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1931 Supreme(SC) 92
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, LORD SALVESEN, SIR LANCELOT SANDERSON, AND SIR GEORGE LOWNDES.
GHULAM MOHAMMAD - Appellant
Versus
GHULAM HUSAIN (DEFENDANTS) - Respondents
On Appeal from the High Court at Allahabad.
Decided On : Dec. 14. 1931.
Important Points
Subject
Civil Law - Muslim Law
Act Referred
MAHOMEDAN LAW: .
Headnote
(B) Indian Trusts Act, 1882 - Beneficial interest vs. Bare trusteeship - Where a will grants proprietary possession and the reversionary interest in the corpus to a person, subject to a charge for maintenance of others, such a grant constitutes a beneficial interest and not a bare trusteeship.
(C) Limitation Act - Article 123 - Suit for a distributive share - In the Indian context, Article 123 applies only where the suit is brought against an executor, administrator, or a person legally charged with the duty of distributing the estate, and not generally between heirs.
(D) Family Arrangement - Guardian's power - A deed executed by a guardian during the minority of the heirs to settle claims of other family members does not necessarily operate as a binding family arrangement or consent between the heirs themselves regarding their respective shares in the inheritance.
Facts of the case:
A testator bequeathed a specific share of his estate to his eldest son, granting him proprietary possession subject to the obligation of maintaining certain dependents. The younger son later sued for a share of this property. The respondent claimed the bequest was a trust without beneficial interest or a wakf. A registered deed executed by the mother as guardian during the minority of the sons had previously settled the claims of the widow and daughters by providing them annuities from the general estate.
Findings of Court:
The will conferred a beneficial interest, rendering it invalid under Hanafi law due to lack of consent from the other heir. The deed executed by the guardian was intended to settle the claims of the daughters and widow and did not bind the younger son to waive his inheritance rights. The suit was not barred by limitation under Articles 44, 123, or 144. The bequest did not constitute a wakf as there was no dedication to charity.
Issues: Whether the will created a beneficial interest or a bare trusteeship; whether the guardian's deed constituted valid consent or a binding family arrangement; whether the suit was barred by limitation; and whether the bequest constituted a valid wakf.
Ratio Decidendi: The court held that the term "proprietary possession" implies ownership of the residue and reversion, which constitutes a beneficial interest. Under Hanafi law, such a bequest to an heir is void without the consent of other heirs. A guardian cannot bind a minor to a family arrangement that affects their inheritance rights unless it is a valid transfer. Article 123 of the Limitation Act is not applicable to suits between heirs where no executor or administrator is involved.
Result: Appeal allowed; decree for possession of a moiety of the properties.
Solicitor for appellant: H. S. L. Polak.
Solicitors for respondent No.1: Francis & Harker.
Appeal (No. 75 of 1929) from a decree of the High Court (December 15, 1927) reversing a decree of the Subordinate Judge of Basti (January 26, 1925).
The suit was brought on July 26, 1924, by the appellant against his elder brother, the first respondent, and certain transferees from him who took no part in the proceedings. The appellant by his plaint claimed that he was joint owner of certain villages, and that his brothers claim to exclusive ownership was without foundation. The contesting parties were the sons of Khadim Husain, a Mahomedan of the Hanafi school who died on August 21, 1901, having by his will pro vided (inter alia) that respondent No. 1 should have pro prietary possession of the villages in suit, and out of the income should maintain the disciples and female slaves in accordance with the will of the testators father. The main questions arising in the suit were (1.) Whether under the provision above referred to respondent No. 1 took a beneficial interest in the property so as to render the provision invalid under Hanafi law in the absence of consent by the other heirs; (2.) whether a registered deed of March 11, 1910, executed during the minority of both brothers by their mother, who had been appointed their guardian by the will and purported to execute it on their behalf as well as on her own, and by their three sisters, operated either (a) as a consent by the plaintiff, or (6) as a binding family arrange ment ; (3.) whether the suit was barred by limitation; (4.) whether the plaintiff, if successful, was entitled to a half, or, as the Subordinate Judge held, to a quarter only of the properties in suit. The printed case of respondent No. 1 upon the present appeal raised, for the first time, a further question—namely, whether the will of 1901 and the wills of the testators father and grandfather constituted a valid wakf, the respondent (defendant) being the mutawalli.
The facts appear from the judgment of the Judicial Committee.
The High Court, reversing the decree of the trial judge, dismissed the suit. The learned judges (Mears
C.J. and Mukerji J.) were of opinion that the testator set apart the property in question, not as a gift to his son, but as a trust for the maintenance of the dependents and their descendants, the son being made a trustee and nothing more, and that accordingly the will was not invalid. They held further (1.) That the mother by implication was appointed executrix, as well as expressly guardian of the minor sons, and that the effect of the deed of March 11, 1910, being eminently beneficial to the interests of the family as a whole, was binding upon the plaintiff as a family arrangement; (2.) that the suit, though not barred by art. 144 of the Limitation Act, was barred by art. 44 ; (3.) that for reasons appearing in the present judgment, the plaintiff even if successful would have been entitled to a quarter only of the properties in suit.
1931. Nov. 2, 3, 5. Dube K.C. for the appellant. There is no decision of the Board whether or not a Mahomedan can make a valid wakf in favour of his servants and dependents, though it is stated that he can in Ameer Ali on Mahommedan Law, 4th ed., vol. i., p. 277. The terms of the Mussalman Wakf Validating Act, 1913, do not include a wakf of that kind. But in any case a valid wakf was not constituted in the present case. The language used does not show an intention to create a wakf, also there is no gift of the ultimate residue to charity, and by decisions of the Board that is essential Khajeh Solehman Quadir v. Salimullah (( 1922) L. R. 49 I. A. 153, 163.) and cases there cited; Muhammad Munawar Ali v. Razia Bibi (( 1905) L. R. 32 I. A. 86.), where the alleged wakf was partly in favour of servants. The authorities are collected in Wilsons Anglo-Muhammadan Law, § 323. The intention of the will was that respondent No. 1 should have proprietary possession of the property charged with the maintenance of the disciples and female slaves out of the in
