Haji Bibi Case Part 3
Whether it was fraudulent I proceed to discuss.
It is clear, I think, that on the death of Hassan Ali, somewhat of what Mr. Justice Batchelor in his Judgement on the Rule has called a "scramble" took place, and I find it proved that on that event his son Akbar Shah took possession of one bungalow at Bandra and a garden at Bund River, Poona, his other son Jungi Shah took possession of a bungalow at Mount Road, the Piroo Lane property and the property known as Hamamkhana at Babula Tank Road; Ali Shah took possession of (l) property situate at Bellasis Road used as a Commission stable; (2) property situate at Babula Tank Road opposite J.J. Hospital; (3) property situate at Bhendy Bazar; (4) one bungalow at Love Lane; (5) one bungalow at Love Lane; (6) one bungalow at Love Lane; (7) one property at Nesbit Lane; (8) one bungalow at Love Lane; (9) one bungalow at Bangalore; (l0) one house at Karachi; (ll) one bungalow at Connaught Road (Poona); (l2) one bungalow at Civil Lines (Poona); (l3) one bungalow at Lothian Road (Poona). These last l3 items are so stated in defendant 1's written statement and have been proved except as to l0, for it was a mistake to include the Karachi property, for one property there was purchased and built upon by Ali Shah and cost altogether about a lakh and another property at Karachi was bought by the present Aga Khan. In addition to the immovable property which Akbar Shah took possession as above, he also took possession of a large quantity of jewellery and cash, the property of his late father, and in this he was assisted by Haji Baig, who was the favourite wife of Hassan Ali and mother of Akbar Shah. Ali Shah was not at that time in Bombay. The respective immovable properties taken possession of by the three sons as aforesaid were kept by them and continued in their exclusive possession respectively. It has been clearly proved that Akbar shah after his father's death advanced very large sums of money on mortgages amounting to over a lakh of rupees - see Mr. Kola's evidence. It is also proved that he bought a large quantity of Government Paper - see Exhibits D.H. 304. It is also proved that he took possession of the Gold Racing Cups which his father's horses had won, and Coochick admitted that one certainly of those cups had come into his possession before he saw the point of the question which was being put to him in cross-examination. Akbar Shah can only have got these sums from what he appropriated of Hassan Ali's property. We have in evidence, Ex. D.H. 28, the will of Jungi Shah whereby inter alia he purports to dispose of the properties which he had appropriated under different names, viz., the Chawl near the Mogul Mosque in favour of Lady Hajia Bibi; as to the Hamam (bathroom) which is near the above-mentioned Mosque in favour of Lady Shahzadi Begum; as to the large bungalow which is situated on the Road to Hassanabad in favour of Zenalabadeen Shah and Shamsudin Shah and Shah Abbas.
The plaintiff by D.H. 11 swore that the properties at Piroo Lane, Mount Road, and Hamamkhana did not form part of Hassan Ali's estate at the time of his death, that the Mount Road properties were purchased by Jungi out of his own savings and income and that the Hamamkhana was built by him; but at page 52 of her evidence she says that as to the big bungalow at Mount Road she does not know whether her father was given it by Hassan Ali or whether her father bought it out of his own pocket money. She says:
"I say out of my common sense that my father bought it out of his own money; no one told me. In my affidavit I say nothing as to it being bought out of my father's property. Man is liable to err. Before today I have never suggested that this property was given to Jungi Shah by his father that I remember. I forgot about it. I made four affidavits on the Rule."
Now there is no doubt that Jungi Shah during Hassan Ali's life-time did manage his father's estate (see Bibi Saheb's evidence, page 106) and there is no doubt that this Mount Road property was in the name of Jungi Shah. But there is documentary evidence as to this property, for it was bought for Rs. 60,000 when Jungi Shah was 26 years of age - See D.H. 84, letter of 27th June l874, Dallas and Lynch to the Collector, and the conveyance H. 13 of 15th November 1874, which is the conveyance from Khatao Makanji to Jungi Shah who curiously enough is therein described and referred to as the son of the Aga Khan.
As to the Hamamkhana, Bibi Saheb at page 104 says:
"The Hamamkhana property was built before I was born. It has been there since I can remember. I have not seen it, only heard about it. I heard it was in the hands of my brother Jungi. I don't know anything more. In Hassan Ali's life it was in possession of Jungi. Jungi told me so - no on else. He casually said that it was his possession when he was talking to a servant. I don't know how long ago he said this. No one else was present. I don't know how Jungi got the Hamamkhana."
As I have pointed out the plaintiff in D.H. 11 swore that the Hamamkhana was built by Jungi. It appears that the Hamamkhana was built on the corner of the Khoja burial ground - see the plan D.H. 96. One thing is certainly plain from Shah Bibi's evidence and that is that she, in l907, thought that the big bungalow in Mount Road, the Piroo Lane and the Hamamkhana properties, belonged to Hassan Ali because she admits that her attorneys wrote that she had an interest in those properties (see Ex. D.H.45).
