Syed Mohammad Raza vs Abbas Bandi Bibi on 12 April, 1932

Bombay High Court

1. The facts necessary for the decision of this appeal are within a small compass.

2. In 1868 one Sughra Bibi brought a suit against her cousin Afzal Husain, claiming a half-share in
certain immoveable pro perties in Oudh which had been entered in his name at the post mutiny
settlement. The litigation ended in a compromise upon which a decree was passed in the suit on
September 19, 1870. The compromise was in the following terms :-

We are Musammab Sughra Bibi, plaintiff, claimant of a share in Mahal Shadipur, Nusha, &c,
pargana Tanda, and Surhurpur, and 8yed Afzal Hasan, son of Syed Tegh Ali Qanungo, Lambardar of
the aforesaid Mahal, defendant.

Whereas between the parties to the above-mentioned case in which a share is claimed an amicable
settlement has been arrived at to the effect that the plaintiff's marriage by way of nikah with the
defendant may be performed in the next month, accordingly in view of a marriage settlement, there
no longer exists any dispute regarding a share, and insomuch as the defendant's first wife, the
daughter of Raja Syed Abbas Ali, deceased, is alive, it has been settled that both wives should, in
accordance with this agreement, in their capacity as wives, from this very time be declared
permanent owners [malik mustaqil] of a moiety each of the entire Mahal Shadipur, and that the
names of Musammab Fatima Begam, the first wife, and Musammat Sughra Bibi, plaintiff, be
entered in the public records as owners of half and half [bil munasfa milkiatan]. The said females
shall not have powor to transfer this property to a stranger ; but the ownership thereof as family
property shall devolve on the legal heirs of both the abovenamed wives, from generation to
generation [naslan bad naslan] and the management and collections of the entire estate of Shadipur
shall be in the hands of their husband, Syed Afzal Hasan, in his capacity of a husband ; if on the part
of the husband there is any act of neglect) or estrangement towards either of the wives, then, in that
case, the wife's only remedy will be to have the management of her share performed by the
Government through the Court of Wards ; but during the lifetime of Afzal Hasan neither of the wives
shall have the power on her own authority to have the management of the share which is owned by
her performed by any member of her father's family, and if in contravention of this agreement the
defendant refuses to marry the plaintiff by way of nikah, then the plaintiff shall in accordance with
this document remain owner of a moiety, and if the plaintiff acts contrary to the stipulation of nikah,
she shall cease to have any rights whatever. If, God forbid, contrary to custom the divorce of either
of the wives takes place, then, even in that case, ownership shall remain vested in the wives, as
before, subject to the conditions mentioned above ; provided that the divorced wife should regard
herself as an undivorced wife, and like a woman without a husband continue to live in the house,
and be it understood that the aforesaid conditions shall appiy to whatever share exists in the villages
comprised in Mahal Shadipur, as detailed below :-(1) Shadipur, (2) Ninawan, Behari, Daudpur,

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Nandapur, Qutubpur, Belahri, Daryapur; moreover, whatever property, such as Chitoi and
Nausanda and Musha, &c, pargana Tanda and Halimpur and Lodhna and Nathupnr, pargana
Surhurpur, &c., exists at present, or may be acquired in future, shall, during the lifetime of Mir Teg
Ali and myself (the defendant), continue to remain in possession of the defendant, and after me (the
defendant] this property also shall devolve on the two wives or their descendants [aulad] in equal
shares.

Hence this agreement is made in writing in order that it may serve as evidence thereof and the
pending case may be decided in accordance with its terms.

3. Afzal Hussain thereafter duly married Sughra Bibi and died in 1872 childless, his first wife Fattina
Begum having predeceased him in 1871. Sughra Bibi took possession of her share in the propertiea,
but had sold or mortgaged it all before her death, which occurred on July 26,1914. Her transferees
remained in undisturbed possession for nearly twelve years after her death.

4. On March 26, 1926, the suit out of which this appeal has arisen was instituted by the respondent
in the Court of the Subordinate Judge of Fyzabad for the recovery of two-thirds of Sughra Bibi's
share from the appellants, in whose possession the properties had come under the alienations above
referred to.

