Keatinge v Salim and Others (C.C. 8/1930 (Msa.).) [1930] EACA 74 (1 January 1930)

ORIGINAL CIVIL.

Before THOMAS, J.

W. B. KEATINGE $\mathbf{2}$

MOHAMED BIN SEIF SALIM AND THREE OTHERS. $C. C.$ 8/1930 (Msa.).

Mohammedan law—validity of an oral codicil to a will.

Validity of will which contains a Wakf which is harmful to the heirs.

Validity of gifts for charitable purposes.

Power of Court to set aside a renunciation.

Held:—That an oral will would require two witnesses, but in the absence of two witnesses the codicil would stand good if approved by the heirs. Will and codicil together should not dispose of more than one third of the estate.

Also held that a Wakf which deprives the heirs entirely is invalid, but it does not invalidate the whole will.

Also held that gifts for charitable purposes are valid, even though<br>the exact object of the charity be not mentioned.

Also held that the Court has power to set aside a renunciation.

Ross for plaintiff.

Wiggins and Rahman for Mohamed Bin Seif.

Budhdeo for Said Bin Seif.

Burke for Nasser Bin Scif.

JUDGMENT.—In this suit the public trustee by his amended plaint claims that he be granted Letters of Administration to the estate of Seif Bin Salim Bin Khalfan with will and codicil annexed; or in the alterative that he be granted Letters of Administration to the said estate with will annexed; or in the further alternative that he be granted Letters of Administration to the said estate.

Originally seven parties were made defendants to the suit But by an order of the 24th April, 1930, the fifth and sixth defendants were struck out in that all the other parties to the suit had agreed that whether the codicil were found to be good or bad the legacies under the codicil were to be paid to the fifth and sixth defendants.

Of the other defendants, the third defendant admits the plaint and agrees to the plaintiff being decreed such of the alternative claims as may seem just and proper to the Court; the second defendant, a minor, who appears by his guardian

ad litem Sir Ali Bin Salim, also admits the amended plaint and agrees to the plaintiff being decreed such of the alternative claims as may seem just and proper to the Court; the fourth defendants being the Wakf Commissioners for the Colony and Protectorate of Kenya have not appeared; the seventh defendant has not entered a defence.

There remains the first defendant. By his defence he has objected to the will on the ground that it was not made in accordance with the law or that the testator knew its contents, or was of testamentary capacity. He alleges that the second and third defendants are not the lawful children of the testator. He further disputes the validity of certain of the bequests and particularly of the bequest of 300,000 shillings for some charitable object; the bequest of 10,000 shillings for prayers, and any bequests in excess of one-third of the estate. He asks that the Court should pronounce against the will. In the event of Letters of Administration with the will annexed being granted he asks that the will should be declared invalid so far as regards the bequests enumerated in paragraph 5 of the defence. He also asks for a declaration as to who are the right and lawful heirs entitled to inherit the estate of the deceased according to law.

On the pleadings the following issues have been agreed between the parties:—

1. Was the will referred to in paragraph 2 of the plaint made in accordance with law?

$\mathbf{2}_{\cdot}$ Did the instructions for the preparation of a codicil to the said will referred to in paragraph 10 of the plaint constitute a valid testamentary disposition according to law?

At the times of making such will and/or codicil was the 3. deceased competent mentally and physically to make such will and/or codicil?

Were the documents sought to be propounded as such will and codicil or either of them accepted and approved by the testator as carrying out his wishes or embodying his instructions?

Is the plaintiff entitled to a grant of Letters of Adminis- $5.$ tration with the will and/or codicil annexed and if so. to what $\verb|extent?|$

$\overline{ }$ $6:$ If so, to what extent (if any) are the will and/or codicil invalid?

7. Are the second and third defendants or either of them the lawful sons and heirs of the deceased?

To what extent (if any) are the second and third defen-8. dants or either of them entitled to benefit:—

(a) In the event of the will and/or codicil being proved?

(b) In the event of an intestacy? $\cdot$

9. To what relief is the plaintiff entitled?

After the evidence of several witnesses had been taken asto the instructions for the will and the mental capacity of the testator, and as to the legitimacy of the second and third defendants, counsel for the first plaintiff stated that his client was now prepared to accept the evidence given by Sir Ali Bin Salim, and that therefore the answers to paragraph 4 of the issues would be in the affirmative except as to the codicil, and that the answers to issues 1 and 7 would also be in the affirmative.

