Ahamat v. Banffa- Umma.
[lx the Privy Council.]
Present: Lord Blanesburgh, Lord Tomlin, Lord Russell of Klllowen'
AHAMAT et at. v. SARIFFA UMMA
Muslim law—Power of disposition by toil!—Rights of heirs—Legal incapacity—Evidence of attestation of toil!—Point taken in appeal given up in originalCourt—Ordinance No. 21 of 1844, s. 1.
A Muslim, domiciled in Ceylon, has power to dispose of all bis propertyliv will, regardless of any limitation imposed by the Muslim law.
The Wills Ordinance, No. 21 of 1844. applies to the will of a Muslimtestator. The words “ legally incapacitated " in section 1 of the Ordinanceapplyto persons, whoareprohibitedby legislative enactment orby
the ordinary law from taking under a will or to those who, on grounds ofpublic policy, are incapable of taking under a will.
Itis unnecessary tocallboth theattesting witnesses to provethe
execution of a last will.
DOBD BLANESBlTtGH.—Ahamal c. Sariffa I’mma.
July 21, 1931. Delivered by Lohd Blanesburgh.—
By his will, dated May 24, 1927, Ibrahim, a wealthy Mohamedan ofthe Shah sect, domiciled in the Island of Ceylon and resident at Colombo,bequeathed the whole of his property to his widow, the respondent,and appointed her his sole executrix. The will purports to have beenexecuted by the testator in the presence of A. M. Fuard, a licensednotary public and two witnesses (S. C. Paul aud -James Ed. Pereira)—thenotary public and minimum number of witnesses required by section 3of the Ceylon Ordinance No. 7 of 1840. Of the attesting witnesses.Dr. S. 0. Paul was the medical attendant of the testator, Mr. Pereirawas the clerk of the notary, Mr. Fuard.
The testator died at Colombo on April 30, 1928, nearly a year later,and the grant of probate of the will thereafter applied for by the respond-ent was opposed in the District Court of Colombo by two of the brothersof the deceased, and a sister, who with her husband, are the presentappellants. After prolonged inquiry, probate of the will was, by orderof the District Court dated December 17, 1928. granted to the respondentand, on appeal, the order was affirmed by a decree of the Supreme Courtof the Island dated May 27, 1929.
The present appeal is from that decree.
In the District Court the grant to the widow was opposed on allegationswhich led to the following, amongst other, issues being settled for trial:—
Was the document produced as being the last will of the deceased
executed by him ?
Does' the document represent the true intention of the deceased
in regard to the disposition of-his estate, and did he know andapprove of the contents thereof ?
[As a Mohamedan of the Shad sect] was it competent to the
deceased, in law, to dispose of more than one-third of hisestate by his last will ?
Wrs the last will duly executed ?
With reference to the issues 1 and 4, the learned .Judge said that thesehad not been seriously pressed by the appellants, and that the evidenceof Mr. Fuard and Dr. Paul, that the will was duly executed by the deceasedhad not been seriously challenged. There was no doubt that theseissues, regarding the execution of the will, must be answered in theaffirmative. The learned Judge, as he indicates, reached that conclusionon the evidence of Mr. Fuard and Dr. Paul, who were called and examinedat length before him. Mr. Pereira, the second attesting witness, was notcalled. But no comment on his absence and no reference to any testi-mony from him being possibly helpful—indeed, no reference to him atall—is to be found, either in the learned Judge’s full note of Counsel’sargument or in his own judgment. Further, his finding on these issueswas not challenged in the appellant’s petition of appeal to the SupremeCourt. Nor is it referred to in the judgment of that Court. There can.their Lordships conclude, be little doubt that by that time these issuesas originally raised had been entirely eliminated from the case. In view,however, of the attempt by the appellants to recur to them again—anattempt to which reference must later be made—it is convenient inpassing to draw attention to these facts.
10JjOJtO I5LAXESBUB(tH.—Akamat v. Sariffa Umma.
Upon the second issue the learned District"* Judge, after a carefulreview of the evidence, found that the will did express the true intentionof the testator in regard to the disposition of his estate, and that he knewand approved of its contents. The learned Judges of the SupremeCourt took on appeal the same view and expressed it in stronger terms.The opposition to the will on this ground was, in their judgment,frivolous and without foundation.
As to the third issue, it was conceded by the appellants before thelearned District Judge, that he was bound to answer it in the affirmative,following the decision of the Supreme Court in Shariffa Umma v. Raha-math T'nima *. They reserved to themselves, however, the right tochallenge that decision in a higher Court. And they did so challengeit on appeal to the Supreme Court. But that Court adhered.
In these circumstances, it would appear that the question raisedby the third issue is alone really open upon- the present appeal. Thequestion under the second, by their Lordships’ rule—from which in thepresent case no reason for departure is shown—is disposed of againstthe appellants by concurrent findings of fact in the Courts below: thefirst and fourth issues are out of the case, because they were not evenraised in the Supreme Court.
