1-AZHAR GHOUSE v. MOHAMAD GHOUSE AND OTHERS

009-SLLR-SLLR-1986-V-1-AZHAR-GHOUSE-v.-MOHAMAD-GHOUSE-AND-OTHERS.pdf


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Sri Lanka Law Reports
(1986]
1 SriL. R.
AZHAR GHOUSE
v.MOHAMED GHOUSE AND OTHERS
COURT OF APPEAL. ,
SENEVIRATNE. J. (PRESIDENT. COURT OF APPEAL). SIVA SELLlAuJAMEEL. J• J' AND
C A. 621/75-D.C.MT. LAVINIA No. 26908T.
C.A.L.A. 85/80-D.C. NEGOMBO 138/T.
NOVEMBER 12. 13 14. 15. 18. 19 AND 20. 1985.
DECEMBER 10 AND 11. 1985.
Muslim Law-Intestate succession-Adoption under the Adoption ot ChildrenOrdinance No. 24 of 1941 -Section 6 (3)-Is adoption valid for purposes of succession
as an intestate heir? Section 2 of Muslim Intestate Succession Ordinance No. 10 of1931 -Generalia specia'ibus non derogant.
I
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Azhar Chouse v. Mohamed Chouse
49
Held-/Jameel. J. dissenting):
The Adoption of Children Ordinance has not excluded the Muslims from the provisionsof this Ordinance. Hence children adopted under this Ordinance are entitled to succeedto the intestate estate of their adopting Muslim parents. The maxim generaliaspecialibus non derogant has no application.
The entire body of Koranic law was not introduced into this country, e.g. wills andconditional gifts. So much only of the Muslim law as has been specifically recognized asbeing an inveterate custom of Sri Lanka Muslims obtain in Sri Lanka. The Koranicprinciple against adoption is not part of the law applicable to Muslims in this country.
Cases referred to:
Fathima Mirza v. M. H. M. Ansar (1971) 75 NLR 295, 299.
Noorul Muheetha v. Sittie Leyaudeen (1953) 54 NLR 270.
Ahamed v. Sariffa Umma (1931) 32 NLR 33.
Assanar v, Hamid (1948),50 NLR 109.
Korossa Rubber Company v. Silva (1917) 20 NLR 65.
Weerasekera v. Peiris (1932) 34 NLR 281.
Muhamad Abdul Khan v. Muhamed Ismail Khan-lndian Decisions (N. S.)Allahabad Vol. VI, 1888-1890 L.R. 10 & 12 Allahabad 216; (1888) I. L.R.Allahabad 10.
Seward v. VeraCruz (1884-1885) 10AC 59.
Cohen v. Minister for the Interior SALR 1942 TPO 151.
Shariffa Umma v. Rahameth Umma 14 NLR 464.
Ahmath v. Shariffa Umma 30 NLR 498.
Idroos Sathuk v. Sittie Leyaudeen (1950) 51 NLR 509.
(1,3) Mohideen v. Sulaiman 59 NLR 227.
Mutalibu v. Hameed 52 NLR 97.
Abdul Rahman v. .Ussran Umma 19 NLR 175.
A.G.v. Reid 67 NLR 25.
Pererav. Khan (1905) 2 Bat. Rep. 188. ■
Shariffa Umma v. Mohamed Lebbe 1 SCC 88.
Mohamed Umar Khan v. Mohammed Niyazudeen Khan (1911).
ILR 9 Cal.,419, 39 Ind. Ap. 19.
AyubShahv. Bablal 1958 Bombay 150.
H. W. Jayewardene, Q.C. with M. S. M. Nazeen. P C.
Lakshman Perera and Miss T. Keenawinna for petitioner-appellant.
K. Kanag-lswaran with Ifthikar Hassim for intervenient-petitioner-respondent.
Faiz Musthapa with M. S. M. Suhaid for respondents.
Cur. adv. vult.
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January 24, 1986.
SENEVIRATNE; J.—(President, C/A)
The appeal C.A. 621/75 and the appeal in C.A.L.A. 85/80 deal withthe same question of law pertaining to the Muslim law of intestatesuccession. In C.A. 621/75(F) the facts which have given rise to thisquestion of law are as follows-Mohamed Ghouse and his wife HafeelaGhouse legally adopted under the Adoption of Children Ordinance,Cap. 61-C.L.E. Vol.: Ill (which came into operation from 1.2.1944),the child Mohamed Yamin Ghouse, who is theintervenient-petitioner-respondent in this appeal. Mohamed Ghousedied prior to his wife Hafeela Ghouse. On the death c5f Hafeela Ghouseintestate on 10.3.73. Azhar Ghouse, the petitioner-appellant in thisappeal applied for letters of administration in respect of the intestateestate of Hafeela Ghouse. in D.C. Mt. Lavinia Case No. 26908/T.Azhar Ghouse the petitioner, who was a full brother of the deceasedHafeela Ghouse, made the following parties whom he claimed to bethe heirs of Hafeela Ghouse. respondents to the application, the 1strespondent Nazir Ghouse. a full brother of the petitioner and 2-6repondents, the children of the deceased Huzair Azees, a sister ofHafeela Ghouse.
The intervenient-petitioner, Mohamed Yamin Ghouse filedobjections to the application for letters of administration made byAzhar Ghouse, and claimed that he was the sole legal heir of thedeceased Hafeela Ghouse as the legally adopted son of HafeelaGhouse, and her late husband Mohamed Ghouse. It is admitted .thatYamin Ghouse had been adopted by the said persons under theAdoption of Children Ordinance. At the inquiry into this dispute-beforethe learned District Judge, the parties agreed that they were Muslimswho belonged to the Shafi Sect, and governed by Muslim law. At theinquiry the following issues of law were tried as preliminary issues:-
Is the adoption of Mohamed Yamin Ghouse the
intervenient-petitionervalid under the Muslim law for
purposes of succession to the intestate estate of the above?
If issue No. 2 is answered in the affirmative or negative, whoare the intestate heirs of the above deceased?
The learned District Judge in his order answered Issue No. 2 in theaffirmative and Issue No. 3 as follows-The intervenient-petitioner isthe sole intestate heir.
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Azhar Ghouse v. Mohamed Ghouse (Saneviratne, J.)
51
In the appeal C.A.L.A. 85/80, the facts were as follows. AhamedMukthar died intestate on 23.6.76. Ummu Fiard Tansia, the widow ofdeceased Mukthar applied for letters of administration in D.C.Negombo Case No. 138/T. The petitioner averred that the intestateheirs of the deceased were, herself widow of deceased, 1strespondent Pathumma Beebee mother of the deceased Mukthar andthe 2nd respondent Mohamed Roshan the adopted child of thepetitioner and her deceased husband Mukthar. Theintervenient-petitioner, in this appeal Abdul Shakoor filed objectionsstating that Mohamed Roshan was not a natural child of the deceasedMukthar, and Roshan being only an adopted child was not an heir ofthe deceased. At the inquiry before the learned District Judge,Negombo the following issues were tried as preliminary issues:- •
Is the respondent Mohamed Roshan deemed to be a child ofthe deceased in terms of section 6(3) of the Adoption ofChildren Ordinance?.
If so, is the 3rd respondent a legal heir of the deceased?
The learned District Judge answered issue Nos. 1 and 2 in theaffirmative.
The original courts have held that a child adopted under theAdoption of Children Ordinance is a legal heir under the Muslim law ofintestate succession. The appeals before this Court are in respect ofthese two orders. As such, this judgment will be in respect, of bothmatters now before this Court.
It is submitted that the relevant law pertaining to Muslim intestatesuccession is found in section 2 of the Muslim Intestate SuccessionOrdinance No. 10 of 1 931-Cap. 62, Vol. III-C.L.E.
f
Section 2 of this Ordinance is as follows:-"It is hereby declared that the law applicable to the intestacy ofany deceased Muslim who at the time of his death was domiciled inCeylon or was the owner of any immovable property in Ceylon shallbe the Muslim law governing the sect to which such deceasedMuslim belonged."
The parties to those two cases are subject to the Muslim lawgoverning their sect, that is the Shafi Sect. It is submitted that underthe Muslim law, which is both the religious and the personal law of theMuslims an adopted child is not considered a child and cannot
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succeed on intestacy. The respondents to both those matters supportthe judgments of the original court relying on section 6(3) of theAdoption of Children Ordinance No. 24 of 1941 as amended by 54 of1 943 Cap: 61, Vol. Ill—C.L.E. (operative from 1.2.1944).
Section 6(3) on which the respondents rely is aslollows:
"Upon an adoption order being made, the adopted child shall tor
all purposes whatsoever be deemed in law to be the child born in
lawful wedlock of the adopter".
Due to the importance of the point of Muslim law in issue, it isnecessary to consider the background to the applicability of theMuslim law in respect of the Muslims of Sri Lanka. The Muslims havehad trade with this country and also have been residents of thiscountry from ancient times-known to the Sinhalese asMoors-Marakkala. But, what is quite clear is that under the DutchGovernment the law that was administered to the Muslims wasaccording to their laws, institutions and customs which prevailed inthis country. After the capitulation of the Maritime Provinces to theBritish on 15.2.1796 the British adopted their practice of permitting"the laws of a conquered country to continue in force until they arealtered by the conqueror". This principle was given constitutionalrecognition by Governor North's Proclamation of 23rd September,1799 which declared that justice should be administered in theMaritime Province-"according to the laws and institutions thatsubsisted under the ancient government of the United Provinces" ofthe Netherlands, subject to such changes as might be made by lawfulauthority". Consequently, in the Maritime Provinces "special laws"were applied in various degrees to particular sections of theinhabitants, and the Roman Dutch Law was applied to thoseinhabitants who had no special laws. The Charter of Justice of 1801also contained the provisions which made applicable the "speciallaws" to certain inhabitants. Thus by the Proclamation of 1799 the"special laws" of the Muslims were made applicable to the Muslims In1806 the Governor Maitland commissioned the Chief JusticeAlexander Johnstone to make a collection of such special lawsadministered in different parts of the island. Thus, in 1806 ChiefJustice Johnstone submitted to the Governor "the code ofMohamedan laws" observed by the Moors in the province of Colombo,and the Governer in Council resolved that it should be published andobserved throughout the whole of the province of Colombo. By statuteOrdinance No. 5 of 1850 the applicability of this Mohamedan Code
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Aihar Ghouse v. Mohamed Ghouse (Seneviratne, J.)
53
was formally extended to the Kandyan Province and other parts of thecolony. This Mohamedan Code has been considered a roughcodification and in any case not a complete codification of the Muslimlaw. and had at later times been subject to heavy criticism. Thelearned Judge, Justice Akbar has called it a "calamity" However, thisMohamedan Code prevailed till it was abolished in 1931.
There are only the following statutes pertaining to the Muslim law:-
Muslim Marriage and Divorce Registration Ordinance No. 27 of1929, repealed by Muslim Marriages & Divorce Act No. 1 3 of1951, as amended by Act No. 31 of 1954, and Act No. 22 of1955;
Muslim Intestate Succession Ordinance No. 10 of 1931;
Muslim Mosques Charitable Trust & Wakfs Act No. 51 of1956.
