AHMAD ASMAL MUSE Vs. BAI BIBI

JUDGEMENT

(1.) A deceased Mahomedan purported to dispose by will of certain bhag property and other property in favour of his widow, with a remainder to his daughter and her issue if she survived the widow. The plaintiff is a residuary of the testator according to Mahomedan law. He sues for a declaration that he is the nearest agnate of the deceased and that defendants 1 and 2, that is, the widow and the daughter, acquired no rights by the will and that he is entitled to the property after the death of the widow. The suit relates only to the Bhagdari properties, which in the absence of a will devolve by custom upon the Bhagdar s widow, if he dies sonless, for her life and after her death are inherited by his nearest male agnate to the exclusion of the daughter and sister. The plaintiff is, therefore, interested in the property both under the Mahomedan law and under the custom in the absence of a will. He charged that the widow and the daughter were managing the properties in suit and wasting them to harm plaintiff s future rights. The waste alleged is that two portions of the property in suit had been given to a Masjid and that the rest of the property has been transferred to the name of the daughter with the intention of her becoming the owner thereof.

(2.) The learned Judge in the trial Court held that the acts of waste had not been proved and that therefore a Receiver should not be appointed, but being of opinion that the will was contrary to the Mahomedan law passed a decree in favour of the plaintiff declaring him the nearest agnate of the deceased and entitled to succeed to his bhag property in suit after the death of the widow and that the will of the deceased was inoperative so far as the bhag property in suit was concerned and that defendant 2 did not acquire any right to the property under the said will against the plaintiff.

(3.) On an appeal being preferred to the District Judge the decree was reversed and the suit was dismissed, the ground being that although according to Mahomedan law a will in favour of one of the heirs or a part of the heirs is invalid unless the other heir or heirs consent, the rule could not be applied so as to bring in a course of devolution according to the Bhagdari custom which would be at variance with the Mahomedan law. It is, however, conceded that a will can be made of Bhagdari property notwithstanding the existence of the custom. The existence of the custom does not destroy the testamentary capacity of the owner. If then the owner is a Mahomedan, what is his testamentary capacity ? There is no evidence in the case that his testamentary capacity has been converted by custom into something different from the ordinary capacity of a Mahomedan testator. That capacity is limited by the rule of testation above stated. It appears to me, therefore, that the rule of Mahomedan law is the only law which can be applied and according to it the will is invalid. If so, the plaintiff is the presumptive reversioner under the Bhagdari custom. It has been held by the Privy Council in Janaki Ammal v. Narayansami Aiyer (1916) 18 Bom. L.R. 856, that if there has been waste or there is danger to the estate established, a possible reversionary heir may come in and ask for relief. There are cases of waste alleged and there is a danger of transfer to the second defendant suggested. Neither of these points have been discussed by the learned District Judge and as we are of opinion that his judgment upon the preliminary question of the application of the rule of Mahomedan law to the will of the deceased cannot stand, we set aside the decree and remand the case for disposal upon the other questions discussed in the trial Court. Costs costs in the cause. Heaton, J.