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Azimunnisa Begum Vs. Sirdar Ali Khan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 893 of 1923
Judge
Reported in(1927)29BOMLR434
AppellantAzimunnisa Begum
RespondentSirdar Ali Khan
DispositionSuit dismissed
Excerpt:
indian succession act (xxxix of 1925), section 211-prabate of will-issue of citation-minor heir-executor, title of, over whole of testator's property-aggrieved heirs have personal remedy against executor-transfer for value without notice from executor-mahomedan law-fateha and urs ceremonies are religious objects-mortgage-conveyance-term that mortgage money will not be recalled if covenants other than payment of principal observed.;in order that the probate of a will, which is against the interest of an infant, should be binding on the infant the citation if issued should be served upon a duly appointed guardian of the infant. the issue of a citation in such cases is discretionary and not obligatory. want of citation will not by itself vitiate the probate but in the absence of a citation.....mirza, j.1. [his lordship after setting out the facts as above proceeded:] the plaintiff's case is that she was a minor at the date of her father's death being his youngest child and no citation was served on her, nor any gurdian ad litem appointed, when the proceedings for probate were instituted by the executors. it appears from the contents of the will that the youngest child of the testator was a girl and had not yet been named. there would be force in the plaintiff's contention if she were seeking to set aside the probate of the will on the ground that it was not the last will and testament of the deceased. in order that the probate of a will which is against the interest of the infant should be binding on the infant the citation if issued should be served upon a duly appointed.....
Judgment:

Mirza, J.

1. [His Lordship after setting out the facts as above proceeded:] The plaintiff's case is that she was a minor at the date of her father's death being his youngest child and no citation was served on her, nor any gurdian ad litem appointed, when the proceedings for probate were instituted by the executors. It appears from the contents of the will that the youngest child of the testator was a girl and had not yet been named. There would be force in the plaintiff's contention if she were seeking to set aside the probate of the will on the ground that it was not the last will and testament of the deceased. In order that the probate of a will which is against the interest of the infant should be binding on the infant the citation if issued should be served upon a duly appointed guardian of the infant. The issue of a citation in such cases is discretionary and not obligatory. Want of citation will not by itself vitiate the probate: but in the absence of a citation duly served upon a properly appointed guardian ad litem of the infant it would be open to the infant on attaining majority within the period allowed by the Indian Limitation Act to institute proceedings for the revocation of the grant of probate. The plaintiff, however, does not contend that the will is not the last will and testament of her father. She complains that the probate was applied for and obtained from the District Judge at Thana under cover of secrecy. She has not led any evidence to substantiate the allegation that there was anything clandestine about the obtaining of the probate or of the orders under it from the Thana Court. The plaintiff's contention is that the will is ab initio void. By this contention she does not mean that the will is void on account of its being a forgery or of having been obtained by fraud, coercion or undue influence, but what she means is, that all the provisions of the will are invalid under the Mahomedan law, and that being so, the executor had no power to act in any manner so as to bind the interests of the plaintiff in the properties of her father, which had descended to her by the right of inheritance.

