Judgement CONSOLIDATED APPEALS (No. 18 of 1945) from a judgment and decree of the Chief Court (January 12, 1943) which modified a decree of that court in its original civil jurisdiction (October 30, 1937). The following facts are taken from the judgment of the Judicial Committee. Sardar Nawazish Ali Khan will be referred to hereinafter as " the appellant," and Sardar Ali Raza Khan as "the respondent." The family to which the parties belonged were Shia Mohammadans of the Ashna Ashari sect, governed by the Imamia law. The litigation which led up to these appeals arose out of the wills of Nawab Sir Nawazish Ali Khan and Nawab Nasir Ali Khan, who were related to the parties to these appeals as shown in the pedigree following Nawab Ali Raza Khan (died 24th June, 1865). | | | | Sir Nawazish Nawab Nasir Nisar Ali Ali Khan, Ali Khan Khan K.C.I.E. (died 19th (died 1878). (died 1890). Nov., 1896). | | | | | | | Hidayat Ali Khan | Khan Bahadur | (born about Mohammad | 1878 died Ali Khan | 25th Oct., (born about | 1924). 1870). | | | | | | | Sardar Mohd. Husain | | Nawazish Ali (born 1902). | | Khan | | (born 1901). | | (appellant) | | | | | | Sardar Ali Ali Khan Mansur Ali And others | Raza Khan (born 1894) Khan (born after | (born 1892). (born 1894) . 1894). | (respondent) . ____ | | | Barkat Ali Sir Fateh Ali Khan Khan, (born 1856 K.C.I.E. died 11th (born about April, 1912). 1863 died | 28th October, 1923). | | | rpaddfl3 Ali Nisar Ali Mohammadan Khan Khan (born 1901) (born 1879 ; and three died 14th other sons October, younger. 1926). The estates, the title to which was contested in these appeals, were first, an estate in Oudh (hereinafter called " the Oudh "estate") known as the Nawabganj Aliabad estate, in the Bahraich District, which was granted to Nawab Ali Raza Khan, and was shown as No. 151 in List I of the lists in the Schedule to the Oudh Estates Act, 1869, and No. 39 in List V, so that under s. 8 of that Act, the intestate succession was regulated by the rule of primogeniture, and in accordance with the scheme laid down in s. 22 of the Act. Secondly, an estate in the Punjab called the Rakh Juliana estate (hereinafter called "the Juliana estate") which was granted by the Government of India to Sir Nawazish Ali Khan. Both those estates were owned by Sir Nawazish Ali Khan. He transferred the Juliana estate to his brother Nasir Ali Khan in his lifetime. By his will, dated February 14, 1882, he bequeathed the Oudh estate to his said brother under the power conferred by s. 11 of the Oudh Estates Act, 1869, which enabled him to make such a bequest, notwithstanding that under his family law he could only bequeath one-third of his property. At the date of his death in 1890 Sir Nawazish Ali Khan had a son, Hidayat Ali Khan, who would have succeeded to the Oudh estate under the Act of 1869 if Sir Nawazish Ali Khan had died intestate. That was relevant in connexion with the descent of the Oudh estate. On July IS, 1896, Nasir Ali Khan executed two wills, one disposing of the Oudh estate, and the other of the Juliana estate and another estate in the Punjab. It was common ground that the heirs assented to the wills. Those wills were in substantially the same form. It will be sufficient to quote the material provisions of the will with regard to the Oudh estate "Now, under s. 11 of Act 1 of 1869, I, by means of this "will, do hereby appoint Nawab Fateh Ali Khan son of my " late brother Nawab Nasir Ali Khan, my executor and " successor of all this Taluqdari estate with all the rights and " interest aforesaid and do hereby authorize the executor that "whatever Taluqdari powers over the above-mentioned ilaqa "and over all the properties movable and immovable I the " said declarant have, my devisee, to wit, Nawab Fateh Ali "Khan, after my lifetime shall have like myself the very " same powers including the power of possession and enjoyment as owner provided he be alive. Similarly after the " lifetime of the devisee Nawab Fateh Ali Khan my son " Nawab Mohammad Ali Khan shall, if alive, be his successor. " He shall also have the very same powers as have been " bestowed on Nawab Fateh Ali Khan by means of this " deed of will. Similarly after the " lifetime of the devisee Nawab Fateh Ali Khan my son " Nawab Mohammad Ali Khan shall, if alive, be his successor. " He shall also have the very same powers as have been " bestowed on Nawab Fateh Ali Khan by means of this " deed of will. After the lifetime of my son Nawab Mohammad Ali Khan, Nawab Hidayat Ali Khan son of the late " Sir Nawab Haji Nawazish Ali Khan Saheb shall be his " successor provided he be alive. After all these three " successors the fit amongst the descendants of the successors " shall succeed. The last devisee shall have power to "nominate as his successor any one whom he might consider u fit from amongst the descendants of each of the three " successors and if the last devisee die without nominating " a successor the male descendants of each of the three " successors shall have power to appoint as successor whomsoever they consider fit and superior amongst themselves. u The line of successors shall continue according to this very " rule. In the event of disagreement the Government shall " have power to appoint as successor anyone amongst the "descendants of each of the three successors whom it considers "the fittest. And if anyone amongst our family claims " maintenance contrary to the wishes of the Taluqdars, to "wit, my successors, he shall in ho way be entitled as of " right to get maintenance. The successors shall have power "to give or not maintenance in the event of good conduct " and obedience." On the death of Nawab Nasir Ali Khan on November 19, 1896 (before the birth of the appellant), Sir Fateh Ali Khan entered into possession of both properties. On his death, on October 28, 1923, his son Nisar Ali Khan took possession thereof. Hidayat Ali Khan died in 1924. On December 9, 1925, Mohammad Ali Khan (who will be referred to hereinafter as " Mohammad") instituted a suit claiming both the properties. This litigation was eventually taken in appeal to the Privy Council (Nisar Ali Khan v. Mohammad Ali Khan (( 1932) L. R. 59 I. A. 268.)) where it was decided that Fateh Ali Khan and Mohammad took life estates under the wills. The Privy Council refused to consider what would happen after Mohammads death. This litigation was eventually taken in appeal to the Privy Council (Nisar Ali Khan v. Mohammad Ali Khan (( 1932) L. R. 59 I. A. 268.)) where it was decided that Fateh Ali Khan and Mohammad took life estates under the wills. The Privy Council refused to consider what would happen after Mohammads death. As a result of that litigation Mohammad got possession of the Oudh estate and the Juliana estate. By a document dated June 30, 1934, Mohammad, after reciting the wills of Nasir Ali Khan, declared as follows " Whereas according to the "decision of the Privy Council, I the declarant, also in “accordance with the said will, have been in possession of the "property left by the late Nawab Nasir Ali Khan and on "account of the death of the late Sardar Hidayat Ali Khan " Saheb son of the late Haji Sir Nawazish Ali Khan, I, the "declarant, in accordance with the will am the last legatee "and am in every manner, subject to the said will, entitled " and competent to nominate successor ; whereas I the "declarant have reached my full age and consider it proper and " necessary to abide by the said will executed by the late " Nawab Nasir Ali Khan