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Colonial Cases

In the goods of Abdullah

[succession]

In the goods of Abdullah

Supreme Court of the Straits Settlements
Malkin J., no date
Source: Straits Law Reports (Stephen Leicester, 1877) 16

 

IN THE GOODS OF ABDULLAH, DECEASED.

Will of a Mahometan alienating the whole of his property (although by the Mahometan Law he can alienate nobly one-third) is good pro tanto.  The administration granted by the Court to the Widow revoked, and the Will admitted to probate.  31st Match 1836.  Indian Law Commissioners' report, 1842.  Morton's reports, 19.

JUDGMENT OF SIR BENJAMIN H. MALKIN, KNIGHT, RECORDER.

   This was an application to set aside the administration granted to the widow of the deceased, a Mahometan, and to admit an alleged Will to probate.  There was no dispute as to the execution of the paper treated as a Will; but it was urged on the part of the Widow that the Will was inoperative, as not being conformable to the rules of the Mahometan law; the fact that it was not so conformable is admitted, and the only question is, whether for that reason the Will ought not to be admitted to probate.

   It would be sufficient for the decision of the present case to observe, that the Will is only at variance with the ruled of the Mahometan law, inasmuch as it professes to pass the whole property, and by that law, the power of the testator to bequeath his property extends only over one third part of it.  As to that third part, the testator has not exceeded his power, and the Will is at all events good pro tanto.  The consequence is, that the administration granted to the widow must be revoked, as having been obtained on the supposition that there existed no Will at all; and the Will must be admitted to probate (as rather, as I will mention hereafter a course slightly different adopted), as being an authentic instrument, of some force and validity; the question, to what extent it will be operative, remaining unaffected by the mere fact of such admission.  The result seems too obvious to require any authority to support it; but such authority, if wanted, will be found in the case of Syed Ally v Syed Kullee Mulla Khan, Sir T. Strange, Rep II., 180.

   As a general rule, I have been unwilling to express any opinion on points of law not necessarily coming before me for decision.  And accordingly, in several cases, where the same principle as that contended for in the present case has come incidentally in question, I have avoided expressing any opinion upon it; the parties in some instances having all wished their own law to be carried into effect, and the only question having been what was its true interpretation, and in others the party insisting on the benefit of his own law, having clearly failed to make out a claim, even upon his own principle. I am not willing, however, to avoid declaring  my opinion in this case; partly because the expression of it, though not necessary to the disposal of the present application, may prevent the parties from having recourse to further litigation, which otherwise must almost necessarily ensue; and partly because, as the question is not very likely again to be raised before me, I should be unwilling to have it supposed, as it easily might, from my having sometimes avoided its determination, that I felt it to be of considerable doubt.  I, indeed, have in substance expressed my opinion upon it before; and for that reason also, I am the less unwilling now without absolute necessity, to declare it.

   I refer to the case of Rodyk and others v. Williamson and others (24th May 1834), in which I expressed my opinion, that I was bound by the uniform course of authority to hold that the introduction of the king's charter into these settlements had introduced the existing law of England. [Vide Judgment in Regina v. Williams, 1858.] also, except in some cases where it was modified by express provision, and had abrogated any law previously existing.  I intimated much doubt, indeed, whether I should have agreed on such a construction of the effect of a charter had the question been a new one; but I felt bound by the  weight of authority, and decided against the continuance of the Dutch law at Malacca accordingly.  The Mahometan law can stand on no better footing, unless by the express provision of the charter; for the statutes giving the Mahometan and Gentoo inhabitants within the jurisdiction of the King's courts of Calcutta, Madras, and Bombay the benefit of their own laws, apply only to persons so resident.  The bulk of the inhabitants of India are otherwise protected.

   It may be worthwhile, however, before adverting to the terms of the charter, to observe that thought the Mahometan law cannot, independently of them, stand on a better footing here than the Dutch law at Malacca, it may very easily stand on a worse.  To place it on the same, it will be necessary to prove that it existed, not as the custom of a particular portion of the inhabitants, but as the law of the place up to the time of the first charter.  I believe it would be very difficulty to prove the existence of any definite system of law applying to Prince of Wales' Island or province Wellesley previous to their occupation by the English; but that law, whatever it was, would be the only law entitled to the same consideration as the Dutch law at Malacca; indeed, even that would not in general policy, though it might in strict legal argument; for there might be much hardship in depriving the settled inhabitants of Malacca of a system which they had long understood and enjoyed, but more in requiring the persons who resorted to these new and almost uninhabited districts (for such they were when we got them) to conform, as all settlers must, unless there is an express exception in their favour, to the law of the land they settled in.

