Wakf Commisioner of the Colony and Protectorate of Kenya v Nahdi (Civil Appeal No. 67 of 1950) [1951] EACA 86 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Newnham Worley, Vice-President, Lockhart-Smith, J. of A., and DE LESTANG, J. (Kenya)

## WAKF COMMISSIONER OF THE COLONY AND PROTECTORATE OF **KENYA, Appellant (Original Plaintiff)**

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# ALIMOHAMED ALI NAHDI EXECUTOR OF THE WILL OF AISHA BINTI SHAFI, Deceased, Respondent (Original Defendant)

### Civil Appeal No. 67 of 1950

(Appeal from the decision of H. M. Supreme Court of Kenya—Modera, J.) Wakf—Separate dispositions of land and house standing thereon—Validity.

The testatrix a Mahommedan woman directed by her will that a house should go to a Mosque and its income should be spent in the interests of the Mosque and in reciting the Koran for the benefit of her soul and for the souls of her parents in perpetuity.

The trustees of the Mosque claimed the legacy or that it be vested in the Wakf Commissioners. The Respondent Executor of the testatrix's will resisted the claim.

The Supreme Court disallowed the Wakf Commissioner's claim for a conveyance of the Plot together with the house standing thereon and declared the whole house, but not the land, vested in the Wakf Commissioners and that as trustees of the Mosque they were entitled to the income of the house.

Mahommedan Law in certain circumstances permits house and land on which it stands to be legally in different ownership. The question arises whether Mahommedan law applied in Mombasa or whether it was ousted by an applied Indian Act which "fits the case".

The land was the subject of a certificate under the Land Titles Ordinance which Ordinance defined immovable property to include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.

Held (19-9-51).—(1) Mahommedan law if it recognized a disposition of the house and land<br>separately must be regarded as ousted by the express provisions of the Land Titles Ordinance.

(2) That the disposition by the testatrix of the house alone was invalid and an intestacy results.

Cases cited: De Beauvoir v. De Beauvoir, (1852) 3 H. L. Cases 524; Secretary of State for Foreign Affairs v. Charlesworth Pilling & Co. and another, L. R. (1901) A. C. 373; Cobb v. Rashid bin Salim, 3 E. A. L. R. 35; Antao v. Mubarak Bukhait, (1918) 7 E. A. L. R. 152; Said bin Seuf v. Shariff Mohamed Shatry, 19 K. L. R. 9; Henry William Farrar v. Yusufali Abdulhussein Adam

Inamdar for the appellant.

Bryson for the respondent.

JUDGMENT (delivered by LOCKHART-SMITH, J. of A.).—This is an appeal from a judgment of the Supreme Court of Kenya disallowing the claim of the plaintiffs (the present appellants) the Wakf Commissioners for the Colony and Protectorate of Kenya, for a conveyance of plot No. 30 of Section XVI Mombasa together with the house standing thereon, and declaring that the whole house is vested in the appellants and that the appellants as trustees of the Shimba Mosque are entitled to the income of the said house.

The premises in question were the subject of a testamentary disposition by a Mahommedan woman, one Aisha Binti Shafi, who died on the 25th February, 1945.

The testatrix' will was dated 15th April, 1944, and a translation of the relevant portion thereof reads as follows:-

"She directs the whole of her house which is hired by Kapra Sura to go to the Mosque of Abdallah Shimba (Shimbwa Mosque) and its income to be spent in the interests of the said mosque, i.e. water, etc., and some to be spent in reciting Koran for the benefit of her own soul and for the soul of her parents in perpetuity."

The testatrix appointed the respondent the executor of her will, and the latter duly obtained a grant of probate thereof. The appellants contended that, as trustees of the Shimbwa Mosque, they were entitled to the legacy, and also that, by virtue of section 6 of the Wakf Commissioners Ordinance, Cap. 47 (which provided that all Wakf property of which there were at the date of the Ordinance, or might thereafter be, no properly constituted trustees, was thereby vested in the Commissioners) the property was vested in them, or should have been conveyed to them by the respondent.

The respondent resisted this claim, and raised a number of defences, all except one of which were abandoned at the hearing. The learned trial Judge's note is not so clear as one might have wished, but the issue remaining for trial, and which was tried, may perhaps be stated thus: "Was the testatrix' true intention to create a Wakf over the house only, or over the house together with the land on which it stands, and, if the former, was the testatrix' intention expressed in a valid testamentary disposition?"