in order to remove future domestic " disputes. I the declarant therefore, in my unimpaired five " senses, without repugnance and force, nominate as successor " Nawabzada Nawazish Ali Khan son of late Sardar Hidayat " Ali Khan, for this reason that although, by the grace of God "each of the three legatees mentioned in the will dated " 15th July, 1896, has male issues still, among all of them the " said Nawabzada Nawazish Ali Khan is in every way, fit to " be preferred for succession. . . . The said Nawabzada " Nawazish Ali Khan shall also be bound to continue to pay "to the descendants of the family of Nawab Nasir Ali Khan "and Nawab Nawazish Ali Khan, deceased subject to (their) " obedience, maintenance at the scale mentioned in s. 25, " Act I-of 1869. . . . The said Nawabzada " Nawazish Ali Khan shall also be bound to continue to pay "to the descendants of the family of Nawab Nasir Ali Khan "and Nawab Nawazish Ali Khan, deceased subject to (their) " obedience, maintenance at the scale mentioned in s. 25, " Act I-of 1869. " Therefore I have with my own will and consent executed " this document appointing successor according to the provision " of schedule 1, Article 7 of the Stamp Act by way of (appointment in execution of a power) so that it may serve as an " authority and be of use when needed. Dated 30th June, " 1934—The scribe of the deed is Syed Hidayet Hussain Vakil, " Said Wara Bahraich." Mohammad died on February 3, 1935, and on his death the appellant obtained possession of both estates. On September 25, 1935, the respondent instituted in the Chief Court of Oudh against the appellant the suit out of which these appeals arose. By his plaint the respondent claimed a decree for possession of the Oudh estate, the Juliana estate and other estates with which this appeal was not concerned, and consequential relief. Both the courts in India held that the power of appointment given by the wills of Nasir Ali Khan was valid according to Shia law, but that its purported exercise in favour of the appellant, who was not born in the lifetime of the testator, was invalid under the personal law so far as the Juliana estate was concerned, but valid so far as the Oudh estate was concerned under the Oudh Estates Acts. Both courts held that the document of June 30, 1934, executed by Mohammad was a will. The trial judge held that it gave to the appellant one third of the Juliana estate to which Mohammad was entitled as heir at law of Nasir Ali Khan. The Chief Court in appeal held that the will was not intended to affect, and did not affect, property of which the testator Mohammad was the absolute owner. With regard to the relief claimed in the suit the trial judge dismissed the suit of the respondent on the ground that it was a suit in ejectment and the respondent had not proved his title to the whole of the property claimed. With regard to the relief claimed in the suit the trial judge dismissed the suit of the respondent on the ground that it was a suit in ejectment and the respondent had not proved his title to the whole of the property claimed. In appeal the Chief Court varied the decree of the lower court by giving the respondent a decree for possession of one-fifth of the Juliana estate, the proportion of the estate to which he was entitled as one of the heirs of Mohammad. 1947. Dec. 9, 10, 11, 15, 16. Sir Thomas Strangman K.C., Pullan and Jayakar for the appellant. The first appeal— which deals with the Juliana estate—raises an important point of Mohamedan law as applicable to Shias, and if the appellant is right it concludes both appeals. It is submitted, further that whichever way that point is decided, the respondents suit should be dismissed as it was by the trial judge. The second appeal (by the respondent to the first appeal) relates to both the Juliana and the Oudh estates. Both courts below held that according to Shia Mahomedan law power of appoint ment could be given by a testator. There is no direct authority on the point ; such a power had been recognized in the case of Hindus by the Privy Council in Bai Motivahoo v. Bai Mamoobai (( 1897) L.R. 24 I.A. 93.), and the courts below arrived at their conclusion in this case by applying the same test with regard to Mahomedan law—that there is nothing to prohibit it. Both courts below held that the exercise of the power in favour of a person unborn at the death of the testator was good according to the Oudh Estates Act as amended, but bad according to the personal law of the parties, so that the main questions arising in the first appeal are (A) Can a power of appointment be given by will in the case of Shias ? (B) If so, is its exercise in favour of a person unborn at the testators death but born at the date of the appointment valid provided, as here, there are supporting life estates up to the time of the appointees succession ? (C) Was the deed of appointment of a testa-mentary character, and could it be construed as a disposition of one-third of the property in favour of the appellant ? (C) Was the deed of appointment of a testa-mentary character, and could it be construed as a disposition of one-third of the property in favour of the appellant ? (D) In view of the frame of the suit, should it not in any event be dismissed ? All the above four points also arise in the second appeal, plus one more, namely, (E) whether the exercise of the power was good in the case of the Oudh property, or, put more specifically, whether the amendment in 1910 to the Oudh Estates Act had retrospective effect. With regard to (A) (supra), it is permissible for a Shia Mohammadan to give his executor a power of appointment. The proper method of approach to the matter is that adopted by the Board in Bai Motivahoo v. Bai Mamoobai (L.R. 24 I.A. 93, 103-4.), a case relating to Hindu law, where it was said " we are to say whether there is anything "against public convenience,, anything generally mischievous "or anything against the general principles of Hindu law, "in allowing a testator to give property whether by way of " remainder or by way of executory bequest .... upon an " event which is to happen, if at all, immediately on th close "of a life in being. Their Lordships think that there is not." It is submitted that that is the proper way in which the matter should be approached in this case. Mahomedan law has always recognized wills Mulla, Principles of Mahomedan Law, 11th ed., p. 112, Mahomedan law recognizes agency ; first, as to marriage, see Wilson, Digest of Anglo-Muhammadan Law, 5th ed., p. 101, para. 27, and the same tiling appears in Tyabji, Principles of Muhammadan Law, 2nd ed., p. 141, para. 55. Even with regard to divorce there can be agency Wilson (sup. cit), p. 139, para. 66 ; Tyabji (sup. cit), p. 206, paras. 