Hassan Matolla vs Kadhi wa Msikiti and Another ((PC) Civil Appeal No. 2 OF 1982) [1982] TZHC 358 (21 October 1982)

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM (PC) CIVIL APPEAL NO. 2OF..1982 (rrom the decision cf the District CO,1rt of ILALA AT D'-1.a1T ip Cjvil Appeal No. 73 of 1981 JASSI'JL j1ATOLL • .........,,..APPELLAN VRS. ADHI WA MSIIKI'J RESPONThJT •.. S • • • 5* MWINVINKUU STPET J(GMENj RURUMBIKA, J. - This is a second appoaa. Thqf appeal iflvolves the X4atnic law of inheritance for Moslems of Sp4 SectiOn. The appellant, HASSAN MAT°L,A, applied to the Primary QurtOf KinOndoni in Mirathi C , 1v4 Case No. 5 of 1981 to bq aOinted th administrator Of the lAptate of the late SELEMANI MtTQI44, wh 1ied hate state. The. dee.e et behind a house oft POt NQ. 10 9 Mwanamsali, Kinondon1. P.t.jict 1 . The appellant alaP clajmed berfOre the same court to bc ) the rightful herof the estate Of he said deceased persQr, The aPPILCat.Qn wass objected toby the Kadhi )f h1inimkw4 Mosque, in that the h.ad dd&ctd that o,se in a w wa to the aq*1e An apprQDj'i.tio by way Of a 'wakf" may be either by ait yiy, or by wi3l. But if it is made by wi.1 or deeth.bpd gift f is subject to the flame iest:&ction as bquest in favuz of 4n individual, iamely that it cannot operate upon mare. than oneJ.çd Of the next assets, unless the heirs 4onsent. Tht is the general jirtprudenUa 1 point Of vjw regarding 1 4akf" endOcurnents which become effective at the death the testottor. .1:;,

-2- In considering the application Of the appellant, the Primary cOut: had to have a full hearing of the objection... The objector called several witnesses to testify. The Khadhi himself (JAFFR ABUAKARI) testified before the Primary Court. He told ths Court hOw the deceased established the "Wkf' dec4cting. his house to the mosque for re].igious reasns. s he. had no c}Lld of is own living in this cGuntxy. The deceased set up the "Wakf" beforj, some kind of a conciliation ,cOmmj.ttee of the CM Branch Of rlzimunr, KinçndotJ, District. This was on 26th Decembe, 1979. The execution of the "Walçf" was altested by.three members Of that committee. The chjrman Of the committee, the secretary and a cojimittee member. The d4cument in the presence Of those witnessesas he v-Oul4 not write. . In additiOn to that, three members from the mi2sque authority signed the "Wk!' On their rt to signify that they hd aqred to the trrns set oiit in that •Wkf". The dacease was. 4itenate and for that reãsO he could hot the wakf,. The evidence Of all. those who testified befOre thq Primary Court for the Objectr .proved that it was the intention QE he deceased tOdediate the house in that "Wakf" to thie mOsque ir question, as he had no child of hist Own living in Tanzania. HOwe'r, it was a condition set out in that "WakE" that should the dece$ed person' S sOle child, a daughter, c9me from Zambia, then the houe should divolve to her as the 1 1heir. This daughter, MAItIAM MATLA born in 128 at Dar-es $alaam :lived all the tir; in Limber Zaia. In order that this dau1er cOuld jdenti1y herse1 as w4chshf had to produce a phQtOgiaph taken toçether with a cow wipose malk wqs used to feed her durinq her infancy as her mother died when she iSS an S.nf ant. The turn of e'.ren1e is that after thse death of tht estatr, the daughter did not tun up. This then gave te oppOftuoity to the appellant to gO tC the Priittary Court. to see4 an apineflt as an admiistrator Of the flstate.°f the deceased and also t clam the right of ijheritnce I os an.hei, as he t.s the soo of t%e brhr of the deceased. The appellart claimed to have tAufsed the dcesed until his death On the 1st Of January, 1 1 981, and to have handed ll

