AZIMUNNISA BEGUM Vs. SIRDAR ALI KHAN

JUDGEMENT

(1.) [His Lordship after setting out the facts as above proceeded:] The plaintiff's case is that she was a minor at the date of her father's death being his youngest child and no citation was served on her, nor any gurdian ad litem appointed, when the proceedings for probate were instituted by the executors. It appears from the contents of the will that the youngest child of the testator was a girl and had not yet been named. There would be force in the plaintiff's contention if she were seeking to set aside the probate of the will on the ground that it was not the last will and testament of the deceased. In order that the probate of a will which is against the interest of the infant should be binding on the infant the citation if issued should be served upon a duly appointed guardian of the infant. The issue of a citation in such cases is discretionary and not obligatory. Want of citation will not by itself vitiate the probate: but in the absence of a citation duly served upon a properly appointed guardian ad litem of the infant it would be open to the infant on attaining majority within the period allowed by the Indian Limitation Act to institute proceedings for the revocation of the grant of probate. The plaintiff, however, does not contend that the will is not the last will and testament of her father. She complains that the probate was applied for and obtained from the District Judge at Thana under cover of secrecy. She has not led any evidence to substantiate the allegation that there was anything clandestine about the obtaining of the probate or of the orders under it from the Thana Court. The plaintiff's contention is that the will is ab initio void. By this contention she does not mean that the will is void on account of its being a forgery or of having been obtained by fraud, coercion or undue influence, but what she means is, that all the provisions of the will are invalid under the Mahomedan law, and that being so, the executor had no power to act in any manner so as to bind the interests of the plaintiff in the properties of her father, which had descended to her by the right of inheritance.

(2.) The provisions of the will to which exception is taken are, broadly speaking, as follows :- (1). The testator purports to disinherit his female issue but gives each of them a life annuity of Rs. 500 per month for her maintenance and provides for each of them Rs. 50,000 for her marriage expenses. The executors were directed not to sell or alienate any of the immoveable properties, which were all to be divided equally among the sons of the deceased, subject to the payment of the life annuity to the daughters and their marriage expenses. The properties were purported to be settled in entail on the sons. It is difficult to understand what the testator meant by this expression, but reading the will as a whole, it appears that it was his intention to create a family settlement in the nature of a wakf-alal-aulad in favour of his sons and their male descendants. There is no provision made in the will on failure of the sons and their descendants for the property to go to charity. In addition to this defect the family settlement is purported to be created at a date prior to the Wakf Validating Act of 1913. It must be held, therefore, that the settlement is governed by the interpretation of the Mahomedan law as laid down under the decisions of the Privy Council in that behalf prior to the Act. The Mussalman Wakf Validating Act of 1913 is not a retrospective but only a prospective Act and the principle of law enunciated by the Privy Council applies to all such wakfs created before that Act came into operation, Under that interpretation of the Mahomedan law the family settlement created by the will is clearly invalid. If the disposal is not to be regarded as a family settlement, but as a disposal in favour of the sons whose life estates automatically become absolute estates under the Sunni Hanafi Law, the disposal would then be invalid as being bequests in favour of heirs to which the other heirs did not consent after the testator's death. The plaintiff could not have validly consented to such bequests in favour of her brothers, as at the date of her father's death she was an infant and did not attain her majority until long after the properties of her father were all disposed of by defendant No. 1. (2). The other provision of the will to which exception is taken is in favour of charity. The testator directs that one-sixteenths of the net income derived from his household properties in Bombay should be set apart yearly and devoted to charitable and religious purposes, such as the performance of anniversary ceremonies and Oorus of his parents, the Mahim Oorus, the Bhiwandi Oorus, and other such ceremonies in like manner as the testator himself had done in his life- time and for an Oorus for the testator himself and also in every such charitable purposes as his sons may consider deserving, fit and proper. The plaintiff contends that the bequest in favour of charity is invalid. I am of opinion that the paramount intention contained in the clause of the will is that one-sixteenths of the net income should be expended for charitable purposes. If the instances mentioned are not to be regarded as charitable the Court would apply the income to purposes which it may deem to be charitable.

(3.) In the case of Biba Jan V/s. Kalb Husain (1908) I.L.R. 31 All. 136 the Appeal Court of Allahabad appears to have held that a dedication made by a man for the performance of the annual Fatiah ceremony of himself and the members of his family would be a valid charity. The same Court, however, in a later case appears to have taken a different view on this point.