The learned trial Judge was satisfied that the true meaning of the bequest to the Shimbwa Mosque was that the institution was to enjoy the amenities of, and income derived from, the building, but that the plot on which it stood did not form part of the disposition. He accordingly held that the property of which the appellants had become Trustees was the building as opposed to the land on which it stood, and that the appellants' claim for a conveyance of the whole property including the land therefore failed. He declared that the whole house (i.e. but not the land) was vested in the appellants, and that, as Trustees of the Mosque, they were entitled to the income of the house.

Mr. Inamdar, for the appellants, has made gallant and ingenious attempts so to construe the will as to attribute to the testatrix an intention to create a Wakf over the house together with the land on which it stands, but he has failed to convince me that such was her true intention. In my opinion, on reading the will as a whole, the learned trial Judge was clearly right in holding that the testatrix intended (unaware, perhaps, as Mr. Bryson, for the respondent, suggested, of "the intricacies of the law") to create a Wakf over the house alone.

The English Common Law maxim Cuius est solum, eius est usque ad coelum et ad inferos does not receive recognition in Mahommedan law, and it is common ground that, in certain circumstances at least, Mahommedan law accepts the position that a house and the land on which it stands may legally be in different ownership. If Mahommedan law applies without qualification in the area where the premises in dispute are situated, then it may well be the case that the testatrix' disposition is legally valid, but, in view of the decision to which I have come on other grounds, I do not find it necessary to decide the effect of the disposition in Mahommedan law.

In Secretary of State for Foreign Affairs v. Charlesworth Pilling and Co. and another, L. R. (1901), A. C. 373, a question arose before the Privy Council as to the amount of compensation to be paid for land in the Island of Mombasa taken by

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the Government under statutory powers. The landowners contended that the compensation payable should take into account the value of certain buildings erected on the land without lawful authority, because the rights of the parties were governed by English law, according to which the buildings would become attached to the land. The Secretary of State contended that the case was governed by Mohammedan law, and that the landowner was not entitled to the buildings.

Their Lordships considered inter alia, some of the provisions of the Zanzibar Order in Council of 1884, which extended to Mombasa as part of "the Dominions of His Highness the Sultan of Zanzibar", and, in particular, Article 8 (a) of the Order, the relevant provisions of which were as follows:-

"Subject to the other provisions of this Order and to any treaties for the time being in force relating to Zanzibar, Her Majesty's criminal and civil jurisdiction in Zanzibar shall, so far as circumstances admit, be exercised on the principles of, and in conformity with, the enactments for the time being applicable as hereinafter mentioned of the Governor-General of India in Council, and of the Governor of Bombay in Council... and so far as such enactments... are inapplicable shall, so far as circumstances admit, be exercised under and in accordance with the common and statute law of England in force at the commencement of this Order."

Lord Hobhouse in delivering the judgment of the Board said (at page 383): —

"The first question is whether the dispute is to be governed by the English or Mohammedan rules applicable to unauthorized buildings on land. The Indian enactments which the Order in Council makes applicable as far as circumstances admit either directly or by order of the Secretary of State do not fit this case; and therefore Her Majesty's jurisdiction is to be exercised under and in accordance with the law of England. But the law of England recognizes the principle that the incidents of land are governed by the law of its site. Therefore, by the terms of the Order, if we look no further, Her Majesty would exercise her Zanzibar jurisdiction on the principle that Zanzibar law, which is Mohammedan law, applies to this case."

The judgment then proceeds to discuss the effect on the case of the rights of exterritoriality conferred on British subjects by the Treaty between Great Britain and Zanzibar of 1886 (abrogated in 1908) and ceases to be relevant to the present suit.

The Order in Council of 1884 was repealed by the Zanzibar Order in Council, 1897, the limits of which were so defined as to exclude Mombasa.

On the same day, however, the East Africa Order in Council, 1897, was made, the limits of which were so defined as to include the dominions of the Sultan of Zanzibar other than Zanzibar Island and Pemba, and thus included the mainland dominions of the Sultan in general and Mombasa in particular. The mainland dominions of the Sultan had been the subject of an agreement of 1895 between Great Britain and Zanzibar whereby, in return for an annual payment to the Sultan's Government of £11,000 per annum, and other considerations, the administration thereof was entrusted to officers appointed direct by Her Britannic Majesty's Government, with the powers therein stated, but so as not to affect the sovereignty of the Sultan in the said dominions.

