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Case details

Ally Khan (Appellant) v Abdool (Respondent) (Mauritius) (No 2)

Case ID: JCPC 2019/0027

Jurisdiction: The Supreme Court of Mauritius

Case summary

Issue(s)

Whether the courts below were correct to hold that Nushrat Begum Abdul (Nushrat) is the biological daughter of Abdullah Rossan Ally Peer Ally Khan (the Deceased).

Facts

Nushrat was born on 27 November 1990. Her biological mother (as separately determined by the Supreme Court of Mauritius in a decision not subsequently appealed) is Geeta Bundhoo.

The Deceased died in 1999, not having acknowledged Nushrat as his daughter during his lifetime, save in a document executed before a Senior Attorney-at-Law and given to Nushrat.

Mohammad Fahd Peer Ally Khan (Fahd) is the adopted son of the Deceased and brother to Ibrahim Rossanally Peer Ally Khan (Ibrahim), himself the acknowledged natural son of the Deceased and Beebee Affizah Ramjhan. Lootefiya Abdool is the daughter of the late Fazila Abdool, who, on the Deceased’s instructions, falsely declared at Nushrat’s birth that she was her mother.

In 2001, an action en recherche de paternité pursuant to article 340 of the Mauritian Civil Code was commenced on Nushrat’s behalf against Ibrahim and Fahd. That action was ongoing when Nushrat turned 18 and she was substituted as Plaintiff in her own right.

In February 2011, Counsel for Nushrat sought an order for DNA testing to ascertain if Nushrat and Ibrahim were related. The test result returned was that the chance of this was "very remote".

Devat J however declined to consider that report and held in light of all the evidence that Nushrat was the natural daughter of the deceased. Specifically, in accordance with article 340, Devat J found that the Decased had participated in the maintenance, upkeep and education of Nushrat "en qualité de père". Devat J consequently directed the Registrar of Civil Status to amend Nushrat’s birth certificate, but declined to hold and decree that Nushrat, Fahd and Ibrahim were the sole heirs entitled to the Deceased’s estate.

The Court of Appeal upheld the first-instance decision in each of the appeals brought independently by Fahd, Ibrahim, and Lootefiya Bibi Abdool, but heard together.

Parties

Appellant(s)

Ibrahim Rossanally Peer Allykhan

Respondent(s)

  1. Nushrat Begum Abdool
  2. The Ministere Public
  3. The Registrar of Civil Status

Appeal

Justices

Lord Kerr, Lady Black, Lord Lloyd-Jones, Lord Briggs, Lord Leggatt

Hearing start date

23 Jul 2020

Hearing finish date

23 Jul 2020

Judgment details