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Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 109 of 155)
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Tyrrell in the recant case of Husain Khan v. Umedi Bibi (1) in which
they observed :

" Pandit Sundar Lai has very properly pointed out that the transla-
tion of Baillie was called in question in the High Court of Calcutta and

(1) 9 A.W.N. (1889) 192.

736'



YII]



FAZL BAB V. KHATUN BIBI



15 All. 35



that that Court acted upon a translation made by the Court translator
under its orders, which was not questioned by the Advocate-General, who
was engaged in the case. The translation is to be found in the twentieth
volume of the Weekly Reporter in the case of Musammat Asloo v. Musam-
mat Umdut-oon-nissa (1). The translation made, for the Calcutta Court,
which we assume to be correct, shows that the passage in Baillie is
incorrectly translated, and that to entitle a widow to inherit out of the
land she must have a child living to her husband at the date of his
death. :>

Another Division Bench ruling of this Court may be cited here. In
Musammat Toonanjan v. Musammat Mehndee Begum (2), Mor-[34]gan,
C.J., and Spankie, J., held that according to the law of the Shia
sect a childless widow is not entitled to share in the immoveable property
left by her husband, but only in the value of the materials of the houses
and buildings upon the land.

No case-law bearing upon the subject other than the three rulings
above referred to has been cited, and since those rulings proceed upon
contested translations I have considered it my duty to consult the
original Arabic texts of authoritative works of the Shia law bearing upon
the exact rights of inheritance from her husband to which a childless
wife or widow is entitled. This investigation has been rendered necessary
and important in this case on account of two reasons : the first being that
I hold- it to be proved that the respondent, Musammat Zainab, " has had
a child" by her lunatic husband Muhammad Sadik, and the second reason
being that in interpreting the phrase " the legal heir of the lunatic " as it
occurs in the prohibitive proviso of s. 10 of Act No. XXXV of 1858, I
hold that it covers and includes all persons who immediately upon death of
a lunatic would be entitled to inherit from him, thus including a wife
on whom the personal law of the parties confers a right of inheritance
from her husband.

As to the first of these points I think it is enough to say that I believe
the uncontested testimony of the witness Mohib Ali Khan, who in his
deposition on oath has stated that a child was born to Musammat Zainab
by her lunatic husband, Muhammad Sadik. Indeed the statement of the
fact that the lady was not barren, but had given birth to a child who
died about two years before these proceedings were commenced, was never
contradicted either in the Court below or in this Court, and I therefore
take it that she is still capable of bearing children to her husband, there
being no evidence to the contrary.

The second point is simply a question of interpreting a British Indian
legislative enactment as to the exact import of the phrase "the legal heir
of the lunatic " as it occurs in the proviso to s. 10 of Act No. XXXV
of 1858. In this connection I must confess that the English phrase
"the legal heir," as it occurs in that sec-[35]tion has before now
proved troublesome to me in deciding cases under that enactment. In the
first place the word " heir " is of masculine gender, and since the enact-
ment in which it occurs was passed before the General Clauses Act (Act
No. I of 1868), cl. (1) of s. 2 of that enactment, which provides that
"words importing the masculine gender shall be taken to include females,"
is unavailable for ascertaining whether a wife or mother, who under the
Muhammadan law is entitled to inherit, is included in the expression
" heir," yet the last part of s. 23 of the enactment may possibly involve



1892
JULY 11,

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15 1.29 =
19 w N

(1892) 225.



(1) 20 W.R.C.B. 297 (300).
A VII 98



(2) 3 Agra 13.



737



15 All. 36



INDIAN DECISIONS, NBW SERIES



[Vol.



1892 tbe necessity of a different interpretation, though the section is far from

JULY 11. being clear upon this point. Again the peculiar use of the words "the

legal" before the word "heir" in that proviso enhances the difficulty and

APPEL- leaves room for the suggestion that in drafting that enactment the Legis-

LATE lature was thinking more of the terminology of the English law of

CIVIL, inheritance as to real property than the exigencies of the native personal

laws of inheritance, such as the Hindu and the Muhammadan law. The

18 A. 29= word "heir" as a term of English law is well explained in Wharton's Law

12 A.W.N. Lexicon, where the following occurs as the meaning of the term :

(1892) 225. " Heir (from heire, old Fr. ; hceres, Lat.) a person who succeeds by

descent to an estate of inheritance. It is nomen collectivism, and extends

to all heirs; and under-heirs, the heirs of heirs, are comprehended in

infinitum."

