1. 'This is a suit brought by one Basir Ali an infant by his grandmother and next-friend Elahi Jan Begum and by Elahi Jan Begum in her personal capacity. Basir Ali has since the institution of the suit attained full age and Elahi Jan Begum now remains on the record only in her personal capacity as plaintiff. The defendants are the father of Basir Ali, Hafiz Nazir Ali, and the three daughters of the first defendant, who are all infants. The suit is for a declaration that a partition effected by a decree of 1903 is not binding on Basir Ali and (it may be presumed) on his minor sisters. The plaintiff asks for an enquiry as to the estate of his mother Kobra Begum, for the administration of that estate and for an account against the father Hafiz Nazir Ali. The plaintiff also seeks to include in his claim, his share in a sum of Rs. 32,000, the dower agreed upon between his father and mother and a further sum of Rs. 23,800 which he alleges to have been due to his mother for arrears of pin-money.
2. 'There is no dispute as to the main facts which are as follows: One Morad Ali died in 1880 leaving property of very considerable value, estimated at some twenty lacs. He left several children and a widow, the plaintiff Elahi Jan Begum. One of his daughters Kobra Begum on the 30th of August, 1882, was married to the first defendant, who was then a boy of 14 years of age. On the 16th September 1882, a deed was executed by the first defendant's father under which it was arranged that the first defendant should pay his wife a sum of Rs. 32,000 as dower, one half prompt and the other half deferred. The deed also arranged for an allowance of Rs. 100 a month to the wife as pin-money. The wife's family was wealthy, the husband's family impecunious; and there is no doubt that the first defendant had not then and indeed had no immediate expectation of becoming possessed of so large a sum as Rs. 32,000. By a contemporaneous document, it was agreed that the first defendant should not remove his wife from her parent's house or take her away to his country but that he should continue to reside in the house of his father-in-law as; khana damad. On the 4th of September 1901, Kobra Begum filed a suit in this Court No. 746 of 1901 claiming her share, 7/48ths of her father Morad Ali's estate and asking for partition of that share. The plaintiff Elahi Jan Begum was a party defendant to that suit with the other members of Morad Ali's family. In March 1902, Kobra Begum died leaving her surviving the first defendant, her husband, and the plaintiff Basir Ali and the minor defendants, her four children. She left a Will of which she appointed her husband sole executor and he took out probate of that Will on the 12th of April 1902. The Will purported to make no disposition of the property but left it to pass according to Muhammadan Law. As such executor, the first defendant got himself substituted as party plaintiff in suit No. 746 of 1901. Some attempt seems to have been made to bring his children also on the record in that suit but it was disallowed. On the 5th. of March, 1903, a consent-decree was passed in that suit, under which, inter alia, the first defendant as representing Kobra Begum accepted 6/48ths instead of 7/48ths as her share in Morad Ali's property. That decree also provided for a partition of that share and it went further and provided for partition of the share between the husband and children of Kobra Begum, 1/4th to the husband and three-fourths to the children. Elahi Jan Begum, who as an heir of her daughter would be entitled to one-sixth of her estate, gave up her claim to that so far as Kobra Begum's share in Morad Ali's property was concerned. On the 12th July 1904, the Commissioner made his return in that case. It should be mentioned that Hafiz Nazir Ali was appointed Receiver in that case of the property of himself and his children. He has been appointed and still is the guardian of the property of his three infant daughters. Elahi Jan Begum was the guardian of the person and property of the plaintiff Basir Ali, who has since attained his majority.'
3. Seven issues were raised in this case which were as follows:
I. Whether the plaintiff Basir Ali is bound by the decree of the 5th March 1903.
II. What is the effect of the decree, regard being had to subsequent dealings with the property?
III. Whether the shares can be re-adjusted.
IV. Was the agreement as to dower ever intended to be an effectual one or was it introduced as a penalty to induce the first defendant to be a khana damad?
V. Whether it is binding on the first defendant.
VI. Whether it was excessive.
VII. Whether Elahi Jan Begum is not barred from claiming her share.
4. It will be seen that the first three issues deal with the 6 /48ths share of Kobra Begum in Morad Ali's property. The last four deal with the dower. The case naturally divides itself into these two main heads and I will so deal with it. The plaintiffs do not seek to disturb the consent-decree in so far as it purported to curtail Kobra Begum's share by l/48th. They are content with the 6/48ths. It is obvious that Elahi Jan Begum as a party to the suit of 1901 is bound by that decree, but it cannot be seriously contended that Kobra Begum's children, who were all infants and were not even parties to that suit, could possibly be bound by the decree to which their father and grandmother consented. It, therefore, follows that Basir Ali is now entitled to ask that the division of the property of the estate of his mother Kobra Begum between his father and the children should be scrutinised, that an enquiry should be held to see whether that was a fit and proper division to be made at that time and whether it was, in fact, a true division of that portion of her estate in the proportion of one-fourth and three-fourths. It was argued on the part of the first defendant that a partition once made could not be re-opened, unless it was first shown that it had been prejudicial to the interests of the infants whose estate was dealt with under it. Mr. Chakravarti quoted some passages from Mr. Mayne's work on Hindu Law. I cannot, however, see that they apply to this case. This is a question not of partition in a joint undivided Hindu family but of the division of a Muhammadan estate between the heirs who are entitled to it. The heirs, who were then minors and whose interests were not legally protected at the time of the partition, are clearly entitled to have the matter gone into again. The plaintiff does not ask, nor do I think that would be equitable, that the division as then made should be disturbed more than is absolutely necessary to properly adjust the interests of the several persons. For that, the decree must provide.