125, 134. I know of no other system of law which recognizes agency in marriage and divorce. On the next question, (B) (supra), it is conceded that a testator cannot according to Shia law make a direct bequest in favour of an unborn person. The question is whether he can do so according to Shia law through the medium of a power providing there are supporting life estates up to the time of the appointees succession. On the next question, (B) (supra), it is conceded that a testator cannot according to Shia law make a direct bequest in favour of an unborn person. The question is whether he can do so according to Shia law through the medium of a power providing there are supporting life estates up to the time of the appointees succession. Interests in favour of unborn persons can be created both by Sunnis and Shias by means of wakfs Mulla (sup. cit.), pp. 161 and 167. Quite apart from wakfs, life estates are not recognized by Sunni law, but are recognized by Shia law Mulla, p. 37, para. 44. [Reference was also made to Banoo Begum v. Mir Abed Ali (( 1907) I.L.R. 32 B. 172, 177.) and to Muhammad Raza v. Abbas Bandi Bibi (( 1932) L.R. 59 I.A. 236, 247.), where the question whether the Shia law permits of the creation of a vested remainder in such an indeterminate body as the heirs of a living person, was left open.] The important thing is that Begums case (( 1907) I.L.R. 32 B. 172, 177.) was cited in Muhammad Razas case (( 1932) L.R. 59 I.A. 236, 247.) and in Nisar Ali Khan v. Mohammad Ali Khan (( 1932) L.R. 50 I.A. 268.) Lord Tomlin (who delivered the judgment of the Board, and was also a member of the Board in Muhammad Razas case (( 1932) L.R. 59 I.A. 236, 247.)) must have had Begums case (( 1907) I.L.R. 32 B. 172, 177.) in mind. Apart, therefore, from wakfs, a gift to an unborn person subject to a supporting life estate is valid Ameer Ali, Mahommedan Law, 2nd ed., vol. I, p. 534, sec. 3 ; Tyabji (sup. cit.), p. 516, para. 449. The reason is that the estate is never in abeyance, whereas in the case of a gift direct to an unborn person it would be. Once there are life estates created there is no reason why they should not be followed by the interests of an unborn person. The exercise of the power of appointment in regard to the Juliana property was, therefore, valid according to the personal law of the parties in that the appellant was in existence both when the power was exercised and when the life estate terminated. Question C (supra) arises on the assumption that the exercise of the power of appointment was invalid. The exercise of the power of appointment in regard to the Juliana property was, therefore, valid according to the personal law of the parties in that the appellant was in existence both when the power was exercised and when the life estate terminated. Question C (supra) arises on the assumption that the exercise of the power of appointment was invalid. On that hypothesis it is submitted that the deed of appointment operated as a will of Mohammad Ali Khan, and that on a correct interpretation thereof the appellant became entitled to one-third of the Juliana property. Lastly, on D (supra), as to the frame of the suit, the respondent cannot succeed in a suit in which he is claiming the whole property personally when in truth and in fact he is not. Supposing that the appellant is entitled to one-third, or even to nothing at all, no declaration should be made in favour of the respondent in view of the fact that he has parted with his interests. Pullan followed, and dealing with the question of the validity of a gift to an unborn person after a life in being, referred to Mst. Abbas Bandi Bibi v. Saiyid Muhammad Raza (( 1929) I.L.R. 4 Luck . 452, 472.), and to that case on appeal (( 1932) L.R. 59 I.A. 236, 247.), and to K. B. Saksena, on Muslim Law as Administered in British India, 1937 ed., p. 519. The document constituting the power of appointment was a will within the meaning of s. 2 of the Oudh Estates Act, 1869 Thakur Ishri Singh v. Baldeo Singh (( 1884) L.R. 11 I.A. 135.). Sir Walter Monckton K.C. and Jopling for the respondent in the first appeal, who was the appellant in the second appeal. On the first appeal it is submitted, first, that ho power of appointment is known to Mahomedan law. The approach to this matter should (be, not whether a power of appointment is recognized by Mahomedan law, but whether it is part of that law. For the appellant it was sought to apply to Mahomedan law the test which has been applied to Hindu law with regard to wills. The approach to this matter should (be, not whether a power of appointment is recognized by Mahomedan law, but whether it is part of that law. For the appellant it was sought to apply to Mahomedan law the test which has been applied to Hindu law with regard to wills. Hindu law, however, was capable of having grafted on to it not only the whole subject of wills, but power of appointment, as being not repugnant to any known principle of Hindu law, whereas Mahomedan law has always known wills, and no reference whatever is found anywhere to a power of appointment. [Reference was made to Bai Motivahoo v. Bai Mamoobai (L.R. 24 I.A. 93, 104.).] No help is derived from the appellants references to agency—agency is quite a different matter from testamentary disposition. Next, if such a power of appointment is possible under Mahomedan law, it is submitted that it cannot be exercised so as to defeat any rule against perpetuities. That falls under two heads (a) Nasir Ali Khan Could not under Mahomedan law bequeath to an unborn child ; and (b) the special power, which on this hypothesis is granted, can only be regarded as filling up what would otherwise be a gap in the law, so it cannot be that a testator is enabled to bequeath to someone to whom he could not bequeath directly by will. As to the appellants point that the power exercised in favour of a person unborn at the testators death but born at the date of the appointment would be valid provided that there were supporting life estates up to the time of the appointees succession, net only does it not appear to have been argued or dealt with below, but there is very little authority for it it is true that Ameer Ali at p. 646 of the 4th ed. of his Mahommedan Law says that " the Mahommedan law distinctly " recognizes perpetuities. So long as commencement is made, " in the case of a settlement or devise, with a life in being, it is " not necessary that the persons who take the remainder " should be in existence." Those apparently general words of Ameer Ali, however, ought to refer not generally but to settlements by way of endowment—wakfs Wilsons Digest (supra), 5th ed., note to para. 276. 276. If the testator had wished to create a wakf in his lifetime he would have had to part with possession right away Mulla (supra), 11th ed., p. 159. [Reference was also made to Tyabji (supra), and ed., pp. 515-6; to Baillie, Digest of Mahommedan Law, 1869 ed., Pt. 2, p. 214, and to Mulla, 11th ed., p. 159; p. 127, para. 125a; p. 128, para. 125b.] From the text-books there appears to be nothing under a will which supports the view that something can take effect otherwise than on the death of the testator, and so far as the authorities go there is also nothing to suggest the creation of an interest which can be given otherwise than on the death of the testator. There is a criticism of Ameer Alis approach to wakf in Abdul Fata Mahomed Ishak v. Russomoy Dhur Chowdhry (( 1894) L.R. 22 I.A. 76, 85.)—it is referred to by Ameer Ali in his 4th ed. at p. 344. The wakf is a device by which they have been able to get round the difficulties which otherwise faced them. Apart from reliance on the text books the appellant relied on Banoo Begum v. Mir Abed Ali (( 1907) I.L.R. 32 B. 172, 177.) and Mst. Abbas Bandi Bibi v. Saiyid Muhammad Raza (I.L.R. 4 Luck . 452, 472.). While the former case is not dealing with an unborn person, it does go the length of saying that there can be a vested remainder, but it does not go to the length necessary for the present purpose, and that case was criticized in Jainabai v. R. D. Sethna (( 1910) I.L.R. 34 B. 604, 612.) ; see also Cassmally Jairajbhai v. Sir Currimbhoy Ebrahim (( 1911) I.L.R. 36 B. 214.). Abbas Bandi Bibis case (I.L.R. 4 Luck . 