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Present: Dalton and Drieberg JJ.
AHAMATH et al. v. SARIFFA UMMA,
15—D. C. (Inly.) Colombo, 1,005.
Muslim law—Power of testator to make free disposition—Right of heirsto portion—Property left to widow—Ordinance No. 21 of 1844,s. 1.
A Muslim may dispose of the entirety of his property free fromany limitation imposed on him under the Muslim law.
The incapacity created by section 1 of the WillB Ordinance,No. 21 of 1844, applies to persons who are prohibited from takingunder a will by legislative enactment or on grounds of publicpolicy.
PPEAL from an order of the District Judge of Colombo.
The respondent applied for probate of the last will of herhusband, Uduma Lebbe Ibrahim, by which he left all his propertyto her and appointed her executrix. The appellants, who are thebrothers and sister of the deceased, opposed the grant of probateon several grounds, one of which was that under the Mohammedanlaw the testator could not dispose of more than one-third of hisestate. The learned District Judge held against the appellants.
H. V. Perera (with Garvin and Deraniyagala), for appellants.—The Mohammedan law is clear that a testator cannot will away morethan one-third of his property. The only question is whethersection 1 of the Wills Ordinance, No. 21 of 1844, has abolished thisrestriction. In Shariffa Umma v. Rahamathu Umma1 it was held,that since Ordinance No. 21.of 1844 a Muslim has an unrestrictedpower of alienation by will. But it is submitted that this decision iswrong. The appellant in that case was unrepresented by Counsel.
An examination of the Muslim law reveals the fact that thedisability is not one really attached to a testator but to the heir.The principle is that no one heir should receive a larger share thanany other. Thus the one-third that a testator is permitted to willaway can only be left to a person other than an heir. The equalitybetween the heirs is maintained, and one heir is not allowed toreceive a larger share than another even though the testator shouldwish it.
Section 1 of Ordinance No. 21 of 1844 says “ It shall be lawful forevery person competent to make a will to devise, bequeath, anddispose of by will all property …. to such person orpersons not legally incapacitated from taking the same, as he shallsee fit. ” A Mohammedan heir is one so incapacitated, and it issubmitted this will is invalid.
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B. F. de SiVoa (with Canakaratne) for respondeat.—Section 1expressly states “ No will made either within or beyond the limitsof this colony subsequently to the time when this Ordinance shallcommence and take effect shall be or be liable to be set aside asinvalid or inofficious, either wholly or in part, by reason that anyperson who by any law, usage, or custom, now or at any timeheretofore in force within this colony, would be entitled to a shareor portion of the property of the testator, has been excluded fromsuch share or portion or wholly disinherited by or omitted in suchwill. ” Counsel cited Shariffa Ultima v. Rahamathu Umma.1
May 27, 1929. Drib berg J.—
The respondent applied for probate of the last Will of her husbandUduma Lebbe Ibrahim dated May 24, 1917, by which he left allhis property to her and appointed her executrix. There were nochildren of the marriage.
Ibrahim died on April 39, 1928. Order nisi issued declaringthe respondent entitled to probate, whereupon the appellantspetitioned the Court opposing grant of probate on several grounds,viz., that the will was not duly executed, that it did not expressthe true intention of the testator, undue influence, and that under ■the Mohammedan law the testator could not dispose by will of morethan one-third of his estate. They prayed for a declaration thatIbrahim died intestate and that letters of administration be issued.The learned District Judge held against the appellants on all thesegrounds and they have appealed. The first ap.d second appellantsare the brothers, and the third appellant a sister, of the deceased.
The will was prepared in accordance with instructions given bythe testator to the notary, Mr. Fuard, on May 21. The attesting. witnesses were Dr. S. C. Paul and Perera, the notary’s clerk.Dr. Paul is Senior Surgeon of the General Hospital, Colombo. Hewas the medical attendant of the testator, whom he had knownfor twenty or thirty years.
Dr. Paul says that he had been asked to be at the testators’ houseto sign the will as a witness; that when he went there he met thenotary, whom he did not know before; the notary gave him acopy of the will and he found the testator reading the other copyof it; he asked the testator what the purport of the will was, andhe replied that it was in favour of his wife. Dr. Paul says that heglanced at the copy given him and found that it was in favour ofthe testator’s wife ; he did not however read through it. Thenotary then took back both the copies and they were signed in thepresence of the two attesting witnesses. The attestation statesthat the will was duly read over by the testator in the presence of thenotary and the witnesses. Dr. Paul says that the testator’s mind
114 N. L. R. 465.
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was quite clear and he was able to give instructions for the will..There is no suggestion that he was otherwise than normal mentally.
The evidence of the notary is to the same effect. He says thathe gave the testator a copy of the will after Dr. Paul came, butthe disagreement on this point cannot affect the clear evidence thatthe testator read over the will before he signed it.
There is the evidence of Dr. Paul that the testator told him thatthe will was in favour of the testator’s wife, but apart from this,if the testator could read and understand the will no further questioncould well arise. The will was one which was to be expected:the testator was very fond of his wife and she previously had madea will in his favour.
That the testator could read and write English is fully proved.He was a building contractor under Messrs. Walker, Sons & Com-pany, and had a considerable business. Mr. Bottoms, the managerof the building’ department of that firm, who does not knowSinhalese or Tamil, says he' met him flaily, that he spoke Englishvery well, and that he discussed bills of quantities and specificationsof plans with him. Mr. Eonseka, a proctor, states that he usedto meet the testator when he was a master at Wesley College. Anephew of the testator was a pupil of Mr. Fonseka. The testatorus#l to speak in English to Mr. Fonseka and they used to go throughthe boy’s school reports.
P 13 is a book of accounts, and D 6, P 253, a press copy of a letter.It has been proved that these were written by the testator, andthere is no evidence tp the contrary.
