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TMI Blog1937 (3) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... ld ordinarily be inherited by the widow, and by the four sons and one daughter who were of age at the time of their father's death, had become wakf property; but that the remaining seven twentieths were not included in the wakf. The Chief Court of Oudh has held in effect that the wakf extends to the whole of the property left by Mir Fida Husain, which may be taken as worth about a lac of rupees and to have produced a gross income of over ₹ 13,000 per annum leaving a balance, 'after payment of land revenue, of ₹ 7,766. 2. A week or ten days before his death on 13th April 1918, Mir Fida Husain, as both Courts in India have found, made a statement, the precise effect of which is now in question. It is spoken to by five witnesses, two of whom gave evidence on commission, and three at the trial before the learned Subordinate Judge. All his heirs are said to have been present when the statement was made, but though the five witnesses include a son-in-law, a nephew and a niece, none of his children have given evidence. Three witnesses at least are of good position-a Deputy Collector, a Hakim and an Honorary Magistrate. In fact after his death-in August 1918- Mt. Azm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral will and his desire and that our mother, Mt. Azmat-un-nisa Begam, is owner of the entire estate left by our deceased father, a detail whereof, so far as the Immovable property is concerned, is given below. Wherefore these few presents have been reduced to writing by way of a deed of relinquishment so that it may serve as an authority and be of use when required. 3. To this deed the widow and all the children whether major or minor were made parties, the only notice taken of the disability of minors being that the eldest son signed as guardian for Asqhar, the youngest. The deed denominates itself dastbardarinama which is translated 'deed of relinquishment'. There was in fact no custom to exclude daughters from inheritance. The question whether and to what extent the recitals in this deed can be relied upon as correctly representing the nature and effect of what was said by Mir Fida Husain, is an important question in the present case. The trial Judge was of opinion that the deed gives the import of what was said by Mir Fida Husain, but wrongly represents his speech as a will though it was- intended only as. advice to his heirs as to how they should act after his dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would have received if alive. On the death of any male recipient without leaving male issue his widow and thereafter his daughters were to take his share; on failure of these it was to be divided among the other male issue of the settlor's son to whose branch he had belonged ; and in default thereof was to go to the other sons of the settlor or their representatives. There was an ultimate destination of the profits, in the absence of any person entitled under the conditions of the deed, to the effect that they shall be spent upon such educational enterprise as might benefit students of the Asna Ashari sect. 6. A wakf-alal-aulad having thus been made of Mir Fida Husain's property, it was acted on for two years, more or less ; but on 21st October 1924, five of the sons sued the widow and the sixth brother for cancellation of the deed of wakf and partition of the property. The defendants consented, a preliminary decree for partition was passed on 13th February 1925, and after final decree on 22nd October 1925, the property ceased in September, 1926 to stand in the name of the widow as mutwalli, and was recorded in the names of the widow and the sons according to the shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of marz-ul-maut (death illness) prevented his doing so by gift and the ordinary law prevented his doing so by will. Consent of the heirs (if sui juris) could however be given in the case of a will before or after the testator's death. Whether or not it was open to him in spite of death-illness to make a gift to his wife of the whole of his estate in lieu of dower is a moot point [of. Gulam Mustafa v. Hurmat (1880) 2 All 854, Abbas Ali v. Karim Baksh (1908) 13 CWN 160, Esahuq Chowdury v. Abedannissa AIR 1915 Cal 785 42 Cal 361. Ameer Ali 'Mahomedan Law', Edn. 4, Vol. 1, p. 63 and Tyabji 'Principles of Mahomedan Law', Edn. 2, p. 814, differ in their views]. 'Such a transaction as the cases show, has been treated as a 'sale: in which view however a registered instrument would be necessary. It is not the case of anyone that he purported to make such a gift inter vivos; and as the evidence proves no such gift this possibility may be discarded. The approach of death made it necessary for Mir Fida Husain to do something and yet impossible to complete anything by his own act. In this dilemma, what did he do? 10. Their Lordships cannot agree with the Chief Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances and from the statement be able to infer for itself that testamentary effect was intended in addition to being satisfied of the content of the direction given. Their Lordships fully agree -with the learned trial Judge that on the question whether the statement was intended by Mir Fida Husain to have testamentary effect, the deed of 16th December 1920 is by no means con. elusive. 12. The absence of the sons from the witness box and the inconsistent conduct of so many of the heirs enforce this opinion. The question must be answered primarily upon a scrutiny of the evidence given in the case by persons present when the statement was made, and it is difficult for the plaintiffs to put their case higher than the evidence of their most cautious witness. As to the terms of the actual statement, the nephew and the niece gave evidence which if fully believed would mean that Mir Fida Husain was making an oral will, but the evidence of the Deputy Collector (son-in-law) and the Hakim which is more objective and precise does not necessarily involve any such implication. This is all the more important that Mir Fida Husain was a lawyer unlikely to have been con. tent with an oral will, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the dedication not being absolute was bad altogether [Suraya : Baillie's Digest of. Muhammadan Law, 1869, Part 2, p. 218]. The result is that the suit fails and must be dismissed. 13. The Chief Court, on the footing that-Mir Fida Husain had made a testament, for a wakf (wasiyat-bil-wakf), were of opinion that two minor sons, who on-coming of age had refused assent as heirs to this bequest, could change their minds-and by assenting make valid what had been void and even sweep away securities granted by themselves. Their Lordships, must not be taken to accept this opinion It was contended that if the compromise-of 7th May 1929, made before the Chief Court in Mt. Shabbir's suit was collusive, then the decree of the District Judge confirming dismissal of her suit became-binding upon her as res judicata, but this contention in their Lordships' opinion is-erroneous. It was argued before both Courts in India that the wakfnama of 28th January 1922, was wholly void by-reason that Mt. Azmat-un-nisa had provided for herself as mutawalli an allowance of ₹ 600 per annum and for other mutawallis ₹ 300 per annum only Abadi Begam v. kaniz zinab A.I.R. 1927 P.C. 2 was c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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