MOHIDEEN and others Appellants and SULAIMAN and others Respondents

056-NLR-NLR-V-59-MOHIDEEN-and-others-Appellants-and-SULAIMAN-and-others-Respondents.pdf

227
''BASXAYAICE, C.J.—Mohideen v. Sulaiman
1957Present: Basnayake, C.J.,andPulle, J.
MOHIDEEN and others, Appellants, and SULALNLAN and others^-Respondents'
' . S. C. 340}L—D. C. Colombo, 6.23S/F.
Muslim Law—Sale of land—Applicability of Roman-Dutch- Law—Fldelcommissum—Sale of contingent interest—Validity—Muslim Marriage and Divorce Act,No. 13 of 19-51, s. 99 (/) and (2)—Muslim Intestate. Succession and WalcfisOrdinance, No. 10 of 1931, ss. 2, 3, 4.'■
A contract of sale of immovable property between Muslims is governed, bythe general law, viz., the Roman-Dutch Law and the legislation applicable to.such a transaction.'
Where, in a salo of land between Muslims, the property sold was subject toa /ideicointnissiun and the joint vendors were the Jiduciariits and tlio ftdeicom-missarii—
Held, that the salo was not a transaction to which the Muslim Law applied,but one which was governed by the Roman-Dutch Law. Under the Roman-Dutch Law it is open to all those who have interests in a fideicommi-ssum toalienate the fidoieommissary property, -whereupon the -burden of fidei-commissum is ended..
Quaere, whether donations among Muslims during the time of the Dutchin Ceylon were governed by Muslim Law.'
jAlPPEAXi from a judgment of the District Court, Colombo. .
' y .•*
. H. V. Perera, Q.G., with 3Irs. F. P. Dias, for 2nd, 4th, 5th and 6thDefendant-Appellants.'
l-N.JS. Weerasooria, Q.C., with A. C. Nadarajah and JW. S. M. Nazeem,for Plaintiff-Respondents.-‘ .
4-A._C. Nadar&jah, with C. Chellappa.lt, for 1st Defendant-Respondent.
-Cur. adv: villi. ~
September 4, 19o7. Basxayaee, C.J.—:•
This is an action for partition of Lot B in Plan No. 2,379 dated 5thPebruary 1921 made by H. G. Dias, Licensed Surveyor. i .; –
-It is common ground that one'Abdul Rahman the originaZ ’owner ofpremises bearing assessment No. 23 St. Sebastian Street, Colombo, byhis Last Will dated 10th November 1S99 (Exhibit PI) donated the landhi equal shares to his brothers Sulaiman Lebbe Hamidu (hereinafter .referred to as Hamidu) and Sulaiman Lebbe Mohideen (hereinafter re-ferred to as Mohideen) subject to the condition that they “ shall not sell,mortgage, alienate or in any way encumber the said premises or.the rents,.-
228,X BASZyAYAivE, C.j,—.Mohideen v. Sulaiman-:/V; ‘ -‘;C
profi ts or incoihe arising thereof but shall only possess and enjoy the same"during their natural'lives and after ihei/death .the same shall devolve oh- their respective heirs and descendants. ’’• .”• .- ’'
The land was on 2nd March 1920 partitioned in action Kb. 50879 in theDistrict Court of Colombo, Hamidu being allotted Lot A in Plan No. 2379' dated 5.2.21 made by H. G. Dias, Surveyor, and Mohideen Lot B. Mohi-deen, his wife, and his two sons by deed No. 3190 of 5th March 1943 attested •by N. M. Zaheen, Notary Public (Exhibit 2D1), sold Lot B to the 2nddefendant who gifted an undivided 1 /3 share of the lot to his wife AyisliaUmma the 4th .defendant and the remaining undivided 2/3 to his two■ sons, the 5th and 6th defendants, subject to a life interest in favour of hiswife. The 2nd defendant is the guardian ad litem, of the 5th and Cthdefendants. Mohideen died in August 1945 leaving two sons MohamedSulaiman and Mohamed Atha, the 1st defendant. Mohamed Sulaimandied in 1947 leaving two sons, the 1st and 2nd plaintiffs. The 3rd de-fendant is the tenant of the 2nd defendant, from whom he has obtained alease of Lot B.-,.
