117-NLR-NLR-V-42-JAMEEL-v.-HANIFFA-et-al.pdf
470
DE KRETSER J.—Jameel v. Haniffa.
1941Present: Moseley S.P.J. and de Kretser J.JAMEEL v. HANIFFA et al.
209—D. C. Colombo, 858.
Fidei commissum—Devise to sons and their heirs-—Rule of intestate succession—Muslim law.
Where a Muslim testatrix devised property to her two sons subject tothe condition that the property should not be alienated but should beenjoyed “ by their heirs from generation to generation in perpetuityunder the bond of fidei commissum ”.—
Held, that on the death of a devisee, his heirs would take according tothe rule of intestate succession applicable under the Muslim law.
.AlPPEAL from a judgment of the District Judge of Colombo.
N.Nadarajah (with him H. W. Thambiah). for plaintiffs, appellants.
C. Thiagalingam (with him A. H. M. Ismail), for first to fifteenthdefendants, respondents.
Cur. aclv. vuh.
March 28, 1941. De Kretser J.—
Pathumma Natchia by her last will dated July 2, 1859, devised certainlands to her two sons, Casi Lebbe Marikar and Sego Lebbe Marikar, subjectto the condition that the lands should not be alienated but should beenjoyed by the devisees “ and by their heirs from generation to generationin perpetuity under the bond of fidei commissum ”.
The two sons effected a partition of the lands devised to them and theland which is the subject-matter of this action was allotted to Sego LebbeMarikar, who died leaving eight children, two sons and six daughters.Plaintiffs contend that the sons became entitled to two-tenths each andthe daughters to one-tenth each, in accordance with the rule of Muslimlaw. Defendants contend that the children took equally.
The learned trial Judge upheld the defendants’ contention, being'guided by what he considered to be the intention of the testatrix. Aftermaking several devises the testatrix left the residue to all her childrento be taken “ share and share alike ”. From this the trial Judge inferredthat she intended that whenever a division came to be made whetheramong her children or her grandchildren or remoter descendants, theyshould always take share and share alike.
This argument' was repeated before, us but not with any confidence.Suffice it to say that each devise is complete in itself and can be inter-preted by itself; that different considerations might apply to each devise ;and that the fact that the testatrix took care to specify in one case, thatthe heirs should share equally shows that she was alive to the consequencesof not making such special provision. If at all, the argument might bethe other way.
It is not questioned that a fidei commissum was created. This willcame before this Court on a previous occasion when a widow of adevisee Claimed to come within the class of the beneficiaries. This Courtheld that the testatrix could not have intended a person like her since the
DE KRETSER J.—Jam.eel v. Haniffa.
471
beneficiaries were described as the “ heirs from generation to generationIt was held that the expression meant the descendants of the devisees.Counsel argues that the meaning of the decision was that the descendantstook in equal shares. As I understood him, he argued that as this Courtheld that the descendants were the beneficiaries and made ho qualification,therefore the decision meant that the decendants took equally. It isclear that no such meaning was intended.
He also argued that because, according to Muslim law, the widowwould be an heir and the widow was excluded, therefore the decision ofthis Court proceeded on the footing that the heirs referred to in the willwere not heirs under Muslim law. This contention too must be rejected,for all that this Court held was that the widow did not come within theterms used in the will.
Counsel’s next argument was that since fidei commissa were unknownto the Muslim law and were only recognized by the Roman-Dutch law,therefore every matter involved in the fidei commissum must be inter-preted with reference to the Roman-Dutch law. He referred us to thepassage quoted with approval by Drieberg J. in Balkis v. Perera’, whichsays:—“But in the construction of deeds, wills, fidei commissa, and inordinary matters of contract the principles of the ordinary general lawand not of the Muhammadan law are always applied.” He also urgedthat the Privy Council had decided in Weerasekera v. Pei-ris2, that twosystems of law should not be applied to one disposition of property.
How do these decisions affect the question now under consideration?What has now to be decided is not whether the Roman-Dutch law appliesregarding a form of contract or the sufficiency of the language used tocreate a fidei commissum nor the principles governing fidei commissa butwhat the words “ heirs from generation to generation ” mean and inwhat proportion those heirs take. To my mind there is no differencebetween the terms “ lawful heirs ” and “ heirs ” and in both cases the wordswould mean those whom the law recognizes as heirs. The Roman-Dutchlaw would say the term means the heirs according to intestate succession.In Samaradiwakara v. de Saram2, the Privy Council interpreted theexpression “ lawful heirs” to include those who according to the lawapplicable to the devisee would be his intestate heirs. The argumentwas urged that the Roman-Dutch law applying, and a widow not beingan heir under that system, she would not be included in the term “ lawfulheirs ”, but this contention was repelled and the widow being an heirunder the existing law she was declared entitled, not to an equal sharewith the other heirs but to the half share of a surviving spouse. It isquite sound therefore to say that the Roman-Dutch law would interpretthe term “ heirs ” to mean the heirs according to the law applicable to thecase. The simple question is who were Sego Lebbe’s intestate heirs?That question must be answered according to the law applicable to him,i.e., the Muslim law, and the heirs would take their shares according tothat law. This would also accord with the intention of the testatrix forit is inconceivable that she thought that her son’s heirs would be ascer-tained by any but the Muslim law merely because she used a notarial
» 29 N. L. R. 2S1.1 34 N. L. R. 281.
3 11 X. L. R. 321.
472
HOWARD C.J.—iMurensz v. Vyramuttu.
instrument unknown to Muslim law but known to our law and adopted adisposition of property unknown to Muslim law. Assuming that thewidow and the parents of the devisee might be included in the term“ heirs ”, she excluded them when she restricted the term to those fallingwithin the definition of “ heirs from generation to generation”. Therewas nothing to prevent her from doing this and the restriction did not-make the class of beneficiaries doubtful. The intestate heirs wouldnecessarily take according to the rule of intestate succession applicableto descendants, i.e., the males would have a double portion.
It was agreed that mesne profits would be raised to Rs. 840 and thatdamages should remain at the rate of Rs. 225 per annum. The decreewill be set aside and plaintiffs declared entitled to two-tenths (2/10) andto be placed in possession thereof, to Rs. 840 as mesne profits, Rs. 225 ascontinuing damages, and costs both in this Court and in the Court below.
•^Moseley S.P.J.— I agree.
Appeal allowed.