When that letter was written she thought the three properties belonged to Hassan Ali. Malek Taj in her evidence at page 250 says Jungi Shah had bought these three properties with his own money and that he was in possession of them since Hassan Ali's life. She admits that she has no claim to it but says that her children have, although she says that when D.H. 45 was written she intended to make a claim to these three properties for the sake of her children.
As regards the Piroo Lane property the plaintiff at page 56 says:
"The Piroo Lane property was acquired, since I remember it was in my father's possession. I don't recollect when it was acquired. I can't say my father bought it or it was given him by his father. I don't know it was bought at all events before l86l A.D. I can't say it is at corner of Parel Road and Jail Road. It is called Jail or Imambara Road."
Bibi Saheb says it was bought but she does not know when. She heard it said that it belonged to Jungi. She does not recollect who told her or who was present nor when she was told. She was told before the death of Jungi but she can't say how long before. She can't remember whether it was before or after Hassan Ali's death. She does not know to whom Piroo Lane property belonged. But the Plan D.H. 99 and the Draft Deed D.H. 100 describe the southern boundary of the propertyin that deed as bounded on the south by the property of Shah Hassan Ali Mohamed Hoosein alias Aga Khan, which shows that it was known as Aga Khan's property before the 30th of October l86l. That this deed was admissible for the purpose, is, I think, clear from Ningawa v. Bharmappa.1897 I.L.R. 23 Bom.63 From the Municipal Book, Exhibit D.H. 117, it appears that all the property about this Piroo Lane was in the name of Mohamed Shabudin Pilanker and in l88l, D.H. 114, the Piroo Lane stood in Aga Khan's name, and the Collector's books show that a small piece of it was never taken out of Pilankar's name.
In my opinion Mr. Inverarity was fully justified in saying that he has proved that these three properties belonged to Hassan Ali's estate and were properly taken into account at the time of the release.
The direct evidence as to the preparation and the execution of the release is to be found in the evidence of Shamsudin, of defendant 1 and of Mr. Kola. I refer to these gentlemen's evidence at length.
Shamsudin says that about the end of June l90l he thought to divide his father's property amongst his heirs. He went and saw the plaintiff about it and she asked him what he was going to give to Zenalabadeen's children. He told her that Zenalabadeen having predeceased their father his children were not entitled to anything by law. She asked for some provisions for them. He said he was willing to give them a share if she would be satisfied by taking the Piroo Lane property as her share and the various sums she had got from him (Shamsudin) through her husband Moochool after Jungi's death (see Ex. D.H. 140). Shamsudin was not to ask for any account of these monies and she was to get Piroo Lane property. She said she would agree if he first gave a share to Zenalabadeen's children. But he declined as he would be a loser if after that all the heirs including the plaintiff asked for their full share. He said if she executed a document in the form of a release to Jungi's estate he would give a share to Zenalabadeen's children in consideration of her getting Piroo Lane and having got other monies. She asked him to bring the sort of document he wanted her to execute and show it to her. Thereupon the letters D.H. 141, D.H. 142, and D.H. 144 passed between him and the attorneys Payne, Gilbert, Sayani and Moos. Immediately after getting D.H. 144 he went to the plaintiff on the same day with H.15 and D.H. 143. He found her at Malek Taj Begum's house.
Looking at the cross-examination of the plaintiff by the Advocate-General, pages 73 and 74, and comparing it with the evidence of Shamsudin, which I have just referred to, together with paras 12 and 13 of Shamsudin's affidavit, pages 154 and 155 of the printed Appeal Book, I am inclined to give greater credence to Shamsudin's story of this interview than to that given by the plaintiff and Coochick. An attempt was made to show that Shamsudin had tried to cheat the plaintiff by handing her Ex.H.15, the draft conveyance of the Piroo Lane property, with the power of attorney at the end of it, in the month of August 1901. According to the plaintiff and Coochick the latter ingeniously fixed the time as about that of the cricket matches. But I am satisfied that the interview in question between Shamsudin and the plaintiff took place in June 1901 and before Shamsudin had any idea that the Aga Khan would agree to give any property to Jungi's estate.
The letters D.H. 141, dated 30th June 1901, and D.H. 142, dated 2nd July 1901, were written by Payne & Co., to Shamsudin. Then there is a draft conveyance of the Piroo Lane property (D.H. 143): then there is D.H. 144 which shows that the draft conveyance was sent to Shamsudin by attorneys on 23rd July 1901. He got it on 24th July 1901 at Poona and went at once to see the plaintiff more than a week before the Aga Khan was spoken to. At that time it seems to me it had not occurred to Shamsudin to get anything out of defendant 1.