2. The provisions of the will to which exception is taken are, broadly speaking, as follows :-

(1). The testator purports to disinherit his female issue but gives each of them a life annuity of Rs. 500 per month for her maintenance and provides for each of them Rs. 50,000 for her marriage expenses. The executors were directed not to sell or alienate any of the immoveable properties, which were all to be divided equally among the sons of the deceased, subject to the payment of the life annuity to the daughters and their marriage expenses. The properties were purported to be settled 'in entail' on the sons. It is difficult to understand what the testator meant by this expression, but reading the will as a whole, it appears that it was his intention to create a family settlement in the nature of a wakf-alal-aulad in favour of his sons and their male descendants. There is no provision made in the will on failure of the sons and their descendants for the property to go to charity. In addition to this defect the family settlement is purported to be created at a date prior to the Wakf Validating Act of 1913. It must be held, therefore, that the settlement is governed by the interpretation of the Mahomedan law as laid down under the decisions of the Privy Council in that behalf prior to the Act. The Mussalman Wakf Validating Act of 1913 is not a retrospective but only a prospective Act and the principle of law enunciated by the Privy Council applies to all such wakfs created before that Act came into operation, Under that interpretation of the Mahomedan law the family settlement created by the will is clearly invalid. If the disposal is not to be regarded as a family settlement, but as a disposal in favour of the sons whose life estates automatically become absolute estates under the Sunni Hanafi Law, the disposal would then be invalid as being bequests in favour of heirs to which the other heirs did not consent after the testator's death. The plaintiff could not have validly consented to such bequests in favour of her brothers, as at the date of her father's death she was an infant and did not attain her majority until long after the properties of her father were all disposed of by defendant No. 1.

(2). The other provision of the will to which exception is taken is in favour of charity. The testator directs that one-sixteenths of the net income derived from his household properties in Bombay should be set apart yearly and devoted to charitable and religious purposes, such as the performance of anniversary ceremonies and Oorus of his parents, the Mahim Oorus, the Bhiwandi Oorus, and other such ceremonies in like manner as the testator himself had done in his life-time and for an Oorus for the testator himself and also in every such charitable purposes as his sons may consider deserving, fit and proper. The plaintiff contends that the bequest in favour of charity is invalid. I am of opinion that the paramount intention contained in the clause of the will is that one-sixteenths of the net income should be expended for charitable purposes. If the instances mentioned are not to be regarded as charitable the Court would apply the income to purposes which it may deem to be charitable.

3. In the case of Biba Jan v. Kalb Husain I.L.R. (1908) All. 136 the Appeal Court of Allahabad appears to have held that a dedication made by a man for the performance of the annual Fatiah ceremony of himself and the members of his family would be a valid charity. The same Court, however, in a later case appears to have taken a different view on this point.

4. In Fakhr-ud-din v. Kiayat-ul-lah (1910) 7 A.L.J. 1095 Karamat Husain J. seems to have held that Oorus and Fatiah ceremonies at tombs are not objects of a valid waqf under the Mahomedan law. He says (p. 1097) :-

The Fateha and Urs ceremonies in their popular sense are neither religious nor charitable in the sense of a charity for the benefit of the poor which they may claim as a matter of right. It therefore follows that a Waqf for the Fateha or Urs ceremonies in their popular sense cannot be a valid Waqf.

5. He further says with regard to Urs (pp. 1104 and 1105):-

According to Sufi's the death of a saint brings about his union with God and they therefore call the anniversary of his death urs (the union day of the saint with God) and by the analogy of the marriage feast, make, on the anniversary of his death, illuminations at his shrine, prepare food and distribute it among the people irrespective of their poverty. Some of the food may be given to the poor but they cannot claim it as a matter of right.

Such being the nature of the urs ceremonies, they form no part of the religion of Islam nor do they necessarily involve any charity to the poor and a waqf for the urs ceremonies of an ordinary Muhammadan or even a saint cannot be a waqf a religious or charitable purpose.

6. With great respect I am unable to agree with the learned Judge. The learned Judge admits that the recital of the Fateha prayer is a religious ceremony. It confers a merit upon the person who recites it and bestows the benefit of that recital on the soul of the deceased. The Fateha ceremony also involves the distribution of food to the persons assembled primarily the poor and incidentally others who may be present. It certainly is considered to be more meritorious on such occasions to feed the poor than the well-to-do. There is nothing in the text writers, so far as I am aware, to warrant the assertion that they regard the Fateha ceremony as superstitious or irreligious. On the contrary there seems to be abundant proof that such ceremonies are regarded as being both religious and charitable.

