ABDUL RAHIMAN SAHIB Vs. UTHUMANSA ROWTHER

JUDGEMENT

(1.) Plaintiffs are the grandsons of the first defendant by his elder son Muhammad Ganni, who died in 1911. The second defendant is the younger son of the first defendant. The third defendant is an alienee of some of the properties. The fourth defendant is a lessee and is in possession of some of the plaint properties. The fifth defendant is the plaintiffs mother. The plaintiffs case is that their father Muhammad Ganni and their grandfather, the first defendant Khader Sahib, traded in Natal and acquired considerable properties, that by an arrangement in 1908, evidenced by Exhibit B, they became entitled to A and B schedule properties, that their father left a Will, Exhibit C, to which the first defendant was a consenting party, and that they are, therefore, entitled to the whole of the A and B schedule properties; and that the alienation in favour of the third defendant does not bind the plaintiffs and that they are entitled to the G Schedule properties, half of the movables in the D Schedule and to the half-share in the mortgage debt which is set out in Schedule G. The first defendant died without filing a written statement. The second defendant pleads that plaintiffs are entitled to only the property of their father as residuaries that the alienation in favour of the 3 defendant is binding upon the plaintiffs, that they are net entitled to any of the movables and that they are only entitled to 5-12ths share in the mortgage debt. The third defendant contends that he purchased the property bona fide and for consideration from the guardian of the plaintiffs and that the sale is binding upon the plaintiffs. The Subordinate Judge granted a decree in favour of the plaintiffs for five-sixths of the A and B schedule properties and 5-12ths of the G schedule debt and dismissed their claim as regards the G schedule properties and movables and upheld the alienation in favour of the third defendant. The plaintiffs have appealed in respect of the reliefs denied to them. The second defendant has filed a memorandum of objections.

(2.) First point. - The first point urged by the appellants is that they are entitled to the whole of the properties mentioned in schedules A and B of the plaint. Their argument is that by Exhibit B their father was given only a life interest and that they had a vested interest in the properties and that, even if it be held that their father was entitled to the properties, the plaintiffs are entitled to the whole of them inasmuch as the first defendant gave his consent to the Will, Exhibit C, before it was executed and by his conduct acquiesced in the provisions of the Will subsequent to the death of Muhammad Ganni, and that, in any case, the arrangement evidenced by Exhibits B, C and XIII should be considered as a family arrangement behind which neither the first defendant nor the second defendant could go. Exhibit B was executed on the 11 January, 1908 by Khader Sahib. It is called a deed of settlement, and by it he settled his property upon his two sons Muhammad Ganni and Uthman Sahib. It was argued very strenuously by Mr. T.M. Krishnaswami Iyer that the settlement gave only a life interest to Muhammad Ganni and that the plaintiff got a, vested right to the properties. Reliance was placed upon the following recital in the document : "Either of my sons shall not subject the properties aforesaid to mortgage with possession, hypothecation, security, sale or to any other alienations and both of them shall live with the income derived from the same every year and thus maintain themselves. After them their descendants shall enjoy the same with the right of making alienations as they pleased." The suggestion is that Kadher Sahib, who acquired considerable property by trading in Natal for a number of years, was anxious that his grandsons should enjoy the property so that-the family may be perpetuated, and as Muhammad Ganni was in a weak state of health at the time of the execution of Exhibit B it should be considered that Muhammad Ganni took only a life-interest under Exhibit B. The contention that. Muhammad Ganni was given only a life- interest, is opposed to the recital. "I have given away the nemja, punja, houses and ground and shops specified in schedule A to my eldest son Muhammad Ganni Sahib and he shall enjoy the said properties from this date with all rights, absolute." In the same manner the settler gave property nanja, punja, house-and ground and shops specified in schedule B to his second son Uthman Sahib. It cannot be said that the settler wanted the sons of Uthman Sahib, who were not then in existence, to take the property subject to the life interest of Uthman Sahib. The Muhammadan Law does not permit such a bequest in favour of unborn sons and it cannot be said that in the case of one son the settler wanted his grandsons to have the benefit subject to a life-interest in favour of his son, and in the case of the second son he gave him the property absolutely. It is unnecessary to speculate as to the intention of the settler. We can only gather his intention from the expressions actually used in the deed of settlement. The direction against alienation is only a restraint upon alienation, a pious wish that the sons should hand down the properties to their children unimpaired. On a careful reading of Exhibit B, the only construction which consistent with the recitals and the clear words of the document is that both Muhammad Ganni and Uthman Sahib took an absolute estate in the properties settled upon them by their father Khader Sahib. In this view it is unnecessary to consider the question whether the Muhammadan Law permits the creation of a vested remainder by a deed of settlement or by Will. Any expression of opinion on the point can only be obiter. In Abdul Wahid Khan v. Nuran Bibi (1885) 11 Cal. 597, their Lordships of the Privy Council observe at page 605 (11 Cal) "To give the plaintiffs a title to the estate, it must be a vested interest which, on the death of their sons, passed to their heirs, and is similar to a vested remainder under the English Law. Such an interest in as estate does not seem to be recognised by the Muhammadan Law." In Humeeda V/s. Budlun and the Government (1869) 17 W.R. 525 (P.C.), their Lordships held that the creation of such a life estate did not seem to be consistent with the Muhammadan usage and that there ought to be very clear proof for so unusual a transaction. It is not opposed to Muhammadan Law to make a bequest in favour of a legatee subject to the legatee paying a certain amount to another person. In other words, a trust can be created subject to which a legatee could take a bequest; but the words must be explicit for the purpose of creating a trust. Tavakalbhai Sultanbhai v. Imtiyazbegam Mirbanesaheb (1917) 41 Bom. 372 and Banoo Begam V/s. Mir Abed Ali (1910) 32 All. 172. In the present case there is no trust created in favour of the plaintiffs. The settlement is in favour of the plaintiff's father and the plaintiffs can only inherit to their father and cannot claim independently of their father any right to the property settled under Exhibit B.

(3.) The next contention is that the first defendant consented to the disposition under Exhibit C, the Will of Muhammad Ganni executed on the 11 January, 1908. Three documents, Exhibits B, G and XIII were executed on the same date. Exhibit B is the deed of settlement, Exhibit G is the Will of Muhammad Ganni and Exhibit XIII is the Will of Khader Sahib. Khader Sahib was at that time an old man of 80 years of age. Muhammad Ganni seems to have been in indifferent health and had arranged to leave the place for a time ; for the evidence is that he left shortly after the execution of Exhibit C for Natal where the father and the son carried on a lucrative trade. Mr. Varadachariar, on behalf of the defendants, contends that Exhibit C does not contain any disposition of property that it only gives a direction for the management of the property during the minority of the plaintiffs and that by it only testamentary guardians have been appointed for the management of the properties during the minority of the plaintiffs. Mr. Krishnaswami Ayyar for the appellants, on the other hand, lays stress upon the words "He shall deliver the same to them." His argument is that the Will is in Tamil and that there are no proper words in the Tamil language which could clearly express an intention to bequeath property to a legatee. This is rather a startling argument. The Tamil language contains words capable of expressing the intention of a testator who wishes to bequeath property to a legatee. The mere fact that the Will is in the Tamil language is no ground for reading into it something which it does not contain. He relies upon the Tamil sentence : ("Minor Majoronapiragu Avergalvasam oppu vithu vidavendiyathu").