036-SLLR-1984-V1-ALITAMBY-AND-FOUR-OTHERS-v.-BASTIANPILLAI.pdf
CA
Alithamby v. BastianpUlai
243
AUTHAMBY AND FOUR OTHERSv.
BASTIANPULAICOURT OF APPEAL.
L. H. DE ALWIS, J. AND MOONAMALLE, J.
C.A. 230/73 (F) – D.C. VAVUNIYA 2659.
JANUARY 17, 1984.
Muslim Law of Intestate Succession – Devolution on husband and onlydaughter – Whether re-marriage of husband affects his rights to inheritance -Abandonment and ouster.:
One Mohamedu Meera Nachiya who owned the land in suit died intestate leaving asheirs her husband the 1st defendant and an only daughter Kadija Umma. In 1956 byP 1 Kadija Umma sold the entire land to an outsider and to this deed the 1 st defendantsigned as a witness. Twelve years later Kadija Umma re-purchased the land and sold itto the plaintiff: On receiving notice to quit from the plaintiff the 1 st defendant who livedon the land with his dependants undertook in a statement to the Police to vacate it on15.12.1969, having admitted he was on the land as a licensee.
On the failure of the 1st defendant and his dependants to do so the plaintiff institutedthis action in the District Court against them. The 1 st defendant averred that accordingto the Muslim Law of Intestate Succession he was entitled to half share of the (and andtherefore his daughter could not have conveyed the whole land. The learned DistrictJudge gave judgment in favour of the plaintiff. The defendants appealed from thisjudgment.
Held-
According to section 2 of the Muslim Intestate Succession Ordinance, the lawapplicable to intestacy is the law governing the sec} to which the deceased Musiimbelongs. This is the law applicable to the Shafei Sect of Sunnis to which the Muslims inSri Lanka belong. Accordingly in the present case on the death of his first wife, the 1 stdefendant was entitled to a one fourth share while the daughter was entitled to a halfshare. The fact that the husband remarried does not affect his rights of inheritance.
In this case however the 1 st defendant had been an attesting witness to the deed bywhich his daughter sold the entire land. In a voluntary statement to the Police he hadadmitted he was residing on the land with the consent of the plaintiff and badundertaken to vacate it. The conduct of the 1 st defendant amounts to an abandonmentof his rights which is stronger than ouster. In any event the transfer of the entire land byKadija Umma on P 1 with the knowledge of her father the 1 st defendant who signersa witness amounts to his ouster as a co-owner Thereafter the land had passed toseveral outsiders and was re-purchased by Kadija Umma 12 years later and sold to theplaintiff. The possession of the 1 st defendant was admittedly as a licensee and cannotcreate prescriptive title in his favour.
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Cases referred to
Wappu Marikkar. (1911) 14 N.L.R. 225.
Wangandi Umma v. Lebbe Marikkar, (1906] 10N.L.R. 1.
RabiaUmmav. Saibu. (1914) 17N.LR338
Abdul Majeed v. UmmaZaneera, (1959) 61 N.L.R. 361.
APPEAL from the District Court of Vavuniya
M. S. M. Nazeem for appellants.
H. L. De Silva. S.A. with S. Mahenthiram for respondent.
Cur. adv. writ.
March 9. 1984.
L. H. DE ALWIS, J.
It is common ground that the divided western 1/2 share of the landcalled Vappupen Sinnapillai Kudiyiruntha Valavu in extent 24 1/2 yardson the north, 21 yards on the south and 30 yards on the east andwest is the subject matter of this action and that it belonged at thematerial time to Mohamedu Meera Nachtya, and that she died leavingher husband S. Alithamby, the 1st defendant-appellant, and an onlychild, a daughter by the name of Kadija Umma. Kadija Umma alongwith her husband Mustaffa conveyed the land on deed 4360 of -8.6.56 (PI) to Mohammed Haniffa and it eventually devolved ondeeds P3, P4, P5 and finally on deed No. 9889, dated 30.3.68 (P2)on the plaintiff. The plaintiff's case is that he is entitled to the land asagainst the 1 st defendant and his dependants who are living on theland with his leave and licence. The 1 st defendant undertook to vacatethe land on 15.12.69 and when he failed to do so the plaintiffinstituted this action on 1.7.71.
The 1 st defendant took up the position that according to the MuslimLaw of Intestate Succession, a 1/4 share of the land devolved on him,on his wife Meera Nachiya's death, and only a 1 /2 share of the landdevolved on their only child Kadija Umma.
The learned District Judge has answered the issues on the basisthat the plaintiff is the lawful owner of the land and that the 1stdefendant is in wrongful and unlawful possession of the land andentered judgment for the plaintiff as prayed for. The defendants nowappeal from it.
