NEW LAW REPORTS OF CEYLON.VOLUME X.
Present: Mr. justice Middleifcon and Mr. Justice Wood Renton. ]
MANGANDI UMMA v. LEBBE MARIKAR.
D. C., Colombo (Testamentary), 2,257.
Mohammedan Law—Special laws relating to Moors or Mohammedans—
Heirs on father's side and on mother’s side—Division of estate.
Where a Mohammedan died childless leaving as next of kin a-daughter (the administratrix) of his deceased father’s sister, and'the petitioner- and four others who were the son and daughtersof two sisters of the intestate’s deceased mother—
Held, that the petitioner was entitled to two twenty-sevenths and'the administratrix to eighteen twenty-sevenths of the intestate’sestate.
Middleton J.—Where the heirs to the estate of a deceasedMohammedan are equal in degree the persons related on thefather’s side are entitled to double the share of the persons related,on the mother'a>side.,
HE petitioner, who was a son of one of the sisters of thedeceased mother of the intestate, who was a Mohammedan and'
whose estate was being administered in this – suit, applied that' 'theCourt do order the administratrix to transfer in his favour two-tenths'share of certain premises forming part of the intestate’s estate.
The administratrix, who was a daughter of the intestate’s deceased,father’s sister, contended that the petitioner was only entitled to-two twenty-sevenths share according to the Mohammedan law.
The District Judge having held in favour of the petitioner, the-administratrix appealed.
1J. N. A 99907 (8/50).
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1906.Jayewardene, for administratrix, appellant.—By section
November 8. 53 0f Code of 1806 all descendants are entitled to their respectiveshares of inheritances according to the persons they represent, andfathers' brothers’ and mothers’ sisters’ children are entitled to thesame shares as sons and daughters. The principle that males shallreceive the double of. females in the same degree is there recognized.It seems to have been intended to draw a distinction between theancestors according to the side (father’s or mother’s) on which theyare related (Nell’s Mohammedan Lava, p. 15). The person relatedon the father’s side is entitled to double the share given to theperson related on the mother’s side (Ameer Ali, vol. 2, p. 6.1, andSir Roland Wilson’s Mohammedan Laio, pp. 314, 316, and 305).
Schneider, for the petitioner, respondent.—The petitioner, andthe respondents are related in an equal degree, and the males wouldget . double of the females. Section. 63 merely enunciates thatprinciple (Ameer Ali’s Student’s Manual, p. 23). The property mustbe divided with reference to the sex and number of the claimants(Ameer Ali, p. 62).
E. W. Jayewardene, in reply.-—The share would be regulated bythe number and sex ■ of the persons existing when the inheritanceopens, provided the persons through whom the claimants are con-nected with the deceased are of the same sex, or provided the sexof the roots agrees (Ameer Ali, p. 62).
Cur. adv. vvlt.
8th November, 1906. Middleton J.—
The petitioner, respondent, applied in these testamentary, pro-ceedings that the Court should order the transfer to him by theadministratrix, appellant, of two-tenths share of certain premisesforming part of the estate being administered.
The Court made the order prayed for, and the administratrixappealed on the ground that under section 63 of the SpecialLaws concerning Moors or Mohammedans the. petitioner was notentitled to so large a share of the estate, That section runs. asfollows: —
“ Lastly, agreeable to the same rule, all descendants are entitledto their respective shares of inheritances according to the personsthey represent in the same manner as: a wife or her descendants,a full brother or his descendants, paternal uncle and full uncles andaunts and their children, and their descendants if there be nonearest kin, fathers’ brothers’ and mothers’ sisters’ children areentitled to the same shares as sons and daughters.’’
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The deceased died childless, leaving as next of kin only the1906.
administratrix, who was a daughter of his deceased father’s sister, November Sand the petitioner and four others, who were the son and daughters Mmsissovof two sisters of the intestate’s deceased mother.
Thu contest-is therefore between a female cousin on the father’sside and four male and one female cousins on the mother’sside.
It was admitted by counsel for the respondent that if the appel-lant’s contention was held to be correct the petitioner, respondent,would be entitled to two twenty-sevenths and the administratrix toeighteen twenty-sevenths.
The rule referred to in section 63 is evidently that which ordainsthat males shall receive – the double of females in the same degree.
It may further be gathered from the section that. the doctrine ofrepresentation appertains in the cases mentioned, i.e., her descend-ants represent a wife and her children, a paternal uncle if there beno nearest kin.
The paternal uncle would, as Nell, p. 15, says, let in the half-brother of the father, and his children would receive what theirfather was entitled to. Full aunts and uncles of a deceased wouldderive what they were entitled to through the grandfather andgrandmother of the deceased, who in their turn would succeed to. thedeceased through his father and mother.
Section 63 does not specifically provide for the case of fathers’sisters’ children, but only for fathers’ brothers’ children and mothers’sisters’ children, apparently drawing a distinction, as Nell, p. 15, says,between his ancestors according to their sexes.
The administratrix’s mother twas full aunt of the deceased, taking“ full aunt ” to mean that she . was the daughter of the same fatherand mother as the deceased’s father.
I do not thinks we are entitled to do more than refer to the generalprinciples of the Mohammedan law of inheritance to enable us toconstrue the obscure portion of our own Code. ^
Ameer Ali, at page 40, vol. 2, states that neither the Sunnis nor theShiahs recognize the principle of representation as a general riile,and' he gives certain exceptions in regard to the succession of thecognates.
It would appear also from the same author (page 15) that Shafeiwas the founder of a school whose doctrines are generally followedamong the Mussulmans of Ceylon.*
He also says at page 92 that the Shafeis are in general accordwith the Hanafis on the broad principles upon which the Sunnisystem of classification is based.
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1908. As regards the shares and the classification of the Zaril FuruzNoa/ember 8. (person specified in the Koran as shares) there is no differenceMdmmoii between the Shafeis, Malikis, and Hanafis (page 94, Ameer Alt), andJ, although according to the primitive Shafei doctrines the succession-of cognates' was not recognized, now it has been held that they are'entitled to succeed to the exclusion of the Beit al Mai:
I can find nothing in the chapter in Ameer Ali relating to theShafei rules of succession which would guide me in disposing of theclaims of these agnates and cognates, and I feel therefore con-strained to hold in conformity with the Hanafi doctrine at page 61(Ameer All) that the sides being equal in degree the person relatedon the father’s side is entitled to double the share of the personrelated on the mother’s side.
The administratrix and the petitioner are both cousins in thefourth degree, but the administratrix is related on the father’sside.
In my opinion therefore the order of the District Court must bevaried by ordering that two twenty-sevenths be transferred to thepetitioner, and this appeal must be allowed with costs.
Wood Renton J.—
I agree. The contest is between a paternal and a maternal cousin•of equal degree. I think that the effect of section 63 of the Code of1806 is to introduce into Ceylon the rules stated by Ameer Ali (II.,p. Cl), that, under such circumstances, the person related on thefather’s' side is entitled to double the share given to the person.related on the mother’s side.
MANGANDI UMMA v. LEBBE MARIKAR