ABDUL RAHIMAN et al. v. USSAN UMMA et al

038-NLR-NLR-V-19-ABDUL-RAHIMAN-et-al.-v.-USSAN-UMMA-et-al.pdf


( 175 )
Present: Emiis J. and Schneider A.J.
ABDUL RAHIMAN et ah v. USSAN UMMA et ah
48—D.C. (Inty.) Chilaw, 5,218.
Antenuptial contract among Muhammadans—Validity.
An antenuptial contract regulating succession to propertyentered into between Muhammadans in Ceylon is not invalid.
rjl HE facts are set out in the judgment.
The agreement was as follows: —
On the 9th day of December, 188.6, at Chilaw.
Enow all menby these presents that I,Lena MeeyanaMeera Saibo
Lebbe, of Chilaw, in Anaivilundan pattu, 'on the first part, and I,Habibu Mohammado Beebi, the daughter of Seyado MohammadoMawlana, of the same village, on the second part, do hereby bindourselves and declare as follows: —
As I the said Lena Meeyana Meera Saibo Lebbe am about tomarry the saidHabibu Mohammado Beebiaccording toourMuham-madan religion,the properties I would transfer to thesaidHabibu
MohammadoBeebi after my marryingher, and thoseshe wouldget
from her parents, shall be possessed by her all her life, and after herdemise theyshall devolve on thechildor childrenborato her byme.
In the event of there being no issue to her by me by no children beingborn, or – by the demiseofthechildrenborn,the properties I transfer
tohershall devolve onmy heirs,and thoseshe inheritsfrom her
parents shall devolve on her heirs.
Aftermy marryingthe said girl,if shewere to predecease me,
either leaving orwithout leaving children bornto us, or intheevent of
her gettingherself divorced frommeaccording toourreligion asher
desire, orin the eventofhermarriagewithanother husband as she
may desire,she shall hold andpossess only thoseproperties whichshe
gets fromher parents,and sheshallhave neither shares nor rights
whatsoever in and to the properties I shall transfer to ber and otherproperties I hold in my name.
,3. I, the aforesaid Habibu Mohammado Beebi, of the second part,am being about to marry the said Lena Meeyana Meera Saibo Lebbeaccording to our religion, in the event of children being born to me byhim after my marriage with him, the properties he is now possessed ofinthisIsland of Ceylon,and thosehe and Imay acquirethereafter,
shall be held and possessed by him all his life, and after his demise mychildren by him on their attaining majority shall hold and possess inshares they are entitled to according to the religious law.
4. After my marrying the said Meera Saibo Lebbe, if he were topredecease me, with or without issue by me, or in the event of hisdivorcing me according to our religious law, he shall hold and possess
1916.
( 176 )
1916.
AbdulRohimanv. XJaaanVmma,
all the properties o£ every sort in his name and those which he transfersto me of hisownaccord, and thepropertiesI inherit from myparents
shall be held and possessed by me all my life, and that he shall haveneither shares nor title whatsoever in and to the same.
We both parties havingagreedto theseveral foregoing conditions
this was executed, and have bound ourselves, our heirs, and legalrepresentativesto treat thisas avalid agreement. In witnesswhereof
we have Set our signatures to three copies of the same tenor as this,witnessed byW.AnthonyJuanFernandoof Chilaw, SlemaLebbe
Sinnetamby of the same village, and Juan Kitchell Haniffa of thesame village.
Attested by Joseph Fernando,
December 9, 1886.Notary Public.
Bawa, K.G. (with him A. $t. V. Jayewardene), for appellants.—The Boman-Dutch law has no application. Muhammadan lawis a personal law, and if itcan beshownthat such contracts are
invalid under Muhammadanlaw, itshouldnotbe upheld. Among
a polygamous people, such a contract is contrary to natural justice.The passage from Badd-al-Muktar, quoted by the witness AbdulKudus, shows that such contracts are invalid under Muhammadanlaw. Counsel cited 36 Cal. 23; section 67 of the Ceylon Muham-madan Code; Munhaj et Talibin, bk. 34, s. 1; Ameer All's Muham-madan Law (3rd ed.) 42; Abdur Rahaman’s Muhammadan Law284, 286 and 299; 17 Bom. 1;9 W.R.257; 7 Bom. 170:
Madras W. R. {1913) 371;16 N.L. R.71;16 N. L. R. 425:
17 N. L. R. 338.
Aralanandan (with him Drieberg), forrespondents.—The
authorities cited do not establish the fact that the whole bodyof Muhammadan law as prevalent in India was imported into andobserved in Ceylon. The sources of Muhammadan law in Ceylon arethe Code of 1806 and ancient usage.
