1932 (4) TMI 21 - HC - Indian Laws

Summary

Issues Involved:
1. Validity and enforceability of the restriction on Sughra Bibi's power of alienation.
2. Interpretation of the term "malik" in the compromise agreement.
3. Applicability of Shia law regarding the creation of vested remainders.

Detailed Analysis:

1. Validity and Enforceability of the Restriction on Sughra Bibi's Power of Alienation:

The primary issue revolves around whether the restriction placed by the compromise deed dated September 19, 1870, on Sughra Bibi's power of alienation was valid and legally enforceable. The Subordinate Judge initially held that the restriction was invalid and inoperative. However, on appeal, the Chief Court concluded that the restriction was valid under Shia law, which governed the parties. The Board also examined whether such a partial restriction on alienation was inconsistent with an otherwise absolute estate and found that the restriction against alienation to "a stranger" was not absolute but partial, leaving Sughra Bibi free to transfer within the family. The Board ultimately held that the restriction was binding, emphasizing that family arrangements are favored in courts of equity and that such agreements should be upheld under justice, equity, and good conscience.

2. Interpretation of the Term "Malik" in the Compromise Agreement:

The term "malik" was extensively discussed, with the Chief Court determining that despite its use, the ladies had only "limited ownership" due to the express provision against transferring the property to a stranger. The Board considered arguments from both sides, noting that the term "malik mustaqil" indicated permanent proprietorship and that Sughra Bibi was to remain the owner of a moiety free from restrictions if Afzal Husain refused to marry her. However, the Board concluded that the restriction against alienation to strangers was a valid condition of the compromise agreement, which was essentially a family arrangement rather than a deed of gift or conveyance.

3. Applicability of Shia Law Regarding the Creation of Vested Remainders:

The Chief Court addressed whether the arrangement under Shia law, which governed the parties, was valid and concluded affirmatively. The Board, however, found it unnecessary to delve deeply into the issue of whether Shia law permits the creation of a vested remainder in an indeterminate body such as the heirs of a living person. The focus remained on the enforceability of the restriction against alienation, which was upheld.

Conclusion:

The Board affirmed the decree of the Chief Court, holding that Sughra Bibi had no power to transfer any part of the properties to the appellants. Upon her death, the respondent became entitled to the two-thirds share in the properties claimed. The appeal was dismissed, and the restriction on alienation within the family was deemed valid and binding.