Bakhshuwen and Another v Mohamed (Civil Appeal No. 33 of 1948) [1949] EACA 3 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill, C. J. (Kenya), EDWARDS, C. J. (Uganda), and BOURKE, J. (Kenya)

## (1) FATIMA BINTI BIN SALIM BAKHSHUWEN, and (2) AISHA BINTI BIN SALIM BAKHSHUWEN, Appellants (Original Defendants Nos. 1 and 2)

MOHAMED BIN SALIM BAKHSHUWEN, Respondent (Original Plaintiff)

Civil Appeal No. 33 of 1948

(Appeal from decision of H. M. Supreme Court of Kenya)

Wakf of property situated at Mombasa—Ultimate gift to Mosque—Validity— Mohammedan law—Application.

The respondent created two wakfs of property situated in Mombasa for the benefit of his two daughters (the appellants) and their children from generation to generation in perpetuity, and in the event of their total extinction for the benefit of the respondent's nearest relatives and failing them for the benefit of three Mosques.

The respondent instituted proceedings in the Supreme Court, Mombasa, seeking a declaration that the said wakfs were null and void, and the trial Judge, in giving judgment for the respondent followed the decision of the Court of Appeal in Civil Appeal No. 1 of 1946 (13 E. A. C. A. 32) where it was held that such a wakf was illusory and of no effect. That case concerned a wakf created in Zanzibar, and after the decision of the Court of Appeal the Government of Zanzibar enacted the Wakf Validating Decree, 1946, making such a wakf valid.

The appellants in the present case appealed to the Court of Appeal where it was submitted that the Court's earlier decision was wrong in law and should not be followed, and that as the present case was governed by the Shafi law it should be distinguished from the former case which was governed by the Ibathi law.

Held (2-3-49).—(1) That although, since the decision of the Court in Civil Appeal No. 1 of 1946 (13 E. A. C. A. 32), the Government of Zanzibar decreed that wakfs of the present type were valid, it could not afford any relief to the appellants because the appeal was<br>from the Supreme Court of Kenya and the wakfs related to the disposition of property situated in Mombasa.

(2) That until the Kenya Legislature may see fit to enact legislation similar to that enacted in India and Zanzibar wakfs such as those in the present case must remain invalid in Kenya.

(3) That there is no difference in the law of wakf between the Shafi and Hanafi or Ibathi schools.

Appeal dismissed.

(Obiter dictum, per Nihill, C. J.)—That in cases affecting personal status arising<br>between Mohammedans, it has always been regarded by the Court of Appeal and by the Supreme Court of Kenya that the law to be applied is Mohammedan law interpreted by judicial decision, but it is not conclusive that this rests upon a secure statutory basis<br>in Kenya, and therefore if the attention of the Executive should be directed to the law regarding wakfs as it now obtains in Kenya it is suggested that any such consideration might well include this wider question.

Abdul Fata Mohamed Ishak and others v. Russomoy Dhur Chowdhry and others (1894), 22 Indian Appeals 76 followed.

Said Bin Mohamed Bin Kassim El-Riami and others v. The Wakf Commissioners, Zanzibar, 13 E. A. C. A. 32 followed.

Other cases referred to: Talibu Bin Mwijaka v. Executors of Siwa Haji, 2 L. R. E. A.<br>33; Mistry Amar Singh v. Hazara Singh, 13 E. A. C. A. 18; Abdul Ghani Kassam v.<br>Hussein Mir, 10 A. I. R. 82; Mohamed Abdulla v. Abdul Rehman, 9 B

Bryson for the Appellants.

Inamdar for the Respondent.

(An application, by the appellants, for leave to appeal to the Privy Council in forma pauperis was refused on the ground that the Court had no jurisdiction to grant it, but in so far as leave was required under Article 3 (b) of the East African (Appeal to Privy Council) Order in Council, 1921, or leave of the Court was required to petition the Judicial Committee for special leave to appeal in forma pauperis, such leave was granted.—Editor.)

