AIR 1947 BOMBAY 122

Bombay High Court

Hon'ble Judge(s): Chagla , J

(A) Muslim Law , — Will - Construction - Will by Khoja - Courts must construe the will of a Khoja according to Hindu Law : 3 Bom LR 785 and 29 Bom 133, followed. Observations of Macleod, J. in AIR 1914 Bom 17 to the contrary, dissented from. (Para 8) (B) Shariat Act (6 of 1937) , S.2— Section applies to testamentary trusts and wakfs - Khoja creating trust or wakf by will - Validity of trust or wakf is determined by Mahomedan Law. Section 2, when it refers to trusts and wakfs not merely refers to trusts and wakfs inter vivos but also includes testamentary trusts and wakfs. Although a Khoja, who in the matter of succession is governed by Hindu law, can, after the passing of the Shariat Act, still will away the whole of his property, yet when it comes to the question of construction of his will to the extent he has created trusts or wakfs by his will, the validity of these trusts and wakfs must be determined by Mahomedan law and not by Hindu law.(Para 9) (C) Muslim Law , — Will - Contingent remainder - Mohamedan law cannot create contingent remainder even through medium of trust. A Muhamedan testator bequeathed certain property upon tru....