When the Code is silent, the Boman-Dutch law has to be invoked(18 N. L. R.- 481)) Counsel cited Vanderstraaten's Reports, 1873-4Appendix B., xxxi.; Grenier's Reports, 1873, Part III., 18; 3 N. L. R.116; 14 N. L. R. 295. The Muhammadans have lived for a long timein Ceylon, and have adopted many institutions from the commonlaw. Transactions such as these are based on local customs, andshould not be lightly interfered with. The document is a validcontract under the Boman-Dutch law and should be upheld.
Bawa, K.C., in reply, cited 2 Bal. 78; 10 N. L. R. 347; 3 Bal. 24;15 Pro. D. 109; 10 Indian Appeals 279; 2 Haggard 48; 3 Haggard218; 4 Haggard 457.
Cur. adv. vult.'
August 22, 1916. Ennis J.—
In this case the plaintiffs are the minor children of one MeeraSaibo Lebbe, who died in February, 1911. Meera Saibo was marriedfirst in India, about forty years ago, to Hassan Ussan Umma,
1916.
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the first defendant in this case, and by her had a child, MohaxnaduAsia Umma, the second defendant, whose husband is the thirddefendant. Meera Saibo came to Ceylon, and being desirous oftaking a second wife, one Habibu Umma (the 4th defendant), heexecuted jointly with her on December 9, 1886, the documentNo. 5,682, of which P 1 and D 20 are the translations put in bythe plaintiffs and defendants respectively. Thereafter he marriedHabibu Umma and had five children by her, viz., the two plaintiffsand the fifth, sixth, and eighth defendants. The seventh andninth defendants are the husbands of the sixth and eighth defend-ants. The husband of the fifth defendant is the next friend of theplaintiffs.
After Meera Saibo's death the Ceylon widow applied for andobtained letters of administration for the Ceylon estate. In thetestamentary suit the Indian widow, her daughter, and son-in-lawwere made respondents. The widow and daughter were representedby the third defendant, their attorney, who was also appointed bythe Court guardian ad litem of the minor Ceylon children. Laterthe first, second, and third defendants were represented by SandiraMohideen Marikar, who was the appointed guadian ad litem of theCeylon children in place of the third defendant. Saudira’s appoint-ment was subsequently cancelled, and Ibrahim Neina Marikar, thehusband of the fifth defendant who at the time of the earlierappointment was in jail, was appointed guardian ad litem of theCeylon minors.
Ibrahim Neina Marikar then petitioned the Court in the testa-mentary proceedings. With regard to this petition, the SupremeCourt in appeal held that the real issue between the parties waswhether the administration proceedings should continue or be setaside, but that the parties had shaped the case in the Court belowin such a form as to render it impossible to dispose of it on its truebasis, the appeal was accordingly dismissed, with a reservation of“ the right of the appellant, if he is so advised, to take independentproceedings, with a view to ascertaining the rights of the children ofthe Ceylon marriage under the agreement No. 5,632. ” As a resultIbrahim Neina Marikar instituted the present case. The plaint setsout the facts, and prays (1) for a declaration of title to a definiteshare of the land, (2) for a declaration that the Indian widow andfamily are excluded under the deed No. 5,632 from inheriting, (3)that the testamentary proceedings (No. 878) be set aside, and (4)for costs and other or further relief. Many issues were framed, andamong them No. i3, “ What was the intention and effect of thesaid document No. 5,632? ” It seems to me that this issuerepresents the true gist of the action; the plaintiffs only seek adeclaration of their rights, if any, under the document No. 5,632,and it appears to have been so dealt with by the Court below. Thelearned Judge held the document to be a valid antenuptial contract;
Emm J.
