Mapigano, Ag. J.A. and Ramadhani and Mnzavas, JJ.A.: This case concerns the estate of Fatuma d/o Sefu, hereinafter "the deceased", who died intestate in 1983. The F deceased was a Sunni - Shaffii Moslem, so the distribution of the estate, of which two houses are the main assets, is governed by the rules of that sect.
On 23/11/83 before the Primary Court at Kariakoo in Dar es Salaam the two appellants and three other persons who claimed to be heirs proposed that Mohamed G Ussi, the third respondent herein, be appointed administrator of the estate. But on 3/12/83 it pleased that court that the administration of the estate be granted to Saidi Mohamed Harriz, the fourth respondent. On the same day the court made an order that the assets be sold by auction.
The deceased was the wife of Mgeni Hemedi, and there was on agreement by the H claimants, and it was in full accord with the law of the estate, that Mgeni Hemedi, as surviving spouse, is entitled to take half of whatever fell to be divided. There was however a dispute as to whether Mohamed Ussi, Shaban Abdul and his sisters Tatu I Abdul and Fitina Abdul could be called to the succession along with the appellants Sofia Saidi and Yusuf Mohamed Mussa. The
MNZAVAS JJA, RAMADHANI JJA, MAPIGANO AG. JA
contention of the appellants was that they were the only persons, apart from Mgeni A Hemedi, who could succeed to the estate, by reason of agnation. The appellants took the dispute to the District Court of Ilala although the matter could and should have been adjudicated upon by the primary court first, in terms of the Fifth Schedule to the B Magistrates' Courts Act, 1963, which was then in force.
Mr. Machano, learned advocate, who appeared for the appellants submitted before the district court that Mohamed Ussi, Shaban Abdul and his sisters are excluded from succession on two grounds: first, they are kindred on the uterine side, which indeed C they are, and Mr. Machano referred the court to a broad statement made by Sheikh Ali bin Hemedi El-Buhuri in his handbook Mohamedan Law of Inheritance: secondly, they were "too far in the genealogical line".
However, another handbook on the same subject written by an equally renowned D Islamic law jurist, Sheikh Abdullah Salehe Farsy, was available to the senior district magistrate, and the learned magistrate understood Sheikh Farsy as holding the contrary, namely, that in a situation like the one is this case the net estate is divided to both agnate and uterine heirs. E
In his judgment dated 13/7/84 the learned magistrate preferred the view taken by Sheikh Farsy and held that since there was no Koranic heirs other than Mgeni Hemedi, which was common ground, heirs on the uterine side are entitled to inherit along with those on the agnate side. He also took into consideration the fact, as he found it, that F the uterine claimants were more intimate to the deceased and had cared for her during her old age and incurred a substantial amount of money on her funeral. He expressed no opinion on the respondents' argument that since the mother of the deceased would have taken of half of the estate, if she had survived the deceased, those who would have G inherited the mother's estate are not debarred from distribution. And he did not pronounce on the portions to be given to the claimants.
They, innuendo the appellants, were aggrieved by the decision of the district court and they appealed it to the High Court. In his judgment dated 20/12/86, Bahati, J. upheld H that decision. What is before us, therefore, is a second appeal.
On behalf of the appellants Mr. Mchora, learned advocate, has set out three grounds of appeal in the memorandum viz: I
MNZAVAS JJA, RAMADHANI JJA, MAPIGANO AG. JA
A 1. That the learned judge erred when he upheld the decision of the lower courts which held that heirs on the uterine side may inherit along with those on the agnate side where the deceased is a Moslem and his or her estate has to be administered according to Islamic law.
B 2. That the learned judge misdirected himself when he upheld the reasoning that Sheikh Farsy's opinion in respect of the matter was more appropriate and fitting than that of Sheikh Buhuri.
C 3. That the learned judge erred when he held that the appeal had no merit.
It seems to us that these grounds admit of being considered together. We have, D however, failed to understand why the first, second and fourth respondents have been made parties to these proceedings.
Before we heard the appeal we were under the strong impression that these grounds of appeal are confined to the question whether agnate heirs were, at law of the estate, E superior to uterine heirs, and in actual fact that was the burden of Mr. Machano's address in the district court. But in his submission before us Mr. Mchora changed tuck. He criticized the learned judge in the High Court for failing to consider the proximity to the deceased of each of the claimants. He concluded his speech by asking us to F remand the case back to the primary court for it to take additional evidence on the point and determine the same.