Article 11 (a) of the East Africa Order in Council, 1897, reproduced verbatim the provisions of Article 8 (a) of the Order in Council of 1884 quoted above, with the sole exception of the substitution of the words "the Protectorate" for the word "Zanzibar" throughout. Under the later Order, however, the Indian Transfer of Property Act, 1882, and other Indian Acts, which were not applied to Zanzibar under the former Order, were applied to the East Africa Protectorate, and hence to Mombasa.

The East Africa Order in Council, 1897, was in turn repealed by the East Africa Order in Council. 1902, the limits of which also included Mombasa. Article 15 (1) and (2) of the Order of 1902 read as follows: $-$

"15. (1) There shall be a court of Record styled 'His Majesty's High Court of East Africa' (in this Order referred to as 'the High Court') with full jurisdiction, civil and criminal, over all persons and over all matters in East Africa.

(2) Such civil and criminal jurisdiction shall, so far as circumstances admit, be exercised in conformity with the Civil Procedure, Criminal Procedure and Penal Codes of India, and the other Indian Acts which are in force in East Africa at the commencement of this Order, except so far as may be otherwise provided by law."

The "other Indian Acts... in force in East Africa at the commencement of this Order" included the Transfer of Property Act already referred to. The words "except so far as may be otherwise provided by law" should be read in relation to the power of legislation conferred on the Commissioner by Article 12 of the Order, and introduce an important limitation on the jurisdiction provisions of the earlier Orders.

In Cobb v. Rashid bin Salim, 3 L. R. E. A. 35, a case between an Englishman and an Arab decided in 1909, the High Court of East Africa held, in effect, and inter alia, that the law governing land in the Coast strip was the Sheria, and that Indian Acts could have no application in any event. In my opinion this point was wrongly decided. In Secretary of State v. Charlesworth Pilling supra, their Lordships reached their decision that Mahommedan law applied to the case only because "the Indian enactments which the Order in Council make applicable ... do not fit this case". Where an applied Indian enactment does fit the case, then, in my view Mahommedan law is ousted. It is true that some such enactments do not apply to Mahommedans. See, e.g., the concluding words of section 2 of the Indian Transfer of Property Act, which provide that "nothing in the second chapter of this Act shall be deemed to affect any rule of Mahommedan law". This has been construed to mean that Chapter II of the Act is excluded only if there is an inconsistent rule of Mahommedan law. Where there is no such inconsistent rule, the sections in Chapter II apply proprio vigore. (See Mulla, Transfer of Property Act, 2nd edition, page 11, under heading "Mahommedan law".) Where an Indian Act relating to immovable property is applied, but in its very terms exempts Mahommedans from its provisions, then, no doubt, the decision of the Privy Council still holds good and Mahommedan law still applies. But where there is no such exemption in favour of Mahommedans, then the applied Act governs the case irrespective of the race or religion of the parties, except in so far as it is restricted in its application to Africans by section 9 of the Indian Acts (Amendment) Ordinance, Cap. 2, which section reproduces in a revised form the original Application to Natives of Indian Acts Ordinance, 1903.

The Order in Council of 1902 was amended from time to time, but none of such amendments is relevant to the present case until we come to the East Africa Order in Council, 1911, by Article 2 of which sub-Article (2) of Article 15 of the Order of 1902 was revoked, and replaced as follows: -

"(2) Subject to the other provisions of this Order such civil and criminal jurisdiction shall, so far as circumstances admit, be exercised in conformity with the Civil Procedure, Criminal Procedure and Penal Codes of India and the other Indian Acts which are in force in East Africa at the date of the commencement of this Order and subject thereto and so far as the same shall not extend or apply shall be exercised in conformity with the substance of the common law the doctrines of equity and the statutes of general application

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in force in England on the twelfth day of August, 1897, and with the powers vested in and according to the practice and procedure observed by and before Courts of Justice and Justices of the Peace in England according to their respective jurisdictions and authorities at that date, save in so far as the said Civil Procedure, Criminal Procedure and Penal Codes of India and the other Indian Acts in force as aforesaid and the said common law doctrines of equity and statutes of general application and the said powers procedure and practice may at any time before the commencement of this Order have been, or hereafter may be, modified, amended or replaced by other provision in lieu thereof by or under the authority of any Order of His Majesty in Council, or by any Ordinance or Ordinances passed in or for the said Protectorate: Provided always that the said common law doctrines of equity and statutes of general application shall be in force in the Protectorate so far only as the circumstances of the Protectorate and its inhabitants and the limits of His Majesty's jurisdiction permit, and subject to such qualifications as local circumstances render necessary."

