HUSENI BEGAM Vs. SYED MOHAMMAD MEHDI

JUDGEMENT

(1.) This is an appeal by a Mohammadan lady, Mt. Masiti Begam, against a decree of the Subordinate Judge of Moradabad, who dismissed her suit for possession of the village of Hakimpur Qazi, which she sought to obtain from her nephew Saiyid Mohammad Mehdi. The case turns entirely on the question whether this property has been validly bequeathed to Mohammad Mehdi by the will of his maternal grandmother, Mt. Murtazai Begam. It is admitted on both sides that if the will were set aside, the plaintiff, who is the only surviving daughter of Mt. Murtazai Begam, would be entitled to the whole of her property by inheritance. As it is, she has obtained the rest of the property left by her mother; but this property has been denied to her, as it was bequeathed by will to her sister, Mt. Husnaini Begam, and is now in possession of the latter's son.

(2.) In the lower Court the plaintiff actually denied the existence of the will; but this matter is not now in issue. Undoubtedly, the will was executed by Mt. Murtazai Begam in the year 1897. Apart from this objection, the will has been challenged in this Court on the ground that it is invalid under Shia Law, because it purported to transfer more than one third of the testator's estate. Reliance is placed on a ruling of this High Court reported in Fahmida Khanum V/s. Jafri Khanum [1908] 30 All. 153. According to the head note of that ruling, where a legacy exceeds one third of the estate, it will not be valid to any extent unless the consent of the heirs, given after and not before the death of the testator, has been obtained. In this case, the consent of the other heirs was undoubtedly obtained to the will at the time of its execution, but it is not proved that there was any such consent after the testator's death. The respondent denies that the property bequeathed is more than one third of the whole estate of Mt. Murtazai Begam, and the evidence on the question is not conclusive, but we are of opinion that the ruling cited by the appellant can be distinguished from the case before us, for there one of the heirs of the testator was excluded entirely from inheritance, and in this case a certain portion is left to each of the heirs. We consider that ruling should be confined to the case which it was designed to meet, and not applied to every case in which a Shia testator bequeaths more than one-third of his estate. The commentators to whom we have access are all of opinion that the consent required under Shia Law may be obtained before the death of the testator. Ameer Ali in the first volume of the 4 edition of his book Mohammadan Law , page 592, writes : According to the Shia Law...a testator can leave a legacy to an heir so long as it does not exceed one third of his estate. Such a legacy is valid without the consent of the other heirs, but where it exceeds one-third, it is not valid without the consent of all the heirs. Such consent may be given either before or after the death of the testator.

(3.) The same opinion is given by Mr. Tyabji in his book Principles of Muhammadan Law, 2nd edition, page 787, and we consider that this is the view which we should follow in the present case.