SIR BARCLAY NIHILL, C. J.—For the appellant to succeed in this case it is necessary for him to establish by cogent and overwhelming argument that the decision of this Court in Said Bin Muhammad Bin Kassim El-Riami and others v. The Wakf Commissioners, Zanzibar, 13 E. A. C. A. 32 was wrongly decided in that the Court was not fully seized of the correct principles of Mohammedan law applicable to that form of trust or disposition of property common to followers of the Prophet and known as a family of private wakfs. I will say at once that a great deal of high authority from unimpeachable sources has been cited to us in support of the proposition that in every school of law applicable to the Sunni sect it has been held by eminent jurists from the earliest times that an appropriation of property to charitable uses, with a direction that the objects of such charity shall in the first instance be the appropriators and their descendants and on their failure, the general body of the poor is a good and valid appropriation. I will also concede that it is likely, because the respondent was not represented before this Court in the above-mentioned appeal, that the Court did not have before them much of the authority that has been cited to us. In my view however even had these authorities been cited and considered by this Court it could not have come to any other decision than it did because that decision was based on the decision of their Lordships of the Privy Council in the leading case of Abul Fata Mohamed Ishak and others v. Russomoy Dhur Chowdhry and others (1894) 22 Indian Appeals 76. The effect of that case was to bind the courts in India, however unpleasing it may have been to Mohammedan practice and sentiment, to the principle that a perpetual family settlement expressly made as wakf was not legal merely because there was an ultimate but illusory gift to the poor. Up to 1913 when the Government of India by express legislation validated this type of wakf the Courts in India consistently followed, as they were bound to do, the principle enunciated by the Privy Council in the 1894 decision. When the same issue came before this Court in 1946 on an appeal from the High Court of Zanzibar the position was exactly the same as pertained in India between 1894 and 1913. Since 1946 the Government of Zanzibar has by decree and with retrospective effect declared that wakfs of this type are valid. This, however, affords no relief to the appellants in this case because the appeal is from the Supreme Court of Kenya and the wakf relates to the disposition of property situated at Mombasa. In the result therefore until the legislature in Kenya may, in its wisdom, see fit to enact legislation of a similar character to that enacted in India and Zanzibar, wakfs of this nature remain invalid in Kenya. If the prohibition of this type of wakf is as we have been assured it is, repugnant to Mohammedan practice and sentiment, it is for the leaders of that community to make representations in the proper quarter. Relief cannot be had from this Court.

Mr. Bryson, who appears for the appellants and who has argued his case with great care and determination, was fully alive to the difficulties which confront him in this appeal. He has cited to us the old case of Talibu Bin Mwijaka v. Executors of Siwa Haji, 2 L. R. E. A. p. 33, where Sir Robert Hamilton (Hamilton, $J$ , as he was then) boldly declined to be influenced by the decisions of the Privy Council in Indian cases. Whilst there may be much in that learned Judge's judgment to provide ammunition to those who seek an alteration of the law it is useless as an authority in face of the decision in this Court in the 1946 case.

Mr. Bryson has also invited us to distinguish between this Court's decision in 1946 and the present case because the former was governed by the Ibathi law and this case belongs to the Shafi school. This submission might be of service to Mr. Bryson had he not been bound to concede that so far as the principles to be applied to family wakfs are concerned there is no difference between the two schools. The Privy Council case of 1894 related to the Hanafi.

school of the Sunni sect but again the Indian decisions are to the effect that there is no difference in the law of wakf between the Shafi and Hanafi schools (see Mohamed Abdullah v. Abdul Rehman, 9 Bombay Law Reports 998 and All India Digest in column 1603). The learned Judge in the court below could take no other course than he did and this appeal must fail. If have one observation<br>to add which is *obiter* only but which, I think, should be said. It has always been regarded in this Court and in the Supreme Court of Kenya that in cases affecting personal status arising between Mohammedans the law to be applied is Mohammedan law as interpreted by judicial decision. Whether this rests upon a secure statutory basis in Kenya is however by no means easy to discover. Both learned counsel in this appeal showed great diligence in an endeavour to help the Court on this point but they could point to nothing which I regard as conclusive. If our consideration of this appeal should result in the attention of the executive being directed to the law regarding wakfs as it now obtains in Kenya. I make the suggestion that any such consideration might well include this wider question. This *obiter* should not be necessarily implying disagreement with any view expressed by the learned Judges in *Mistry Amar Singh v. Hazara Singh* (1946) Vol. XIII E. A. C. A. 18 on the application of the proviso to section 4 (2) of the Kenya Order in Council, 1921, in certain circumstances. $\blacktriangleright$

The appeal is dismissed with costs.

EDWARDS, C. J.—This is an appeal from a judgment of the Supreme Court of Kenya at Mombasa whereby the plaintiff (respondent) succeeded in obtaining a declaration that two wakfs created by him were null and void. The two wakfs. which are identical in terms, are the type of wakf considered by this Court in Civil Appeal No. 1 of 1946, Said bin Muhamed bin Kassim El-Riami and others v. The Wakf Commissioners, Zanzibar, 13 E. A. C. A L. R. 32. In that case this Court felt itself bound by the decision of the Privy Council in Abdul Fata Mohamed Ishak and others v. Russomov Dhur Chowdhry and others, 22 Calc., 619. The learned trial Judge in the case now before us felt himself bound by the decision in Civil Appeal No. 1 of 1946 but expressed the view that we may feel it open to us to reconsider our decision because of the fact that the respondent was not represented at the hearing of that appeal. This is true, in spite of the fact that at p. 32 of the report the name of Mr. Bryson appears as having represented the respondents. Mr. Bryson, who has appeared for the appellants in the present appeal, has satisfied us that he did not appear for the respondents in C. A. 1 of 1946 except at a very late stage on a matter concerning costs. He has, accordingly, now invited us to say that we need not be bound by the decision in C. A. No. 1 of 1946 in view of the fact that this Court when hearing that appeal, heard arguments on behalf only of the appellants. He further says that the present appeal is one from the Supreme Court of Kenya, while C. A. 1 of 1946 was an appeal from the High Court of Zanzibar. Subsequent to the decision of this Court in C. A. 1 of 1946 the High Court of Zanzibar passed a validating decree declaring valid wakfs of the kind in question and we understand that that decree has retrospective effect. The Abul Fata case was decided in 1894 and in 1913 wakfs of the kind in question became valid in India by reason of the passing there of a validating Act. Although the Zanzibar case was governed by Ibathi law while the present case is governed by Shafi law it is common ground, according to the learned trial Judge, that, so far as this litigation is concerned, these two schools of law are identical. That statement has not been challenged by either party in this appeal. The Privy Council decision in the *Abul Fata* case related to a wakf governed by the law of the Hanafi school but Mr. Bryson admits that there is, on the subject of wakfs of the nature of those now before us, no difference in law between these two schools. Nevertheless, Mr. Bryson has invited us, in effect, to say that we ought not to feel ourselves bound by the decision of the Privy Council in the Abul Fata case. In support of his contention he has relied on the following authorities, namely a *dictum* of Hamilton, J. (afterwards Sir<br>Robert Hamilton, C. J.) in C. C. 7 of 1903 Talibu bin Mwijaka v. Executors of Siwa Haji deceased, 2 E. A. L. R. 33 and 35, the "Minhaj" Book 23 Wilson's

