ALLAH DIA Vs. ABDUL GAFUR

JUDGEMENT

(1.) THIS appeal turns on the interpretation of a deed executed by Nabi Bakhsh. on the 22 May, 1883. Nabi Bakhsh died in 1891 leaving as his heirs under the Muhammadan Law, his widow Umda, his sister Azimunnissa and his nephew Abdul Latif. A translation of the relevant portions of the deed of the 22 May, 1883 will be found in the judgment of the lower Appellate Court. The learned Counsel for the appellants agrees that this is a correct translation, I interpret the deed as a Will which could not be given effect to under the Muhammadan Law. Under it Nabi Bakhsh states that he will give maintenance to his wife Umda during his lifetime and that he will not transfer his property during the remainder of his life, and that after his death Umda is to take a life interest in his property. He further lays down that if Umda bears a son, such son will be the owner of the property. If she bears a daughter, the daughter will get a share under the Muhammadan Law, and he continues that if Umda has no children and survives him, then a man called Allah Dia, who was no relative of his, was to succeed to the residua after Umda's death. Now, it is to be noted that under this document if Umda predeceased Nabi Bakhsh, Allah Dia obtained no title to anything. If Umda survived Nabi Bakhsh but bore no children, under the terms of the Will Umda was to succeed to a life estate and Allah Dia was to obtain the residue. The terms of this Will are unenforceable for more than one reason. In the first place, Umda was an heir under the Muhammadan Law and the heirs did not consent to the Will. In the second place, the Will purports to create a life estate and a reversionary interest, both of which are unknown to the Muhammadan Law. It has been argued that, according to the view taken in Section 596 of Tayabji on Muhammadan Law, Second Edition, page 810, the bequest to Allah Dia would be good in respect to one-third of the property, I do not myself accept the view of the law taken in Section 596 of that Commentary, but even if I did, the plea of the appellants would not be advanced, because the Will shows a distinct intention that Allah Dia should take nothing until after the death of Umda Further, it will be impoisible to give effect to a deed creating a life-estate in favour of Umda and a reversion to Allah Dia over the whole estate by giving Allah Dia one third of the whole estate. The Will confers no sort of title on Allah Dia. The remaining point taken in appeal was that the suit was bad, because all the heirs of Nabi Bakhsh were not parties to it. There is no fores in this plea, The plaintiff had a right to come forward to obtain his rights as heir and he has been awarded nothing more. I, therefore, dismiss this appeal with costs.