But the appellants, while recognizing that the second, of the issuesmight no longer be canvassed, sought with reference to the first andfourth to raise before their Lordships a contention which "had not beforebeen heard of in these proceedings, namely: that the absence of Mr.Pereira from the witness-box, without explanation from the respondentof that absence, was fatal to her contentions on these issues, whichought accordingly to be answered in the negative.
Their Lordships as a matter of indulgence, and also that they mightbe placed in full possession of the facts, permitted some argument to beaddressed to them in support of that- contention. But they think itnecessary in the interests of regularity of procedure to say that, in thecircumstances already stated, no such contention was effectively opento the appellants on this appeal.
It must only be under exceptional Circumstances that an issue droppedin the intermediate Court of Appeal, and for that reason not dealt withor referred to by that Court, can be revived before this Board. It canonly be under even more exceptional circumstances that an objection,not taken before the Trial Judge at all—where, if. taken, it could at oncehave been disposed of in a manner satisfactory to all parties—can beraised in the tribunal of final appeal as a fatal objection to a finding ofthe Trial Judge, which was not even challenged in the intermediate Court.
But their Lordships, merely as a ^concession to the appellants, wouldadd that they have considered the point raised, and in their opinion thereis nothing in it. Conceding, as they will, that as a result of section 100of the Ceylon Evidence Ordinance, 1895, the effect- of Mr. Pereira’sabsence from the witness-box—he being then, as they assume, alive andavailable-must be determined in accordance with the English law ofevidence for' the .time being: even so, the conclusion must be that the
1 14 N. L. R. 464.
LORD BLANESBURGH.—A hemal v. Sariffa Cmma.11
evidence of execution tendered at the trial was by the then existinglaw of England, if accepted, sufficient for its purpose. To theseproceedings in Ceylon the closest analogy in English practice is a contestedprobate action. In such an action, it was formerly the rule that if aparty were put to proof of a will, he must examine the attesting witnesses,and that practice, as prescribed also by the Court of Chancery for theregulation of proceedings at law, is illustrated by the cases ofBootle v. Blundell Macgregor v. Tophain a.
But by section 38 of* the Court of Probate Act, 1857, it is enacted thatthe rules of evidence observed in the Superior Court of common law atWestminster shall be applicable to and observed in the trial of allquestions -of fact in the Court of Probate. The effect of this enactmentwas, from its date in 1857, to make it unnecessary in a probate suit tocall both the attesting witnesses to prove the execution, for in the Courtsof law the execution of a will might always be proved by calling one onlyof them. And that practice the Court of Probate accordingly normallyadopted, exoept in a case where the attesting witness called gives, evidenceagainst the due execution—as to which see Owen v. William 3.
But all this is by the way. This appeal is concerned with and mustbe oonfined to the third issue, which,- in terms more apt to the actualproblem before the Board, may be phrased thus:—Does the Ordinance21 of 1844 apply to the will of a Mohamedan at all? If it does, is itseffect that every Mohamedan domiciled in Ceylon has thereunder fullpower of disposition of all his property by will (a) in favour of a stranger,(6) in favour of his wife, and as such one of his “ heirs ”?
The position of a Cingalese Moslem in- the matter of testamentarypowers, apart from the ordinance, may perhaps, for the purposes of thepresent case, be described with sufficient accuracy as follows:—He isprecluded from making by will dispositions exceeding one third of hisnet assets remaining after payment of his debts and funeral expensesto persons other than his lawful heir or heirs,- the balance of two-thirdsbeing reserved to be distributed among the lawful heir or heirs accordingto the rules of inheritance, unless the excess is rendered valid by theconsent given after the death of the testator of the heir or heirs whoserights are thereby infringed or by the fact of there being no such heiror heirs. A bequest to an heir or heirs is void by the same law althoughit may, certainly in the opinion of some authorities, be validated by acorresponding consent. A widow is included amongst the heirs.
The recognition of the Moslem law in these matters is secured to theMoslems of Ceylon by the special laws concerning Maurs or Mohamedansof August 5, 1806, but such recognition is subject always to repeal, alter-ation or amendment by ordinance enacted from time to time. Thewhole question, therefore, is whether these special laws have not beenmodified by the terms qf this Ordinance of 1844; and, if they have,whether they have been so far modified as to make the testator’s will avalid disposing instrument according to its tenor.
Section 1 of the Ordinance is preceded by the preamble that “it isexpedient that some uniform provision should be made with respect to
’ (ISIS) 19 Vet. 494.* (1850) 3 H. L. C. 132.3 32 L. ■/. P. M. th A. 159.
