073-NLR-NLR-V-51-ISMAIL-LEBBE-Appellant-and-HANIFA-Respondent.pdf
NAGALOfGAM J—Ttnnail Lcbbe v. Hnniffn
299
1949Present: Nagalingam J. and Windham J.ISMAIL LEBBE, Appellant, and HANIFFA, RespondentS. G. 313—D. C. Regalia, 4,048
Partition—MuslimOo-owners—Application of Roman-Dutch laiv of
succession—Duty of Judge.
Where the co-ownore of a land are Muslims govornod by tho Muslimsystem of jurisprudence, the Judge should apply tho Muslim law ofintestato succession and not the Roman-Dutch Law.
^.PPEAL from a judgment of the District Court-, Kegalla.
M.H. A. Aziz, for fourth defendant appellant.
U. W. J aye war dene, with T. B. Dissanayake, for first and seconddefendants respondents.
C. E. 8. Perera, with C. Seneviratne, for third defendant respondent.
Cur. adv. wit.
April 4, 1949. NaGALISGAM J.—
This is an action to partition a land the co-owners of which areMuslims governed by the Muslim system of jurisprudence. Tho conten-tion put forward on behalf of the fourth defendant-appellant is that thelearned Judge has failed to appreciate the Muslim Law of intestatesuccession and has proceeded to apply the Roman-Dutch Law. Thiscontention appears to be sound.
Counsel for the other respondents sought .to seek an avenue of escapefrom this argument by asserting that there wras no specific issue raisedas to whether the succession that was to govern the parties was to bedetermined according to the Muslim Law and relied upon the case ofJohn Sinno v. Pedris Hamy1 where the principle was laid down that inan action for partition where the Judge finds that the parties before itare entitled to the land sought to be partitioned it will be improper forthe Judge to travel beyond the issues suggested by parties as crystallizingthe contest between them and embarking on his own upon a determinationof other questions in regard to which no notice had been given to theparties.
That case is clearly distinguishable from the present. Here, not onlywas the question of Muslim Law expressly referred to in one of the issues(see issue 3) where the question was whether the particular intestate’sshare devolved on brothers, sisters and the issue of deceased sister andbrother, or on surviving brothers alone, but also evidence was led ofthe order in which the brothers and sisters, the admitted co-owneredied, although it was in evidence that all but one sister died leavingissue, Had it been within the contemplation of the parties that theRoman-Dutch Law was the law to be applied, the only relevant question1 (1947)48 N.L.R. 345.
soo
NAGALINGAM J.—Ismail Lebbe v. Hanifft
would have been as to who were the persons who survived the sisterwho died without leaving children. I am therefore satisfied that thesuccession according to Muslim Law was asserted at least by the fourthdefendant as forming the basis of devolution of this property.
One might start with the admitted facts, namely, that under thedeed PI of 1894, three sisters Sarah Unima, Amina Umma and AsiaUmraa became entitled to | share and as there was nothing said in thedeed as Tegards any particular method of division among them thepresumption in law is that each of them was entitled to £ share andthat is the basis on which the action has been fought. The remainingJ share was by deed P2 of 1894 gifted to their three brothers, IsmailLebbe, the 4th defendant and one Hamidu Lebbe, each of them becomingentitled to a 1/12 share of the land.
It is common ground that Hamidu Lebbe was the first to die andthat he died issueless ; the plaintiff and the defendants other than the4th defendant, who will hereinafter be referred to as the contestingdefendant, were content to accept the position that on Hamidu Lebbe'sdeath his share devolved on his two brothers, Ismail Lobbe, the fatherof the plaintiff, and the 4th defendant. It certainly was to the advantageboth of the plaintiff and the contesting defendant that this propositionshould find favour in the eyes of the other defendants but it is quiteclear that the 4th defendant is a man of no principles whatsoever. Hehas been found by the learned District Judge to have been guilty of themost scandalous forgery that one can think of. The contesting defendant,who has vehemently advanced the projKisition that the devolutionfollows according to Muslim Law, has even concealed the fact that evenaccording to Roman-Dutch Law not only the brother but even thesisters would be intestate heirs of Hamidu Lebbe and that they wouldhave inherited from him ; so that the first point to be noticed is thatthe share of Hamidu Lebbe must be allotted not only to Ismail Lebbeand the 4th defendant but also to Sarah Umma, Amina Unima and AsiaUmma, who by virtue of their being full sisters of the intestate becameresiduaries along with the surviving brothers and the share of HamiduLebbe will be distributed in the proportion of two to one as betweenmales and females.