By the Kenya (Annexation) Order in Council, 1920, the territories comprised in the East Africa Protectorate as specified in the East Africa Order in Council, 1902, were annexed to His Majesty's Dominions as the Colony of Kenya, with the exception of such territories as formed part of the Dominions of His Highness the Sultan of Zanzibar, which include Mombasa.

The territories excepted from the annexation were designated the Protectorate of Kenya by the Kenya Protectorate Order in Council, 1920.

The Kenya Colony Order in Council, 1921, provided that the East Africa Order in Council, 1902, and its amending Orders, should cease to apply to the Colony, but they still apply to the Protectorate. Article 15 (1) and (2) of the East Africa Order in Council, 1902 (the latter sub-Article as replaced by the Order in Council of 1911) are therefore still in force in the Protectorate. In actual fact, however, they appear to be in a state of suspense, as there at present are no Judges appointed to His Majesty's High Court of East Africa under the power of appointment contained in Article XIV of the Kenya Protectorate Order in Council, 1920.

The latter Order in Council, by Article VII (now replaced by the Kenya Protectorate (Amendment) Order in Council, 1948) enables the Legislative Council of the Colony to legislate for the Protectorate, and Article XII provides that the Courts of the Colony shall have in respect of matters occurring within the Protectorate the same jurisdiction, civil and criminal, original and appellate, as they respectively possess from time to time in respect of matters occurring within the Colony.

Article 4 (1) of the Kenya Colony Order in Council, 1921, establishes the Supreme Court of Kenya with full jurisdiction, civil and criminal, over all persons and over all matters in the Colony, and sub-article (2) almost verbatim, Article 15 (2) of the East Africa Order in Council, 1902, as replaced by the Order in Council of 1911, which is quoted above.

This present appeal is an appeal from the Supreme Court of Kenya, and, under section 16 (1) of the Eastern African Court of Appeal Order in Council, 1950, this Court, in determining the appeal, has the jurisdiction vested in the Court from which the appeal is brought.

The position is, then, in my opinion, that Mahommedan law will not apply to land in Mombasa when-

(a) there is an applied Indian Act ousting Mahommedan law which "fits the case", which Act, however, will not apply in the case of Africans, if such persons are exempted from the operation of the Act by the Indian Acts (Amendments) Ordinance, Cap. 2;

- (b) there is a doctrine of equity, or a statute of general application, which ousts Mahommedan law, but in this case the proviso to Article 4(2) of the Kenva Colony Order in Council, 1921, must be borne in mind; - (c) there is an Order of His Majesty in Council or any Ordinance for the time being in force which ousts the lex loci rei sitae—i.e. Mahommedan law which the common law, as applied to the Protectorate, recognizes as governing the incidents of land.

Before applying this test to the present appeal, however, it is convenient first to refer to some further local decisions.

In Antao v. Mubarak Bukhait (1918), 7 L. R. E. A. 152 it was held by the High Court of East Africa on appeal from a decision of the Resident Magistrate, Mombasa, that, in estimating the value of the land in dispute for the purposes of determining the pecuniary limits of jurisdiction of the Resident Magistrate's court under the Courts Ordinance, 1907 (since repealed) Mahommedan law should be applied. Secretary of State for Foreign Affairs v. Charlesworth Pilling & Co. was the basis of the decision, and *Cobb* v. Rashid was cited with approval. The plaintiff in the Resident Magistrate's Court was a Portuguese and the defendant was an Arab, Pickering, J., held that the Sheria governed the case, and observed in the course of his judgment (page 154): $-$

"I was unable to accede to $Mr$ . Atkinson's contention that the application of the Transfer of Property Act had affected the substantive proprietary rights of landowners. That Act, with the exception of one or two sections of which section 51 is one, deals with the modes and formalities of alienation."

