Ruhumbika, J.: This is a second appeal. The appeal involves the Islamic law of inheritance F for Moslems of Sunni Section.
The appellant, Hassan Matolla, applied to the Primary Court of Kinondoni in Mirathi Civil Case No. 5 of 1981 to be appointed the administrator of the estate of the late Selemani Matolla, who died intestate. The deceased G left behind a house on Plot No. 10, Mwanamsali, Kinondoni District. The appellant also claimed before the same court to be the rightful heir of the estate of the said deceased person.
The application was objected to by the Kadhi of Mwinyimkuu Mosque, in that the deceased had dedicted that house in a "Wakf" deed to the mosque. H
An appropriation by way of a "Wakf" may be either by act inter vivos, or by will. But if it is made by will or death-bed gift it is subject to the same restriction as bequest in favour of an individual, namely that it cannot I operate upon more than one-third of the next assets, unless the heirs consent. That is the general jurisprudential point of view regarding "Wakf" document which becomes effective at the death of the testator.
In considering the application of the appellant, the Primary Court had to have a full hearing of the objection. The A objector called several witnesses to testify. The Khadhi himself (Jaffar Abubakari) testified before the Primary Court. He told the Court how the deceased established the "Wakf" dedicating his house to the mosque for religious reasons, as he had no child of his own living in this country. The deceased set up the "Wakf" before B some kind of a conciliation committee of the CCM Branch of Mzimuni, Kinondoni District. This was on 26th December, 1979. The execution of the "Wakf" was attested by three members of that committee, the chairman C of the committee, the secretary and a committee member. The document had to be executed in the presence of those witnesses as he could not write. In addition to that, three members from the mosque authority signed the "Wakf" to signify that they had agreed to the terms set out in that "Wakf". The deceased was illiterate and for that reason he could not sign the "Wakf". D
The evidence of all those who testified before the Primary Court for the objector proved that it was the intention of the deceased to dedicate the house in that "Wakf" to the mosque in question, as he had no child of his own living in Tanzania. However, it was a condition set out in that "Wakf" that should the deceased person's sole E child, a daughter, come from Zambia, then the house should devolve to her as the heir. This daughter, Mariam Matolla, born in 1928 at Dar es Salaam lived all the time in Limber Zambia. In order that this daughter could identify as such she had to produce a photograph taken together with a cow whose milk was used to feed her during her infancy as her mother died when she was an infant. F
The turn of events is that after the death of Selemani Matolla, the daughter did not turn up. This then gave the opportunity to the appellant to go to the Primary Court to seek an appointment as an administrator of the estate of the deceased and also to claim the right of inheritance as an heir, as he is the son of the brother of the G deceased. The appellant claimed to have nursed the deceased until his death on the 1st of January, 1981, and to have handled all 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 as heir under Islamic law. H
Under the law as stated in A Handbook of Mohamedan Law of Inheritance - by Sheik Ali Bin Hemedi El-Buhuri - a brother's son has a right to inheritance, and is included in the list of ten male heirs. The Primary I Court therefore found that the appellant had the right to inherit the deceased person's house, but that he will have to pay off the unpaid balance of the loan of that house to the National Housing Corporation.
Further to that, the same court directed that the said house should be valued and that the appellant should in that A respect pay one-third of that value to the mosque in relation to the "Wakf" set up by the deceased. Eventually, the house was valued at Shs.70,000/= by a Court Broker, and one-third the value of that stands at about shs. 23,330/=. B
The appellant has been trying to have the said house registered in his name, but could not succeed in doing that as the Primary Court required him to cash down Shs.23,330/= to the mosque as per said "Wakf".
The appellant being dissatisfied with this finding of the Primary Court appealed to the District Court (of Ilala as C the record shows). He was unsuccessful, as the District Court upheld the decision of the Primary Court and dismissed the appeal. As a result of that, the appellant has appealed to the High Court. Although the appellant D tried to show in his memorandum of appeal (grounds nos. 2 and 4) that the objection was lodged after the expiration of the 90 days of the publication of the application so that any one with a claim of interest in the estate could lodge an objection with the courts this is not true. According to the record of the Primary Court which is very clear, the application proceedings were commenced on the 17th day of January, 1981, while the objection E was lodged on the 30th of January, 1981 by the Kadhi of the Mwinyimkuu Mosque one JAFFAR ABUBAKAR.
The crux of this appeal is: What was the intention of the deceased as reflected in the "Wakf"? The "Wakf" F established by the deceased was clearly a conditional "Wakf". One of the conditions was that the dedication (or endocument) of the house to the mosque should take effect after the death of the testator. Another condition was that the house should be inherited by the rightful heir. The house should only pass to the mosque permanently in the event of the heir failing to turn up. This means that the rights created by the "Wakf" as to the mosque could G not override or take precedence over those of the heir, when that heir turned up. It is then clear that the intention of the testator (deceased) was for the mosque to hold the house ad interim until the heir came forward.
