GHULAM MOHAMMAD Vs. GHULAM HUSAIN

JUDGEMENT

(1.) One Khadim Husain, a Mahomedan, governed by the law of the Hanafi school, died on 21 August 1901, Two days before his death he made a will in the following terms : "I, Shaikh Khadim Husain, son of Munshi Aman Ullah, deceased, resident, jagirdar and talukdar of Ganeshpur, District Basti, declare as follows : " I own and possess movable and immovable property of every description (such as) houses, groves, etc., in the Districts of Basti, Gorakhpur and Fyzabad, and it is in my possession and enjoyment as a proprietor without the participation of anyone else. The immovable property consists of three kinds of property : one is that which is meant for maintenance of disciples and female slaves [under a will, dated 25 November 1866, my father, Maulvi Shaikh Aman Ullah, deceased, gave (this property) to me alone]. This property which he had, under a will, dated 13 June 1837, got from his father for maintenance of the disciples and the female slaves us proprietor, it the panchmi share in the entire taluka of Ganeshpur. My father, having included a panchmi share in his self-acquired property to that property, conferred it on me as proprietor under the said will. Accordingly, after the death of my father, I, the executant, entered in possession had occupation thereof under the said will. The second kind of the immovable property is that which has devolved it upon me from my deceased father and the other persons ; the third is that which I, the executant, myself have acquired. I have two sons. Shaikh Ghulam Husain and Shaikh Ghulam Muhammad, minors; three daughters. Mt. Roshanunnissa, Mt. Khairunnissa and Mt. Mumtazunnissa, and one wife, Mt. Amna Bibi. who is now alive. As there is no certainty of life, I, the executant, also think it proper to make a will in conformity with the custom of my family in order that no dispute may arise in future among my heirs. My elder son, Ghulam Husain, minor, shall remain in proprietary possession of the panchmi share in taluka Ganeshpur, together with the panchmi property acquired by my deceased father given to me under the will. dated 5 November 1866, for maintenance of the disciples and the female slaves in accordance with the conditions laid down in the will made by my father; and a one-fifth share acquired by me, the executant, Shaikh Ghulam Husain aforesaid, should, from the income thereof, maintain the disciples and the female slaves, who are alive now, or in future those who may be increased in their generations. (Paper torn). The disciples and female slaves have no proprietary right in the said property. They an entitled to food and clothing only. If any of them disobey or refuse to render service or take up service at another place, then Shaikh Ghulam Husain aforesaid is empowered to discontinue his maintenance. Both my sons, Shaikh Ghulam Husain aforesaid and Sheikh Ghulam Muhammad aforesaid, who is born now, shall after me be the owners in possession of all the property which I have, by right of inheritance, received from my deceased father, Maulvi Shaikh Aman Ullah, and the other persons, and which I have myself acquired, and out of which property four-fifths share has been saved. So long as they live jointly, they shall appropriate the profits jointly, and after separation they should divide the profits of the said property half and half. Both the sons should, out of the profits of the same property, pay Rs. 600 a year to their mother, Mt. Amna Bibi, and Rs. 800 a year to each of my daughters, namely, Mt. Roshanunnissa, Mt. Khairunnissa and Mt. Mnmtazunnissa, after their marriage, generation after generation. The said Mussammats have no proprietary power in the property. If Shaikh Ghulam Husain and Shaikh Ghulam Muhammad fall to pay the fixed amount to the said Mussammats, the latter are empowered to recover their annual amount by bringing a suit. When both the brothers become separate, they should, out of the profits of the property in their respective possession, continue to make payment to my wife and daughters. Both my sons an still minors. God forbid, if I die before they attain majority, their mother, Musssammat Amna Bibi, shall be their guardian during their minority. After attaining majority my both sons shall themselves be the owners in possession and abide by the conditions of the will and make management. This will shall come into force after me, the executant. As long as I am alive, no one has power to cause interference. Both the sons shall be the owners of the moveable property and the houses half and half.

(2.) In line 15 the word "milkiatan" written above the line is correct. Hence I have executed these few presents by way of a will in order that it may serve as evidence. Dated 19 August 1901. Signature of Shaikh Khadim Husain (The will executed by me is correct, in autograph). " The principal question in this appeal is as to the construction of the will so far as regards what is referred to therein as the "panchmi" property. The appellant, the younger of the two sons of the testator, sued to establish his right, under the events which had happened since his father's death, to a moiety of this property. Respondent 1 denied his brother's right to any share at all, though it is not clear how far he claimed the property for himself. The trial Judge decided in favour of the appellant, but gave him a quarter share only. Both parties appealed to the High Court (their appeals being numbered respectively 139 and 164 of 1928), with the result that the suit was dismissed. These appeals were heard jointly with two other appeals in suits instituted by one of the daughters of Khadim Husain, but in which no appeal has been taken to His Majesty in Council, and with which therefore the Board are not concerned. The other respondents are alienees from respondent 1 and have taken no part in the proceedings,

(3.) It is not disputed that under the Hanafi law, if the effect of the will was to confer a beneficial interest in the panchmi property upon respondent 1, it was invalid unless consented to by the other heirs after the testator's death. The first question therefore is whether this was the true effect of the will. The trial Judge held that it was the High Court, on the other hand, took the view that respondent 1 was a mere trustee with no beneficial interest in the property. The decision no doubt concerns directly only the will of Khadim Husain, but the references by the testator to the will of his father Amam Ullah, and the trend of the arguments in the case, make it necessary to consider the terms of his will also, and this in turn brings in the will of Kadir Baksh, the grandfather of Khadim Hussain, under which the panchmi property originated.