Learned counsel for the respondents, Mr. Ngasala, supported the concurrent finding of the court below, saying that the courts were entitled to accept Sheikh Farsy's opinion, G which opinion, he said, is grounded on equity. With regard to the question of proximity, Mr. Ngasala replied that the matter was not raised in the courts below, though he conceded that it is of immense importance in the scheme of Islamic succession.
With due respect to Mr. Ngasala, it is not true that the question of proximity was not H raised in the courts below. It was raised in the district court. We think that that is precisely what Mr. Machano had in mind when he submitted that the respondents are "too far in the genealogical line", about which the learned magistrate said nothing. I
It is beyond question that in the scheme of Islamic succession
MNZAVAS JJA, RAMADHANI JJA, MAPIGANO AG. JA
the principle of proximity is a vitally momentous one. It is a scheme that has held true A for centuries, and one that is applicable to all classes of heirs so that within the limits of each class the nearer of blood excludes the more remote. We are disposed to think that even Farsy's statement is subject to that principle.
Another scholar, Sir Roland Knyvet Wilson holds with the view expressed by Sheikh B Buhari about agnate superiority. In his Digest of Anglo - Muhammadan Law, 5th edition, Wilson writes at page 62:
C Special rules, based directly or by analogy on Koranic texts, govern the cases of females standing alone in the nearer degrees, and beyond the degree of sister patriarchal usage prevails in all Sunni schools to the extent of totally excluding females and blood- relations of either sex connected with the deceased through females, so long as there is any male D collateral, tracing up and down through an unbroken line of males - in other words any agnate, however remote.
In any event, the claims of the heirs in this case must be considered in the light of their classes, which, in our view, is determinative of the claims. Islamic lawyers distinguish E three principal classes of heirs and this also has held true down through the ages.
The first principal class is called "Sharers" or "Koranic heirs" of which, as stated, F there is only one in this case, i.e. Mgeni Hemedi. The second is called "Residuaries" or "Asabah" and looking at the Table of Residuaries in Mulla's Principles of Mohamedan Law, 14th edition at page 69A, there is only one such heir among the claimants in this case i.e. the second appellant Yusuf Mohamed Musa, he being an agnate nephew of G the deceased. The third class is commonly referred to as "Distant Kindred" and this is the class to which the rest of the claimants, including the first appellant Sofia Saidi, belong.
Germane to these classes is the rule of exclusion or postponement. The rule prescribes H that Residuaries are called to succession only where there are nos Sharers or where the inheritable estate is not exhausted by the Sharers; and the Distant Kindred are called to succession only where there are no Sharers of Residuaries: See Mulla, sections 65 and 67 (1). I
Accordingly, inasmuch as there is only one Koranic heir and
there will be a residue left after satisfying his claim, the residuary, i.e. the second A appellant, should be called to succession. And inasmuch as there is a residuary, nothing can devolve upon the rest of the claimants. That is the legal position, and much as we may appreciate the affection and generosity which some of the claimants had displayed toward the deceased, there is nothing we can do. B
For the benefit of some of the claimants we conclude by making this observation: it is a wrong thought that they can stand in the place of the mother of the deceased, for the doctrine of representation is alien to Islamic intestacy. So it matters not that the mother of the deceased would have been called to the succession of the estate, if she had C survived the deceased, and that upon her death the claimants would have partition in her inheritance. As Wilson points out in his Digest at page 64, the case of Prophet Mohamed himself poignantly exemplifies the true legal position. He writes: D
Thus, in Muhammad's own case, his father Abdullah having predeceased him (in fact, having died before he was born) while the grandfather was still living, the other sons of the grandfather divided the whole of the latter's inheritance to his total exclusion, and he E owed his maintenance and start in life to the kindness of one of his uncles.
Wilson presumes that this system satisfied the Prophet's sense of justice though he F personally suffered by it, since he did not alter it when he was in a position to do so. And of course it is beyond our competence to change that system.
In the ultimate event this appeal succeeds, and we allow it with costs. In view of what we have remarked about the joinder of the first, second and fourth respondents, we G order that the costs be paid by the third respondent Mohamed Ussi alone.
Appeal allowed. H
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