The first question that arises for determination on this appeal iswhether according to the Muslim Law of Intestate Succession, MeeraNachiya's 'entire rights in the land devolved on her only child KadijaUmma, from whom the plaintif: claims title, or only a 1 /2 share of theland, while a 1/4 share devolved on her surviving husband Alithamby,the 1st defendant.
CA
Alithamby v. Bastianpillai (L. H. deAlwis. J.)
245
Section.2 of the Muslim Intestate Succession Ordinance provides,that the laW applicable to the intestacy of any deceased Muslim whoat the time of his death was the owner of any immovable property inCeylon shall be the law governing the sect to which such deceasedMuslim belonged. The authorities indicate that in Ceylon, the Muslimsbelong to the Shafei Sect of. Sunnis. See Wappu Marrikar (1);Mangandi Umma v. Lebbe Marikar (2); Rabia Umma v. Saibu (3).
In Mangandi Umma's Case [supra) it was held that there is nodifference between the various schools of Sunni Muslims in regard tosharers on intestacy, that is,* between Shafeis, Malikis and Hanafis.According to the Sunnite Law of Intestate Succession, a 1 /2 sharedevolves on the daughter as an only child, and a 1/4 share on thehusband. See Fyzee: Outlines of Muhammedan Law, 3rd Ed., page397, Ameer Ali: Mohammedan Law, Volume II page 47 ; Minhaj etTalibin-Muhammedan LawNawavi, page 247. See also Dr. Tambiah :Principles of Ceylon Law, page 192. The fact that the 1st defendantremarried does not affect his rights to inheritance.
Be that as it may, the 1 st defendant has by his conduct abandonedhis rights in the land. No specific issue was raised on this question atthe trial but it is covered by the issue of prescription that was raised.Moreover, being a question of law, it is open to this Court to considerit at this stage on the evidence led at the trial. On deed 4360 of8.6.56 (P1) Kadija Umma along with her husband has given aconditional transfer of the entirety of the land to one Haniffa for aperiod of five years, after the death of her mother Meera Nachiya. Ifthe 1 st defendant claimed any rights in the land he too should havejoined in the deed if he wished to convey his rights also to Haniffa.What was conveyed on PI was not a 1/2 share of Kadija Umma'sinterests in the land but the entirety of the land. The title recited in thedeed is that the land belongs to Kadija Umma by maternal inheritance.The land is described in extent as 24 1/2 yards on the north. 21 yardson the south, 30 yards on the east and west and is the land describedin D2. The 1st defendant who is the father of Kadija Umma hasfacknowledged the latter's title to the entirety of the land when hesigned as an attesting witness to the deed. Learned Counsel for theappellant submitted that the 1st defendant signed as an attestingwitness to the transfer of only Kadija Umma's share, which was thewestern 1/2 share of the land, while his rights lay in the easternportion of the land. But the eastern portion had earlier been gifted to
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[1984] 1 SriLR.
Kowa by Kadija Umma's grandparents. Indeed as the schedule in D2indicates, the land that devolved on Meera Nachiya was the dividedwestern 1/2 share of the larger land, and that is the land that wasconveyed on P1.
Another strong item of evidence against the 1st defendant is thecomplaint he made to the Police on 7.10.69 <P6). There, in nouncertain terms, he admits that the house and premises belong to hisdaughter Kadija Umma, and that she and her husband sold it to theplaintiff, Bastianpillai. He has thus acknowledged the fact that he hasno rights in the property. He goes on further to say that he is residingin the house with the consent of the plaintiff and undertakes to vacateit before the 15th of December. This is a further admission that hisoccupation of the house was with the leave and licence of the plaintiff.The 1 st defendant denied that he was living in the house with theleave and licence of the plaintiff but conceded that the statement tothe Police was made voluntarily by him when the plaintiff sent him anotice to quit; and he is bound by it.
Learned Counsel for the appellant submitted that an overt act isnecessary to oust a co-owner. In Abdul Majeed v Umma Zaneera (4)H. N. G. Fernando, J., stated that whether the presumption of ousteris to be drawn or not depends on the circumstances of each case. Inthe present case the circumstances are such that the conduct of the1 st defendant points unequivocally to a voluntary abandonment of hisrights in the land, which is stronger than an ouster and brings to anend co-ownership. In any event, the transfer of the entirety of the landby Kadija Umma on P1 with the knowledge of her father, the 1stdefendant, as an attesting witness to the deed, amounts to his ousteras a co-owner. Thereafter the land passed to several outsiders andwas re-purchased 12 years later by Kadija Umma, in January 1968,on P5 and then conveyed to the plaintiff on P2. The 1st defendantcannot avail himself of his 35 years possession of the land to create aprescriptive title in his favour because his possession is admittedly thatof a licensee.
In the result l am of the view that the plaintiff's case must succeedand the judgment of the learned Judge must be affirmed.
The appeal is dismissed with costs.
MOONEMALLE, J. – I agree.
Appeal dismissed.