The latter proposition, may, perhaps, broadly speaking, be correct, but, if a provision of the Transfer of Property Act, which had not yet been applied at the date of Pilling's case, "fits the case", it will be the law in Mombasa unless the parties are Mahommedans and it is one of the provisions of the Act which are not to affect an inconsistent rule of Mahommedan law, or, in the case of Africans, it is excluded by virtue of the Indian Acts (Amendments) Ordinance.

For example, under Mahommedan Law delivery of possession, either actual or constructive, is all that is necessary to validate a gift. But, in the case of a gift of immovable property, section 123 of the Transfer of Property Act requires that such gift must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. Section 129 of the Act provides, however, that nothing in Chapter VII (which includes section 123) shall be deemed to affect any rule of Mahommedan law. A gift of immovable property in Mombasa by one Mahommedan to another might, therefore, be made, so far as the Transfer of Property Act is concerned, by delivery of possession either actual or constructive, and it would not matter that the deed was not attested or registered. (See Mulla, op. cit., page 677.) But this does not apply to all land and persons in Mombasa, as Cobb v. Rashid would have us believe, and as Antao v. Mubarak *Bukhait* would seem to suggest. A gift of immovable property in Mombasa by, e.g. one Christian European to another, would have to be in accord with the requirements of section 123 of the Transfer of Property Act, or in accord with any local Ordinance replacing or modifying the Act.

There are a number of other early decisions in which the High Court of East Africa held that Mahommedan law applied in Mombasa irrespective of the provisions of Applied Indian Acts. These are collated and discussed in Said bin Seuf v. Shariff Mohamed Shatry, 19 L. R. K. 9.

In the latter case, however, Lucie-Smith, J., held that Mahommedan law does not apply where there is an overruling Applied Indian Act which "fits the case".

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Certain decisions of His Britannic Majesty's Supreme Court of Zanzibay to the same effect were cited with approval by the learned Judge in his judgment. In my opinion, the law was correctly stated in this case.

In the present appeal it is not suggested that there is an Applied Indian Act which would entitle the appellants to succeed, but Mr. Inamdar has urged upon us that the question is decided by the Land Titles Ordinance, Cap. 159, which ousts any conflicting rule of Mahommedan law.

The plot in dispute was the subject of a certificate of title issued under the Town Planning Ordinance (now Cap. 134) replacing a certificate issued under the Land Titles Ordinance (now Cap. 159). The Second Schedule to the former Ordinance lays down the procedure to be followed when any group of plots or holdings of land are compulsorily pooled and redistributed, or where the boundaries, areas, shapes or positions of any plots or holdings of land are compulsorily adjusted by a town planning scheme approved under the Ordinance.

The Schedule provides for the issue of new documents of title in respect of the redistributed or readjusted plots or holdings, and makes it clear that, subject to such redistribution or readjustment, the persons to whom the new documents of title are issued are to hold the plots or holdings comprised therein on the same terms and conditions and for the same interests on and for which they severally held their original plots or holdings immediately prior to the issue of such new documents of title. (Paragraph 2 $(2)$ $(d)$ .) It thus appears that the Certificate issued under the Town Planning Ordinance is merely a replacement of the Certificate issued under the Land Titles Ordinance, and has the same effect.

The certificate of title issued under the Town Planning Ordinance in respect of the plot in dispute is, save for minor alterations irrelevant to the present issue, in the form prescribed by the Land Titles Ordinance for a Certificate of ownership. It certifies that "Abdurehman Bin Khamis is the proprietor of an estate in fee (together with the mineral rights) in that piece of land", etc..... It does not appear to have been formally proved in the Court below, but, as I understand the position, it is common ground between the parties, that the testatrix, at the date of her death, was registered as owner of the plot in dispute in succession to Abdurehman Bin Khamis.

In order to ascertain the effect of the certificate, it is necessary to examine certain provisions of the Land Titles Ordinance.

Section 3 of the Ordinance defines "immovable property" to include land, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.

It is relevant to observe here that we were informed in the course of argument that the house on plot 30 of section XVI is not a temporary structure merely resting upon the soil, but a stone structure built upon foundations, which, therefore, comes within the above definition.

Section 21 provides that a certificate of ownership "shall be conclusive proof that the person to whom such certificate is granted is the owner of the...houses and buildings on the land in respect of which such certificate is granted, at the date of the certificate, unless there shall be noted thereon in the manner hereinafter provided a memorandum to the contrary effect". There is no memorandum to the contrary effect in the present case.

