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Qct. 17,1911Present: Lascelles C.J. and Middleton J.
SHARIFFA UMMA et al. v. RAHAMATHU UMMA.
C. Kandy, 2,501.
Muhammadan law—Right to dispose of property by will—OrdinanceNo. 21 of 1844, s. 1.
The provisions of Ordinance No. 24 of 1844, section 1, enableMuhammadans in Ceylon to dispose of the whole of their propertyby will.
HIS was an application by the second petitioner for leaveto appeal in forma, pauperis. The facts appear from the
Ahamado Lebbe (second petitioner) appeared in person in supportof the application.
. H. A. Jayewardene, for the respondent.
Cur. adv. vult.
1 20 Oh. D. 780.
I 1 2 Ch. 684 : 67 L, J, Oh. 690.
1 4 App. Cases 736.* 11. n. 76,
I 465 )
October 17, 1911. Lascelles C.J.—
This application has reference to the estate of one Pakir TambyHabbibu Lebbe, who died at Kandy on July 5, 1906, leaving a willby which he bequeathed the bulk of his property to his widow, towhom probate was granted by the District Court of Kandy.
The testator, shortly before his death, had donated certain otherproperty to his wife, and had also, in May, 1905, leased an estateknown as Hakbawa to a Mr. Hayes, who appears as the thirdrespondent to the petition. The widow, shortly after the will wasproved, sold certain house property to the Kandy Hotels Companyfor, it is stated, Rs. 12,000.
In July, 1908, a petition was presented to the District Court byPakir Tamby’s widow Shariffa and Ismail Lebbe Marikar AhamadoLebbe, who are respectively the mother and step-brother of thedeceased, impeaching the will, on the ground that the testator couldnot, under the Muhammadan law, have legally disposed of so largea proportion of his estate, and praying that the will, the deed ofgift executed by the deceased to his wife, the deed of transfer tothe Kandy Hotels Company, and the lease in favour of the thirdrespondent should be declared void, and also that they might beallowed to proceed with the matter of the petition in forma pauperis.The petition was referred to a proctor under section 447 of the CivilProcedure Code. After a delay of over a year the proctor submitteda somewhat indefinite report, on which the learned District Judgemade the following order : “ I do not understand the proctor tosay that the applicants have a good cause of action, and I musttherefore reject the application.” From this order the petitionersnow appeal.
We are willing to waive technical objections, and to treat theappeal as an application for leave to appeal under section 778 ofthe Civil Procedure Code. The application, in my judgment, mustbe disallowed on at least two grounds.
In the first place, the applicants’ claim cannot be made in theform of a petition in the testamentary action. The claim puts inquestion the title to valuable property which has been sold orleased by the testator or by his legatee to third parties for goodconsideration. A claim of this nature cannot be disposed of exeeptby a duly constituted action, in which proper issues can be framedand tried. In the second place, the claim of the petitioners, basedas it is on the ground that a Muhammadan in Ceylon cannot disposeof more than one-third of his estate, must inevitably fail. It isquite true that by Muhammadan law a testator cannot lawfullydispose of more than one-third of his estate ; and before the passingof Ordinance No. 21 of 1844, the Courts in Ceylon gave effect tothis rule of Muhammadan law in District Court, Colombo, 51.428.1But Ordinance No. 21 of 1844, by section 1, made it lawful for
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“every person competent to make a will to devise, bequeath, anddispose of by will all the property within the Colony which at thetime of his death shall belong to him or to which he shall thenbe entitled."
This provision has uniformly been construed to enable Muham-madans in Ceylon to dispose of the whole of their property bywill, and the Muhammadan population in Ceylon has freely takenadvantage of the privilege. There are, at present, two cases pendingin appeal in which Muhammadan testators have disposed of thewhole of their property by will, and though the wills are impeachedon other grounds, the power of the testators to dispose of the wholeof their property is not questioned in either case. The Indianauthorities referred to by the second applicant are not in point, asthere is in India no enactment which extends to all persons, withoutdistinction of race or creed, the privilege of disposing of all theirproperty by will. The point raised by the second applican t wasraised in No. 241 Puttalam, Testamentary, where an apepal wasfiled against the ruling of the District Judge that the restrictionimposed by Muhammadan law on the power of testamentarydisposition was not in force in Ceylon. In appeal the judgmentof the District Judge was affirmed without reasons stated, eitherbecause the Court considered the point too well established forargument, or possibly because the appeal was not pressed by counsel.In my opinion the application must be dismissed.
I entirely agree, and have nothing to add.
SHARIFFA UMMA et al v. RAHAMATHU UMMA