Wakilii

Khatijabi v Samji and Others (Civil Appeal No. 60 of 1955)

East African Court of Appeal · [1955] EACA 306 · 1955 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from the High Court of Tanganyika challenging the validity of trusts created by will
Decision
Second trust declared invalid; intestacy resulted; estate to be distributed according to Hindu law of the Mayukha school

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A testator who was a member of the Khoja Shia Ismaili Muslim community but not a 'native' as defined by the Land Ordinance could not dispose of property by way of wakf under Mohammedan law. English law applied, which does not permit separate dispositions of land and a house permanently affixed to it. The testator's attempt to dispose separately of the building and the land failed, resulting in intestacy.

Outcome

Second trust declared invalid; intestacy resulted; estate to be distributed according to Hindu law of the Mayukha school

Facts

Karmali Murji Sakarani, a member of the Khoja Shia Ismaili Muslim community domiciled in Tanganyika, died in 1929. His will purported to create two trusts over freehold land in Dar es Salaam with a building comprising six shops and rooms. The first trust (a wakf for his daughter and her descendants) was set aside by the High Court as infringing the law against perpetuities. The second trust directed that income from rent of four shops be paid to three named persons for life, with surplus to indigent community members. The appellant, the testator's daughter, sought a declaration that both trusts were invalid and that the property be distributed according to Hindu law governing intestacy. The High Court refused the order as to the second trust. The testator's will appeared to dispose separately of the building and the land on which it stood.

Issues

  1. Whether a testator not classified as a 'native' under the Land (Law of Property and Conveyancing) Ordinance could validly create a wakf trust under Mohammedan law.
  2. Whether land and a house standing thereon could be the subject of separate dispositions under Tanganyika law.
  3. Whether the second trust created by the will was valid.

Orders

  • Appeal allowed.
  • Decree of the High Court amended to include reference to the second trust property in paragraph (1).
  • Paragraph (2) of the decree deleted and paragraph (3) renumbered as (2).
  • Costs of the appeal to be paid out of the estate.

Rules and key headnotes

Succession & Estates — Wakf — Capacity to Create — Definition of 'Native' under Land Ordinance
Under section 15 of the Land (Law of Property and Conveyancing) Ordinance (Cap. 114), the right to create a wakf is limited to 'natives', defined as members of an African race including Arabs, Swahilis and Somalis. A member of the Khoja Shia Ismaili Muslim community is not a 'native' and cannot dispose of property by way of wakf under Mohammedan law.
Land & Property — Separate Dispositions — Land and Buildings — English Law Application
Where English law of real property applies by virtue of section 2 of the Land (Law of Property and Conveyancing) Ordinance, a testator cannot validly dispose separately of land and a house permanently affixed to it. An attempt to do so fails and results in intestacy.
Statutory Interpretation — Application of English Law — Subject to Ordinance Provisions
Section 2 of the Land (Law of Property and Conveyancing) Ordinance applies English law of real property, trusts and conveyancing as at 1st January 1922, subject to the provisions of the Ordinance. Where a testator is not a 'native' as defined in section 15, he cannot dispose of property by way of trust other than by English law.
Trusts — Testamentary Trusts — Construction of Will — Testator's Intention
Where a testator who is a Mohammedan may be credited with the intention to dispose separately of land and a house standing thereon (because Mohammedan law permits such separate dispositions in some circumstances), but such disposition is invalid under the applicable law, the trust fails and intestacy results.

Legislation cited (4)

  • Land (Law of Property and Conveyancing) Ordinance (Cap. 114) s.2
  • Land (Law of Property and Conveyancing) Ordinance (Cap. 114) s.15
  • Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance (Cap. 112) s.6
  • Marriage, Divorce and Succession (Non-Christian Asiatics) Ordinance (Cap. 112) s.8

Cases cited (1)

  • Wakf Commissioner of the Colony and Protectorate of Kenya v Alimohamed Ali Nahdi (1951) 18 EACA 86

Full judgment

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Khatijabi v Samji and Others (Civil Appeal No. 60 of 1955) [1955] EACA 306 (1 January 1955)
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.