452, 472.), which came on appeal to this Board (( 1932) I.R. 59 I.A. 236.), was really decided on the basis of a contractual obligation which one of the parties to the suit had undertaken. Nisar Ali Khan v. Mohammad Ali Khan (( 1932) L.R. 59 I.A. 268.) is not authority for the purposes of this case. 452, 472.), which came on appeal to this Board (( 1932) I.R. 59 I.A. 236.), was really decided on the basis of a contractual obligation which one of the parties to the suit had undertaken. Nisar Ali Khan v. Mohammad Ali Khan (( 1932) L.R. 59 I.A. 268.) is not authority for the purposes of this case. The passages to which attention has been called in the text-books and in the authorities demonstrate that the cases which have been considered are dealing with a wakf, which is in no way like a testamentary gift what is said in para. 276 and the note thereto in Wilson (supra), 5th ed., p. 303, is fundamental. In a bequest, as in a gift inter vivos, acceptance is one of the conditions Baillie (supra), vol. 2, pp. 229, 231. Turning to the question whether, if the power of appointment is invalid as such, Mohammad Ali Khan is absolutely entitled to pass effectively one-third of the property, it is submitted that the deed of appointment cannot be interpreted as a will and does not operate to pass the property of Mohammad. He is not purporting to make a will of property described as his own, but is merely nominating a successor to the testator. There is nothing to suggest that after his own life estate he is dealing with some right in himself. That is the substance of it as well as the form. It is not a will ; it is an irrevocable instrument of appointment, and it cannot be read as a matter of construction as intending to pass more than a life estate. With regard to the form of the action, it is submitted that even if the respondent fails on this point, the Chief Court judges were right because they were dealing with the substance of the matter. There would be no difficulty if the board say that the respondent as against the appellant is entitled to one-fifth. It would be possible to give him a decree in a representative capacity although he had not asked for it Shutari v. Magnesite Syndicate, Ld. (( 1915) I.L.R. 39 M. 501.) ; Hari Har Baksh v. Md. Usman Khan (( 1926) A.I.R. (Oudh) 144.). It would be possible to give him a decree in a representative capacity although he had not asked for it Shutari v. Magnesite Syndicate, Ld. (( 1915) I.L.R. 39 M. 501.) ; Hari Har Baksh v. Md. Usman Khan (( 1926) A.I.R. (Oudh) 144.). With regard to the second appeal, in respect of the Oudh estate, if it is right that ho powers of appointment by will are possible in Mahomedan law, then the appellants title as set up here is gone, and since primogeniture is the rule under the Oudh Estates Act the respondent would then succeed to the whole because he is the sole heir of Mohammad. If that is wrong, then it becomes necessary to watch the Oudh estate in and out of the Oudh Estates Act and in again. [Reference was made to ss. 14 and 15 of the Oudh Estates Act, 1869, and to ss. 7 and 21 of the Oudh Estates (Amendment) Act, 1910, and to Thakurain Balraj Kunwar v. Rae Jagatpal Singh (( 1904) L.R. 31 I.A. 132.).] The estate in remainder after the life interests vested in Mohammad, the heir of the testator, under his personal law. The interest of Mohammad was not affected by the Oudh Estates (Amendment) Act of 1910, except that he thereafter held the estate subject to the conditions of the Act of 1869. In any ase s. 11 of the Oudh Estates Act, 1869, did not confer any power on a taluqdar to bequeath his estate to a person appointed by another. In the alternative, if such power was conferred by the Act of 1869, it could not be exercised in favour of a person not born in the lifetime of the testator. Jopling followed. Looked at by itself, the deed of appointment contains nothing to indicate that it is a will. Assuming, however, that it is a will, it does not operate to give the estate to the appointee. No assistance can be got from the law of agency Howston v. Burns ([ 1918] A.C. 337, 342.). None of the arguments advanced or the reasons for the decision in Bai Motivahoo v. Bai Mamoobai (L.R. 24 I.A. 93.) apply to Mahomedan law. No assistance can be got from the law of agency Howston v. Burns ([ 1918] A.C. 337, 342.). None of the arguments advanced or the reasons for the decision in Bai Motivahoo v. Bai Mamoobai (L.R. 24 I.A. 93.) apply to Mahomedan law. Sir Thomas Strangman K.C. Dealing first with the Juliana property and with the will, according to Shia Mahomedan law there may be a series of life interests Nisar Ali Khan v. Mohammad All Khan (( 1932) L.R. 59 I.A. 268.). If that is so, it follows almost as of course that there can be a vested remainder. Then comes the question whether the appellant must be in existence at the death of the testator or would it suffice if he were in existence when the life estates terminated. While it is undoubted that the testator could not make a direct gift to an unborn person, the reason being that the estate would be in abeyance, he could make it where it was supported by life estates. There is no direct authority for the proposition, apart from the opinions of Ameer Ali and Tyabji, but reliance is placed on the close analogy in the case of Hindus. Recognition of the validity of the power would be of great public convenience. Next, if the power could not be granted, the document should be construed as the will of Mohammad ; it was to come into effect after he had died, and he desired that the appellant should succeed without any dispute. On that footing the appellant is entitled to one-third. Entirely different considerations apply to the Oudh property. With regard to the validity of the power, there is no prohibition in the Oudh Estates Act against the interposition of a life estate, and if there is no prohibition there is no reason why the power should not be inferred. On the question whether the estate went out of the Act and came in again under the Amending Act of 1910, there were three life tenants in existence when the Act of 1910 came into force, and nothing had vested in Mohammad, and so there was nothing which would have been interfered with by the passing of that Act by giving s. 7 thereof retrospective effect. The respondent must either say that it is taluqdari property or not ; if he says that it is, then I rely on the will; if he says that it is not, then I say that his suit is misconceived because he could not claim here as complete owner in the absence of his co-heirs. Sir Walter Monckton K.C. replied on the second appeal. It cannot be, and is not, contested that this was a taluqdari estate. It went out of the Oudh Estates Act in 1890 when it was transferred to the testator from his elder brother otherwise than in accordance with s. 14 of the Act of 1869, and stayed out from 1890 until 1910, when it was again under the Act by virtue of the joint effect of ss. 7 and 21 of the Act of 1910. If a declaration is to be made, it is submitted that the respondents entitled to one-fifth of the Juliana estate and to the whole of the Oudh estate as against the appellant. 