The fount of Muslim law is the Holy Koran, and for the Muslims it isboth, a personal law and a religious law. This is clear from the texts ofMuslim law, which are always consulted by the Courts in dealing withmatters pertaining to Muslim law. In the text Mohamedan Law, AmeerAli—3rd Ed. 1 929, Vol. I, page 1 90-Ameer Ali states as follows:
"In the mussalman system, law and religion are almostsynonymous expressions and are so intermixed with each other thatit is difficult to dis-associate one from the other. In other wordsgenerally speaking what is religious is lawful and what is lawful isreligious".
In the text Principles of Mohamedan Law-D. F. Mulla, 14th Ed.states as follows:
"Koran is the word of God and as the precepts and usage ofMohamed were inspired by God, they also have the force of law"(Page Vl-lntroduction)
However, it must be stated that according to the authorities thewhole of the Muslim law in the Koran, has not been made applicableas the Muslim law in our country. The content of Muslim law in ourcountry has been the Muslim law adopted in-
fa) The Statutes;
(fc>) Custom, and(c) Judicial decisions.
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[1986] 1 SriL ft.
The same position is set out by D. F. Mulla in his text referred to abovein Cap. I, Para 1, Page 1 -Administration of Mohamedan Law is asfollows:
"The Mohamedan Law is applied by Courts in India toMohamedans not in all, but in some matters only. The power ofCourts to apply Mohamedan Law to Mohamedans is derived fromand regulated partly by Statutes of the Imperial Parliament read withArticle 225 of the Constitution of India but mostly by Indianlegislation"
And he cites several authorities in support of this statement. Extent ofApplication-In paragraph 2, Page 1-Mulla further states as follows:
"As regards India, the rules of Mohamedan Law fall under threedivisions, namely:-
Those which have been expressly directed by theLegislature to be applied to Mohamedans, such as rules ofSuccession and Inheritance;
Those which are applied to Mohamedans as a matter ofjustice, equity and good conscience, such as the rules ofthe Mohamedan Law of Pre-emption;
Those which are not applied at all, though the parties areMohamedans, such as the Mohamedan Criminal Law, andthe Mohamedan Law of Evidence.
The only parts of Mohamedan Law that are applied by Courts inIndia to Mohamedans are those mentioned in clauses (i)'& (ii). Inother respects, the Mohamedans in India are governed by thegeneral law of India".
Much reliance has been placed by the learned counsel for theappellants on the case of Fathima Mirza. Appellant v. M. H. M. Ansar,Respondent (1) and the dicta of Weeramantry, J. as follows:
"in view of the overwhelming importance of the
Qur'an as the fountain head of Islamic law, must necessarily be thepoint of commencement for any study of Khul".
This dicta has been made use of to drive home the point that a verse inthe Qur'an on which the appellants rely for the contention, which willbe considered later, sets out the entire Muslim law pertaining toadoption, which must be considered to be in force in this country
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Azhar Ghouse v. Mohamad Ghouse (Seneviratne, J.)
55
also. On the other hand the learned counsel for the respondentssubmitted that this line is taken out of the context to support thecontention of the appellants whereas the basis for the statement wasthe consideration of section 98(2) of the Muslim Marriage & DivorceAct No. 13 of 1951, which sets out-
"that in all matters relating to any Muslim marriage or divorce, thestatus and the mutual rights and obligations of the parties shall bedetermined according to the Muslim law governing the sect towhich the parties belong.*"
As regards the question to what extent Muslim law has be§nreceived in this country, there is high authority, the dicta of the PrivyCouncil in the case of Noorul Muheetha. Appellant v. Sittie Leyaudeen
the judgment of Sir Lionel Leach, wherein His Lordship laid downas follows:
"There remains for consideration what is the law applicable inCeylon to the question who is the natural guardian of the property ofa Mahomedan infant? There is no doubt that under the Muslim law,as administered in India and laid down in the text books written byIndian authorities on the subject, a mother is not a person who hasinherent authority as a guardian of the property of her infantchildren, but it is by no means clear that this provision of Muslim law
has found acceptance in CeylonThey would, however,
observe that the authorities as to the extent to which and the form inwhich general Muslim law has been received into Ceylon seem veryconflicting and they would venture to hope that the question ofresolving by legislation the doubts which this conflict of authoritiesmust create may receive early attention". (Page 273-274). (Theemphasis is mine).
As regards to the question as to what extent the Muslim law hasbeen accepted in Ceylon by Statute and otherwise, and which contentof the Muslim law the Courts will make applicable, one has to considerthat our country is a secular State, and the Courts have to administersecular and not ecclesiastical law. The Courts have always taken intoaccount the special laws pertaining to various communities in theIsland. The Courts while applying their special laws and customs to theMuslims, have at no time accepted the position that the entire body of
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Islamic law stated in Holy Koran is applicable to the Muslims. Theentire Kandyan Law applies to the Kandyans, as it is a local lawapplicable to a group of citizens of this country; the Muslim Lawcannot be considered on this footing.
There are instances in which a particular Islamic Law pertaining tothe Muslims have been, I should say abrogated by Statute. Such aninstance is section 2 of the Wills Ordinance. Under Muslim law thereare restrictions, as regards the disposition of property. But undersection 2 of the Wills Ordinance "Every person is competent to make awill to devise, bequeath, and dispose of by Will of property withinCeylon", in spite of the fact that-
"by reason any person who by any law usage, or custom
would be entitled to a share or portion of the property of
the testator has been excludedor wholely disinherited or
omitted in such Will."
In the case decided by the Privy Council Ahamed v. Sariffa Umma
. the Privy Council held that "a Muslim domiciled in Ceylon haspower to dispose of all his property by Will regardless of any limitationimposed by Muslim law". I have referred to this case as the principleset out in this case will be relevant to the main matter considered inthis case, that is. the right of a legally adopted child to intestatesuccession by operation of the Statute Law.
■* It must be mentioned that in respect of the age of MajorityOrdinance No. 7 of 1865, is an Ordinance applicable to all persons – Ithas been held in the case of Assanar, Appellant v. Hamid, Respondent
the rule of Muslim law that a minor attains majority on attaining theage of puberty is not affected by the age of Majority Ordinance. Asregards the legal proposition that the Roman Dutch Law is thecommon law of Ceylon, it has been held in the case of Korossa RubberCompany u. Silva (5) by a Bench of two learned Judges – WoodRenton, J. and De. Sampayo, J.-
"that the Roman Dutch law, pure and simple, does not exist in thiscountry in its entirety. It has been modified in many directions, bothexpressly and by necessary implication by our Statute law, and alsoby judicial decision."
CAAzhar Ghouse v. Mohamed Ghouse (Seneviratne. J.)57
The field of donation is one in respect of which our Courts and thestatute law have departed from the principles of Muslim Law in itsapplicability to the Muslims. Under Muslim law a donation or gift intervivos must have three conditions
Manifestation of the wi$h to give,
Acceptance by donee, either expressly or impliedly,
The taking of immediate possession of the subject matterof the gift.
Thus, under Muslim Law, a Muslim cannot make a contingent orconditional gift. Roman Dutch Law recognises contingent andconditional gifts, such as fidei commisa. It had been the practiceamong the Muslims to execute deeds of gifts with conditions, such asthose which would come under the concept of a fidei commissum in.Roman Dutch Law. Thus, such gifts inter vivos were contrary to theMuslim law rules set out above. In the leading case Weerasekera v.Peiris (6), the Privy Council considered a deed of gift dated March11 th, 1904 executed by one Marikar Hadjiar, a Mohamedan of theShafi Sect. It was held that this deed of gift created a valid fideicommissum, such as, is recognised by the Roman Dutch Law. It wascontended that this gift was invalid under Muslim Law. The PrivyCouncil held that this was a valid gift described as a fidei commissumin Roman Dutch Law, and should be accepted as such. In addition tothis conclusion by the Privy Council their Lordships also referred to theMuslim Intestate Succession Ordinance No. 10 of 1931, whichbecame law (17th June, 1931) by the time the Privy Council deliveredthe judgment on December 9, 1931. Section 3 of the Ordinance laysdown that of the law applicable to donations "not involving fideicommissum Usufruct and Trust shall be Muslim Law
Thus, by Statute the Roman Dutch Lawconcepts of fidei commissum. Usufruct and Trust have been madeapplicable to the Muslims governed by their personal laws.
I will now come to the subject matter, the point of law before thisCourt. The learned President's Counsel for the appellants stronglyrelied on the Muslim Law principle that adoption is alien to the IslamicLaw. His submissions began by Reference to averse from the HolyKoran. The learned President's Counsel cited Chapter IV-Suras 4-5,which is as follows:
"Nor hath He made your adopted sons your (true)
call (such as are adopieaj. ihe sons of
their (real) fathers, this (will be) more just in the sight of God."
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11986] 1 SriL R.
This verse has been interpreted to mean that the Holy Prophet did notrecognise adoption. The texts pertaining to Muslim Law explain thisverse in that manner. F.B. Tyabji-Principles of MuhammodanLaw-1913 Ed. Cap. 1, p. 182, para 225-states as follows:
"paternity or maternity cannot'be established in a mussalman whopurports to adopt, nor is the latter considered in Muhammodan Lawto be the child of the former."
The learned President's Counsel also relied on an Indian caseMuhamed Abdul Khan v. Muhamed Ismail Khan (7). The learnedcounsel for respondents submitted that this case did not deal with aninstance of de jure adoption, such as before this Court, but dealt witha de facto adoption. A study of this decision shows that it dealt withneither of these two problems. This case dealt with the principle ofMuslim law-legitimation by acknowledgment as a child. Mahamood,
J.in the course of his judgment jnade this observation obiter-
"There is nothing in Muhammodan Law similar to adoption asrecognised by Roman Dutch Law and Hindu system, or admitting ofan affiliation which has no reference to consanguinity or legitimate
descent. Before the age of Islam adoption
was common and well recognised
among ancient Arabs that the cognate as well as agnate rights wereattributed to the children so adopted, and that such adoption and itslegal effects were abrogated by the express words of the Koran andhave never found a place in Muhammodan Jurisprudence inconnection with marriage, inheritance or for any other legalpurpose." (page 227).
The next submission of the learned President's Counsel forappellants was based on section 2 of the Muslim Intestate SuccessionOrdinance No. 10 of 1931 which has been cited above. The limb ofthis section which the learned President's Counsel emphasised is:
" shall be the Muslim Law governing the sect to
which he belongs". The learned President's Counsel submitted thatthis limb adopted or brought in the full or entire body of the MuslimLaw of intestate succession to govern intestate succession in respectof the Muslims. That section 6 (3) of the Adoption of Childrenuio;nonr.(i had no relevance in view of section 2 of the MuslimIntestate Succession Ordinance. The Muslim Law did not recogniseeven de jure adoption as under our Adoption of Children Ordinance.
