CASSIM et al. v. PERIA TAMBY et al.

CASSIM et al. v. PERIA TAMBY et al.

D. C., Matara, 1, 048,

 

Charter of 1801, clause 32-Mohammedan Law-Witt, construction of.

The will of a person falling under the designation " Mussulman native, " as used in the Charter of 1801, must be construed, not according to the Roman-Dutch Law, but according to the laws and usages of the Mussulmans, as provided by clause 32 of that Charter.

THE facts of the case appear in the judgment of Bonser, C. J.

Layard, A. -G., for appellants.

Darnhorst, with Wendt, for respondents.

15th September, 1896. Bonser, C. J. -

This is an action to recover an undivided moiety of a garden situated at Matara, which was bequeathed by the will of the testator who died in 1826. The testator appears to have had two children then living, a daughter who was betrothed, and being of tender years not given in marriage to her husband, and also a son, " who was also of tender years. The testator by his will gave certain charitable and other legacies and annuities.

With respect to certain immovable property, which was specified in a certain schedule appended to the will, he directed that his nephew, the intended. husband of his daughter, whom he had appointed executor, should take charge of this property until his children respectively attained majority, when the executor was to deliver over possession to the children of the immovable property bequeathed to them respectively with the accumulations. The land which is the subject of the present action was included amongst the immovable property which was bequeathed to the son. In the year 1839 the executor sold this land, and it has been enjoyed ever since, until the institution of this action, by the purchaser and his successors in title, without any disturbance, except as to one undivided half thereof. It is admitted that at the time of the sale both the children were minors. I should mention that one undivided half of this land was bequeathed to the son, and the other to the daughter. In March, 1857-the daughter being then dead-her children instituted an action against the purchaser to recover the half share of the garden, which had been devised to their mother, on the ground that the clause of the will which I now proceed to read constituted a fidei commissum in their favour. The clause is as follows: -

" It is further declared that the immovable property be " queathed to my said two children and enumerated in the 7th and " 8th paragraphs of the account hereunto annexed be always

" possessed by my said two children or their descendants, but that " they cannot at any time either sell or mortgage the same to " any person whomsoever. " The District Judge who heard the case appears to have decided the case against the plaintiffs. The case then came on in appeal to this Court, which decided that the provision in the will did create a valid fidei commissum, and that the plaintiffs were entitled to recover a moiety of the said land. Now, it will be seen that this judgment construes this will as being a will governed by the Roman-Dutch Law. But the testator was what is commonly known as a " Moorman "-one of that class who in the Charter of 1801 were denominated " Mussulman natives. " I cannot gather from the report of the case that this fact was present to the minds of the learned Judges who decided this case. It seems probable that it was treated by all parties as being a will which was governed by the Roman-Dutch Law. If I were satisfied that this Court in 1867 had deliberately determined that this will was governed by the Roman-Dutch Law I should hesitate before I decide otherwise, and in any event I should not venture to dissent from the interpretation put upon that will by this Court in 1867.

It seems to me, however, that this will ought not to be construed by the Roman-Dutch Law, but in accordance with the laws and usages of the Mussulmans, as provided by clause 32 of the Ch

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