Thus the proviso to s. 10 of Act No. XXXV of 1858 with which I
am now dealing furnishes a good illustration of the doubts and difficulties
which not unfrequently arise in interpreting British Indian Legislative
enactments where technical terms and technical notions of the English
law are bodily imported either by the Legislature or by the Judges in mat-
ters relating to the administration of justice among the Indian population,
the vast majority of which are Hindus and Muhammadans. I have
mentioned this because I wish to interpret the phrase " the legal heir"
as it occurs in the proviso to s. 10 of Act No. XXXV of 185H to mean any
inheritor, whether male or female, who according to the personal law of
the parties concerned would be entitled to inherit the estate of a person
[36] immediately upon his or her death. I refrain from using the Latin
phrase hares prcximus, which, however near it may be to my interpreta-
tion of the word " heir " as it occurs in the Act, is liable to create
confusion. What I hold is that in administering the Lunacy Act (Act
No. XXXV of 18S8) to the Muhammadan population the Court by
reason of s. 37 of the Civil Courts Act (Act No. XII of 1887) is bound to
interpret the phrase " the legal heir " as it occurs in s. 10 of the former
enactment, not with reference to the English law of inheritance but in
reference to the Muhammadan law of inheritance, which provides
rules as to who would be inheritors immediately upon the death of
the owner. Indeed in this very case when it came up before me on
a former occasion as First Appeal from Order No. 114 of 1889, I. in
remanding the case, held that Musammat Kbatun, the mother of the
lunatic Muhammad Sadik, had been illegally appointed guardian of bis
person, because she under the Muhammadan law was- one of those
who would inherit immediately upon his death. And I went on to say
that the prohibitive provisions of the proviso to s. 10 of the Lunacy
Act (Act No. XXXV of 1858) were no doubt intended as a safeguard
for the lunatic's life. To these views, which to my mind obviously explain
the policy of the Legislature in framing the proviso above mentioned,
I still adhere ; and in this case, if it is n, correct enunciation of the
Shia law of inheritance that Musarnmat Zainab Bibi, notwithstanding
the fact that the child which she bore to Muhammad Sadik has already
died and she is DOW childless, is entitled to inherit from him immediately
'upon his death, I shall bold that the law prohibits her being appointed
guardian of his person, as much as it prohibited his mother, Musammat
Khatun, from being appointed as such, and as much as it prohibits the
appointment of Fazl Rab (who as uncle of the lunatic is entitled to inherit
from him) as guardian of the person of his lunatic nephew, Muhammad
Sadik.

738



YHI



FAZL BAB V. KHATUN BIBI



15 All. 38



Now let me ascertain what the Shia law is as to fche?rights of inherit-
ance possessed by a childless wife in the position of Musammat Zainab,
respondeat. Perhaps the most convenient course is to cite the original
Arabic texts of the authoritative works of Sltia law [37] with their
translations into English and then to discuss the exact rule which they
establish with reference to Musammat Zainab's right of inheritance from



1892

JULY 11.

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her lunatic husband, Muhammad Sadik. The texts upon which I shall ~LM7
rely for my conclusions are the following : 13 A. 29 =

(1) "As to husband and wife, there are three cases. First, whore 12 A.W.N.
there are children how low soever, the husband takes one-fourth and the (1892) 225.
wife one-eighth. Secondly, where there are no children or children's
children how low soever the husband takes one-half and the wife one-

fourth ; and in either case there will be no awl (increase), for to do so is
improper in our opinion. Thirdly, where there are no heirs at all by
consanguinity or special connection, the husband takes one-half and the
remainder returns to him and the wife takes one-fourth. There are three
opinions as to return to the wife : First, that it returns to the wife : second,
that is doen not : third, that it returns when there is no Imam and it does
not when there is one " (Sharayeh-ul- Islam, Calcutta edition, p. 445).

(2) " The second case is of a wife without children, in which case she
takes one-fourth. If there are more wives than one they participate in the
share equally, and if he has left a child the wives' share will be an eighth,
and in the case of there being more than one wife the same will go equally
among them, nothing being added thereto' (Sharayeh-ul- Islam, Calcutta
edition, n. 453).

[38] (3) " The fifth case is that of a wife having children by the
deceased. She inherits out of all of his property. If she has no children
she shall not at all participate in land, and shall get her share out of the
value of the utensils and buildings, and it is said by some that she is not
debarred from anything except the houses and buildings. Murtaza gives
a third report, that is, the land should be valued and her share given out of
the value thereof. The first is most obvious (i.e., authority)" (Sharayeh-
ul-Islam, Calcutta edition p. 453). _ _




739



15 All. 39



INDIAN DECISIONS, NEW SEEIES



[Yol.



1892
JULY 11.

APPEL-



CiviL.

