Judgement

Appeal (No. 97 of 1930) from two decrees of the Chief Court of Oudh (January 4, 1929) reversing a decree of the Subordinate Judge of Fyzabad (September 30, 1927).

The respondent instituted a suit against the appellants claiming that as heir to one Sughra Bibi, a Shia Mahomedan lady who died in 1914, she was entitled to two-thirds of properties scheduled to her plaint. The title of the defendants rested upon transfers made by Sughra Bibi during her life, and the validity of the transfers depended upon the effect of an agreement in compromise of litigation dated September 19, 1870, made between Sughra Bibi and Afzal Husain, her cousin, to whom she afterwards was married, and who died in 1872.

The terms of the agreement and the other material facts appear from the judgment of the Judicial Committee.

Upon a preliminary issue the Subordinate Judge held that the restriction placed by the document of September 19, 1870, upon Sughra Bibis power of alienation was invalid and not legally enforceable. In his view the document conferred an absolute estate, and the restriction was repugnant thereto. Further issues were then framed, and judgment was delivered subsequently by another Subordinate Judge. Under the above finding he dismissed the suit as to certain of the properties, but as to other properties he made a decree upon grounds not material to this report.

Upon appeals by both parties to the Chief Court the learned judges (Raza and Pullan JJ.) reversed the decision of the Subordinate Judge as to the effect of the agreement. They held that it conferred upon the ladies a limited ownership without power of alienation to a stranger, and an absolute title upon their respective heirs ; further that the estate contemplated was one permitted under Shia Mahomedan law. Decrees were made in favour of the plaintiff for the whole property claimed by her.

1932. Feb. 16, 18, 19, 22, 23. Dunne K.C. and Wallach for the appellants. Having regard to the use of the words " malik mustaqil " and the provision with regard to divorce, the agreement constituted each of the ladies absolute owner of a moiety of the properties, and the restriction against alienation to a stranger was void for repugnancy Lalit Mohun Singh Roy v. Chukkun Lal Roy (( 1897) L. R. 24 I. A. 76.) ; Surajmani v. Rabi Nath Ojha (( 1907) L. R. 35 I. A. 17.) ; Bhaidas Shivdas v. Bai Gulab (( 1921) L. R. 49 I. A. 1.) ; Raghunath Prasad Singh v. Deputy Commissioner, Partabgarh (( 1929) L. R. 56 I. A. 372.) ; Jagmohan Singh v. Sri Nath (( 1930) L. R. 57 I. A. 291.) ; Saraju Bala Devi v. Jyotirmoyee Debi.(( 1931) L. R. 58 I. A. 270.) The words "malik mustaqil" are even stronger than "malik" Naulakhi Kunwar v. Jai Kishan Singh.(( 1918) I. L. R. 40 A. 575.) Where the agreement intended that a life interest only should be taken that was clearly expressed. The agreement cannot be construed as conferring a life interest on Sughra Bibi and an absolute estate upon her heirs, because that would be invalid under Mahomedan law Abdul Wahid Khan v. Nuran Bibi (( 1885) L. R. 12 I. A. 91.) ; Humeeda v. Budlun (( 1872) 17 Suth. W. R. 525.); Abdul Gafur v. Nizamudin.(( 1892) L. R. 19 I. A. 170, 178.) If the agreement purports to give Sughra Bibi a life interest followed by remainder to her heirs, the effect in law is that she took absolutely Suleman Kadr

v. Darab Ali Khan.(( 1881) L. R. 8 I. A. 117, 122.) It is true that in Banoo Begum v. Mir Abed Ali(( 1907) I. L. R. 32 B. 172.) Jenkins J. held that among Shias such an estate is valid. That view, however, was founded largely upon the judgment of the Board in Umes Chunder Sircar v. Zahoor Fatima (( 1890) L. R. 17 I. A. 201.), in which the question of Mahomedan law was not dealt with, and, it is submitted, upon a misreading of the texts Jainabai v. R. D. Sethna (( 1910) I. L. R. 34 B. 604.); Cassamally Jairajbhai v. Currimbhoy Ebrahim.(( 1911) I. L. R. 36 B. 214.) [Reference was made to Baillie, vol. ii., p. 226; Wilson, Anglo-Muhammadan Law, 3rd ed.