AbdulRahimanv. U&sanUmma
( 178 )
1916.
Eiraris J.
Abdul
Bakiman
V, U880.71
Umrna
that it vested the Ceylon property in the Ceylon children, and,therefore, that the vesting of the property in the administratrix wasultra vires and of no avail. On these findings he declared theplaintiffs entitled to the share of the land claimed by them. Thefirst, second, third, sixth, seventh, eighth, and ninth defendantsappeal.
It is contended for the appellants that' the document No. 5,632is to be construed according to the principles of Muhammadan law.
A series of decisions show that Muhammadan law applies amongMuhammadans in Ceylon so far only as it is consistent with theancient usages of the Muhammadans of Ceylon, and is not atvariance with express enactment. (D. C. Colombo, No. 29,129;1D. C. Colombo, No. 59,578 ;z Ibrahim Sayibu v. Muhamaduj3Tillekcratne v. Samsedeev ;4 Affefudeen v. Periyatamby.5 There arealso a series of decisions to the effect that once such a usage hasbeen found to exist, Muhammadan law may be looked to elucidateit and supplement it in detail (Tillekeratne v. Samsedeen,4 Lebbev. Thameen,6 Rabia Umma v. Saibu,7 Marikar v. Marikar8).Some of the ancient usages of the Muhammadans of Ceylon areset out in the Muhammadan Code of 1806 and the operationof this Code was extended to all Muhammadans in Ceylon bythe Ordinance No. 5 of 1852. Clearly the Muhammadan law inCeylon is based on usage, and where the Code is silent and noancient custom has been proved, the general law of the Island isthe law applicable. The Muhammadan Code, clauses 67 to 78,mentions one kind of antenuptial contract, viz., that relating tothe marriage gift or maggar. The document No. 5,032 is notsuch a contract. The question of maggar was expressly dealt withbetween the parties in kaduttam, P 3, which recited . theprevious document No. 5,632. The document No. 5,632 deals,inter alia, with property to be acquired, and provides for thedisposition of property to persons not been born. Inasmuch as itis a contract consisting of reciprocal promises, it is irrevocable(except by the mutual consent of both parties), and it is thereforenot a will. It is a document foreign to the principles of Muhamma-dan law, but good and valid by the general law of Ceylon. In thecase in Grenier’s Reports referred to above, a document inter viiioscreating a fidei commissvm was held to be valid in Ceylon, and itwould seem that the Muhammadans ~in Ceylon have adopted andfollowed the "general law of Ceylon in executing such documents.In my opinion the learned Judge is right in- finding the documentNo. 5,632 to be a valid document, as there is nothing to preventMuhammadans in Ceylon from adopting the general law of Ceylon1 Vanderstraaten’s Reports, 1873-4,4 (1900) 4 N. L. R. 65.
App. B., xxxi.
2 Grenier's Reports, 1873, Pt. III.,
p. 18.
4 (1898) 3 N. L. R. 116.
s (1911) 14 N. L. R. 295.« (1912) 16 N. L. R. 71.f (1914) 17 N. L. R. 338.» (1915) 18 N. L. It. 481.
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where there is no ancient custom, any more than there is anythingto prevent them from disposing of their property as they chooseby will Under the provisions of the Ordinance No. 21 of 1844 (KadigaUmma v. Meera Lebbe1).
As to the intention of the document, I agree with the finding onthe last appeal:‘' The deed looked at both as a whole and with
reference to the specially relevant clauses discloses an undoubtedintention on the part of the intestate that the Ceylon propertiesshould go, in the event contemplated by the deed, to the childrenof the Ceylon marriage
The only point argued on the appeal which remains for considera-tion is whether the appellants are entitled at present to any relief.It was urged that they have no interest in the property until theyreach the age of majority. In my opinion the intention of thedocument is that the children are to inherit on the death of theirfather, but are not to have control of the property until they comeof age. Inasmuch, however, as the document does not amount toa conveyance of the property, it was properly inventorized in thetestamentary proceedings, and the appellants are entitled only toa declaration of their rights to the property in the hands of theadministratrix. They are entitled to this relief, as there has been,in effect, a denial of their rights in so far as the Indian heirs havebeen brought into the proceedings. Subject to these observation^I am of opinion that the appellants are entitled to the relief decreed,and would dismiss the appeal, with costs.