7. The Fateha ceremony on the anniversary of the death of a saint is called by the more dignified name of Urs as a much larger section of the Mussalman public participates in the ceremony and the ceremony itself is on a larger scale. In matters of this kind Courts of law are not primarily concerned with what may be the true tenets and practice of a religion as propounded by its founder, but they have to take into consideration the tenets and practice of the religion as understood and practised by the people professing such religion in the country, where the Courts are administering the law. According to that practice and belief it would appear that in this country at least the anniversary Fateha or Urs ceremonies at the tombs of ordinary individuals and specially of saints form an integral part of the religious life of the general body of Mahomedans. Indeed such ceremonies are also observed by them once every year for the benefit of all Moslem souls generally on what may be called an 'All Souls Day' (shab-e-barat) when cemeteries are illuminated, Fateha recited and food and other alms distributed among the poor assembled there. Except for a small sect known as the Wahabies who call themselves puritans or reformers the general body of Mahomedans in any event in India would resent the suggestion that such ceremonies are superstitious or forbidden to them by their religion as savouring of idolatry in respect of tombs.

8. In Zooleka Bibi v. Syed Zynul (1004) 6 Bom. L.R. 1058 Tyabji J. had to deal with two Durgas, known as the Durga of Syed Budrudin Shah and the Durga of Syed Bismilla Shah. From the family history, it appeared that Budruddin Shah had died when he was a young lad and his mother had erected the tomb and had dedicated some property for his Urs anniversary ceremonies. He belonged to the spiritual family of Syeds known as the Rafais and his title to sainthood evidently was based on his descent. The history of Bismilla Shah showed that he was a servant of the Rafai family, and was sent down to Bombay to preach the Mahomedan religion among the Kolis whom he converted. When he died a tomb was erected and honours were paid to him as to a saint on the occasion of the anniversary Fateha or Urs ceremonies. The learned Judge held that as neither of them was shown to be a learned man or a great teacher and one of them was only a young lad he could not be regarded as a saint. With great respect I am unable to agree with that definition of a saint under the Mahomedan law. The matter, in my opinion, must rest upon the beliefs of the people. According to those beliefs, it does not appear that learning, powers of teaching or even maturity of years is a necessary condition for attaining the rank of a saint. That decision, however, was confirmed by the Appeal Court and is binding on me. Taking the view as I do, that the paramount intention displayed in the will is one of charity, whether the Urs ceremonies mentioned in the clauses of the will are to be regarded as valid or invalid can only be a matter of academical interest. Should the plaintiff be allowed to impeach the bequest to charity the Advocate General would be a necessary party to the suit. I hold that the bequest in the will in favour of charity generally is valid.

9. I now proceed to examine the position in law of the executor of a Mahomedan will. Under the Mahomedan law the executor is in the position only of a manager of the property, The property vests in the heirs without any interregnum on the death of the testator. The heirs take the property subject to the payment of funeral and other charges, the payment of the debts of the deceased and the payment of the legacies up to one-third of the estate left by the deceased. The remaining two-thirds of the estate left by the deceased belong to the heirs as absolute owners in their own right. They are entitled to it although the will may provide otherwise. That state of things, however, appears to have been altered by the provisions of Section 4 of the Probate and Administration Act (1881), which is Section 211 of the Indian Succession Act (1925). That section provides:-

The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.

10. Their Lordships of the Privy Council had the position of the executor of a Mahomedan will before them in the case of Mirza Kurratulain Bahadur v. Peara Saheb their Lordships remark as follows:-

A Mahomedan testator has not an unlimited power of disposition by will : he can only deal with one-third of his property ; the remaining two-thirds pass to his heirs whatever the terms of the will may be. Thus the executor, when he has realized the estate, is a bare trustee for the heirs as to two-thirds, and an active trustee as to one-third for the purposes of the will; and of these trusts one is created by the Act and the probate irrespective of the will, the other by the will established by the probate.

