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Letters Patent Appeal No. 38 of 1952 decided on 7th May 1956, from the decree of M. R. Kayani, J., dated the 16th day of June 1952, modifying that of Malik Ahmad Khan, Additional District Judge, Rawalpindi, dated the 1st June 1951, (which reversed that of Ch. Aziz Ahmad. Civil judge, 1st Class Gujar Khan, dated the 25th November 1950)
Will‑Legatee‑Rules as to neces sity of existence for benefiting of will.
The Muslim Law contains two rules about the existence of the legatee in order that he may benefit from the will, one being that he must be in existence at the time of the making of the will either actually or presumably, the presumed existence meaning, birth within six months of the will, and the other that he should be in existence at the time of the death of the testator. The two rules deal with two different sets of circumstances and are completely reconcilable with each other.
Under the Muslim law as in other laws a will ordinarily becomes operative from the moment of the death of the testator and it is for that reason that a will of a Muslim that the children of so and so will get such and such property, becomes operative from the death of the testator, subject to the condition that the will or any part of it is not invalid for any reason.
In the present case the will was not in favour of a foetus but in that of any child of the testator's daughter that may be born to her, and the condition of birth of the legatee within six months of the bequest being inapplicable, the will was operative ire favour of the son of the testator's daughter born before the death of the testator.
Abdul Cadur Haji Muhammad v. C. A. Turner I L R 9 Bom. 158 ref.
Though as a matter of strict logic the two rules enunciated in the text books, for application in the two sets of circumstances mentioned, do not appear to be quite consistent with each other, there is no reason why the specific rule governing the unnamed or unspecified progeny of a particular person, should not be held applicable in this case. In the words of Holmes J., the life of the law has been experience rather than logic. The question whether the six months' period during which a legatee in the womb of his mother, should be born, in order that the will be valid, should start from the date of the will or the date of the testators' death, does not really arise in the present case, as another definite rule covers it.
Testator governed by custom at time of making will‑Testator dying after coming into force of West Punjab Muslim Personal Law (Shariat) Application Act, 1948‑Will given effect only so far as permitted by latter Act.
One S made a will, at a time when he was governed by custom, in favour of his wife, for her life, then to one daughter of his, and. then to any child that might be born to this daughter. The latter borne a son R, 2 years before the testator's death which took place after the West Punjab Muslim Personal Law (Shariat) Application Act, 1948 had come into force. In the meantime the aforesaid daughter had died, and at the death of the testator, his Muslim Law heirs were his widow, his sister and another daughter.
Held, that the will took effect so far as permitted by the Muslim Law, and R was entitled to share to the extent of 1/3rd of the estate of S.
‑Will‑Bequest in favour of prior legatee failing‑Later legatee not necessarily deprived of benefit of will.
A will made under custom benefited the testators's wife, for her lifetime, and on her death, his daughter as a full owner, and on the daughter's death, any child that might be born to this daughter. The testator died after the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, had come into force, and the daughter had died during the lifetime of the testator after she had given birth to a son.
Held, that the circumstance that the bequest in favour of the widow had failed on account of the coming into force of the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, did not necessarily make the will inoperative so far as the later legatee the son of the testator's daughter was concerned. He not being an heir under Muslim Law in the present case, was entitled under the will to 1/3rd of the testator's estate.
Ghias Muhammad for Appellants.
Shaukat Ali and M. S. Bukhari for Respondents.
Dates of hearing: 8th, 9th February 1955 and 5th July 1955.
This is an appeal under Clause 10 of the Letters Patent against the decision of a learned judge of this Court who certified the case as a fit one for appeal.
