Saburi v Mzee (Civil Appeal No. 17 of 1941) [1942] EACA 44 (1 January 1942)

## APPELLATE CIVIL

## BEFORE THACKER, J. (with Chief Kathi as an assessor)

## FUNDI BIN HAMADI SABURI, Appellant (Original Defendant)

$\mathbf{v}$

## MPUNGA BINTI ABUBAKAR MZEE, Respondent (Original Plaintiff) Civil Appeal No. 17 of 1941

Mohammedan Law-Mother of infant daughter-Power to sue on behalf of infant—Shafi and Hanafi doctrines—Custody of money.

A Mohammedan mother brought a suit against the defendant on behalf of her infant daughter whose father was deceased to recover Sh. 100 upon a written acknowledgment of the debt owing to the infant and signed by the defendant. The suit was defended mainly on the ground that the mother had no authority in law to institute a suit on behalf of her infant daughter. The Mudir's Court found in favour of the plaintiff. The defendant appealed.

Held (16-5-42).—(1) That according to the Shafi School of Mohammedan Law, whilst the<br>mother is not the guardian of the property of her minor child, she may nevertheless sue<br>to recover the property of her child, although sh without an order of the Court.

(2) That according to the Hanafi School of Mohammedan Law, the mother is the full guardian in the absence of the father and grandfather, and may sue on behalf of her infant child to recover the infant's property.

(3) That it is considered desirable in cases like the present, where the parties are poor<br>that any money if recovered should be invested on behalf of the minor in the name of an administrative officer in the Post Office Savings Bank until the infant comes of age.

Neither appellant nor respondent appeared upon the hearing of the appeal.

'The appeal was dismissed.

JUDGMENT.—Upon this appeal, the appellant does not wish to be present or represented, and the respondent has not been served. As however the appeal is dismissed, there is no necessity to wait for her to be served.

The evidence discloses an unequivocal acknowledgment by the appellant that he owes to the daughter of the respondent, a minor, the sum of Sh. 100. It is to be noted that the appellant gave no evidence in the Court below nor did any witnesses on his behalf. There was in consequence no explanation by him before the Court why he acknowledged in writing the debt of Sh. 100. In the Court below judgment was given for the respondent for this amount with costs. The appeal appears to be grounded upon the fact that the mother (the respondent) cannot sue on behalf of a daughter, according to Mohammedan Law. I am advised however by the learned Chief Kathi that according to the Shafi School of Mohammedan Law, whilst the mother is not the guardian of the property of her minor child, she is nevertheless allowed to sue for the property of her child, although she is not allowed to use or dispose of it without an order of the Court.

Further, that according to the Hanafi School of Mohammedan Law, the mother is a full guardian in the absence of the father and grandfather. In this case she would also be permitted to sue on behalf of her minor child. There is no evidence or statement on the record of the Court below as to which of the above two sects the respondent and her minor daughter were members of. Support for this view of the relevant Mohammedan Law is to be found on page 477 of Vol. 2 of Ameer Ali's Mohammedan Law in which is to be found the passage: $-(\text{The mother})$ is at all times . . . entitled to institute a suit in her own name for the protection of the interest of her children.

This appeal is accordingly dismissed with costs and the judgment of the Court below upheld. We are of opinion that, if the sum of Sh. 100 or any part thereof is recovered from the appellant, it should be invested on behalf of the minor, in the Post Office Savings Bank in the name of the District Commissioner of the district in which the minor resides, until she becomes of age. This will implement the recommendations of the Court below.