I think there is no doubt that the plaintiff was anxious to get something for the children of Zenalabadeen. By the letter of 30th June 1901 to his attorneys Shamsudin asked for a release to be drawn in favour of the plaintiff and to convey the Piroo Lane property to her. That strongly supports Shamsudin's evidence that he told the plaintiff she should take the Piroo Lane property if she wished to give a share to Zenalabadeen's children. I now refer to Shamsudin's interview with defendant 1 at the end of July. (His Lordship after reading the evidence at pages 112-116 continued).
Defendant 1 says that about the end of July 1901 when he was at his house near Poona, Shamsudin came there and said inter alia that he wanted to distribute his father's properties amongst his father's heirs, of whom the Aga Khan's wife happened to be one; that Shamsudin gave him some idea of the value of his father's property and said that his idea was to give the plaintiff the house in Piroo Lane and to defendant 1's wife the Hamamkhana, specially as those two ladies were enjoying at that time the rents of those two properties. Then Shamsudin suggested that defendant 1 should give up for Jungi's estate the property at Mazagaon which was occupied by Jungi's family. Defendant 1 was somewhat surprised at this and asked why should he. Whereupon Shamsudin said that after Hassan Ali's death, Ali Shah and Akbar Shah had appropriated more than Jungi had. Defendant 1 told Shamsudin that he knew perfectly well that eight years before to the knowledge of Jungi and Akbar and everybody all the portions of Aga Khan's property appropriated by Ali Shah in Bombay had been transferred to defendant 1's name and that any claim that Jungi might have had was long barred, and that even supposing the amounts which the defendant 1 had paid to Jungi out of favour and bounty were taken into consideration Jungi had long ago been repaid by Ali Shah and defendant 1. To this Shamsudin, he says, replied that he appealed to his good nature affection and suggested that the three houses at Mazagaon and a sum in cash, which was not then named, should be given to Jungi's estate. Defendant 1 then goes on to say how he consulted his attorney Sayani, after which he told Shamsudin he would not discuss the matter until he was properly constituted administrator of Jungi's estate. After letters of administration were applied for and granted to Shamsudin (H.2 and 3) he came to see defendant 1 again in Bombay about four weeks after the first interview. The estate manager was consulted as to the value of the property appropriated by Ali Shah alone, and he said about eight lakhs of rupees. Shamsudin said that the value of the property his father had appropriated was Rs. 90,000, and he made up the share of Jungi's estate upto 2.1/4 lakhs. It was then arranged that the three houses occupied by Jungi's family and a sum of Rs. 40,000 should be given by the Aga Khan to Jungi's estate and such a release should be passed as Sayani should prepare and he left the preparation of the release entirely to the Advocate-General and his attorney Sayani. He goes on to say that the reason why the Mount Road property and the Hamamkhana were not mentioned in the Schedule to the release was that Sayani said that the Mount Road property happened to stand in Jungi's name and it might legally affect the title if it were included: and as to the Hamamkhana it happened to be built on the Khoja burial ground and as it was actually in the possession of defendant 1's wife, Sayani said it should be omitted. The release was drafted and settled by the Advocate-General and Shamsudin had his own attorney Kola. At the execution defendant 1 paid Shamsudin a cheque of Rs. 40,000 in the presence of Kola and Sayani, which has been debited to his account, and defendant 1 estimates the value of the property conveyed to Shamsudin by the release at a lakh of rupees. The properties were transferred from his name to the name of Shamsudin in the Municipal books, and Shamsudin has paid the rates and taxes since the release.
But the evidence does not depend on these two witnesses alone, for Mr. Kola, an attorney of this Court, who acted as Shamsudin's attorney with reference to the release, has given evidence before me, and the way in which Mr. Kola did give his evidence impressed me most favourably, and I do not hesitate to say that I believe every word that he said. He says that in September 1901 Shamsudin brought to him a draft release of which D.H. 145 is his office copy, and said that Sayani had advised him to come to him and that Shamsudin was in a great hurry. Mr. Kola wrote his first letter on 10th September 1901, the 2nd letter in H.1, to which he got a reply the same day, the 3rd letter in H.1, appointing the time for a meeting on that day at Sayani's office. Before going there, he describes how he went through the draft release with Shamsudin, and as to the various recitals in the release his evidence entirely corroborates the case of defendant 1. He then goes on to describe the alterations in H.6, the draft copy and what was done with regard to them; and he says that Sayani told him that the conveyance of Mount Road property had already been taken in Jungi's name and as the legal estate was already in Jungi it would be improper to take a conveyance of it from the Aga Khan. As to the Hamamkhana, he understood Sayani to urge an objection on religious ground - as it was a religious property he did not think it desirable to insert it. And he describes how the Advocate-General inserted certain words (see D.H. 165) to which he was compelled to assent. After he saw Sayani, he saw Shamsudin the next day, the 11th September, and told him what had taken place between him and Sayani. He said that this time the arrangement that had been come to on the facts given to him was highly beneficial to Jungi's estate. The impression Shamsudin gave him was that he was acting in the interest of the estate as he was very anxious to carry out the arrangement as soon as possible. He then goes on to say how he saw the release executed and a cheque for Rs. 40,000 handed by defendant 1 to Shamsudin. Nothing occurred to lead him to believe the release was a sham document not to be acted on. He goes on to say that the only thing that struck him was the hurry on the part of Shamsudin. But in cross-examination he says after the reason Shamsudin gave him, it did not strike him as extraordinary, the reason for the hurry being, as appears in the correspondence, Shamsudin was desirous to leave Bombay. Mr. Kola gives another reason for the hurry, and that was that the arrangement was so beneficial that no time should be left for the Aga Khan to change his mind, for he understood Shamsudin to say that the Aga Khan might change his mind at any time, for what was being given was a matter of favour. Even if a gift, the Aga Khan might go back on it.