Anglo-Mohammedan Law (5th Edn.) page 69 and 421, and appendix B and also Sir Ameer Ali's "Mohammedan Law" (4th Edn.) published in 1912 (one year before the Indian Validating Act) pages 24, 273 to 276, 287, 295, 305, 308, 315 and 340. In particular, he stresses the passage wherein it is stated that piety and charity have a much wider significance in Muslim religious law than in any other system of law. Mr. Bryson also cited Faiz Tayabjee's "Mohammedan Law" 3rd (1940) Edition page 538.

Mr. Inamdar, for the respondent, cited the case of Abul Ghani Kassam v. Hussein Mir, Vol. 10 All India Reports (Bombay High Court) pages 82 and 85 and Faiz Tayabjee pages 582 and 583 and Sir Ameer Ali's book page 315 and Vol. 37 Indian L. R. (Bombay series), 1913 page 447 and Mulla's "Mohammedan Law" (11th Edn.) page 22 para. 26. Notwithstanding Mr. Bryson's pressing invitation to us to disregard the decision in the Abul Fata case I feel that, until their Lordships of the Privy Council themselves review the position or until the Kenya Legislature sees fit to pass validating legislation, this Court has no option but to act as it did when deciding Civil Appeal No. 1 of 1946. I would, accordingly, dismiss this appeal with costs.

BOURKE, J.—In this appeal learned counsel for the appellants has undertaken the formidable task of convincing this Court that it ought not to follow its earlier decision in Said bin Muhammad bin Kassim El-Riami and others v. The Wakf Commissioners, Zanzibar, 13 E. A. C. A. (1946) 32, which was founded upon the judgment of the Privy Council in the case of Abul Fata Mohamed Ishak and others v. Russomoy Dhur Chowdhry and others, 22 Calc. (1894) 619. The Court is invited instead to embark upon an open inquiry involving a review and appreciation of principles of Mohammedan law that appear to have taxed the ingenuity of jurists and the comprehension of Courts in India prior to the decision by the Privy Council. That prospect would not do daunt were it necessary to ascertain and apply the law apart from what is laid down in the two cases under reference. The extreme difficulty, however, that confronts the appellants in maintaining their contention will readily be recognized when it is stated that the wakfs the subject-matter of these proceedings are of the same kind and are open to the same objection as the wakfs considered in the cases referred to, which are relied upon for the respondent as binding authorities. I say open to the same objection, because it is not in dispute and as is apparent from the copious references made to the works of commentators and to case law (see, for example, Mohamed Abdulla v. Abdul Rehman, 9 Bombay L. R. 998), could not well be in dispute, that precisely the same principles of law fall to be applied. In the Zanzibar case the Mohammedan law applicable between the parties was the Ibathi law; in the case that was followed determined by the Privy Council it was the Hanafi law; and in the present case it is the Shafi law. It is common case that these three laws of the Sunni sects do not differ in any material way in so far as they govern the creation of wakfs. Nevertheless, it is argued that because we are now concerned with Shafi law as distinct from Ibathi or Hanafi, that the earlier cases may be distinguished and put on one side while investigation of the legal aspect. of the question is commenced anew with no obstacle in the form of binding authority to stand in the way of the conclusion sought by the appellants, namely, that a wakf of the type under consideration is good and valid. But the distinction, of course, is one without a difference. It matters not at all what name is given to the branch of Mohammedan law applicable to the parties since the relevant principles of that law are the same as and coextensive with those of the law considered, interpreted and pronounced upon by the Privy Council in the case followed by this Court in its previous decision. In my opinion the law and its effect must be taken from the two earlier cases which constitute binding authority and there can accordingly only be one answer to the question, that is, that the wakfs the subject-matter of this litigation are invalid and void *ab initio*. I am further of the view that there is no substance in the ground of appeal to the effect that the appellants should be held to have established a custom overriding the law as laid down. I would dismiss the appeal with costs.

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