Rahumath Ammal and another vs Mohammed Mydeen Rowther and others

Ramaprasada Rao, J.—The first and second defendants in O.S. No. 6 of 1968 on the file of the Subordinate Judge of Madurai are the

appellants. One Kuppai Pitchai Rowther originally owned certain properties which were admittedly brought to public sale. In that public sale his

own son through his first wife, Seeni Rowther, the husband of the first defendant participated and purchased certain of those properties which are

the subject matter of the present litigation. It is common ground that under Ex. A-8 Seeni Rowther purchased the suit properties and became the

absolute owner thereof. Seeni Rowther died without children but leaving a will Ex. B-1, d. 23rd June 1955. Under the will, he created a life

interest in favour of his wife, namely, the first defendant and disposed of the remainder in favour of the second defendant who was his sister''s son.

The absolute remainder having thus been secured by the second defendant and a life estate by his widow under the Will Ex B-1, the question arose

whether Seeni Rowther did have the requisite capacity to execute the Will Ex.B-1, and even if he did, whether he could make the dispositions in

the manner stated. The first plaintiff is the brother of Seeni Rowther. Claiming to be one of the heirs of Seeni Rowther, he along with Sheik

Mohammed Rowther examined as P.W.2 in the case issued the suit notices Exs. A-1 and A-4 claiming that as heirs of Seeni Rowther they would

be entitled to 3/4th of the estate which Seeni Rowther left and that the first defendant, if at all, would only be entitled to a �th share therein. They

would ignore the Will Ex. B-1 not only on the ground that Seeni Rowther did not have the requisite capacity to execute the will but the dispositions

under the will ran counter to the personal law of the parties. The first plaintiff in his turn under Ex. A-9 settled the share which he would obtain as

heir of Seeni Rowther in favour of the second plaintiff, and it is in this context that the second plaintiff also has been brought on record along with

the first plaintiff. The plaintiffs'' case is that they are entitled to separate possession of a 3/4th share of the estate of Seeni Rowther and that the first

defendant would be entitled to the remaining �th share. The third and fourth defendants are the tenants occupying the suit property in question.

On the death of the first plaintiff pendente lite, defendants 5 to 8 were brought on record as his legal representatives. On the basis of the above

claim, as is seen from the pleadings, the plaintiffs instituted the present action. Defendants 3, 4 and 6 remained ex parte.

According to the contesting defendants (who will hereafter be referred to as ''defendants''). Ex. B-1 has been validly executed and is a true and

enforceable document and it has to be understood as a family arrangement deed. The first defendant would claim a life interest over the property

and the second defendant, the vested remainder therein, as per the recitals in Ex. B-1.

The parties went to trial on the above material pleadings, over which the following issues were framed:

[The issues are omitted as unnecessary--Ed.]

X X X X

The learned Judge held that Exs.B.1 and A-9 are true but not valid as it ran counter to the well-accepted personal norms as set out in the

personal law of the parties. He therefore, went into the question as to who are the heirs of Seeni Rowther. He found that the first plaintiff and the

first defendant are the heirs of Seeni Rowther and that the second defendant being a non-heir, is not entitled to a share either under Ex. B-1 or

otherwise. As regards the movables in the second item of the schedule properties, the learned Judge held that they belonged to the second

defendant. Having said so in the judgment, there is no reference to it in the decree. As regards the main conclusion of the learned trial judge there is

no cross-objection by the prejudiced party. The appellants (first and second defendants) contended before us that Exs.B-1 and A-9 are valid and

the shares have not been properly declared since the learned trial Judge ignored the entitlement of P.W.2 who is admittedly a co-heir of Seeni

Rowther and that a mistake has crept in the decree in that the judgment in relation to the movables in the second item of the plaint schedule which

have been held to be the properties of the second defendant have not been correctly incorporated therein. Mr. Ramanathan''s contention is that the

will having been found to be true has to be held to be valid also. He would sustain his contention by saying that there was an immediate divesting of

the estate by Seeni Rowther and the second defendant as the legatee under it was vested with it on the death of Seeni Rowther and that, therefore,

it is not open to the plaintiff to question the manner of dispositions adopted by Seeni Rowther.

But, on the other hand, Mr. Venkataswami appearing for the contesting respondents would plead in the alternative, though it is not his main

contention, that if at all the second defendant as a non-heir of Seeni-Rowther can succeed only to the extent of 1/3rd of the estate of Seeni

Rowther and not more and the contention that the second defendant would be entitled as residuary legatee under the Will Ex.B-1 to the entirety of

the estate is ill-founded.