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Azhar Ghouse v. Mohamed Ghouse (Seneviratne, J.)
69
The special law applicable to Muslims must prevail over section 6 (3)of the Adoption of Children Ordinance which is the general law.Adoption cannot be recognised due to the fact that the very basis ofintestate succession in Muslim Law is based on consanguinity. Thiswas the essence of Muslim Law of intestate succession. Adoption ofChildren Ordinance has no special provision applicable to Muslims oneway or the other. It is silent. Learned counsel emphasised that thewords in section 6(3) of the Adoption of ChildrenOrdinance-"deemed to be born id lawful wedlock"'', does not meanconsanguinity, but merely means legitimate. The adopted child did notchange his status as he still remained an adopted'child
The learned President's counsel relied strongly on the submissionthat the Muslim Law of intestate succession is a special law applicableto the Muslims, and as such it overrides the general law, the Adoptionof Children Ordinance. For this submission, counsel relied on the legalprinciple -generalia specialibus non derogant- Maxwell-theInterpretation of Statutes, Page 196- which cites the dicta of the Earlof Selborne-in the case of Seward v. Vera Cruz (8) which sets outthat special earlier legislation must prevail over general words on alater Act. The counsel also relied on a passage in Craies on StatuteLaw, 6th Ed. Page 376. which cites the same case Seward v. VeraCruz (supra) and sets out the principle of law referred to above. Therule as stated by Craies is as follows: "There is a well known rule whichhas application to this case, which is that a subsequent general Actdoes not affect a prior special Act by implication" – generaliaspecialibus non derogant. In this case referred to by both Maxwell andCraies – Mary Seward, Appellant v. The Vera Cruz. Respondent (supra)(House of Lords) Mary Seward filed an action in rem, in the AdmiraltyCourt claiming damages against the owners of the ship Vera Cruz forthe loss of life of her husband W. Seward and her son T. W.Seward-occasioned by a collision of two vessels Vera Cruz andAgnes. The Admiralty Court Act of 1861. section 7 gave the Court ofAdmiralty-"jurisdiction over any claim for damage done by any ship".There was also a later Act known as the Lord Campbell's Act. whichprovided for liability of any person ^whensoever death of a person shallbe caused by wrongful act, neglect or default." The House of Lordsheld that Mary Seward's action cannot be founded on the AdmiraltyCourt Act of 1861, but was an action coming within the LordCampbell's Act. As regards section 2 of the Campbell's Act. TheirLordships posed the question whether those words were applicable to
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an inanimate thing like a ship which is not capable of doing wrong. Assection 7 of the Admiralty Court Act provided for any damage done bya ship, it held that the Admiralty Court cannot entertain an action inrem for damages for loss of life provided under Lords Campbell's Act.
It is in the course of this judgment that Lord Selborne laid down theprinciple which has been referred to by both Maxwell and Craies. Withrespect to their Lordships, who put the principle decided on a veryhigh plane, the real question at issue in the case was whether theaction of Mary Seward was one that could be founded under section 7of the Admiralty Court Act, 1861 or the Lord Campbell's Act. Boththese Acts dealt with the same subject matter, action for damages. Atthis stage, I must in short state that the submission that this principleapplicable to special laws should prevail in this matter was sought tobe rebutted by learned counsel for the respondents on two grounds-
That section 6{3) of the Adoption of Children Ordinance dealtwith the status of a person, not the question of intestatesuccession,
That section 2 of the Muslim Intestate Succession Ordinance,and section 6(3) of the Adoption of Children Ordinance werecomplementary provisions of law. So that the principle of a priorspecial law and a later general law did not arise.
The last point urged by the learned President's Counsel for theappellants was that this was an instance in which the provisions of theConstitution, Chapter 3, Fundamental Rights, Articles 10 and14(1) (e) should prevail. Article 10 refers to freedom of religion andArticle 14(1)(e) refers to "freedom to manifest the religion". Thisreference was made to these Articles in the Constitution in view of thesubmission that the Holy Koran of the Muslims containedecclesiastical law and the personal law, and must prevail over otherlaws. This again raises the question-
That our country is a secular State, and not an Islamic Statepartly as regards Muslinr>a: The learned Counsel for therespondents emphasised that this country is a secular Statewhich applies personal laws to the Muslims,
The accepted position is that the entire Muslim law as laid downin the Holy Koran has not become applicable to the Muslims ofour country.
CAAzhar Ghouse v. Mohamed Ghouse (Seneviratne, J.)61
According to the passage cited above from Mulla,' even under theBritish, in India only parts of Muhammedan Law have been applied bythe Courts in India to Muhammodans. It is so even now. Thus, theArticles of the Constitution referred to cannot permit and will notpermit the entire body of Koranic Law to be a part of the Muslim law ofthis country.
The learned counsel for the respondents conceded that accordingto the Koranic Law, an adopted child is not recognised for the purposeof intestate succession. However, this Ordinance of 1931 has noreference at all to an adopted child. Learned counsel have submittedthat the Muslim Intestate.Succession Ordinance section 2 has onlylaid down the rules or mode of intestate succession which depends onconsanguinity. For the purpose of intestate succession the law has todetermine the status of various persons entitled to succession towit-legitimacy, illegitimacy, adoption, and such. It has been stronglyurged by learned counsel for the respondents that the Adoption ofChildren Ordinance deals with status of an adopted child, and thatsection 6(3) confers the status on a child adopted under thisOrdinance as one "deemed in law to be the child born in lawfulwedlock of the adopter”. Thus, this section considers an adopted childin the eye of law as one of own flesh and blood of the adopter, anatural child of the adopter. Thfe Adoption of Children Ordinance doesnot bar a Muslim from adopting a child. Thus, once a child is adoptedby a Muslim, section 6(3) of the Ordinance makes him in the eye oflaw, and by legal fiction, the adopter's own child. By this process anadopted child becomes entitled to succeed by intestate succession tothe adopter under section 2 of the Muslim Intestate SuccessionOrdinance.
Muslims have not been exempted from the operation of theAdoption of Children Ordinance. There are Statute's containingpersonal laws, and in such Statutes certain categories of communitiesare either brought within the Statutes or exempted from the Statutes –
Section 1 6 of the Adoption of Children Ordinance is a savingprovision in respect of adopfion under the Kandyan Law or theTesawalamai,
The Married Women's Property Ordinance No. 18 of1923-Section 3(2) provides that this Ordinance shall notapply to Kandyans, Muslims, or Tamils of the NorthernProvince, who are or may become subject to Tesawalamai.
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The Matrimonial Rights and Inheritance Ordinance, section 2sets out that the Ordinance shall not apply to Kandyans orMuslims or to Tamils of the Northern Province, who are subjectto Tesawalamai,
The Matrimonial Rights and Inheritance (Jaffna) OrdinanceNo. 1 of 1911, section 2 states-"This Ordinance shall applyonly to those Tamils to whom the Tesawalamai appliessituate".
Section 627 of the Civil Procedure Code is a like section, whichstates-
"Save as expressly otherwise provided in the Kandyan Marriageand Divorce Act (Chapter 113) and the Muslim Marriage andDivorce Act (Chapter 1 15), nothing in this Chapter containedshall be taken to apply to any marriage between personsprofessing Islam or to any marriage affected by the provisionsof the Kandyan Marriage and Divorce Act".
The Legitimacy Act No. 3 of 1970, section 2(1) states this Actshall not apply to-tal A marriage between persons professing Islam, or
(b) A marriage under.the Kandyan Marriage and Divorce Actbetween persons subject to Kandyan Law.
It had been submitted by learned counsel for the respondents that twopersons concerned in the matters before this Court, that is YaminMohamed Ghouse, and Mohamed Roshan should be considered asreal legitimate children of their respective adopters Hafeela Ghouseand Fiard Tansia by virtue of the provisions of section 6(3) of theAdoption of Children Ordinance. The learned President's counsel forthe appellants have strongly submitted that the words "deemed to beborn in lawful wedlock", does not mean consanguinity, but merelymeans legitimate, that the adopted child's status as a adopted childremains in spite of this section. At least the learned President'scounsel for the appellants has conceded that the above words means"legitimate". If the two persons Yamin Ghouse and Mohamed Roshanare deemed to be legitimate children of their adopters Hafeela Ghouseand Fiard Tansia, then, this legal fiction will graft into these twooersons consanguinity in respect of the adopters.
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Azhar Ghouse v. Mohamed Ghouse (Seneviratne. J.)
63
The effect of an adoption order in a like enactment in South Africahas been considered—in the' case of Cohen v. Minister for the interior(9). In this case a child had been adopted under the Adoption Act No25 of 1923 by Cohen. The adoption order had been made undersection 3 of the Act. This was an application by the adopted child, theapplicant in this case for a certificate of naturalisation, as a Citizen ofthe Union of South Africa in terms of Act No. 18 of 1926. Theapplicant annexed to the papers filed the adoption order dated18.11.1931 obtained in terms of section 3 of the Adoption Act No.25 of 1923. Thus, in this case the Court had to decide the status ofthe applicant. The applicant was born in Russia. He had entered theUnion of South Africa as one of the orphans brought from Russia tolive in South Africa by permission of the Government of the Union ofSouth Africa. He had been adopted by Louis Cohen. At the time thiscase was heard in 1942 the Act No. 25 of 1923 had been repealedby a New Children Act No. 31 of 1937, but the applicant's rights wereheld to be governed still by section 3 of Act No. 25 of 1923. Section8 (1) of the said Act contained a provision as follows-
"An order of adoption shall, unless, otherwise thereby provided,confer the surname of the adopting parent on the adopted child,and the adopted child shall for all purposes whatsoever be deemedin law to be the child born in lawful wedlock of the adopting parent".
It will be noted that the first part of this section, conferment of thesurname, is similar to section 6(2) of our Adoption of ChildrenOrdinance, which makes the same provision to confer the surname.
The sbcond part of 'this section-,"the adopted child
adopting parent" is similar to our section 6(3), except that our section6(3) uses the words "of the adopter". It had been submitted in thiscase by counsel for the respondents that an adoption under the saidStatute of 1 923 —"is merely a family arrangement and it confers norights or obligations on the applicant". In reply to this argument, thelearned Judge Maritz, J. has made these observations-
"I think he must have been spefbking with his tongue in his cheekbecause the language is imperative and as clear as languagepossibly can be. Such a child has all the rights and all the liabilitiesappertaining to a child born in lawful wedlock subject to exceptionswhich I have mentioned. As far as the law possibly.can make it so,the law has in fact said: that the strange child'you have adopted is infact your own flesh and blood".
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Maritz. J. held that the adopting father Cohen has been a Britishsubject, the applicant who was adopted by him can also claim fornaturalisation as a British subject, and that the Minister had no optionbut to grant the certificate of naturalisation which the applicant askedfor. It cannot be said, that the dida of Maritz, J. regarding the statusof the applicant, that is, he has to be considered in fact as the fleshand blood of the adopter Cohen, has been made obiter, as that findingwas most essential to a decision in the application. This finding is theratio decidendi in the case.
