19950601 TZHC Dar es Salaam
- Citation
- 19950601 TZHC Dar es Salaam
- Status
- Judgment
- Jurisdiction
- Tanzania
- Court
- TZHC
- Decision
- 1 June 1995
- Posture
- Probate Appeal / Appellate
- Language
- English
More details
- Court
- TZHC
- Decision
- 1 June 1995
- Posture
- Probate Appeal / Appellate
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The will was invalid as it contravened Islamic inheritance law by purporting to bequeath more than one-third of the estate; the Primary Court's decision is restored.
Court disposition
appeal allowed
Orders
- Primary Court's decision restored
- Administrator to verify wife's claim to house No. 623 Block D
02
Material facts
Parties
Amiri Abdallah Sudi
ApplicantAsha Kasim
Respondent03
Procedural history
Posture
Probate Appeal / Appellate
04
Questions and positions
Legal issues
- 01
Whether the will tendered by Asha Kasim is valid under Islamic inheritance law
- 02
Whether the deceased could bequeath more than one-third of his estate by will
Party arguments
- Applicant
- The will contravenes Islamic inheritance principles as the deceased could not bequeath more than one-third of his estate by will.
- Respondent
- The will is valid and should be upheld as it reflects the deceased's wishes.
05
Court’s reasoning
Legal principles
- 01
Islamic inheritance law
A Muslim cannot bequeath more than one-third of his estate by will.
- 02
Probate procedural law
Undated will is not automatically void if witnesses can testify to its execution date.
06
Ratio, limits and disposition
Ratio decidendi
The will was invalid as it contravened Islamic inheritance law by purporting to bequeath more than one-third of the estate; the Primary Court's decision is restored.
Obiter and limits
- The administrator must verify the wife's claim to house No. 623 Block D, ensuring it is not based solely on its mention in the will.
Court disposition
appeal allowed
- Primary Court's decision restored
- Administrator to verify wife's claim to house No. 623 Block D
Source and reliance status
TZHC · 1 June 1995
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Judgment reading view
Judgment text
The complete available source text.
TZHC
Judgment· 1 June 1995
//IJ~M-q5v : -------! ~RI ~M,kUI ~\jJ).iJ:~ll:WO • .... u .. u,. u • ~?LICJ.,l~T V.&.wUS •••••••••••••••••••••••••••• 0n tho 17/1/92 Kasim Abdallah Sudi died. His brother Amiri ..:l.bde.J.la.h Su.di applied in the Kinoadoni ?r.imar-y Court to be app_oi,;nt_r, the admini.st~ tor of tllo estate. •Re was c1uly appointed a.drainistrator .of the est a.to. After tho a.ppointraent tl:.c ?riLla.:cy Court e.llowod. tho liifo of the docoa.sod ·.Asha Ke.saim to tender a will alleged to Jlavo been cxoouted . ·by the .. deoea.sod.. In short tho will :purports to bequeth t:ic proportios of'"-1,~o docoaacd as followss- Chilclron oallod Ba.kari and Q.teon e,ro to i11horlt :fl'Olll their mathcr pro:porti os tho doooescd loft their mothe:i:-,, to possess on divorcing !.,er. :3iai1?..rly .t.bc1ellal1 Kassim Sucli we.a to got his inherlta.i1co fror.1 r~iG r.10t:.:.or Tl::ic:2 ~'.'.O w-- □ eJ.loucd to retain on bai.ng 1 . ' divoroecl. by tho doooasoc'c... T~.:.orc is no r;1ention of t::,o typos of p1'0porty boquothod to t'..'.030 chilclron. . ., . 1¼3erdi11g house lfo. 623 BJ.oolc D Sinza tho vri.11 stat cs tt.at tho !:Lou.so belongs to the docca.soc1 's 1-ci.fo and a.a for house 1:fo. 784 Block D it is bequ.ethed to JJ.i Kassim Suc1i w::o sh::mlcl al so possess all its furni~3t Tho ?rimary Court founc.1 tLc will to be Lwalicl though it boliGV'ed the claim of the info 011 ~:ouso tfo. 623 Block D to
be genuine. On appeal to tho Diatric.t Court t'.1e will was held to have been valid• An appeal has ,boon loclgocl hinging on tho validity of the will. / ••••••• 2 ..,- - 2 The fi:rst ori tician of th0 will is t:b.at it is unda,tod. 'l'bis emission pc:r _so, how-aver coulr.:l not bo tho only basis for declaring t!J.o will null ax1d void fo:r tho wi tnosS()S to tho ,rill could have boon summoned to testify on tl:o date t!:oy signed tJ::..o cfocu:nont. What is o:Ncial is t)1at it purports to boquothc the only house said to belong to tho D.cccasod to one o:.:.ild i-T.Ul c tho d.ccoasod was scic1 to have had no loss the.11 8 children wit:.. ,li ff oront moth ors. TJ:.o will wn."3 c::. aJ_l()j:1,_::ocl prL:1cipdly on tho b2.8is that it co11travocsod pririoiplos of Islaraic 12:rr on L1::ori tanco. :3inco it w2,s not de.'lioc. that tho doocasod p:rofcssoc1 t'.:to Iol2,;xi.c rclir_sbn t~.on it was contonc1cd with much force that 1::.o could not by will boquot:io r.1:.:ro t;:,_c').1 1/3 ( one thi:ru) the value of bin estate. T'.,.o caoos of t1Icb2r.1od Yu:::iuf vs. Tunda bin Kassilil @ l'!J. 'n' 6J and 4oc:roJ i Itina:i r"4la Yfl,.. NazerrsiJ i ,Tiw:a & o:as 1966 Euvl,,\ JJJ. wore ci tad.. Al though tho exact value of t!10 ost0to of tho doooasod - was not c;ivon th.ore in no doubt that t::i.o house whlch was indisputably the _property of the dcocasoc1 wa.13 tho r::iost valuable portion
of his estat0e ~ ~a.riling tho house E'.llo-zoc1 to belong to tho wife of tho docc0.scd the administrator of tho estate is to ensure that it really belongs to her. In :porticula.r ho· is to ascertain whether tho clp_ira on that houso is not based solely on tho fact thet it is mentioned in tho will w,::..ic.1:l r has boon found to cont:mc..ict principles of Islamic law on inheri tanco. ( In tLo rosv.l t tl10 a:?:,;,cal sucoccclso Tho dcci □ion of the Primary Oourt is .roatorod. l .·,..
JVDGJJJ ' . ··• ",;.· Juc1goont Dolivorcc1 L1 t:10 prosonco of M:ossrur,J Lu::::,ua auc1 Safari Mvo oat °t ... ..-... , ,.
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