Mazhar Husen vs Bodha Bibi and another

Morris, J. 1. Ibn Ali died on the 2nd of August 1878. He was possessed of property. The Respondents are the assignees of two ladies, the first cousins of Ibn Ali, and described in the letter or will of the 1st of August as his paternal uncle''s daughters. 2. The appellant is the assignee and representative of Haidri Begam, the mother and heir of Ibn Ali. The respondents claim the property in dispute under a letter or will of the 1st of August 1878. 3. Two questions arose: 1st, whether the letter of 1st August amounted to a will. 2nd, was it written after Ibn Ali had taken poison from the effect of which he died. On both questions the Subordinate Judge decided in favour of the appellants, holding that the passages in the letter of 1st August did not amount to a bequest, and that even if they did it was written after Ibn Ali had taken poison, the cause of his death. On appeal, the High Court reversed the decision of the Subordinate Judge on both questions. The bequest on which the respondents rely is contained in the letter written by Ibn Ali to his general attorney, Syed Zain-ul-Abdin. The fact of the writing the letter by Ibn Ali was clearly proved and was so accepted by the Subordinate Judge and is not now disputed. The letter was sent by the hand of Musharraf, a servant of Ibn Ali. The Subordinate Judge decided that the contents of the letter did not amount to a bequest, as they did not bequeath the property directly to his cousins. The letter by Clause 10 states " You should not have the property given to (my) grandmother and paternal uncle''s wife, but you should give the whole to my three sisters, who are my paternal uncle''s daughters. You should see that they all get an equal share, and in the same manner as stated by me in paragraph 3." This paragraph appears to their Lordships to confer a right on the three sisters in the property to take effect on Ibn Ali''s death, and accordingly that the letter acts as a will under Muhammadan Law. 4. Now comes the more important question as to the writing of the will being before or after the poison was taken by Ibn Ali. It is not at all free from difficulty, but their Lordships are not prepared to dissent from the decision of the High Court. It appears reasonable to hold that the onus of proving whether the letter or will was written after the swallowing of poison should rest on the party impugning the will. The Subordinate Judge came to his conclusion apparently on the terms of the letter itself in which the writer states " I, in consequence of my honour having suffered to a certain extent, and the exposure being so great that I could not show my accursed face to any one, thought it advisable to put an end to my life and therefore took poison and died to-day." And again in paragraph 5 the writer states: " Please begin to take all these proceedings after perusing this letter. Don''t delay in hope of my life, for, by God, I am actually dead and this letter I have written an hour before death." The Subordinate Judge considers these passages prove that Ibn Ali had taken the poison, but their Lordships are of opinion, though the words " took poison " are in the past tense, they are connected with the words " and died to-day," which cannot be read in the past tense, and the statement is consistent either with the fact that he had taken the poison or that he had resolved to take poison and resolved to die. The evidence is circumstantial and the evidence of Musharraf and Husen Bakhsh go strongly to show that it must have been subsequent to the sending of the letter that Ibn Ali retired from the mardana and went into the zenana on the 1st of August then apparently well. The circumstances lead their Lordships to agree with the conclusion of the High Court that the deceased Ibn Ali took the poison after sending the letter to his friend, who lived some twenty miles distant. Their Lordships will therefore humbly advise Her Majesty that the appeals in this case should be dismissed. The respondents will have their costs.