   I have  said that I consider myself as having, in substance, disposed of the present question in the case of Rodyk v Williamson; for all the arguments applicable to the present case would have been applied to that also, the laws, customs, &c., of the Dutch being just as much preserved to them as those of any other class of inhabitants, except inasmuch as they may be less repugnant to the English law, and the Dutch law being also, which perhaps the Mahometan law might be proved to have been here, (but that would be a matter of evidence), the law of the country before the charter.  The latter argument, however, was not disposed of in that case; nor was it there contended that the general words of the charter, saving to the different inhabitants their several religions, manners, and customs, had the operation now ascribed to them.

   Nor, in my opinion, can any such operation be sustained.  If the question were entirely a new one, it would seem to me to admit of very little doubt.  The operation contended for is quite unlimited; it gives to all the inhabitants of these places the full benefit of their own laws, religions, and customs; for no line is drawn to confine the effect of the words relied on, either to any particular operations, or to any particular rights.  The effect contended therefore goes far beyond the state of the law at Calcutta, Madras, or Bombay, where the benefit, if it be one, is confined to Mahometans and Hindoos, and is limited to certain classes of rights, and privileges.  This is not a very probable operation of a charter made for the administration of law to a new population, and where therefore the reasons for such a reservation on the continent of India did not, at least to the same extent, exist.

   I confess, I am unable to see any words in the charter which can bear out such a result.  The passage relied on with respect to the present question is in page 21:

"That the said court of judicature shall have and exercise jurisdiction as an ecclesiastical court, so far as the several religions, manners, as customs of the inhabitants will admit."

There are, however, similar passages on other subjects in p. 41, 43, 47, 53; these all differ in the minutiae of expression, but I think there can be very little doubt that they were all means to give the same kind of protection.  It would be a very dangerous was of construing a document so loose in its expression as the charter to attribute all casual variations of phrase to a definite intention of affixing a different meaning.  But in the general impression the charter seems to have intended to give a certain degree of protection and indulgence to the various nations resorting here; not very clearly defined, yet perhaps easily enough applied in particular cases, but not generally, to sanction or recognise their law.  In the words of page 43, respecting the criminal proceedings of the court, "due attention is to be had to the several religions, manners, and usages of the native inhabitants;" or, as expressed in page 41, process is to be accommodated for such religions, manners and usages, "so far as the same can consist with the due execution of the law and the attainment of substantial justice." In the last extract "the law" is clearly distinct from those native laws which are to be favoured subordinately to it.

   I see no reason to ascribe a different construction to the words giving ecclesiastical jurisdiction.  And it is to be observed that in the detailed provisions respecting such jurisdiction no such words are found; they are only inserted in the general description of the jurisdiction of the court; it might therefore be open to contend that they applied only to other matters of ecclesiastical cognizance not expressly included in the subsequent minute directions.  But without insisting on this, which would probably be too strict a construction.  I think there is abundantly enough in these provisions of the charter to show that no such recognition of the different laws of different inhabitants could obtain.  The court here is to grant probate and administration of the wills and effects of all the inhabitants, and all other persons who shall leave property here; the courts in the presidencies of India have such jurisdiction given them only over the estates of British subjects, and accordingly it has been held at Madras (Chalumal v. Garrow, Sir T. Strange, II. 133, recognised in Syed Ally v Syed Kullee Mulla Khan, ib. 186) that no probate or administration was necessary in the case of native estates, though the court did not refuse to grant it.  In the same manner it would not be here, for certainly it is neither Malay nor Hindoo nor Chinese law that a part can have no representative character unless derived from the court of judicature established here under the charter of the King of England, and proceeding according to the law used in the diocese of London.  The mere fact, therefore, that administration and probate have always been applied for, seems almost to negative, as far as general usage and understanding is material, the argument advanced.

   This observation is important, because Mr. Caunter, the Advocate on part of the widow, relied much on the general practice of the Court as invalidating the Will, and recognising the national law of the testator.  No decisions, however, are cited in detail, and much of the practice referred to might be only like that which has obtained before myself, that, where the parties contested a matter on the footing of their own law, the court did not interfere nor insist upon their adopting another.  In many cases too, the laws and usages would be material; the propriety of an administrator's account, for instance, might depend on the religious usages of his nation as to burial; the propriety of his application of property might sometimes depend on his native law or custom of marriage.  And in respect of Wills, to one case of which Mr. Caunter adverted rather more particularly than to any other instance, everything as far as the Will is acted in at all, must depend on its construction merely.  I should say that the Court ought very readily to collect from the expression of a Will that the testator intended his property, so far as not particularly disposed of, to follow the law to which he was accustomed.

