Kadri Begam vs Abdul Majid Khan on 25 January, 1898

Allahabad High Court
Kadri Begam vs Abdul Majid Khan on 25 January, 1898
Equivalent citations: (1898) ILR 20 All 245
Bench: J Edge, Burkitt


John Edge, C.J. and Burkitt, J.

1. In this suit Musammat Kadri Begam sues her son, Abdul Majid Khan, on an award, to obtain a decree for sale. The facts of the case are somewhat peculiar. The plaintiff was the wife of one Nawab Rashid Khan, who was the owner of the property sought to be sold. He assigned the property to his wife, the plaintiff, in satisfaction of dower due by him to her, and she during his minority made a gift of the property to the defendant. When the defendant came of age he showed a disposition to be extravagant, and thereupon the father, mother and son agreed that an arbitrator should determine what provision should be made for the family. Now the arbitrator made an award, and upon that award this suit has been brought. He awarded that Rs. 600 yearly should be paid out of the property in question to the father and-mother, and ordered that the payment should be made “ta haiyat walidain ” which has been translated “to the term of the lives of the two parents.” Nawab Rashid Khan, the husband, has died, and for some time after his death the money was paid regularly to the mother by the son. He has now, however, taken a different view of his legal and filial duties, and he declines to pay his mother anything. Of course, if in point of law he is not liable to make any payment to his mother, the fact that he is her son and the fact that the property in question belonged to her and that she need not have given it to him cannot impose on him any liability in law to make any payment of the kind. It has been contended that the arbitrator intended by his award that this annual payment of Rs. 600 should be made for the joint lives only of the father and mother, and that after the death of either the son should be under no obligation to make any payment to the survivor. It is difficult to conceive that the arbitrator, who at the time was carrying out the wishes of the family, should have entertained any such intention. It is difficult to understand how he could have intended that on the mother’s death the father should be left penniless by his dutiful son. And if that was not his intention in the case of the mother dying and the father surviving, his intention must have been that the money should be paid during the joint lives of the father and mother and during the lifetime of the survivor. There is no doubt that the language used in the award is somewhat ambiguous, and we were pressed by Mr. Ryves with the decision of Kindersley, V.C., in Grant v. Winbolt 23 L.J. Ch. 282. In that case the Vice-Chancellor arrived with great difficulty at the conclusion which he expressed. We have not to construe this award as we should have to construe an award settled by counsel or a solicitor in England, but as an award drawn by a plain man of Bareilly, probably of no great business habits, who would know little or nothing about the subtleties of the English system of conveyancing. We have to construe it as we think it was intended by the arbitrator it should be construed, and we hold that it was his intention that the liability to make the-payment should continue during the life of the survivor of the parents.

2. We have said this was a suit for sale. A decree for sale under Section 88 of the Transfer of Property Act was made, treating the award as if it were a mortgage or document creating a charge upon land. It does not appear from anything put before us that the arbitrator had any power to charge the lands in question; consequently a decree for sale was bad. However, the plaintiff is entitled to a decree for money. We set aside the decree for sale, and we give the plaintiff a decree for the Rs. 600 (six hundred) annuity for the year in question, together with interest from the date of suit until realisation at 12 per cent, per annum. We also give her her costs of this appeal.

3. To the extent above indicated we modify the decree below. In other respects we dismiss the appeal.

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