JUDGMENT Pramada Charan Banerji, Acting C.J. and Piggott, J.
1. This and the connected appeal No. 178 of 1921 arise out of a suit instituted by the plaintiff respondent for possession of immovable as well as movable properties of various descriptions. The bulk of this property is alleged to have belonged to one Abid Husain, who died in the year 1909. He left surviving him his widow, Musammat Amrit Bibi, the first defendant, a grand-daughter Musammat Umme Habiba (the daughter of a deceased daughter) and three grandsons of one of his sisters. These grandsons are the defendants Nos. 2, 3 and 4.
2. Abid Husain is said to have made a will in the year 1907 when he was going to Karbala. Musammat Umme Habiba died in 1919. The plaintiff is her husband and he claims a share in the property which according to him passed to Umme Habiba. If Abid Husain did not make a will, 14 annas of his property would go under the Shia Law, to which sect he belonged, to Musammat Umme Habiba and 2 annas to Musammat Amrit Bibi. Accordingly it is stated that Musammat Umme Habiba inherited 14 annas of the property, and the plaintiff as her husband is entitled to half of the aforesaid 14 annas, that is, to 7 annas out of 16 annas. The plaintiff denies the alleged will, and he also claims a declaration that the will was never made, and that if it was made, it was invalid and could not have any operation under the Muhammadan Law.
3. The property claimed was of five descriptions. There was some zamindari property which is specified in schedule A annexed to the plaint. There was some house property mentioned in schedule B. Schedule C specifies certain deposits in the Allahabad Bank and also in the Post Office Savings Bank. In schedule D are specified certain jewellery and other movable property which is alleged to have belonged to Umme Habiba. And schedule B is property which the plaintiff alleges belonged to him, being cricket gear and articles of a similar nature. Out of the property mentioned in schedule D the plaintiff claims an 8 anna share.
4. The court below has dismissed the claim in regard to the property mentioned in schedules D and E, and has granted the plaintiff a decree for the share claimed by him out of other properties.
5. Appeal No. 50 of 1921 has been preferred by Musammat Amrit Bibi; and the connected appeal No. 178 of 1921 has been preferred by defendants Nos. 2, 3 and 4. The plaintiff has filed cross objections in respect of the portion of the claim which has been dismissed by the court below.
6. We shall deal now with each description of property claimed by the plaintiff.
[The Court discussed the evidence and held that the defendant's dower was Rs. 5,000 only and had been discharged out of the usufruct of the zamindari property left by Abid Husain, that the house in suit also belonged to him and was not the defendant's own property. The Court further held that out of the deposits mentioned in schedule C the defendant had withdrawn Rs. 7,000 from the Allahabad Bank.]
7. As for the Rs. 1,100 in deposit in the Post Office Savings Bank, it was said in the plaint that Amrit Bibi had withdrawn that amount. There is no evidence that she did so, but the fact that the money was in deposit was admitted by her in her written statement, and if it is still in the Bank and has not been realized by her, she will be entitled to withdraw the whole of it from the Savings Bank, and the passing of a decree against her for recovery of the plaintiff's share of the amount of that deposit will in no respect prejudice her in this suit. We, therefore, see no reason to disturb the decree of the court below as regards the deposit of Rs. 1,100 in the Post Office Savings Bank.
8. Mr. Iqbal Ahmad, on behalf of Musammat Amrit Bibi, raised a contention that the claim in. regard to the deposits must be held to be time-barred inasmuch as the. money was withdrawn in 1915, and Musammat Umme Habiba was alive till 1919 and never claimed it. In the first place, this contention was never put forward in the court below. In the next place, it is manifest from the evidence that the two ladies, Amrit Bibi and Umme Habiba, lived jointly and on most amicable terms. The possession of the money by Amrit Bibi was equivalent to possession by Musammat Umme Habiba. There was no conflict of interest between them and there was no occasion for her to demand this money from Musammat Amrit Bibi. In fact Musammat Umme Habiba had never been excluded from the ownership of this money and in her life-time her right had never been denied by Amrit Bibi. As regards this part of the claim, therefore, the appeal has, in our opinion, no force.
9. As regards the cross objections filed on behalf of the plaintiffs, the evidence is not satisfactory, and it has not been shown to our satisfaction that the finding of the court below is erroneous.
10. The result, therefore, is that the appeal No. 50 of 1921 as well as the cross objections filed in that appeal must fail.
11. As regards appeal No. 178 of 1921, it relates to the question of the will alleged to have been made by Abid Husain in 1907. The fact of the will is no longer denied and it must be taken for the purposes of this case that as a matter of fact the will was executed by Abid Husain. By that will he provided that Musammat Amrit Bibi should be in possession of the whole of the estate for her life-time, and that after her death Musammat Umme Habiba would be the owner (malik) of the property; that after her, her male issue and, failing male issue, female issue would get the property, and failing these the defendants Nos. 2, 3 and 4, the grandsons of the sister of Abid Husain, would get it. Under the Shia Law the will would be valid to the extent of one-third even without the consent of the heirs; if it was a will of the entire property in favour of an heir, it would not be valid unless the other heirs assented to it. The point was considered by this Court in the case of Fahmida Khanum v. Jafri Khanum (1908) I.L.R. 30 All. 153. In that case it was held that if a bequest was made of one-third only it would be valid; but if the bequest was of the entire property it would not be valid even as regards one-third unless it was assented to after the death of the testator by the other heirs. In the present case the bequest was clearly one of the entire property. It is true that a life-estate was given to Musammat Amrit Bibi, but it was a life-estate in the whole of the property. Whereas if no will had been made she would have only got a 2 annas share and the grand-daughter of the testator would have got 14 annas. The effect of the will was to deprive the granddaughter of the testator of the 14 annas share which she would have at once inherited and to postpone her right to the 14 annas to the death of Amrit Bibi. This was an exclusion of the grand-daughter from a very considerable share of the property; and, therefore, the will in the present case must be deemed to be a will of the entire property to the exclusion of one of the heirs. Unless, therefore, Musammat Umme Habiba can be held to have assented to the will, it would not be valid even as regards one-third. It is said that the assent to the will was given on her behalf by her father Jawad Husain. In the first place, there is nothing to show that Jawad Husain ever assented to this will. It is true that as mukhtar of Amrit Bibi he got the will registered and subsequently proceedings were taken for obtaining probate of the will; but he does not seem to have acted in his capacity as guardian of the minors and in those proceedings to have given his assent to the will, either expressly or impliedly. Musammat Umme Habiba was herself a minor, about 10 or 12 years of age, at the time of the death of Abid Husain. She lived till she was about 22 years of age. But during this period she does not appear to have given her consent to the will, or to have in any other manner acquiesced in the will. There rs nothing to show that she had any knowledge of the will or that she had ever seen it or heard of its contents. Two witnesses were no doubt examined who stated that the lady had said that she had no objection to her grandfather's will. The lower court has disbelieved these witnesses and we are not in a position to say that the conclusion of the court below in that respect was erroneous. We think it very unlikely that Umme Mabiba stated in the presence of these witnesses that she had no objection to the will and that she assented to it.
12. The appeal filed on behalf of the defendants Nos. 2, 3 and 4, namely, appeal No. 178 of 1921, also fails.
13. The result is that we dismiss both the appeals and the cross objections with costs.