It is. admitted by all the parties that the instrument PI creates a goodand valid fidei commissum. It is also not disputed that if the Roman-Dutch Law applies Mohideen, his wife and children were entitled to exe-cute the transfer in favour of the 2nd defendant and thereby pass a titleunfettered by the Jidei commissum. But it was urged by the plaintiffsand the 1st defendant that the law that applies is the Muslim Law andthat under that law the sale is void.
The learned trial Judge has upheld the contention that the only mannerin which Mohideen and liis sons could have transferred any right in Lot Bduring Mohideen’s lifetime was by a sale under the Entail and SettlementOrdinance. He also held that in any event the deed executed by thetwo sons of Mohideen conveyed no title under the Muslim Law to the 2nddefendant-.-
Learned counsel for the appellant contends that this is a contract of salebetween Mohideen, his two sons, and the 2nd defendant and that the law.which governs it is Roman-Dutch Law and that under that law it is opento,ail those who have an interest in regard to the fidei commissum toalienate the property whereupon the burden of fidei commissum is ended.(See Yoet, Book XXXVI, Title I, Sections 62 and Go.)
It is therefore necessary to ascertain in the first place whether the Muslim .Law governs the sale of Lot B. In the absence of any express provisionin the law to the contrary the common law of the land would ordinarilyapply to the transaction. A person who claims that a law other than the .common law applies must prove it.'v In the instant case admittedly the ,parties arc Muslims. In certain matters the jaw provides that Muslimsshall be governed by the special law applicable to them. > Even during , ':he time of the Dutch Government in matters of succession, inheritance,' ,narriage and divorce they were governed by their special laws. – ■ These laws ••vero collected in a volume entitled Byzondtre. Wetteri aangaande Moorenf Mohammedanen en andere inlandsche natien (Special Laws relating to
229
..__BASXAYAICE, C.J.—Mohidcen v. Sulaiman
Moors or Mohammedans and other native races)—(see Do Vos’s Moham-medan Daw, page 2)., – The application of these laws was saved by theProclamation of 23rd September 1799 which provides as follows :—'
• “ Whereas it is His Majesty’s gracious Command that for the presentand during His Majesty’s will and pleasure the temporary Administra-• tion of Justice and Police in the Settlements of the Island,of Ceylon,.now in His Majesty’s Dominion, and in the Territories and Dependenciesthereof, should, as nearly as circumstances will permit, be exercised"by us, in conformity to the Laws and Institutions that subsisted underthe ancient Government of the United Provinces, subject to such devia-tions in consequence of sudden and unforeseen emergencies, or to suchexpedients and useful alterations, as may render a departure therefromeither absolutely necessary and unavoidable, or evidently beneficial anddesirable … '.
“ We, therefore, in obedience to His Majesty’s Commands, do herebypublish and declare, that the Administration of Justice and Police inthe said Settlements and Territories in the Island of Ceylon, with theirDependencies, shall be henceforth and during His Majesty’s Pleasure, exercised by all Courts of Judicature, Civil and Criminal, Magistrates,and -Ministerial Officers,' according to the Laws and Institutions thatsubsisted under the ancient Government of the United Provinces, sub-ject to such deviations and alterations by any of the respective powers. and authorities hei'einbefore mentioned, and to such other deviationsand alterations as we shall by these presents, or by any future Procla-mation, and in pursuance of the authorities confided to us, deem itproper and beneficial for the purposes of Justice to ordain and publish,or which shall or ma}' hereafter be by lawful Authority ordained andpublished. ”
When the authority under which the Proclamation of 1799 was issuedwas repealed by the Roj'al Charter of 1801, Clause XXXII of that Chartercontinued the saving clause in respect of the customary laws of theMuslims and expressly extended it to the customary laws of the Sinhalese.The relevant clause reads :—.