On the 11th September 1901 the release was executed. That document recites (1) the death of Hassan Ali in 1881 leaving three widows, three sons and three daughters and properties in Bombay, Poona, Bangalore, and Karachi; (2) that Ali Shah entered into possession of the properties described in Schedule A thereto all except the property in B thereto that is the Piroo Lane which Jungi Shah entered into possession of; (3) the death of Ali Shah on the 17th of August 1885; (4) the management of defendant 1's mother of the properties in A (by an evident error the property in B is not excluded here); (5) entry into possession by defendant 1 of the said properties; (6) the transfer into defendant 1's name of all the properties in A; (7) sole possession by defendant 1 of the said properties; (8) the death of Bibi Tajmah, Jungi's sister, and his mother, leaving Jungi as one of their heirs; (9) exclusive possession by Jungi of the property in B since the death of Hassan Ali; (10) entry into possession by Shamsudin of the property in B; (11) application by Shamsudin for Letters of administration to Jungi's estate on the 28th August 1901; (12) contention by defendant 1 that neither Jungi nor his estate has any claims on the properties described in Schedule A, or against the estate of Hassan Ali because it was barred; (13) acknowledgement thereof by Shamsudin; (14) acknowledgement by Shamsudin that all payments, allowances, food and residence allowed to the different members of the family of Hassan Ali, including Jungi Shah, were a matter of grace and favour and not as a matter of right, by reason of any custom or usage; (15) agreement by defendant 1 to convey to Shamsudin as such administrator the property described in Schedule C being part of the property thirdly described in Schedule A and to pay to him the sum of Rs. 40,000. For the purposes of stamp duty the property in C was taken at rupees one lakh. The conveyance witnesses that defendant 1 grants to Shamsudin the property in C being part of the property thirdly described in A, that for that consideration and the sum of Rs. 40,000 Shamsudin as such administrator and also in his own right as one of the heirs of Jungi Shah releases and discharges defendant 1 and his estate, etc., and the estate and effects of the said Ali Shah and Hassan Ali including the properties described in Schedule A, save that portion of the property described in A as is conveyed to Shamsudin from all claims and demands of the estate of Jungi either as one of the heirs of Hassan Ali or as derivatively interested in such estate through his said sister or mother. This release to operate as a full and complete discharge in respect of any and every possible right, claim or demand of the estate of Jungi Shah deceased whether past, present, derivative or contingent to, upon, and against the estate of the said Hassan Ali deceased and the said Ali shah deceased and the Aga Khan and his estates and effects, and lastly the Aga Khan releases, conveys and assures unto Shamsudin all the right, title and interest of the Aga Khan in and to all the lands, etc, in Schedule B. As to the recitals, I think it material to observe that they were put in by Mr. Sayani, who knew all about the matter, and defendant 1 had really nothing to do with their insertion.
To my mind, looking at the evidence before me, it is impossible to say that this release was a sham, was fraudulently concocted between defendant 1 and Shamsudin. There was certainly no concealment about it. It was settled by the Advocate-General and I have been wholly at a loss to discover the grounds upon which it is sought to impugned. It was acquiesced in by the plaintiff down to the time when she filed her plaint herein. She admits she knew of it in January 1902, see her attorney's letter of 25th 1902 in H.7. Her plaint was declared on 20th September 1905. She knew that if Framji's diary was received in evidence it must put her out of Court on this point of limitation.
Her claim against Shamsudin to set aside the release is clearly barred. Owing to the defendant 1's absence from Bombay, which must be excluded from the period of limitation, I do not think I could hold it barred as against him. No authority has been cited upon this novel point, namely, where two persons are charged with fraud and the suit is barred against one of them, whether it will lie against the other whose absence from Bombay takes him out of the Statute. It is not necessary, however, for me to decide this novel point because I am of opinion that upon the merits the plaintiff has got no claim against either defendant 1 or Shamsudin.
