ABDULSAKUR HAJI Vs. ABUBAKKAR HAJI ABBA

JUDGEMENT

(1.) This is a suit by three of the legatees under the will of one Fatmabai, widow of Abdulla Haji Dawood, against the proving executor of the will and other legatees and heirs and legal representatives of such legatees as have died since the death of Fatmabai for the administration of the estate of the testatrix and for payment to the legatees and the representatives of the legatees such legacies as are provided for by the will. Fatmabai died on January 14, 1928, after having made her will on September 10, 1914. Two of the executors appointed by the will died in the life- time of the testatrix, Defendant No. 1, who is the third executor under the will, obtained probate of it on July 4, 1924. At the date of the will the testatrix owned an immovable property at Eipon Road. After the date of the will she acquired another immoveable property at Malad. By a Judge's order dated October 1, 1928, the plaint and proceedings were ordered to be amended by making the Advocate General as representing public charities a party defendant to the suit. Pursuant to that-order the Advocate General was made defendant No. 11 in the suit and the plaint and proceedings were amended on October 4, 1928.

(2.) The Advocate General has filed no written statement and submits himself to whatever decree or order the Court may consider fit to pass. Defendant No. 1, as the proving executor of the will, also submits himself to the orders of the Court. Defendants Nos. 2 and 10 are sued in their respective representative capacity as the heirs and representatives of two deceased legatees-Jan Mahomed Abubakkar, a son of defendant No. 2 who is the same person as defendant No. 1 but in a different capacity, and Abdulla Abubakkar, another son of defendant No. 2 and the husband of defendant No. 10. They have filed no written statement, but have appeared by counsel and submit themselves to the orders of the Court. Defendants Nos. 3 and 4 also submit themselves to the orders of the Court. The remaining defendants are not represented in this case. Out of the several issues raised in the case the Court was invited to try issues Nos. 1,2,4, and 7 first. The issues relate to the residuary clause in the will which as translated is as follows :

(3.) After (directions) as (stated) above shall have been carried out, as to whatever may remain over, the same shall be spent in my name for other (and) further religious ceremonies in connection with my (death). 3. It is submitted on behalf of the Advocate General that the residue bequeathed is the residue of the whole estate left by the deceased including the Malad property and that the bequest is valid under the Mahomedan law. Defendant No. 1 submits that the bequest comprises the residue of the whole estate and is valid in law, but only as a private charity and not as a public trust. It is submitted on behalf of defendant No. 4 that the residue does not comprise the Malad property but is to be restricted to the properties specifically mentioned in the will and that the bequest to charity contained in this clause is void for uncertainty. Mr. Shavaksha has stated that defendant No. 4 intends to apply the residue of the estate which she may get as an heir-at-law of her deceased son to the purposes mentioned in this clause as a matter of moral obligation devolving on her. Defendant No. 4 is the mother of one Abdul Kadar Abdulla Haji Dawood and the now surviving co-widow of the deceased. Abdul Kadar having survived the deceased was her sole heir according to Hindu law by which law the succession to the deceased is governed. It was urged before me by Mr. Kania on behalf of defendant No. 1 that Abdul Kadar had prior to his death signed a declaration under the Cutchi Memons Act that he was to be governed in all matters of succession by the Mahomedan law. That circumstance, in my opinion, would be immaterial as succession to the deceased would be governed by the law which is applicable to her and not the law which is applicable to the deceased. Change of religion would not disqualify a person from inheriting to another belonging to a different faith. Abdul Kadar having died if succession to him is to be governed by the Mahomedan law it is conceded that defendant No. 4 as his mother would be his sole heir. It was contended, however, that if Abdul Kadar died a Cutchi Memon leaving a will defendant No. 4 must prove that she is entitled to represent the estate of Abdul Kadar under that will. Defendant No. 4 has obtained probate of the will which was oral and is prepared to produce the probate if necessary. Under the terms of that will the deceased Abdul Kadar after having given a legacy of rupees one lac to one Mumtaz Begum, who was his kept mistress, constituted his mother defendant No. 4 his heir and residuary legatee. The subject-matter of this will was before me in a case I tried about two years ago in which the legacy of rupees one lac was claimed on behalf of an illegitimate infant daughter of the deceased Abdul Kadar by the said Mumtaz Begum as a gift made by Mumtaz Begum to her. Defendant No. 4 is entitled by virtue of her being the residuary legatee under the will of Abdul Kadar as well as by her having obtained letters of administration with the will annexed to represent the estate of Abdul Kadar in this case and receive as on intestacy whatever residue may not have been validly disposed of under the will of her co-widow Fatmabai.