1. On the 5th instant, the petitioner, Sherbanoo, through her counsel, obtained a rule nisi in the nature of a writ of habeas corpus, calling upon Ajbai and Ludhabhai Hussam to appear and show cause why they should not deliver up the minor Ebrahim, alleged to be improperly detained by them, to the petitioner. This rule was argued before me on the 12th instant, when the respondents who appeared by counsel submitted certain considerations to the Court.
2. Mahomedbhai Hassam, a Shiah Mahomedan, died on the 27th of November 1908, leaving, him surviving, the petitioner, his widow, and a minor son named Ebrahim. This minor was born on the 12th of July 1903, and is now about five years and four months old. The respondent Ajbai is the grand-mother of the deceased Mahomedbhai and the respondent Ludhabhai is his brother. The deceased, at the time of his death, was living with his minor son, with the respondents. The petitioner was not living with her husband for about two years previous to his death. After Mahomodbhai's death, the minor Ebrahim remained with the respondents. The petitioner, claiming to be entitled to the custody of the minor as his mother, called upon the respondents, by her attorneys' letter of the 30th of November 1908, to hand over her minor son to her. The respondents through their attorneys declined to comply with her requisition stating the deceased had left a Will, whereby he had appointed his brother Ludhabhai one of the executors thereof and directed that their client Ludhabhai should keep his son Ebrahim with him.
3. On this refusal, the petitioner, Sherbanoo, applied for a rule under Section 491 of the Criminal Procedure Code. On this rule several affidavits were filed but while some of them were being read, counsel for the petitioner and respondents agreed to restrict the discussion to the bare legal question, as to who was entitled to the custody of the minor and it was further agreed that the determination of the question should proceed on the assumption that if the petitioner was in law entitled to the custody of her minor son, there was nothing to disentitle her to such custody. The petitioner bases her claim on the fact that she is the minor's natural mother and as such entitled to the custody of the minor. The respondent Ludhabhai annexes to his affidavit a copy of translation of his brother's Will and claims that under Clause 4 thereof he is entitled to retain custody of the minor son of the testator. The petitioner replies that the Will gives him no such right.
4. The parties are Shiah Mahomedans and their rights must be determined according to Shiah Mahomedan law. Mr. Lowndes for the respondents relied upon several passages in the text books of Mahomedan law and contended that so far as the custody of a boy is concerned, the mother according to Shiah law is entitled to the custody of the infant only until he is weaned and not, as amongst the Sunnis, till he is seven years of age. This proposition of law is correct; see Wilson's Digest of Anglo-Mahomedan Law, Article 449, p. 452, 2nd Edition; but this is only when both parents are alive and there is a contest as to who should be entitled to the custody of a minor son. As against the father, the mother according to Shiah law is entitled to the custody of an infant male child only till he is weaned. Mr. Lowndes, however, relied on these passages and cited them for the purpose of showing that at the time of his death, the father was in law entitled to the custody of the minor Ebrahim and that by his Will he had conferred that right, which he was clearly entitled to, upon his brother and executor, the respondent Ludhabhai. Clause 4 of the Will of Mahomedbhai, as translated on behalf of the respondents, runs as follows:
I recommend my executor, Ludhabai Hassam, to keep with him my son, Ebrahim, who is now of the age of six years; and he should be maintained and educated properly and my executors and trustees should spend Rs. 30 for the same every month.
5. On behalf of the respondent, Ludhabhai, it was contended by Mr. Lowndes that the clause in the Will, I have set out above, amounts in law to the appointment of Ludhabhai as a testamentary guardian of the minor by his father and he submitted that his client as such testamentary guardian was entitled to retain the custody of the minor against the mother. It is quite clear that on the death of a Shiah Mahomedan father, in the absence of any circumstance disqualifying the mother--she becomes entitled as a matter of right to the custody of the person of her minor son--as against everybody, including the father's executor. In Baillie's Digest of Mahomeden Law, Part II, Imamiah, at page 95, it is distinctly laid down as follows: 'But if he should die, the mother has a preferable right over his executor to the custody of both the children.' By both the children here is meant both a male and a female child.
