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IBRAHIM SAYIBU v. MUHAMADU.
D. C., Kandy, 10,615.
Mohammedan Law—Law to be resorted to where the Code of MohammedanLaw is silent—Right of Mohammedan widow having children byher deceased husband to sell his property for the payment of debtsincurred by him—Common Law of Ceylon.
Actions between Moormen should primd facie be governed by theCode of Mohammedan Law adopted in 1806 for Moors living in theProvince of Colombo, and extended by Ordinance No. 5 of 1852 toMoors residing within the Kandyan Provinces ; but when the Codeis silent on any point, resort should be had to the Common Law ofCeylon.
Where a Mohammedan widow having children by her deceasedhusband sold his property for the payment of debts, due by thehusband—Held, following the decisions reported '5 S. C. C. 70,
8 S. C. C. 205, 2 N. L. R. 26, that the widow v ;fied in sellingthe property.
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A MOORMAN named Adam Pulle, who died some time before1872, was possessed, among other lands, of a small piece ofland the subject of the present action. He died intestate, leavinghim surviving a widow, named Suma Amma, and two infantchildren, Segu and Abubakker. The intestate’s landed propertyhad been hypothecated, and the debt was subsisting at the time ofhis death. On the 19th January, 1872, the widow sold and con-veyed to one Isa Lebbe the land now in dispute, for the purposeof paying his mortgage debt. There was no suggestion that thesale was an improper one, or was anything but a proper exerciseof the duties of an administrator. Isa Lebbe held possession ofthe land without any dispute until 1895, when by deed dated 28thDecember, 1895, he sold and transferred the land to the plaintiff.The children, Segu and Abubakker, who were by that time of fullage, would seem to have been advised that there was some infirmityin plaintiff’s title, for immediately after the sale to him they pur-ported to sell and convey the same land to the defendant by deeddated the 2nd January, 1896. When the plaintiff went to takepossession of his recent purchase, he found himself obstructed bythe defendant, and therefore he brought the present action.
The District Judge found as a fact that Isa, the predecessor in titleof the plaintiff, had had prescriptive possession of the land fora period sufficient to bar the claim of Segu. He however thoughtthat under the circumstances the transaction must stand. Thedefendant has appealed.
Van Langenberg, for appellant.
Domhorst, for respondent.
10th March, 1898. Bonsek, C.J.—
This is an action between two Moormen, and would prima faciebe governed by the Code of Mohammedan Law which was adoptedin 1806 for Moors living in the Province of Colombo, and extendedby Ordinance No. 5 of 1852 to Moors residing within the KandyanProvinces. [After stating the facts of the case, his Lordship con-tinued—]
The Code of Mohammedan Law to which I have referred is silentas to the power of a widow to administer the deceased husband’sestate, and, that being so, I think we must resort to the law of theIsland. It was laid down so long ago as the time of Chief JusticeSir Edward Creasy, that a surviving spouse can alienate the propertyof the estate to pay debts, and this decision has been followed inthe case of Wijeratna v. Abeyweera (5 8. C. C. 70), in the caseof Pasupathy Chettiar v. Cantar Pandary (8 S. C. C.
205), and in case of Hadjiar v. Hendrick Appu et al (2 N. L. B. 26),in which last case the right of the surviving widow to mortgage theestate of a deceased husband for the purpose of paying his debts wasupheld.
The present case is one in which the Court will be anxious touphold the bond fide sale which took place more than five andtwenty years ago, if it can possibly do so, consistently with soundlegal principles.
I think, therefore, that in this case the widow was justified inselling the property. The appeal is dismissed with costs.
IBRAHIM SAYIBU v. MUHAMADU