1867. NAWAB V. MUSSUMAT dents of a share in the specific articles of personalty to which they are entitled, for although the Mahomedan Law, according to the Sheah doctrines, recognizes ALLY KHAN a Son's right to receive his Father's sword, Koran, wearing apparel, and ring, yet there is no authority MOHUMDER to be found that he shall retain possession of Elephants or Guns, or implements of warfare or the chase, which articles, on the death of the Appellant's Father, should have been valued, and the value distributed in the same proportion as other property. Thirdly, it is submitted that the discretion exercised by the Judicial Commissioner in refusing to adjudicate, and reserving his decision with respect to the real estate of the deceased Nawab, cannot now be questioned, as the Appellant is restricted to the extent of the relief he asked for, and which was granted by the special leave given him by this Tribunal to appeal, which is confined to the case of the first two Respondents, whom he alone made Respondents, and does not affect the Widow or other Respondents interested in the residue of the general estate. Lastly, it is submitted, that there was no valid forfeiture by the Governor-General's proclamation, of the estate of Nawab Moonoowurood Dowlah, arising out of the rebellion in Oude, and the Sunnud or Firman by the British Government, recognizing the Appellant's right, does not affect the case; but as that is an act of State, a Municipal Court probably cannot go into the question of its validity. Mr. Ince, for the Widow, Afzul Muhul, Contended, that by Mahomedan Law, this Respondent, as Widow of Nawab Moonoowurood Dowlah, was entitled to one-eighth of the Government secu BEGUM. 1867. NAWAB v. MUSSUMAT MOHUMDEE BEGUM. rities as dower, according to the settlement made on her, as the gift to the Appellant was void, the Donor ALLY KHAN Continuing to have an interest, it being essential by that Law that the gift should be actual and potential to the Donee, without any reservation of interest in the Donor, which was not the case in the gift to her by the Nawab. He referred to Baillie's "Dig. of Moohummudan Law,” p. 508; Macnaghten "On Moohummadan Law," Ch. V. p. 50; and "Prec. of Inheritance," " Cases XLII. pp. 114, 129. 20th Dec., 1867. Judgment, having been reserved, was delivered by The Right Hon. Sir EDWARD V. WILLIAMS. This is an appeal, under an Order made on a special application to Her Majesty, for leave to appeal against so much of the decree of Mr. Campbell, made by him when Judicial Commissioner of Oude, as reverses or varies a decree of Mr. Fraser, the Civil Judge of Lucknow, in favour of the Appellant. The suit in which Mr. Fraser's decree was made was brought by the Respondents, Mohumdee Begum and Nawab Begum, as Daughters and co-heirs of the deceased Nawab, against the Appellant as the Son and the Administrator of his Father's estate, under Act, No. XXVII. of 1860, against the Widow of their Father and two Sisters of the Plaintiff, also co-heirs; and, lastly, against certain other persons described as nominal Defendants whom it is unnecessary here to name or further to describe. The suit was in the nature of an administration suit; it sought a discovery of a portion of the assets alleged to be withheld, and an account, and a division of the assets amongst the heirs according to the Mahomedan Law. The deceased and his family were Mahomedans, and followers of the Sheah school. The Widow of the deceased instituted also a distinct and separate suit against the heirs, claiming her dower according to a settlement of it upon her by her Husband, and claiming, in addition to it, a large sum of money by gift from her Husband during his lifetime. Her claim to one-eighth of the clear assets seems not to have been disputed. The Appellant claimed a large portion of the property, consisting of Promissory notes of the Government, commonly called Company's paper, amounting to Rs. 7,35,300, as his property by gift from his Father in the lifetime of the latter, the validity of which gift was disputed by the Respondents, the Plaintiffs in the suit, as well as by the Widow, a co-Defendant. Mr. Fraser's decree established this gift in favour of the Appellant. The decree of Mr. Campbell reversed that portion of Mr. Fraser's decree, and declared the gift invalid according to Mahomedan Law. The