Faiz Muhammad Khan v. Muhammad Saeed Khan BS650141
PRIVY COUNCIL

Before:-Lord Hobhouse, Lord Macnaghten, Lord Morris and Sir Richard Couch

0 D/d. 18, 22.2/ 01.04.1898

Faiz Muhammad Khan - Plaintiff

Versus

Muhammad Saeed Khan - Defendant

On Appeal from the Court of the Judicial Commissioner of Oudh.

Solicitors for Appellant :- T.L. Wilson and Co.

Solicitors for Respondent :- J.F. Watkins.

Will - Construction - Unlimited Gift of Profits of an Estate - Devise of absolute Interest.

[Para ]

An Oudh talookdar gave by will a share of the profits of his estate, which was included in List III of Act I of 1869, to the appellant's father :-

Held, that in the absence from the context or the circumstances affecting the property of all evidence of a different intention, an unlimited gift of the profits is equivalent to an absolute gift of the corpus of the estate; and that accordingly the devisee took a heritable interest in his share.

Appeal from a decree of the Judicial Commissioner of Oudh (June 3, 1892) affirming a decree of the District Judge of Rai Bareli (Oct. 9, 1988) and dismissing the appellant's suit with costs.

The facts of the case and the clause of the will under construction are set out in their Lordships' judgment.

The suit was brought by the appellant as legatee under the will of his son Sultan Khan, the daughter's son of Abdul Hakim Khan, talookdar, of one moiety of the talook of Amawar. The second summary settlement of that talook was made with Abdul Hakim Kham, a sanad was granted to him, and his name was entered in Lists I and III prepared under section 8 of Act I of 1869. Succession thereto was in consequence entirely governed by the provisions of that Act. Sultan Khan was alleged by the appellant to have been entitled to one-fourth of the talook as devisee under his grandfather's will, and to another fourth as his heir. The appeal related only to the fourth share devised to Sultan Khan; whose title to the other fourth depended upon an issue of fact concurrently found against the appellant by the Court below.

The District Judge held that, as regards the share given by the will to Sultan Khan, no proprietary right was conferred, and that the remedy given in case a due share of profits was withheld did not justify such a suit as the present.

The Judicial Commissioner (Mr. Dyson) in appeal held that on the proper construction of Abdul Hakim Kahn's will of 1873 "the bequest to Sultan Khan was absolute, and not for life only. That being the case, the will set up by his father, the genuineness of which is not contested, is valid, and conveys to him all rights possessed by Sultan Khan. That includes the rights to the profits of the four annas of the estate bequeathed to Sultan Khan." He accordingly remanded the suit for findings as to the amount of these profits.

The District Judge returned a finding that the amount payable in respect of Sultan Kahn's share was Rs. 1447 8a.

To this finding the defendant filed objections, and the case came on again before Mr. Burkitt, who had succeeded Mr. Dyson, as Judicial Commissioner; and now sat with Mr. Howell as Additional Commissioner.

They held that they were not bound by Mr. Dyson's finding as to the construction of the will of 1873, which, in their opinion, only conveyed to Sultan Khan a life estate by way of maintenance. They therefore, dismissed the appeal, and confirmed the original decree.

The material portion of Mr. Burkitt's judgment is as follows :

Mayne, for the appellant, contended that Mr. Burkitt and his colleague had no jurisdiction to reverse the judgment of Mr. Dyson. On the merits, they were wrong in holding that the share allotted to Sultan Khan was only by way of maintenance for life. According to the true construction of the will, the interest of the four sharers in the estate was equal and heritable. The special provision for Saeed only entitled him to be registered owner for the purpose of making engagements with Government. The remedy given to the sharers to enforce their interests is not inconsistent with the provision that the estate should continue in the name of Saeed entire and undivided. On the other hand, if it is inconsistent, then the later clause is repugnant to the former and void.

'Lawson Walton, Q.C., and C.W. Arathoon, for the respondent, contended that Mr. Burkitt was right in holding that, as the devise to Sultan Khan was limited to net profits, it was simply a grant for maintenance which ensured for the life of the grantee. It did not confer on Sultan Khan any estate of inheritance which he could transmit to the appellant. Assuming it was a gift of profits, the suit was premature, and could not be brought until there had been failure on the part of the respondent to distribute them.

Mayne replied.

JUDGMENT

1898 April 1

Lord Hobhouse :- The sole question in this appeal is whether Sultan Khan, the grandson of Abdul Hakim Khan, took under the will of his grandfather a heritable interest in his grandfather's talookdari estate. Sultan is dead, and the plaintiff, who is now appellant, claims to represent him. The estate is one of those which were entered in List III of Act I of 1869; which means that, not being one in which the custom of primogeniture had previously prevailed, the talookdar elected that it should so descend in future. The defendant and respondent Saeed is another grandson of the testator.

The plaintiff claimed a further share in the estate, being that which was devised to Shabhan, a daughter of the testator who ' died in his lifetime. That claim has been decided against him and is not revived in this appeal. At the hearing the District Judge wholly dismissed the suit, holding that Sultan took no more than a life interest under his grandfather's will. The plaintiff appealed, when the Acting Judicial Commissioner, Mr. Dyson, held that Sultan took an absolute interest; and he remanded the suit for trial of the question (among others), To what share of profits is plaintiff entitled in the four-anna share of profits inherited by Sultan Khan?