– “ And provided also, that in the Cases of Cingalese or MussulmanXatives, their Inheritance and Succession to Lands, Rents, and Goods,-.'and all Matters of Contract and Dealing between Party and Party, shallbe determined in the Case of Cingalese, by the Laws and Usages of the. Cingalese, or in the case of Mussulmans, by the Laws and Usages of theMussulmans, and where one of the Parties shall be a Cingalese or Mussul-man,by the Laws and Usages of the defendant. ”
On 5th August 1S06 the Chief Justice submitted to the Governor inCouncil a “ Code of Mahomedan Laws observed by the Moors in the Pro- "yince of Colombo, and acknowledged by the Head. Moormen of the Dis-trict to be adapted to the present usages of the Cast It was publishedby Older of the Governor. The Code was entitled “ Special Laws Con-cerning Maurs. or Mahomedans ” arranged under two titles, the first .entitled “ Relating to Matters, of Succession, Right of Inheritances; and
228.BASNAYAKE, C. j.—Jlfohidcen v. Sulaiman >–
profits or income arising thereof but shall only possess and enjoy the same'
"• during their natural livesand after their death.the same shall devolve on -':• their respective heirs and descendants. ”“- .' •" '
The land was on 2nd March 1920 partitioned in action No. 50S79 in theDistrict Court of Colombo, Hamidu being allotted Lot A in Plan No. 2379" dated 5.2.21 made by H. G. Dias, Surveyor, and Mohideen Lot B. Mohi-deen, his wife, and his.two sons by deed No. 3190 of 5th March 1913 attestedby N. M. Zaheen, Notary Public (Exhibit 2D 1), sold Lo£ B to the 2nddefendant who gifted an undivided 1 /3 share of the lot to his wife Ayisha _Umma the 4th .defendant and the remaining undivided 2/3 to his two■ sons, the 5th and 6th defendants, subject to a life interest in favour of hiswife. The 2nd defendant is the guardian ad litem of the 5th and Gthdefendants. Mohideen died in August 1945 leaving two sons MohamedSulaiman and Mohamed Atlia, the 1st' defendant. Mohamed Sulaimandied in 1947 leaving two sons, the 1st and 2nd plaintiffs. The 3rd de-fendant is the tenant of the 2nd defendant-, from whom he has obtained alease of Dot B.-..
It is, admitted by all the parties that the instrument PI creates a goodand valid fidei commissum. It is also not disputed that if the Roman-Dutch Law applies Mohideen, his wife and children were entitled to exe-cute the transfer in favour of the 2nd defendant and thereby pass a titleunfettered by the fidei commissum. But it was urged by the plaintiffsand the 1st defendant that the law that applies is the Muslim Law andthat under that law the sale is void.
The learned trial Judge has upheld the contention that the only mannerin which Mohideen and liis sons could have transferred anjr right in Lot Bduring Mohideen’s lifetime was by a sale under the Entail and SettlementOrdinance. He also held that in any event the deed executed by thetwo sons of Mohideen conveyed no title under the Muslim Law to the 2nddefendant.
Learned counsel for the appellant contends that this is a contract of salebetween Mohideen, his two sons, and the 2nd defendant and that the law.which governs it is Roman-Dutch Law and that under that law it is opento. all those who have an interest in regard to the fidei commissum toalienate the property whereupon the burden of fidei commissum is ended.(See Voet, Book XXXVI, Title I, Sections 62 and 65.)
It is therefore necessary to ascertain in the first place whether the MuslimLaw governs the sale of Lot B. In the absence of any express provisionin the law to the contrary the common law of the land would ordinarilyapply to the transaction. A person who claims that a law' other than thecommon law applies must prove it.' /In the instant case admittedly the- parties'are Muslims. In certain matters the law provides that Muslimsshall be governed by the special law applicable to them. / Even during'the time' of the Dutch Government in matters of succession, inheritance,'marriage and divorce t hey were governed by their special laws. ' These lawswere collected in a volume entitled ByzondereWetlen aangaande Moorenof Mohammedanen en andere inlandsche natien (Special Laws relating to
BAS2CAYAKE, C.JT.—Mohidcen v. Sulaintan-229
"Moors or Mohammedans and other native races)—(see Do Vos’s Moham-medan Law, page 2).. – The application of these laws was saved by theProclamation of 23rd September 1799 which provides as follows :—'
– • ’ “ Whereas it is His Majesty’s gracious Command that for the presentand during TTis Majesty’s will and pleasure the temporary Administra-■ tion of Justice and Police in the Settlements of the Island,of Ceylon,.now in His Majesty’s Dominion, and in the Territories and Dependenciesthereof, should, as nearly as circumstances will permit, be exercised~by us, in conformity to the Laws and Institutions that subsisted underthe ancient Government of the United Provinces, subject to such devia-tions in consequence of sudden and unforeseen emergencies, or to suchexpedients and useful alterations, as may render a departure therefromeither absolutely' necessary and unavoidable, or evidently beneficial anddesirable … ".'.