-.3--. the Islamic funeral rites. The Primary Court accepted the evidence adduced for the appellant as the son of the deceased's brother, and therefore entitled to inherit the estate Of the deceased an heir under Is,lemie' law. Under the law as stated jn: A HandbOOk Of NohainedanIaW .°- Inheritance by Sheik Ali Bin Hetrdi C].- Buhurj it is true that a brotherls son hs a right toinherttane, and is included in the list Of ten me heiS. The Primary Court therefOre fQunI that the appellant had the right t6 tihorit the deceased persort' s house, but that he will have to pay off the unpaid balance of thp loan Of that hOuse to the National HOusiflc COrpOratgn. Further O that, the same court directed that the said house should be Vauèd and that

• the appellant shqu3.d in that respect pay $ne-third of that value to the mosque in relation t the "Wakf' set vp by the dea$éd. Eveetually, the house was va1d at sh$', 70 9 000/= by a Court Broker, and On- third the value ol that stars'at about shs. 23 3 3 '. The appellanthas been trying to have the Sald j hQuse registered An his name, but could not succeed in d6iig that 43 the PrimaCy Court required him to cash down shs. 23 9 330/-. o the mOqe as per said "Wakf", The appellat being dissatisfied with this fJ4g of the Primary Court appealed tothe tistrlct,COurt (of 114a1 as tile record hOws) He was unsuccessu]., as thie District Court uph1d t4o decision of the Prjmarr Court and dismissed the ippea.. As a result of that, the appellant has appealed to tile HLgh Cottrt4 A1thouh the cippellanj tried to show in 11is 11OtflOQ1bdU!fl of appeal (grounds nos.2 and Li.) that the objectiofl. was loce after the expiration ot the 90das. of the pub1ioat.on of the ap11cation so that any ote with a claim or interest .n the estate could lodge an objctton witbho courts this is not true. According to the rocor(,' of the ?rimary Court, which is veIr c1ar, the applicatiop jjrocee(1:in,,_,s were' oomenoed on the 17th day of January., 2)81, '7hile the oboction was loded on the 30th of Januarr, 193), by the Icacthi of the Mwinyi.jrd,=i Mosque one JA 1 FAi' AI3U 1 34c1 1 j. The crux of this appeal is: What was th intmntion of the doct.s&d as. refloctod in tuc. "Wakf'? Ifte Wk" ttabUsbe\
• -. -_4 -•-- . - a..

V . I by the deceased was clearly a conditional "WakfV One of th conditjons was that the dedication (or endocumont) of the house o the mosque should take effect after the death of the testator.. Another condition was that the house should be thhértted by the rightful heir. The house should only pass to the mosque permanently in the evont of the hir failing to turn up. This moa.s that the 'ights created by the "W'akf' as to the mosqu.. c-ld not override or take preedonce over those of the heir, when that heir turned up. It is then clear that the intention of the tostator (dcceasol) was eor the mosque to hold the houe ad interim uni1 thD boir qame forward. It is obvious that the proposo hoii wa the daughter of the deceased (the term lthe4rll in JoC., al litmraDro is both masculine and fonunine, P-Ithough the term hetres" is used in general ig1is1 usag).,. This heir, MAijIAY t4ATOL1A, did not appear. No one knows wIether sbo is still tltve at Zambia or not. Notiing hae been hoard about her a1 this time. This as created an opportunty for the appallawt to come forth as. the uightful heir to the "estate of te dscoasQ'd, and the Primary • Court accepted him at du cons.jc1or'.tion •oI' the applicatipn. 1he Priraary Court dociion in this respoct unonimou. V $trictly spak1ng the. Primary Co4'rt-cou1d hjvo oasily rojoctod th appellant as the heir, insIsting ha the 0f-iJ.y heir expected • was thodaughter 'of tio,deceàsod. i3ttfl g eiral1ty, the Prj.jnar Cdurt was also eight. in accepting 'ho appellant as the heir, becauo he is the son of the decçaed person's brother for Whh.fCLct there was con6ltxsiv vidence. It appears that the deeisipn of the Primary Curt to accept the appellant has urnod into a blessing t: o the appellant. NAIUIN MATOLLA, tho daughter of thQ doceasd, 11as not turned up, and the appol.it is the only person avai4ble to benefit from the deceased's estate. This court did noip wish to fault the decision of thu i?rimary Coirt in acoptinj the appellant as the rightf bi according to Islamic LaIn, and the authority fr that hs a1i'eady been cited. Going back to the 'I1akf', the a triclh¼ interpretation of the

• intention of tb o deceased in that "Wakft' is that the heir eu1d inherit the h4uise from the uosqu, when suph an heir came fortb, . , g /5.