Para 15 of the plaint expressly says inter alia that allowances were given to and received by the said several members of the family as a portion or on account of what they have been, are, or would be, entitled to receive as heirs.
The following statement shows the amount of allowances received by Jungi Shah and his estate:-
Amount received by Jungi Shah as allowance from 1881 (May) up to 1894 (May) at the rate Rs. 677 a month (13 years) up to the time of the death of his mother Mariam Khanum Rs.105.612
Amount received by Jungi as allowance from May 1894 up to his death in May 1896 (2 years) at the rate of Rs.777
per month Rs. 18,548
Equivalent in value of food and requisites to Jungi Shah
for 15 years as admitted by Haji Bibi in answer to
interrogatory No.24 at Rs. 2,000 Rs.360,000
Amount received by Shamsudin as allowance from January
1896 to June 1896 at the rate of Rs. 200 a month Rs. 1,200
Amounts received by Shamsudin as allowance from July 1896
to March 1897 at the rate of Rs. 300 a month Rs. 2,700
Amount received by Shamsudin as allowance from April 1897
up to August 1901 at the rate of Rs. 777 a month Rs. 41,181
Amount received by the widow of Jungi Shah as allowance
from 1896 up to 1901 Rs. 4,800
Equivalent in money value of food and other requisites
supplied to Shamsudin from 1896 up to 1901 at the rate
of Rs. 1,500 a month Rs. 90,000
Equivalent in value of food and other requisites supplied
to Haji Bibi at the rate of Rs. 1,200 a month from 1896
up to 1901 as admitted by her in answer to interrogatory
No. 27 Rs. 72,000
N.B. This does not take into account what had been received by
Zenalabadeen as allowance and food and other requisites.
Nor does it take into account the rates and taxes which were paid by the Aga Khan. Nor the large sums spent on the repairs and new buildings on the properties left by Hassan Ali which in the event of a partition would have to be taken into account. If on the other hand the payments were not payments on account then from 1881 when Hassan Ali died to 1901 the date of the release more than twenty years elapsed.
According to this it appears to me that Jungi Shah's estate has been largely over-paid. I cannot find evidence to justify me in holding that Hassan Ali's estate after deducting what was appropriated by Akbar Shah and Jungi Shah amounted to more than eight lakhs of rupees at the outset. It is a most remarkable fact that the plaintiff gave absolutely no evidence on this point although in the plaint she says that his property was worth two crores. I see no reason to disbelieve the evidence of Mr. Merwanji upon the value of the immoveable properties in 1901.
The reason for not including the Mount Road and the Hamamkhana property in the release is clearly stated in the evidence of Mr. Kola and Shamsudin viz., that the Mount Road property already stood in the name of Jungi Shah. The Hamamkhana property had for a long time been in the possession of defendant 1's wife, one of the daughters of Jungi, and it was deemed undesirable to cloud the title as to those two properties by mentioning them in the release.
The portions of Mr. Framji's bill of costs, which, in my opinion, were admissible, show that the plaintiff was fully acquainted with what was being done with regard to the release. That she knew that the entries in the bill of costs must prejudice her is apparent from para 6 of D.H. 2, the plaintiff's affidavit, which she made on the application to prevent Framji and Dinshaw acting as defendant 1's attorneys in partnership with Payne & Co. The entries of the 12th and 14th March 1902 D.H. 25, pages 21 and 22, show that Coochick was well aware of all that was being done. Plaintiff's husband did not die till April 1903 and he assisted her throughout. As to the bill of costs, it is to be observed that at page 73 the plaintiff denies every material statement therein; but in her re-examination, pages 79 and 80, she admits that the entries are true and said that she was confused before lunch. And also in re-examination, letter H. 17 of the 14th August 1902 is put in, where the plaintiff says inter alia: "I do not ask for my share in my grandfather's property at present." See also her attorney's letter of 9th September 1901, the last letter in Exhibit H.7.
Defendant 1's account of what happened after the release had been executed is as follows:- Six months after the release was executed Shamsudin came to him in Bombay again and asked him to give to Jungi's estate a portion of his estate at Poona, namely, that portion which Jungi's family usually occupied. Defendant 1 at first demurred but on his persisting he at last said without admitting any right he would hand over to Jungi's estate a portion of the Poona estate. After that the plaintiff came to see him some days after in Bombay. She first thanked him for making over the Poona properties to Jungi's family and then made a further suggestions, namely, that he should buy from Jungi's estate two of the houses at Mazagaon which he had made over in the release and then make a present of one of those houses to Moochool and the other to Coochick to which defendant 1 said, this was a most extraordinary suggestion, that Moochool and Coochick were neither the heirs of Jungi nor of Hassan Ali, and he saw no reason why he should make such a present. He told her that he could not consider such a suggestion and she left; D.H. 25, the entry in the Bill of costs dated the 9th April 1902, shows that Mr. Moos had an interview with Framji on this matter which Mr. Moos told defendant 1 of; defendant 1 declined to give Poona property or anything more and told Mr. Moos and Shamsudin so. Defendant 1 goes on to say that plaintiff never suggested at her interview that the release was a sham and a fraud, or that it was a matter of right and that she was entitled to it. Till she filed this suit she never suggested that the release was a fraud.
