082-NLR-NLR-V-02-CASSIM-et-al.-v.-PERIA-TAMBY-et-al.pdf
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1896.
September 15.
CASSIM et al. v. PERIA TAMBY et al.D. C., Mdtara, 1,048.
Charter of 1801, clause 32—Mohammedan Law—Will, construction of.
The will of a person falling under (be designation “ Mussulmannative,” as used in the Charter of 1801, must be construed, notaccording to the Roman-Dutch Law, but according to, the laws andusages of the Mussulmans, as provided by clause'32 of that Charter.
rpHE facts of the case appear in the judgment of Bonser, C.J.
Layard, A.-O., for appellants.
Dorrihorst, with Wendt, for respondents.
15th September, 1896. Bonser, C.J.—
This is.an action to recover an undivided moiety of a gardensituated at M&tara, which was bequeathed by the will of the testatorwho died in 1826. The testator appears to have had two childrenthen living, a daughter who was betrothed, and being of tender yearsnot-given in marriage to her husband, and also a son,' who was alsoof tender years. The testator by his will gave certain charitableand other legacies and annuities.
With respect to certain immovable property, which was specifiedin a certain schedule appended to the will, he directed that hisnephew, the intended. husband of his daughter, whom he hadappointed executor, should take charge of this property until hischildren respectively attained majority, when the executor was todeliver over possession.to the children of the immovable propertybequeathed to them respectively with the accumulations. The landwhich is the subject of the present action was included amongst theimmovable property which was bequeathed to the son. In the year1839 the executor sold this land, and it has been enjoyed ever since,until the institution of this action, by the purchaser and his suc-cessors in title, without any disturbance, except as to one undividedhalf thereof. It is admitted that at the time of the sale both thechildren were minors. I should mention -that one undivided half ofthis land was bequeathed to the son, and the other to the daughter.In March, 1857—the daughter being then dead—her childreninstituted an.action against the purchaser to recover the half shareof the garden, which had been devised to their mother, on the groundthat the clause of the will which I now proceed to read constituted a
fidei commissum in their favour. The clause is as follows :—
• <
“ It is further declared that the immovable property be-“ queathed to my said two children and enumerated in the 7th and“ 8th paragraphs of the account hereunto annexed be always
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“ possessed by my said two children or their descendants, but that 1896.
“ they cannot at any time either sell or mortgage the same to Septembers.“any person whomsoever.” The District Judge who heard the Bonsbb,C. J.case appears to have decided the case against the plaintiffs. Thecase then came on in appeal to this Court, which decided thatthe provision in the will did create a valid fidei commissum,and that the plaintiffs were entitled to recover a moiety ofthe said land. Now, it will be seen that this judgment con-strues this will as being a will governed by the Roman-DutchLaw. But the testator was what is commonly known as a“ Moorman ”—one of that class who in the Charter of 1801 weredenominated “ Mussulman natives.” I cannot gather from thereport of the case that this fact was present to the minds of thelearned Judges who decided this case. It seems probable that itwas treated by all parties as being a will which was governed bythe Roman-Dutch Law. If I were satisfied that this Court in 1867had deliberately determined that this will was governed by theRoman-Dutch Law I should hesitate before I decide otherwise, andin any event I should not venture to dissent from the-interpretationput upon that will by this Court in 1867.
It seems to me, however, that this will ought not to be construedby the Roman-Dutch Law, but in accordance with the laws andusages of the Mussulmans, as provided by clause 32 of the Charterof 1801, which Charter was in force at the time-this will took effectat the death of the testator. If the attention of the Judges hadbeen called to this point, I have no doubt they would have decidedthe use according to the laws and usages of the Mussulmans, for Ifind that the same Judges in 1869, in a case reported in Vander.straaten, p. 9 (D.C., Colombo, 51,428), applied Mohammedan Lawto the construction of a very similar will. In the present case theDistrict Judge has followed, as he was bound to do, the formerdecision of this Court. But in my opinion the case must be sentback that the true construction of the will may be determinedaccording to. Mohammedan Law. The principal questions, it seemsto me, on which it will be necessary to ascertain what the Moham-medan Law is, are, (1) as to whether, under the circumstancesof the case, the executor had power to sell this property: it isquite clear that had it been a will governed by the Roman-DutchLaw the executor would not have had power; (2) to whatextent, if any, the clause restricting alienation binds this property.
We will leave the District Judge1 a free hand in this matter. Insome cases I see that Moorish assessors have associated with theDistrict Judge. He can associate with him or dot Moorishassessors as he may think best. He will hear such evidence as
1896.
September 15.Bomber, C.J.
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may be brought before him, and have recourse to such sources ofinformation as may be available with respect to MnVin.mmAflnnLaw as it prevails in this Colony. The costs of this appeal will becosts in the cause.
Withers, J.—
I fully concur. In my own part also, if this will, is one whichshould be construed according to Roman-Dutch Law, I shouldnot' hesitate to follow the interpretation put upon it by the Judgesbefore whom the former case was heard in appeal. • •
As this is the will of a Mussulman, I feel confident that it oughtto be construed according to the laws and usages of Mussulmen inCeylon.
The Code of special laws concerning Moors or Mohammedansrelating to matters of succession, rights of inheritance, or otherincidents occasioned by death was sanctioned by the Governor inCouncil in 1806, and is still in the statute book ; and in matters ofthis description, for which this Code does not specially provide, ithas been usual for the Courts of this Island to ascertain what MoorishLaw or usage applies to the particular case.