Decided on September 04,1944

Chutta Veettil Puthu Parambil Muhammad Koya And Ors. Appellant
Ponmanichandakath Katheessa Bi And Ors. Respondents


- (1.) ON 10th November 1936, one Puthen Veettil Umbichi Haji, a Mahomedan of the Sunni sect, died in Colombo possessed of considerable property there and in British India. He left a will dated 7th March 1933, to which he added three codicils, dated respectively 25th September 1934, 4th February 1936 and 9th April 1936. By his will and codicils he disposed of the whole of his estate. The broad question raised by the appeal is whether by reason of an ordinance passed by the Legislative authority of Ceylon he acquired full testamentary power. The testator was born at Chaliyam in Malabar in 1865. That this was the year of his birth has been agreed to by both sides in the course of the arguments in this Court. In his youth the testator migrated to Colombo where from a small beginning he built up a large fortune. His heirs according to Mahomedan law are his widow Katheesa Bi, his daughter Ayissa Bi and a cousin Moidin Kutti Haji, who died on 5th December 1936. The testator had another daughter Ameena Bi, who predeceased her father, leaving three sons, and a daughter. The suit which has given rise, to this appeal was filed by the heirs of Moideen Kutti Haji for the administration of the estate by the Court on the footing that the will was invalid. The Subordinate Judge held that the testator had acquired a domicile in Ceylon and that by reason of the Ceylon Ordinance No. 21 of 1844 he had full power to dispose of all his property by will. Consequently he dismissed the suit. The plaintiffs have appealed. They say that the testator had never abandoned his Indian domicile but, even if he had, the Ceylon Ordinance gave him no power to dispose of immovable property situate outside the island of Ceylon. For reasons which we shall in due course state we are of opinion that the Subordinate Judge was right in holding that the testator had acquired a domicile in Ceylon and that the Ceylon Ordinance gave him full power of disposing of all his property situate in the island and of moveable property wherever it might be, but we do not agree that it conferred upon him power of disposing of his immovable property in British India. His power of disposal of such property was merely that allowed by the Mahomedan law.
(2.) IT is agreed that for the purpose of deciding this appeal, it is not necessary to discuss in detail the directions given by the testator. It is sufficient to state that, after making a number of bequests and constituting a wakf, he left one -third of the residue of his estate to his widow, one -third to his daughter Ayissa Bi and the remaining one -third to the children of his deceased daughter Ameena Bi. It is common ground that, if the estate falls to be administered according to Mahomedan law, the testator's cousin, Mohideen Kutti Haji is entitled as a residuary to three -eighths of what falls to the heirs. We have no hesitation in agreeing with the Subordinate Judge that the testator abandoned his domicile of origin and acquired a domicile in Ceylon. It is true that his wife and daughters always lived in Malabar and that he bought a house in Calicut for the members of his family. It is in evidence that when a Moplah leaves Malabar to reside abroad his wife does not usually accompany him. It is the common practice for her to remain in her own locality and be content with visits from her husband. Throughout the fifty years during which the testator was living in Colombo, he paid very few, visits to Calicut and his visits were of very snort duration. He was married in 1913 when he was 48 years of age. After 1913 he visited Calicut only in 1915, 1918, 1926, 1927 and 1936; and as the Subordinate Judge points out, on each occasion special business brought him over to India. It is said that inasmuch as his wife and daughters were in Malabar and he had acquired a house in Calicut he must be deemed to have had an intention to return there when he had become too old for business and therefore the finding that he had abandoned his domicile of origin was erroneous. This contention ignores important evidence to the contrary. The first codicil to the will contains the following recital: Whereas I have executed my said last will and testament in accordance with the laws governing intestate succession in Ceylon, inasmuch as I have acquired my permanent domicile in Ceylon, and I have no intention whatsoever of abandoning the said domicile. There is evidence which cannot be contradicted and that it was his wish that he should be buried in Colombo and his wish was respected. In 1934 he applied for permission to be buried in the Wolfendal Mosque, Colombo. In this connexion representations were made to the Chairman of the Municipal Council and Mayor of Colombo by Mr. A. B. A. Razik, another prominent resident of that City. In a letter dated 17th August 1934 and addressed to the testator the Mayor stated that he had personally no objection in the special circumstances of the case to the grant of the permission when actually required. The testator was in fact buried in this mosque. At one time the testator contemplated building a mosque in Colombo in order that he might be buried, within its precincts. In addition to this evidence, letters have been exhibited which show that the testator regarded Colombo as his permanent home, and oral testimony which is not open to question that the testator had stated that he wanted to remain in Colombo for the rest of his life. As the testator had acquired a domicile in Ceylon, Ceylon Ordinance No. 21 of 1844 applied to him. The judgment of the Privy Council in Ahamath v. Sariffa Umma, 1931 A.C. 799 makes it clear that the ordinance conferred upon the testator complete power of disposing of all his property within the island of Ceylon. In these circumstances the bequests by the testator so far as they relate to his property in Ceylon cannot be challenged. It is an accepted rule of international law that a testator can dispose of his property according to the law of the country of his domicile. The country of domicile here was Ceylon and the law of that country recognizes full testamentary disposition. Therefore the testator had the right of disposing of his moveable property in British India.
(3.) WE shall now turn to the question of the bearing of the Ceylon ordinance on immovable property held by the testator in British India. It is said that the legislative authority in; Ceylon has no power to alter the personal, law of Mahomedans domiciled in the island so as to affect the succession to their immovable property situate abroad. This may be the case, but the Court is not called upon: to give a decision on the point, as it is quite -clear from the ordinance itself that the legislative authority did not intend to alter the Mahomedan law of succession in respect of immovable property outside the island. Section 1 of the ordinance opens with these words: It shall be lawful for every person competent to make a will to devise, bequeath and dispose of by will all the property within this colony which at the time of his death shall belong to him or to which he shall be then entitled. It will be observed that the power .is limited to all the property within the colony. Section 4 deals with wills made beyond the limits of the colony and this only applies to dispositions of immovable property within the colony. Therefore the ordinance leaves untouched the Mahomedan law in so far as immovable property situate abroad is concerned. In these circumstances there can be no doubt that the testator's immovable possessions in British India are governed by the lex situs, which is the personal law of the Mahomedans in British India. Under that law a Mahomedan can leave one -third of his estate as he likes, provided that he does not leave it to his heirs according to Mahomedan law. The testator did purport to leave property of his in British India to his heirs, namely, his widow and his surviving daughter. This was unlawful according to the lex situs and to this extent his will cannot stand. As they are not heirs according to Mahomedan law the testator's bequest to the children of his deceased daughter is lawful, provided that they do not get more than one -third of the immovable property .in British India. They cannot get more than one -third. After this legacy has been provided for, the widow will get one -eighth, Ayisa Bi one -half and the plaintiffs three -eighths of the immovable property in British India. All property in Ceylon and the moveable property abroad will be distributed according to the will. We may add that the gifts made by the testator during his lifetime and upheld by the trial Court have not been questioned in this Court. The case will be remanded to the trial Court with directions to administer the estate in accordance with this judgment. We consider that the costs of all parties, both here and below, should be paid out bf the estate.;

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