On Appeal from the Chief Court of Lower Burma.
Solicitors for Appellant :- Bramall & White. Solicitors for Respondents :- A.H. Arnould & Son. Consent Decree that New Trustee be appointed by the Court Appeal from a decree of the Chief Court (February 22, 1904), reversing a decree of that Court made in its original jurisdiction (April 1, 1903). The suit in this case was brought on October 4, 1897, by the appellant and the fourth respondent, Haji Mahomed Cassim Bindaneem, against the first respondent, praying for the removal of the first respondent from trusteeship under the charitable bequest set out at the beginning of their Lordships' judgment, and for the appointment of a new trustee. The Recorder of Rangoon passed judgment on June 1, 1898, declining to remove him upon the ground that, though he had been careless as regards his accounts, he had not endeavoured to benefit himself at the expense of the trust, but on the contrary had paid a good deal out of his own pocket. An appeal to the High Court at Calcutta under the provisions of the Lower Burma Courts Act, 1889, which was then in force, was compromised upon terms which were embodied in the decree of the High Court dated May 13, 1902. They were that the first respondent should retire from the trusteeship and that a new trustee should be appointed in his place by the Chief Court of Lower Burma (which had in the meantime succeeded to the original civil jurisdiction of the Recorder of Rangoon), "preference in such appointment being given to the lineal descendants of the settlor"; that all accounts should be treated as settled up to the date of the decree of the Recorder of Rangoon, the first respondent not being entitled to pay or receive anything from the trust estate in relation to his management up to that date; that accounts should be taken from that date and the amount found due on such account be paid by the first respondent to the new trustee to be appointed, the costs of both parties to come out of the trust estate. Thereupon the proceedings were taken out of which this appeal arose. The first respondent petitioned that Hajee Mirza Hassim Bindaneem, the second respondent, might be appointed in his place. He set out the names of the testator's seven children, of whom he was the eldest. He said that the third respondent resided in Baghdad, the fourth had been in gaol for sixteen years, the fifth had no settled occupation and had squandered a considerable fortune, that the appellant, the second child, was a Babee, and that the remaining child was dead. The appellant claimed that after the first respondent she was the next lineal descendant of the settlor, and better qualified than other heirs to carry out the provisions of the trust; she therefore prayed that she might be appointed trustee in the place of the first respondent. The fourth and fifth respondents also claimed the trusteeship; the former claiming to be appointed jointly with the appellant. The Chief Court appointed the appellant to be trustee, holding that preference should be given to her as the elder child, and that she was not disqualified either by her sex or by the fact that she was a Babee. The first, second, and third respondents appealed, and the appellate Court intimated that the appointment of the appellant would be set aside and an opportunity would be given to the parties to come to an agreement as to the new trustee to be appointed. No such agreement was come to, and on February 22, 1904, the appellate Court appointed Aga mahomed Sherazee to be trustee. The Chief Court, in reversing the decision of the Court below, held that the only three lineal descendants of the testator eligible as trustees were the appellant, the second respondent Mirza Hassim, and the third respondent Mirza Jawad; that by Mahomedan law the appellant was not disqualified from being a mutawalli or trustee, either on the ground of her sex or her religion; that the objects of the trust trust did not involve any duties of a spiritual nature, such as taking part in or conducting religious service or the like, and that they could be carried out by a deputy. But it went on to say that they could be carried out by a deputy. But it went on to say that the trust had reference to religious observances of Shiah sect, to which the testator belonged, and that accordingly the appellant, though not disqualified, was not a right person to be selected as trustee, because she would have to perform her duties by a deputy and had no sympathy with or interest in such religious observances, and there was no guarantee that she would appoint a proper deputy. The Chief Court further held that there were objections to the second and third respondents Mirza Hassim and Mirza Jawad, on the ground that they were theretofore resident at Baghdad, and there was no guarantee that they intended to reside permanently at Rangoon, and it was desirable that the trustee should be a resident of Rangoon, Where the duties of the trust were to be performed. In default of the selection of