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Petitioner: AMINA KHATUN VS Respondent: SIDDIQUR RAHMAN DIHIDAR
P L D 1960 Dacca 647
P L D 1960 Dacca 647
Before Akbar and Murshed, JJ
AMINA KHATUN AND ANOTHER‑Appellants
versus
SIDDIQUR RAHMAN DIHIDAR AND OTHERS -- Respondents
First Appeal No. 14 of 1953, decided on 20th February 1958.
Muhammadan Law‑Will‑Bequest for life interest to heir with remainder to stranger‑Failure of bequest to heir for non‑consent of co‑heirs‑Subsequent bequest to stranger also fails.
Under the Muhammadan Law if A bequeaths a life interest to an heir B, and thereafter the remainder to C, a non‑heir, the bequest to C will fail if the life estate to B is invalid for want of consent of the heirs.
Fyzee's Outlines of Muhammadan Law, 1st Ed. p. 313, Art. 170 ; Wilson's Anglo‑Muhammadan Law 3rd Ed. p. 304, Art. 273 and Fatima Bibee v. Ariff Ismadjee Bham and others 9CLR66ref.
A. S. Chowdhury, Birendra Math Chowdhury and. A. H. Mirza for Appellants.
Maksumul Hakim and Ahmad Sobhan for Respondent No. 1.
JUDGMENT
MURSHED, J.‑This appeal arises out of a decision of Mr. G. Mowla, Subordinate Judge, 3rd Court, Comilla, in Partition Suit No. 168 of 1948.
2. The admitted facts are as follows: Asad Ali, Kasem Ali, Hyder Ali and Wahed Ali were 4 brothers who had a surviving sister by the name of Sonai Bibi. Asad Ali died ‑leaving a widow (defendant No. 3), and two daughters by the name of Amina Khatun and Asia Khatun (defendants Nos. 4 and 5), and three brothers who are defendants Nos. 1 and 2, and Hyder Ali and sister Sonai Bibi. Sonai Bibi died leaving four sons, namely, defendants Nos. 9 to 12 and two daughters who are defendants Nos. 13 and 14. Hyder Ali died leaving three sons, namely, Siddiqur Rahman Dihidar (the plaintiff), defendants Nos. 6 and 7, and one daughter by the name of Durlav Bhanu who is defendant No. 8. Defendant No. 6 Moulvi Sekandar has married defendant No. 5.
3. Plaintiff's case may be stated as follows: Asad Ali had 13 annas share in the properties described in the 1st Schedule, and Kasem Ali, Hyder Ali and Wahed Ali each had one anna share in them. There are 5 buts included in the 1st Schedule, and the aforesaid four brothers are owners of these huts according to their respective shares. All the four brothers erected those four huts by money given by the bharatias. The share of the four brothers had been decided by the High Court in Appeal No. 56 of 1938.
4. The properties described in the 3rd Schedule belonged exclusively to Asad Ali. With regard to the properties described in the 2nd Schedule, Asad Ali, Hyder Ali and Kasem Ali each had 1/3rd share in them. The plaintiff further alleges that he is not aware of any Will executed by the said Asad Ali in favour of his wife Maleka Bibi, two daughters Amina Khatun and Asia Khatun, and his grandson Abdul Momin. The heirs of Asad Ali never consented to the disposition of the properties according to the Will. It is contended that the Will is void and inoperative. There is no dispute with regard to the properties described in the aforesaid Second Schedule. Plaintiff claims a certain specified share in the aforesaid properties, and, as his demand for partition was refused by the defendants, he had to institute this suit.
5. Defendants Nos. 3 to 6 contested the suit and filed a joint written statement. The other defendants did not put in appearance.
6. The defence is that in the aforesaid appeal decided by the High Court, there is no decision as to the shares of Hyder Alt and Kasem Ali. 1t is, therefore, contended that the 2 annas share would remain with Wahed Ali as the other two brothers were not parties to that suit. The contesting defendants have further contended that the said five huts included in the first Schedule were constructed by Asad Ali with his own money. The huts in Schedule 1 (uma) and 1 (cha) have been constructed by Moulvi Sekandar and his wife Asia Khatun. They have submitted that the other co‑sharers have no interest in the said huts. With regard to the 3rd Schedule, the said defendants contend that Asad Ali executed a Will in favour of his wife Maleka Bibi, and his two daughters Amina Khatun and Asia Khatun, and his grandson Abdul Momin. It is claimed that the said legatees have been possessing the properties under the Will, and that the plaintiff cannot claim any interest in them. Various other defences were taken in the written statement which need not be set out here.