5. The respondent's case was that under the compromise Sugbra Bibi took only a life estate without
power of alienation, and that on her death the half-share passed to her heirs, of whom the
respondent in right of her mother Zainab Bibi, the sister of Afoul Husain, was one, her share being
two thirds. The other heirs, taking the remaining third were said to be certain maternal relatives of
Sughra Bibi, who apparently made no claim, and were not joined as parties to the suit, but it is not
suggested that it is defective on this account. The present appeal, therefore, is concerned only with
two-thirds of the property, and the rights of the parties depend in the first instance on the validity of
the alienations by Sughra Bibi, the title of the respondent, if these alienations were invalid, not being
disputed.

6. A preliminary issue which covered this question was raised and tried by the Subordinate Judge. It
was in the following terms :-

Was the restriction placed by the compromise deed dated September 19, 1870, upon Sughra Bibi's
power of alienation valid and legally enforceable ?

The learned Judge, after a detailed but not very informing examination of the case law on the
subject, held that the restriction imposed by the deed on the lady's power of alienation was invalid
and inoperative, and he accordingly answered the issue in the negative.

7. The hearing of some twenty-eight other issues in the case came subsequently before another
Subordinate Judge, with the result that the suit was dismissed with regard to certain of the
properties claimed, but decreed with regard to others.

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8. Both sidss appealed to the Chief Court: The case was heard by Raza and Pullan JJ, who delivered
their judgment on January 4, 1929, allowing the appeal of the present respondent, and dismissing
that of the appellants, with the result that the suit was decreed in full. The questions other than that
as to Sughra Bibi's power of alienation are not now material. They were in part disposed of by
concurrent findings of fact of the two courts, and for the rest involve matters subsidiary to the main
issue as to the validity of the alienations.

9. The learned Judges of the Chief Court discussed the meaning of the word malik which has been
used throughout the compromise agreement, but came to the conclusion that having regard to the
express provision that the ladies were not to have power to transfer the property to a stranger, they
had only a " limited ownership," with a gift over to their heirs. They then considered whether under
the Shia law, by which the parties were governed, such an arrangement would be valid, and came to
the conclusion that it would.

10. Before the Board the case law has been discussed at great length, but without throwing much
light upon the construction of the particular document with which this appeal is concerned, It was
urged for the appellants that the true effect of the document was to constitute the ladies full owners
of the two moieties of the property, and that the attempt to restrict their power of alienation should
be regarded as repugnant, special reliance being placed upon the judgment of the Board delivered by
the late Sir Binod Mitter in Eaghunath Prasad Singh v. Deputy Commissioner, Partabgarh (1929)
I.L.R. 58 I.A, 372, s.c. 32 Bom. L.R. 129. For the respondent it was contended that, having regard to
the decisions of this Board, the use of the word " malik " did not necessarily imply full ownership,
and that reading the document as a whole the ladies took only life estates with vested remainders in
their heirs.

11. In support of the appellants' contention if; was pointed out that the ladies were to be "malik
mustaqil," i.e., permanent proprietors, and were to be entered as such in the public records; that
their proprietorship was to take effect from the execution of the document, and that if Afzal Husain
refused to marry Sughra Bibi, she was to " remain owner of a moiety " free from restriction of any
kind ; that other property, to which Sughra Bibi had made no claim, was also dealt with; that it was
to remain in the possession of Afzal Husain during his life and the lifetime of his father Tegh Ali,
and then was to " devolve on the two wives or their descendants in equal shares "-again, as the
respondent's counsel concedes, without restriction, From this it is said to be clear that the draftsman
of the document was quite competent to put a life estate into direct words if that had been the
intention of the parties under the first part of the agreement. It is also suggested that the words
upon which the respondent relies as constituting a gift over to the ladies' heirs, are only explanatory
of the restriction against transfer to a stranger, which immediately preceedes them, and it is pointed
out with some force that if only life estates were intended the restriction would not have been
confined to the case of strangers.