The material facts are these. Shah Wali, a Rajput of village Sepiali Bangial in District Rawalpindi, who at that time was governed by custom, made a will on the 21st of May 1941, stipulating that upon his death his property would go to his wife Mst. Channo Bi, who on her death would be succeeded by his daughter Mst. Muhammad Bi. It was added that if Mst. Channo Bi died in the lifetime of the testator, then Mst. Muhammad Bi, would succeed as a full owner, and in case Mst. Muhammad Bi died in the lifetime of the testator, her children would get the property. Mst. Muhammad Bi died in the lifetime of her father, who himself died on the 20th of October 1949, but about two years before his death Mst. Muhammad Bi had given birth to a son named Muhammad Riaz. As at the time of the death of Shah Wali, the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, had come into force, the property of Shah Wali, which was 106 kanals 4 marlas of land, was mutated by the revenue authorities in favour of Shah Wali's heirs under the Muhammadan Law, Mst. Channo, the widow, getting one‑eighth, Mst. Ghulab Bibi, the sister of the deceased, getting three‑eighths, and the rest of the property going to his daughter Mst. Allah Rakhi. Muhammad Riaz, the son of Mst. Muhammad Bi a daughter of the testator, brought a suit for a declaration that on the death of Mst. Channo, he will be entitled to the whole of the property left by his maternal grandfather Shah Wali. In the alter native, he prayed that if the will were to be held to be governed by Muhammadan Law, he be granted a decree for immediate possession of one‑third of the property left by the testator. Defendants to this suit were the three ladies in whose favour the land had been mutated by the revenue authorities, and all three of them resisted the suit. The trial judge granted the plaintiff a declaration that as laid down in the will, he will be the full and sole owner of the property after the death of Mst. Channo. The defendants went up in appeal which was accepted by Mr. Ahmad Khan, then Additional District Judge, Rawalpindi, and the suit of the plaintiff was dismissed in its entirety. Against that decision, Muhammad Riaz presented a second appeal to this Court, which being partly accepted, it was held that Muhammad Riaz plaintiff was entitled to one‑third of the property left by Shah Wali on the basis of the will executed by the latter, which, because of the coming into force of the Shariat Act of 1948, was governed by the Muslim Law applicable to wills. It is against this decision of the learned Single Judge that the defendants have come up in appeal.
The learned Single judge has held that the will of Shah Wali in favour of Muhammad Riaz was valid in spite of the fact that at the time when the will was made Muhammad Riaz was not in existence and did not come into existence for five or six years afterwards, and that even if it be held that the right of Muhammad Riaz to succeed on the basis of the will was contingent on that of Mst. Channo's succession, the bequest in favour of Muhammad Riaz could take effect and did not become inoperative on the ground that the first legatee did not get anything under the will.
Learned counsel for the appellants who has questioned the correctness of the decision of the learned Single judge on both the points has argued with regard to the first one that no will made by a Hanafi Muhammadan, (the testator in the present case was) can be valid unless it is made in favour of a person who is in existence at the time of the bequest with this exception that a person in the womb of his mother at the time of the bequest will be deemed to be in existence if he is born within six months of the making of the will. This contention was raised before the learned Single judge, who did not accept it because he was of the view that if the legatee is in existence at the time of the death of the testator, at which time alone the will can come into force, the will is valid, notwithstanding the fact that the legatee was not in existence either actually or presumably at the time when the bequest was made.
There is no case decided by any judicial tribunal which has directly dealt with the question that arises in the present case. The only reported case in which the question could have been dealt with was Abdul Cadur Hali Muhammad v. C. A. Turner (I L R 9 Bom.158). The facts of that case were that a Muhammadan testator bequeathed his property in four equal shares to two of his younger sons and to the son of his eldest son as well as to his brother, disinheriting his eldest son. One of the directions in the will was that the property was not to be divided until his two younger sons had attained the age of 20, and the share of the son of the eldest son was to be held in trust till he should attain the age of 20 year. At the time of the death of the testator no son of his eldest son was living, but shortly after his death a son was born who died a few months later. Many years after the death of the testator another son was born to the eldest son of the testator, and the suit out of which the appeal arose was instituted by that son who claimed to be entitled, on his attaining the age of 20, to the property bequeathed by the testator, to the son of his eldest son. A learned single judge of the Bombay High Court held that the plaintiff could not succeed because he was not in existence at the date of the testator's death. In the course of the judgment it was remarked that according to Muhammadan as well as Hindu Law, persons not in existence at the date of the death of a testator are incapable of taking any bequest. The question, whether or not it was necessary for a legatee to be in existence actually or presumably at the time of the bequest, did not arise in the case and, therefore, the case cannot be taken to be an authority for the proposition that if a legatee is in existence at the time of the death of the testator, he is entitled to succeed to the property even though he may not have been in existence actually or presumably at the time of the bequest.