The next contention of Mr. Ramanathan is that P.W.2 who was examined on the side of the plaintiffs is admittedly an heir of Seeni Rowther and

though he, out of ignorance or otherwise, would testify that he was not entitled to a share in Seeni Rowther''s estate, yet, as the law enables him to

a share in that estate, such an entitlement cannot be lightly brushed aside on the bare testimony of P.W.2. In this context therefore, the contention is

that, if at all, the heirs of Seeni Rowther are entitled to a share in his estate, they would be the first plaintiff, and P.W.2 and they would together be

entitled to a 3/4th share in the estate and the first defendant would be entitled to a �th share. But he would qualify this contention by saying that

the will Ex.B-1 should, in any event, be held valid in so far as the disposition relates to a non-heir, and thus understood, the Will Ex.B-1 has to be

upheld in so far as 1/3rd of the estate of Seeni-Rowther is concerned, in favour of the second defendant.

Thus, to sum up Mr. Ramanathan''s contention, he would say that the Lower Court went wrong in not having worked out the shares correctly.

According to him the proper shares would be that 3/4th of the suit properties excepting the movables already referred to should be allotted to the

first plaintiff and P.W.2 conjointly, and the balance �th should be allotted to the share of the first defendant; but while calculating the divisible

estate amongst the first plaintiff, P.W.2 and the first defendant, a 1/3rd share to the second defendant ought to be deducted. The net analysis of the

argument is that the first plaintiff and P.W.2 would be entitled to 3/4th of 2/3rd, the first defendant would be entitled to � of 2/3rd and the

second defendant would be entitled to the balance 1/3rd.

Mr. Venkataswami vaguely contended that the bequest in this case ought to be understood to be as a contingent bequest and placed reliance

upon a decision cited by Mullah, in his book on principles of Mohamedan Law--Seventeenth Edition--page 126. There, the learned author

referred to a quotation in the following lines:

Under the Mohammadan Law if A bequeathes a life interest to an heir B and thereafter the remainder to C (sic) bequest to C will fall if the life (sic)

for want of (sic) of the mina Khatoon and another v. Siddicur Rahman Dideer and others.

But, there is overwhelming authority in our country which shows a contrary view. In the decision in Muhammad Junaid v. Aulia BiBi ILR 42 All.

497 a Division Bench of the Allahabad High Court observed:

In giving effect to the will of the Muhammadan which contains bequests to heirs and also to strangers the principle to be followed is that the

bequests to the heirs will be invalid unless in each case they are assented to by the other heirs; but the bequests to the strangers will be valid to the

extent of one-third of the testator''s property.

To similar effect is a case in AIR 1934 427 (Lahore) which in turn is another Bench decision. There, the Court said:

Where a bequest is made in favour of a daughter and three step-daughters in equal shares, the bequest in favour of the daughter is not valid, unless

the heir consent to it after the death of the testator; but as the step-daughters are not heirs, the bequest in their favour can take effect to the extent

of one-third of the estate.

While laying down this principle, they followed the ruling in Madammal v. Devayya AIR 1930 Mad. 716. In that decision, Anantakrishnaiyyar, J.,

was dealing with a case, the facts of which are as follows: A testator made a Will in favour of his grand daughter''s husband which recited:

As I am now 60 years of age, you and my grand-daughter also should maintain me, my wife and my daughter-in-law during our life time and act

upto what we order you to do. After our death you yourself should perform our obsequies, etc. and enjoy all the properties belonging to us with

absolute rights with powers to dispose of them by way of gift, sale, etc.

Interpreting the above terms of the Will which was, of course, a will of a Hindu, the learned Judge said that the words in the will give a vested

interest in the properties in favour of the legatee but postponed his right to possession till after the death of both the testator''s wife and daughter-in-

law.

In the instant case the terms of the Will provide that the first defendant should enjoy the properties for her life, and thereafter, the second

defendant should absolutely take the properties as his absolute properties. Here again, the intention of the testator as it could be gathered by

attempting to sit in his own arm chair is to postpone the vested interest or the remainder till after the lifetime of his wife. In this respect, no

contingent bequest as is referred to by Mr. Venkataswami is involved. The period during which the right to enjoy the usufructs of the properties is

postponed is again the creature of the intention of the testator. So long as such a situation is not repugnant either to the personal Law or even to the

common Law, full force has to be given to such a recital. It has to be reconciled and not understood as a contingent bequest to the remainder man.

The possible reconciliation which could be effected is by treating the words as postponing the right of the remainder man to enjoy the properties till

after the intervening life estate holder.

