JABER ELIAS KOTIA Vs. KATR BINT JIRYES NAHAS

JUDGEMENT

(1.) The two appellants in this matter are the only brothers of Ibrahim Elias Kotia, who died intestate and childless on 7 December 1937, a national of and domiciled and resident in the Lebanese State. The respondent is the widow of the deceased. The brothers claim that certain "mulk" land (i.e., land possessed in full ownership, see (1920) AC 7431at p. 746), of the deceased situated in Palestine ought to be divided in the proportions of nine twenty-fourths to each brother and six twenty-fourths to the widow, i.e., in accordance with the Sharia Moslem law prevailing in the Lebanese State : the widow on the contrary claims that the land in question ought to be divided in the proportions of one-quarter to each brother and one-half to the widow, proportions adopted in case of intestacy by the Ottoman law, and according to the arguments of the widow, applicable to the present case by virtue of the law of Palestine. The District Court of Jaffa on 31 July 1938 ordered the issue of a certificate of succession in relation to the property in question and the moveables of the deceased in Palestine in accordance with the contention of the brothers, thus giving one-quarter to the widow. On 31 October 1938, the Supreme Court of Palestine, on appeal from the District Court, directed the order of the District Court to be set aside and an order substituted ordering a certificate of succession to issue giving (in accordance with the widow's contention) a one-half share in the mulk land to the widow and a one-quarter share to each of the two brothers. Although the certificate issued under the order of the District Court extended to moveables in Palestine, no question was raised either in the Appellate Court or before their Lordships in regard to the deceased's moveables in Palestine. Before their Lordships the argument was confined to the question of succession to the deceased's immovables in Palestine, and it is this question alone which their Lordships have considered. The following are the provisions of the law of Palestine which are relevant to the matters in dispute : The Palestine Order in Council, 1922.

(2.) Art. 46. The jurisdiction of the Civil Courts shall be exercised in conformity with the Ottoman Law in force in Palestine on 1 November 1914, and such later Ottoman Laws as have been or may be declared to be in force by Public Notice, and such Orders in Council, Ordinances and Regulations as are in force in Palestine at the date of the commencement of this Order, or may hereafter be applied or enacted ; and subject thereto, and so far as the same shall not extend or apply, shall be exercised in conformity with the substance of the common law, and the doctrines of equity in force in England, and with the powers vested in and according to the procedure and practice observed by or before Courts of Justice and Justices of the Peace in England, according to their respective jurisdictions and authorities at that date, save in so far as the said powers, procedure and practice may have been or may hereafter be modified, amended or replaced by any other provisions. Provided always that the said common law and doctrines of equity shall be in force in Palestine so far only as the circumstances of Palestine and its inhabitants and the limits of His Majesty's jurisdiction permit and subject to such qualification as local circumstances render necessary.

(3.) Art. 51. Subject to the provisions of Arts. 64 to 67 inclusive jurisdiction in matters of personal status shall be exercised in accordance with the provisions of this Part by the Courts of the religious communities established and exercising jurisdiction at the date of this Order. For the purpose of these provisions matters of personal status mean suits regarding marriage or divorce, alimony, maintenance, guardianship, legitimation and adoption of minors, inhibition from dealing with property of persons who are legally incompetent, successions, wills and legacies, and the administration of the property of absent persons. Art. 58. The Civil Courts shall exercise jurisdiction over foreigners, subject to the following provisions : Art. 59. For the purpose of this part of the Order the expression "foreigner" means any person who is a national or subject of a European or American State or of Japan, but shall not include : (i) Native inhabitants of a territory protected by or administered under a Mandate granted to a European State. (ii) Ottoman subjects. (iii) Persons who have lost Ottoman nationality, and have not acquired any other nationality. The terms "subject" or "national" shall include corporations constituted under the law of a foreign State, and religious or charitable bodies or institutions wholly or mainly composed of the subjects or citizens of such a State. Art. 64. (i) Matters of personal status affecting foreigners other than Moslems shall be decided by the District Courts, which shall apply the personal law of the parties concerned in accordance with such regulations as may be made by the High Commissioner, provided always that the Courts shall have no jurisdiction to pronounce a decree of dissolution of marriage until an ordinance is passed conferring such jurisdiction. (ii) The personal law shall be the law of the nationality of the foreigner concerned unless that law imports the law of his domicile, in which case the latter shall be applied. (iii) The District Court, in trying matters of personal status affecting foreigners, shall be constituted by the British President sitting alone. In trying matters of personal status affecting foreigners other than British subjects, the President may invite the Consul or a representative of the Consulate of the foreigner concerned to sit as an assessor for the purpose of advising upon the personal law concerned. In case of an appeal from a judgment in such a case the Consul or representative of the Consulate of the foreigner concerned shall be entitled to sit as an assessor in the Court of Appeal.