Wakilii

In Reof the Trusts of the Will of Premji Dhanji; In Re - of the Minor Sons (Trust Cause No. 7 of 1950 (Mombasa))

East African Court of Appeal · [1950] EACA 40 · 1950 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by executors for directions on whether to give effect to an alleged codicil modifying the deceased's will
Decision
Executors directed to give effect to the codicil

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Hindu Wills Act 1870 does not apply to Esmailia Khojas. Although Esmailia Khojas are governed by Hindu customary law for inheritance and succession, they are not Hindus within the meaning of the Act as they practice the Mohamedan religion. The law of succession and inheritance does not include the forms of wills. An undated, unsigned and unattested codicil in the deceased's handwriting is valid under customary Hindu and Mohamedan law and must be given effect.

Outcome

Executors directed to give effect to the codicil

Facts

Premji Dhanji, an Esmailia Khoja, died in Mombasa on 12 November 1949. He left a properly executed will dated 19 December 1946 and a document entitled 'This will is for daughters' written in his own handwriting about one month before his death. The document was undated, unattested and unsigned. It was found among his papers after his death. The executors of the will applied for directions as to whether they should give effect to this alleged codicil modifying the will. The codicil would be valid under customary Hindu and Mohamedan law but invalid under the Hindu Wills Act 1870.

Issues

  1. Whether the Hindu Wills Act 1870 applies to Esmailia Khojas.
  2. Whether an undated, unsigned and unattested codicil in the handwriting of the deceased is valid.

Orders

  • The codicil is declared valid and must be given effect to.
  • Costs of these proceedings to be paid out of the estate.

Rules and key headnotes

Wills — Esmailia Khojas — Applicability of Hindu Wills Act 1870
The Hindu Wills Act 1870 does not apply to Esmailia Khojas because by 'Hindus' is meant the followers of the Hindu religion, and Esmailia Khojas practice the Mohamedan religion.
Wills — Customary Law — Distinction Between Succession Law and Formalities of Wills
The fact that Esmailia Khojas are governed by Hindu customary law for succession and inheritance does not mean they are bound by statutory law relating to Hindu wills, as the law of succession and inheritance does not include the forms of wills.
Wills — Codicils — Validity Under Customary Law
An undated, unsigned and unattested codicil in the handwriting of the deceased is valid under customary Hindu and Mohamedan law, which do not require particular formalities for the execution of a will.
Territorial Application — Hindu Wills Act 1870
The Hindu Wills Act 1870 applies only to Hindus in certain specified territories of what was then British India and does not apply to Khojas, who are governed by customary Hindu law and not by statutory law enacted expressly for Hindus.

Legislation cited (1)

  • Hindu Wills Act 1870 s.2

Cases cited (5)

  • Abdul Karim and Others v Kermali (A.I.R. (1920) Bombay 140)
  • Re Ali Lalji Gulamani (Tanganyika Territory Probate and Administration Cause No. 15 of 1943)
  • Abdulla Karim and Another v Saleh Hassan (Zanzibar Protectorate Law Reports Vol. 1 p. 150)
  • Framroze P. Doctor v Mohamed Premji and Others (Zanzibar Protectorate Law Reports Vol. 1 p. 306)
  • Fazal Haji Khakoo v Fatamabai (Zanzibar Protectorate Law Reports Vol. 1 p. 598)

Full judgment

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

In Reof the Trusts of the Will of Premji Dhanji; In Re - of the Minor Sons (Trust Cause No. 7 of 1950 (Mombasa)) [1950] EACA 40 (1 January 1950)
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.