6. The question that arises for consideration is.--Is the testator's brother appointed a testamentary guardian of the minor, Ebrahim, under the Will of the minor's father and is he, as such guardian, entitled to resist the demand of the minor's mother for the custody of her child? Now the words, used in the Gujerati Will, are--Criminal*--which taken literally are correctly rendered in the translation by the expression 'I recommend.' I have very carefully read the Will of the deceased Mahomodbhai and particularly the fourth clause and it appears to me that the testator without intending to appoint or constitute his brother, Ludhabhai, the guardian of his infant son, while giving directions as to what was to be expended for education and maintenance of his minor son, expresses a hope that his executor and brother will, personally look after the same and incidentally uses the words, keep with him my son Ebrahim.'
7. In support of his contention that the words used amount to an appointment as guardian, Mr. Lowndes refers to the cases, mentioned in Simpson On Infants' (at p. 217, second edition), where the words I desire that my son may be under the care of A.B.', 'I expect my father will take care to see my child educated in the Protestant religion' and I request Miss... to take upon herself the management and care of the house and my children', Were held to be sufficient to support the contention that the parties mentioned were appointed testamentary guardians of the infants in question in those cases. As against these cases, Mr. Inverarity relied on a rather ancient case, viz. Edwards v. Wise (1740) Barnard 139, where the very word recommend', that is used in this case, was used and where it was held by the Lord Chancellor that that did not amount to an actual appointment.
8. I do not think it would always be safe to construe a Gujerati Will, made by a Mahomedan in this country, by the analogy of English decisions based on the Will made in the English language. Reading the Will of Mahomedbhai in the original, I am very clearly of opinion that he had no intention whatever to appoint Ludhabhai the guardian of the person of his infant son Ebrahim. Trevelyan, in his book on Minors, discussing the rights of a Mahomedan father to appoint by Will a guardian, at pages 70 and 71, enunciates the law with great clearness. He says: The father cannot by Will interfere with the rights which the mother or other female relations can during her lifetime assert against him, but apparently he can by Will appoint a guardian, who could exercise rights similar to those enjoyed by himself.
It does not appear that apart from a specific appointment as guardian, the father's executor can act as the guardian of the persons of the children, and so far as Shiahs are concerned there is authority that he has no such power as against the mother.
9. The authority, referred to here, is Baillie's Digest, part II, p. 95. Thus it appears that in Mahomedan law, the mere use of words in a Mohomedan's Will, from which an appointment could be spelt out by implication, is not sufficient to deprive the mother of infant children of the right she undoubtedly has to have the possession and custody of the persons of such children. There must be a specific appointment and it is perfectly clear that in Mahomodbhai's Will, there is no approach to anything like specific appointment of his brother, Ludhabhai, as the guardian of his minor son Ebrahim.
10. It is a very interesting question whether a Mahomedan could, by his Will, deprive his widow of the custody of her infant children by appointing by his Will some one else as their guardian without any just cause and whether an arbitrary and capricious direction in the Will, depriving the mother of the custody of her infant children, would be enforced by our Courts. The question, however, does not arise in this application. The mother is clearly entitled to the custody of her minor children on the death of their father. In this matter it is to be taken as proved that there is nothing to disentitle her to the custody of her minor son, if in law she is found entitled to such custody. I hold that Ludhabhai is not appointed specifically the guardian of the person of the infant under his brother's Will and that he is not entitled to resist the mother's claim to the custody of her infant son.
11. Under the circumstances, I direct that the minor Ebrahim should be delivered over to the custody of his mother the petitioner Sherbanoo.
12. The attitude adopted by the respondents was most correct and proper. Ajbai took no part whatever at the argument of the rule, beyond formally appearing by the same counsel who appeared for Ludhabhai. The respondent Ludhabhai was bound to appear and place before the Court the fact that there was the Will and there were certain directions in the said Will. I order that the costs of the respondents as well as those of the petitioner be paid out of the estate of the deceased, Mahomedbhai Hassam. Costs of all parties to be taxed as between attorney and client.