FAIZ MUHAMMAD KHAN Vs. MUHAMMAD SAEED KHAN

JUDGEMENT

(1.) THE sole question in this appeal is whether Sultan Khan, the grandson of Abdul Hakim Khan, took under the will of his grandfather a heritable interest in his grandfather's talookdari estate. Sultan is dead, and the plaintiff, who is now appellant, claims to represent him. The estate is one of those which were entered in List III. of Act I. of 1869; which means that, not being one in which the custom of primogeniture had previously prevailed, the talookdar elected that it should so descend in future. The defendant and respondent Saeed is another grandson of the testator.

(2.) THE plaintiff claimed a further share in the estate, being that which was devised to Shabhan, a daughter of the testator who ' died in his lifetime. That claim has been decided against him and is not revived in this appeal. At the hearing the District Judge wholly dismissed the suit, holding that Sultan took no more than a life interest under his grandfather's will. The plaintiff appealed, when the Acting Judicial Commissioner, Mr. Dyson, held that Sultan took an absolute interest; and he remanded the suit for trial of the question (among others), To what share of profits is plaintiff entitled in the four-anna share of profits inherited by Sultan Khan?

(3.) THE testator was a Mahomedan gentleman who married two wives and had children by both of them. His will, which is now to be construed, takes notice that a daughter has just been born to him by his second wife, and then proceeds: I do execute this will, in modification of my will dated 19th September, 1870, and got the same duly registered, so that after my demise the engagement in respect of the ilaka (estate) in its entirety and without division may be made in the name of Muhammad Saeed Khan, son of Mussammat Shahzadi Bibi my eldest daughter by my first wife, and that Muhammad Sultan Khan, son of Mussammat Umrao Bibi my second daughter by my first wife, and Mussammat Moti Bibi my third daughter by my first wife, and Mussammat Shabhan Bibi my fourth daughter from my second wife, may be as equal sharers (with him) entitled to appropriate profits, and that the profits of the said estate after deducting therefrom the Government revenue, talookdari, and Ahl-i-biradri (members of brotherhood) expenses may be divided equally among all the four persons. Let no one act contrary to this. Should any one do so, his act shall be null and void both before the. authorities for the time being and the members of the brotherhood. If in case Muhammad Saeed Khan fail to distribute the profits, or raise a dispute over the distribution, each sharer shall be competent to have with the help of the Government set apart for him lands yielding his share of profits; but the estate shall continue in the name of Muhammad Saeed Khan entire and undivided.