1916,
Ennis J.
AbdulRdHitnan.v. UssanUmma
Schneider J.—
One Meera Saibo, a Muhammadan by faith, was married first inIndia about forty years ago to the first defendant, by whor^ he hadone daughter, the second defendant, who is presently the wife ofthe third defendant. In anticipation of contracting a secondmarriage with the fourth defendant in Ceylon, which he was lawfullyentitled to do by the law applicable to him in Ceylon, Meera Saiboand the fourth defendant executed the instrument bearing No. 5,632and dated December r9, 1886. It is written in the Tamil language,is signed by both parties to vit. and is attested by a notary andtwo witnesses. There are two translations of it into English on therecord: P 1 produced by the plaintiffs and D 20 by the defendants.Meera Saibo and the fourth defendant contracted the intended .marriage and had issue, the first and second plaintiffs and thefifth, sixth, and eighth defendants. The seventh and ninthdefendants are the husbands of the sixth and eighth defendantsrespectively. Meera Saibo died intestate in 1911, leaving as hjsheirs his two wives and their children, and, among other property inCeylon, a number of lands, of which a list is appended to the plaint.
i 7 N. L. R. 23.
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1016.
SOHNEDDBRA. J.
AbdulRahimanv. UesanUmma
In testamentary action No. 878 of the District Court of Chilawthe fourth defendant applied for and obtained administration to herhusband’s estate upon the footing that all his heirs .would takeaccording to the Muhammadan law of intestate succession. Sheincluded in her inventory of the estate the lands mentioned in theplaint. She did not disclose the existence of the instrumentNo. 5,632, which I shall after this refer to as P 1. In the testamen-tary action the present next friend of the plaintiffs, who are minors,raised the question, that by virtue of P 1 the Indian widow andchild were excluded from succeeding to the property in Ceylon.He failed in this contention in the lower Court, but on appeal tothis Court, although the appeal, too, failed, he succeeded in obtaininga reservation of the right “ to take independent proceedings, with a .view to ascertaining the rights of the children of the Ceylon marriageunder the agreement No. 5,632.” In the result this action wasinstituted. In their plaint the plaintiffs set out the facts statedby me, and pray, inter alia, that they may be declared entitled tocertain undivided shares of the lands mentioned in the plaint, uponthe footing that the effect of P 1 is to exclude the Indian widowand child from participation in those lands. The action is nothappily framed. The first, second, and third defendants, amongother matters, plead that P 1 is invalid, as being obnoxious toMuhammadan law; but if valid the plaintiffs being minors have” no present claim to any property of the intestate thereunder. ”
A large number of issues was suggested by both parties for trial,all of which were accepted by the Court. But of these issues, I needrefer to the following only, as they were the only ones pressed onappeal: —
“8. Has the plaintiff any cause of action or the right tomaintain this action?
‘' 13 What was the intention and the effect of the saiddocument No. 5,632?
‘ ‘ 18. Can Muhammadans in Ceylon execute antenuptialcontracts regulating succession to property after death?”
I propose to take up issue No. 13 first. By it*I understand it isintended to raise the question of the intention of the parties " in .executing P 1 and what effect the instrument has, granting it to bevalid and effectual to bind the parties.
To my mind it is quite obvious that this instrument has beendrafted by a notary with but an imperfect knowledge of his work.It is important to keep this fact prominently in mind while endeav-ouring to interpret it. It is headed “ agreement ”. It has beenstamped and numbered by the notary as an agreement inter vivos.In general form it is that of an indenture. In the opening lines itsets out that the parties to it bind themselves by it. Its concludingwords are to the same effect, but are made to include ” the heirs
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and legal representatives ” of the parties. Xt expressly states thatthe parties are executing it in anticipation of their intended marriage.The arrangement of the instrument contemplated by the notaryappears to have been to divide it broadly into two parts: one part,consisting of paragraphs 1 and 2, to contain the stipulations orproposals or declarations on the part of the intended husband; theother part, consisting of paragraphs 3 and 4, to consist of those onthe part of the intended wife; in the first of these parts that thehusband should declare what the wife ought to do as regards herown property; and in the other that the wife should similarlydeclare as regards the husband’s property; and finally, that eachparty should severally declare himself and herself bound by allstipulations in the instrument as a whole. Hence the concludingparagraph: “ We both parties having agreed to the several foregoingconditions this was executed, and have bound ourselves, our heirs,and legal representatives.”
