1949 Present : Nagalingam J. and Windham J.

ISMAIL LEBBE, Appellant, and HANIFFA, Respondent

S. C. 313-D. C. Kegalla, 4,048

 Partition-Muslim co-owners-Application of Roman-Dutch law of succession- Duty of Judge.

Where the co-owners of a land are Muslims governed by the Muslim system of jurisprudence, the Judge should apply the Muslim law of intestate succession and not the Roman-Dutch Law.

APPEAL from a judgment of the District Court, Kegalla.

M. H. A. Aziz, for fourth defendant appellant.

H. W. Jayewardene, with T. B. Dissanayake, for first and second defendants respondents.

C. E. S. Perera, with C. Seneviratne, for third defendant respondent.

Cur. adv. vult.

April 4, 1949. NAGALINGAM J.-

This is an action to partition a land the co-owners of which are Muslims governed by the Muslim system of jurisprudence. The contention put forward on behalf of the fourth defendant-appellant is that the learned Judge has failed to appreciate the Muslim. Law of intestate succession and has proceeded to apply the Roman-Dutch Law. This contention appears to be sound.

Counsel for the other respondents sought to seek an avenue of escape from this argument by asserting that there was no specific issue raised as to whether the succession that was to govern the parties was to be determined according to the Muslim, Law and relied upon the case of John Sinno v. Pedris Hamy [(1947) 48 N. L. R. 345.] where the principle was laid down that in an action of partition where the Judge finds that the parties before it are entitled to the land sought to be partitioned it will be improper for the Judge to travel beyond the issues suggested by parties as crystallizing the contest between them and embarking on his own upon a determination of other questions in regard to which no notice had been given to the parties.

That case is clearly distinguishable from the present. Here, not only was the question of Muslim Law expressly referred to in one of the issues (see issue 3) where the question was whether the particular intestate's share devolved on brothers, sisters and the issue of deceased sister and brother, or on surviving brothers alone, but also evidence was led of the order in which the brothers and sisters, the admitted co-owners died, although it was in evidence that all but one sister died leaving issue. Had it been within the contemplation of the parties that the Roman-Dutch Law was the law to be applied, the only relevant question

would have been as to who were the persons who survived the sister who died without leaving children. I am therefore satisfied that the-succession according to Muslim Law was asserted at least by the fourth defendant as forming the basis of devolution of this property.

One might start with the. admitted facts, namely, that under the-deed P1 of 1894, three sisters Sarah Umma, Amina Umma and Asia Umma became entitled to 3/4 share and as there was nothing said in the-deed as regards any particular method of division among them the presumption in law is that each of them was entitled to 1/4 share and that is the basis on which the action has been fought. The remaining 1/4 share was by deed P2 of 1894 gifted to their three brothers. Ismail Lebbe, the 4th defendant and one Hamidu Lebbe, each of them becoming entitled to a 1/12 share of the land.

It is common ground that Hamidu Lebbe was the first to die and that he died issueless; the plaintiff and the defendants other than the 4th defendant, who will hereinafter be referred to as the contesting defendant, were content to accept the position that on Hamidu Lebbe's death his share devolved on his two brothers, Ismail Lebbe, the father of the plaintiff, and the 4th defendant. It certainly was to the advantage both of the plaintiff and the contesting defendant that this proposition should find favour in the eyes of the other defendants but it is quite clear that the 4th defendant is a man of n