Wakilii

Khan v Fatima (P. & A. Cause 6-1929 (Nakuru).)

East African Court of Appeal · [1929] EACA 111 · 1929 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for admission of oral will to probate in solemn form
Decision
Oral will admitted to probate; probate granted to applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The court held that a Mohammedan can make a valid oral will under Mohammedan law as applied in Kenya. Two witnesses are required. Where a reputable witness is supported by other witnesses, the court may find both that a will was made and that its contents are proved. The court may accept the evidence of the reputable witness even where it differs from other witnesses. The oral will of Faiz Khan was admitted to probate in solemn form.

Outcome

Oral will admitted to probate; probate granted to applicant

Facts

Faiz Khan died on 28 April 1929. The applicant Sardar Khan alleged that a few days before his death, Faiz Khan made an oral will in the presence of several people including Dr John Peter Andrews. The will appointed Sardar Khan as executor and made specific bequests. The respondent Gulam Fatima, the wife of the deceased, denied being present and alleged the witnesses were putting forward a concocted story. The applicant sought admission of the oral will to probate in solemn form. The court heard evidence from multiple witnesses including the doctor, whose credibility was challenged by the respondent on the basis that all other witnesses had motives or interests.

Issues

  1. Whether an oral will can be made by a Mohammedan under the law applicable in Kenya.
  2. Whether the alleged oral will of Faiz Khan was validly made and proved.
  3. Whether the evidence of witnesses, including a reputable witness, was sufficient to establish both the making and contents of the oral will.

Orders

  • Oral will of Faiz Khan declared proved in solemn form.
  • Probate granted to the applicant Sardar Khan.
  • Costs of all parties to come out of the whole estate of the deceased.

Rules and key headnotes

Mohammedan Law — Oral Wills — Validity
An oral will can be made by a Mohammedan under Mohammedan law as applied in Kenya by virtue of the Mohammedan Divorce and Succession Ordinance, which provides that succession to the property of a person who contracts marriage in accordance with Mohammedan law shall be in accordance with the principles of Mohammedan law.
Mohammedan Law — Oral Wills — Formalities — Number of Witnesses
Two witnesses are necessary for a valid oral will under Mohammedan law.
Witnesses — Credibility — Reputable Witness Supported by Other Witnesses
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 accept the evidence of the reputable witness where it differs from the evidence given by the other witnesses.

Legislation cited (3)

  • Indian Succession Act No. 10 of 1865 s.2
  • Indian Succession Act No. 10 of 1865 s.331
  • Mohammedan Divorce and Succession Ordinance Chapter 171 Laws of Kenya s.4

Cases cited (2)

  • Sugden v Lord St Leonards (1 P.D. 154)
  • Woodward v Goulstone (11 A.C. 469)

Full judgment

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

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