JUDGMENT
1. This is an appeal by a Muhammadan lady, Musammat Masiti Begam, against a decree of the Subordinate Judge of Moradabad, who dismissed her suit for possession of the village of Hakimpur Qazi, which she sought to obtain from her nephew Syed Mohammad Mehdi. The case turns entirely on the question whether this property has been validly bequeathed to Mohammad Mehdi by the Will of his maternal grandmother, Musammat Murtazai Begam. It is admitted on both sides that if the Will were set aside, the plaintiff, who is the only surviving daughter of Musammat Murtazai Begam, would be entitled to the whole of her property by inheritance. As it is, she has obtained the rest of the property left by her mother; but this property has been denied to her, as it was bequeathed by Will to her sister, Musammat Husnaini Begam and is now in possession of the latter’s son.
2. In the lower Court the plaintiff actually denied the existence of the Will; but this matter is not now in issue. Undoubtedly, the Will was executed by Musammat Murtazai Begam in the year 1897. Apart from this objection, the Will has been challenged in this Court on the ground that it is invalid under Shia Law, because it purported to transfer more than one-third of the testator’s estate. Reliance is placed on a ruling of this High Court reported as Fahmida Khanum v. Jafri Khanum 30 A. 153 : A.W.N. (1908) 55 : 5 A.L.J. 169. According to the head-note of that ruling, where a legacy exceeds one-third of the estate, it will not be valid to any extent unless the consent of the heirs, given after and not before the death of the testator, has been obtained. In this case, the consent of the other heirs was, undoubtedly, obtained to the Will at the time of its execution, but it is not proved that there was any such consent after the testator’s death. The respondent denies that the property bequeathed is more than one-third of the whole estate of Musammat Murtazai Begam, and the evidence on the question is not conclusive, but we are of opinion that the ruling cited by the appellant can be distinguished from the case before us, for there one of the heirs of the testator was excluded entirely from inheritance, and in this case a certain portion is left to each of the heirs. We consider that that ruling should be confined to the case which it was designed to meet, and not applied to every case in which a Shia testator bequeaths more than one-third of his estate. The commentators to whom we have access are all of opinion that the consent required under Shia Law may be obtained before the death of the testator, Ameer Ali in the First Volume of the 4th Edition of his book Muhammadan Law, page 592, writes: “According to the Shia Law…a testator can leave a legacy to an heir so long as it does not exceed one-third of his estate. Such a legacy is valid without the consent of the other heirs, but where it exceeds one-third, it is not valid without the consent of all the heirs. Such consent may be given either before or after the death of the testator.” The same opinion is given by Mr. Tyabji in his book Principles of Muhammadan Law, second Edition, page 784, and we consider that this is the view which we should follow in the present case.
3. Another question raised is whether the legacy can be valid, as the original legatee, Musammat Husnaini Begam, died in the year 1902, many years before her mother. Baillie in his Digest of Muhammadan Law, page 247, writes as follows: “In all cases of bequest, where the legatee happens to die before the testator, some Doctors are of opinion that the legacy is void; but other’s have’ maintained that, although if the testator should retract the bequest, it would be null, whether the retraction takes place before or after the death of the legatee, yet if there is no retraction, the legacy descends to the heirs of the legatee. This of the two reports is most authentic and approved.” Ameer Ali takes the same view, at page 614 of Vol. I of Muhammadan Law, where he distinguishes between Hanafi and Shia Laws. On this point, he says: “If the legacy is not adeemed by the testator, the death of the legatee does not cause a lapse. It descends to the legatee’s heirs”.
4. In the present case the Will was assailed on every possible ground, consequently it is only natural that evidence was adduced to show that the Will was revoked by Musammat Murtazai Begam. The story told by the witness Sajjad, who was a son of Musammat Murtazai Begam’s husband by his first wife, is to the effect that Musammat Murtazai Begam, immediately after the death of her daughter Husnaini Begam, fell out with the latter’s husband and son, who was at that time a boy of four years of age, over the profits of the property and made an oral revocation of her Will. In order to support this statement, the evidence is produced of Mr. Masih-ul-Hasan, a practising lawyer, who states that he was consulted by Musammat Murtazai Begam in the year 1920 as to whether her oral revocation was sufficient or something should be put in writing. Now it hardly appears likely that when a Will is revoked in the year 1902, legal advice should be taken 18 years afterwards in 1920, as to whether the oral revocation was sufficient. The evidence of the witness Sajjad is clearly prejudiced in favour of the plaintiff, and we cannot avoid the suspicion that possibly Mr. Masih-ul-Hasan, who did not see the lady and did not know her before, may have been deceived, and some other may have been substituted for Musammat Murtazai Begam. In our opinion the story of the revocation of the Will is improbable, and the reasons assigned for it are insufficient. We consider that the Will is a valid Will that stands unrevoked, and that the plaintiff is not entitled to the property for which he has brought this suit. We dismiss this appeal with costs.