" We, therefore, in obedience to His Majesty’s Commands, do herebypublish and declare, that the Administration of Justice and Police inthe said Settlements and Territories in the Island of Ceylon, with theirDependencies, shall be henceforth and during His Majesty’s Pleasure. exercised by all Courts of Judicature, Civil and Criminal, Magistrates,and Ministerial Officers," according to the Laws and Institutions thatsubsisted under the ancient Government of the United Provinces, sub-ject to such deviations and alterations by any of the respective powers. and authorities hereinbefore mentioned, and to such other deviations-and alterations as we shall by these presents, 'or by any future Procla-mation, and in pursuance of the authorities confided to us, deem itproper and beneficial for the purposes of Justice to ordain and publish,or which shall or may hereafter be by lawful Authority ordained andpublished. ”
When th.e authority under which the Proclamation of 1799 was issuedwas repealed by the Royal Charter of 1S01, Clause XXXII of that Chartercontinued the saving clause in respect of the customary laws of theMuslims and expressly extended it to the customary laws of the Sinhalese.The relevant clause reads :—.
■ “ And provided also, that in the Cases of Cingalese or MussulmanNatives, their Inheritance and Succession to Lands, Rents, and Goods,-,and all Matters of Contract and Dealing between Party and Party, shall- be determined in the Case of Cingalese, by the Laws and Usages of the. Cingalese, or in the case of Mussulmans, by the Laws and Usages of theMussulmans, and where one of the Parties shall be a Cingalese or Mussul-man, by the Laws and Usages of the defendant. ”
On 5th August 1S06 the Chief Justice submitted to the Governor in -Council a Code of Mahomedan Laws observed by the Moors in the Pro- 'yince of Colombo, and acknowledged by the Head Moormen of the Dis-trict to be adapted to the present usages of the Cast It was publishedby Order of the Governor. The Code was entitled “ Special Laws Con-cerning Maurs or Mahomedans ” arranged under two titles, the firstentitled " Relating to Matters, of Succession, Right of Inheritances; and
230/'-, ; '■ '» .-‘BASNAYAKE, C.J.-—Ufohideeh v.'Sutaiman ___
other Incidents occasioned by Death " and the second “ Concerning Matrix' monial Affairs ", – Although De Vos in his monograph on Mohammedan^Laws says that the Cpde of 1806 is' no other than a translation, from the?Dutch into English, of the Byzondere Wetten ”, the statement appearingat the end of the Code seems to’indicate that it was a compilation madeindependently. The -’statement runs thus:—…
“In tins manner we the Marcair Arbitrators Priests and Inhabitantshave according to our knowledge'and having consulted with the learnedHigh Priests, have stated the foregoing Articles as agreeable to the.Laws and Customs for to be observed, and have confirmed the same withour Signatures at Colombo the 1st of August 1806. ”
•-{Twenty names are appended)
The Code at first applied to the “ Province of Colombo ” only, but waslater extended to the rest of the Island by section 10 of Ordinance No. 5 of1852 which enacted as follows :—.-. ■
-■ “ The Code of Maliomedan Laws, entitled ‘ Special Laws concerningMaurs or Mahomedans’ promulgated on the 5th da3r of August 1S06,
. • and ordered to be observed throughout the whole of the province ofColombo, shall extend and be applied to the like cases, matters andthings between Mahomedans residing within the Kandj-an Provinces,
. and in other parts of this Colony, unless in any case other provisionis or shall be made by any Ordinance now in force in this Colony ox*hereafter to be enacted. ”
In extending the Code to the rest of the Island this Ordinance gave itthe force of an enactment of the Legislature. Thereafter the Code isdealt with as if it were a legislative instrument. Ordinance No. S of 1SS6which provides for the registration of the Marriages of persons professingthe Mohammedan faith expressly repealed a portion of the Code byenacting that “ So much of the Code of Mohammedan Laws of 1S0G as isinconsistent with this Ordinance is hereby repealed. ”
