1912 Present: Lascelles C.J. and Ennis J.

LEBBE v. THAMEEN et al.

103-D. C. Galle, 10,612.

Muhammadan law-Expert opinion-Reference to teat books where our Code is silent.

On a question of pure law (as distinguished from questions of usage or practice), where our Code of Muhammadan law is silent, the proper course is to refer to the standard text books on the subject, and not to resort to the opinions of experts.

THE respondent instituted an action for the partition of a land, and among other shares claimed a one-fourth share which at one time admittedly belonged to one Mohamed Cassim Mariatho Umma.

Mariatho Umma died leaving her surviving her paternal grand mother Howwa Umma, a paternal uncle Mohamado Koya, and two uterine sisters, the appellants (children of her mother Rahimatho Umma by a second husband Mohamado Koya).

Mohamado Koya subsequently died leaving his mother Howwa Umma 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 Mohamed Cassim, who subsequently, in 1908, purported to convey the same to the plaintiff-respondent

The plaintiff-respondent contended that Howwa Umma was sole heir of Mariatho Umma, and claimed the share in question through her 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's death her one-fourth share devolved as follows:-

Howwa Umma, one-sixth; the appellants, one-third jointly; and Mohamado Koya, half. That on Koya's death his half share devolved as follows:-Howwa Umma, one-fifth; and appellants, four-fifths of the said half of one-fourth share.

The learned District Judge (F. J. Smith, Esq.) delivered the following judgment: -

(1) 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.

(2) The plaintiff claims the whole one-fourth by purchase from Howwa Umma, who represents herself the sole heir of Mariatho Umma, and who shows that before selling in 1907 she leased this share in

October, 1902, for ten years (it is still under lease), her son Koyapulle signing the lease as a witness. Her lessee was called as a witness at the trial and say he duly possessed the one-fourth, and the contesting defendants have been taking no share.

(3) Howwa Umma is the paternal grandmother of Mariatho Umma, and it is not seriously disputed that at her death Mariatho Umma left also her mother's second husband (her uncle before marriage) and her half-sisters by same mother, the eighth and tenth defendants, who now state that under the Muhammadan law they are entitled each to half (one-twelfth by one-tenth) as uterine sisters of Mariatho Umma and heirs of their father.

(4) The case is not one specially provided for by the Ceylon special  " laws." But following the principles of Shafei law, as stated  on pages 12 et seq. of Mr. F. H. de Vos's Manual, the paternal grandmother would get one-sixth as her " share " ; neither the paternal uncle nor the " uterine sisters" are " residuaries," so the residue should return to the "sharer," and in effect the paternal grandmother inherits the whole. This is supported in the present case by the fact that the grandmother has been allowed to deal with the whole, with the full knowledge and consent of her son Koya, the father of the present claimants, and the presumption is, as stated by Mr. C. E. de Vos, that she dealt with what she was in fact entitled to.

(5) I find the plaintiff's title proved to the shares claimed by him. The first to third defendants have not appeared to contest the proposed distribution amongst themselves of the balance 25/72.

(6) I find the parties entitled to the shares and interests as named in the plaint and the surveyor's report (excluding third defendant from share of secon