Mullah in his Treatise refers to the expression ""Life estate"" and ""vested remainder"" and quoting the Privy Council whose decision is reported in

Nawazish Ali Khan v. Ali Raza Khan 75 Indian Appeals--62=A.I.R. 1948 P.C. 134, reproduced the observations of their Lordships as follows:--

In their Lordships'' opinion this view of the matter introduces into Muslim law legal terms and conceptions of ownership, familiar enough in English

law, but wholly alien to Muslim law. In general, Muslim law draws no distinction between real and personal property, and their Lordships know of

no authoritative work on Muslim law, whether the Hedaya, or Baillie or more modern works, and no decision of this Board which affirms that

Muslim law recognizes the splitting up of ownership of land into estates, distinguished in point of quality like legal and equitable estates, or in point

of duration like estates in tee simple, in tail, for life, or in remainder. What Muslim law does recognize and insist upon, is the distinction between the

corpus of the property itself (ayn) and the usufruct in the property (manafi). Over the corpus of property the law recognizes only absolute

dominion, heritable, and unrestricted in point of time; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute

dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property, and the

dominion over the corpus takes effect subject to any such limited interests......This distinction runs all through the Muslin law of gifts......gifts of the

corpus (hiba), gifts of the usufruct (ariyat) and usufructuary bequests. No doubt, where the use of a house is given to a man for his life he may, not

inaptly, be termed a tenant for life, and the owner of the house, waiting to enjoy it until the termination of the limited interest, may be said, not

inaccurately, to possess a vested remainder......A limited interest takes effect out of the usufruct under any of the schools. Their Lordships feel no

doubt that in dealing with a gift under Muslim law, the first duty of the court is to construe the gift. If it is a gift of the corpus, then any condition

which derogates from absolute dominion over the subject of the gift will be rejected as repugnant; but if upon construction the gift is held to be one

of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its

enjoyment is postponed for the duration of the limited interest.

Thus, it is clear that by disposing of the property under Ex. B-1 to heirs and non-heirs, Seeni Rowther meant to benefit a non-heir, namely, the

second defendant in this case. Such an avowed object of the testator cannot be lightly ignored. No doubt, as has already been pointed out, the

bequest to an heir coupled with a bequest to a non-heir has to be reconciled as far as possible and the totality of the instrument cannot, on a hyper-

technical ground, be rejected in toto. If this is the method by which such an instrument has to be understood and interpreted, then it should be held

that the bequest to the first defendant who is an heir in this case is not valid, because it is as against the personal law, but in so far as the bequest to

a non heir, namely, the second defendant is concerned, it would be operative to the extent of a third of the estate of Seeni Rowther.

The next question is as to whether the Lower Court was right in having decreed the suit without ascertaining the content of entitlements of each

of the sharers to the estate of Seeni Rowther.

When Seeni Rowther died, his heirs who were admittedly entitled to a share in the estate were his brothers, Ibrahimsa Rowther, the first

plaintiff and Sheik Mohamed Rowther who was examined as P.W.2. As already stated by us in the opening, P.W.2 appeared as a witness and did

not figure as a party. In his testimony, he would say that he is not entitled to a share. But it transpires now that all the parties had conceded that he

would be a sharer being a consanguine brother of Seeni Rowther. Thus, there were two brothers and one childless widow. The two brothers

would be entitled to a 3/4th share and the first defendant as the childless widow to a �th share. But the estate available for division is only 2/3rd

of the totality of the estate of Seeni Rowther because that 3rd has already been held by us to be the bequest validly made or deemed to have been

made by Seeni Rowther under Ex.B-1 to the second defendant. Therefore, the first plaintiff and P.W. 2 together will be entitled to 3/4x2/3 of the

totality of the estate, the first defendant would be entitled to � x 2/3 and the balance of 4/12 will be the share in the totality of the estate which

would be the property of the second defendant. Now that the first plaintiff is no more and defendants 5 to 8 have been brought on record as his

legal representatives, the observation made by us in relation to the first plaintiff''s share would necessarily be applicable to defendants 5 to 8 and

the second plaintiff as his heirs.

So far as Ex.A-9 is concerned, it suffers from the same disability under the personal law as Ex.B-1 and the trial Court, therefore, rightly held

that though it is true, it is not valid. There is no particular argument addressed as regards this finding of the Lower Court before us. The appeal is,

therefore, partly allowed, and the preliminary decree will be drawn up as per the observations as above. The learned counsel for the first defendant

says that he has filed cross-objections, and in the circumstances of the case, he says that he is not pressing the same. In fact, the cross-objections

are not before us, because it has not been numbered. The cross-objections are, therefore, dismissed, and there will be no order as to costs in both

the appeal and the Memo of Cross-objections.