I hold that the Adoption of Children Ordinance of No. 24 of 1941has to be considered along with section 2 of the Muslim IntestateSuccession Ordinance to determine whether the said Yamin Ghouseand Mohamed Roshan are entitled to succeed to the intestate estateof their respective adopters. On my considered appreciation of thelaw, I hold that as the Adoption Ordinance has not excluded theMuslims from the provisions of this Ordinance, these two parties areentitled to succeed to the intestate estate of their respective adopters.
I uphold the judgment of the learned District Judge, Mt. Lavinia inappeal C.A. 621/75(F), and the judgment of the learned DistrictJudge, Negombo in appeal C.A.L.A. 85/80 The appeal C.A.621/75(F), and the appeal C.A.L.A. 85/80 are dismissed with costs.
This judgment has been delivered in respect of both matters, and assuch'should be considered to apply to both appeals C.A. 621/75 andC.A.L.A. 85/80.
My brother Siva Selliah, J. has in a separate judgment agreed withmy conclusions. My brother Jameel, J. has written a separatedissenting judgment.
SIVA SELLIAH, J.
The facts in these two cases have been very fully set out in thejudgment of my learned brothers and do not require repetition by me. Ishall accordingly address myself to the questions of law raised whichhave been strenuously argued before us by counsel.
The respondents involved in both cases (CA621/75 and CALA85/80)are respectively Yamin Ghouse and Mohamed Roshan. It isconceded that in respect of each of them there is a valid legal adoptionorder mady by a competent court and that all parties are Muslims,domiciled in this country and belong to the Shafi Sect and aregoverned by Muslim I aw.
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Azhar Ghouse v. Mohamed Ghouse (Siva Selliah. J.)
65
The question that has arisen in both these cases is whether anadopted son can succeed as an intestate heir to the property of hisadoptive parents or whether Muslim Law prevents him by virtue of thefact that he is an adopted son frorr^ succeeding to the estate of hisdeceased adoptive parent. The arguments in both these cases wereconsolidated and this order is in respect of both cases. The provisionsof law which would apply to this dispute are section 2 of the MuslimIntestate Succession Act No. 10 of 1931 (Ch.62) which applies toevery Muslim deceased who owned property in Sri Lanka, and section6(3) of the Adoption Ordinance Ch.61. As these provisions figureprominently in this case, I reproduce them here:
Section 2 of the Muslim Intestate Succession Act 10 of 1931(Ch. 62) states as follows:
"It is hereby declared that the law applicable to the intestacy of• any deceased Muslimwho at the time of his death was domiciled inCeylon or was the owner of any immovable property in Ceylon shallbe the Muslim Law governing the Sect to which such deceasedMuslim belonged.
Section 6 (3) of the Adoption of Children Ordinance (Ch. 61)states as follows:
"Upon an adoption order being made, the adopted child shallfor all purposes whatsoever be deemed in law to be the childborn in lawful wedlock of the adopter: Provided however"
It was the contention of learned Queen's Counsel who appeared forthe appellants in both cases that in Muslim Law an adopted child,however adopted and wherever adopted could not succeed to theproperty of a deceased adopter and that Muslim Law did notrecognize adoption in so far as intestate succession is concerned andthat the special law contained in Ch. 62 section 2 must prevail overthe general later enactment contained in section 6 (3) of theAdoption of Children Ordinance, fle also contended that it is asignificant fact that intestate succession was not dealt with in section6 of the Adoption Ordinance. "He also strongly contended that thewhole basis of succession for Muslims is based on blood relationshipand consanguinity and that no amount of legislation or deemingclauses contained therein can possibly make the blood of the adopterrun in the veins of the adopted child ; it was his further.contention
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that adoption is not recognized in Muslim Law and that an adoptionmade by Muslim parents would not result in a valid adoption and thatconsequently an adoption made under the provision of the AdoptionOrdinance would not and cannoj. result in succession to the intestateestate of the Muslim adopting parent because the law that isapplicable is the law of the sect to which the deceased belonged. Hecontended that in the absence of express provisions in the AdoptionOrdinance to repeal whether in whole or in part the provisions of theMuslim Intestate Succession Ordinance, we have to interpret the twoOrdinances side by side-the special law to be made applicable toMuslims and the general law to' those whom it has application.
All these postulates were strenuously opposed by the two learnedcounsel who separately appeared for the two respondents concernedin the two separate cases. They were agreed on a common front intheir arguments. It was their contention that intestacy was concernedonly with the devolution of shares on the heirs upon the death of aparent and must be distinguished from the question of status whichconcerned itself with capacity to inherit; it was also their contentionthat to determine this question of status, one must go outside the ruleof intestate succession (in this case to the Adoption Ordinance) andthat the question of status is not determined by the rules of intestatesuccession in any system of law.'It was their contention that one mustfirst determine the question of status, i.e. capacity to inherit and thenthereafter determine to what shares the respective heir becameentitled by applying the law pertaining to intestate succession (section2 of Ch. 62). It was their contention that any pronouncement in theKoran while it represented religious rule and religious law cannotoverride statute'law and that conferment of status was a matterderived from the State or Law and not from any other source and thatthe Quranic principle against adoption was not introduced into thiscountry and did not have legislative sanction.
Thus we have two conflicting positions posed before us.
Much of the learned couns'el for appellant's submissions werebased on certain Koranic pronouncements which he contendedrepresented the highest law for Muslims, on the opinion of text writersand judicial decisions-; it was his contention that the consensus of allthese was that adoption was not recognized in Muslim Law and thatan adopted son was no son and could thus not be entitled tosuccession. Two pronouncements from the Holy Koran in particular
CAAzhar Ghouse v. Mohamad Ghouse (Siva Selliah. J ) .67
were relied upon: Koran Ch. 33 verse 4-.“Allah has not made for anyman two hearts in the body; nor has he made your adopted sons yoursons.."; Koran Ch. 4 verse 23 – "Prohibited for you are the wives ofyour sons proceeding from yobr loins". It was strongly contended thatthese pronouncements reveal *both that Adoption was neverrecognised in Muslim Law and that consanguinity was the only test ofwho was a son and heir and that adoption could give no rise whateverto the status of a son; It was further contended that by no process ofdeeming could the blood of the ancestors of the adopting parent besaid to flow in the adopted son who thus became disqualified for wantof consanguinity. The learned counsel met the arguments of counselfor respondents who contended that Koranic pronouncementshowever inspired and holy they may be still remained only religiousprecepts and were devoid of any legislative sanction by quotingWeeramantry, J's dictum in the case reported in 75 NLR 295(1)that —
"We agree that no juristic interpretation can prevail against theHoly Koran or the Hadiths of the Holy Prophet for the former is thebedrock of all Muslim Law and the latter are second in authority onlyto the Holy Koran."
Learned counsel contended that although this direction was withreference to marriage laws and tfne extent to which section 98(2) ofCh. 115 of the Legislative Enactment statutorily introduced MuslimLaw into this country that this direction would apply with equal force tothe interpretation of section 2 of Ch. 62. He reinforced hissubmissions with quotations from the text writers. Ameer Ali onMohamedan Law. 5th Edition, chapter 3. section 1. p.218 states :"The Muslim Law does not recognize the validity of any state offiliation when the parentage of the person adopted is known tobelong to a person other than the adopting father and an adoptedchild has no right to the estate of his or her adoptive parents."
Me Naughten in Principles of Mohamedan Law, Bock 2, Case VI, p.86states:
"during the life time or after the death of the adopting father theadopted son has no claim upon his property."
Mulla Principles of Mohamedan Law, 1955 Edition, p.293 refers tothe case reported in 1938, Bombay 150 where it was held that-"although a Muslim could according to the law of his nativeState adopt a son, such a son cannot succeed to property in theabsence of evidence establishing a custom to that effect."
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It was learned counsel's contention that in the instant case there wasno evidence of the prevalence of such a custom in Sri Lanka. Louis Nellin his book Mohamedan Laws of Ceylon – Inheritance at p.41 states:'adoption is not recognized a§ conferring any rights on the child
adopted."
Various other authorities were also quoted to buttress the submissionthat adoption cannot carry the right of inheritance under Muslim Law
Fayze in Outlines of Mohamedan Law. 3rd Edition, p.180,
section 29. In the case reported in Indian Law Reports. Vol. 39 (P.C.)Calcutta p. 418, 432 – it was held that under Indian Mohamedan Law.adoption cannot be made and even if made cannot carry rights ofintestate succession; again in Indian Law Reports 10 Allahabad 289 itwas held that "the existence of consanguinity is an indispensablecondition for succession.!" Consanguinity connotes blood relationshipwhich learned counsel contended could never be found in the case ofan adopted child whose parents were of a completely different blood.He thus contended once an adopted son always an adopted son andthe disability imposed oj such a person continued throughout underMuslim Law and could never be altered by any process of deemingunder the provisions of/the Adoption Ordinance: he also contendedthat if indeed his adoptive parents intended him to succeed to theinheritance they could.have achieved this by a will and this not havingbeen done, the provisions of section 2 of Ch. 62 must prevail andthat this law alone provided the basis of Muslim Intestate Succession.It will be seen from tfie above consideration that the learned Queen'sCounsel has quoted the principles enunciated in Holy Koran, theopinion of text writers on the subject and judicial decisions and theprovisions of section 2 of the Muslim Intestate Succession Act insupport of his contention that Adoption was never recognized inMuslim Law and gave no rights to succession and that consanguinitywas the real test for inheritance under Muslim Law'
I
As against all this the learned counsel for the respondents in bothcases have strenuously contendecTthat this approach was fallacious.They maintained that the pronouncements in the Koran while they areheld in high authority and respect by the Muslims none the less had nolegislative sanctbn of the State and were thus unenforceable in Lawand that one had to decide legally the question of who was a son andthen apply section 2 of Ch. 62 only for the purpose of distribution ofthe wealth. It yvas their contention that the Adoption Ordinance was
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Azhar Ghouse v. Mohamad Ghouse (Siva SaHiah, J.)
69
the law of the land, had legal force and validity:’ and that it mustprevail. They relied very strongly on the words in section 6 (3) of theAdoption Ordinance that “upon an adoption order being made, theadopted child shall for all purposes whatsoever be deemed in law tobe the child born in lawful wedlock of the adopter". They stressed thewords "for all purposes whatever" and "deemed to be a child born inlawful wedlock" and stated that the words were so wide as to includerights to inheritance and the principle of consanguinity as well. Theyalso contended that nowhere in the Adoption Ordinance have theMuslims been excluded from the application of the provision of thisOrdinance and consequently urged that Muslims are bound by it. Theycontended accordingly that the principle oj generalia specialibus nonderogant as determined in the Vera Cruz Case (supra) so stronglycanvassed by the learned Queen's Counsel, did not apply. They furthermaintained that status and capacity to inherit were two differentconcepts and that section 2 of Ch. 6 merely dealt with the questionof devolution of the property on intestacy and cannot determine thequestion who was a son. In the instant case as manifestly therespondent in each case were not the natural children of the adoptedparents recourse must be had, they maintained, to the provisions ofsection 6(3) of the Adoption Ordinance and since there were validadoption orders they must be deemed to. be children born in lawfulwedlock and thus had the capacity to inherit.