JjORL) BL AN KSBl’ RG H..—.-1 ha mat u. So riff a Ummti.
testamentary dispositions of property Section 1, so far as now material,is in the terms following: —
** It shall be lawful for every person competent to make a will todevise, bequeath and dispose of by will all the property within thisColony which at the time of his death shall belong to him or to whichhe shall be then entitled …. and which if. not so devised,bequeathed, or disposed of would devolve upon his heirs at law,executor or administrator, to such person * or persons not legallyincapacitated from taking the same as he shall see fit; and nowill . . . shall be or be liable to be set aside as invalid orinofficious, either wholly or in part, by reason that any person who byany law, usage or custom now or at any time heretofore in force withinthis. Colony, would be entitled to a share or portion of the propertyof the testator has been excluded from such share or portion or whollydisinherited by or omitted in such will; but every testator shall havefull power to make such testamentary disposition as he shall feeldisposed, and in the exercise of such right to exclude from the legi-timate or other .portion any child, parent, relative or descendantor to disinherit or omit to mention any such person without assigningany reason for such exclusion, disinheritance or omission, any law,usage or custom, now or heretofore in force in this Colony to thecontrary notwithstanding. *'
Now, approaching the consideration of the Ordinance first, apart fromauthority, tlieir Lordships cannot doubt that it applies to Mohamedantestators as much as to all other domiciled Cingalese. The words of theenactment are of themselves sufficiently comprehensive to includeMoslems within their scope. When read in connection with the preamble,,which shows that the purpose of the Ordinance is to secure uniformitywith respect to testamentary dispositions of property, it is not in theirjudgment possible to limit or restrict the operation of the Ordinanceso as to exclude the wills of Moslem testators from its purview. TheirLordships are struck by the fact that where such limitation is intendedto be placed on words of general import with reference to just such asubject as that with which this Ordinance is dealing, it can clearly andeasily be done. A provision with such a result will, for example, be foundin the Ordinance No. 15 of 1876, section 2.
The Ordinance then being applicable to the will of a Moslem testator,it is clear to their Lordships that it enables the testator to dispose of thewhole of his property and not merely one-third part of it. And suchhas been the declared judicial view in Ceylon since the year 1911, whenthe decision of the Supreme Court in Shariffa Umma v. Rakamatk Umma,(supra) was pronounced.
Their Lordships agree with that-decision in the terms in which it wasgiven, but even if they had felt more doubt on the matter than they do,they would have hesitated now to interfere with it after 20 years, especi-ally as they find the learned Chief Justice saying that the Ordinance hasalways been construed to enable Mohamedans in Ceylon to dispose ofthe whole of their property by will and that the Mohamedan populationin Ceylon had even then freely taken advantage of the privilege. In
LORD BLANESBUBG-H.—Ahamat v. Sariffa Umma.
face of a practice so well authenticated and so long continued, anyalteration in the law as so authoritatively laid down must now comefrom Legislation and not from the Courts.
But although the will of the Moslem testator in the case cited was, as istile will here, one in favour of the testator's widow, the actual decisionwas given without reference to a point which seems to have been takenfor the first time in the present case. The appellants here say that,even if on the true construction of the Ordinance a Moslem testatormay be empowered by his will to dispose of all his property, he is onlyso empowered to dispose of it in favour of a " person not legally inca-pacitated from taking the same ”, and that a testator's widow, as beingone of his heirs, is by Mohamedan law so incapacitated.
To that argument there are, as it seems to their Lordships, at leagfcthree answers.
The first is that this is a statute of general application and their Lord-ships are in agreement with the Supreme Court in the view expressedby them that the words ” legally incapacitated ”—the word f< legally ”is of striking significance in this context—apply to persons who areprohibited by legislative enactment or by the ordinary law from takingunder a will, such as attesting witnesses (section 10, Ordinance 7 of 1840),or those who, on grounds of public policy, are incapable of taking under awill, as for example, one who has murdered the testator. But, secondly,the Ordinance expressly enacts that ” every testator shall have full powerto make such testamentary disposition as he shall feel disposed ”, andit is not permissible to rank as a person ” legally incapacitated fromtaking ” one whose incapacity only arose as incident to a limitation onthe power of testamentary disposition, which it is the object and purposeof the Ordinance to abolish.
Again that a person is not so incapacitated by reason of the fact thathe or she is one of the heirs of the testator is further shown as theirLordships think by the fact that under the Ordinance a will is not to beinvalidated by reason of such person “ being disinherited by or beingomitted in such will ”, on the contrary the testator in the exercise ol hisfull power of disposition may exclude or ” omit to mention ” any suchperson without assigning any reason for such exclusion or omission.These provisions, as it seems to their Lordships, necessarily connotethat it is within the testamentary power conferred upon every testatorto include and mention amongst those to take under his will any personby whom no objection is to be taken if he be excluded or notmentioned.
On every ground accordingly,*• their Lordships will humbly adviseHis Majesty that this appeal be dismissed with costs.
AHAMAT et al. v. SARIFFA UMMA