Coming to the textbooks on Muslim Law relied upon by the learned counsel for the appellant one finds that in Baillie's Digest of Muhammadan Law, 1865 Edition, in the part that deals with the Hanafie Law, it is said at page 617 :--
"A bequest to or of a child in the womb, if born within six months from the date of the bequest, is valid."
In the introduction to this book at page xxxviii it is said :‑-
"This is a bequest to a child in the womb is valid only if he is born within six months from the time of the bequest.
In Hamilton's Hedaya, Grady's Edition, the subject is dealt with at page 674 in the following terms :‑-
"A will in favour of a foetus, in the womb, and a will bequeathing a foetus, are both valid, provided the birth happen in less than six months from the date of the will. The ground on which the first case proceeds is, that the legacy is, in a manner, a succession to property; and as a foetus is capable to succeed in the case of inheritance, it is so likewise in the case of a legacy, that being analogous to inheritance."
Amir Ali in Volume I of the Fourth Edition of his book on Muhammadan Law at page 599 says as follows :‑
"A disposition in favour of an infant en ventre sa mere is valid according to all the sects, but, according to the Hanafi Law, the child should be born within six months from the date of the wasiat, in which case it is presumed to have been in existence at the time of the bequest."
In a foot‑note the learned author has stated as follows :‑
"A bequest to a child in the womb if born within six months from the date of the bequest is valid; Fatawai Alamgiri, Vol. VI, p. 140; Radd-ul‑Mukhtar, Vol. V, p. 661, Baillie's Digest p. 627. In the Nihaya it is stated that the six months should be computed from the date of the death of the testator : Radd‑ul‑Mukhtar, Vol. V, p. 962."
In Wilson's book on Anglo‑Muhammadan Law, Sixth Edition, the subject is dealt with at page 308 in para. 276 which reads as follows :‑-
"A bequest to a person not yet in existence is void; but a child in its mother's womb is considered for this purpose as already in existence, provided it be born within six months from the date of the bequest."
In Tyabji's book on Muhammadan Law, third Edition, the subject is dealt with in paragraph 586, at pages 802‑803. Sub -paragraph (2) of this paragraph reads as follows :‑
"A bequest to a person not in existence at the time when the bequest is made, is void, unless it is for a child, who, at the time when the bequest is made is in the womb of its mother, and is born within six months after,"
A note appended to this paragraph is in the following terms :‑
"The legatee is required by the Fatawa Alamgiri and the Hidaya to be in existence at the time of the bequest, and not at the time of the testator's death. The author of the Sharaiu'-ul‑Islam states similarly that 'a bequest in favour of a foetus hereafter to be conceived by a particular woman, or to whomsoever may hereafter be found of the children of such a man, is altogether null and void. The Egyptian Code, on the other hand, speaks of apres la mort du testateur, and is relied upon in a judgment where the distinction was not material as the testator had died in 1861, and the plaintiff who claimed as legatee under the will was not born till 1884 (the reference is to the judg ment in Abdul Cadur v. Turner, though it is mentioned in the book wrongly as Skinner v. Order ((1871) 14 Moo. I A 309). Would not the will be taken as a continued gift made up to the time of death, so that the rule in the Egyptian Code be applicable in India too "
In Mulla's Principles of Muhammadan Law, 13th Edition, the subject is dealt with at page 127 in paragraph 113, which is in the following terms :‑-
"A bequest to a person not yet in existence at the testator's death is void; but a bequest may be made to a child in the womb, provided it is born within six months from the date of the will."
