Cyprus Supreme Court dismisses appeal where legitimated child's succession rights governed by Wills and Succession Law, not Moslem Sacred Law.

[*412] 1972 April 3

(TRIANTAFYLLIDES, P. , STAVRINIDES, HADJIANASTASSIOU, JJ.)

APPELLATE JURISDICTION

Ragibe Remzi, alias Ragibe Soyhan, as

administratrix with the will annexed of the

estate of the deceased Remzi Mehmet Rusti,

Appellant-Defendant,

v.

Ayten Sencer, alias Ayten Remzi,

Respondent-Plaintiff.

(Civil Appeal No. 4931)

Wills and Succession - Illegitimate child - Moslem - Rights to succession - Illegitimate child (Moslem) legitimated under s. 54(l) of the Wills and Succession Law, Cap. 220 (1949 ed.) - Rights to succession not affected by the Moslem Sacred Law by operation of the provisions of s. 54(5) (a) of the said Cap. 220 but governed by the Wills and Succession Law, Cap. 195 (1959 ed.) s. 46.

Construction of Statutes - Section 54(4) and (5) (a) of the Wills and Succession Law, Cap. 220 (1949 ed.).

Costs - Unsuccessful appellant ordered to pay only half of the costs because he had reason to file appeal inasmuch as the point of Law involved therein was raised before, but was not determined by, the trial Court.

M. Houry with E. Avdjioglou, for the Appellant.

A. Dana with S. Hilmi (Miss), for the Respondent.

JUDGMENT

The judgment of the Court was delivered by:-

TRIANTAFYLLIDES, P. : In this case the respondent, who is the appellant’s sister, has sought, [*413] in effect, a declaration that, as one of the two children of the

deceased Remzi Mehmet Rusti, she is entitled, both under the will of the deceased and as a legal heir of his, to the one half of his estate.

The appellant denied that the respondent is a "legitimate child or heiress" of the deceased; and she counterclaimed for an order setting aside a legitimation order which was made on the 29th March, 1955, by the District Court of Limassol and by virtue of which the respondent was declared to be a legitimate child of the deceased, under section 54 of the Wills and Succession Law (at the time Cap. 220 of the 1949 edition of the Laws of Cyprus and now Cap, 195 of the 1959 edition of the Laws of Cyprus)

The trial Court dismissed the counterclaim and gave judgment in favour of the respondent.

In support of the counterclaim for the setting aside of the legitimation order there were advanced before the trial Court certain arguments with which we do not have to deal on appeal as they have not been repeated before us in relation to any ground in the notice of appeal.

It was argued by learned counsel for the appellant that the hereditary rights of the respondent, as a legitimated child of the deceased, are affected by the provisions of the Moslem Sacred Law; this submission was based on paragraph (a) of sub-section (5) of section 54 of Cap. 220 which reads as follows:- [*414]

"Nothing in this section contained shall affect -

(a) any right to succession, under the provisions of the Moslem Sacred Law, of an illegitimate child horn before the date of the coming into operation of this Law;"

We are of the view that the afore-quoted provision, when construed together with sub-section (4) of section 54, which provides that

"An illegitimate child who has been declared legitimate under this section shall, as from the date of his birth, have the legal status of a legitimate child in respect of both his father and mother and their relatives by blood",

cannot be regarded as intended to limit the succession rights of an illegitimate child who was legitimated under section 54, but, on the contrary, as intended to preserve whatever rights to succession existed under the Moslem Sacred Law in favour of an illegitimate child who was born before the date of the coming into operation of Cap. 220 and who was not legitimated thereunder.

In any event, section 16 of the Illegitimate Children Law, 1955 (Law 15/55 and now Cap. 278) repealed, inter alia, the whole of section 54 of the then Cap, 220 (now Cap. 195), subject only to a proviso that its repeal would not affect any legitimation order made thereunder.

When the parties to this appeal appeared before the trial Court their rights to succession were governed by [*415] Cap. 195 as in force at that timer and under section 46 of Cap. 195 the respondent had the same such rights as the appellant.

In the result we dismiss this appeal; but we order the appellant to pay only half of the costs of the respondent in this appeal because we take the view that the appellant had good reason to file this appeal inasmuch as the point of law which concerned section 54( 5) ( a) of Cap. 220 was raised before, but was not determined by, the trial Court.

Appeal dismissed.

Order for costs as above.