The next point that need be noticed is, who were the heirs of SarahUmma who was the next co-owner to die. I see no reason to take aview different from that expressed by the learned District Judge thatSarah Umma had a daughter, the 5th defendant, and that at the dateof her death she was survived by her husband; vide certificate of deathID4. The contesting defendant, however, says that Sarah Umma diedissueless and unmarried and that though the other parties may haveshown that Sarah Umma died leaving a child and a husband, neverthelessthat as the child of Sarah Umma was a daughter, the entire interestsof Sarah Umma did not vest in her daughter, the 5th defendant. Hiscontention is that not only was the daughter, the 5th defendant, anheir to Sarah Umma on the basis of the finding of the learned DistrictJudge but that Sarah Urama’s husband, Ali Uduma Lebbe MohammcdoCassim, was an heir as well as the intestate’s surviving brothers andsisters, namely, Ismail Lebbe, the 4th defendant, Amina Umma and
NAGALTNGAM J.—Ismail Lebbe v. Haniffa
.101
Asia Umraa. The daughter being a sharer would take a half share ofthe interests of Asia Umma, the husband being another sharer wouldtake a J share of her interest and the remaining J would vest in thercsiduarics, the brothers and sisters, who would take according to theprinciple well understood in Muslim Law that a male takes twice asmuch as a female.
he husband of Sarah Umma, Ali Uduma Lebbe Mohamedo Cassim,is : ot a party to these proceedings nor has anything Transpired in thecourse of these proceedings to indicate whether he is alive or dead.If he is alive, he is a necessary party, otherwise his heirs would have to headded parties defendant. If no party is able to establish to the satisfac-tion of the Court within a reasonable time of the receipt of the recordi i that Court as may be specified by the District Judge that Cassim isalive or, if he be dead, who his heirs are, hi« share would remain un-allotted and the Court will proceed to enter partition decree in respectof the remaining shares among the other co-owners.
The next co-owner to die was Asia Umma, one of the donees on PI,and the wife of the 6th defendant. The facts established show thatAsia Umma herself died leaving a daughter and husband, but it will heclear from what I have said in regard to the devolution of th – titleof Sarah Umma’s interests that the daughter and the husband do notthemselves exhaust the entirety of the interests of the deceased, AsiaUmma, but that her brothers and sisters would also be heirs. But asother parties including the contesting defendant were prepared to concedeto the 3rd defendant, the purchaser from the husband of Asia Umma,a | share, that J share must be allowed to the 3rd defendant. Thisallocation is in consonance with the principle laid down in the DivisionalBench case of Kurmrihamy v. Weheragama It will be apparent thatAsia Umma was in fact entitled to more than a i share because sheinherited both from her brother, Hamidu Lebbe, and from her sisterSarah Umma. The proper method of dealing with Asia Umma’sinterests is that if on a devolution of the full interests of Asia Ummaaccording to Muslim Law, it be found that at the date of hor death theinterests that vested in her daughter and her husband, the 6th defendant,were not less than a J, the deed 3D3 would be operative to the extentof the J share conveyed by it and the excess will be treated as havingdevolved on the brothers and sister then surviving, namely, IsmailLebbe, the 4th defendant and Amina Umma. If on the other hand,the entirety of the interests that vested in the daughter of Asia Ummaand her husband, the 6th defendant, did not exceed a the deed 3DIwill be given effect to to the full extent, and no part of her interestswould be treated as having devolved on any of her other heirs, namely,the brothers and sisters.
Ismail Lebbe was the next co-owner to die and ail his interest woulddevolve on the plaintiff who is the son and who would as a residuarytake the entirety of those interests.
Amina Umma was the last of the co-owners to die, and on her deathall her interests vested exclusively on her brother, the 4th defendant.The contention of the plaintiff and the other defendants that the plaintiff1 (1942) 43 N. L. R. 265.
The King t>. CtunntUlekf
:I02
and the 5th defendant, who are the son and daughter of a deceasedbrother and deceased sister, respectively, are also heirs is a propositionthat cannot be sustained under the Muslim Law. The principle ofsuccession per stirpes is unknown to that system of jurisprudence.Besides, it is a well known doctrine that as among residuaries thenearer in degree to the intestate excludes the more remote. The 5thdefendant, the niece of Amina Umma, is neither a sharer nor a residuarybut sho is in fact one who falls under the category of “distant kindred”who can take only on the failure of sharers and residuaries. She wouldtherefore be excluded by the residuary, the 4th defendant.
As regards the plaintiff, he being a son of the full brother of thedeceased is a residuary, but his rights must be postponed to those of thefull brother who is a residuary but nearer in degree to the deceasedthan the plaintiff.
The judgment of the learned District Judge is set aside and a freshdecree will be entered, the shares being worked out on the basis of thedevolution indicated above and, of course, having regard to what Ihave said in regard to the interests of Sarah Umma’s husband.
The costs of partition will be pro rata, not exceeding £ the value of theland, As the 4th defendant has not only failed with regard to a substan-tial part of the claim he made but has also been found guilty of perjury,I think the proper order to make is that he should be allowed no costsof contest in the lower Court to which otherwise he might have beenentitled. As the 4th defendant has succeeded only partially in thisCourt, I would allow £ costs of appeal as against the 1st and 2nddefendants. The 3rd defendant will bear his own coats.
Windham J.—I agree.
Set aside.