In a note under this paragraph it is said that the legatee, according to Muhammadan Law, must be a person competent to receive the legacy: Baillie, 634 ; he must therefore be a person in existence at the death of the testator, and reference is made to Abdul Cadur v. Turner.
In reply the learned counsel for the respondent urged that as a will became operative only from the time of the death of the testator, the reasonable view was that a person not in existence within six months after the death of the testator should be held not to be entitled to the property bequeathed, and the fact that such a person was not in existence within six months of the bequest should be held to be entirely immaterial. He said that .if it were held that the birth of the legatee within six months of the bequest was necessary in order that the bequest may be valid, some other provisions of the Muhammadan Law relating to disposition of property will appear inconsistent, but could point to no such provision. Assuming, however, that the learned counsel for the respondent was right in saying that the interpreta tion contended for by the appellants' learned counsel would make some other provisions of the Muslim Law appear inconsistent, I cannot see how that circumstance can be taken into consideration if a provision of law is aptly appli cable. to the question that arises. The duty of Courts is to interpret the language of a provision of law that applies to the facts of a case, and reference to other provisions of that law and the consideration of some other provisions becoming inconsistent can only arise if the language of the pro vision which is applicable is vague or open to more than one reasonable interpretation.
A few days after they had concluded their arguments, it was pointed out to the learned counsel for the parties that at page 634 of, Baillie's Digest of Muhammadan Law occurs the following pages :‑
"When a man bequeaths a third of his property to the sons 'of such a one' and the person has no sons at the date of the bequest and sons are subsequently born to him after which the testator dies, these sons are entitled to the third;
and something to that effect is said at page xxxviii of the intro duction to that book. They were given time to examine that proposition because, if that be the law, the will in favour of Muhammad Riaz could not become invalid by reason of the fact that he was not born within six months of the making thereof. When the case was taken up again after an interval of some months, the learned counsel for the res pondent stated that he had not been able to find what was said at page 634 of Baillie's Digest and at page xxxviii of the introduction to that book in any other book on Muslim Law, but urged that Baillie's Digest be relied upon with regard to that point. The learned counsel for the appellant, on the other hand, urged that as what was said at page 634 of Baillie's Digest of Muhammadan Law was not reconcil able with what was stated to be the rule in so many other books of authority on Muslim Law the‑majority opinion should be accepted.
As the rule in favour of the respondent received support from page 634 of Baillie's Digest of Muhammadan Law and page 38 of the introduction to that book as well as from Mulla's book on Muhammadan Law and a book called Nihaya to which reference is made in Amir Ali's Muhammadan Law and the question did not appear as unimportant and the rule as unascertainable as the learned counsel for the respondent treated it to be, it was considered necessary to look deeply into the matter and it is mainly for that reason that the decision has been delayed. A search has revealed that what Baillie said at page 634 of his Digest of Muhammadan Law is also mentioned in the following books:‑
(1) Fatawa‑i‑Hindis, Vol. 9, (Urdu Translation of Fatawa i‑Alamgiri)
(2) Takmilat‑al‑bahr‑ar‑Raiq, Shahrah Kanz‑al‑Daqaiq
(3) Badr‑ul‑Muntaqafi Shahrah Multafa‑al Abhur
(4) Al‑Juz‑al‑‑Khamis Min Hashia Raddal Muhtar Alad dur‑ul‑Mukhtar be Ibn‑i‑Abedeen
(5) Kitab‑al‑Mabsoot, Le‑Shamsuddin Assarkhasi
The above books are authoritative treatises on Muslim Law and it follows that the Muslim Law contains two rules about the existence of the legatee in order that he may benefit from the will, one being that he must be in existence at the time of the making of the will either actually or presumably, the presumed existence meaning birth within six months of the will, and the other that he should be in existence at the time of the death of the testator. At first sight there appears to be substance in the contention of the learned counsel for the appellant that the two rules are irreconcilable, but a careful consideration reveals that the two rules deal with two different sets of circumstances and are completely reconcilable with each other.