If the deed had followed the usual form, the husband would haveagreed in regard to his, and the wife in regard to her, property. Itis because of its peculiar arrangement that what would be covenantson part of each party, I have been obliged to call stipulations orproposals or declarations. I regard the paragraphs 1 and 2 asstipulations proceeding from the husband as to what the wife shalldo or permit in regard to her property in certain events. And theconcluding paragraph as the agreement on part of the wife to thisstipulation. Similarly, vice versa as regards paragraphs 3 and 4.In the events that have happened, it is not necessary to do morethan refer incidentally to paragraphs 1, 2 and 4, but I wouldremark in passing that paragraphs 2 and 4 when read with the otherparts of the – instrument indicate much looseness of language andsome confusion of thought on the part of the draftsman. The issuebetween the parties is mainly concerned with the interpretation ofparagraph 3. The . material part of that paragraph is the stipulationor declaration by the intended wife, “ In the event of children beingbom to me by him the properties he is now possessed of in theIsland of Ceylon and those he and I may acquire shall be held andpossessed by him all his life, and after bis demise, my children byhim on their attaining majority shall hold and possess in sharesthey are entitled to according to the religious law.”
Having regard to the looseness of language and confusion ofthought evident throughout the instrument, I feel that the ends ofjustice will be best attained by construing this passage, not by itsstrict letter, but by the intention of the parties. The intentionapparent all throughout is that upon the death of either spousetheir children should succeed to the property left by them, butthat during their lifetime each spouse should be entitled to andstand possessed of his or her own peculiar property. In the lightof this intention I interpret paragraph 3, taking it with the
17-
1916.
SC&NBIDSf^A. J.
AbdulBahimanv. UssanUttima
( 183 )
1919. concluding paragraph as an agreement by the husband and wife thatSommroEB upon the death of the husband their children shall become entitledA. J- jointly to the property in Ceylon of the husband, a male taking^Lbduitwice as much as a female, and that as each child attains majority,
Bahiman ^e or she shall be entitled to enter into physical possession of his .V-Vmma or her share. I would paraphrase paragraph 3 to read “ and after' his demise my children by him shall hold (i.e. shall become entitledto) and on their attaining majority (i.e., as each attains) shallpossess (i.e., shall be entitled to enter into actual possession).’'
“ In shares they are entitled to according to religious law ” is onlya reference to the principle of the Muhammadan law of succession,under which a male takes twice as much as a female.
The consideration for the agreements on the part of the husbandwas the agreements on the purt of the wife. The instrument, is . anindenture, and by its nature irrevocable, except by mutual consent.For this reason it is not a will. It is so for other reasons' as well.It has none of the characteristics of a will. Its form, its provisions,and the consideration which supports the mutual promises in itdenote that it is an agreement’ inter vivos and not a last will. Tt isnot a deed of gift inter* vivos, because there is no conveyance of title,nor are the lands or other property it refers to duly specified. Itherefore take the view that it is an antenuptial contract oragreement; that it does not operate either as a gift inter vivos orby way of a testamentary disposition, or in any other manner investing title to the lands in dispute in the Ceylon children of thedeceased Meera Saibo. I aim of opinion that- it operates only as apromise on the part of the deceased to give title, and that thefulfilment of this promise depends on . the death of the deceasedleaving issue.
I now come to issue No. 8. It raises two questions: (1) Havethe plaintiffs a cause of action?- (2) Can they maintain thisaction? I believe the contention of the defendants-under the firstpart of the issue was that no rights whatever vested in. the plaintiffstill they attained majority; and hence this, action was- premature.I hold against this contention, first, because I have already pointedout that, in my opinion, upon the death of Meera Saibo his promisebecame enforceable, that his Ceylon children, among whom arethe plaintiffs, should succeed to the dominion of his property inCeylon.: But even if the vesting of the dominion be postponed tothe attainment of majority, the plaintiffs would still have a causeof action entitling them to maintain this action, in that the first jsecond, and third defendants deny the validity of the agreementNo. 5,632, and the result of the administration proceedings will• be to distribute the property in Ceylon in contravention of theprovisions in P 1.