The Muslim Marriage and Divorce Registration Ordinance No. 27 of.1929, which replaced the Mohammedan Marriage Registration Ordinance .No. 8 of 1SS6, by section 4S repealed the second title of the Code fromsection Cl to section 102 (first paragraph) inclusive, subject to the provisoin that section. The Ordinance of 1929 was itself repealed by the Muslim . -Marriage and Divorce Act No. 13 of 1951, which contains the followingprovision:—..-
“ 99 (1). For the avoidance of doubt, it is hereby declared that therepeal of sections 64 to 101 and of the first paragraph of section 102 ofthe Mohammedan Code of 1806, by the Muslim Marriage and DivorceRegistration Ordinance, 1929, or the repeal of that Ordinance by thisAct, does not affect the Muslim Law of marriage and divorce, and thorights of-Muslims thereunder. ",…•
It is hereby further declared that in all matters relating to any',Muslim marriage or divorce, the status and the mutual rights and obli-ygations of the parties shall be determined according to the Muslim laxvgoverning the sect to which the parties belong. ”
• BASNAYAKJ3, C.J.—Mohideen v. Sulaiituin'231
The whole of the “ Muslim law governing the sect to which the parties- belong ” in regard to “ status and the mutual rights and obligations of theparties ” is for the first time in the history of the legislation on this subjectintroduced by 'sub-section (2) of section 99. What is Muslim law andwhere is one to find it is not stated. Until the Act of 1951 there was no•" indication in the legislation that there was any Muslim Law obtaining in’ Ceylon outside the Code or the Ordinance governing Marriage Registration.
– While the legislative measures I have referred to above dealt withinheritance and marriage it was not till 1931 that a comprehensive enact-ment providing for Muslim Testate and Intestate Succession and Dona-tions, and Muslim Charitable Trusts or Wakfs was passed in the form ofthe Muslim Intestate Succession and Wakfs Ordinance, No. 10 of 1931.The sections of that Ordinance material to the present discussion are thefollowing :—..
“ 2. It is hereby declared that the law applicable to the intestacy ofany deceased Muslim who at the time of his death was domiciled hi theIsland or was the owner of any immovable property in the Island shallbe the Muslim law governing the sect to which such deceased Muslim. belonged.
“ 3. For the purposes of avoiding and removing all doubts it is herebydeclared that the law apjjlicable to donations not involving field com-missci, usufructs and trusts, and made bj' Muslims domiciled in the Islandor owning immovable property in the Island, shall be the Muslim lawgoverning the sect to which the donor belongs.
Provided that no deed of donation shall be deemd to be irrevocableunless it is so stated in the deed, and the delivery of the deed to the doneeshall be accepted as evidence of delivery of possession of the movableor the immovable property donated by the deed.
. ,;4, It is hereby further declared that the principles of law pre-vailing in the maritime provinces shall apply to all donations, otherthan those to which the Muslim law is made applicable by section 3. ”
It would appear therefore that in the case of Muslims their special lawsgovern the following matters :—Marriage, Divorce, Status and Mutual.Rights and Obligations of the Parties to a Marriage or Divorce, Intestate'Succession, and Donations of Immovable Property not involving fideicommissci, Usufructs and Trusts. It should be noted that the Legislaturehas not extended the application of Muslim Law to contracts of sale and .that donations involving^rfei commissci arc excluded from the scope of the .Muslim Lair and the Roman Dutch Law is declared applicablo to them.