The conclusion that I have come to is that defendant 1 treated the family of Jungi Shah in a generous and liberal spirit, that they got considerably more from him than he could have been held bound to transfer to them, and that had it not been for the attempt made to get something further out of him for the benefit of Coochick and Moochool, no attempt would have been made to set the release aside; and it is specially to be remembered that all the other heirs of Jungi Shah, who represent 25/32nd of his estate support the release.
I must now shortly deal with the other charges of fraud which the plaintiff has made against defendant 1.
With reference to para 56 of the plaint at page 38 she says she charges defendant 1 with having put moveable property in the names of strangers in Europe.
"I mean shares. I don't know their names - many persons can't give names." I don't know that any share bought by him in Europe is registered in his own name."
She cannot mention the other properties of great value therein referred to.
When cross-examined as to para 4 of the plaint where it is said, "Defendant has sold many properties," etc., she says, page 38:
I heard he sold a property of the first Aga Khan's estate to HajiMohamed Cassum. I don't know where the property is situate. In the course of conversation with some acquaintances I heard about this. I was told this 6 to 24 months ago, since I filed my plaint. I can't remember now any other property. I have got no copy of the conveyance from the Registrar's Office yet."
Again as to para 56 of the plaint she says (His Lordship read from page 37, line 9, down to page 38, line 10, of the printed book of evidence and continued.)
Then as regards the Jamatkhanas, no doubt Hassan Ali in his answer in the Equity suit claimed considerable powers of management over them but he certainly did not claim them as his private property, see para 1 of his answer therein. And neither Ali Shah nor defendant 1 has ever claimed the Jamatkhanas as their private property. In H 21 defendant 1 clearly sets out his position as to the Jamatkhana.
Again as regards the Khoja burial ground, that has never been claimed by any Aga Khan as his private property although no doubt they have claimed to exercise a veto as to who should be buried there.
Bibi Saheb claims no share in the Jamatkhanas or the burial ground and to my mind it is obvious that they could not be taken into account as is sought to be done by the plaintiff.
Again as regards the Pallonji's Hotel, that was settled as wakf on 12th January 1857, see H. 29, long before the plaintiff was born; Bibi Saheb expressly disclaims any share in this property which was settled as wakf - see page 110, line 21. It was alleged that the Aga Khan had applied the rents of this property to the benefits of the family. No evidence whatever was given in support of it and defendant 1 swore that he spent more on this wakf property than the rents of it amounted to, and it is to be noticed that at page 54 of her evidence the plaintiff admits that she did not mention the Pallonji's Hotel in her affidavit as having been kept out of the release nor the Jamatkhana nor the burial ground.
Again the plaintiff at page 54 charges defendant 1 with fraud in not including Payne & Co.'s office building in the property of Hassan Ali. She goes on to say: "I don't know who told me but I heard so. It was bought. I don't know when, I have not enquired." D.H. 102 of 11th December 1882 is the conveyance to Ali Shah after the death of Hassan Ali, which shows that this is indeed a reckless charge of fraud.
As to the property at Kerbella, Kazmin and Samera with regard to which she charges defendant 1 with fraud, His Lordship read her evidence from page 54, lines 23 down to page 56, line 20.
Jaffer Cassum gives the details as to the other properties viz: - that the Ahmedabad properties were bought after Hassan Ali's death by Ali Shah in 1882 and 1884, that the Rajkote property was bought in Hassan Ali's lifetime by Ali Shah in 1866 for Rs. 2,150. He also produced the conveyance of the Karachi property which was Ali Shah's, dated 30th June 1880.
It must be borne in mind that the plaintiff's witnesses were all agreed that provided that the members of the family were duly and properly provided for, all the properties bought by Khalillulla, Hassan Ali, Ali Shah or defendant 1, out of the balance of the offerings were their own properties, and they claimed no share in them - see page 54, line 2, the plaintiff, pages 67 and 69 page 122 line 20, Bibi Saheb; page 202 the bottom, and page 203 Coochick. No attempt has been made to reconcile their admissions with the plaintiff's present claim to her share in Hassan Ali's estate. For at all events during the life time of Hassan Ali and Ali Shah there was no reason to complain that the members of the family were not duly provided for in all respects. I would add here that no attempt whatever has been made to get over the difficulty in plaintiff's way viz, that as long as the Letters of Administration in favour of Shamsudin stand unrevoked she is not entitled to sue and it certainly is a strange thing if her case be true that when defendant 1 had all the immoveable properties transferred into his name, see D.H. 212, application for transfer 24th January 1893, when the usual Battaki was beaten, no remonstrance or objection was lodged by any members of the family to this being done.