11. At p. 258 their Lordships remark :-

From an early date the Supreme Courts granted probates of Hindu and Mahomedan wills....But the Supreme Courts never applied the English rule as to the necessity for probate to Hindu or Mahomedan wills, nor did they attribute to such probates when granted the English doctrines as to the operation of probate. Under that system a Hindu or Mahomedan executor took no title to property merely as such by virtue of the probate. In the case of Mahomedan executors such a title was created for the first time by the Probate and Administration Act.

12. The same matter came up for consideration before our Appeal Court in the case of Sir Mahomed Yusuf v. Hargovandas. : (1922)24BOMLR753 In construing Section 4 of the Probate and Administration Act (1881) our Appeal Court held that the property of the testator vests in the executors, and it can be sold and conveyed by them under Section 90 of the Act, and no grant of probate is necessary. At p. 761 in referring to the Privy Council case above cited Fawcett J. remarks as follows :-

I do not think this view is in any way weakened by the Privy Council decision in Kurrutulain Bahadur v. Nuzbat-Ud-Dowla Abbas Hossein Khan I.L.R. (1905) Cal. 116 for in that case their Lordships recognized that an executor of a Mahomedan testator's will can realise the estate of the deceased under Section 90 of the Probate and Administration Act, though the testator can only deal with one-third of the property and the remaining two-thirds pass to his heirs whatever the terms of the will may be,... The words 'when he has realised the estate' clearly show that their Lordships did not take a different view as to the power of the executor to sell in order to realise the estate.

13. A 'bare trustee' has been defined 'as a trustee to whose office no duties were originally attached, or who, although such duties were originally attached to his office, would, on the requisition of his cestuis que trust, be compellable in equity to convey the estate to them, or by their direction' (Christie v. Ovington (1875) 1 Ch. D. 279 per Hall V.C.; adopting Dart's Vendors and Purchasers, 5th Ed., p. 517 ; In re Cunningham and Frayling [1891] 2 Ch. 567per Stirling J.). If defendant No. 1 is to be held to be a bare trustee in respect of two-thirds or more of the estate left by the testator, which descended to his heirs, it cannot be held that in respect of such two-thirds or more the property did not vest in him as executor under the provisions of Section 4 of the Probate and Administration Act. The words of their Lordships of the Privy Council 'when he has realized the estate' make it abundantly clear that, in their opinion, the provisions of the Mahomedan law did not in any manner divest the executor of the legal ownership of two-thirds of the estate, for which the testator had no power of disposal. The trustee, under the English law, is the legal owner of the property, whether he be a trustee in the full sense of the term or only a bare trustee. In the view expressed by their Lordships of the Privy Council the right of the heirs comes into operation against the executor as a bare trustee on their behalf on his realising the estate. In other words the right now reserved to the Mahomedan heir in respect of his share in the estate of the testator is a right 'in personam' against the executor only and cannot prevail against a purchaser for value without notice.

14. The terms of Section 4 of the Probate and Administration Act are clear and unambiguous on the point. They vest all the property of the deceased person in the executor. Should the executor abuse his powers in respect of such property while it is vested in him, the remedy can only be a personal remedy against the executor himself. Outsiders who have to deal with the executor on the faith of the property being vested in him must be protected. The authorities go to the length of holding that while the property is vested in the executor, even though it may afterwards be found to have been wrongly so vested, e. g., as in the case of a forged will, all acts of the executor in respect of such property where bonafide purchasers are concerned must be regarded as valid.

15. In Hewson v. Shelley [1914] 2 Ch. 13 the Court of Appeal considered the case where letters of administration were granted to the widow of a man who was erroneously presumed to have died intestate. The administratrix, as personal representative of the deceased, had conveyed to a purchaser a portion of the deceased's real estate. Upon the subsequent discovery of a will the executors thereby appointed obtained a re-call of the letters of administration and a grant of probate to themselves. The executors brought an action to recover possession of the real estate sold by the administratrix. Probate of a will when granted dates back to the death of the testator and his property becomes vested in the executor as from that date. The Court of Appeal, however, held that the grant of administration was not void ab initio and that the purchaser had acquired a good title. They held also that even if the grant of administration had been void for want of jurisdiction, it was an order of the Court by virtue of which the purchaser's title would have been protected under Section 70 of the Conveyancing and Law of Property Act 1881.