1948. Feb. 5. The judgment of their Lordships was delivered by Sir John Beaumont, who stated the facts set out above and continued The questions which were argued on this appeal were (1.) Is it competent for a Shia Mohammadan governed by Imamia law by will to leave property to a person for his life and after his death to such members of a class as such person may appoint? Or, to state the question in more general terms, does Shia law recognize powers of appointment of a character with which English law is familiar? (2.) If the answer to the first question is in the affirmative, can such power be exercised in favour of a person not born in the lifetime of the testator though born before the power is exercised? (3.) Is the document executed by Mohammad on June 30, 1934, a will? If so, does it comprise property of which Mohammad was absolute owner? (4.) What relief, if any, is the respondent (plaintiff in the action) entitled to? A question was raised, but not seriously pressed, on the construction of the wills of Nasir Ali Khan. It was suggested that the power to appoint a successor was given to the last of the three named tenants for life, namely, Hidayat Ali Khan. (4.) What relief, if any, is the respondent (plaintiff in the action) entitled to? A question was raised, but not seriously pressed, on the construction of the wills of Nasir Ali Khan. It was suggested that the power to appoint a successor was given to the last of the three named tenants for life, namely, Hidayat Ali Khan. Their Lordships feel no doubt that the courts in India were right in holding that the power was given to the last survivor of the three life tenants, and in the events which happened the power, if validly created, was vested in Mohammad. The first question arising in this appeal, as to the validity of the power of appointment conferred by the wills of Nasir Ali Khan, is one of general importance in Islamic law. Both the courts in India based their opinion that such a power is valid under Muslim law on the decision of the Privy Council in Bai Motivahoo v. Bai Mamoobai (L.R. 24 I.A. 93.). In that case the Board upheld a power of appointment conferred by the will of a Hindu, holding that the question for consideration was whether there was anything against public convenience, anything generally mischievous or anything against the general principles of Hindu law, in allowing such a power. Applying a similar test in the present case, the courts in India held that a power of appointment can be conferred under Muslim law. Their Lordships are not satisfied that this is the correct test to apply in a case relating to the will of a Muslim. The origin bf testamentary capacity in the case of Muslims is quite different from that in the case of Hindus. The Hindu texts make no reference to wills, and this is natural since the normal state of Hindu society in ancient times was the joint family, and on the death of a member the property in which he had an interest passed by survivorship to the other members of the family. It was only after partition, and the acquisition of self-acquired property, became common that the necessity to make wills arose, and testamentary power amongst Hindus has been based on long usage and judicial decision (see Tagores case (( 1872) L.R., I.A. Supp. 67.)). On the other hand, wills have been recognized under Muslim law from the earliest times. It was only after partition, and the acquisition of self-acquired property, became common that the necessity to make wills arose, and testamentary power amongst Hindus has been based on long usage and judicial decision (see Tagores case (( 1872) L.R., I.A. Supp. 67.)). On the other hand, wills have been recognized under Muslim law from the earliest times. "Wills are declared to be lawful " in the Quran and the traditions, and all our doctors, moreover, "have concurred in this opinion" (Hamiltons Hedaya, Vol. 4, p. 468). It would however appear that the Prophet was not in favour of unlimited testamentary power. It is recorded in the Hedaya (Vol. 4, p. 469) that he said to a follower when asked his opinion, " You may leave a third of your property " by a will but a third part, to be disposed of by will is a great " portion ; and it is better you should leave your heirs rich " than in a state of poverty, which might oblige them to beg of " others " ; and at p. 472 of the same volume there is a saying attributed to the Prophet, " God has allotted to every heirs his "particular right." Their Lordships have not been referred to, and are not aware of, any work on Mahomedan law, or any judicial decision in support of the view that powers of appointment, so special a feature in English law, are recognized in Muslim law. The matter seems never to have been discussed. In such circumstances, and at this date, to add to the testamentary capacity of Muslims the right to create powers of appointment might seem to encroach on the sphere of the legislature. Their Lordships, however, would be very reluctant to differ from the courts in India solely on the ground of lack of pre cedent, and they propose, therefore, to consider the question whether the grant of such a power of appointment as was contained in the wills of Nasir Ali Khan conflicts with the general principles of Muslim law. Their Lordships, however, would be very reluctant to differ from the courts in India solely on the ground of lack of pre cedent, and they propose, therefore, to consider the question whether the grant of such a power of appointment as was contained in the wills of Nasir Ali Khan conflicts with the general principles of Muslim law. The Chief Court in appeal took the view that under the wills of Nasir Ali Khan the estate vested after his death in the three successive tenants for life ; that on the exercise of the power of appointment it would pass immediately to the appointee ; that there was no period during which the estate would be in abeyance ; and that the rights of the heirs of the testator, were not affected or prejudiced. In their Lordships opinion this view of the matter introduces into Muslim law legal terms and conceptions of ownership, familiar enough in English law, but wholly alien to Muslim law. In general, Muslim law draws no distinction between real and personal property, and their Lordships know of no authoritative work on Muslim law, whether the Hedaya, or Baillie or more modern works, and no decision of this Board which affirms that Muslim law recognizes the splitting up of ownership of land into estates, distinguished in point of quality like legal and equitable estates, or in point of duration like estates in fee simple, in tail, for life, or in remainder. What Muslim law does recognize and insist on, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manafi). Over the corpus of property the law recognizes only absolute dominion, heritable, and unrestricted in point of time ; and where a gift of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant ; but interests limited in point of time can be created in the usufruct of the property, and the dominion over the corpus takes effect subject to any such limited interests. " If a person bequeath the " service of his slave, or the use of his house, either for a " definite or an indefinite period, such bequest is valid ; " because as an endowment with usufruct, either gratuitous " or for an equivalent, is valid during life, it is consequently " so after death ; and also, because men have occasion to make " bequests of this nature as well as bequests of actual property. " So likewise, if a person bequeath the wages of his slave, or "the rent of his house, for a definite or indefinite term, it is " valid, for the same reason. In both cases, moreover, u it is necessary to