cent, from January 14, 1924.

29. Abdul Kadar Abdulla Haji Paud, to whom a bequest of Es. 2,000 is made on the occasion of his marriage, died without marrying. The bequest to him, therefore, has lapsed. Shaharabai, who is represented by defendant No. 5, is said to have died unmarried. .Defendant No. 5 has not appeared to controvert that statement, The bequest of Es. 200 in her favour has, therefore, lapsed. Defendants Nos. 6 and 7, it is stated, are not yet married. Provision will have to be made for their bequest of Rs. 500 and TOO respectively to meet the contingency of their marrying and becoming entitled to the same.

30. Mr. Bastavala does not dispute the legacy in favour of defendant No. 1 who is executor of the will.

31. It is not necessary that all the parties who have appeared in this suit should appear before the Commissioner. The party who is substantially interested in the taking of accounts is the residuary legatee the Advocate General as representing public charitable trusts. It would be sufficient if the Advocate General and the executor defendant No. 1 appear before the Commissioner. I give the conduct of this case from this day to the Advocate General. The costs of the parties other than defendant No. 1 to come out of the estate, the costs of the Advocate General being as between attorney and client. The costs of defendant No. 1 are reserved.

32. The suit is referred to the Commissioner to take the usual administration accounts in the light of my observations in this judgment. Further costs and directions reserved.

33. Rukhiabai appealed (Appeal No. 35 of 1929). But the- parties came to certain terms by which the decree appealed from was somewhat modified. A consent decree was accordingly passed by Marten C. J. and Blackwell J. on December 20, 1929.


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