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TMI Blog1932 (4) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant and respondent respectively: 2. The family are Shiah Mahomedans of the Asna Ashari sect governed by the Imamia law. By family custom women do not inherit. Sir Fatch's grandfather Nawab) Ali Raza Khan, who died in 1865 was granted for distinguished service to the British Government a property in the Bahraich District of Oudh, described in lists 1 and 5 attached to the Oudh Estates Act of 1869 as the estate of Nawabganj. 3. This property, being a taluka governed by the Act to which reference has been made, is held for a heritable and transferable estate. If the talukdar makes a will in accordance with the Act such will is valid irrespective of any personal law as to testamentary disposition to which he may be otherwise subject. Under Section 8 of the Act intestate succession to the estate is regulated by the law of primogeniture. On his death Nawab Ali Raza Khan was succeeded in this property by his eldest son, Sir Nawazish Ali Khan. This property is hereinafter referred to as the Oudh property. By a deed dated 9th May 1868, Government, after the death of Nawab Ali Raza Khan, made a grant to Sir Nawazish Ali Khan of a property in the Lahore District known as and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nawab by a sanad granted by the Viceroy. After the death of Nazir Ali Khan Sir Fateh was recognised by the Government as his successor in the Nawabship. On 17th June 1892, Nazir Ali Khan executed a deed of endowment and the Khalikabad property was included in the wakf. He named himself as the first trustee and provided that after him the trusteeship would revert to that person who would be my successor and this office would devolve in future upon other successors in the same manner. 7. On his death Sir Fateh entered into possession of the property as trustee and remained in possession until his death. 8. On 15th July 1896, Nazir Ali Khan made two wills, one relating to the Oudh property and the other relating to the Juliana and Rakh Khamba properties. These wills were, with one exception, to which attention will be directed, identical mutatis mutandis. Both wills were signed by the respondent and his sister, but both Courts below have held that they did not sign as witnesses but to show their assent to the provisions of the will. The will relating to the Oudh property, according to the translation accepted in the Courts below, was as follows: In the name of Allah the most be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his deed of will. After the lifetime of my. son Nawab Mohammad Ali Khan, Nawab Hidayat Ali Khan, son of the late Sir Nawab Haji Nawazish Ali Khan Sahib shall be his successor, provided he be alive. After all these three successors the fit amongst the descendants of the successors shall succeed. The last legatee shall have power to nominate his successor anyone whom he considers fit from amongst the descendants of each of the three successors; and if the last legatee die without nominating a successor the male descendants of each of the three successors shall have power to appoint as successor whomsoever "they consider fit and superior amongst themselves. The line of successors shall continue according to this very rule. In the event of disagreement the Government shall have power to appoint as successor anyone amongst the descendants of each of the three successors whom it considers the fittest. And if anyone amongst our family claims maintenance contrary to the wishes of the talukdars, to wit, my successors, be shall, in no way, be entitled as of right to get maintenance. The successors shall have power to give or not (?) maintenance in the event of good conduct and obedien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that so far as was necessary for the disposition of the entirety of any property affected by the wills the heirs of Nawab Nasir had assented to the wills. His conclusion therefore was that the respondent had made out his title to the Oudh and Juliana properties. With regard to the Rakh Khamba property the learned Judge took the view that having regard to the terms of the grant Nawab Nasir had no power of testamentary disposition, that there, had been no election of a successor in accordance with the terms of the grant but that Sir Fateh had been recognized by the family as succeeding to this property under the will and that the defendant was estopped from denying that he had so succeeded. As to the Khalikabad property the learned Judge held that he had jurisdiction (which the appellant questioned) to decide the matter and that the respondent having succeeded to the Rakh Khamba property must be treated as successor of Sir Fateh and therefore trustee of the wakf. The learned Judge therefore made a declaration of the respondent's right to possession of all four properties. 13. On appeal to the Chief Court of Oudh the judgment below was affirmed as to the Oudh and Juliana proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l power of alienation, inter vivos, and disposed of the property testamentarily to the next taker in accordance with the testator's scheme. Witheut a succession of limited interests, the dominant intention cannot have effect and regarding each will as a whole their Lordships are of opinion that life interests only are conferred. This view receives additional support from the fact that the gift to each subsequent taker is expressed to be to him if alive or provided he be alive and after the lifetime of the previous taker and that the testator refers to all three-named takers as his successors. The gift in the Oudh will of talukdari powers and in the Punjab will of the same powers as the testator had, must in their Lordships' opinion, be read as a gift of such powers so far as is consistent with the subsequent provisions of the instrument. 16. The appellant's appeal therefore fails as upon this construction their Lordships are of opinion that the respondent was entitled on Sir Fateh's death to succeed to the Oudh and Juliana properties; as next tenant for life, both Courts below having held that the will was assented to by Nawab Nazir's heirs so far as was necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficient to estop Sir Fateh could create an estoppel against the appellant. 21. It was however said that Sir Fateh in fact went into possession under the wills and that upon the principle of the decisions in Board v. Board [1874] 9 Q.B. 48 and Dalton v. Fitzgerald [1897] 1 Ch. 440 and (1987) 2 Ch. 86 the appellant is estopped from disputing the title of the remainder men under the wills. Now the argument proceeds on the basis that there was no selection of Sir Fateh in accordance with the terms of the grant. Obviously if such a selection was proved, that fact would be inconsistent with the allegation that Sir Fateh went into possession under the wills. Ex hypothesi, therefore Sir Fateh had no title at all and although if he went into possession under the wills he might be estopped from denying the remaindermen's title, their Lordships are unable to see upon what principle the appellant entering into possession after his father's death without any title at all because his father had nothing to pass to him can be affected by any estoppel. 22. In each of the cases cited the entrant into possession under the invalid instrument had acquired a good title from another source and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far as the claim in respect of the Khalikabad property was concerned. There was nothing in what occurred in connexion with the respondent's ex parte applications to render the appellant's objection to the jurisdiction inadmissible. That objection has been properly considered in the Courts below, and is proper to be adjudicated upon before their Lordships' Board. The objection in their Lordships' judgment succeeds and is fatal to the respondent's appeal in respect of the Khalikabad property. It becomes therefore unnecessary to consider the true effect of the grant creating the wakf, and their Lordships must not be taken as expressing any views upon the conclusions reached on this matter in the Courts below. 26. A number of minor issues were considered and dealt with in the Courts below but wore not debated before their Lordships' Board. In the result therefore both appeals fail and should be dismissed, and their Lordships will humbly advise His Majesty accordingly. There will be no costs on either side except that an regards K. B. Sardar Mohammad Ali Khan's petition for the discharge of a receiver, K. B. Sardar Mohammad Ali Khan will pay to Sardar Nisa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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