Judgement

Consolidated Appeals (No. 12 of 1932) from three decrees of the Chief Court of Oudh in its appellate jurisdiction (August 25, 1930) affirming two decrees of the Court in its original jurisdiction (April 15, 1929) subject to a slight modification as to one of the said decrees.

The appeals related to the succession to the estate of a Mahomedan taluqdar, Raja Shamsher Bahadur, who was included in list 2 made under s. 8 of the Oudh Estates Act, 1869. The taluqdar died on April 18, 1883, having on March 26 of that year executed a will by which, after certain charitable gifts, he bequeathed half his property to his senior wife Aulia Begam and their only surviving child Jani Begam, and the other half to his junior wife Barkat-un-nissa Begam, who was childless. Aulia died in 1897, and Barkat-un-nissa in 1927.

The two suits giving rise to the present three appeals were instituted in the Chief Court in 1928. Abdul Latif, the appellant in the first appeal, was the grandson of Nawat Begam, the elder daughter of the deceased taluqdar who had predeceased him; Abadi Begam, the first respondent in the first appeal, was the elder daughter of Aulia Begam.

The claims made in the two suits, and the contentions arising upon the pleadings appear from the judgment of the Judicial Committee.

The principal questions which arose upon the present appeals were (1.) Whether the bequest by the taluqdar to his junior wife Barkat-un-nissa was valid. (2.) Whether the interest bequeathed to the widows was an absolute interest or for their respective lives. (3.) Whether Abdul Latif or Abadi Begam was better entitled to succeed to any part of the property as to which there was an intestacy.

The judgment of the Chief Court upon appeal (Wazir Hasan C.J. and Pullan J.) in substance affirmed the decrees made by the trial judge, Nanavutty J. Upon the questions stated above it was held (1.) that the bequest to Barkat-un-nissa was valid ; (2.) that the widows took absolutely ; and (3.) that Abadi Begam, and not Abdul Latif, was entitled to succeed upon an intestacy. Upon the last question the learned judges treated the right to intestate succession as dependent upon s. 22, cl. 11, of the Oudh Estates Act, 1869, without reference to the new s. 22 enacted by the Oudh Estates Amendment Act (III. of 1910, U. P.). They held (differing from the trial judge) that the limitations in the sanad granted to the taluqdar were part of the ordinary law of his religion or tribe, referred to in cl. 11, and that Abdul Latif was not " the nearest male heir according to the rule of primogeniture " within the meaning of the sanad, because his descent was not entirely through males. In effect, as will be seen, the result arrived at was the same as if cl. 10 of the new s. 22 had been applied. The judgment upon appeal is reported at I. L. R. 6 Luck. 282.

1934. March 12, 13, 15, 16, 19, 20. De Gruyther K.C. and Abdul Majid for Abdul Latif and others, appellants in the first two appeals and respondents in the third appeal.

Upjohn K.C. and Wallach for Muhammad Khalil and others, who were respondents in all three appeals but were interested only in the validity and effect of the bequest to Barkat-un-nissa. They were not called upon (except on a small point referred to at the end of their Lordships judgment), and were discharged from the appeal on March 13.

Dunne K.C. and Hyam for Abadi Begam and Mushtaq Ahmad, respondents in the first two appeals and appellants in the third appeal.

The arguments were chiefly directed to the questions (1.) whether the sanad granted to the taluqdar applied under cl. 11 of the Oudh Estates Act, 1869, as part of the ordinary law of his religion or tribe ; and (2.) the construction and effect of the sanad if it so applied. Reference on the first point was made to the amendment of s. 3 of the Act of 1869 by U. P. Act III, of 1910, but no reference was made to

cl. 10 of the new s. 22 introduced by the Act of 1910.

June 26. The judgment of their Lordships was d