IMAM SAHEB Vs. AMEER SAHIB

JUDGEMENT

(1.) One Imam Sahib had a son named Moideen Sahib, and three daughters named Kulsumbi, Jainabi and Asyabi, Moideen Sahib, has a son Imam Sahib and he is the first defendant in the suit. Jainabi had a son named Dada Miya who died in 1946. Dada Miya married the first plaintiff and by her he had Gve children who arc plaintiffs 2 to 4 and defendants 2 and 3. On 28-3-1906 Imam Sahib executed a settlement deed Ex. A. 1 wherein, inter alia he made the following provisions. He gave all his properties to his son Moideen Sahib and directed that he and his heirs should pay five mudis of rice to Kulsumbi and another five mudis to Jainabi and after their lifetime to their male children. Asyabi had a daughter and so far as she was concerned, the settlor directed that she was to be given eight mudis of rice and Rs. 4 per annum but after her death no one "shall have the right to claim anything allotted to her. After her death, you and your representatives shall utilise the said rice and cash." Then followed the further direction that out of the income from item 8, certain expenses were to be incurred for lighting lamps etc, in a mosque which the settlor specified. Towards the end of the document the settlor attempted to make his intention in respect of Kulsumbi and Jainabi plainer. He said:

(2.) The action out of which this second appeal arises was brought by the widow and children of Dada Miya claiming payment of the five mudis of rice which under the terms of the settlement deed, they stated, the first defendant should have given to them. The third defendant is a woman and her claim was negatived on the ground that only the male descendants of Kulsumbi and Jainabi could claim payment by virtue of the provisions of Ex. A. 1, The claim made by the sons of Dada Miya was allowed by the learned District Munsif and the appeal which the first defendant took to the learned Subordinate Judge, South Kanara was dismissed. He has therefore conic to this court.

(3.) The arguments before me covered a considerable extent of ground but it is possible to dispose of the appeal on a very short point. In so far as the dispositions made under Ex. A. 1 by Imam Sahib can be regarded as an attempt to limit the succession to male heirs and thus to create a line of succession unknown to Muhammadan law, it is bad. In so far as the direction that five mudis of rice should be paid to the male descendants of Kulsumbi and Jainabi can be regarded as a gift it would be bad because it would be a gift to persons not in existence on the date when the document was executed. It is not controverted that on the date of Ex.. A.1 Dada Miya had no children born to him.