40 / despite.ihetever rights have been cioatod by the "Wakf" as to ( the mosque. The appellant has now t.ken the place of NAiIWW MTOLLA. He has thoxeforo the right to inherit the house, and the dedication of,the house to the mosque in the "Wakf" is 1'endeted rion-effcetive thenceforth by the reason of the act of the appollaiit inheriting the house. It is true that under the Mohamoclari Law of Inieritance (book cited earlier), a tstator cannot make a bequest in which he passes mo.e Ihan one-third of the assets of the estate. Likewise a "Wakf" like thi one set up by the decStsed in this appeal could not give more than one-third ot the ralue of the deceased person's 'estate, i.e. , the houo wbich Is the only asset in the estate. That whj this thecy of one-third was in the raindb of the lowQr co4ts, wh thoe obliged the appei].ant to cash dews s. 23,3301= to t1 tosie in order to inherit the hoo. This kn of ihtpton of the "Wakf" in this appe.l Is a fall,acili Such an in'pretation could only apply if the deceased h jet up an uncoridLtio,ai "Wakf", dedicating the house to 'th4 mosU.o peranobIy after his .eath, without the claus ;'that the house shoul4 pass to the heir when that heir was avajJ.ble. In such a case, if then there tame forward someQho clirning as an heir under , he usual islamic Law of intostacy the jurisprudence of that 1411amio Law of intestacy would reduiro tha the c.odicatiin irl the 'Wakf" ve to the mosque righsin that partic4ar house to thno- third the va1ue. In such a case 9 that typo o' heir could inherit the estate but 1s ono-thjpd the valuQ of tF'14!tt estate dedicated to the mosquc. in a "Wakf", which thi., niosqpe should have. But in a conditioha]. WakfU ltko the onu qet up by, the deceased here, we clearly find tbhat the mosque could n ot be entitled to ono third te value of tbe house loft by the deco as)d, after the heir had come forth. This is so bocaue the inten ttbn of the testator was to pass on the hoiise to the heir free of any cpnditions. This court there. fore finds that it wouhl not be justifiable for the mosque to cia im to be mn.demnifid to tho tune of shs. 2 3,330/_ by the appel :lant in order to thherit the house of the .16.. 0

dc3ased. As long as the appellant was accepted by the Pirrnry Court as the rightful heir, he should be able to inherit that house free of any onuimbrancos created by the cmditiona1 'Wakf". Having found that, what follows now is to consider when the appellant will e able to inherit the house, Obviously, the appellant was essontialy appointed the a dministrator of the estate of the d eceasod. Thore'ore, he has to dischage the liabili- tieg agjnst the estate first before consieri• the distribution of the estate to Lkio heirs (incIdentally, there is only one heir in this matter, and that 1.s the appel'ant himself). Therefro, this dooj no tt moap that the appellant has to ibherit the house atraig1t away. The appeI.tnt 4s tthe rightful heir airight, and there are no rnbi'o qalmsabort that now. But the court notes from the record of the Primary Court that the house of thl deceased was s.tll entangled in a loan element with the National Housing Cooration, and as remarked earlior to appl.lant 14as to pay pt'f the unpaid balance against that house in order to redeem it fxtni tho niortagage with the Corporation. Inthus ospQot, the appellant cannot transfer to house in his ow nne aa he thirks. He' has to settle the account with the National,liousing CôrpQration before anything could be done This court therefore drets the appeant in his capacity as the s dminitrator Qf the decesods estate to procure an up-to-date tatenont; of account from thd National Housing Corporation in respect of the house, and ftle that statement in the Primary Court of Magomeni, which court 8hould monitor and so to it that the appellant pays to the National Housing Corporation the reqtiid monthly loar ropp.ymonts titil the redemption amount is paid u. It is only after theredenption arounlI is paid fully that the house could be free from the mo rtgago ouations to ena4e the appellant to process and gi ye effict to )is iiheritanco rights, if there could be no at er eniimbra*es i4i respect of that ouse 1 In the end result, this apeal ucceds only to the extent as indicated. The ourt makes n o ordr as to c ost.

I. ( Deliverad in the open court this 21st day of October, 1932 at Dar es Salaam In the presence of the parties (R J. L. 11Ull1JI13 IKA) DAR ES SALAAN. JUDGE. 21/10/82. This j.e the oertifiLj tie copy of the original. TYREGISTRAR I