ABDUL SATTAR ISMAIL Vs. ABDUL HUMID SAIT

JUDGEMENT

(1.) This appeal raises important questions of law, in the first place with regard to the testamentary capacity of Cutchi Memons before the passing of the Cutchi Memons Act, 1938, and in the second place with regard to the validity of a wakf which a Cutchi Memon by his will directed should be endowed by the property forming the residue of his estate. The appeal arises out of two suits filed on the original side of this Court for the administration of the estate of Hajee Sir Ismail Sait, a wealthy Mussalman of the Hanafi sect and a member of the Cutchi Memon community, who died in Bangalore on 24 April 1934. He had eight children, seven of whom survived him, as did their mother. He left a will and a codicil there- to, both of which have been admitted to pro-bate by this Court. On 6 December 1939, two of the testator's grandsons, sons of his eldest, son, filed C. S. No. 280 of 1939 for the administration of the estate in accordance with the testamentary directions given by their grandfather. On 16 December 1939, his third son filed C. S. No. 286 of 1939 for the administration of the estate on the basis that the will was invalid. The two suits were tried together by Somayya J. and this appeal is from his judgment. The relationship between the parties will be gathered from the following genealogical tree.

(2.) The descriptions are those of the parties to the second suit, all of whom were all the parties to the first suit. Admittedly the properties left by the testator had been acquired by him as the result of his own exertions. His will is dated 19th March 1934. He made specific bequests of immovable property to various religious, pious and charitable institutions and a sum not exceeding Rs. 25,000 for the erection on the lands of the Jamna Musjid in the old Poor House Road, Bangalore, of shops and business premises, which were to constitute an additional endowment of this mosque. After making bequests of moveable property to various members of his family and provision for the maintenance and education of his grandchildren, he gave these directions (clause 15): Whereas with the object of attaining nearness to God and reward in the world to come I am desirous of making wakf of all the rest residue and remainder of my estate in the hands of my trustees not hereinbefore or by any codicil specifically disposed of or dealt with and after my trustees shall have set apart thereout sufficient to provide for the payments hereinbefore directed to be made such wakf is hereinafter called the wakf estate and shall for all time after my death be known as the wakf estate of Hajee Sir Ismail Sait of Bangalore for the education, maintenance, marriage, support and other expenses of all my grandchildren now born or to be born and their descendants both male and female from generation to generation in proportion to their respective shares in my estate if the devolution thereof had been governed by the Mohamedan law applicable to the Hanafi sect in case of intestacy. In clause 21 of the will the testator made provision for the application of the income of the wakf estate in the event of his family becoming extinct. The clause reads as follows: In the event of the descendants both male and female of my said grandchildren becoming extinct the wakf trustees for the time being shall hold the wakf estate and the investments for the time being representing the same in trust for the following charities in such proportion as my wakf trustees shall think fit : (1) Mosques and provision for imams to conduct worship therein; (2) Distribution of alms to poor persons and assistance to the poor to enable them to perform the pilgrimage to Mecca. (3) Celebrating the death anniversaries of myself and of the members of my family. (4) Beading the Koran in public places and also at private houses. (5) Maintenance of my poor relations and dependants. The testator appointed his second son, Yoonus and two others who wore not members of the family as his executors and his eldest son Abdul Sattar, Yoonus and one Abdul Sattar Abba of Mysore to be the first trustees and Muttvallis of the wakf estate. Only Yoonus proved the will. The codicil is not of importance. It is common ground that it relates only to the school fees of a deceased grandson and that it stands or falls with the will. Cutchi Memons are the descendants of Hindus who were forcibly converted to Mohammadanism some 400 years ago. In spite of their conversion, they retained the Hindu law of succession and inheritance and, generally speaking, their descendants continued to adopt as their personal law the Hindu law in such matters until the Cutchi Memons Act of 1988 was passed. The plaintiff averred that the family had elected to be governed by the Mohamedan law in matters of succession and inheritance and therefore the testator was unable to dispose of more than one-third of his estate by will. The plaintiff also challenged certain of the legacies and the validity of the wakf. His case in all respects was strongly opposed by defendant 1 and his sons. They maintained that the testator had full disposing power and that the will was valid in its entirety. The plaintiff is supported by defendants 2, 3, 4, 5, 28 and 29. All the other members of the family support in the main defendant 1 and his sons. The two questions of importance are whether the testator had power to dispose of the whole of the estate by will or whether his power was limited to the Mohammadan rule of one-third and whether he created a valid wakf in respect of the residue of his estate. There were numerous other questions raised below, but, in the view which we take of the case, it will not be necessary to discuss the other questions, save one which is raised in a memorandum of cross-objections filed by defendant 5.

(3.) The testator's father migrated from Cutch to Bangalore in 1870 and ever since the family has resided in Bangalore. The learned Judge rejected the plaintiff's contention that the family had elected to be governed by Mohamedan law and held that it had retained the personal law which the testator's father brought with him from Cutch in 1870. This finding is not challenged. Indeed, it could not be in view of the testator's statement in his will that he had not made a declaration under the Cutchi Memons Act, 1920. That Act permitted a Cutchi Memon to make a declaration that he desired to obtain the benefit of the Act and thereafter the declarant and all his minor children and their descendants were to be governed in matters of succession and inheritance by the Mohamedan law. The learned Judge went on, however, to hold that, notwithstanding that the Cutchi Memons retained the Hindu law of succession and inheritance, the testator was governed by the Mohamedan law with regard to testamentary power. He considered that, as at the time of the conversion of Cutchi Memons the Hindu law did not recognise wills, they presumably adopted the Mohamedan law in this respect. The appellants are defendant 1 and his sons. They maintain that the learned Judge erred in holding that the testator's testamentary power was restricted to one-third of his estate. With regard to the wakf, Somayya J. held that it was invalid, but that its endowments must be limited to one-third of the residue of the immovable property. He considered that there could be no dedication of moveable property. The plaintiff has filed a memorandum of cross-objections in which he says that the learned Judge should have held the wakf to be invalid in its entirety.