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El-Riami and Others v Wakf Commissioners, Zanzibar (Civil Appeal No. 1 of 1946)

East African Court of Appeal · [1946] EACA 7 · 1946 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of H.M. High Court of Zanzibar concerning validity of testamentary wakf
Decision
Property declared part of heritable estate of Ahmed bin Nassor; matter remitted to High Court for administration and division amongst heirs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A testamentary wakf providing for children, grandchildren, their posterity, then near relatives, and ultimately poor Muslims was held void. The court found the gift to the poor so remote and uncertain as to be illusory, as the poor would receive benefit only after extinction of posterity and near relatives. The wakf was merely a colour of piety to legalize family aggrandizement. Appeal allowed; property declared part of heritable estate.

Outcome

Property declared part of heritable estate of Ahmed bin Nassor; matter remitted to High Court for administration and division amongst heirs

Facts

Asha binti Juma made a will on 21st December 1880 purporting to create a wakf of property at Kiungani for her children, grandchildren, and their posterity. Upon their extinction, the wakf was to revert to her near relatives amongst Muslims, then to poor Muslims of the Ibathi sect. Ahmed bin Nassor, grandson of the testatrix, was declared a lunatic in 1913. The Public Trustee received rents and profits until Ahmed's death on 26th February 1944. The appellants, as heirs of Ahmed bin Nassor, challenged the validity of the wakf, claiming the property formed part of Ahmed's heritable estate. The High Court of Zanzibar upheld the wakf. Respondents did not appear at the appeal hearing.

Issues

  1. Whether a valid wakf was created by the will of Asha binti Juma dated 21st December 1880.
  2. Whether the ultimate gift to the poor Muslims was so remote or uncertain as to render the wakf illusory and void.

Orders

  • Appeal allowed.
  • Costs awarded to appellants in this Court and the High Court.
  • Property declared part of the heritable estate of Ahmed bin Nassor.
  • Defendants directed to give up property to person appointed by High Court of Zanzibar for administration and division amongst heirs of Ahmed bin Nassor according to law.
  • Case remitted to High Court for that purpose.

Rules and key headnotes

Wakf — Testamentary Creation — Validity
A wakf can be constituted by will under Mahommedan Law.
Wakf — Ultimate Gift to Poor — Illusory Gift — Remoteness and Uncertainty
A gift may be illusory whether from its small amount or from its uncertainty or remoteness. Where a wakf provides for children, grandchildren, their posterity, then near relatives, with an ultimate gift to the poor, the chances of the poor ever receiving benefit are so remote and uncertain that the wakf is illusory and void.
Wakf — Colour of Piety — Family Aggrandizement
Where the poor have been put into a settlement merely to give it a colour of piety and so to legalize arrangements meant to serve for the aggrandizement of a family, the wakf is void.

Cases cited (2)

  • Sulleman bin Ahmed v Salem bin Abdulla (1 Z.L.R. 328)
  • Abul Fata Mahomed Ishak and Others v Rasamaya Dhur Chowdri and Others (22 Calc. 619)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

El-Riami and Others v Wakf Commissioners, Zanzibar (Civil Appeal No. 1 of 1946) [1946] EACA 7 (1 January 1946)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.