12. Their Lordships feel the weight of these contentions, and they might have some difficulty in
holding that Sughra Bibi took nothing more than a life estate. But assuming in the appellants' favour
that she took an estate of inheritance, it was nevertheless one saddled, under the express words of
the document, with a restriction against alienation to " a stranger." Their Lordships have no doubt

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that "stranger" means any one who is not a member of the family, and appellants are admittedly
strangers in this sense. Unless, therefore, this restriction can for some reason be disregarded, they
have no title to the properties which can prevail against the respondent.

13. On the assumption that Sughra Bibi took under the terms of the document in question an
absolute estate subject only to this restriction, their Lordships think that the restriction was not
absolute, but partial; it forbids only alienation to strangers, leaving her free to make any transfer she
pleases within the ambit of the family. The question, therefore, is whether such a partial restriction
on alienation is so inconsistent with an otherwise absolute estate that it must be regarded as
repugnant and merely void. On this question their Lordships think that Raghunath Praaad Singh's
case (supra) is of no assistance to the appellants, for there the restriction against alienation was
absolute and was attached to a gift by will. It is, in their Lordships' opinion, important in the present
case to bear in mind that the document under which the appellants claim was not a deed of gift, or a
conveyance, by one of the parties to the other, but was in the' nature of a contract between them as
to the terms upon which the ladies were to take. The title to that which Sughra Bibi took was in
dispute between her and Afzal Husain. In compromise of their conflicting claims what was evidently
a family arrangement was come to, by which it was agreed that she should take what aha claimed
upon certain conditions. One of these conditions was that she would not alienate the property
outside the family. Their Lordships are asked by the appellants to say that this condition was not
binding upon her, and that what she took she was free to transfer to them.

14. The law by which this question must be judged is, their Lordships think, prescribed by Section 3
of the Oudh Laws Act, 1876, and failing the earlier clauses of the section which seem to have no
application, " the Courts shall act according to justice, equity and good conscience," which has been
adopted as the ultimate test for all the provincial Courts in India.

15. Is it then contrary to justice, equity and good conscience to hold an agreement of this nature to
be binding ? Judging the matter upon abstract grounds, their Lordships would have thought that
where a person had been allowed to take property upon the express agreement that it shall not be
alienated outside the family, those who seek to make title through a direct breach of this agreement
could hardly support their claim by an appeal to these high sounding principles, and it must be
remembered in this connection that family arrangements are specially favoured in courts of equity.

16. But apart from this, it seems clear that after the passing of the Transfer of Property Act in 1882, a
partial restriction upon the power of disposition would not, in the case of a transfer inter vivo8, be
regarded as repugnant; see Section 10 of the Act. In view of the terms of this section, and in the
absence of any authority suggesting that before the Act a different principle was applied by the
Courts in India, their Lordships think that it would be impossible for them to assert that such an
agreement as they are now considering was contrary to justice, equity and good conscience.

17. It was said by Lord Hobhouse in Waghela Rajsanji v. shekh Masludin (1887) L.R. 14 I.A. 89, 96
that the expression "equity and good conscience" was generally interpreted as meaning English law,
if found applicable to Indian society and circumstances. If this is to be the test there is authority that
in England a partial restriction would not be regarded as repugnant even in the case of a

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testamentary gift. So in In re Macleay (1875) L.R. 20 Eq. 186 Sir George Jessel M. R. upheld a
condition attached to a devise in fee that the devisee should "never sell out of the family," pointing
out that this had been the law from the time of Coke ; and in Doe d. Gill v. Peasson (1805) 6 East 173
Lord Ellenborough in the King's Bench affirmed the validity of a similar restriction.

18. Their Lordships see no reason, therefore, to hold that the provision in the compromise
agreement that Sughra Bibi should not have power to transfer the properties in suit to a stranger
was otherwise than binding upon her.

19. Their Lordships have heard much discussion of 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, but, in
the view they take of the appellants' case, it is unnecessary for them to come to any conclusion upon
this somewhat abstruse problem, or to consider the authorities that have been cited.

20. In their Lordships' opinion Sughra Bibi had no power to transfer any part of the properties to
the appellants, and upon her death the respondent became entitled to the two-thirds share in the
properties which she claims. They think that this appeal fails, and that the decree of the Chief Court,
dated January 4, 1929, should be affirmed with costs, and they will humbly advise the Majesty
accordingly.

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