By section 2(1) of the Adoption of Children Ordinance "any persondesirous of being authorized to adopt a child may make application tothe court in the manner provided by rule under section 13" and thecourt may subject to the provisions in Part 1 of.the Ordinance grantsuch authority. Under section 6 (3) upon such an order being madethe adopted child shall for all purposes whatsoever be deemed in lawto be the child born in lawful wedlock of the adopter. There are noconstraints placed on the words "any person" in section 6(2) exceptthose provided in section 3 of the Ordinance. It has been held in thecase of Ahamed v. Sariffa Umma (supra) that a Muslim is competentto execute a will to dispose of his property regardless of any limitationimposed by Muslim Law. I am of the view that "any person" in section2(1) of the Adoption Ordinance includes a Muslim and that it wascompetent in law for a Muslim, if he so desired, to adopt a child. Thenext question then is, is such an adopted child entitled to succeed tothe inheritance of the adopter? I need not repeat the submissions ofthe learned Queen's Counsel that an adopted child could not succeed
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to the inheritance of the adopter; I have already set out thepronouncements in the Holy Koran and the views of text writers anddecisions which he relied upon. In this' connection it is necessary tostate that the entire body of Muslim Law was not introduced into SriLanka-vide the case of Ahamed*7. Sariffa Umma (supra) referred toalready which held that a Muslim was competent to execute a will todispose of his property regardless of any limitation imposed by MuslimLaw. So too, although a Muslim cannot make conditional gifts, inWeerasekera v. Pieris (supra) it was held that such a gift was validunder Muslim law. This Judgement recognized the Roman Dutch Lawprinciple of fidei commissum as being applicable to Muslims. It isnecessary accordingly to consider to what extent Muslim Law applies.After the abolition of the Mohamedan Code in 1931, certain statuteswere from time to time enacted as applicable to Muslims. There arethe Muslim Marriage and Divorce Act (Ch. 115 of the LegislativeEnactment), the Muslim Intestate Succession Ordinance (Ch. 62)and the Muslim Mosques and Charitable Trusts and Wakfs OrdinanceNo. 51 of 1956. Considerable authority in decided cases show thatso much only of the Muslim Law as has been specifically recognized asbeing an inveterate custom of Sri Lanka Muslims obtains in Sri Lanka(vide 42 NLR 86. 51 NLR 509. 54 NLR 270. 59 NLR 227. 52 NLR97. 1 9 NLR 1 75). Thus what has been introduced in Sri Lanka is theMuslim Law as governed by these Statutes, as prescribed by customand formulated in judicial decisions. In Mulla Principles of MohamedanLaw, 14th Edition, Ch. 1, para 1, page 1 it is stated that in India theentirety of what is stated in the Koran has not been introduced;Weeramantry, J's dictum in the 75 NLR case referred to did not, Ithink, lay down that the principles as laid down in the Koran can belegally enforced. A Muslim considering the fact the Koran has theutmost religious sanctity amongst Muslims, will be slow to violate theprecepts-but that is on a religious and moral plane. What is in issue inthese two cases is, where a Muslim person has obtained a validadoption order from a competent court under the provision of theAdoption Ordinance, can it be said that such a valid order can have nolegal consequence in view of what'ls stated in the Holy Koran or in the‘■^exts? I am of the considered view that the legal consequences thatv from a valid adoption order made by a competent court must beeffect as they have the full authority of an enabling statute by Actament and that the respondents are entitled to a construction'Ns them the full benefits of the law as enacted by ParliamenttN^represents the law of the land. Accordingly once an
CAAzhar Ghouse v. Mohamad Ghouse (Siva Salliah. J)71
adoption order was made the law deems that under section 6 (3) ofthe Adoption Ordinance-for all purposes whatsoever the child wasborn in lawful wedlock; if indeed the law deemed that a child though infact born of the union of different parents is the child born in lawfulwedlock of the adopting parents a«d is entitled to all the rights of achild born in lawful wedlock of the adopting parents there can be noimpediment to deeming him a consanguine as well. The effect of anadoption order in a similar enactment in South Africa was consideredin the case of Cohen v. Minister of Interior (supra). In that case section
(1) of Act 25 of 1923 contained a provision that-
"An order for adoption shall, unless otherwise thereby provided,confer the surname of the adopting parent on the adopted child,and the adopted child shall for all purposes whatsoever be deemedin law to be the child born in lawful wedlock of the adopting parent."
These provisions are similar to section 6 of the Adoption Ordinance inSri Lanka. Maritz, J. in that case held that "the strange child you haveadopted is in fact your own flesh and blood," and the adopted childwas held entitled to claim for naturalization through his adopted father.Thus by the deeming clause under section 6(3) of the AdoptionOrdinance, this deeming would extend to consanguinity as well andthe respondents would thus b§ entitled to claim as heirs of theintestate estate. The fact that no will was made by the deceasedcannot be held to be a detracting factor. Indeed regarding applicationCA 621/75 where the adopter Ghouse died and testamentaryproceedings were instituted by hts wife (the adopting parents of YaminGhouse, the intervenient petitioner), Mrs. Ghouse has named Yamin(the respondent) as the only heir thus signifying her intention of whothe heir was.
For the reason set out by me I am of the view that where a Muslimperson has voluntarily invoked the provisions of the AdoptionOrdinance with full knowledge of its legal implications andconsequences and obtained a v^lid adoption order, then full legaleffect must be given to the legal consequences of that adoption order,and that the Adoption Ordinance being the law of the land must prevailover any religious or moral precepts on this question. I am also of theview that this construction will also fulfil the requirements of justice ofthis case. I accordingly agree with the conclusions arrived at by thePresident in these two cases and dissent from the judgement of
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Jameel, J. and accordingly hold that the respondents are. entitled tosucceed to the intestate estate of their respective adoptive parents.The appeal in CA 621/75 and application for leave to appeal in CA LA85/80 must in my view be dismissed with costs.
JAMEEL, J.
In these two cases, the arguments before us were consolidated byagreement between the several counsel who appeared for the partiesto these cases.
The questions' that arose before us were:
In case No. C/A 621/75 is Yamin Ghouse, theIntervenient-Respondent, an heir to the deceased Mrs. UmmulHafeela Ghouse, who died on 10.3.73.
In case No. 154/82 whether the second RespondentMohamed Roshan, is an heir to the deceased Ibrahim AhmedMuktar, and
In the Mt-Lavinia case a further question as to whether YaminGhouse is an heir to Abdul Majeed Mohamed Ghouse, who diedin 1972. (The late Mr. Ghouse was the husband of the lateUmmul Hafeela. The testamentary case in respect of the lateMr. Ghouse has been laid *by pending the decision in thisappeal.
In C/A 621/75 the Mt. Lavinia case, it was common groundbetween the parties that Abdul Majeed Ghouse and Ummul HafeelaGhouse had by an adoption order dated 2.6.1950 in Court ofRequests case No. 225 validly adopted Yamin Ghouse, theIntervenient-Respondent, under the provisions of the AdoptionOrdinance No. 24 of 1 943 – Cap. 61 (1 956 L.E.C.).
In C/A 154/82 the Negombo case Ibrahim Ahmed Muktar and wifeFouzia (the petitioner-respondent) admittedly had made a validadoption under the Adoption Ordinance of the secondresponded-respondent, Mohamed Roshan prior to Mr. Muktar'sdeath.
It was also agreed between all the parties that the several personsnamed above are Muslims, domiciled in Sri Lanka and belonging to theShafie sect.
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Azhar Chouse v. Mohamed Ghouse (Jameel, J.j
73
"IF A MUSLIM OF THE SHAFIE SECT SHOULD DIE LEAVINGBEHIND A SON WHO IS ALSO A MUSLIM, AND WHO IS NOTOTHERWISE DISQUALIFIED THEN THAT SON IS A RESIDUARY HEIRTO THE ESTATE OF THE DECEASED." This is not a passage from theHoly Quran but it is a principle of Mbslim Law and how it became sowould be elaborated on in the course of this judgment.-All the partiesto these two appeals are agreed on it and they are also agreed thatunder sec. 2 of the Muslim Intestate Succession Ordinance No. 10 of1931 (Cap. 62 -1956 L.E.C.), this rule of intestate succession willapply to every deceased Muslim in Sri Lanka, had such deceasedeither been domiciled in Sri Lanka and/or had owned immovableproperty in Sri Lanka.
Mr. Kanaga Isvaran, senior counsel for Yamin Ghouse and Mr. FaizMustapha, counsel for Mohamed Roshan. both contended that theirrespective clients are heirs to their respective adopting parents, whilelearned Queen's Counsel for the appellants in both cases opposed thisview.
Sec. 2 (1) of the Adoption of Children Ordinance, Cap. 61, statesthat "ANY PERSON" desirous of being authorised to adopt a child maymake an application to court and obtain an adoption order, sec. 6 (3),provides that "UPON AN ADOPTION ORDER BEING MADE THEADOPTED CHILD SHALL, FOR 4LL PURPOSES WHATSOEVER BEDEEMED IN LAW TO BE A CHILD BORN IN LAWFUL WEDLOCK OFTHE ADOPTER (The emphasis is mine).
Learned counsel for the-respondents in both cases contend that thewords "ANY PERSON" in sec. 2 (1) are so wide that they will includeMuslims in Sri Lanka and that the words "ALL PURPOSESWHATSOEVER" are equally wide and will include intestate successionand that the words "CHILD BORN IN LAWFUL WEDLOCK" wouldmean that an adopted child is deemed to be a legitimate child of theadopter and accordingly that Yamin and Roshan would be"RESIDUARY HEIRS" of their respective deceased adoptive parents.
These arguments are based on the premise that while the questionof the quota or share which a son may inherit from his parents is aquestion pertaining to the law of inheritance and could therefore beobtained from the Muslim Law, the question as to who is a sonpertains to the law of status. It is contended therefore that one willhave to turn to the general law of the land to determine the status ofan individual and more paricularly as to who is a "SON", because
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sec. 2 of the Muslim Intestate Succession Ordinance. No. iOof 1931makes applicable only the rules of intestate succession. It iscontended that all persons who come within the definition of the word"SON" under our general law will be entitled to be called a residuaryheir according to the rule of inheritance in Muslim law quoted above.
It is contended that in Sri Lanka the word "SON" would include –
The male offspring of a woman by her lawfully weddedhusband.
Her male offspring who. though not born during the subsistenceof her marriage, but was in fact born prior to the date of hermarriage, if she subsequently married the father of the child andso legitimised his birth.