In Henry William Farrar v. Yusufali Abdulhussein Adamji, 16 L. R. K. 40, Webb, J., said at page $42:-$

"So far, then, as the Land Titles Ordinance goes, one might think that if (as is the case here) there was no such memorandum, the appellant's

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Certificate of Title would be conclusive proof, under section 21, that he is the owner of all the buildings on the land comprised therein."

The learned Judge went on to hold that, where land has been brought under the Registration of Titles Ordinance, and, by virtue of section 41 of that Ordinance, a licence to a person other than the owner to effect buildings on the land does not require registration, a Certificate of Ownership issued after the 21st January, 1920 (on which date the Registration of Titles Ordinance came into operation) even though it contains no "memorandum to the contrary effect" is not conclusive proof that the person to whom the certificate was granted is the owner of buildings erected under licence by a person other than the holder of the certificate.

There has never been any suggestion that the land in dispute in the present case has been brought under the Registration of Titles Ordinance, nor that the house on such land was erected under licence from the landowner by a person other than such owner, or by a trespasser. The testatrix refers to the house as "her house which is hired by Kapra Sura".

In such circumstances Webb, J., would have held, presumably that the Certificate of Title under the Land Titles Ordinance was conclusive proof that the holder of such Certificate was the owner of any buildings erected on the land comprised therein.

Mr. Inamdar concedes that, as Webb, J., said in the above case (page 41), huts... are commonly erected upon the land of others in Mombasa and its neighbourhood either in consideration of a monthly rent for the site or...by the permission of the landowner". The Eviction of Tenants (Control) Ordinance, 1949, as Mr. Bryson has pointed out, recognizes this state of affairs.

Mr. Inamdar contends, however, that the owner of a house on land other than his own should obtain a certificate of interest under section 20 (2) (c) of the Land Titles Ordinance, which may be granted to "persons whose rights by way... of contract or other interest in any immovable property (except such rights as would be included in a certificate of ownership, or mortgage)...shall have been upheld". In the absence of any such certificate of interest, Mr. Inamdar contends, the certificate of ownership is conclusive as to the ownership of any houses on the land, and, in my view, if the Registration of Titles Ordinance be left out of consideration, this contention is correct. Moreover, as has been said, there is no "memorandum to the contrary" on the certificate of ownership itself indicating any "right or interest in the... property existing at the date of the certificate of any person other than the person to whom the certificate is issued". (Section 27 (2).)

Mr. Inamdar further refers to section 55 in Part II of the Land Titles Ordinance, which Part is headed "Registration of Documents Affecting Holdings in Respect of Which a Certificate of Ownership shall have been granted" and which, by section 62, requires the person to whom probate has been granted of the will of any person possessed of or entitled to any immovable property subject to that Part, to apply to the registrar for registration of the will. Section 55 provides that-

- $(1)$ each parcel of land the subject of a certificate of ownership shall be deemed to be a separate holding; and - (2) the term 'holding' shall include the land and the... houses and buildings for the time being on the land."

Mr. Inamdar submits that, if all these provisions of the Land Titles Ordinance are taken into consideration, and applied to the facts of this case, the necessary result is that it was incompetent to the testatrix, if such was her intention, to make

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a testamentary disposition of the house apart from the land on which it stands, and Mahommedan law, if it recognizes such a disposition, must be regarded as ousted by the express provisions of the Ordinance.

In my opinion this submission correctly states the law, and must succeed.

If I have understood Mr. Inamdar correctly, however, he further submits that, as a house and the land on which it stands are, apart from the local exception recognized by section 20 (2) (c) of the Land Titles Ordinance, one and indivisible, and incapable of being the subject of separate estates or ownership, the testatrix' disposition of the house must, and irrespective of her intention, carry with it the land on which it stands.

In my view this proposition cannot be sustained. No doubt in England a devise of "my house at Blackacre" would be construed as a devise of the site of the house, as such, having regard to the legal position in England, must have been the intention of the testator. The English authorities relating to devises of houses are confined to a consideration of the question whether any land *additional* to the site of a houses passes by such a devise. But where a Mahommedan woman, in the belief that a house and the land on which it stands may legally be held in separate ownership, makes a disposition intended to affect the house only, I cannot think that any Court should so construe the will as to reach a result directly contrary to the testatrix' intention.

