9911796707
TMI Blog1932 (4) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... spute regarding a share, and insomuch as the defendant's first wife, the daughter of Raja Syed Abbas Ali, deceased, is alive, it has been settled that both wives should, in accordance with this agreement, in their capacity as wives, from this very time be declared permanent owners [malik mustaqil] of a moiety each of the entire Mahal Shadipur, and that the names of Musammab Fatima Begam, the first wife, and Musammat Sughra Bibi, plaintiff, be entered in the public records as owners of half and half [bil munasfa milkiatan]. The said females shall not have powor to transfer this property to a stranger ; but the ownership thereof as family property shall devolve on the legal heirs of both the abovenamed wives, from generation to generation [naslan bad naslan] and the management and collections of the entire estate of Shadipur shall be in the hands of their husband, Syed Afzal Hasan, in his capacity of a husband ; if on the part of the husband there is any act of neglect) or estrangement towards either of the wives, then, in that case, the wife's only remedy will be to have the management of her share performed by the Government through the Court of Wards ; but during the lifet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was that under the compromise Sugbra Bibi took only a life estate without power of alienation, and that on her death the half-share passed to her heirs, of whom the respondent in right of her mother Zainab Bibi, the sister of Afoul Husain, was one, her share being two thirds. The other heirs, taking the remaining third were said to be certain maternal relatives of Sughra Bibi, who apparently made no claim, and were not joined as parties to the suit, but it is not suggested that it is defective on this account. The present appeal, therefore, is concerned only with two-thirds of the property, and the rights of the parties depend in the first instance on the validity of the alienations by Sughra Bibi, the title of the respondent, if these alienations were invalid, not being disputed. 6. A preliminary issue which covered this question was raised and tried by the Subordinate Judge. It was in the following terms :- Was the restriction placed by the compromise deed dated September 19, 1870, upon Sughra Bibi's power of alienation valid and legally enforceable ? The learned Judge, after a detailed but not very informing examination of the case law on the subject, held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n support of the appellants' contention if; was pointed out that the ladies were to be malik mustaqil, i.e., permanent proprietors, and were to be entered as such in the public records; that their proprietorship was to take effect from the execution of the document, and that if Afzal Husain refused to marry Sughra Bibi, she was to remain owner of a moiety free from restriction of any kind ; that other property, to which Sughra Bibi had made no claim, was also dealt with; that it was to remain in the possession of Afzal Husain during his life and the lifetime of his father Tegh Ali, and then was to devolve on the two wives or their descendants in equal shares -again, as the respondent's counsel concedes, without restriction, From this it is said to be clear that the draftsman of the document was quite competent to put a life estate into direct words if that had been the intention of the parties under the first part of the agreement. It is also suggested that the words upon which the respondent relies as constituting a gift over to the ladies' heirs, are only explanatory of the restriction against transfer to a stranger, which immediately preceedes them, and it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The law by which this question must be judged is, their Lordships think, prescribed by Section 3 of the Oudh Laws Act, 1876, and failing the earlier clauses of the section which seem to have no application, the Courts shall act according to justice, equity and good conscience, which has been adopted as the ultimate test for all the provincial Courts in India. 15. Is it then contrary to justice, equity and good conscience to hold an agreement of this nature to be binding ? Judging the matter upon abstract grounds, their Lordships would have thought that where a person had been allowed to take property upon the express agreement that it shall not be alienated outside the family, those who seek to make title through a direct breach of this agreement could hardly support their claim by an appeal to these high sounding principles, and it must be remembered in this connection that family arrangements are specially favoured in courts of equity. 16. But apart from this, it seems clear that after the passing of the Transfer of Property Act in 1882, a partial restriction upon the power of disposition would not, in the case of a transfer inter vivo8, be regarded as repugnant; see Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