P 17 and P 18 are two notarially attested conditions of sale ofland, the notary being Mr. E. R. Williams of Messrs. Julius &Creasy. It is accepted that Mr. Williams, who is an Englishman,did not know Tamil. In both documents Mr. Williams certifiedthat the testator, who was one of the executing parties, “ dulyread over ” the documents. It may fairly be presumed that Mr..Williams ascertained whether the testator knew English and thatif he found that the testator did not, he would have prepared theattestation in the form required by section 29 (11) in cases where theexecuting party does not know the language in which the instrumentis written.
No evidence was led to show that the testator could not readEnglish, and no such inference can be drawn from the evidence ofMr. de Rooy and Mr. Abdul Cader, who were called by the appellants..
Where a testator is unable to read the will the notary has toread over and explain it to the testator (section 29 (11) of the Notaries-Ordinance, 1907), but failure to do so does not affect the validityof a will, and apart from the evidence of Mr. Fuard that the willwas prepared in accordance with instructions previously given, no’question as to the regularity of its execution can arise if the evidence
of Dr. Paul, that the testator said that the will was in favour of his 1929.
wife, is accepted (Pieris v. Pieris1). It was sought to meet Dr. Paul’s
evidence on the ground that he was, so it was said, an old man and Drieberq J.
too busy to retain a clear recollection of what took place when the
will was signed. The Government Civil List shows that Dr. Paul Aha"latli
was bom in 1872, and there is no reason to doubt his recollection Sarijfa
of what the testator told him of the will. The opposition to the ^mma.
will is frivolous and without foundation. Asia Umma, the only
opponent who gave evidence, said at the end of this protracted
inquiry that the will was forgery while denying knowledge as
to who the attesting witnesses were. The learned District Judge
has condemned the opposition in terms which I cannot say are
The appellants say that Ibrahim would not have made a willwithout providing for relations whom he helped generously duringhis lifetime. The trial Judge has dealt fully with this matter, butthese considerations were entirely irrelevant. No suspicion whatevercan attach to the will for the reason that no provision was made forthose whom he helped during his lifetime. The testator deriveda good income from his contracts, but this would cease with hisdeath, and it is natural that he did not wish further to reduce hiswife’s income by giving away a part of his estate, and it is also naturalthat he should leave it to his wife to give such help to his relationsas their treatment of her merited and her income would allow.
Mr. Fuard says that having heard that the testator was seriouslyill on the 19th night, he called at his house on the 20th morning toinquire and was told that Dr. Paul and Dr. Cooke had been therethe previous night and given the testator oxygen ; that on the 21stmorning he got a telephone message asking him to call at thetestator’s; he did so in the afternoon and was given instructionsfor the will; he was taken into the room by a Cochin boy and nobodywas present when he received instructions; he had a draft willprepared and saw the testator with it on the 23rd and went throughit with him, explaining to him some legal terms which he did notunderstand ; on this occasion too nobody else was present.
The appellants sought to make out that this serious illness—it was an attack of asthma with cardiac trouble due to his diabeticcondition—occurred not on the night of the 19th but on the 20thnight. It was suggested that the notary falsely placed this eventon the 19th for the reason that if he said it occurred on the 20th hisevidence would be open to the comment that the testator would nothave been in a fit condition to give instructions so soon after theserious attack he had the previous night, and further; that it wasincredible that at such a time , he would have been alone in hisroom without anyone in attendance.
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I agree with the opinion of the trial Judge on this point. It hasnot been proved that the visit of Dr. Paul and Dr. Cooke was onthe 20th night and not on the 19th, but apart from this, Dr. Paulsays that the testator rallied completely after the heart attack,he saw him two or three times daily after it, there was no specialnecessity for him to have an attendant, and that his mind wasclear, and he was quite able to give instructions for a will.
The appellants contended that the will was invalid, for underthe Mohammedan law it is not possible for a person to dispose ofby will more than one-third of his property to the prejudice of hislawful heirs. Mr. Perera referred us to Tyabji (1913 ed.),p. 526, andAmir Ali’s Mohammedan law (4th ed.), vol. 1., p. 570.
It was held in Shariffa Umma et al. v. Rahamatku Umma1 thatsection 1 of Ordinance No. 21 of 1844 enabled a Muslim in Ceylon todispose of the entirety of his property by will free from any limi-tations imposed by the Mohammedan law. This section providesthat … every testator shall have full power to make such
testamentary disposition as he shall feel disposed and in theexercise of such right to exclude from the legitimate or any portionany child, parent, relative, or descendant, or to disinherit or omitto mention any such person, without assigning any reason for suchexclusion, disinheritance, or omission, any law, usage, or customnow or heretofore in force in this colony to the contrary notwith-standing … . ”
Mr. Perera contended that the Mohammedan law did not imposea restriction on a person’s power of disposal but that it was rather aninability in a legatee to receive property to the prejudice of the heirs,and he relied on the earlier part of the section which empowers atestator to leave property “ to such person or persons not legallyincapacitated from taking the same. ” It is clear, however, thatthis applies to persons who are prohibited by legislative enactmentfrom taking under a will, such as attesting witnesses (section 10,Ordinance No. 7 of 1840), or who on grounds of public policy areincapable of taking under a will, for example, a person who hasmurdered the testator. A list of the classes of persons who areunder this disability under the Roman-Dutch law is given inMorice’s English and Roman-Dutch Law, p. 274.
The provision of the Mohammedan law in no way differs from theRoman-Dutch law regarding the legitimate portion and is merelya limitation on the disposing power of a testator. Such limitationshave been removed by Ordinance No. 21 of 1844.
The appeal is dismissed with costs.
Dalton J.—I agree.
'(1911) 14 N. L. R. 464.