The rule relied upon by the learned counsel for the appellant has application where the legatee is a specified person or a foetus. In cases of that type the requirement of the Muslim Law is that in order to get the property bequeathed to it, the child must be either actually alive or be born within six months of the will. The period of six months is fixed as the extreme limit because the minimum period of testation amongst human beings being six months, birth within that period of the will is conclusive proof of the fact that the child intended to be benefited will get the property bequeathed to it. The other rule is applicable where the legatee is not in the womb in form of a foetus but is the unspecified child of a particular person, and as in a case of this type the testator does not intend to confine the benefit to a specified child but wants to benefit the child or children of the person mentioned, the law is that the will in the latter kind of case will ensure for the benefit of all those who answer the description provided they are in existence at the time of the death of the testator. Under the Muslim Law as in other laws a will ordinarily becomes operative from the moment of the death of the testator and it is for that reason that a will of a Muslim that the B children of so and so will get such and such property, becomes operative from the death of the testator, subject to the condition that the will or any part of it is not invalid for any reason.
In the present case the will was not in favour of a foetus but in that of any child of the testator's daughter that may be born to her, and the condition of birth of the legatee within six months of the bequest being inapplicable, the will was operative in favour of Muhammad Riaz respondent as he was born before the death of the testator. Muslim Law of succession having become applicable to the estate of Shah Wali from the date the West Punjab Muslim Personal Law (Shariat) Application Act, 1948, received the assent of the Governor General of Pakistan, 'i.e., the 15th of March 1948, the will of Shah Wali could not affect more than one‑third of his property because under the Muslim Law it is only with regard to one‑third of the testator's property that a will is valid and as Muhammad Riaz is not, under the Muslim Law, an heir to the estate of his maternal grandfather, the bequest, which would have been void if he were an heir, suffers from no defect on that ground.
I will now deal with the contention raised by the learned counsel for the appellant but half‑heartedly that the bequest in favour of Muhammad Riaz respondent would be inoperative because the one in favour of Mst. Channo Bi which preceded it had failed. In cases where a previous bequest fails the will becomes inoperative if the intention of the testator was to benefit the previous legatee as much as the subsequent one. In the present case the will shows that the main object of the testator was to benefit his daughter and her children and the bequest in favour of Mst. Channo Bi was to entire only for her life. The contention of the learned counsel F for the appellant on this aspect of the case is fully met by paragraph 596 of Tyabji's Muhammadan Law, 3rd Edition, which, in my view, correctly enunciates the law and is in the following terms :‑
"Where a bequest of a limited estate in favour of an heir is followed by a bequest to another legatee of the reversion, and the other heirs do not consent to the prior bequest to the heir, so that it fails, in that case the bequest of the reversion does not necessarily fail, but may be accelerated, unless an intention is indicated that the reversioner shall not take till after the death of the prior legatee, or unless such acceleration would wholly defeat the intention of the testator. Semble, the same rule applies wherever the prior of two successive bequests fails."
But even if the intention of the testator was to benefit Mst. Channo Bi that intention cannot be said to have been defeated. Under the will she was to get only a life‑estate in the property but by reason of the application of the Muslim Law, she became an heir entitled to full ownership rights in a part of her late husband's property.
In view of what I have said above I would dismiss the appeal but would, in view of the complexity of the point of law involved, leave the parties to bear their own costs.
I agree and would like to add that though as a matter of strict logic the two rules enunciated in the text‑books, for application in the two sets of circumstances mentioned, do not appear to be quite consistent, with each other, there is no reason why the specific rule governing the unnamed or unspecified progeny of a particular person, should not be held applicable in this case. In the words of Holmes J., the life of the law has been experience rather than logic, The question whether the six months' period during which a legatee in the womb of his mother, should be born, in order that the will be valid, should start from the date of the will or the date of the testators' death, does not really arise in the present case, as another definite rule covers it.
A. H. Appeal dismissed.
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