SHAHAR BANOO Vs. AGA MAHOMED JAFFER BINDANEEM

JUDGEMENT

(1.) Hajee Ahmed Bindaneem, a Shiah Mohammedan, died in 1882, leaving a will by which he devoted the one-third of his estate of which he was capable of disposing to religious and charitable purposes. The testator left six sons and one daughter, of whom the eldest was a son Mahomed Jaffer, the first respondent and the second a daughter, Shahar Banoo, the appellant. In his will the testator said, "I appoint my obedient son Aga Mahomed Jaffer Bindaneem my legal executor. And the superintendence of all the affairs relating to the heritage and the sools is entrusted to Aga Ahmed Ispahan!. " He further said :- 5. The furniture, such as lamps, utensils for cooking, carpets, silver alams, silver sarposh and all the articles belonging to the Emambara, shall not be the subject of inheritance and shall be used by the execute in performance of taziadari rites. 6. The executor shall, after taking possession, with the information of the Nazir, of the sools, purchase therewith (in the) share market any good property or Government paper and shall out of the income thereof spend Rs. 1,000 during the first ten days of Mohurrum every year, in accordance with the custom in vogue, in performance of the taziadari and distribution of food in connection with the Emambara. The expenses that arc to he preferred to all the expenses to be met out of the income of the said property, are those of sending money to Kerbela or Holy Najaf and engaging naib (proxy) on remuneration for the performance of prayer and fasting in my stead for the omissions during sixty years of my age; provided these be done through any mujtahid. And next to these are the expenses of engaging naib for visiting Khana-e-Khoda (House of God), the holy shrine of the Prophet and those of Imams (who guided people in The right path) and for visiting the shrine of Kaza (on whom may God send His thousand blessings). Next to these are the expenses of heirs and nearest relatives, if they stand in need, or The expenses of repairing mosques or performance of taziadari on The nights proceeding Friday and distributing food and feeding travellers, to the possible extent.

(2.) Mahomed Jaffer obtained probate of the will and carried on the administration of the estate until 1897. In that year the present appellant and other members of the family, who are or were parties to The present appeal, brought a suit in the Court of the Recorder of Rangoon against Mahomed Jaffer, in which they charged him with certain breaches of trust. They asked that the trustee should be removed from his office and that a Nazir should be appointed.

(3.) In 1898 the Recorder of Rangoon made his decree, by which he refused to remove the trustee from his office,but directed him to keep proper trust accounts for the future. Against that decree an appeal was brought, in accordance with the law then in force, to the High Court at Calcutta. "While the case was before that Court a compromise was arrived at, in accordance with which a decree was passed on the 13 May 1902, by which, it was decreed that Mahomed Jafier should retire from the trusteeship "and that a new trustee be appointed in his place by the Chief Court of Lower Burma, preference in such appointment being given to the lineal descendants of the settlor."