ABBAS EL SAYED ALI AND ANOTHER v. SAKINA BINT OSMAN
Estate-Mohammedan estate-Administration-Jurisdiction of Civil courts-
Sharia courts
Jurisdiction-Estate-Administration of Mohammedan estate=-Sharia courts-
Civil courts
Mohammedan law-Estate-Administration-Jurisdiction of courts
I. Whether persons appointed by a Kadi to manage and distribute a
Mohammedan estate have the authority to make payments to an heir, and
whether such payments have been made. are matters relating to the admin-
istration of a Mohammedan estate. Jurisdiction to decide such matters lies
in the Sharia courts, and a civil court must decline jurisdiction.
2. A civil court may entertain jurisdiction over a claim against a Mo-
hammedan estate so far as it relates to the merits of the debt or damages
due in respect of the deceased.
Civil Justice Ordinance 1929. s. 39.
Mohammedan Law Courts Ordinance 1902. s. 6.
Sharia Procedure Regulations, ss. 234. 239.
Appeal
May 26, 1940. Creed C.J.: This .is an appeal from the decree
of Harrison J. by which he ordered the defendants, Abbas EI Sayed
• Court: Creed c.J.,'Evans RG.L. and Cumings 1.
Ali and Mirghani El Sayed Ali, to pay jointly and severally to the
plaintiff, Sakina Bint Osman, the sum of £ £.141 and costs. The
case was peculiar in that the claim was made on behalf of the 'plain-
tiff by her guardian, who had been appointed by the Sharia Court
owing to her incapacity to manage her own affaris, while she herself
had consistently opposed the claim and declared it to be bad.
The two defendants were sued as having in their possession the
property (a shop) belonging to the late Sayed Ali EI Mutbagi, who
died on December 5, 1938. They came into possession of this prop-
erty by a decision of the Kadi, Darner, dated January 5, 1939, which
reads as follows: "And whereas Mirghani and Abbas Awlad El Sayed
Ali brought a guarantor, who undertook the paying off of the debts
due from the estate as shown in the deceased's books, amounting to
£E.242.641 m/rns, and whereas they likewise brought another
guarantor, who undertook to safeguard the shares of the minors, which
will be handed to Abbas and Mirghani, the Mahkarna accordingly,
at the request of the adult heirs, decided to hand over the shop to
Abbas and Mirghani to manage the affairs, to liquidate the estate, to
collect the. debts in favour of the estate and payoff the debts due as
shown in the commercial books of the deceased, which were admitted
by the adult heirs, and certified to be due on behalf of the minor
heirs." Two days later, on January 7, 1939, the Kadi issued an ilam
in the estate, which set out the shares of all the heirs, the plaintiff's
being one sixth, and provided for the payment of the shares of the
minor heirs by instalments by the defendants. The Kadi made no
order in the ilam regarding the payment of any share due to the
plaintiff.
The sum of £E.141 is made up as follows:
- £ .12 t as the plaintiff's share in the movable property of the
estate. - £E.20 as a debt due from the deceased to the plaintiff in
respect of a bracelet belonging to her, which he had sold on
her behalf.
TIle defendants admitted that these sums had been due to the
plaintiff, but alleged that they had lawful authority to pay them to the
plaintiff, and had in fact done so. Both of these allegations of the
defendants were denied on behalf of the plaintiff. As authority for
the payment of £E.20, the defendants referred to the express au-
thority ill the "decision" of January 5, 1939, giving them power to
pay the debts, and referred to a tawkil of Awad Fakhri. The learned
judge had dealt with the point regarding the tawkil in his judgement,
deciding against the defendants, but has not dealt with the point raised
regarding the "decision."
As authority for the payment of £ E.12 J, the defendants relied
on an alleged express verbal authority from the Kadi, and the judge,
relying particularly on the denial of the Kadi, found that no such
express verbal authority had been given. In their grounds of appeal
they further allege that there was no need for any express authority
at all, on the ground that persons in the position of themselves could
and should have paid the shares of adult heirs directly to them after
the issue of the ilam. The learned judge also found that it had not
been proved by the defendants that they had genuinely paid to the
plaintiff either the sum of £E.20 or the sum of £E.121, so that in
his view the defendants failed, both because they had no authority
to pay either sum, and because they had not in fact paid either sum.
