Khan v Fatima (P. & A. Cause 6/1929 (Nakuru).) [1929] EACA 111 (1 January 1929)

## 111

### PROBATE AND ADMINISTRATION.

### Before THOMAS, J.

# IN THE ESTATE OF FAIZ KHAN, deceased. SARDAR KHAN (Applicant)

v.

## GULAM FATIMA (Respondent).

P. & A. Cause 6/1929 (Nakuru).

### Mohammedan Law-wills.

$Held:$ —That an oral will can be made by a Mohammedan. Two witnesses are necessary.

Where there is a reputable witness supported by other witnesses the Court is justified in finding not only that a will has been made but also that its contents have been proved, and the Court may also accept the evidence of the reputable witness where it differs' from the evidence given by the other witnesses.

Schwartze and Said for applicant.

Hopley for respondent.

ORDER.—This is an application by Sardar Khan that an oral will made by one Faiz Khan should be admitted to probate in solemn form and that probate should be granted to the applicant. The law as to the making of wills in the Colonv is contained in the Indian Succession Act (No. 10 of 1865). Section 2 provides:-" Except as provided by this Act or by any other law for the time being in force the rules herein contained shall constitute the law of (British India) applicable to all cases of intestate or testamentary succession." Section 331 provides that "The provisions of this Act shall not apply to the property of any Hindu, Mohammedan or Buddhist."

By the Mohammedan Divorce and Succession Ordinance, Chapter 171 Laws of Kenya, section 4, "Where any person contracts a marriage or, being a male, contracts marriages, in accordance with Mohammedan law, whether such marriage or marriages shall have been contracted either prior or subsequently to the commencement of this Ordinance, and such person dies after the commencement of this Ordinance, and where the issue of any such marriage or marriages dies after the commencement of this Ordinance the law of succession applicable to the property both movable and immovable of any such person shall be in accordance with the principles of Mohammedan law, any provision of any Ordinance or rule of law to the contrary nothwithstanding." The word succession would seem to include succession by will, and force is given to this interpretation by the

fact that wills and the formalities requisite in making wills is dealt with under the Succession Act to which I have referred above.

Accordingly I find that an oral will can be made by a Mohammedan. No question has been raised as to the marriage of the testator in this case and therefore I find that the testator Faiz Khan could make a valid oral will.

The applicant alleges that such a will was made by the testator a few days prior to his death on the 28th of April, 1929.

The will was made (according to the case for the applicant)' in the presence of a number of people and a Doctor John Peter Andrews. The applicant alleges that the wife of Faiz Khan was also present. This she denies and alleges that all the witnesses are putting forward a concocted story.

The advocate for the respondent endeavoured to show that each one of the witnesses for the applicant had some motive or interest in setting up the oral will. With regard to the evidence of the doctor it is suggested that inasynuch as it has been shown (according to the advocate for the respondent) that all the other witnesses have an interest or motive, then it is to be deduced therefrom that the doctor also had an interest or motive, somewhat on the principle that birds of a feather flock together. I cannot agree with that suggestion since having seen and heard the doctor I am satisfied that he is telling the truth and nothing has been shown to suggest that he has any personal motive or interest in the case. It has not been suggested that he was a personal friend of any witness supporting the applicant or that he had had any connexion whatever with any of them apart from being the medical officer in the case.

According to the case of Sugden $v$ . Lord St. Leonards, 1 Probate Division, p. 154, the Court will act in the case of a lost will on the testimony of $a$ single reputable witness. In the case of a Mohammedan oral will it would seem that two witnesses are required. (See Wilson Anglo-Mohammandan Law, Fifth Edition, page 307.)

In this case there is one reputable witness and there are several witnesses who although their reputation has been attacked bear out that reputable witness both as to the making of the will and its contents. If a number of witnesses were called but the Court could not rely on the evidence of any of them then the Court could, whilst finding that a will had been made, declare that it could make no order as to the contents of the will. $(Sec)$ Woodward and others v. Goulstone and others. 11 A. C., p. 469). I am, however, justified in this case, where there is a reputable witness supported by other witnesses, in not only finding that a will has been made but also that its contents have been proved. I feel also justified in accepting the evidence of that reputable

witness where it differs from the evidence given by the other witnesses: I do not consider that it is necessary to go into the evidence of the other witnesses at length. Some are highly interested in the result whilst others give evidence which to my mind indicates exaggeration. I have no hesitation in saying that I cannot place the same reliance on their testimony as that of the doctor.

The statement given by the doctor was shown in Exhibit 6. and the translation is in a paper where the doctor's name is incorrectly given as John Peter Anderson and is as follows:-Deceased said: "Now I am in danger of my life and regarding my life I have some fears. Therefore I say to you (Sardar Khan) that when I am no more take care of my family. Our shop, mill, and other things all belonged to you during my lifetime and will continue to be yours after my death. I have nothing in writing with me; write down whatever I dictate to you. Give Sh. 10,000 to Mohamed Din and keep him pleased. He has done a good deal of work for me. The jewellery which is with my wife, do not take from her; let that remain with her."

As to what construction should be placed on the meaning of that language is not now before me. I am satisfied, however, that it is sufficient to constitute the appointment of the applicant as executor.

Therefore I declare that an oral will of the testator Faiz Khan in the terms set out above has been proved in solemn form, and I grant probate to the applicant.

It would seem that an oral will can only relate to onethird of the estate of the testator; as to whether this makes any difference to the administration of the balance of the estate I express no opinion since the matter is not before me.

The costs of all parties will come out of the whole estate of the deceased.