   This, in a Will very recently exhibited before me, I should have no doubt that a direction by a Mahometan, that the property should be distributed "according to the Laws of God," implied distribution by the Mahometan law of descent. [Vide Judgment in Regina v. Williams, 1855.] If such a party disposed of the third part of his property expressly as that which only he should alienate by Will, I should treat it as a clear declaration of his expectation and intention that the rest should follow the course of that law by which, and by which only, the power was so limited.  I put plain and easy cases on purpose, but the same principle would very often, in my judgment, have to be applied.  But all these would be decisions not on the legality, but on the construction of a particular Will, and such, in the absence of minute information, I would believe to be the character of most or all of the testamentary cases referred to.

   On the whole, I should entertain little doubt on the question, had I not the authority of Sir Ralph Rice against me.  I cannot, however but think, that though his opinion undoubtedly differed in some degree from mine, it must either be inaccurately reported in the passages referred to by Mr. Caunter, or else must nave been given without reference at the time to the provisions of the charter under which he had then ceased to act for nearly seven years.  I come to this conclusion, because I find him drawing a marked distinction between the civil and criminal law, for which, even independently of the general principle already adverted to, or putting the same construction on provisions generally similar, I do not find that warrant in the special wording of the charter which he seems to have considered existing.  With respect to the criminal law, Sir R. Rice (Art. 1386, p. 174, of the Evidence before the House of Lords, 1830) expresses himself in a manner not much differing from my own, though corresponding perhaps to a rather wider interpretation of the clauses protecting the natives.

   Bur he draws a distinction between the criminal law and that affecting civil rights, with respect to which he says, that the court was bound by the clause in the charter to administer the law to every part of our mixed population according to their respective laws and customs.  Now, in the detailed provisions as to the prosecution of civil suits, no reference whatever is made to the religions, manners or customs of the parties except as to the admission of oaths and the framing of process where the passage at page 41, already referred to, is to be found.  And in the general description of the jurisdiction of the court nothing of the kind is said in the enumeration of the causes of action and parties subject to it, and the words of the clause giving it the same authority as the courts of common law and equity in England are only that these powers are to be exercised "as far as circumstances will admit."  The distinction therefore between the civil and the criminal law would seem, to be rather against than in favour of the more extended adoption of the native laws into the former; and I cannot therefore but think that there must be some error, either in the report of the learned judge's examination, or in his recollection of the words of the charter.

   Still it is evident that his practice must have been in some degree contrary to the opinion I have expressed.  Under these circumstances, I cannot but distrust my own judgment; still, as the case, independently of this one authority, seems to me a clear one, I must act on my own impression. The question will probably still be considered doubtful, but I ought not, at all events, to leave it as one where a decided opinion had been expressed on one side only, when my own is equally clear on the other.

   It may be desirable to call to notice that it is the fault of native holders of property if any inconvenience results from the present decision, supposing it to be established at law.  The law to which I consider them as subject gives the most unlimited freedom of disposal of property by Will; and any man therefore who wishes his possessions to d evolve according to the Mahometan, Chinese, or other law, has only to make his Will to that effect, and the court will be bound to ascertain that law and apply it for him.

   The general result is, that the administration granted to the widow must be revoked, the Will of Abdullah being established as a valid instrument.  Still it does not appear to me to amount to a complete Will, constituting Growk the executor of all his property; it is only a disposal of part in his favour, and contains nothing to show that he was intended to have the general management; if not, he is not designated as executor, and he can only obtain administration with the Will annexed in the usual manner, by giving notice and filing a proper petition.  The present partition may, however, if he wishes it, be amended to that effect, without payment of costs.  But it is necessary to observe that the widow may very probably have a better claim to administration with the Will annexed than he, if she wishes to dispute his right.  Where the testator constitutes an executor, the court has nothing to do with the selection; the Will, if effective at all, is effective in that particular.  But where the Will appoints none, and administration is therefore necessary, the court has its usual duties to perform, and the parties their usual rights to enforce.  The fact that the testamentary paper gives a benefit to a particular individual, may, according to the circumstances of the case, be a strong reason for either selecting him for the administration, or for excluding him from it.  But the regular course of petition and notice must be adopted, to give the parties interested an opportunity of coming in and urging their claims.

   The claim therefore of Growk's petition is granted, as far as it respects the revocation of the administration granted to the widow.  As far as the grant of any powers to himself is concerned, the petition must be amended.  It would be premature to make any order about the costs, while it is yet uncertain, who will have the general management of the estate.  But I entertain no doubt t that the widow will finally be entitled to receive the costs of her present opposition out of the estate.  The question must at last be considered as one very fit for discussion; and the estate therefore may properly be charged with the costs incurred, in consequence of the doubtful legality of the course adopted by the testator.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School