consign over the house or the slave to the " legatee, provided they do not exceed the third of the property, " in order that he may enjoy the wages or service of the slave, " or the rent or use of the house during the term prescribed, "and afterwards restore it to the heirs." (Hedaya, Vol. 4, p. 527, chap. 5, entitled "of Usufructuary Will." This distinction runs all through the Muslim law of gifts—gifts of the corpus (hiba), gifts of the usufruct (ariyat) and usufructuary bequests. No doubt where the use of a house is given to a man for his life he may, not inaptly, be termed a tenant for life, and the owner of the house, waiting to enjoy it until the termination of the limited interest, may be said, not inaccurately, to possess a vested remainder. But though the same terms may be used in English and Muslim law, to describe much the same things, the two systems of law are based on quite different conceptions of ownership. English law recognizes ownership of land limited in duration ; Muslim law admits only ownership unlimited in duration, but recognizes interests of limited duration in the use of property. There is a full discussion of the law on this subject in the judgment of Sir Wazir Hasan as reported in Amjad Khan v. Ashraf Khan (( 1929) I.L.R. 4 Luck . 305.). That case challenged the doctrine accepted by Hanafi lawyers that a gift to "A" for life conferred an absolute interest on " A " ; a doctrine based on a saying of the Prophet (Hedaya Bk. Ill, p. 309) . 305.). That case challenged the doctrine accepted by Hanafi lawyers that a gift to "A" for life conferred an absolute interest on " A " ; a doctrine based on a saying of the Prophet (Hedaya Bk. Ill, p. 309) . " An amree or life grant " is lawful to the grantee during his life and descends to his " heirs. The meaning of amree is a gift of a house (for example) " during the life of the donee on condition of its being returned " upon his death. An amree is nothing but a gift and a condition and the condition is invalid ; but a gift is not rendered " null by involving an invalid condition." Sir Wazir Hasan in his judgment examined the appropriate texts and all the relevant decisions of the Privy Council, He pointed out the distinction in Muslim law between the corpus and the usufruct, between the thing itself and the use of the thing. On the construction of the deed which was in question in the case before him, he came to the conclusion that the donor intended to confer on his wife not the corpus, but a life interest only, that such life interest could take effect as a gift of the use of the property and not as part of the property itself, and that there was nothing in Muslim law which compelled him to hold that the intended gift of a life estate conferred an absolute interest on the donee. This case was taken in appeal to the Privy Council (( 1929) L.R. 56 I.A. 213.). The Board agreed with Sir Wazir Hasan on the construction of the deed in question that only a life interest was intended, and held that if the wife took only a life interest it came to an end on her death, and the appellant, who was her heir, took nothing, and if the life interest was bad the wife took no interest at all and the appellant was in no better case. There is also a discussion of the basis on which a life interest under Hanafi law can be supported in the 3rd edition of Tyabjis Muhammadan Law at pp. 487 et seq. That book, as the work of an author still living, cannot be cited as an authority, but their Lordships have derived assistance from the discussion. There is also a discussion of the basis on which a life interest under Hanafi law can be supported in the 3rd edition of Tyabjis Muhammadan Law at pp. 487 et seq. That book, as the work of an author still living, cannot be cited as an authority, but their Lordships have derived assistance from the discussion. Limited interests have long been recognized under Shia law. The object of " Habs " is " the empowering of a person to "receive the profit or usufruct of a thing with a reservation " of the owners right of property in it .... I have bestowed " on thee this mansion .... for thy life or my life or for a " fixed period " is binding by seizin on the part of the donee. (Bail II 226.) See also Banoo Begum v. Mir Abed Ali (( 1907) I.L.R. 32 B. 172, 179.). Their Lordships think that there is no difference between the several Schools of Muslim law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools. Their Lordships feel no doubt that in dealing with a gift under Muslim law, the first duty of the court is to construe the gift. If it is a gift of the corpus, then any condition which derogates from absolute dominion over the subject of the gift will be rejected as repugnant ; but if on construction the gift is held to be one of a limited interest the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed for the duration of the limited interest. It remains to construe the wills of Nasir Ali Khan and to apply to them the rules of Muslim law. On the death of the first life tenant his son and heir claimed that the gift to his father was of the corpus, relying on the use of the word "owner" (malik), and that all subsequent limitations were repugnant and void. This argument failed in all the courts, and it was held that the will created three successive life interests. As the will contained no gift of the corpus, that descended to the heirs of the testator subject to the interests of the life tenants in the usufruct. This argument failed in all the courts, and it was held that the will created three successive life interests. As the will contained no gift of the corpus, that descended to the heirs of the testator subject to the interests of the life tenants in the usufruct. On the death of the surviving tenant for life, two alternative constructions of the wills have been "suggested. First that the person to take under the power of appointment was to take absolutely. Secondly that the sentence in the wills " the line of successors shall continue according to this very " rule " means that the person to take under the power was to take for life and to possess a power of appointing a successor similar to that given to the survivor of the three tenants for life named in the wills, and that this arrangement was to continue for ever. If this be the meaning of the wills the power if valid, would operate on the usufruct, but the question would arise whether under Shia law as administered in India and in the light of public policy it is competent for a testator to provide in perpetuity for a succession of tenants for life not born in his lifetime taking under successive powers of appointment. Their Lordships do not find it necessary to decide this question, because they are satisfied that the first suggested construction of the wills is the right one, and that the person nominated under the power was to take an absolute interest. The words of sentence quoted above are vague and not capable, their Lordships think, of bearing the extended meaning sought to be attributed to them. They appear to be words of emphasis and repetition merely. The testator is saying that the line of succession which he has laid down, namely to three successive tenants for life and then to the successor appointed under the power, is the line which is to continue from his death. If the successor is to take absolutely the power operates on the corpus, and in their Lordships view is clearly inconsistent with principles of Muslim law. It