On remand the District Judge found "that two persons have equal rights to this item : one of them is Mussammat Aziz-un-nissa, and the other is plaintiff as representative of Sultan Khan." With that finding the appeal came again before the I Judicial Commissioner's Court for final disposal. The Court then consisted of the Judicial Commissioner, Mr. Burkitt, and the Additional Judicial Commissioner, Mr. Howell. Those learned judges held that they were not bound by Mr. Dyson's decision; and, considering that Sultan took only a life interest, dismissed the appeal with costs. That had the effect of affirming the District Judge's original decree which dismissed the suit with costs.

The testator was a Mahomedan gentleman who married two wives and had children by both of them. His will, which is now to be construed, takes notice that a daughter has just been born to him by his second wife, and then proceeds:

This will was made on February 1, 1873, and it is not now disputed that all former wills were revoked by it, or that it is the only instrument now to be construed. But it is not un-important, especially with reference to the arguments founded on the testator's preference of primogeniture for his talook, to see how he had dealt with it by former wills, and what were his actual dispositions immediately before the will of 1873.

The Government of India thought it important for the quiet of titles in Oudh that talookdars should be advised to make wills, and Abdul Hakim was so advised as early as October, 1860. In January, 1861, his only issue was three daughters by his first wife, and he provided that Shahzadi, his eldest daughter, should be lumbardar in his place, and that his daughters Umrao and Moti should be subordinate co-sharers in equal shares. In the course of that year Umrao gave birth to Sultan; and on October 5, 1861, the testator made a second will, giving the estate to Sultan according to the custom of primogeniture. He directed that his two other daughters, then childless, should get maintenance from Sultan; but with a proviso that if they should not remain on terms of peace and concord, his three daughters should' be proprietors in equal shares, Sultan being only lumbardar. When the eldest daughter Shahzadi gave birth to Saeed, the testator made a third will dated September 9, 1870. By it he gave his estate to Sultan and Saeed in equal shares and made them joint lumbardars. Also, he directed that his third daughter, Moti, should get maintenance. The fourth and last will was, as stated, made upon the birth of another daughter, Shabhan.

Their Lordships have heard no reason founded on the language of the will of 1873 for confining the interest of Sultan to a life estate except that the gift is only of profits. But in order to shew that an unlimited gift of profits is less than a gift of the corpus, some evidence should be found in the context or in the circumstances affecting the property. It appears to their Lordships that the context, so far from favouring the restriction of the gift, bears the other way. The testator does not give the estate to Saeed, but directs that the engagement shall be made in his name. When he disposes of the surplus, after deducting revenue and expenses, he puts all four takers on the same footing - equal shares of profits are given to each. Finally comes the provision that in case of dispute each sharer shall have land set apart for him, only the estate is to continue a in the name of Saeed (clearly as lumbardar) entire and undivided. It may be that such a setting apart would be difficult, as the Court below observes; but the testator clearly contemplated it, and it seems more consistent with a permanent than with a limited interest.

The will then read alone must be construed as giving a heritable interest to Sultan, and it is not shown from any of his former dispositions that the testator was in the habit of using any of its expressions in any but their ordinary sense, or that he looked upon the gift of the lumbardari as carrying the whole beneficial interest, or that he leant in favour of the rule of primogeniture. On the contrary, in the will of January, 1861, he gives the lumbardari according to primogeniture, and the surplus in equal shares; in the will of October, 1861, he provides for equality of proprietorship in case of dispute; and in the will of 1870 he gives the proprietorship, lumbardari and all, to his two grandsons equally.

Their Lordships' attention was called to the fact that the plaintiff is not entitled to the whole of Sultan's share. The District Judge found that' Aziz-un-nissa is equally entitled. She is not a party to the suit, and would not be bound by any decree made in it. But their Lordships prefer to confine themselves to a construction of the will on the points argued in this appeal. The plaint, which is rather confused both in its statement and in its prayer, sues for possession of eight-annas share in the talook. A declaration of the nature of the devise to Sultan will enable the Courts to put him in enjoyment of so much of the share of Sultan as has devolved on him in the mode appropriate to the circumstances of the talook. Their Lordships think that the proper course will be to discharge the decrees of the Judicial Commissioner's Court and of the District Judge; to declare that according to the true construction of the will Sultan Khan took a heritable interest in four annas of the profits of the estate after deducting Government revenue, talookdari, and Ahl-i-biradri expenses; to dismiss the suit so far as it seeks relief in respect of the share devised to Shabhan; and to order that neither party shall pay or receive costs either in the District Judge's Court or in that of the Judicial Commissioner; in both of which Courts the plaintiff was right as to one half of his claim, and wrong as to the other half. They will therefore humbly advise Her Majesty to this effect. On this appeal the appellant is wholly right and the respondent wholly wrong. Therefore the respondent must pay the costs.

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