7. On the pleadings, sixteen issues were framed by the learned Subordinate Judge. Issues Nos. 1 to 5, as framed by him, were not pressed by the parties. Issues Nos. 6 to 15 read as follows:
" (6) Have the parties got unity of interest in all the plaint land.
(7) Is Asad Ali alone owner of C. S. Plot No. 895 of the 1st Schedule ?
(8) Who are the owners of huts mentioned in the plaint ?
(9) What are the shares of the parties in the respective schedules of the plaint ?
(10) Is defendant No. 6 alone owner of C. S. Plots Nos. 348 and 361 and 347 and 349 of 3 (ka) Schedule lands ?
(11) Have defendants Nos. 4 and 5 purchased 1 anna share from Samart Bhanu, defendant No. 3 ?
(12) Was there any Will by Asad Ali in favour of defendants Nos. 4 and 5 ?
(13) Is the suit bad for defect of parties ?
(14) Are the plaintiffs liable to pay the debts of Asad Ali while claiming the share of Asad Ali ?
(15) To what relief, if any, are the plaintiffs entitled ?"
8. The learned Subordinate Judge decided all the issues in favour of the plaintiff with regard to the properties in the 1st and 3rd Schedules of the plaint. He, therefore, passed a preli minary decree declaring the share of the plaintiff, as, claimed by him, and appointed a Commissioner to effect partition by metes and bounds in accordance with the share so declared.
9. Against the aforesaid judgment and decree, defendants Nos. 4 and 5 have preferred this appeal.
10. Mr. A. S. Chowdhury, counsel for the appellants, took us through the evidence in this case. He has pressed two points before us which are as follows:
(1) The learned Subordinate Judge should have held‑ that the Will (Exh. C) was valid to the extent of 5 annas share that was given to a grandson of the testator, namely, Abdul Momin who is not an heir of the said testator.
(2) The learned Subordinate Judge was wrong in holding that the huts mentioned in Schedule 1 belonged to the four brothers, and not to Asad Ali alone.
No other point was pressed before us.
11. The following portion of the` contents of the Will (Exh. C)‑may be usefully quoted here
"On my death there is a chance of quarrel amongst the future heirs over my property and causing loss to them. For preventing the said future loss, I give by this Will out of my 16 annas share of the properties mentioned in the Schedule, 4 annas share to my eldest daughter Amina Khatun, wife of Jehan Ali Bali of Mokimabad, Pargaria Tora, P. S. Haziganj, District Tippera ; 2 annas to my youngest daughter Asia Khatun, wife of Moulvi Sekandar Ali and l0 annas share to my wife Sreemati Maleka Khatun, wife of Asad Ali Dihidar of Mokimabad, Pargana Tora, District Tippera. My wife only will be able to enjoy the same during her life time, and she will not be entitled to transfer or mortgage the same in any way, and, if it is done, it will be treated as cancelled, and, on the death of my aforesaid wife Maleka Khatun, out of the aforesaid 10 annas share of my wife given to her by me, my eldest daughter Sreemati Amina Khatun, wife of Jehan Ali, will get 2 annas, and my youngest daughter Sreemati Asia Khatun, wife of Moulvi Sekandar Ali, will get 3 annas share, and my affectionate grandson Abdul Momin, born of the womb of my eldest daughter, and son of Jehan Ali Bali of Mokimabad, Pargana Tora, District Tippera, will get 5 annas shares."