Any male child when he has adopted under an adoption orderduly entered under our Adoption Ordinance Cap. 61 (whichcame into operation on 1.2.1944).
In the case of Muslims, any male child who has been dulyacknowledged by his father as a legitimate son.
It is conceded by Learned Counsel that neither Yamin Ghouse nor -Roshan Muktar, namely the two adopted children whose claim toheirship is being discussed in these appeals before us. come withincategories (1), or (2), or (4) abovL. The-question therefore is. "Dothese adopted children qualify under clause (3) to be called son andheir" to their respective deceased adoptive parent ?
Learned Counsel for the respondents contend that the law of statusin any known jurisprudence is not a oart of the law of inheritance andaccordingly, any definition of a word "SON" in pure Muslim Law willnot be germane to the issues before us. They further contend that theQuranic verse "NO’R HAS HE MADE YOUR ADOPTED SON YOURSON" is irrelevant. However, they conceded that adoption is unknownto pure Muslim Law. but they urged that, that part of Muslim Lawdealing with status is not part of Sri Lankan law. and was neverintroduced into Sri Lanka either uncler sec. 2 of Cap. 62, nor by way ofthe customary law of the Muslim inhabitants of Sri Lanka.
It cannot be gainsaid that the entire bulk of Muslim law does notobtain in Sri Lanka. For instance, the HUDUD LAWS (pertaining to sinor crime and punishment) have never been introduced and are not partof the law of Sri Lanka. Nor can it be denied that so much of theMuslim law as has in fact been introduced, and so obtains here, has
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Azhar Ghouse v. Mohamed Ghouse (JameeUf)
75
the full force of law. In the same manner, so much if(the local customof the Muslims as have been recognised and acceded legal sanctionby the decisions of our courts have become patpf the law of SriLanka.
Elaborating on their contention* Learned Cougel submitted thatwhile the Adoption Ordinance has specifica'llyenacted that it’sprovisions will be in addition to and not'in sbstitutio'n of thecustomary laws of adoption under the Kandan Law and theThesawalamai (vide sec. 16), no reference is mae in the Ordinanceeither to Muslim Law or to the Muslims of Sri Lank'. Accordingly, it isurged that the Muslims in Sri Lanka could do wha "AHY PERSON" inSri Lanka could do. namely, adopt a child unepr tie AdoptionOrdinance and that if a Muslim should choose tc cp so, then the fullforce and effect of all the provisions of that Ordinate would apply tothe parties concerned. By way of support to thiAargument it wassubmitted that inasmuch as it. has been held by/iurcourU that "EVERYPERSON" (vide WILLS ORDINANCE No. 21 of 1844 -j Sec, 2 – Cap.60) in Sri Lanka is entitled to make a will in respectiof tbs entirety of hisproperty (including Muslims – Shariffa Umma v. Rahirjth Umma (10);Ahmath v. Shariffa Umma (11)) "ANY PERSON" inpaption 62 canhave no other meaning than "ALL PERSONS" and synclude-Muslimsas well./
Our courts have recognised («<ide 34 N.L.R. 28122 C.L.W. 113)and so granted validity to deeds and wills writteroy Muslims of SriLanka even though they contain clauses which fajJpder the categoryof fidei-commissa. usufructs, and trusts. Indeed,air legislature hasgiven recognition to these decisions by sec. 3 otCap. 62 whereby,only deeds not involving the above three categori6 ate made subjectto the Muslim Law if the donor is a Muslim. Leaned counsel furthersubmitted that whenever our legislature wished to preserve somepersonal law provisions for the benefit of the Muflim, it specificallysaid so in its general enactments. Vide General Mariaes Ordinance -Cap. 112. Thus, whenever any enactment, such a the AdoptionOrdinance, did not exclude from its operation anyoaicular linguistic,ethnic, or religious community*the whole popuatiji was broughtunder its ambit, and so, any and everyone could aailf the rights andprivileges provided for by that enactment. This, ro cubt. is a soundproposition of law except when the maxim gefetalillex specialibusnon derogatis operative. It is the contention o lamed Queen’sCounsel for the appellant that this maxim dcos opr^ in both thesecases. It is his contention that the general -provisos pi the Adoption
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Ordinance – Cap,61 – (which as per sec. 17 thereof becameoperative on 1.1 1144) do not catch up the Muslims with regard totheir intestate succession as special provision had already been madefor them in their htestate Succession Ordinance. Cap. 62 of 1931.
/ '
There has been a'png line of decisions in our courts, (vide 42 N.L.R.86; Idroos Sathu^v. Sittie Leyaudeen (1 2)^and 54 NLR 270 oncapacity to accep; Mohideeh v. Sulaiman (13) on sale of- land,"Mutalibu v. Hameej (14) on proof of custom) all to the effect that somuch only of the ljuslim law as has been specifically introduced byway of legisla.Totjor specifically given recognition as being aninveterate custom of the Sri Lankan-Muslims, obtains in Sri Lanka.
(Abdul RahamanvUssan Umma 15)). Thus, it is that in the lawrelating to age o majority (Assanar v. Hamid (supra)) and to bigamy(A G. v. Reid (1-6^as known to Muslim law, have been recognised asapplicable to Sri Laikan Muslims.
/ i |
We have/by waypf legislation, provisions made for the applicabilityof the Muslim bw cf the sect to which the Sri Lankan Muslim belongsin relation to ttestate succession (vide sec. 2 of Cap. 61) andmarriag'e and Vvorce (vide sec. 16, 25, 26 and 98 (1) of theMarriage and Diivce Muslim Act No. 13 of 1951). Furthermore, wenave sec. 41 of'ne Wakfs Ordinance No. 51 of 1956 which hassimilar provisions r the application of the law and substance of thesect of the Muslirrtommunity concerned with such wakf.
i
Prior to 1 931, w ’nad in Sri Lanka special laws dealing with someaspects of their prsonal rights – for example, the MohammedanCode of 1806 anj the Muslim Marriage and Divorce RegistrationOrdinance of 1921. which replaced the Mohammedan MarriageRegistration Odinatceof 1886.
In Perera v. 'han (1 7) Wendt and Grenier, JJ. of 24.10.1905, it
was held:I
I
"The minu 0^5.8.1806 does rfot in any way interfere with theoperation ofie general principles of Mohammedan law with regardto inheritancShir/fta Umma v. Mohamed Lebbe (18). If does notprofess to tnish any principle of inheritance capable of beingapplied genellyj— accordingly in sec. 7 (1806 Code) if bothparents survie tley (baing Sharers also entitled to 1 /6th each) willtake these stares The wife, 1 /8th as stated in that section (that
CAAzhar Ghouse v. Mohamad Ghouse (Jameel, J.)77
being the fixed share of a wife when there is issue, according to theQuran) and the residue will go to the son (26/72) and daughter(13/72) See Nell. Mohammedan Law of Ceylon pp. 56‘and 57".
His Lordship Mr. Justice Weeramantry in the case reported in 75N.L.R. at page 295 (1) states:*
"We agree that no juristic interpretation can prevail against theHoly Quran or the Hadiths of the Holy Prophet (O.W.B.P.) for theformer is the bedrock of all Muslim law and the latter are second inauthority only to the Holy Quran".
This case dealt with marriage laws in respect of which sec. 98(2) ofCap. 115 has statutorily introduced the Muslim law governing the sectto which the parties-belong as the law applicable to the Muslims in SriLanka. For all practical purposes, this sec. 98(2) is couched inlanguage similar to sec. 2 of Cap. 62. Accordingly. Dr.Weeramantry's dictum will apply with equal force whenever one hasto construe the provisions of sec. 2 of Cap. of 62.
The earlier decisions of our court are all in reference to the law as itstood prior to 1931..
It is the contention of Learned Counsel for the respondents, thatwhile the .rules of inheritance unqjer Muslim law are made applicable,to the estates of the respective deceased in the two cases before us interms of sec. 2 of Cap. 62 yet, since the Quranic injunction "NOR HASHE MADE YOUR ADOPTED SONS YOUR SONS" (Al Quran – Ch. 33,v. 4) pertains to status, it will not be relevant to the cases before usinasmuch as-
. The law of status in Muslim law has not been statutorily
introduced, and
As it has not been proved that adoption is unknown among theMuslims of Sri Lanka. (Compare – Oudh Estates Act of 1893of India, which permits a Mohammedan in that state to adopt a
son),
There would be considerable force behind these arguments if thisverse of the Holy Quran had effected a change only in the status of theparties. But that is not so. It also had the effect of disqualifying theadopted child from inheritance. It formed the basis of that rule ofintestate succession which debars the adopted son from a share in theestate.
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Thiabji (2nd Edition, p. 819) states:
"The title to inheritance prior to Islam, was that of comradeship inarms. It was for this reason that women and children (even thoughborn in lawful wedlock) who were unable to bear arms weredisqualified with regard to inheritance. The law was not amended onthis point for the first two or three years during which the Prophetpreached and consequently, the Muhajireens (those who migratedwith the Holy Prophet from Macca to Medina) succeeded to eachother when, any of them fell in battle. Later, this rule was abrogatedby the Holy Quran and it was laid down that nothing could furnish sostrong a claim to inheritance as blood relationship".
Al-Quran, Sura 33, Verse 6 " THE PROPHET IS CLOSER TO
THE BELIEVERS THAN THEMSELVES AND HIS WIVES ARE THEIRMOTHERS: BLOOD RELATIONS AMONG EACH OTHER HAVECLOSER PERSONAL TIES IN THE DECREE OF ALLAH THAN (thebrotherhood of) BELIEVERS AND MUHAJIRS". Thiabji adds that thiswas indeed only part of the new revelations to strengthen the familytie.
Ameer Ali (5th Edition, Ch. 3, sec. 1, p. 218) states:
"The Musalman law accordingly does not recognise the validity ofany mode of filiation when the parentage of the person adopted isknown to belong to a person other than the adopting father and anadopted child (Mutabanna) has no rights in the estate of his or heradoptive parents."
Hammeeda Abd al Ati in his book "The Family Structure in Islam"(American Trusts Publications, 1977 copyright) at page 253, underthe heading 'Basic dimensions of the law of inheritance – the groundsof inheritance' says, "The pagan Arabian custom was arbitrary andbasically determined by the so-called comradeship in arms. Hence itfavoured parental male descent, adoption and, sworn alliance or,clientage.'The Islamic system on the other hand was founded on twobases, natural bilineal relationship through paternal and/or maternallines, and actual affinity through nnarriage and/or its legitimate variantconcubinage". In default (the emphasis is mine) of these two bases athird was accepted by certain law schools and may be called voluntarymutual patronage or WALA.
"These grounds of inheritance eliminated some traditionallyeligible categories and included new classes of heirs. Those whoformally succeeded to property on the basis of adoption, outright
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CAAzhar Chouse v. Mohamed Ghouse (Jameel. J.)
sworn alliance and arbitrary will were no longer eligible under thenew system of Islam. Adoption in particular was completelyexcluded from the grounds of inheritance."