15 A, 29 =
12I.W.N
(1892; 225.



(4) " If the wife has no children she does not inherit anything out of
the area of land, and to her is given value of utensils, houses and trees,
and Murtaza says that she is debarred from the land itself and not from
its value. It is said by Mufid that she is not debarred from gardens and
productive farms (Zia), and she shall be given the price of utensils, inclo-
sures and dwelling houses ; and there is a tradition which Zarara takes
from Bakir (upon whom be peace) that she is debarred from weapons and
cattle ; and if she has children by the deceased, the Sheikh and his follow-
ers give her inheritance out of all the property left ; and this is the
opinion of Saduk " (Durus, Book on Inheritance).

[39] (5) " If there is a wife having children and at the same time
another having no childern, and we have said the latter shall particularly
be deprived of inheritance, the wife with children shall get full one-eighth
from the area of land without the participation? of any other of the heirs of
the deceased and without giving anything oub of this to the second (that
is wife having no child), and she (the wife with children) shall gee her full
share out of utensils and trees themselves, but it is incumbent upon her
to give to the other, say, one-half of one-eight of the value, and this is
clear " (Jawahir-ul-Kalam, Book on Inheritance).

(6) " There is no difference of opinions among the Musalmans that a
husband shall inherit out of the whole property left by his [40] wife, be
it land, house or what is besides them. In the same way there is no
difference of any importance among us that a wife is not entitled to get
her share out of a certain property of her deceased husband. In Al-lntisar



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V



9 ( *M;W



3



\ <-,J ;5 5 ^}tl| J\ ^* ^

^* ^^^

* ( o



ljl ^j UX^ j 4iX*^> uJltx 3) &i|

J} U^t ^LawJIj J .jj lfA

^ L ^V) ^ c^ J-



740



VII] FAZL RAB U. KHATUN BIBI ' . 18 All. 41

we find that one of the doctrines peculiar to the Imamia sect is the exchi- 1892

sion of a wife from sharing in the landed property of her deceased bus- JULY 1-1.
band. Nay even in F. and Ar. (names of books) we also find that th'e

concurrence of the learned is in excluding the wife from sharing in iqar APPEL-

( ft* )* Contrary to this Iskafi.says, 'when a husband or a wife intrudes r>ATE

upon the child and the parents, the husband shall get a fourth and the

wife an eighth of the whole property of the deceased, be it land, goods, 15 A. 29-

cattle or Blayes. The unrestricted use of the word walad G^J } (a child) 12 A.W.N.

which is equally applicable to a child born of this wife O r that, shows that (1892) 225;

his opinion is that in general a wife, though she has no child, shall inherit

her one-eighth out of the whole property of her deceased husband and

her one-fourth of the same when there is no child. From Kashfur

Kamuz we learn that this doctrine is obsolete. Moreover, the author of

the Ghayat-ul-Murad, after stating that the concurrence of th learned ia

in excluding the wife from sharing in certain things and that Ihn-i-Junaid

is the only person dissenting, says that the concurrence of the learned has

preceded it. Frorp Mahdi and the author of Ghayat-ul-Murad we learn the

same. Notwithstanding all this it is sometimes said that aU the'bookfe

of Ashab [41] ( wWj)/ , such as Muqanna (***} , Marasim

(^y) * Al Ija* (<tei v ) , Tibyan ( U U7 } , Majma-ul-bayan
(c'W^'U , Jami-ul-Jawami (fc-te 11 ** 1 * ^ , and Al Fara'z

( ^IjaJl ) express iy mentioned a wife's share to be in general
a fourth or an eighth, but are silent on this point, which supports
the view held by Iskafi (<s^fe}J . The silence of Ali, son
of Babawiya ( *tji-M and of Ibn-i-Aqil ( ^h** o ' > seems to be for

J 1 3 *) C5>'
**> o| ;

J| 5 U 5. ^* &^*/J\ (j

b' 5 ^U^iJi ***- <^ 5 J13

k d J12> ^> c_iJ3 ^ 5

< 5 ^buXq 5 jlay JJj 5 r l^| ,

c gy*V\ )

!ii 2S5! ; * ? (j^.i W ; f r -JI^5 ^dl ^ 3 j
J , ^JJ *l



jj| 5 J}



-# jftasJJ ^ J^ U ^J H 5 i* i

741



19 All. 42



INDIAN DECISIONS, NEW SERIES



[Yol.



1892

_ '
APPEL-
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ISA. 29
> n no!!'