In such case, as Mr. Bryson has, in my opinion, rightly submitted, the disposition is invalid, and an intestacy results in respect of the subject-matter.

Having reached this conclusion, it becomes unnecessary to consider other points which were discussed in the course of argument, such as whether the Rule against Perpetuities applies in the Protectorate, and, if so, whether the disposition offended against it, or whether, even under Mahommedan law, the gift of a house for a Wakf would carry with it the land on which the house stood.

I would set aside the judgment and decree in the Court below and substitute a declaration that the testatrix' direction as to the whole of her house which is hired by Kapra Sura is invalid, and that there is an intestacy as regards the house and the land on which it stands. I would order that the costs of this Appeal be paid out of the estate.

It is possible that this decision may affect the other provisions of the will, and the order as to the distribution of the estate made by the Supreme Court on the 8th August, 1946 (apparently without notice to the appellants), in Probate and Administration Cause No. 23 of 1945. These matters, however, are not now before us for decision.

It would appear that the Public Trustee might apply for representation to any part of the estate in respect of which there is an intestacy (see section 4 (4) of the Public Trustee Ordinance, Cap. 37) and in all the circumstances it is probably desirable that he should do so. The Supreme Court would then have an opportunity of reconsidering the position as regards the whole estate. I observe from a perusal of Probate and Administration Cause No. 23 of 1945 that the respondent does not appear to have filed the inventory and account which he was required to exhibit and make in terms of the grant of Probate to him. This might be a ground for the revocation of the grant under section 50 of the Probate and Administration Act, 1881, as applied to the Protectorate. (See the 5th explanation to the section.) I would direct the Registrar to send a copy of this judgment to the Public Trustee for such action as he may deem appropriate.

In conclusion, I would adopt the suggestion made by Nihill, C. J. (as he then was), in Civil Appeal No. 33 of 1948 of this Court to the effect that consideration should be given to the defining by statute of the extent to which, and the persons to whom, Mahommedan law should apply in Kenya.

SIR NEWNHAM WORLEY, Vice-President.—I have had the advantage of reading the judgment which has been prepared by the learned Justice of Appeal and am so completely in agreement with it that I have little to add thereto.

In substance, if not in form, this matter was an application to the Court to construe the will of the testatrix so far as it related to the house in suit. It may be that the construction given thereto will, as has been pointed out, affect other provisions of the will which are not before us for consideration in this appeal.

The function of the Court in such an application as the present is, as has often been said, to ascertain the intention of the testatrix from the will and then to see whether it can be carried into effect consistently with the rules of law: see, for example De Beauvoir v. De Beauvoir (1852), 3 H. L. Cas. 524.

In the present instance, it appears from the will that it was the intention of the testatrix to make separate dispositions of the plots of land which she owned and of the houses which stood upon them and, in particular, of the house in suit and the land upon which it stands. I agree that, even if Mahommedan law recognizes such a disposition as valid, it must in the present instance, be regarded as ousted by the express provisions of the Land Titles Ordinance. The reasons which lead to this conclusion are clearly and carefully set out in the judgment of the learned Justice of Appeal and I need not repeat them here. I wish only to add this: the acceptance of Mahommedan law concerning wakf as a valid *object* of a charitable bequest is one thing: but it would be quite a different thing to recognize as the *subject* of such a bequest, an interest or estate in land which is not recognized by the general law of the Colony or Protectorate. No confusion or complication is likely to ensue from the recognition of a wakf as a valid object of charity, but it is easy to envisage the anomalies and confusion which might follow if a testator were free to carve out and confer upon a wakf an exceptional estate or interest in land which is not known to the general law.

I agree with the orders proposed in the judgment of the learned Justice of Appeal.

DE LESTANG, J. (Kenya).—I have had the advantage of reading in advance the judgments of my learned brothers the Vice-President and the Justice of Appeal. I am in full agreement with the conclusion expressed that a testamentary disposition of a house apart from the land on which it stands is invalid and that Mahommedan Law, if it recognizes such a disposition, must be regarded as ousted by the express provisions of the Land Titles Ordinance. I have, however, entertained some doubts on the construction of the will as to whether it was the intention of the testatrix to create a Wakf over the house only or over the house and the land on which it stands. As the majority of the Court has reached a clear decision on this point and as I do not feel very strongly about it, I do not dissent from the decision and agree with the orders proposed in the Judgment of the learned Justice of Appeal.