RASOOLBIBI Vs. YUSUF AJAM PIPERDI

JUDGEMENT

(1.) [His Lordship after dealing with the facts of the case, proceeded]. Mr. Tyabji has contended that the interest given to Hafizabibi in the immoveably property is in the nature of a usufructuary bequest; that the devise of the property is to Haji Ajam, the usufruct being bequeathed to Hafizabibi. In that way the devise and the bequest took effect simultaneously on the death of the testatrix. For this contention he has relied upon the Hedaya, Vol. IV, Ch. 5, p. 527, where it is stated:- If a person bequeath the service of his slave, or the use of his house, either for a definite or an indefinite period, such bequest is valid ; because as an endowment with usufruct, either gratuitous or for an equivalent, is valid during life, it is consequently so after death ; and also, because men have occasion to make bequests of this nature as well as bequests of actual property. So likewise, if a person bequeath the wages of his slave, or the rent of his house, for a definite or indefinite term, it is valid, for the same reason. In both cases, moreover, it is necessary to consign over the house or the slave to the legatee, provided they do not exceed the third of the property, in order that he may enjoy the wages or service of the slave, or the rent or use of the house during the terra prescribed, and afterwards restore it to the heirs. Reliance has also been placed on a further passage at p. 531 which is as follows :- If a man bequeath the parson of his slave to Zeyd, and the service of him to Omar, and the slave exceed not a third of the testator's estate, his person belongs to Zeyd, and his service to Omar ; for as the testator has bequeathed a specific thing to each legatee respectively, each is therefore entitled to his own right. As, moreover, (the bequest to the usufructuary legatee being at any rate valid) if the slave's person has not been bequeathed, that would have belonged to the heirs, at the same time that his services would have belonged to the legatee ; so in the same manner his services belong to the legatee of usufruct where the testator has bequeathed his person to another; for bequest resembles inheritance, inasmuch as the right of property to the article is established after death in both instances. Reliance is also placed in this connection on Baillie's Digest of Moohummudan Law, Vol. I, p. 663, where it is stated :- It should be known that a bequest of the service of a slave, or the occupation of a mansion, or the produce (ghullut) of both, or of lands and gardens, is lawful. And it is lawful for a time or in perpetuity ; for, as the profits of a thing may be transferred by a person during his lifetime, with or without a consideration, so they may, in like manner, be transferred after his death ; the thing itself being, in a manner detained in his ownership, that the legatee may enjoy its profits, in the same way as a person in whose favour a wakf, or appropriation, has been made, enjoys its profits, by virtue of the ownership of the appropriator. A further passage relied on is at p. 664 :- When the service of a slave is bequeathed to one legatee, and his person to another, and the slave is within a third, each legatee is entitled to what has been bequeathed to him respectively. And if the bequest be absolute, the legatee of the service is entitled to it till his death; after which it is to bo transferred to the legatee of the person, if he bo alive, and if not, then it is to bo transferred to the heirs of the testator. A further passage relied on is at page 668 :- If a person should bequeath this slave to such an one, and his service to such another, or this mansion to such an one, and its occupancy to such another or this tree to such an one, and its fruit to another, or this sheep to such an one and its wool to another, each legatee would have what was mentioned for him without any difference of opinion, whether the bequests are connected together or are se parate. But if a beginning is made in these oases with the accessory and the principal is then bequeathed, as for instance, if the service of the slave is first bequeathed to one person, and the slave to another, or the occupancy of this man sion to one person, and the mansion itself to another, or the fruit to one and the tree to another, it is only when the bequests are made connectedly that each legatee is entitled to what has boon named for him specially; for if they are mentioned separately, the legatee of the principal is exclusively entitled to the principal and the accessory belongs to them both in halves. And if a mansion is bequeathed to one person, and a particular apartment in it to another, the apartment is to both in shares.

(2.) It is clear from the texts both of the Hedaya and Futawa Alumgiri (Baillie) that a simultaneous bequest may be made of the thing itself in favour of one person and its produce or use in favour of another. In such cases the ownership of the thing would be in the person to whom the thing itself is bequeathed and the person entitled to the use or produce would have such limited interest only in the thing. Baillie, at p. 669, makes the point clear. The passage is :- When the service of a young slave has been bequeathed to one person, and the slave himself to another, the latter is bound to maintain him until ha is fit for service ; but after that, the former is liable for his maintenance. It also clearly appears from a passage in Baillie, at p. 665, that usufructuary bequests are strictly construed in the Mahomedan law. The passage is:- When one has bequeathed the produce of his mansion or slave), and the legatee wishes to occupy the mansion himself, or make use of the service of the slave, can he lawfully do so ? There is nothing on the subject in the Asul ; and our sheikhs differ, but Aboobekr has said that he cannot; and this is valid.

(3.) Mr. Tyabji has relied upon the following passage in Clause 7 of the will as constituting a usufructuary bequest only :- My daughter Hafizabibi is to enjoy the abovementioned oart and the furniture etc. therein as long as she is alive and she is to enjoy the income thereof...However, she cannot alienate the same to any one for any reason whatsoever by way of sale, mortgage, gift, etc. I appoint her to he entitled to enjoy the same and take the income thereof as long as she is alive. This passage, however, is followed by a sentence which is :- As long as my daughter is alive, so long she is the owner of the said oart. Reading the clause as a whole, the intention of the testatrix seems clearly to be that Hafizabibi is to have all the right in this property which we associate with the term "life-estate." The testatrix has not devised the property to Ajam and bequeathed to Hafizabibi during her lifetime the enjoyment of its produce as in the case of a usufructuary bequest, but Hafizabibi is to enjoy the property itself-both corpus and income-during her life. The right given to Ajam under this clause is :- And after her (Hafizabibi s) death 1 appoint the aforesaid boy Ajam, the son of Goolam Hoosein, as the owner of the said oart and the furniture etc. therein. therefore after the death of Hafizabibi the aforesaid Ajam and his descendants whoever may be, shall take into their possession the aforesaid oart; together with the articles and things therein and they are duly the absolute owners thereof. The right of ownership conferred on Haji Ajam and his descendants is postponed until after the death of Hafizabibi. There is no evidence before me that during the lifetime of Hafizabibi anybody but Hafizabibi paid the taxes in respect of this property or spent on its repairs and upkeep. It is not shown that Haji Ajam in his lifetime or his heirs since his death have exercised any act of ownership in respect of this property. I am unable to accept Mr. Tyabji's contention that the clause in the will should be construed as conferring a usufruct only on Hafizabibi or as giving the ownership of the property to Ajam.