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Colonial Cases

Banoo v. Bindemeem, 1906


Shahar Banoo v. Aga Mahomed Jaffer Bindemeem

Judicial Committee of the Privy Council
Source: The Times, 17 December 1906



This was an appeal from a decree of the Chief Court of Appeal of Lower Burma of February 22, 1904, reversing a decision of the same tribunal in its original civil jurisdiction.

Mr. Roskill, K.C., and Mr. J. W. McCarthy appeared for the appellant; Mr. Upjohn, K.C., and Mr. Herbert Cowell for the respondents.

The arguments were recently addressed to a Board composed of Lord Davey, Lord Robertson, Sir Andrew Scoble, and Sir Arthur Wilson, when judgment was reserved.

SIR ARTHUR WILSON, in delivering their Lordships' judgment, said Hajee Ahmed Bindemeem, a Shiah Mahomedan, died in 1882, leaving a will by which he devoted one-third of his estate to religious and charitable purposes.  He left six sons and one daughter, of whom the eldest was a son, Mahomed Jaffer, the first respondent, and the second a daughter, Shahar Banoo, the appellant.

In his will he said: - "I appoint my obedient son, Aga Mahomed Jaffer Bindameem, my legal executor.  And the superintendence of all the affairs relating to the heritage and the sools is entrusted to Aga Ahmed Isphahani."

He further said: - "5. The furniture, such as lamps, utensils for cooking, carpets, silver alams, silver sarposh, and all the articles belonging to the Emambara shall not be the subject of inheritance, and shall be used by the executor in performance of tziadari rites. .  .  .  6. The executor shall, after taking possession, with the information of the Nazir of the sools, purchase therewith in the share market any good property of Government paper, and shall out of the income thereof spend Rs. 1,000 during the first ten days of Mohurrum every year, in accordance with the custom in vogue, in performance of the tziadari and distribution of food in connexion with the Emambara.  The expenses that are to be preferred to all the expenses to me met our of the income of the said property are those of sending money to Kerbela of Holy Najaf and engaging naib (proxy) on remuneration for the performance of prayer and fasting in my stead for the omissions during 60 years of my age; provided these be done through any mujahid.  And next to these are the expenses of engaging naib for visiting Khama-e-Khoa (House of God), the holy shrine of the Prophet and those of Imams (who guided people in the right path), and for visiting the shrine of Raza (on whom may God send his thousand blessings). Next to these are the expenses of heirs and nearest relatives, if they stand in need, or the expenses of repairing mosques or performance of tziadari on the nights preceding Friday, and distributing food, and feeding travellers, to the possible extent."

Mahomed Jaffer obtained probate of the will, and carried on the administration of the estate until 1897.  In that year the present appellant and other members of the family, who are or were parties to the present appeal, brought a suit in the Court of the Recorder of Rangoon against Mahomed Jaffer, in which they charged him with certain breaches of trust.  They asked that the trustee should be removed from his office, and that a Nazir should be appointed.  In 1898 the Recorder of Rangoon made his decree, by which he refused to remove the trustee from his office, but directed him to keep proper trust accounts for the future. Against the decree an appeal was brought to the High Court at Calcutta.

While the case was before that Court a compromise was arrived at, in accordance with which a decree was passed on May 13, 1902, by which it was ordained that Mahomed Jaffer should retire from the trusteeship "and that a new trustee be appointed in his place by the Chief Court of Lower Burma, preference in such appointment being given to the lineal descendants of the settlor."Upon that the case went back to the Chief Court.

Several different members of the family claimed to ne entitled to the trusteeship, among them the appellant, whose case was that, as the next in seniority after the retiring trustee, of the testator's children she was entitled to be appointed to control the endowment.  Two specific objections to her appointment were raised:-

1. That, as a woman, she was disqualified from carrying out the trusts; and

2.That, being a member of the Babee sect, she was excluded for the trusteeship of an orthodox Shiah endowment.

Mr. Justice Chitty overruled those objections and appointed the lady.  On appeal, the chief Justice and Mr. Justice Bigger agreed with Mr. Justice Chitty in thinking that there was no legal prohibition against a woman holding a Mutawallaship when the trust - by its nature - involved no spiritual duties such as a woman could not properly discharge in person or by proxy.  And it appeared to their Lordships that there was ample authority for that proposition.  The Court of Appeal also agreed with the first Court in holding that one who was not a Mahomedan, and a fortiori one who was so but who followed a sect not orthodox according to the standard of the settlor, was not disqualified by law for the post of Mutawalla.  The authority for that view was somewhat scanty, but for the purposes of the present judgment their Lordships assumed it to be correct.

But having conceded these points in favour of the appellant, the Judges held that the Court had still a discretion to exercise in the selection of a trustee.  In exercising that discretion they took into account the nature of the duties imposed upon the trustee, the fact that the appellant, by reason of her sex, could at best discharge many of her duties only by deputy. And the circumstance that the appellant was a Babee, and as such might take a less zealous interest in carrying on the religious observances of the Shiah school. And in the result they set aside the order which nominated the appellant, and appointed as trustee one Aga Mahomed Sherazee, a Shiah resident in Rangoon, not apparently a lineal descendant of the testator.  Against that order the appeal had been brought.

On the argument of the appeal it was not disputed that the rights of the parties, as between themselves, were governed by the consent decree of May 13, 1902, which directed merely that a new trustee should be appointed by the Chief Court, "preference in such appointment being given to the lineal descendants odf the settlor." But it was said (and n\o doubt rightly) that, in constructing that decree, account should be taken of what the previously existing rights of the parties under the Mahomedan law were.  And it was contended that under that law, and therefore (it was  said) under the consent decree, the appellant as the senior in order of the children of the testator, not being subject to any legal disqualification, had an absolute right to the trusteeship, and that the Court possessed no such discretion as it claimed to exercise.

Their Lordships' attention was called to the earlier texts bearing upon the matter, which were few in number, and to the interpretation placed upon them by modern writers.  The authorities seemed to their Lordships to fall vary short of establishing the absolute right of the lineal descendants of the founder of the endowment, in a case like the present, in which that founder had not prescribed any line of devolution.  Their Lordships were of opinion that the Court had a discretion to exercise in the selection of a trustee, and that the circumstances by which the learned Judges were guided in the exercise of that discretion were matters proper for their consideration.

Their Lordships saw no reason to dissent from the conclusion arrived at.  They would humbly advise his Majesty that the appeal should be dismissed.  The appellant would pay the costs.


Published by Centre for Comparative Law, History and Governance at Macquarie Law School