would interfere with the Muslim law "of succession, and would involve that the heirs took the corpus of the property for a term, not merely of limited, but of uncertain, duration. If the successor is to take absolutely the power operates on the corpus, and in their Lordships view is clearly inconsistent with principles of Muslim law. It would interfere with the Muslim law "of succession, and would involve that the heirs took the corpus of the property for a term, not merely of limited, but of uncertain, duration. The Chief Court found some support for its view that the power of appointment was valid in analogies drawn from wakfs. In their Lordships opinion no such analogy exists in a case like the present, which is not founded on trust. In wakfs the property is vested either notionally in Almighty God, or in the wakif or his heirs, and all beneficial interests take effect out of the usufruct. For the above reasons their Lordships hold that the power of appointment contained in the wills of Nasir Ali Khan is invalid under Muslim law. The next question for consideration is as to the nature and effect of the document of June 30, 1934, executed by Mohammad, which both courts in India held to be a will. No doubt in point of form it might be a will. But it is to be noticed that it purports only to exercise the power conferred by the wills of Nasir Ali Khan and to dispose of the property subject to the power. It contains no appointment of an executor, no gift of any property belonging to the testator, and no suggestion of revocability ; it was stamped under an article of the Stamp Act relating to appointments made by any writing not being a will, and it is called a deed at the end of the document. In all the circumstances their Lordships think that . the document was a deed and not a will. But if it be a will, their Lordships agree with the lower appellate court that the document did not pass property which Mohammad took as heir of his father. It was one thing to choose the appellant, who was the senior male member of the senior branch of the family, to succeed to the leadership of the family and to the family estates, but quite another thing to decide that the appellant was better suited than Mohammads own children to inherit Mohammads own property. There is nothing to show that Mohammad ever considered that question. There is nothing to show that Mohammad ever considered that question. This disposes of the appeal of the appellant relating to the Juliana estate, which belongs to the heirs of Mohammad under his personal law. The cross-appeal of the respondent relates to the Oudh estate. The courts in India were of opinion that, apart from Muslim law, a power of appointment can be created under the wide power of disposition conferred by s. 11 of the Oudh Estates Act, 1869, which applies to all Taluqdaris, Hindu as well as Muslim. As against this view the respondent points out that neither the Act of 1869 nor the amending Act of 1910 mentions powers of appointment, and that ss. 78 and 79 of the Succession Act, 1855, which relate to powers of appointment, are not included amongst the sections incorporated in the Act of 1869. Their Lordships do not find it necessary to decide this question, because they are satisfied for the reasons now to be stated that if a power of appointment can be created under the Oudh Estates Act, the power sought to be conferred by the wills of Nasir Ali Khan does not fall within the Acts. The position is as follows. Estates in List V descend on intestacy under the law of primogeniture in accordance with the scheme laid down in s. 22 of the Act of 1869. Under s. 11 of the Act the holder of such an estate might, however, dispose of the estate, either in his lifetime or by will. The estate in the hands of a person taking it by such a disposition only remained under the Act (so as to be capable of being dealt with or pass under the Act and not under the personal law) if the transferee was a person who would have succeeded according to the provisions of the Act, if the transferor had died intestate. This was provided for by ss. This was provided for by ss. 14 and 15 of the Act of 1869, which were (so far as material) as follows "If any Taluqdar or grantee or his heirs or legatee "hereafter transfer or bequeath the whole or any portion " of his estae to another Taluqdar or grantee or to such a " younger son as is referred to in section thirteen, clause two, "or to a person who would have succeeded according to the " provisions of this Act to the estate or to a portion, thereof " if the transferor or testator had died without having made " the transfer and intestate, the transferee or legatee and his " heirs and legatees shall have the same rights and powers in " regard to the property to which he or they may have " become entitled under or by virtue of such transfer or " bequest and shall hold the same subject to the same " conditions and to the same rules of succession as the " transfer or testator. " 15. If any Taluqdar or grantee or his heirs or legatee " shall hereafter transfer or bequeath to any person not being " a Taluqdar or grantee the whole or any portion of his " estate, and such person would not have succeeded according to the provisions of this Act to the estate or " to a portion thereof if the transferor or testator had " died without having made the transfer and intestate, " the transfer of and succession to the property so transferred , or bequeathed shall be regulated by the rules which would " govern the transfer of, and succession to, such property " if the transferee or legatee had bought the same from a " person not being a Taluqdar or grantee." It was held by the Judicial Commissioners of Oudh in Rae Jagatpal Singh v. Thakurain Balraj Kuar (( 1900) 3 O.C. 120.) that any person mentioned in s. 22 as a possible heir might be said to be " a person who would have succeeded according to the provisions "of the Act to the estate." On this construction of the Act, Nasir Ali Khan would have had power to dispose of the estate under s. 11 of the Act. But it was decided by the Privy Council in Thakurain Balraj Kunwar v. Rae Jagatpal Singh (( 1904) L.R. 31 I.A. 132.), that on the true construction of s. 14 of the Act of 1869, the expression " a person who would have succeeded according " to the provisions of the Act" is equivalent to " the person or " one of the persons to whom the estate would have descended " according to the provisions of the special clause of s. 22 " applicable to the particular case "; and does not include any person mentioned in s. 22 as a possible heir in a line of succession not applicable to the particular case. It was admitted in the Chief Court on appeal and before the Board that, as a result of this decision, the Oudh estate was taken out of the Oudh Estates Act, 1869, by the will of Sir Nawazish Ali Khan. He gave the estate by will to Nazir Ali Khan. Nasir Ali Khan was the brother of Sir Nawazish Ali Khan and Sir Nawazish Ali Khan left a son surviving him. Accordingly, Nasir Ali Khan was not the" person to whom the estate would have descended if the testator had died intestate. The position when the amending Act was passed was that under the will of Nasir Ali Khan there were three successive tenants for life with a purported power of appointment in the survivor which was invalid under the personal law, and subject thereto the estate was vested in Mohammad as the heir of Nasir Ali Khan. Then came the amending Act which by