MARIAM ABDULLA, YUSIF ABAGI, Appellant-Plaintiff v. ADMINISTRATOR OF THE ESTATE OF ABDULLA YUSIF
Estates-s-Intestacy=-Whether offspring of a Mohammedan marriage is con-
sidered legitimate when deceased died Christian
Evidence-Legitimacy-Church y'gisters and official certificates not conclusive
evidence of the illegitimacy/of a person not named
Iurisdiction-s-Mohammedan/or civil courts-High Court has jurisdiction over the
estate of deceased who was formerly Muslim who died Christian=-Sharia
• Court: Bell·Ai/C.J., Wedd A-G. and Halford J.
courts to give opinions on Mohammedan law questions of legitimacy and
inheritance
When a Christian who was formerly M¥im dies intestate, a certifi-
cate issued by a church official which names the legitimate heirs of the de-
ceased is not conclusive evidence of the illegitllnacy of one who claims to
be an heir by reason of a Mohammedan marriage. . Rather, the civil courts
have jurisdiction to decide the question, with assistance from the Sharia
.courts on the question of whether a valid Mohammedan marriage was
formed and whether this would give the claimant rights of inheritance.
Appeal
June 27, 1926. Bell A/C.i.: The facts of this case so far as
they appear from the record are as follows:
Abdulla Yusif Abagi died intestate on May 15, 1925. At the time
of his death he was a member of the Greek Catholic Church. On
October 6, 1925 the Vice-Patriarch of the Greek Catholic Church in
the Sudan granted a certificate, stating that the sole .legitimate wife
of the deceased was N azla George Stumbulia, and that the only heirs
of the deceased were his widow Nazla and his children by Nazla,
namely Yusif, Gibril, Fathallah, Naum, Malada, Zakia "and Victoria.
On February 8, 1926, the appellant, Miriam Abdull3h Yusif Abagi,
started an action in the High Court, claiming to' be an heir of the
deceased. She alleged that she was the daughter of the deceased by
'an Abyssinian girl named Birilli; that the deceased was a Moham-
medan during the Mahdia; that the deceased while a Mohammedan
contracted an alliance with Birilli, which was a lawful and recognised
form of alliance according to Mohammedan law; and that she is there-
fore the legitimate daughter of the deceased and entitled to inherit
from him. The court took no evidence except that of George Abagi,
a brother of the deceased. His evidence supported the story of the
appellant, but the court apparently thought that it was bound to' follow
the certificate of the Vice-Partriarch, and accordingly gave judgement
excluding the appellant from the inheritance. The plaintiff has ap-
pealed.
Now firstly, as the parties are now not Mohammedans, I am of
the opinion' that the High Court has jurisdiction in this case, and that
it is the High Court which must decide what law is applicable to the case.
/Secondly, I am of opinion that the certificate of theVice-Patri-
arch, dated October 6, 1925, is not a judgement of a court which has
'Jurisdiction in, the Sudan, and that the registers of the Omdurman,
Church, mentioned by the Vice-Patriarch, are not conclusive evidence
before the civil courts of the legitimacy or illegitimacy of the persons
referred to therein. The conclusion, therefore, is that the High Court
was wrong to follow and accept the certificate of the Vice-Patriarch,
instead of itself deciding th?issues of fact and law which were involved.
In my opinion, therefore, the case must be sent back to the High
Court for retrial.
At the retrial the following issues must be framed and decided
upon:
- Was the deceased a Mohammedan or Christian at the time
when he contracted his alliance with Birilli? And when was
the appellant born? - What was the nature of the alliance?
- Having regard to the circumstances in which the alliance was
contracted, was it such that the offspring thereof are en-
titled to inherit from the deceased?
If the court decides on issue 1 that the deceased was a Moham-
medan, then it must take the opinion of the Sharia Court on the
following points: What were the relations between the deceased and
Birilli, and whether, as a result thereof, the daughter of Birilli is
entitled under Mohammedan law to inherit the estate of thedeceased
or any part thereof?
Halford J.: I concur.
Webb A-G.: I concur.
Appeal allowed