A contract of sale of land between Muslims is therefore governed, by thegeneral law—the Roman-Dutch Law and the legislation applicable to sucha transaction. Tiie sale by Mohidcen, his wife and two sons to the 2nddefendant, is therefore not a transaction to which the Muslim Laiv’applies,but one which is governed by the Roman-Dutch Law. The appellant is •
therefore entitled to succeed.', '=
•..• ; . -■■■.'W:-,
I cannot leave this judgment without referring to D. C. Colombo. Case. •No. 29129, Vanderstraaten’s Reports, Appendix B, p. xxxi, which appears •"
to be the sheet anchor of all the 'subsequent decisions on the subject of
' ~232 ■- • -/■ V –V BASNAYAKE, C.J.-—2dohideen v. Sulaiman
■' .Muslim 'donations, as learned counsel for the respondent called in aidthose decisions.- ;: The decisions of this Court commencing with.that case.which hold that donations among Muslims are governed by Muslim Lawproceed on the /assumption. that under the Dutch the Muslims were.governed by their special laws in the matter of donations.' . I say withrespect that I have not been able to find any justification for that■assumption.‘
The Judgment of the District Judge Lawson in D. C. Colombo CaseJNo. 29129 delivered in 1862, which according to Middleton J. (seeAffef udecn v. Perialamby x) received the imprimatur of this Court, does notcite any authority in support of the view that donations among Muslimsduring the time of the Dutch were governed by Muslim Law. OrdinanceLso. 5 of 1835, which is relied on by the District Judge, does not seem tome to support his view. That Ordinance is designed to save from repealthe. laws preserved by the Proclamation of 23rd September 1799. Therelevant saving words of that Ordinance'are —
“ the Administration of Justice and Police within the Settlements■ then under the British Dominion and known by the designation of theMaritime Provinces should be exercised by all Courts of Judicature, Civiland Criminal, according to the laws and institutions that subsisted under- the ancient Government of the United Provinces ; which laws and. institutions it is hereby declared still are and shall henceforth continueto be binding and administered through the said Maritime Provincesand their Dependencies, subject nevertheless to such deviations andalterations as have been or shall hereafter be by lawful authorityordained. ”,•
I have examined the Judgment of this Court in the case but find thereinnothing in support of the view that when the British succeeded theDutch in the Island the Muslim Law of Donations prevailed. It wouldappear from the Judgment of this Court that the custom governing^donations among Muslims was treated not as a matter of law but as a3 question of fact. The evidence taken after the case was remitted by this'.-Court for the purpose of recording evidence of custom relating to donations/among Muslims discloses a sharp conflict of opinion among the expertscalled on either side. Custom being a matter subject to change, the Dutchand after them the British acted wisely in collecting in the form of a Codethe customary law then subsisting so that years afterwards there wouldfbe no difficulty-in ascertaining the customary law governing the Muslimsunder, the Dutch and at the time the British succeeded them. The^enactments referred to in this Judgment gave the force of law not to the^customs obtaining among the Muslims at any given time but only to those-obtaining at the time of the British occupation. – Customs which havesince come into existence do not obtain force of law by virtue of the legisla-tion yeferred to earlier in the Judgment. On the other hand it would appearfrom the introduction to the Byzondero Wetten which is'.translated in–De -Vos!s Mohammedan Law that under the Dutch, Muslim Law appliedonly in resrard to succession, inheritance, marriage, arid divorce. .'
.» (1911) 11 X. L. B. 295 at 299.
Pereira v; Hal teal ur a' 233:
The question of- the law applicable to donations among Muslims hasnow been set at rest by section 3 of the Muslim Intestate and WakfsOrdinance, No. 10 of 1931. The decisions of this Court on the law appli- '• cable to donations among Muslims on which learned counsel for the res-pondent relied "afford no authority for the extension of the Muslim Tawbeyond the limits provided by statute.- , –
I accordingly allow the appeal and set aside the judgment of thelearned District Judge and make order dismissing the action of the plain-tiffs with costs both here and in the Court below. The plaintiffs and the1st defendant will pay the costs in equal shares to the 2nd, 4tli, 5th and 6thdefendants.
Pcixe, J.—-
I agree with my Lord, the Chief Justice, that this appeal should be-allowed with the consequences indicated by him.
The deed 2D1 is a conveyance on sale and I agree that the law by whichthe validity of this transaction should be judged is the Roman-Dutcli lawand not the religious Jaw governing Muslims.. There is no material onwhich I can hold that a principle of the religious law, if a nj’, which rendersvoid the sale of a contingent interest must be given effect to by the Courtsof this country, as having been received and accepted as part of our laws.
Ai^peal allmced.