The second part of this issue, as I understand it, raises the questionwhether (assuming the validity of P 1 and its effect as being- that
f 185 .)
the plaintiffs can claim a fulfilment of the promise immediately)the plaintiffs can maintain this action in its present form. It isframed essentially as an action for a declaration of title (videparagraph 21 and the prayer of the plaint).. There can be no doubtthat the plaintiffs ’ action is bound to fail in so far as it prays for adeclaration of title to the lands. But it is maintainable as anaction for a declaration of such rights as they are entitled to underor by ■virtue of the agreement No. 5,682.
There remains the 18th issue, as to the competency of Muham-madans in Ceylon to enter into antenuptial contracts regulatingsuccession to property after death. * In connection with this issuethere was never the least suggestion that the principles of the Muham-madan law as obtaining in India should be accepted, whetherthey were recognized in Ceylon or not, because Meera Saibo's homeof origin was Southern India, as alleged in the petition of appeal.The argument on appeal proceeded on the assumption that it wasthe Muhammadan law as it prevails in Ceylon which should governthe case. But Mr. Bawa, who appeared for the appellants, andargued their case with his usual ability, contended that the textbookson Muhammadan law from which he cited should be regardedas evidence of the existence .in Ceylon of the law expounded in them.He cited from Tyabji’s Principles of Muhammadan Law, AmeerAli’s Muhammadan Law, Abdul Rahaman’s Muhammadan Law, andMacnaghten’s Muhammadan Law certain passages indicating thenature of the contract of donation according to Muhammadan lawto show that P 1 is not a valid donation. He. cited other passagesindicating that marriage gives rights of inheritance to a wife, andthat she cannot contract herself out of it. One of the documentsput in evidence on behalf of the appellants is that marked D 15.This purports to be a translation of an extract from Badd-al-Muktar,said to be a standard work on Muhammadan law, by the witnessAbdul Kudus, who was called as an expert by the appellants. Onepassage in this extract is quite apposite to the present case. It is“ The declaration or promise made by a man that all the propertieshe then owns, and those he would acquire- in future, that is, hissolid cash as well as his landed properties, should . become .theproperty, of others, or of his wife, or of his children, cannot amountto an agreement, and if such a declaration is urged to be ah agree-ment, it cannot be Valid, as it is a promise in respect to indefiniteproperty. ”
Now, if the law as stated here is applicable, the appellants arcentitled to succeed, but, in. my opinion, this law is not-proved toprevail in Ceylon. The. onus is. on the appellants to prove thatunder the Muhammadan law as it obtains in Ceylon the document ■P 1 is invalid. The only witness, Abdul Kudus, whom they calledproves nothing as to the Ceylon law. He poses as an expert onthe Muhammadan law generally, but it appears to me that even.
IMS.
SOrotEIDHBA. J.
AbdulJRahttnanv. UeeanUmma
( 184 )
1916.
SchneiderA. J.
AbdulBahimanv: UssanUmma
there, his knowledge of the law is questionable, in view of theevidence he has given as to the law as recognized by the differentschools or sects.
