MAHOMED JUSAB ABDULLA Vs. FATMABAI JUSAB ABDULLA

JUDGEMENT

(1.) THIS case raises a very short but very interesting and important point of Mahomedan law. The facts really are not in dispute. One Jusab Abdulla died on October 7, 1919, leaving him surviving his widow Fatmabai who is the defendant in this case, a daughter Khatoobai and the plaintiff who was a son by his predeceased wife.

(2.) ON August 6, 1925, Fatmabai, the defendant, and Khatoobai purchased an immoveable property. It is not disputed that Khatoobai contributed Rs. 10,000 and the defendant Rs. 7,500 towards the purchase of this property. The mother and daughter obtained a conveyance in their favour which is a conveyance in English form drafted by a solicitor of this Court, and the particular provision in this conveyance to which attention might be drawn is the habendum clause which lays down the interest in the property which the mother and the daughter were to enjoy and this is how the habendum clause runs: To have and to hold the hereditaments and premises hereby granted or expressed so to be unto and to the use of the purchasers for ever as joint tenants and not as tenants in common. Khatoobai died on September 3, 1944. She left as her heirs, according to the Sunni Mahomedan law, by which she was governed, her consanguine brother, the plaintiff, and her mother, the defendant; and the plaintiff's contention is that as her heir he is entitled to his share in Khatoobai's interest in this immoveable property which she and her mother purchased in 1925. The answer given by the defendant is that the property was held by Khatoobai and Fatmabai as joint tenants; and on the death of Khatoobai, Khatoobai's interest in the property came to an end and Fatmabai became the absolute owner of the property and the plaintiff has no interest whatever in the property.

(3.) MR. Boovariwala has strongly relied on the decision in Kasam v. Gokarnaya (1903) 5 Bom. L. R. 701. With great respect to that very distinguished Chief Justice, Sir Lawrence Jenkins, the facts are not clearly stated in the judgment and the reasoning also does not appear. What the Court was there doing was to construe a certain bequest of a land to three persons. The Subordinate Judge took the view that the bequest was of one-third land to each of the legatees. The Assistant Judge took the view that it was a joint gift; and Sir Lawrence Jenkins agreed with the view of the Subordinate Judge. But I do not find from the judgment or the report as to what exactly were the terms of the bequest.