Let us deal first with the sum of £ E.121. The plaintiff, who
is one of the heirs in a Moslem estate in the Sharia Court, claims
that two persons appointed by that court to perform certain duties
regarding the property of the estate should pay over the heir's share
in that property, and the first question raised is as to whether those
persons had authority to make such payment. This question seems
clearly to be a question regarding succession and inheritance in a
Moslem estate. which the Sharia courts are competent to decide by
section 6 of the Sudan Mohammedan Law Courts Ordinance 1902,
and which the civil courts are not competent to decide by reason of
section 39 of the Civil Justice Ordinance 1929, except with the
consent of all persons interested. The point was not taken in the
court below, but even if all these persons bad consented, it neverthe-
less seems improper that a civil court should accept jurisdiction. be-
cause the case raises a pure question of Sharia law as to the duties
and powers of persons appointed by the Sharia courts. The defend-
ants were appointed as officers of the Sharia Court for the performance
of certain duties. and the court to which they should account for the
proper performance of those duties is the court which appointed them,
and no other court. It is obvious moreover that the best possible,
indeed, the only proper court to decide the extent of their authority
granted by the Sharia Court is the Sharia Court itself. Moreover.
the interference of the civil courts in such matters leads to the un-
desirable position, which is well illustrated by the proceedings of this
case, of a Kadi being a witness in the civil case, and being virtually
forced to justify before a civil court and defend acts which he has
performed as a Sharia Kadi. It is unnecessary to stress the intolerable
position in which a Kadi is thus placed, a position which is essentially
derogatory to his high office. Clearly the appropriate courts to
decide whether these persons appointed by the Sharia Court had the
requisite authority to pay the money, which they allege they paid, are
the Sharia courts themselves. Similar considerations arise regarding
the alleged payment of the money, if the defendants are found to have
had the required authority to pay. In that case the defendants should
account to the Sharia Court which appointed them for the due per-
formance of the duties or powers given to them by the Sharia Court.
.It is clear that under the Sharia Procedure Regulations the distribution
of the estate after payment of the debts is to be controlled by the
Kadi. Under regulation 23"4 he is not to order distribution until he
is sure that there are no other claims against the estate, and under
regulation 239 the estate is only to be delivered to the heirs under
certificate by the administrative authorities, the record of which is to
be kept in the Kadi's file of the estate. Reference could also be
made to other regulations which clearly show that the control and
direction of the distribution of the property of an estate is peculiarly
within the province of the Sharia courts. With that control it is not,
in the view of this court, proper for the civil courts to interfere.
The question of the £E.20 raises a more difficult question. It
is well known, and is not open to question, that even in a Moslem
estate civil claims, if disputed, are referred to the civil courts for
decision, a copy of any decree passed against the estate being passed
to the appropriate Sharia court for execution during the administration.
Such would be a claim that a bracelet had been handed to the
deceased for sale, that he had sold it for £E.40 and that he had not
accounted for that sum. This is the present claim and it is admitted
as to £E.20. Such claims are brought against all the heirs, who are
all named as defendants, but in this case the claim has been raised
against the appointees of the Kadi and, to their plea that they have
paid the claim, it is alleged not only that they have not paid the
claim, but they had no authority to pay it. Whether they had such
authority and, if so, whether they in fact paid is to be decided by the
law under which they were appointed, namely the Sharia. It is in
substance a complaint that, even if the payment was made to the
plaintiff herself, the Kadi's appointees exceeded the powers he gave
them. This should be decided by the Kadi in the administration
proceedings, and when the Kadi has decided this question of law,
and whether the payment has been made according to the Sharia,
thi's case will be over. The Sharia court has power to make an
enforceable order that its appointee shall pay. It is almost superfluous
to stress again the undesirable consequences which arise from this
matter of £E.20 being litigated before the civil courts, such as the
Kadi becoming a witness and being compelled to justify before a
civil court actions which he had taken as a Kadi of the Sharia courts.
The only possibility of a claim over in the civil courts would be if the
Kadi were to order the defendants to pay over again, and they were
then to bring a suit in the civil courts for return of tbe first of their
payments as unjust enrichment. In the present case, however, it would
clearly be of no use to suggest that such a claim should in such an
event be brought, as it would clearly fail, having regard to the
decided view of the civil judge that the payment was not in fact
made, a view with which this court would obviously not interfere.
Nothing in this judgement is intended to question the right of
the plaintiff to raise a civil suit in respect of any claim exceeding
the amount which has been admitted in the administration of the
estate in respect of the bracelet, but such a suit must be instituted
against all the heirs and not merely against the present defendants.
In the view of this court, therefore, the appeal should- succeed,
on the grounds that the civil court should not have accepted jurisdic-
tion in the case, as it was brought, and the matter should be remitted
to the Kadi. We have had the benefit of a consultation with the
learned Grand Kadi and Mufti in this matter, and are glad to find
that they are in agreement with our views. It is appropriate that
an order should be made for the fees paid by the respondent and
the appellant in the court below and in this court respectively should
be refunded.
Cumings J.: I agree.
Appeal allowed