WhSt is tiie Muhammadan law which prevails in Ceylon? It'cannot for one moment be pretended that the whole body ofMuhammadan jurisprudence obtains currency here, for the obviousreason that all law must derive its sanction by virtue of legislationor custom or judicial decisions. Muhammadan law stands devoidof any sanction here, because Mohammed had no right to impose hislaws on the inhabitants of any British territory. It is matter ofhistory that the Muhammadans or Moors under the Dutch Govern-ment here were allowed to be governed by their own peculiarusages. It is no secret that what is called the Code of Muhammadan.Laws of 1806 is mainly a translation of a Dutch compilation. Bythe Proclamation of September 23, 1709, which was published veryshortly after the acquisition of this Island by the British Govern-ment, it was declared that the administration of justice should be“ according to the laws and institutions that subsisted under theancient Government of the United Provinces. ”
By the Royal Charter of April, 1801, section XXXU., it wasprovided ” that in the cases of Cingalese or Mussulman Nativestheir inheritance and succession to lands, rents, and goods, and allmatters of contract and dealing between party ayd party, shallbe determined in the case of Cingalese by the laws and usages ofthe Cingalese, and in the case of Mussubnans, by the laws andusages of the Mussulmans.” This Charter was subsequentlyrepealed. But it is useful as indicating that Muhammadan law inCeylon derives its ‘sanction from the graciousness of the BritishSovereign in recognizing it as the customary law of a portion ofthe population of this Island. Part of this qustomary law nowderives sanction as Statute law, as, for instance, the Code ofMuhammadan Laws, 1806, which by a resolution of Council became .Statute law. It has been frequently pointed out that this Codeis not exhaustive (Perera v. Khan,1 to cite one case among others).Where the Code is silent, and there is no special custom on _anvpoint, it has been held that the Roman-Dutch law should be resortedto, as being the law generally applicable in the absence of anyspecial law, which takes the matter out of the operation of thatgeneral law. (Case in the District Court of Colombo referred to inthe judgment of Lawson D.J. in 1862 in the anonymous cose,
C. Colombo, No. 29,129,3 Ibrahim Saytbu v. Muhamadu* andTillekeraine v. Samsedeen*
The reported cases show that .since 1862 a.d. our Courts haveconsistently followed the principle fcliat the Muhammadan law whichprevails in Ceylon is so much an d no more of it as has received
i 2 Bal. 188.!* (1898) 8 N. L. R. 216.
. 2 Vanderstroaten'$ Reports, 1878-4, App. B., xaxci. * (1900) 4 N. L. R. 66.
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the sanction of custom in Ceylon. ( (1862) Anonymous case, D. C.Colombo, No. 29,129;1 (1873) D. C. Colombo, No. 59,678;* (1914)Ttabia Ultima v. Saibu • being but a. few among a number of others.)-It is true that treatises on the Muhammadan law generally arefrequently referred to in our Courts. But this is done only toelucidate some obscure text in our written Muhammadan law,' or incorroboration of evidence of local custom. I cannot find a singledeoision that has gone to the length of holding that, apart fromthe prevalence of a local custom, Muhammadan law has anyapplication in Ceylon. On the contrary, there is authority to theeffect that where there is a conflict between the Muhammadan lawas found in tEe treatises and local custom, the' latter should befollowed. (Sule Amma v. Mohammado Lebbe Padily,* Badirala v.Manama Natchia.*)#
The principles of the Mumammadan law as found in treatiseshave been adopted as governing Muhammadans here in the matterof pure donations, because since 1862 there has been evidence thatthe customs of the Ceylon Muhammadans recognized those generalprinciples. (D. C. Colombo, No. 29,129, ubi supra.) But in theconstruction of wills, deeds, fidei commissa, and in ordinary mattersof contract the principles of the ordinary general law, and not’ of theMuhammadan law, are always applied. (D. C. Colombo, No. 59,5781 2 *and Eadiga Umma v. Me era Lebbe.6)
finally, 1 would add that where Mussulmans or Moors in Ceylongo to a notary and enter into a contract,_ which is valid accordingto- the general law prevailing in the Island, there should be un-equivocal evidence of an inveterate custom before such a transactioncould be pronounced by a Court of Law to be invalid or inoperativebecause of such custom. A strong presumption arises in such acase that the parties intended to be' bound by their contractsolemnly entered into, and that from long residence in the countrythey had learned to adopt the general law on the subject, unlessthere was some definite and Well-reputed custom to the contrary.I therefore agree with the order proposed by my brother Ennis.
1910.
SCHKHXDBE
A.J.
AbdulBaftimanv. UssanUmma
Varied.
♦
1 Vanderstroaten sReports,1873-4,
App._ £., xxxi.
2Grenier's Reports, 1873, Pt. III., p. 28.
• (1903) 7 N. L.
2 (1914) 17 N. L. L. 388.
(1907) 10 N. L. R. 109.
(1912) 16 N. L. R. 236.23.