The facts are briefly as follows:—Sheikh Seif Bin Salim Bin Khalfan, Liwali of Lamu, a brother of Sir Ali Bin Salim, was on the 16th day of August, 1928. brought to Mombasa by steamer from Lamu and went straight to the Native Hospital. He was suffering from gangrene of the left foot caused by diabetes. He died on the 28th day of August. Prior to his death he made and executed a will and gave instructions for a codicil. These are the will and codicil under consideration.

Mr. Charles Robert Philip, the medical officer, has stated that he was consulted as to whether the testator was in a fit state to make a will, and in his opinion the testator was fit mentally to understand what he was undertaking with regard to a will. He says that the testator's mind was rational throughout the time that he was in hospital until the last day as far as his memory and notes go.

Sir Ali Bin Salim states that the will was taken to the testator on the 24th. a Saturday, and that the testator seemed to be quite all right and that there was nothing wrong with his senses at all. It was that same day after the will had been read and explained that the testator gave certain instructions for the codicil. Those instructions had already been given to Hamed M'Barak who had made a note of them in Arabic.

From this evidence I am satisfied that the testator was in a fit state to make the will and the codicil. This has been conceded by counsel for the first defendant as far as the will was concerned. The admission may have been intended to apply also to the codicil; but to remove any doubt of this question I find as a fact that the testator was in a fit state to make the codicil as well as the will.

It has further been conceded by counsel for the first defendant that the will was accepted and approved by the testator and that the will was made in accordance with law.

I will therefore consider the question of the codicil. $Sir$ Ali Bin Salim has stated in his evidence that he explained to the testator what was in the will and asked whether he should bring the witnesses. He started to go for them when the<br>testator stopped him. Then the testator began to talk of the additions to the will, i.e., the codicil. Sir Ali Bin Salim told the testator that that was all right, and that the instructions were with him and that he would give them to the lawyer to translate into English, and that he would bring the codicil to the testator the next day. He goes on to say: "Prior to that Hamed M'Barak had given me a second set of notes for the codicil. The testator spoke of Koja Mosque. That was the first thing that he mentioned to me. He said that an open space should be added all round. I asked him how many feet he wished the width to be. He said I shall leave it to you entirely."

On the 25th Sir Ali Bin Salim returned with the codicil and the witnesses. But that day the codicil was not signed as the testator was not well enough. Sir Ali Bin Salim did not return as he himself was ill.

Harned M'Barak states that on the 23rd the testator asked him whether he had given the will to his brother as he had remembered something that he wished to add. "I said that I had already given that one and would write another. I wrote the notes from the testator's directions. I read them over to him and he agreed. I was the only person present when the codicil was taken down."

From this evidence it is clear that the directions for the codicil were given to one person only (Hamed M'Barak). They were not restated generally to Sir Ali Bin Salim since he said that the instructions had already been received. The reference to the Koja Mosque was made to Sir Ali Bin Salim alone.

The Mohammedan law allows a testator to make an oral In Wilson's Anglo-Mohammedan Law, 5th Edition, $will.$ p. 306, s. 282, it is stated that a Mohammedan will may be either oral or written. If oral, it must (probably) he made in the presence of two male adult Moslems as witnesses. On page 307 is given a passage from the Koran in which reference is made to two witnesses. The case of Auli Bibi, 28 Allahabad, 715, has been referred to. In that case a will carrying out the instructions was acknowledged by the testatrix and is therefore distinguishable from the present case where the instructions when embodied in a codicil were not acknowledged by the testator.

I have consulted the Chief Kadi on this question and he informs me that after making his will the testator could make $a$ codicil. Will and codic^$\alpha$ should not together dispose of more than one-third of the estate. The codicil would require two It would not be good unless proved. If the heirs witnesses. accepted the codicil it would stand good but without that approval of the heirs two witnesses would be necessary.

The heirs do not accept the codicil. There were not two witnesses present when the instructions were given, and when in the present suit, and therefore I would suggest that they be left over to be considered at the time that the accounts are presented.

Any order necessitated by this Judgment to be drawn up formally.

J