Mirza Hassim or Mirza Jawad or some other suitable person by all parties to the appeal, the Court held that they had power to appoint someone not a lineal descendant and not a member of the testator's family. Roskill, K.C., and J.W. McCarthy, for the appellant, contended that on the evidence she was the only fit and eligible lineal descendant of the testator, and that preference should be given to her. She fulfilled all the conditions required by Mahomedan law entitling her to the appointment; and therefore had under the decree an absolute right to the trusteeship precluding any exercise of discretion by the Court. There was a concurrent finding that she was not in fact or law disqualified either on the ground of sex of religion. A woman can be appointed mutawalli : see Sir R. Wilson's Digest of Anglo-Mahomedan Law, 2nd ed. pp. 375; Tagore Law Lectures, 1885 (by Ameer Ali, J.), 1st ed. p. 246, 3rd ed.p. 344; Hussain Beebee v. Hussain Sherif (18868) 4 Madr. H.C. 23. Doe v. Abdollah Barber (1838) Fulton, 345. There was no legal evidence what the tenets of the Babee sect were, or wherein they differed, if at all, from the Shiahs, or that the Babees were heretical or regarded by Mahomedans as unit trustees of religious trusts. The Babees could not be assumed to be apostates. The Chief Judge referred to Lord Curzon's book "Persia and the Persian Question, " and to a work by Mr. E.G. Browne, being the New History of Mirza Ali muhammad the Bab, to shew that Babees were not Mahomedans; but in a later preface to another writer's book on the subject (3) (1903) Mr. Browne changed his opinion, saying that Babees believe in the divine inspiration of the Koran. Besides, the management of the trust did not involve any spiritual duties which the appellant was unable to perform either as a woman or Babee. If it did, they could be performed by deputy. A Shiah, for instance, can manage a Sunni endowment: see Doyalchand Mullick v. Keramut Ali (1871) 16 S. W.R. 116. A non-mahomedan can be appointed, but not where a qualified member of the founder's family exists, especially where by consent of all parties preference is to be given to her.(3)The book referred to is Myron H. Phelps' Life and Teachings of Abbas Effendi: New York and London, 1903. Prof. Browne, however, had kindly informed us that belief in the inspiration of the Koran is no more a sufficient test of Mahomedanism than belief in the inspiration of the Pentateuch is of Christianity. It is an essential tenet of Islam that she Koran is a final revelation and Mahomet the last of the prophets, and the Babis deny both. The full title of prof. Browne's own work above mentioned is "The Tarikh-i-Jadid, or New History of Mirza 'Ali Muhammad the Bab... translated from the persian": Cambridge, 1893; see also "A traveller's narrative written to illustrate the episode of the Bab," Cambridge, 1891. It would appear that there is no real inconsistency. The Babis, at all events, are not recognised as true believers by Mahomedan rulers, and if in their jurisdictions individual members of the religion pass as Muslims it is for reasons of prudence.- F.P.
Upjohn, K.C. and Cowell, for the first respondent, contended that the appellant, both as a woman and a Babee, was not qualified by Shiah law to perform adequately the duties of the trust. Even assuming that she could perform them by deputy, the Court exercised a sound discretion in not selecting her for the post. Under the consent decree the duty of selection was vested in the Court. Even if the appellant were eligible, she must shew that the Court's discretion in declining to appoint her ought to be overruled. None of the members of the family supported her nomination, except one who claimed to be appointed her co-trustee. There were directions in the will which could only be properly carried out by a male Mahomedan. The appointment of a non Mahomedan to be mutawalli of a religious trust was not permitted by the doctrine of the Shiah sect. Reference was made to Ameer Ali's Tagore Law Lectures, 1885, 3rd ed. (1904) pp. 346, 351, 353, 391, 397 and 403; Sir R. Wilson's Anglo-Mahomedan Law, pp. 375, 377. The appellant, under the circumstances, derived no right to the office, nor any preferential claim thereto, by being the eldest lineal descendant of the testator: see Sayad Abdula Edrus v. Zain Sayad Hasan Edrus. (1888) I.L.R. 13 Bomb. 555. No objection was even alleged against the person selected by the Court, who as a resident Shiah could efficiently supervise the management both of the trust property and of the religious ceremonies and duties. Reference was made to Doyalchand Mullick v. Keramut Ali 16 S.W.R. 116; Pirani v. Abdool Karim (1891) I.L.R. 19 Calc. 203. Roskill, K.C., replied. Cases Referred :- Doe v. Abdollah Barber (1838) Fulton, 345. Doyalchand Mullick v. Keramut Ali (1871) 16 S. W.R. 116. Hussain Beebee v. Hussain Sherif (18868) 4 Madr. H.C. 23. Pirani v. Abdool Karim (1891) I.L.R. 19 Calc. 203. Sayad Abdula Edrus v. Zain Sayad Hasan Edrus. (1888) I.L.R. 13 Bomb. 555.