16. In Craster v. Thomas [1909] 2 Ch. 348 Neville J. had to construe, inter alia, sections of the Indian Succession Act (1865) corresponding with Sections 4, 12, 50, 59 82, 84 and 90 of the Probate and Administration Act 1881.

17. In 1898 a testator, domiciled in England, had died possessed of English and Indian assets. The Indian assets comprised shares in the Bank of Bengal, and the share certificates were in the custody of the testator's agent at Calcutta. The executors in England had remained in ignorance of the testator's Indian assets until 1903, when they discovered that in 1902, the testator's agent had by fraud obtained from the Calcutta High Court the grant of letters of administration to the testator's Indian assets as on an intestacy, and acting as such administrator had sold the bank shares in the open market at Calcutta and had squandered the proceeds. The agent was prosecuted for the fraud and convicted, the grant of letters of administration to him was revoked, and fresh letters of administration with a copy of the testator's will annexed were granted to the Administrator-General of Bengal. This action was by the executors against the bona fide purchaser of the shares from the fraudulent agent claiming the shares on the ground that the grant of letters of administration to the agent was void ab initio and no property had passed to the purchaser as the agent had committed a fraud. The Court held that on the true construction of the provisions of the Indian Succession Act, 1865, the grant of letters of administration to the agent was not void ab initio, but only void as from the date of the order of revocation. The Court further held that the sale of the shares by the fraudulent agent qua administrator to the purchaser for value without notice was valid and conferred on the latter a good title to the shares.

18. An off-shoot of the same case was tried in India which ultimately went up to the Privy Council and is the case of Debendra Nath Dutt v. Administrator-General of Bengal. A suit was filed by the Administrator General of Bengal against the sureties of the fraudulent agent, to whom the letters of administration were originally issued and were subsequently revoked. The sureties were sued upon their bond conditioned for the due administration of the estate. They contended that as the letters of administration were annulled by the Court on the ground of fraud, they must be regarded as a nullity from the beginning and that the bond was, so far as the sureties were concerned, void and of no effect. Their Lordships of the Privy Council in upholding the judgment of the Calcutta High Court held that so long as the letters were unrevoked the Administrator represented the deceased and the sureties were responsible for his acts and defaults. Lord Macnaghten in delivering the judgment of their Lordships remarks (p. 117);-

So long as the letters of administration granted to Cowie [the fraudulent agent] remained unrevoked, Cowie, although a rogue and an impostor, was to all intents and purposes administrator. He, and he alone, represented the deceased in India. His receipts were valid discharges for all moneys received by him as administrator. As administrator he collected the assets belonging to the deceased in India, and he misappropriated the assets which he so collected. For his acts and defaults as administrator the appellant and his co-surety became and must remain responsible.