5. I then pass to the second question, that of dower. The dower in this case, the wife having died, may be taken as a whole. There is no distinction between prompt and deferred, as it is admitted that no demand was made by Kobra Begum upon her husband for the moiety which was prompt. That the dower forms part of her estate and is an asset of that estate seems to me to be perfectly clear. It resembles a sum which is payable to a man under a Policy of Life Insurance effected in his own name. Though it is not payable till after his death, he can dispose of it by will, or if he dies intestate, it passes to his heirs. It is conceded that the dower passes to the heirs of the lady. It does not do so by reason of any express contract to that effect. It must necessarily do so because they are heirs, i.e., as part of her estate. The fact that she did not in her life possess it or have a claim to it appears to me to make no difference. As a part of her estate it vests in her executors.
6. Mr. Chackravarti argued, at some length, that in the case of a Muhammadan executor, the property did not vest in the same way as the executors of other denominations, but this proposition does not admit of argument. It is settled by authority. Their Lordships of the Privy Council in the case of Kurratulain Bahadur v. Nuzhat-ud-dowla Abbas Hossein Khan 9 C.W.N. 938; 33 C. 116 have stated in unmistakable language that the executor of a Mahommadan takes the whole of the estate by virtue of the provisions of the Probate and Administration Act. As to two-thirds, he is a bare trustee for the heirs, whose rights a Muhammadan testator cannot defeat by Will. As to the remaining one-third he holds it subject to the dispositions, if any, of the Will. Here there is no distinction, as Kobra Begum did not purport to dispose of even one-third of her property in any peculiar way. It is perfectly clear that, of the whole estate, the executor is a trustee and, therefore, in a fiduciary position. This disposes of the objection that the claim of Elahi Jan to a share in the dower was barred by the law of limitation. The first defendant being in the position of a trustee it is clear that he cannot avail himself of the limit of three years as provided for by the Limitation Act, though he might have done so had he held the dower simply as a debtor to his wife's estate.
7. Then, it was argued that Elahi Jan could not claim her share of dower, because it had been dealt with in the previous suit. I cannot find that the subject of dower was in any way dealt with in that suit. Indeed, it could not be, for that was a suit with respect to Morad Ali's estate. As to the amount of the dower, it was contended that it was excessive and that the Court would enter upon an enquiry to ascertain how much ought to have been contracted for. It is conceded that the father had the power to make a contract for dower on behalf of his minor sons. There is also no question that such a contract would be valid and binding, even though it were made, as this was made after the marriage. (See, Wilson's Digest, Section 45). With regard to the amount, Mr. Chakravarti relied on certain passages in Chap. II of the Hedya (see, Grady's Edition, p. 41). I have carefully considered these passages which were, no doubt, before the learned Judges in the case of Sugra Bibi v. Musuma Bibi 2 A. 573. In that case, the Full Bench held that the amount named in the contract must be paid, irrespective of the husband's means and there is no authority quoted against that proposition. That the Courts were bound to give effect to such contracts is, I think, clear from the necessity which the legislature felt of passing Section 5 of the Oudh Laws Act, 1876. If the Courts had been able to deal with the question themselves, there would have been no necessity for that provision. I decline to allow the first defendant to go into evidence to show that the parties to the contract meant something else--that their intention was not to insist upon the payment of dower but merely to insist upon the first defendant becoming a khana damad. I think, therefore, that the Rs. 32,000 for dower forms part of Kobra Begum's estate and is divisible among her heirs. The first defendant will retain one-fourth, Elahi Jan will be entitled to one-sixth but she has made over her share to Basir Ali and she is willing that in this suit he should take that share. The remainder will be divided among the children of Kobra Begum as residuaries, Basir Ali taking a double portion as between himself and his sisters.
8. With regard to the claim for pin-money, Rs. 23,800, this is not, in my opinion, sustainable. In the first place, limitation would have run against the wife so that, in no event, could more than 6 years arrears be claimed; but, I think, that it was in the nature of a personal allowance which the wife possibly had no necessity to make and for which she certainly did not make any demand during her life-time. It is not, I think, a debt due to her estate which her heirs can now enforce against the husband.
9. There will, therefore, be a decree declaring the shares of the respective parties in the estate of Kobra Begum including the dower, i.e., one-fourth to Hafiz Nazir Ali one-sixth to Elahi Jan Begum, two-fifths of the residue to Basir Ali and one-fifth of such residue to each of the 3 minor defendants, it being noted that Elahi Jan has given up her claim to the 6/48ths share decreed in suit No. 746 of 1901. There will be a declaration in terms of paragraph 1 of the prayer of the plaint that the decree in that suit of the 5th of March, 1903, is not binding upon the plaintiff Basir Ali or the minor defendants. Refer it to a commissioner of partition to enquire whether the former partition was just and equitable in the interests of the children of Kobra Begum. The commissioner to report how that partition should be re-adjusted, if necessary. The commissioner to have regard to the former division of the four parties and to disturb it as little as possible.
10. The first defendant must account for the shares in the property of his four children from such date as he took possession of it as receiver in suit No. 746 of 1901.
11. A Receiver must be appointed of the shares of the four children, and (the first defendant agreeing) the Rs. 24,000 due from him in respect of dower, will form a charge upon his share of his wife's estate. This suit was no doubt, necessary, but the hearing has been prolonged entirely on account of the contentions raised by the first defendant in which he has failed. I, therefore, order that he do pay the costs of the second and third days hearing of all parties. The other costs of the suit will be dealt with as in a partition suit. Further directions and subsequent costs reserved. Liberty to apply. The commissioner is to have regard to any monies expended by the first defendant on the improvement of the property.