Appellant claimed also against the coheirs, the immoveable property described in the suit. Of this a large proportion was situate in Oude, and was claimed by him under a Firman from the Government of India, granting it to him exclusively as property which had been declared forfeited, and to be the property of the State, by Lord Canning's Proclamation on the suppression of the rebellion in Oude; and a smaller portion, being land situate in Furruckabad, was claimed by him under a certain instrument of conveyance from his Father, termed a soolehnameh. This property was adjudged to him by Mr. Fraser's decree. Mr. Campbell did not adjudicate upon that part of Mr. Fraser's decree relating to the above-mentioned immoveable property, other 1867. NAWAB UMJAD ALLY KHAN V. MUSSUMAT MOHUMDEE BEGUM. 1867. NAWAB ALLY KHAN V. MUSSUMAT BEGUM. wise than by declaring his intention to reserve the consideration of those issues to a further time, for the reason assigned in the concluding paragraph of his judgment. The Appellant treats this reservation of MOHUMDEE judgment, as a variation by Mr. Campbell of Mr. Fraser's decree, and makes the propriety of it a ground of appeal. The Respondents, on the other hand, contend that, as a mere reservation of a judgment, on appeal, by the appellate Court, is neither a reversal nor a variation of a decree appealed against, the Appellant is not entitled to insist on this part of Mr. Campbell's judgment as a grievance against which he has been permitted to appeal. The appeal is brought not as of right, but by special leave, and in the petition on which leave to appeal was granted, the Appellant named only the two Respondents, who were Plaintiffs in the suit; but the Appellant has, nevertheless, now named all the parties interested in the general estate, including the Widow, as Respondents. Application was made, on the part of the Widow, to their Lordships, on the first day of their sittings, to dismiss or suspend the hearing of the appeal, on the ground of irregularity; her Counsel stated that the Widow had not appealed against the decrees affecting her claims to the sum disallowed as a gift, being, on the whole, content to take her portion of the seven lacs which, by Mr. Campbell's decree, fell into the residuary estate; but that, if this appeal succeeded, she would be prejudiced thereby to so large an extent that she should then desire to appeal against the disallowance of a part of her claim by the decrees of the two Courts. Leave was given to her to appeal against that portion of the decrees, and she has been heard by her Counsel as a party 1867. NAWAB Respondent on the present appeal. The decision of their Lordships on the present appeal will be without prejudice to her rights in her own appeal, if preferred, ALLY KHAN as respects the claims disallowed her by those decrees; in other respects it will conclude her rights, in the MOHUMDEE ordinary way, as a party Respondent to this appeal. The matters to be determined on this appeal are three in number, and are:-First, the validity of the gift to the Appellant of the Company's Paper, amounting to Rs. 7,35,300; secondly, the appointment of a Stranger to be and act as co-Trustee with the Appellant in the trust as to the family, religious, or charitable fund called Rud Muzalim, and the direction to settle a scheme for the administration of that fund; and, thirdly, the reservation of his judgment, indefinitely, by the Judicial Commissioner, on the right of the Appellant, as declared by Mr. Fraser in his decree, in respect of the landed property adjudged to the Appellant by that last-mentioned decision. The first in order of these matters involves an important point of Mahomedan Law relating to gifts, inter vivos. If the gift be sustained as a valid gift, inter vivos, it will be unnecessary to review the evidence as to the genuineness of certain documents propounded by the Appellant, and said to constitute a valid testament by the Mahomedan Law, or to consider in any way the validity or effect of those documents. The effect of the non-assent of co-heirs to a bequest to an heir by a Mahomedan of the Sheah sect becomes also immaterial as a subject of inquiry here, if the gift be valid as a gift inter vivos. Before the validity of this gift, as one inter vivos, is determined, it must first be considered by their ย. MUSSUMAT BEGUM. |