Me Naughton-Principles of Mohammedan Law, in Book 2, case VI,at p. 86:*
"Q : What conditions are necessary to the validity of an adoptionaccording to Mohammedan Law and what rights appertainto a person legally adopted. Has he any claim to the property
left by his adopting father.?
A : During the life time or after the death of the adopting fatherthe adopted son has no claim upon his property."
The rationale for these statements is that adoption was legallyknown, well accepted arid ah often used procedure among thePro-lslamic Arabs. Adoption carried with it the status of a son as wellas the right of inheritance as a son to the estate of the deceasedadopter. No woman – mother, wife and daughters included – had aplace in that scheme and she.was eliminated by the son or sons whocarried arms. These sons excluded from the inheritance even theirown full brothers who happened to be minors and consequently, couldnot have carried arms. In the absence of legitimate sons, the adoptedson took the place of the son in all respects. There was then noquestion of there having been only#a de-facto adoption. It was in fact ade-jure adoption, and this practice and rule continued in force duringthe first two or three years of the Islamic period. The Prophet of Islam(O.W.P.B.) too had an adopted son (Al-Quran, Sura 4; v. 36 to 40and Notes 3722 to 3724 of Yoosoof Ali in his translation) namedZAID son of Haritha whom he had adopted under the old dispensation.Zaid's marriage was not successful and he divorced his wife whothereafter wished to marry the Prophet of Islam. This could not bedone under the then existing law. It was in these circumstances thatthe injunction referred to above, namely, Quran Ch. 33, v. 4 wasrevealed. This verse reads, "ALLAH HATH NOT MADE FOR ANY MANTWO HEARTS IN HIS (one) BODY. NOR HAS HE MADE YOUR WIVESWHOM YOU DIVORCE BY ZIHAR.YOUR MOTHERS. NOR HAS HEMADE YOUR ADOPTED SONS YOUR SONS …". The reference toZihar is to what was then a well established legal divorce procedurewhereby a man divorced his wife by using the formula of comparingher to his mother and thereby letting her know that co-habitation withher thereafter will be akin to his doing so with his- mother and socannot and will not take place in the future.
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The pernicious provisions of both Zihar and adoption were sweptaway by this verse. The institution of adoption with all its attendantcircumstances was abrogated. This included the right to inheritancewhich had hithertofore been enjoyed by the adopted son. Theabrogation was completed by the words in verse 23 of Ch. 4 of the
Holy Quran, "PROHIBITED FOR YOU (for marriage) ARE(those
who have been) WIVES OF YOUR SONS PROCEEDING FROM YOURLOINS". There is no mention made of wives of adopted sons.
Only consanguinity could give rise to this type of prohibition inmarriage. An adopted son does not have that relationship to theadopter and so, his erstwhile wife was not made unlawful to theadopter. The'Holy Prophet of Islam married the wife of Zaid after Zaidhad divorced her. It was in these circumstances that in verse 4 ofChapter 33 was revealed. It swept away the institution (de jure) ofadoption and its attendant consequences, rights and obligations. Zaid.son of Haritha was at times referred to as Zaid, son of Mohammed.This aspect of adoption was also specifically done away with, by verse40, which reads as follows, 'Muhammed is not the father of any ofyou men."
Therefore, I am unable to accept the contention that it was only a defacto adoption that was referred to and discussed by the Privy Councilin the case of Mohammed Umar Khan v. Mohammed NiyazudeenKhan (19).
The law which prevailed amongst the Arabs in pre-lslamic times,continued amongst them even after the advent of Islam, unless it hadbeen abrogated or modified by the Holy Quran and/or the Hadiths. Ifnot abrogated of modified, it became part of the law of the Muslims,and along with the new law specially made by the Quran and/or theHadiths they became the body of laws now referred to as the MuslimLaw. One such law which underwent a change with the Quranic. Revelations was the law of inheritance. The son (and in the old dayseven the adopted son) inherited everything including the women in thehousehold of the deceased. This too is changed and abolished. Videv. 19 of Chapter 4 which reads. "OH YE WHO BELIEVE YE AREFORBIDDEN TO INHERIT WOMEN AGAINST THEIR WILL ..Again,in verse 2 of the same Chapter we find the injunction, "AND MARRYNOT WOMEN WHOM YOUR FATHER'S MARRIED'.
CAAzhar Ghouse v. Mohamed Ghouse (Jameel'iJ.I'81
The son was the universal heir. The daughter, thf wife, the motherand the father inherited nothing. The change effectec/'by the Quranwas to grant specific shares tq the daughter, the mother, the fatherand the wife. No mention is made in the Quran abbit- the son as anheir to any particular share. Thus th£ son took the residue, that is afterthe specific shares were given to those designated h the Quran, ascustomary agnatic heir as of old. That became the rile of inheritancein Muslim law. It is in this context that the adop:ed son becamedisqualified in Muslim law to inherit as the Quran srid, that he was noson at all. This rule disqualifies the adopted son from inheritance to theadopter. This is a rule of inheritance and, under sec: 2 of Caption 61is now part of the law of Sri Lanka.
ACKNOWLEDGEMENT is a method of filiation tnat is known to andrecognised by Muslim law. Indeed, it is the only other method, otherthan birth in lawful wedlock, known in Muslim law. But, for this methodto be operative three conditions must co-exist, nanheV:-
The ACKNOWLEDGER and the ACKNOWLEDGED must be ofsuch ages that they are capable of being regarded as father and
son.
The ACKNOWLEDGED must be of unknown descent for ifparentage is known no acknowledgement impossible.
Acknowledgement is therefore, not applicable to either one or theother of the children who are parties to the cases under review.
The ACKNOWLEDGED must believe himself to be a child of theACKNOWLEDGER, except when he cannot consent due toinfancy (Vide Ameer Ali, Vol 2, p. 220).
The two adopted children before us will not qualify under this thirdclause either as their birth certificates will negative such a claim.
Muslim law therefore, does not secognise the validity of any modeof filiation where the parentage of the person adopted is known tobelong to a person other than the adopting father (or mother for thatmatter) and the adopted child (or Mutabanna) has no rights in theestate of his or her adopting parents. Mohamed Abdul Khan v.Mohamed Ismail Khan (supra).
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These were th? reasons which led Muslim jurists to postulate thatthere are four rreans of inheritance in Muslim law. (See Fath UdDayyan by Seyyed Mohammed Ibnu Ahmed Lebbe – Englishtranslation by S J. Aniff Doray 1963). They are
Inherence by lineage;*
Inherence by marriage ties;
Inheritance by a slave obtaining freedom; and
Inherittnce by public body – Baithul Mai. or- PublicTreasure.
Adopted children do not come under any one of these categories.They are not in ,the ineage of the deceased adopter.
Lineage, is defined in the Shorter Oxford Dictionary as-
Linealidescendant from an ancestor; ancestry; pedigree.
One's ancestors collectively; the descendants of aspecified ancestor; a tribe or clan.
and the word Chid is defined as, the offspring of human parents;descendants; members of a tribe or clan. The following meanings arealso given, namely: expressing Origin; extraction; dependence;attachment or natural relation to a place or time; circumstance ofbirth, ruling, or quality.
Strouds Judicial Dictionary, Vol. 5, p. 2628 states:
"But when by foreign law children illegitimate by the Law ofEngland are not admitted to full status of lawful children but arerecognised as merely entitled to the rights of a natural child, suchpersons are, NOT LINEAL ISSUE, but are STRANGERS IN BLOOD."(Re Atkin, 2 Ch. -Div. 100)
In the University English Dictionary.by Patterson, Lineage is defined as,descendants in a line from a common projenitor; Race. In Roget'sThesaurus, as derived from the word kindred. Lineage is given themeanings, consanguinity; blood relationship, as derived from the wordpedigree, the meaning line or family and as derived from the wmrdposterity the meaning straight descent; sonship; filiation;primogeniture.
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In Webster s New Colliegiate Dictionary, Lineage is defined as,"Descent in a line from a common progenitor, A group of personstracing descent from, a common ancestor regarded as its founder."
Adoption according to Webst^'s Dictionary means, "To takevoluntarily (a child of other parents) as one's own child."
Thus, by definition, jn adoptee cannot be in the same lineage asthe adopter. Indeed, adoption was a procedure commonly resortedto in order to provide an heir where none exists in the line ofdescent. An adopted child cannot be in the lineage of the adopterand so cannot qualify as an heir under Muslim iaw.
Al-Haj Moulana Fazlul Karim in his translation (1939) of the Hadisas collected and documented in Miskat-UI-Masabih, in Book 2,Chapter 22, under the heading Inheritance', at page 328, underthe sub-head 'Distribution of Property' states:
"The assets left by the deceased must be dealt with in Islam inthe following order of preference:
Funeral expenses.
Satisfaction of debts (All-Quran, s. 4; v. 1 1).
Payment of bequests if any to the extent of 1/3 rd of thetotal assets, and
To divide the residue among the heirs."
The rules to be observed in the division are'the following :-
Firstly, the SHARERS (Ashabe-farz) will get their shares asfixed by Allah. (Ibnu Abbas reported from the Messenger ofAllah (O.W.P.B.) "Pay the fixed shares of inheritance to thepersons entitled to them, what remains thereafter is for thenearest male person." Agreed.)
Secondly, the residue shall be. divided among suchresiduaries as are entitled to the residue.
In default of the first, the second will take the whole.
The distant kindred. ■
84Sn Lanka Law Reports[1986] 1 Sri L. R.
In default of the first and second, the third will inherit, except inone case.
In default of these three, succession will go to one held by Wala("Amr-bin-Shuaib reported that the Messenger of Allah(O.W.B.P.) said, 'He whc^inherits property, inherits Wala").
If that does not occur in a case it will go to the acknowledgedkinsmen. That is a person of unknown descent in whose favourthe deceased has made an acknowledgement of kinship, notthrough himself but through another.
In default, it will go to the universal legatee. That is a person towhom the deceased has left the whole of his property by will(Initially, the will, will be held to be valid for 1 /3rd only. But ifcategories (1) to (5) above are absent, then, the universallegatee will get the whole. To that extent, the will of a Muslimgranting the whole of his property to one person could be givenvalidity in these circumstances.
In default of (1) to (6) above, the property will escheat to theBaithul-Mal, or Public Trustee.
In default of the Baithul-Mal, it will go to the leaders of thevillage of the deceased for distribution to the poor (Abu Daugrecords, Beraidah as having reported that a man of the Khuja’adied. He came to the Prophet (O.W.B.P.) with his heritage. Hesaid, "Search for it an heir or blood relation". They did not findany heir or blood relation. Then, the Messenger of Allah(O.W.B.P.) said, "Give it to the leaders of Khuja'a").
An adopted child, not being a consanguine cannot find a placeamong any of these eight categories. Such a child is not a bloodrelation to the deceased.