The next question that I have to consider arises on paras 13 and 14 of the plaint, issues 26, 27, 28, 29, 30, 31, 32 and 33, and in para 3 of Coochick's written statement the custom is relied upon which is there set out.
And here I may at once say that I find none of the requisites which are necessary to establish a valid custom, according to her, have been established. I find it neither ancient nor continued nor uniform nor reasonable nor certain and definite nor compulsory and not optional to be followed or not. And see Sir Braja Kishore Deva Garu v. Kundana Devi (1) where it is said "how can there be a custom to do that which the general law permits any one to do or abstains from at his own will?"
A very large quality of evidence has been given on the questions of residence and the allowances, food, horses and carriages, and wedding and funeral expenses.
In the first place, as regards residence, in my opinion, the evidence given by Lady Ali Shah, who displayed an extraordinary memory when giving her evidence, outweighs that given on behalf of the plaintiff. At the commencement of her evidence she describes in which portions of the property various members of the family were living. She also describes how other persons who were not relations of Hassan Ali lived in the various blocks. It is of course not necessary to follow in detail the various changes that were made with regard to these various blocks in the way of residence. She goes on to show what the system adopted was with regard to Hassan Ali's property at Poona. Looking at the evidenced on both sides as to the residence in the Poona property, I find that the bungalows there in Hassan Ali's time were in the charge of Hassan Ali's Karbhari and the keys of them when unoccupied were kept by him, that in Ali Shah's time he settled who should occupy the various portions of the Poona houses, and that his Karbhari was in charge of the bungalows and kept the keys when they were empty. His name was Mulla Sana, that both Ali Shah and Hassan Ali paid the taxes and repaired all the bungalows in Poona and Bombay; that on the death of Ali Shah the same Karbhari Mulla Sana, during her management, looked after the bungalows in the same way, and that she managed the Bombay properties in the same way as Ali Shah had done.
Defendant 1 speaks to the same arrangement after he entered into possession of the estate.
If, therefore, the bungalows in Bombay and Poona were the property of the successive Aga Khans, I see no reason to disbelieve that their permission would be asked by the various members of the family as to what portions of those bungalows they should occupy, and I see no reason whatever to suppose that at any time any member of the family claimed this right of residence adversely to any of the Aga Khans, and it is to be noted that the plaintiff and her witnesses do not claim any right in the properties or any portions thereof themselves, but a right of residence, as it were a floating right of residence over the whole of them. I find that it is not proved that every male member of the family on attaining majority and every female member thereof on attaining majority or on marriage has resided rent free in some house or houses appertaining to the said family estate as in para 13 of the plaint set forth. On the contrary there are numbers of the members of the family who have not had residence on the property at all. The plaintiff herself never had any residence, but only through her husband Moochool Shah. It is not necessary to set out the specific instances of those members who have never resided on the property nor the specific instances which show that members of the family did not get the right of residence on attaining majority and female members on attaining majority or marrying, because to my mind nothing approaching a regular practice or custom such as is alleged in the plaint or Coochick's written statement has been proved. Ex. D.H. 249 is the list of persons not getting allowances though entitled to them. Ex. D.H. 250 is the list of the persons getting allowances. In the same way with regard to the monthly allowances. There can be no doubt in my opinion, looking at the evidence with regard to Nasser Shah, that in his case he was deprived of his allowance in consequence of his own behaviour. It is not suggested that he took any steps to enforce his right to it. Here again Lady Ali Shah's evidence, pages 21 to 26, gives in great detail the actual cash allowances that were given, and inter alia she denies that there was a fixed scale by which Hassan Ali's sons and daughters got allowances. She denies that his sons got a fixed allowance of Rs. l,000 a month, each of his wives Rs. 300, and his daughters Rs. 200 a month.
Then as regards food: there is no doubt that both in Poona and Bombay the members of the family staying in these respective places were provided with food from the common kitchen, but this practice does not seem to have been confined to the members of the family alone but to such retainers or servants as the Aga Khans might wish should have the benefit of it.
As regards carriages and horses, the claim put forth on the part of the plaintiff certainly seems an extraordinary one, for we are told that a member of the family would be entitled, as far as I can make out, to as many horses and carriages as he or she chose. Then we were also told that if any one of them demanded a motor car it ought to be supplied to him.
