021-NLR-NLR-V-16-LEBBE-v.-THAMEEN-et-al.pdf
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Present: Lascelles C. J. and Ennis J.
LEBBE v. THAMEEN et al.
108—D. G. GaUe, 10,618.
Muhammadan law—Expert opinion—Reference to text books where ourCode is silent.
On a question of pure law (as distinguished from questions ofusage or practice), where our Code of Muhammadan law is silent,the proper course is to refer to the standard text books on thesubject, and not to resort to the opinions of experts.
T
HE respondent instituted an action for the partition of a land,and among other shares olaimed a one-fourth share which at
one time admittedly belonged to one Mohamed Cassim MariathoUmma.
Mariatho Umma died leaving her surviving her paternal grand-mother Howwa Umma, a paternal uncle Mohamado Koya, and twouterine sisters, the appellants (children of her mother BahimathoUmma by a second husband Mohamado Koya).
Mohamado Koya subsequently died leaving his mother HowwaUmma and two daughters, the appellants.'
In the year 1907 Howwa Umma purported to convey the one-fourth share in question to one Uduma Lebbe Marikar MohamedCassim, who subsequently, in 1908, purported to convey the sameto the plaintiff-respondent
The plaintiff-respondent contended that Howwa Umma- was sole' heir of Mariatho Umma, and claimed the share in question, throughher on the two deeds of 1907 and 1908.
The eighth and tenth defendants-appellants, on the other hand,contended that under the Muhammadan law on Mariatho Umma’sdeath her one-fourth share devolved as follows:—
Howwa Umma, one-sixth; the appellants, one-third jointly;and Mohamado Koya, half. That on Koya’s deathhis half share devolved as follows:—Howwa Umma,one-fifth; and appellants, four-fifths of the said half ofone-fourth share.
The learned District Judge (F. J. Smith, Esq.) delivered thefollowing judgment:—
The only question in this partition case is the manner in which -the share (one-fourth) belonging to Mariatho Umma, who died childless,is to be distributed. ''
The plaintiff claims the whole one-fourth by purchase fromHowwa Umma, who represents herself the sole heir of Mariatho Umma,and who shows that before selling in 1907 she leased this share in
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1919.
Lebbe «.Thameen
Ootober, 1902, for ten years (it is still under lease), her son Koyapullesigning the- lease as a witness. Her lessee was called as a witness at thetrial,, and says he duly possessed the one-fourth, and the contestingdefendants have been taking no share.
Howwa Umma is the paternal grandmother of Mariatho Umxna,and it is not seriously disputed that at her death Mariatho Umma left .also her mother’s second husband (her uncle before marriage) and herhalf-sisters by same mother, the eighth and tenth defendants, whonow state that under, the Muhammadan law they are entitled each tohalf (one-twelfth by one-tenth) as uterine sisters of Mariatho Ummaand heirs of their father.
The case is not one specially provided for by the Ceylon special“ laws.” But following the principles of Shafei law, as stated on pages12 et aeq. of Mr. F. H. de Vos’s Manual, the paternal grandmotherwould get one-sixth as her “ share ” ; neither the paternal uncle northe “ uterine sisters ” are “ residuaries,” so the residue should returnto the “ sharer,” and in effect the paternal grandmother inherits thewhole. This is supported in the present case by the fact that thegrandmother has been allowed to deal with the whole, with the fullknowledge and consent of her son Koya, the father of the presentclaimants, and the presumption is, as Stated by Mr. C. E. de Vos, thatshe dealt with what she was in fact entitled to.
I find the plaintiff’s title proved to the shares claimed' by him.The first to third defendants have not appeared to contest the proposeddistribution amongst themselves of the balance 25/72.
I find the parties entitled to the shares and interests as namedin the plaint and the surveyor’s report (excluding third defendant fromshare of second plantation, claim to which he has not troubled to prove).
Fifth defendant as lessee of a portion with a couple of yearsto run he will be entitled to occupy a proportionate part of the lotapportioned to plaintiff.
Issue commission for partition. Costs payable pro rata.
Enter preliminary decree accordingly. Contesting defendant topay plaintiff extra costs of contest.
The eighth and tenth defendants appealed.
Bawa, K.G., for the appellants.
H. A. Jayevmrdene, for the respondent.
Cur. adv. vult.
August 20, 1912. Lascelles C. J.—
In this case the only question is whether we are entitled to gobeyond the terms of what is known as the Muhammadan Code incases where that Code is found to be defective. It is admitted veryfairly by the. counsel for the respondent that, according to the rulesof succession set out.in Ameer Ali’s Muhammadan Law, in Vanden-berg’s work on the Muhammadan Law, and also in Mr. de Vos’swofk on Muhammadan Law, the schemb of inheritance set out bythe appellants in their petitions of intervention is correct, and thatthe judgment of the District Judge is erroneous. Now, I think
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I abh right in saying that it has been the practice of this Court formany years past- to refer to text books of authority on questions ofMuhammadan law where our own Code is defective, as it very oftenis. It would be easy to cite a large number of instances where thishas been done, and personally I do not see how our own so-calledCode can be understood or administered without reference to the textbooks on the subject. It is suggested that the proper course, whena difficult question of Muhammadan law arises, is to resort to theopinion of experts on Muhammadan law. It may be that there arecases in which that would be a reasonable course to adopt. But ona question of pure law, as distinguished from questions of usage orpractice, it seems to me that the proper course is to refer to thestandard authorities on the subject. There being no doubt at allas to the principles of succession that are applicable in this case, thejudgment of the learned District Judge must be set aside and adecree entered in accordance with the scheme of shares set out inthe appellants* intervention. The appellants are entitled to thecosts of the appeal.
IMS.
I*A8CELLB8
C.J.
Lebbe v.Thamem
Ennis J.—
I entirely agree, and have nothing to add.
Appeal allowed.