!lo92j 225.



this very reason, otherwise their objection would have been mentioned.
Fijcah-i-Razwi ^^ ** J ) whioh is the basis of the work of the former
is also silent upon this point, which again leads to the same. All those
w ^ report from Abdullah the tradition, which, according the Ibn-i-Junaid

>(>^'jrtv' , is next to the Kitab ; fof& i.e., Al Kuran) and Sunnat
(**-' i.e.+ ac t a O j[ ^he Prophet) to be relied upon, seem to main-
t " n tne 8ame opioiaB, because the opinion of a rawi <k 1 ** Jl i.e.,
tradibionist) is to be inferred from the tradition which be reports. Verily
it is reported by Ibn-i-Ali Ghafur, and Ahan and Alfazl, son of Abdul
Malik. He (Alfazl JxiaJl )' , says, 'I asked him (Abdullah), does a husband
inherit anything oat of the house or land left by his deceased wife, or is
he in this respect like a wife, not entitled to inherit anything out of these ?
The reply was that each of them shall inherit out of everything left by
the other.' Therefore to say that the concurrence has preceded it is not
free from objection, but on the contrary we find in the Daaim-ul- Islam

Of ~{ Kwlj^ito ^ that the concurrence of the Ummat iC^-U and the
learned is with Ibn-i- Junaid '( **** ^ ) " Jawahir-ul-Kalam, Book on
Inheritance).

(7) " The substofcxce of what may be deduced from the Nusus
(authorities) is this that there"is no consanguinity between her and [42]
the other heirs, and she is no more than an intruder upon them, that is, a
mere stranger. It may happen that she afterwards marries a stranger who
is an enemy and adversary of her husband and she makes the stranger

live in his house and allows him possession of his iqar (;^ ) and thus

causes great grief and sorrow to the other heirs, therefore the Almighty God
has provided that she should be debarred from the dwelling houses and

iqar '&**$ and should be compelled to receive the price thereof, which is

equivalent to the things themselves. This obviates or minimises the harm
which might have been done ..... These authorities show that there
is no difference between a wife having children and one having no children
for the reason applies equally to both." (Musalik-ul-Afham, Book on
Inheritance.)

(8). " The wife having or not having children does not inherit land,
whether the land be vacant or site of a building, garden, &c., nor does she
inherit water appertaining to the land, but she is entitled to the value of



elc



7 )



.






5 5! t



*

5 j ( 8 >



J 5



5



742



FAZL BAB V. KHATUN BIB!



IS All. 44



APPEL-

LATE

CiviD

18 jf~M-



the buildings, houses and trees bearing and not bearing fruits to the 1892
extent of her share ; she is not entitled to share in the things themselves. JULY 11.
But if the heir says : ' take your share out of the things themselves and
we deoline to give you the price.' It is fully clear that they can do so."
(Jami-ush-shattat, Book on Inheritance.)

(9) " The husband inherits all sorts of property of the woman ;

similarly she gets her share out of all properties excepting iqar ** ' [43]

she does nob however get the things themselves. There is a consensus 12 A.W.H.
of opinion on this point. Iskafi differs as to inheritance by her out of (1892) 225.
this, but this is rare and was expressed after the consensus of opinion,
* * and she inherits out of the price of the utensils and build-
ings *. It is mentioned in traditions that a woman does not

inherit anything out of iqar ( )^ f ) and she gets the price of the buildings
trees, and plants. By building (bind) C* 1 **) is meant a house, and by the



word woman (nisa) ^Wj* is meant wife ...... and it is to be observed

that in this text and in others wherever the word zaujah (*^;;) occurs
as an unrestricted, it shows that there is no distinction between one who
has a child and one who has not." (Sharak Kabir, Vol. II, Book on
Inheritance.) ,

(10) " Where the wife has no child by her husband she does not get a
8 hare in any of these things in iqar 0^**) houses, weapons [44] and



; b IC- JIJ uJUi. 5 ULa




IS Ail; 45



INDIAN DECISIONS, NEW SERIES



[Yol.



1892

JULY 11.

APPEL-
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IS A. 29 =
12 A.WH.
(1892) 225.



cattle : she will get (a share) out of the price of all things, excepting land,
viz., timber, gate- ways, nagz .f^jiiS) (material of fallen house, caves, wood,
bricks, houses, trees, palm-trees) ; but the daughters get inheritance out
of all things. * * The woman has no consanguinity with the heirs

that she should inherit by reason thereof. She is a stranger among them,
and the reason for her not inheriting a share from everything is this
that she might not marry another, for if she does so her husband or her
children who belong to another class will be introduced and there will be
dispute with the other regarding igar {;^*J , . * The husband

inherits out of all things left by his wife, and so do ail the heirs, and so
does the wife who has children by her husband. Muhammad,

son of Ahmad, son of Yahya, says that he learnt from Yakub, son of
Yazid, who derived his information from Ibn-i-Ali Umar, who in bis turn
got the information from Ibn-i-Adina, that as regards females having
children they get from the landed property and Saduk traces this tradition
up to Muhammad, son of Ali-Umar, quoting his authorities." (Wasael-
ul-shia, Book on Inheritance.)