As regards wedding expenses in which case again the plaintiff claimed on behalf of the members of the family that they should be entitled to as much money as they wanted for their marriages. She says, page 45, that when she married five marriages took place and the expenditure was two lakhs of rupees from what she heard. In re-examination she gave the names of other persons then married. But Lady Ali Shah says the outside sum spent on the five marriages was about a lakh or less, and she denies that the plaintiff could have demanded two or three lakhs as presents and her sisters the same each, and that each of Akbarshah's sons could have demanded 6 to 8 lakhs of presents, and that a grandson of an Aga Khan, whose father was dead, was entitled to Rs. 20,000 to Rs. 50,000 as of right as a wedding present. She also denies Coochick's statement that Rs. 40,000 could be demanded as of right. (See Coochick, page l78).
On this point it appears to me that the plaintiff and those who support her have formed enormously exaggerated opinions of the wealth of the Aga Khans as they did in estimating their properties at two crores of rupees.
The conclusion, then, that I have come to on this part of the case is that all the Aga Khans had been men of exceptionally generous disposition. They have maintained large numbers of the members of their family in a lavish manner as also numbers of their retainers and servants, and in my opinion they have done this as a matter of grace and favour. No claim whatever was put forward to any such right prior to the disputes in this case. No mention of such a claim is made in the will of Jungi Shah or in any other document.
On the questions raised by the issues I have above referred to, therefore, in my opinion defendant 1 is entitled to succeed. It is I think desirable that I should make some observations on the demeanour of the principal witnesses.
The plaintiff, Coochick and Malek Taj Begum, struck me as false witnesses in anything they said. Of course as regards the ladies I could not see their faces as they were covered from head to foot in black dominoes with white pieces of muslin let in across the face. But one has only to read the evidence of plaintiff and Malek Taj Begum to see how full of inconsistencies and untruths it is. I had several times to warn Malek Taj Begum. As for Coochick he was in every way an unsatisfactory witness. He gave his evidence partly in an impudent way, partly in a hesitating way and seemed to me a wholly false witness. His evidence as to the Mehmani at Sialkote has been absolutely discredited to my mind; his own admissions, as to this incident in cross-examination threw the greatest possible suspicion on his statements. But he is wholly disapproved by the evidence of Mukhi Amirchand and the account book, Ex. D.H. 205, in which any Mehmani of Rs. 500 had been given, it must have appeared. Similarly his evidence as to the Mehmani at Disbad has been wholly discredited by the other witnesses who spoke to it. I consider Coochick a false witness in every material statement that he has sworn to.
It is necessary for me to explain the circumstances under which the counsel for plaintiff and those defendants who supported her retired from the case. At the beginning of the case to my astonishment it was suggested by plaintiff's counsel that I should not try the case as I was what he termed a friend of Aga Khan's. Mr. Inverarity replied that in that respect I was in no different position probably than all the other Judges in Bombay. I said I had exchanged calls with the Aga Khan and had dined twice with him and had asked him to dinner and he had not been able to come. This incident determined me to allow all the possible latitude I could to the plaintiff and the defendants who supported her in putting their case before me for it occurred to me as not unlikely that her counsel might retire from the case and insinuations might and would be made against me during its course. This conjecture of mine was confirmed as the case proceeded. During the examination of the witness on the Commission questions were constantly put to them against which they protested on the ground that their religious feelings were being offended. During the progress of the trial it was notified to me that if similar questions were put to the witnesses in this Court and then with the answers to them published in the newspapers there would probably be an outburst of hostility between the Mahomedan communities in Bombay. When the defendant 1 was being cross-examined a question was put to him which was couched in - to my mind - terms calculated to cause excitement and animosity. There was really no need to put the question to defendant 1 in any such terms, as he had already answered it in the answer to the interrogatories. There was absolutely no need to put it in the terms in which it was put. I pointed this out to the counsel who was cross-examining defendant 1, but he insisted on putting the question as at first. And defendant 1 answered it. I then intimated that if similar questions were to be put, I should clear the Court. The next question was on the same point and I at once ordered the Court to be cleared. The Court was then crowded with Mahomedans - in fact more crowded than I had ever seen it in any case - was cleared. While the Court being cleared, I asked counsel for defendant 1 and plaintiff to come up to me and explained to them my reasons for ordering the Court to be cleared. They returned to their seats and after the Court had been cleared, plaintiff's counsel said that under the circumstances he had instructions not to proceed with the case. His instructions were not to proceed with the case if it was not fully reported, as the plaintiff's case was, and that his client fully realised the importance of this step. Thereupon he and the counsel for the defendants who supported plaintiff's case withdrew. This action on their part confirmed me in the opinion I had formed many days before they retired, viz., that they were "riding for a fall." In my opinion just as when every case in which unpleasant details are likely to be disclosed (e.g. criminal or divorce cases), the Judge is entitled to order the Court to be cleared, so in India when the evidence in any case if published in the daily papers is likely to arouse religious or political disquietude, the Judge is entitled, if not bound, to exclude the general body of the public and decline to let the evidence be published.