Both learned counsel for the respondents before us contended thatby sec. 6 of Cap. 61, the adopted child is for all purposes deemed tobe a child born in wedlock of the adopters. By this it is suggested thatthe deeming was not only with regard to the status of sonship but alsoto consanguinity. That is to say, that the blood of the adopters (boththat of the husband and that of the wife), is deemed to be flowing inthe veins of the child adopted by them. To my mind, this would becarrying the deeming clause to realms beyond reason and is totallyunjustified by any of the well-known norms of interpretation.
CAAzhar Ghouse v. Mohamed Ghouse (Jameel, J.j85
Learned counsel for Yamin Ghouse contended that, while a naturalperson is deemed to be and is vested with all possible and knownrights except those that the law has specifically withdrawn from himthe artificial person or the legal person such as an incorporatedcompany or a statutory office created by a legal fiction, on the other■ hand enjoys only such rights as are specifically conferred on it bystatute and none other. Although an adopted child is a real humanbeing yet, the status he enjoys by reason of the adoption order is onethat is artificially created by law. On a parity of reasoning therefore hecannot be said to enjoy more rights than tlie law specifically conferson him. He is granted the rights that are enjoyed by a child born inlawful wedlock subject however, to the specific provisions of theOrdinance. He will not be conferred with rights that arise out ofconsanguinity. Indeed, our Adoption Ordinance has very carefullydeprived him of such rights as will devolve on him and on his adoptiveparents and others had the deeming clause conferred' on himconsanguinity as well.
By reason of being deemed to be born in lawful wedlock rightspertaining to maintenance; guardianship; control of education;domicile etc; as between the child'and the adopters are to beregulated as detailed in Cap. 61. On the other hand, if the child wasalso consanguine its adopting parents, should-
Be entitled to inherit drom and be inherited'by the child, and
Be not entitled to marry the divorced or widowed spouse ofthe child.
Further, the child's siblings will not be lawful to the child in marriage.Moreover, they will enjoy mutual rights of inheritance with the child.Sec. 6 (3) of Cap. 61 by it's various provisos deprives the adoptedchild of –
Right, title or interest in any property devolving on "any child" ofthe adopter by virtue .of any instrument executed prior to thedate of adoption.
Any right to property that devolves on "any descendant" of theadopters from any fidei-commissa in favour of "thedescendants", and
Any rights devolving on the "heirs ab intestate" of any child bornin lawful wedlock of the adopter, and
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under sec. 6(3)(£>), the adopted child is deprived of succession(whether by will or ab intestate) jure representationis the adopter, andby sec. 6(5) the adopter and those claiming through him (who wouldbe entitled to do so otherwise) cannot inherit from the adopted childand sec. 1 5 confirms the position of want of consanguinity betweenthe adopter and the adopted, for it states "NOR SHALL ANYTHING INTHIS PART CONTAINED PLACE AN ADOPTING PARENT OR ANADOPTED CHILD AS AGAINST EACH OTHER'S RELATIVES BYCONSANGUINITY OR AFFINITY WITHIN THE DEGREES WITHINWHICH MARRIAGE IS PROHIBITED BY THE PROVISIONS OF ANYOTHER WRITTEN LAW".
It will thus be seen that the adopted child, by reason of the adoptionorder is granted all the rights and duties of a child born in lawfulwedlock except those which are specially referrable only toconsanguinity. A careful analysis of the several sections of theAdoption Ordinance shows that the legislature has very specificallydeprived the adopted child of such rights as would have accrued to it ifit had been consanguine with its adopting parents. I am thereforeinclined to the view that those special provisions, far from supportingthe arguments of learned counsel for the respondents, in fact detractsfrom the contention that the adopted child is deemed to be not onlyborn in lawful wedlock but also deemed to be consanguine. Lineage,which implies consanguinity is one of the prerequisites to heirship inMuslim law. Accordingly. I hold that a child adopted under ourAdoption Ordinance Cap. 61 does not qualify to be an heir underMuslim law.
"DEEMING", as used in legislation is a contrivance use to givesomething a meaning and quality either in addition to its normalmeaning and qualities or .to include, a meaning or quality it wouldnormally not have. In this instance it is utilized to give the person whois in fact adopted the status of a person born in lawful wedlock to theadopters. By sec. 6(1) of Cap. 61 all rights, duties, obligations andliabilities of a parent or guardian in respect of future maintenance;custody and education are transferred from its natural parents to itsadopting parents and for these purposes the child is deemed to havebeen born in lawful wedlock of the adopters. This deeming iscomplemented by the provisions of sec. 6 (2), whereby the child couldbe given the surname or family name of the adopter. It is such adeeming that the Holy Quran denied to an adopted child fourteen
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hundred years ago. The second half of verse 4 of Chapter 33 of theHoly Quran recites “SUCH IS ONLY YOUR (manner of) SPEECH BYYOUR MOUTHS. BUT ALLAH TELLS (you) THE TRUTH AND HESHOWS THE RIGHT WAY", and in the very next verse, verse 5"CALLED THEM BY (the- names) OF THEIR FATHERS. THAT ISJUSTER IN THE SIGHT OF ALLAH. BUT IF YE KNOW NOT THEIRFATHERS.(names call them) YOUR BROTHERS IN FAITH OR YOURMAULARS (freedmen). BUT THERE IS NO BLAME ON YOU IF YOUMAKE A MISTAKE THEREIN (what counts is) THE INTENTION OFYOUR HEARTS; AND ALLAH IS OFT RETURNING. MOSTMERCIFUL." This deeming, under Cap. 61 proceeds to impute notmerely legitimacy to the adopted but a lawful wedlock to the adoptereven when the adopter is a bachelor or a spinster or a celebate.Whoever may be the adopter, the child will be deemed to have beenborn to him or to her as though in lawful wedlock.
Mulla, 1955 Edition, at p. 293. makes reference to the case ofAyub Shah v. Bablal (20) where it was held, that although a Muslim inIndia could according to the law of his native state (such as Punjab; orOudh) adopt a son, such a son cannot suceed to property in India inthe absence of evidence establishing a custom to that effect. See alsoHAMEEDA v. BALDEENwhich case too, is quoted in M'ulla in Ch. 6, at •p. 45..
t ■ ' .
There is no evidence that, such a custom ever prevailed in Sri Lanka.,The law obtaining in Sjri Lanka as stated by Louise Nell,'Q.C.. shows-the contrary.. In ' his ..book, 'Mohammedan Laws . ofCeylon – Inheritance', at p. 41, under the heading. "General 'characteristics’ he records: "Adoption is not recognised as conferringany rights'on the children adopted". The case of Perera v. Khan (supra)shows that in 190'5 Louis Nell was cited as an authority on the Muslimlaw'as it obtained then.in Sri Lanka.
This has been the law followed by the Muslims of Sri Lanka all along
Me Naughton. in his 'Principles and Precedents of Mohammedanlaw' (supra)', at p. 86, records case No. 6:-
"0;- What rights pertain to a person legally adopted?
A.-AdOpted son has no claim on property of adopting father even ifleft destitute."
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The question framed is in respect of a legal adoption and not merelya de facto adoption.
Citing the case of Cohen v. Minister of the Interior (supra) counselfor the respondents in the Negombo case contends that the adoptedchild is deemed to be clothed with the flesh and blood of the adopterand that therefore the law could and does confer not only the status ofa child born in lawful wedlock but also consanguinity. The corpus inthat case was a Jew born in Russia. He was adopted in South Africaunder the provisions of the South African Adoption Ordinance No. 25of 1923 (very similar to our Cap. 61). Cohen Snr.. the adopter, hadacquired South African nationality by naturalisation. It was held that"as far as the law can possibly make it so. the law has made the childyour own flesh and blood". I cannot agree with the contention oflearned counsel for, firstly, the House of Lords was not faced with aconflict situation when it decided that case; and secondly, what thisdecision can be taken to mean is not that it conferred consanguinitybut only all rights and privileges short of consanguinity which willdevolve on a child born in lawful wedlock. There are many such rightswhich one may claim not because of consanguinity but because ofbeing deemed to be born in lawful wedlock. That is to say, as amember of the family unit. For instance, statutory tenancy under ourRent Act. deductions and exemptions under the Tax Laws, inter familytransfers tinder the Land Reform Laws, an extra house under theCeiling on Houses Law and may be inclusion of the name of theadopted minor child in the passport of the adopter.
In all these cases the right is not dependent on consanguinity but onthe fact of being deemed to be born m lawful wedlock and so to becounted in and treated as a member of the family unit.
"FOR ALL PURPOSES WHATSOEVER" in sec. 6(3) of Cap. 61 ispart ol a later general law and so cannot override the earlier speciallaw of inheritance brought in by sec. 2 of Cap. 62. It was conceded inthe course of the argument that under pure Muslim law an adoptedson does not inherit from the estate of the adopter
It was submitted by the learned counsel that the deceased lady,Mrs. Hafeela Ghouse (in the Mt Lavima case) had named therespondent Yamin Ghouse as the residuary heir to the estate ol herlate husband and that she thereby indicated her intentions, namely,that Yamin should be treated as her heir, as well and that she intended
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that the full scope of the Adoption Ordinance should apply to herestate as well. The intentions of a deceased, excepting so far as isexpressed in a duly constituted will, (and in the cases before us thereare no wills) are irrelevant when considering the rules of intestacy. Heract of nominating Yamin Ghouse as an heir to the estate of her latehusband has been challenged. In these circumstances, her not makinga will in favour of Yamin Ghouse can only mean that she did not intendgiving him anything which the Muslim law of intestate succession willnot give him.
, An adopted child is not the only category of persons who aredeprived of rights to inheritance. Whether a child be born in lawfulwedlock or whether he is deemed to have been born in lawful wedlockhe could still be deprived of his right to inheritance, as for instance, onapostacy or on account of becoming the causer of the death of theintestate.
In spite of being deemed to be bom in lawful wedlock-, an adoptedchild cannot qualify to be treated as an agnate. Under Shafie Law, it isonly an agnate who can act as a Wali'or marriage guardian of a Muslimgirl. [Vide Minhaj et Talibin by Navavi, p. 284/285).
Hammudah Abd Al Ati, in his 'Family Structure in Islam' (supra), atp. 1 94 states:
"Even beyond the realm of possible implications (of illegitimacyand its consequences) one consequence of adoption is almostcertain. When an alien child is fully adopted by new parents it will-probably upset the whole structure of kinship as regards inheritance;provisions; solidarity and perhaps marital chances. It may deprivenatural relatives from their God given rights or exempt them fromtheir God ordained duty and thus, tamper with the order of society.Tampering with the natural priorities of the kinship system maygenerate at least covert hostility and/or estrangement among thekin. This is clearly contrary to the teachings of the Quran".
For these reasons therefore, I would allow the appeal in both casesand set aside the respective judgments entered in them as I hold thatneither one nor the other of these adopted children is an heir to hisrespective deceased adopter. The respondents will pay to theappellant costs in both courts. I have read the judgment ofSeneviratne, J. (President. C.A.) and Siva Selliah, J. but. regret that Iam unable to agree with the conclusions reached by them.
Appeal dismissed.