Ahamath Et Al. V. Sariffa Umma

Present: Dalton and Drieberg J J.

AHAMATH et al. v. SARIFFA UMMA,

15-D. C. (Inty.) Colombo, 4,005.

    Muslim law-Power of testator to make free disposition-Bight of heir to portion-Property left to widow-Ordinance No. 21 of 1844r s.1.

A Muslim may dispose of the entirety of his property free from any limitation imposed on him under the Muslim law.

The incapacity created by section 2 of the Wills Ordinance, No. 21 of 1844, applies to persons who are prohibited from taking under a will by legislative enactment or on grounds of public policy.

APPEAL from an order of the District Judge of Colombo. The respondent applied for probate of the last will of her husband, Uduma Lebbe Ibrahim, by which he left all his property to her and appointed her executrix. The appellants, who are the brothers and sister of the deceased, opposed the grant of probate on several grounds, one of which was that under the Mohammedan law the testator could not dispose of more than one-third of his estate. The learned District Judge held against the appellants.

H. V. Perera (with Garvin and Deraniyagala), for appellants.- The Mohammedan law is clear that a testator cannot will away more than one-third of his property. The only question is whether section 1 of the Wills Ordinance, No. 21 of 1844, has abolished this restriction. In Shariffa Umma v. Mahamathu Umma1[1 14 N. L. R. 464.] it was held that since Ordinance No. 21.of 1844 a Muslim has an unrestricted power of alienation by will. But it is submitted that this decision is wrong. The appellant in that case was unrepresented by Counsel.
An examination of the Muslim law reveals the fact that the disability is not one really attached to a testator but to the heir. The principle is that no one heir should receive a larger share than any other. Thus the one-third that a testator is permitted to will away can only be left to a person other than an heir. The equality between the heirs is maintained, and one heir is not allowed to receive a larger share than another even though the testator should wish it.

Section 1 of Ordinance No. 21 of 1844 says " It shall be lawful for every person competent to make a will to devise, bequeath, and dispose of by will all property .... to such person or persons not legally incapacitated from taking the same, as he shall see fit. " A Mohammedan heir is one so incapacitated, and it is-submitted this will is invalid.

B. F. de Silva (with Canakaraine) for respondent.-Section 1 expressly states " No will made either within or beyond the limits of this colony subsequently to the time when this Ordinance shall commence and take effect shall be or be liable to be set aside as invalid or inofficious, either wholly or in part, by reason that any person who by any law, usage, or custom, now or at any time heretofore in force within this colony, would be entitled to a share or portion of the property of the testator, has been excluded from such share or portion or wholly disinherited by or omitted in such will. " Counsel cited Shariffa Umma v. Rahamathu Umma.1[114 N. L. R. 465.]

May 27, 1929. DRIEBERG J.-

The respondent applied for probate of the last Will of her husband Uduma Lebbe Ibrahim dated May 24, 1917, by which he left all his property to her and appointed her executrix. There were no children of the marriage.

Ibrahim died on April 30, 1928. Order nisi issued declaring the respondent entitled to probate, whereupon the appellants petitioned the Court opposing grant of probate on several grounds, viz., that the will was not duly executed, that it did not express the true intention of the testator, undue influence, and that under the Mohammedan law the testator could not dispose by will of more than one-third of his estate. They prayed for a declaration that Ibrahim died intestate and that letters of administration be issued. The learned District Judge held against the appellants on all t

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