BAYABAI Vs. BAYABAI

JUDGEMENT

(1.) THE plaintiff is the daughter of one Esmail Ahmed by his divorced wife Hawabai. Esmail Ahmed died on December 3, 1941. Defendant No.1 was the second wife of Esmail Ahmed, and defendant No.2 is the son of Esmail Ahmed by defendant No.1. THE plaintiff has filed this suit on the allegation that Esmail Ahmed died intestate leaving property, and the plaintiff and the two defendants are the only heirs of the deceased according to Mahomedan law.

(2.) IN their written statement the defendant set up a will made by the deceased on October 7, 1933. Under this will excepting a bequest in favour of the plaintiff of Rs. 500 for marriage expenses, the plaintiff is not benefited at all. The testator directs under the will that a sum not exceeding Rs. 1,000 should be spent for his funeral and other obsequial ceremonies. He also directs that a sum of Rs. 500 be paid to Fatmabai, daughter of defendant No.1 by her predeceased husband. The testator also directs the payment of Rs. 25 per month to his brother Haroon Ahmed. He then directs that a sum of Rs. 45 per month should be paid to defendant No.1 during her natural life, and if she re-married, then a sum of Rs. 20 per month should be given to her. Subject to these dispositions, the whole of the property is bequeathed to his son, defendant No.2.

(3.) AS the will was set up by the written statement, the plaintiff's contention before me was that the bequests made under the will were invalid in law. I directed the plaintiff to amend her plaint and make the submission to that effect. In the amended plaint the plaintiff now contends that notwithstanding the will there was an intestacy so far as the claim of the plaintiff as an heir of the deceased was concerned. The execution of the will is not disputed by the plaintiff nor really is its validity. All that is contended is that the bequests made under the will are not in accordance with Mahomedan law, and no effect can be given to them, and as practically the whole of the estate is the subject-matter of these bequests, the estate should be distributed among the heirs as if the deceased had died intestate.