s. 7 substituted a new section for s. 14 of the Act of 1869, the effect of which was to restore the law to the state in which it was supposed to have been before the decision of the Judicial Committee in Thakurain Balraj Kunwars case (L.R. 31 I.A. 132.). Then came the amending Act which by s. 7 substituted a new section for s. 14 of the Act of 1869, the effect of which was to restore the law to the state in which it was supposed to have been before the decision of the Judicial Committee in Thakurain Balraj Kunwars case (L.R. 31 I.A. 132.). By s. 21, s. 7 was made retrospective, but with this important reservation "nothing contained in the said section shall affect " suits pending at the commencement of this Act, or shall be " deemed to vest in or confer upon any person any right or title " to any estate or any portion thereof, or any interest therein " which is at the commencement of this Act, vested in any " other person, who would have been entitled to retain the same " if this Act had not been passed, and the right or title of such "other person shall not be affected by anything contained in "the said section." Assuming that the effect of the retrospective operation of s. 7 of the Act of 1910 was to bring the Oudh estate again within the purview of the Act of 1869, so that the estate would descend according to the rule of primogeniture and not under the personal law, it is clear that to impose on the interest of Mohammad a valid power of appointment the exercise of which would deprive him of his estate and which might be exercised by himself or others as future events might determine, would vest in other persons a right and title to the estate vested in him at the commencement of the Act of 1910. Their Lordships, therefore, are of opinion that the power of appointment contained in the Oudh will of Nasir Ali Khan was inoperative in relation to the Oudh estate. As the power of appointment was invalid and ineffective as to both the Juliana estate and the Oudh estate, it is unnecessary to consider whether it could be exercised in favour of a person not born in the lifetime of the creator of the power. The question then arises to what relief the respondent is entitled. With regard to the Juliana estate the respondent claimed the whole estate for himself, relying on a custom which he failed to prove. The question then arises to what relief the respondent is entitled. With regard to the Juliana estate the respondent claimed the whole estate for himself, relying on a custom which he failed to prove. Their Lordships agree with the courts in India that it would be wrong to grant to the respondent an order for possession on behalf of himself and his co-heirs. The suit was neither framed nor fought as a representative suit. The Chief Court, as already noted, granted the respondent a decree for possession of one-fifth of the estate, a decree which their Lordships think would be difficult to enforce, and which ought not to be enforced, because, as appears from the judgment of the Chief Court, the respondent has sold his share in the Juliana estate. Their Lordships, however, think that the position can be dealt with by a declaratory order under s. 42 of the Specific Relief Act. With regard to the Oudh estate, the respondent contended before the Board that it passed under the Oudh Estates Act, 1869, to himself as the eldest son of his father under the rule of primogeniture established by the Act. It appears that in the appeal to the Chief Court the respondent contended that the estate passed under the personal law and not under the Act, the argument being directed against the view which had prevailed in the trial court that under the Act, though not under the personal law, the power of appointment could be exercised in favour of a person unborn in the life-time of the testator. Before this Board the appellant contended that the Oudh estate did not pass under the Act, but the argument advanced on his behalf failed to satisfy their lordships that this was the effect of ss. 7 and 21. The question is of interest to the appellant only as bearing on the proper form of order and their lordships do not feel called on to express a considered opinion as to the construction of the Act which would affect other parties. 7 and 21. The question is of interest to the appellant only as bearing on the proper form of order and their lordships do not feel called on to express a considered opinion as to the construction of the Act which would affect other parties. Their Lordships think that as between the parties to this appeal the respondent has shown his right to possession of the Oudh estate and an order can be made accordingly for possession of that estate, but such order will be without prejudice to any claim the heirs of Mohammad under the personal law, other than the respondent, may choose to make. Their Lordships, therefore, will humbly advise His Majesty that the appeal of the appellant be dismissed, that the cross-appeal of the respondent so far as it relates to the Oudh estate be allowed, and that the decree passed by the Chief Court in appeal on January 12, 1943, be set aside and that the decree passed by the said court on its original side, dated October 30, 1937, also be set aside; that there be a declaration that the power of appointment given by the two wills of Nasir Ali Khan to Mohammad as the survivor of the successors appointed by those wills was invalid both in respect of the Juliana estate and in respect of the Oudh estate; and that the Juliana estate descended on the death of Mohammad to his heirs according to his personal law; that in respect of the Oudh estate there be an order that the appellant deliver up possession to the respondent, but that such order be without prejudice to any claim which the heirs of Mohammad under his personal law, other than the respondent, may choose to make to the Oudh estate. With regard to the costs, the appellant has failed in his appeal and the respondent has succeeded substantially in his cross-appeal. Under the decree of the Chief Court parties were given proportionate costs throughout. The respondent, as plaintiff, claimed to be entitled to the whole of both estates, and according to the learned trial judge the respondent wasted much time in producing a large number of witnesses whose evidence was not referred to in the course of the argument, and which has not been included in the record before their Lordships Board. The respondent, as plaintiff, claimed to be entitled to the whole of both estates, and according to the learned trial judge the respondent wasted much time in producing a large number of witnesses whose evidence was not referred to in the course of the argument, and which has not been included in the record before their Lordships Board. It is clear that the respondent largely increased the costs of the trial by raising a question on which he failed. Their Lordships think that, as the case leaves this Board, an order for proportionate costs would be difficult to work out. On the whole they think a fair order as to costs will be that the appellant Sardar Nawazish Ali Khan pay his own costs throughout and that he pay the respondent Sardar Ali Raza Khan half his costs throughout. The claim to mesne profits raised by the respondent in his plaint was not dealt with by the courts in India, since, in the view they took of the case, that matter did not arise. The claim will be referred back to the trial court for disposal according to law.