This is part 3 of a six-part series of posts that will examine Anglo-Muhammadan law in the courts of British India.
Case 2: Non-Application of Islamic Law through “Justice, Equity and Good Conscience:” Inheritance of Minors
Source: Indian Law Reports: Allahabad Series, Volume I
Case: Hasan Ali and another (Plaintiff) v. Mehdi Husain and others (Defendants), December 18, 1877
Classification: Muhammadan Law—Inheritance—Minor—Justice, Equity and Good Conscience—Act VI of 1871 (Bengal Civil Courts’ Act)
Summary: “Held, being in possession of a certain real property on her own account, and on account of her nephew and niece, minors, of whose persons and property she had assumed charge in the capacity as guardian, sold the property in good faith and for valuable consideration, in order to liquidate ancestral debts, and for other necessary purposes and wants of herself and the minors. Held that, under Muhammadan law and according to justice, equity and good conscience, the sales were binding on the minors.”[1]
Presiding: Justice Spankie and Justice Oldfield
Brief Summary of the Case: The plaintiffs in the case were the son and daughter of Najib Hussain who died in 1857. Given that the children were minors and the mother had passed earlier, guardianship over the two children was assumed by their paternal aunt Husaini Bibi. The father, along with his sister, Husaini Bibi, had in their possession a house they inherited from their father and shares of land in six villages. After the passing of the father, Husaini Bibi sold the house to her paternal uncle, and the land in the six villages to her cousins, all of whom are defendants in this suit. Husaini Bibi justified the sales in order to “liquidate ancestral debt and for the benefit of the plaintiff.” Once the minors came of age, they contested the selling of their inheritance and brought suit against their aunt. The court of first instance dismissed the case by “holding that under Muhammadan law and according to justice, equity and good conscience, the sales were binding on the plaintiffs.” The plaintiffs appealed to the lower appellate court and received the same ruling, and the case was forwarded to the High Court on special appeal.
In the High Court, the argument constructed by the plaintiffs was on the basis of guardianship. They argued that Husaini Bibi was not their legal guardian and therefore had no power to make contracts involving their property.
The Ruling: As for the argument that Husaini Bibi is not the legal guardian of the children, the High Court refused to accept this argument as it was not raised in the court of first instance or the lower appellate court. The High Court took issue with the fact that the plaintiffs were not concerned with paying their portion of the ancestral debt, nor did they claim responsibility for it. The judges noted that they were not entirely clear what the laws of Anglo-Muhammadan law are on this particular case, so the circumstances of the case must be further analyzed.
When looking at the case more closely, Justice Spankie noted that while questions of inheritance fall under the remit of Anglo-Muhammadan law, there are a series of other matters to consider in this case. First, Husaini Bibi was not merely acting as a guardian, but was also one of the heirs of her brother’s property. Second, her decision to satisfy her brother’s debtors was required by law. Third, she did not sell the property right away, but after five years when the debts could not be satisfied in another way. Fourth, she used the remaining money from the sales to raise and maintain the children. Fifth, all of her transactions were public. On this basis, the judge held “under these circumstances we agree with the lower appellate Court that the Muhammadan law and principles of equity and justice are binding on the plaintiffs, who have not in their petition of plaint assigned any reason or grounds for repudiating the act of Musammat Husaini.”[2] The High Court therefore upheld the opinion of the lower court, but from the decision it is not entirely clear what elements of Anglo-Muhammadan law they are considering.
Anglo-Muhammadan Law and Analysis: The laws of guardianship are addressed in the Hedaya and constitute Chapter Four of the book. In the Hedaya it states that there are three forms of guardianship: (1) Guardianship for contracting marriage; (2) Guardianship of minor persons for custody and education; and (3) Guardianship of the property of minors. This case deals with the third form of guardianship as at the time of the father’s death both plaintiffs were minors. Though on the surface it seems to be a simple case of Anglo-Muhammadan law, in the Hedaya it states that guardianship over the property of minors depends “partly on Muhammadan Law, and partly on the general law of India, as now embodied chiefly in the Guardians and Wards Act, 1890.”[3] This permits the judge a great deal of interpretational flexibility with regards to the legitimacy of the aunt’s guardianship and her role as executor. According to the Hedaya, “the guardians of a minor’s property are—(1) the father; (2) the person, if any, appointed by the father’s will, either specially as such, or generally as executor; (3) the executor of such executor, if any[4]; (4) the father’s father; (5) the executor of the last-named, if any;[5] and (6) his executor. Failing all of these, it is for the Court to appoint a guardian or guardians.”[6] In the case before the court, no mention of the aunt being an executor, either through direct will of the father, or command of the court, is indicated. This likely means that Husaini Bibi assumed the role of executor due to the absence of anyone else. The text then continues to state, “Where a person other than the Collector, or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without previous permission of the court, (a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward.”[7] The Hedaya then lists the various transactions that the guardian can undertake, qualifying this by noting that all transactions are bound by the approval of the court. The problem that arises in the case before the court is that Husaini Bibi was never appointed by the court as guardian, and therefore no legal basis is present in the Hedaya for her transactions. This is perhaps why the judge himself states that Muhammadan law is not satisfactory on this matter and turns to the notion of “justice, equity and good conscience.”
As noted in the previous blog post/case, the Bengal Civil Court’s Act of 1871 states that “justice, equity and good conscience” can be applied in cases wherein the law is unknown or unclear. This Act provided an opening for discretionary judgements on the basis of English law or identifiable interest of the litigants on the basis that Islamic law on the issue is unclear in the Anglo-Muhammadan legal texts. In the case of Husaini Bibi, according to the Hedaya, she as acted as a guardian without right and her instances of sale are thus invalid. However, when the judge examined the issue on the basis of justice, equity, and good conscience, the judge justified her actions as she did not seek the selling of the home or villages for her own personal benefit, but for debt relief and the maintenance of the orphan children. In this case, the judges invoked the same principle we saw in the previous blog post/case to actually ignore what is explicitly present in the translation of the Hedaya. It is these contrasting notions of “justice, equity and good conscience” that make the juxtaposition of these two cases particularly interesting, especially since the cases are adjudicated two years apart in the exact same court.
Remarking more broadly on these two cases and the application of Islamic law, we see that on a single court, in the span of just a few years, judges used a single legal principle to both ensure that Islamic law is applied, and to ensure that it is not applied. In both cases, judges relied to some extent on the Hedaya, one of the most important texts of Anglo-Muhammadan law, but their final judgement is never exclusively constructed on the basis of these translations. The role that judicial discretion and judicial knowledge of Islamic law plays in the application of Anglo-Muhammadan law has not been adequately appreciated in secondary scholarship. In the next blog posts, we will continue to complicate the uniform understanding of Anglo-Muhammadan law by analyzing two additional cases. These cases come from the same court, the High Court of Allahabad. In one, Islamic law is not even acknowledged, despite it being a clear matter of personal status law, and in the other, the judges go far beyond the translated texts of Anglo-Muhammadan law to try to understand the Islamic law of gifts.
Notes:
[1] The Indian Law Reports: Allahabad Series, Volume I (Superintendent Government Press), 533.
[2] Ibid., 535.
[3] Sir Roland Knyvet Wilson, A Digest of Anglo-Muhammadan Law, (London: W. Thacker & Co., 1895), 91.
[4] Intended here is the executor appointed in the father’s will mentioned in number two.
[5] Intended here is the executor of the father’s father, i.e the executor of the grandfather.
[6] Ibid., 111.
[7] Ibid., 116.