HAJI ABDUL RAZZAK Vs. MUNSHI AMIR HAIDAR

JUDGEMENT

(1.) IN this case Mussumat Kutub-un-nissa was the talukdar of an estate called Gauria, under a sunnud granted to her by the Government of India. She died in 1879, having made a will on the 30th of April, 1874. The present suit is brought by her heir-at-law, her brother, who claims what he is entitled to of her estate as heir. The Defendant is a nephew of hers, a sister's son; and he sets up the will, under the provisions of which he was entitled to the taluka and the greater part of her property. The Plaintiff denied the execution of the will; he imputed fraud, he denied the capacity of the testatrix, and in other ways impugned the will. It is not necessary to dwell upon these issues, which both Courts have found against him, and which have not been argued again by his counsel here. A further question was raised which certainly had been alluded to, if not mentioned as distinctly as it might have been in the plaint, that the will had not been properly registered under the Oudh Taluhdars Act. The subordinate Judge declined to entertain this question, because it was raised at a late stage when apparently the evidence had been finished, and because on the settlement of issues it had not been suggested on either side that an issue should be raised on this point; and he found the will to be established. Thereupon an appeal was brought by the Plaintiff to the Judicial Commissioner. The Judicial Commissioner agreed with the subordinate Judge as to the factum and validity of the will, except so far as it was not registered; but he came to the conclusion that it had not been properly registered under the provisions of Section 13 of the Oudh Talukdars Act. That is the question before their Lordships. Many other questions were raised in the ingenious argument of Mr. Sykes; but inasmuch as the greater part of them have been disposed of in the course of the argument, their Lordships do not think it necessary further to advert to them.

(2.) THE 13th section is to this effect:--"No talukdar or grantee shall have power to give or bequeath his estate or any portion thereof, or any interest therein, to any person not being either (1) a person who under the provisions of this Act, or under the ordinary law to which persons of the donor's or testator's tribe and religion are subject, would have succeeded to such estate or to a portion thereof, or to an interest therein, if such talukdar or grantee had died intestate." Sub-section 2 follows, which is not material to the present case, and then come the words:--"Except by an instrument of gift or a will executed and attested, not less than three months before the death of the donor or testator, in manner hereinafter provided in the case of a gift or will, as the case may be, and registered within one month from the date of its execution." There is an interpretation clause, which says "'registered' means registered according to the provisions of the rules relating to the registration of assurances for the time being in force in Oudh." The two questions, then, which arise are these: In the first place, was it necessary that this will should be registered? In the second place, was it registered?

(3.) THIS being so, it follows that the will is one which, in order to be valid so far as to pass the taluk, requires registration; and then we come to the question whether it has been registered in accordance with the Act.