TILLEKERATNE v. SAMSEDEEN et al.

TILLEKERATNE v. SAMSEDEEN et al.

D. C., Colombo, 11,779.

Presumption as to formalities in execution of deeds-Civil Procedure Code, 9. 160 -Facts to be proved, before a deed executed by an illiterate person is admitted in evidence-Code of Mohammedan Laws-How far Mohammedans are governed by the Roman-Dutch Law-Right of Mohammedan wife to alienate her immovable property.

Where a deed is on the face of it regular, it will be presumed that all the formalities required by law were complied with in its execution.

The requirement of section 160 of the Civil Procedure Code that, before a document purporting to be executed by an illiterate person who cannot read is put in evidence, it must be proved that at the time his name was written on or his mark put to it he understood its contents, is merely directory, and may be waived by the parties to an action; and where a person denies the fact that he put his mark to a document, and that fact is proved by the opposite party, it is not necessary to prove further that he understood the contents of the document as required by this section.

Section 10 of Ordinance No. 5 of 1852 extends the Code of Mohammedan Laws drawn up in 1806 for the use of the Moors in the Western Province to all Mohammedans in the Island; and where, in matters relating to Mohammedans, this Code is silent the Roman-Dutch Law applies.

But inasmuch as a marriage contracted by Mohammedans is not in substance the same as a monogamous marriage contemplated by the Roman-Dutch Law, the limitation of the powers of married women under that law do not apply to the case of married women among Mohammedans, and the latter may therefore alienate their immovable property without the intervention of their husbands.

THIS was an action to vindicate a parcel of land which the plaintiff alleged was in the unlawful possession of the defendants. The land at one time admittedly belonged to the second defendant (a Malay woman) and her brothers and sisters. The plaintiff pleaded a conveyance by them by deed No. 574, dated the 6th January, 1882, to Jamel Hassen, from whom the plaintiff through certain mesne conveyances claimed title. The second defendant denied the execution by her of deed No. 574, and contended further that at its date she was a married woman, and not capable, on that account, of alienating her immovable property. Judgment was entered for plaintiff, and the second defendant appealed.

Walter Pereira, for second defendant, appellant,-The second defendant was a Malay woman, and was not subject to the Code of Mohammedan Laws introduced in 1806. That Code, as appears

from the Minutes of the Council that adopted it, was a Code of " special laws concerning Maurs or Mohammedans " to be observed by the " Moors in the Province of Colombo." A strict reading of section 10 of Ordinance No. 5 of 1852 would appear to show that the words " other parts of this Colony " therein used refer to parts other than the " Province of Colombo " and the " Kandyan Provinces " mentioned earlier in the same section. So that, as regards what used to be called the " Province of Colombo," the law remained the same as before, namely, that the Code applied only to Moors. Any way, even if the Code applied to the second defendant as a Malay woman, the law applicable to her as to matters not provided for by the Code is the Roman-Dutch. No doubt the Charter of 1801 conserved to all Mussalman natives of this Island the laws and usages by which they had theretofore been governed, but, although it was held in 59,578, D. C, Colombo (Grenier 1873-74, p. 28), that that provision of the Charter was still in force, the Privy Council, in the recent case of he Mesurier v. he Mesurier {1 N. L. R. 160) decided that the Charter of 1801 must be taken to have been wholly repealed by the Charter of 1833. So that, for laws peculiar to the Mohammedans of Ceylon we have to look to the Code of 1806 and that alone. Where t

Click Here to Read the rest of this document