MOULVI MUHAMMAD ABDUL MAJID Vs. MUSSUMAT FATIMA BIBI

JUDGEMENT

(1.) THE question in this appeal arises out of a disposition of his property made by one Imam Baksh. The disposition, which was not strictly a will, because it was made in his lifetime and he reserved to himself some benefit under it, was made on the 19th of August, 1860, and he died about a year afterwards. At the time he made it the state of the family was this. He had two wives. By the first he had a daughter, Mussumat Fatima Bibi, who had had a son, Hafiz Syud-ud-din, then dead. He had had another daughter, Mussumat Makhi Bibi, who had died, leaving two children, Muhammad Ibrahim and Mariam Bibi. By the second wife he had a son, Moulvi Muhammad Haidar Hussain, who died in July, 1875, leaving his eldest son, the present Appellant and the Defendant in the suit, and other children. The contention between the Appellant and the Respondent arose after his death. It was this, as stated in the plaint of the Respondent which was filed on the 5th of May, 1879. In that, she states the disposition of the property by her father, Imam Bakesh, and that the management of the whole property was. entrusted to Haidar Hussain, and after the death of Imam Baksh, she, the Plaintiff, confirmed him as manager, and that she had not disputed any of the rights of Haidar Hussain. Then, after stating that he was in possession of the property and acted as manager, and stating his death, she says that, after his death, the Defendant, without the consent and permission of the Plaintiff, improperly took possession of the property constituting her share, and asked the Revenue Court to enter his name in the place of that of Haidar Hussain, and that she gave notice to the Revenue Court of her dissent from that. She then goes on to say, "That the Defendant, notwithstanding his want of right, not only arbitrarily declares himself to be the manager of the whole property, but considers and represents himself to be the permanent owner of the whole property, and by his own authority, and with the view of injuring the Plaintiff, has committed and omitted to do acts calculated to cause great loss to her; and she prays that a decree may be passed in her favour, declaring her right, permanent proprietary title and possession to her share in the property detailed below," and "that complete possession of her share may be awarded to her: that the Defendant's possession and management may be removed."

(2.) THE Defendant, in his written statement, sets up this claim : "From the death of Maulvi Muhammad Haidar Hussain the whole property mentioned in the will and the agreement legally devolved upon and came into the possession of the Defendant under the express conditions and directions of the said documents, and with reference to inferences drawn from them. According to the terms of the will, the rules of Mahomedan law, and the principles of justice, the Defendant alone is entitled and competent to retain possession (subject to the conditions of the will) in order to carry out its provisions, which are to be carried out in perpetuity and for ever, and not for a limited period." It may here be noticed that the Defendant is not the only heir of Muhammad Haidar Hussain, there are other persons who are also his heirs. The contention is that although the Defendant is only one of the heirs he alone is entitled and competent to retain possession.

(3.) THESE are the provisions of the will, and it is difficult to see in them any provision by the settlor which would confer upon the present Defendant the right which he now claims to have. There is nothing to shew that the heirs of Haidar Hussain were to take his place in the succession and management, and, even if there were, there would be this difficulty, that, if it went by right of succession to the heirs of Haidar Hussain, they would all, and not the present Defendant alone, come in. Thus expressions clearly denoting that the management is to be in a single hand would, by a strained application of them to a period beyond the life of Haidar Hassain, be used to vest the management in a number of hands.