12. On a construction of the Will, and in the light of the facts and circumstances of this case, the learned Subordinate Judge held that, inasmuch as the heirs of the deceased testator did not give their consent to the Will, the Will is void so far as the heirs are concerned. He has further held that the bequest to Abdul Momin also fails, because the prior bequest to Maleka Khatun has failed for wont of consent of the heirs. Toe learned counsel for the appellant has, however, urged that Abdul Momin, not being an heir of the testator, was entitled to 5 annas share of the property. He has relied on the following passage from Fyzee's Outlines of Muhammadan Law, 1st Edition, page 313, Article 70:
"On the failure of a prior bequest, there may be either an acceleration of the later bequest, or an avoidance of it. T bequeaths certain property to L for his life, and from and immediately after L's decease to LA. In this case there is no specific intention that LA is to take nothing till after the death of L ; and if the testator simply revokes the bequest to L, the estate of LA would be accelerated. On the other hand, if T purports to give life interests in more than I of his property to his heirs, and, thereafter, to charity, and the heirs do not consent to such a disposition, both the bequests fail, and no question of acceleration arises."
13. It will be seen that the above observations do not support the contention advanced before us by the learned counsel for the appellant. It is the latter illustration, as quoted above, which applies to the facts of this case, and, according to the observations stated above, the bequest to Abdul Momin fails. This will find support from the following Article in Willson's Anglo‑Muhammadan Law, 3rd Edition, page 304, Article 273, which reads as follows:
"If a testator bequeaths property to one of his heirs for life, or to two or more of his heirs or their joint lives, and the life of the survivor, with remainder to some stranger to whom he might lawfully bequeath it, or to some lawful charitable purpose, then the failure of the original bequest, for want of assent of the other heirs, will involve the failure of the subsequent bequest also."
A decision of the Calcutta High Court in the case of Fatima Bibee v. Arif Ismailjee Bham and others (9 CLR66), applies to the facts of this case. In this case a Mohamedan, by his Will, bequeathed the rents of a certain house in trust for his children, and directed that, after death of the last surviving child, such rents should be paid to the Committee of the District Charitabls Society. It was held in this case that as the gift to the children being a gift to the heirs of the testator, to which there was no assent, was invalid, the gift to the District Charitable Society also failed. Wilson, J., at page 74 of the report, observes as follows:
"As to one house, of which the testator had first directed the rents to go to his children, he directs that, after the death of the last child, they shall be paid to the Committee of the District Charitable Society for the benefit of the poor. I think this gift fails. The prior gift to heirs also fails, because it would interfere with the distribution which the law makes amongst the heirs, and it would wholly defeat the testator's intentions if the heirs were ousted for the benefit of the Society."
14. From the above, it is clear that under the Mohammedan Law if A bequeaths a life interest to an heir B, and thereafter the remainder to C, a non‑heir, the bequest to C will fail if the life estate to B is invalid for want of consent of the heirs. Therefore, for the reasons which we have already discussed, we hold that there is no substance in the first point pressed on behalf of the appellant.
15. With regard to the second point, the learned Subordinate Judge fully discussed the evidence in this case. We find that the conclusions reached by him faithfully represents our own appreciation of the evidence on this point. We do not propose to lengthen this judgment by repeating them here.
16. The contesting defendants rely on the kabuliyats marked as Exh. A series, and on the oral evidence led on their behalf. The kabuliyats represented by Exh. A series are insufficient by themselves to establish the fact that Asad Ali was the exclusive owner of the huts. The evidence on behalf of the contesting defendants do not inspire any confidence in us. There is no satisfactory evidence that Asad Ali erected the said huts with his own money. No document or paper has been produced to prove this. There is also no reliable evidence that rents were realised from bharatias on the basis of the kabuliyats, namely Exh A series. The fact that Moulvi Sekandar was allowed to keep fuel in the two huts does not establish that they belong to him or Asad Ali.
17. We believe the plaintiff's version that the huts were erected from money supplied by the bharatias themselves, and that no rents were realised as they were being set off against the money so spent. This is highly probable having regard to the facts and circumstances of this case. 'We, therefore, find that the learned Subordinate Judge was right in holding that the said huts belong to all the four brothers, and not to Asad Ali alone.
18. This appeal therefore, fails on all the grounds that were pressed before us. It is accordingly dismissed with costs.
AKBAR, J.‑I agree.
K. B. A. Appeal dismissed.