19. It now remains for me to examine whether the executor defendant No. 1 had the power to enter into the transfer of mortgage under the authority conferred upon him by the Thana Court on his application (part of Exh. B). It is contended by Mr. Engineer on behalf of the defendants that the restriction on alienation mentioned in the will in respect of the property in suit is a restriction not upon the executor as such, but upon the heirs. Beading the will as a whole, however, it appears to have been the intention of the testator that none of his properties, mortgaged or not mortgaged, was to be alienated or sold. This was how the executor understood the terms of the will and the inference he drew from those terms appears to me to have been the legitimate inference to draw. Therefore, under the provisions of Section 90 of the Probate and Administration Act (1881) corresponding now with Section 307 of the Indian Succession Act (1925), he applied to the Thana Court for sanction to enter into the transfer of mortgage already referred to. It is contended on behalf of the plaintiff that defendant No. 1 failed to carry out the terms of the sanction which he had obtained from the Court. Where the power of an executor to dispose of immoveable property vested in him is subject to any restriction imposed by the will appointing him, the Court, which grants the probate, is empowered by Section 90 of the Probate and Administration Act, notwithstanding the restriction, to permit the executor by an order in writing to dispose of any immoveable property specified in the order in the manner permitted by the order. In the application made by defendant No. 1 he mentioned that the loan was to be for a period of ten years, and asked for permission to charge the property with the repayment of 1,10,000. It is contended on behalf of the plaintiff that the transfer of mortgage entered into was not for a period of ten years as sanctioned by the Court, but was for a period of a few months only ; and that the power of sale conferred by the transfer of mortgage would come into operation almost immediately unless the covenants and terms of the mortgage were punctually carried out. It appears from the terms of the mortgage that it substantially carries out the condition to which reference was made in the application to the Court (part of Exh. B), viz., that the loan was to be for a period of ten years. It provided that the loan would not be recalled if the terms and covenants of the mortgage (other than the covenant regarding payment of the principal amount on due date) were properly and punctually observed during the period of ten years. This, it appears, is the usual device adopted in conveyancing where the period of redemption is intended to be long. Underhill in the Encyclopaedia of Forms and Precedents, Vol. VIII, refers to this device at p. 472 as follows:-

Consequently, if the mortgage is for a term certain, e.g., seven years, an unskilful draftsman might inadvertently tie the mortgagee's hands for the whole of the period, even although interest were largely in arrear. The proper way to obviate this is to make the principal repayable six months after date, and then to provide that if interest is punctually paid and the mortgagor's covenants, &c.;, duly observed and performed (other than the covenant for payment of the principal debt) the mortgagee will not call in the money for the agreed period. By this device, if interest is allowed to fall into arrear, the principal bacomes immediately due, and the statutory power becomes exercisable when the interest is overdue for two months.

20. At p. 474 he refers to a case where, as in the case here, the principal debt was to be repaid by instalments :

In the same way, where the principal debt is to be repaid by instalments, it is wise to, frame the covenant so as to make it repayable in one sum at the expiration of the usual period of six months, and then to add a proviso that if the borrower shall punctually pay the interest, together with instalments of a stated amount in reduction of principal on stated dates, and shall in all respects observe and perform the covenants and stipulations, &c.;, the lender will not take any steps to enforce the principal debt. A similar method is invariably adopted where the mortgagee undertakes to allow the debt to remain on the security for a term of years, i. e., it is made conditional on the punctual payment of interest and the due observance and performance of covenants, &c.; By this means not only is punctuality enforced, but if default is made in payment of an instalment the creditor may...at once exercise his power of sale.

21. Form No. 22 at p. 506 provides how the debt is not to be called in for a term certain. The mortgage here appears to be in that form. In substance, therefore, in my opinion, the order of the Thana Court was adhered to. But defendant's case also stands on a footing independent of Section 90 of the Probate and Administration Act. The root of their title is not the order of the Court (part of Exh. B), but the power of sale contained in the original mortgage Ex. (1) in the life-time of the testator. They paid consideration to the original mortgagee and are entitled to stand in his shoes in respect of the rights he could exercise under the mortgage.

22. As the assignees and transferees of that mortgage the vendors had the power of sale and it is nobody's case that default had not already been made which would entitle the original mortgagee to exercise the power of sale contained in his mortgage. The sale must be regarded, if necessary, as having been made in exercise of the power of sale conferred by the original mortgage of September 13, 1894, and, therefore, conveying a title to the purchaser independently of the provisions of Section 90 of the Probate and Administration Act. [His Lordship held on merits that the claim was barred by limitation].

23. Suit dismissed with costs, two sets being allowed to the defendants appearing.


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