086-NLR-NLR-V-19-SAPOOR-UMMA-v.-OMERDEEN.pdf
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tMT.
Present: Ennis J. and De Sampayo J.
SAPOOR TJMMA v. OMERDEEN.
176—D. C. Colombo, 6,682.
Muhammadanlaw—Intestatesuccession—Persondying. leaving sister
and cousins—" Poor.”
Under the Muhammadan law, where a person dies leaving : asister and cousins (sons of a paternal uncle), the sister inherits ihehalf and the cousins the remaining half.'
fpHE facts are set out in the judgment.
i
Bawa (with him Abdul Coder), for appellant.
Wadsworth (with him IsmaiV), for respondent.
Cur. adv. vult.
February 15, 1917. Ennis J.—
This appeal raises a question of the Muhammadan law of succes-sion. The deceased died leaving (1) a sister, the petitioner,^: and(2) cousins, sons of a paternal uncle. It is not disputed that thesister, the appellant, is entitled to half of the deceased's propertyas her " share ”; she, however, claims the remaining half. »
if
Article 56 of the Muhammadan Code of 1806 provides:“ If the
deceased has left a sister she is entitled to the half, and the popr tothe other half. ” Article 102, second paragraph, says:“ The shares
allotted to the poor by several* of the foregoing articles are not forthe poor, but must go to the asewatoekares, aroegamoedeweigel, andthe people of the fathers’ and the mothers’ side who are entitled tothe same. ”' '
The Code does not enumerate the peraons so entitled, and. it isconceded that where the Code is silent the principle of Muhammadan >law should be looked to. This was done in the case of Marikar v.Natchia.1■,
The classes of persons who by Muhammadan law are entitled in.turn to a distribution of the residuary estate are set out in in,anytext books (e.g., Wilson’s Anglo-Muhammadan Law, s. 224):—i
“ Class I.—Sons and sons’, h. 1. s.
“ Daughters and sons’ daughters, h. 1. s., when not sharers.
“ Class II.—Father (and true grandfather, h. h. s.).
“ Class III.—Brothers and brothers’ sons, h. 1. s., full or non-sanguine.
* (1916) 18 N. L. R. 44$.
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" Sisters, full and consanguine, when not sharers.
“ Close IV.—Sons and sons' sons, h. 1. s., of true grandfathers,h. h. s.; in other words, paternal uncleB, great uncles,&c., and their male descendants in the male line.
As the petitioner-appellant is a sharer,” she does not come inthe third class. The respondents are in the fourth class, and are,therefore, entitled to the residuary estate.
J would dismiss the appeal with costs.
De Sampayo J.—
I am of the same opinion. It was rightly conceded in theDistrict Court that the appellant, as sister of the intestate, was,under the Muhammadan law, entitled to a half of the property leftby the deceased. It is as ‘ ‘ sharer ” that she is entitled to suchhalf, inasmuch as there is an entire failure of those who would havebeen sharers before her. She, however, claims the other half also;as sole ” residuary. ” Now, ” residuaries ” are those who inheritso much of the estate as is not exhausted by the ” sharers, ” or thewhole if there are no ‘‘ sharers ” at all. It is a clear principle of theMuhammadan law of inheritance that sisters are residuaries onlywhen they are not sharers, and in the present case, therefore,residuaries must be looked for elsewhere. The last class' of resi-duaries are paternal uncles, great uncles, and their male descendants'-in the male line, and the respondents who are of that class aretherefore entitled to inherit the half left unexhausted by theappellant as sharer. Article 56 of the Ceylon Muhammadan Code,which applies to this case, puts it thus:“If the deceased has left
a sister she is entitled to the half, and the poor to the other half ’ ’;and Article 102 explains that the ” poor ” to whom shares areallotted means ” the asewatoekares, aroegamoedeweigel, and peopleof the fathers’ and mothers’ side who are entitled to the same.These, then, are the persons who, whether as residuaries or other-wise, inherit the half when the sharer is only a sister. The peculiarwords ” asewatoekares ” and “ aroegamoedeweigel ” refer to " resi-duaries ” and “ distant kindred. ” They appear to be barbarousArabic and Tamil compounds, the first signifying the ” residuariesand the second the ” distant kindred. ” See Nell’s MuhammadanLaw of Ceylon, p. 16~ The “ distant kindred ” are all those bloodrelations, whether near or distant, who are neither ** sharers ” nor“ residuaries, ” and are of four classes. Wilson’s Anglo-Mukam-madan Law, s. 239 et seq; Mula’s Principles of MuhammadanLaw, ss. 54 and 55. The rule of succession among the“ residuaries ” and “ distant kindred ” is that the residue is takenfirst by the residuaries to the exclusion of the distant kindred,and, in default of residuaries, then by the successive classes ofdistant kindred in their order. As shown above, the respondentsto this appeal are undoubtedly residuaries, and, therefore, take1
1917.
Ennis J,
SapoorUnvma v.Omerdeen,
( 344 )
1917.
Da SaispatoJ.
SapoorUrnrna v.-Omtrdeen
the entire residue after the diarer’s half has gone to the appellant.Mr. Bawa, for the appellant, suggested that the- appellant wasentitled to the residue by way of “ return, *’ but this involves thewhole question rather than meets it,' for the principle of the re-turn ” is that if there are no residuaries, the residue “ returns ” tothe sharer or sharers. In my opinion the District Judge was right inholding that the appellant was entitled only to a half share of theestate, and in allowing the respondents to intervene as heirs inrespect of the other half share; and I agree that this appeal shouldbe dismissed with costs.
Appeal dismissed.