I have been at pains not only to quote these numerous texts from the
Shia law, but also to take care that they are properly translated into
English. It is obvious from these texts, and it would simply involve my
judgment being a volume of a book instead of what I want it to be, a
simple statement of what the law is, if I were to show that those texts
leave absplutely no doubt' in my mind that the Imamia law, commonly
called the Shia law, namely, the law which governs the present case,
shows one undeniable fact, that the wife, be she ehildful or be she child-
less, is one of the heirs of her husband. The history of Muhammadan
Jurisprudence explains why, whilst among the Sunni Muhammadans
absolutely no distinction is made between a ehildful wife and childless wife,
a great distinction is made in the Shia creed in this respect. I do not
intend to go into the history lof how the difference between the Sunni
and Shia creed has arisen, but it is simple enough for every one who
reads the history of Muhammadau Jurisprudence} to show that because
[45] Ayesba the childless widow of the prophet, was childless and never
had a child, therefore the dissensions which arose upon the death of the
prophet created difficulties, with which we have to deal here..

Be it as it may, one thing is certain that a Shia childless wife is an
heir of her husband. Whether' she is entitled tp take a share in his
zamindari or landed estate or not is a matter of detail. But these texts
show that she is an heir in his personal estate, that is to say, in such pro-
perty as he leaves which in our British Indian law is called moveable
property. No one who. reads the texts which I have quoted can doubt
this point. Nor can he doubt that even in immoveable property a childess
wife is entitled to get a share not of a house, nor of a grove, but to get
compensation for the value of all that her share would represent, namely,
the value of the materials of the house, the value of standing timber, the
value of utensils, the value of anything which falls short of being called land.
. This being my view of the Shia law, the next question to consider is



744



YII] FAZL BAB V. KHATUN BIBI 15 All. 47

also a matter of importance, namely, the question what is the exact period 1892
at which, for the purposes of administering the Shia law, we ought to JULY il.
decide that a young woman, such as Musammat Zainab is, should be
declared to be barren or childless. I hold it true upon the very authorities APPEL-
which I have quoted that there is absoluted no authority in the Shia law LATE
to declare that; a woman in the position of Musammat Zainab, respondent,
is totally devoid of any right of inheritance from her unfortunate lunatic
husband, Muhammad Sadik. Absolutely no such authority exists, nor can 15 A =29
the Shia law contemplate such a thing, because if it did it would be con- 12 A.W.N.
tradicting itself. What it does contemplate is that for the purpose of con- (1892) 225.
sidering whether or not a widow or wife who is childless is entitled to
take part or share in the estate of her deceased husband, one has to see
whether she gave birth to a child and if she did, if the child is alive at the
time when the husband dies. This is the Shia law, and it is consistent with
the principle upon which it proceeds. The inheritance to the estate of a
Shia, as well as a Sunni, opens upon the death of khepropositus, namely, the
person whose estate is in question. In this case 'the childless wife of her
husband, [46] Musammat Zainab, being still alive it is impossible to say
whether or not sbe is childless in the sense of being childless at the time
when her husband Muhammad Sadik may die. It is impossible legally for
Muhammad Sadik to know whether or not by cohabitation with her,
offspring may be born and whether or not his wife would be an inheritor
not only of his personal or moveable estate but also of his real estate.
Nobody knows this without the help of prophecy, bufc I have to consider
the matter as it now stands, and I have no doubt that under the Shia law
upon the texts which I have quoted Musammat Zainab, respondent, is
one of the heirs of her lunatic husband, Muhammad Sadik, with whom
we are concerned.

This being so, what explanation I have given of my interpretation
of the provisions of s. 10 of 'the Lunacy Act (Act No. XXXV of 1858)
answers what I mean. And it means this, that Musammat Zainab Bibi
is one of the legal heirs of her lunatic husband Muhammed Sadik, and as
such the law prohibits her from being eligible for the office of being the
guardian of the unfortunate lunatic's person.

It is therefore clear that the order of the learned District Judge
appointing Musammat Zainab Bibi to be the guardian of the person of



Online LibraryChas. A. Stevens & BrosThe Indian decisions (New series) : being a re-print of all the decisions of the Privy Council on appeals from India and of the various high courts and other superior courts in India reported both in the official and non-official reports from 1875 (Volume 7) → online text (page 109 of 155)