ROSE J.—Sujfiyan and AndruTAppu.
1945Present : Rose J.
SUFFIY AN", Appellant, and ANDRIS APPU, Respondent.17—C. B. Malar a, 469.
Fidei commissum—Devise to children and descendants—Rule of intestate suc-cession not applicable—Muslim Last WiU.
Where a Muslim devised property to his two children “to he always
possessed by the said two children and their descendants”
Held, that on the death of a devisee his child would take accordingto the general Law and not according to the rule of intestate successionapplicable to Muslims.
Jameel v. Haniffa ei al. (42 N. L. R. 470) distinguished.
PPEAL, from a judgment of the Commissioner of RequestsMatara.
A. Bajapakse, K.C. (with him A. Seyed Ahamed), for the seconddefendant, appellant.
N.E. Weerasooria, K.C. (with him M. I. M. Haniffa), for plaintiff,respondent.
M.I. M. Haniffa, for third defendant, respondent.
Cur. adv. vuU.
December 6, 1945- Ross J.—
The substantial point raised in this appeal is as to the interpretationof a certain clause in the last will of one Meerakandu which was executedin 1826. The clause in question in so far as it is material reads asfollows:—
“ It is further directed that the immovable property bequeathedto my said two children and enumerated in the seventh and eighthparagraphs of the account hereunto annexed be always possessedby my said two children and their descendants
The second defendant-appellant, who is the only child of one AhamedDebbe Marikkar who was in the direct line of succession from Meerakandu
ROSE J.—Suffiyan and Andris Appu.
claims that she is entitled to a 2/8th share of the property in questionwhich is the full share owned and possessed by her deceased father.The respondents contended at the trial, which view was adopted by thelearned Commissioner, that the appellant is only entitled to a Jth sharebeing one half of the share held by her late father, since the rule ofintestate succession applicable under the Muslim law should be appliedto her case and that therefore she would take half of her father’s share,the remaining half being divided among her father’s brothers and sisters.Mr. Rajapakse concedes that the respondent’s view would be correctif the clause referred to “ heirs ” instead of “ descendants”, a view which issupported by Jameel v. Hartiffa et al1 but he argues that the word “ des-cendants ” demands a different interpretation. With this view I amin agreement and consider that it was the testator’s intention, adequatelyimplemented by the language used, that it should be the children onlyand not all the heirs who should benefit. There is one matter, however,which requires consideration and that is that the appellant’s father,Ahamed Lebbe, who was one of seven children and the only male, suc-ceeded to a 2/8th share of the property, each of his six sisters receiving a•Jth share, the parties apparently acting on the assumption that the ruleof intestate succession applicable under the Muslim law applied. AsMr. Haniffa for the respondent contends, it would seem to be inequitablethat the Muslim law of intestate succession should be applied to onegeneration and not to another and he suggests that, even though estoppelcannot be said to operate against the present appellant, I should haveregard to this consideration. In all the circumstances I am of opinionthat this is the fair attitude to be taken in this matter and I am, therefore,of opinion that the share to which the appellant is properly entitled isl/7th of the property, which is what Ahamed Lebbe her predecessorin title would have received had Mr. Rajapakse’s argument been acceptedby the parties when the division came to be made among Ahamed Lebbeand his sisters.
In the result therefore the amount of Rs. 30 awarded to the plaintiffon the basis that the appellant was only entitled to a £th share of theproperty must be varied to accord with the new fraction. There will beno costs of this appeal.
1 42 N. L. R. p. 470.