It is obvious that the proposed heir was the daughter of the deceased (the term "heir" in legal literature is both H masculine and feminine, although the term "heiress" is used in general English usage). This heir, MARIAM MATOLLA, did not appear. No one knows whether she is still alive in Zambia or not. Nothing has been heard about her all this time. This has created an opportunity for the appellant to come forth as the righful heir to the I "estate of the deceased", and the Primary Court accepted him after due consideration of the application. The Primary Court decision in this respect was unanimous. Strictly speaking, the Primary Court could
have easily rejected the appellant as the heir, insisting that the only heir expected was the daughter of the A deceased. But in general, the Primary Court was also right in accepting the appellant as the heir, because he is the son of the deceased person's brother for which fact there was conclusive evidence. It appears that the decision of the Primary Court to accept the appellant has turned into a blessing to the appellant. MARIAM B MATOLLA, the daughter of the deceased, has not turned up, and the appellant is the only person available to benefit from the deceased's estate. This court did not wish to fault the decision of the Primary Court in accepting the appellant as the rightful heir according to Islamic Law, and the authority for that has already been cited. C
Going back to the "Wakf" is that the heir should inherit the house from the mosque, when such an heir came forth, despite whatever rights have been created by the "Wakf" as to the mosque. The appellant has now taken the D place of MARIAM MATOLLA. He has therefore the right to inherit the house, and the dedication of the house to the mosque in the "Wakf" is rendered non-effective thenceforth by the reason of the act of the appellant inheriting the house.
It is true that under the Mohamedan Law of Inheritance (book cited earlier), a testator cannot make a bequest in E which he passes more than one-third of the assets of the estate. Likewise a "Wakf" like the one set up by the deceased in this appeal could not give more than one-third of the value of the deceased person's estate, i.e., the house which is the only asset in the estate. That is why this theory of one-third was in the minds of the lower courts, when those courts obliged the appellant to cash down Shs. 23,330/= to the mosque in order to inherit the F house. This kind of interpretation of the "Wakf" in this appeal is a fallacy. Such an interpretation could only apply if the deceased has set up an unconditional "Wakf", dedicating the house to the mosque permanently after his death, without the clause that the house should pass to the heir when that heir was available. In such a case, if G then there came forward someone claiming as an heir under the usual Islamic Law of intestacy, the jurisprudence of the Islamic Law of intestacy would require that the dedication in the "Wakf" gave to the mosque rights in that particular house to one-third the value. In such a case, that type of heir could inherit the estate but less one-third the value of that estate dedicated to the mosque in a "Wakf", which the mosque should have. H
But in a conditional "Wakf" like the one set up by the deceased here, we clearly find that the mosque could not be entitled to one-third the value of the house left by the deceased, after the heir had come forth. This is so I because the intention of the testator was to pass on the house to the heir free of any conditions.
This court therefore finds that it would not be justifiable for the mosque to claim to be indemnified to the tune of A Shs.23,330/= by the appellant in order to inherit the house of the deceased. As long as the appellant was accepted by the Primary Court as the rightful heir, he should be able to inherit that house free of any encumbrances created by the conditional "Wakf". B
Having found that, what follows now is to consider when the appellant will be able to inherit the house. Obviously, the appellant was essentially appointed the administrator of the estate of the deceased. Therefore, he C has to discharge the liabilities against the estate first before considering the distribution of the estate to the heirs (incidentally, there is only one heir in this matter, and that is the appellant himself).
Therefore, this does not mean that the appellant has to inherit the house straight away. The appellant is the D rightful heir alright, and there are no more qualms about that now. But the court notes from the record of the Primary Court that the house of the deceased was still entangled in a loan element with the National Housing Corporation, and as remarked earlier the appellant has to pay off the unpaid balance against that house in order to redeem it from the mortgage with the Corporation. In this respect, the appellant cannot transfer the title to the E house in his own name as he thinks. He has to settle the account with the National Housing Corporation before anything could be done.
This court therefore directs the appellant in his capacity as the administrator of the deceased's estate to procure F an up-to-date statement of account from the National Housing Corporation in respect of the house, and file that statement in the Primary Court of Magomeni, which court should monitor and ensure to it that the appellant pays to the National Housing Corporation the required monthly loan repayments until the redemption amount is paid up. G
It is only after the redemption amount is paid fully that the house could be free from the mortgage regulations to enable the appellant to process and give effect to his inheritance rights, if there could be no other encumbrances in respect of that house. H
In the end result, this appeal succeeds only to the extent as indicated. The court makes no order as to costs.
Appeal allowed.
A