:1956Present : Gratiaen, J., and Sansoni, J.
FA LID A. CAFFOOR et cil., Appellants, and BI. Y. BE.HABIZA et al., Respondents
jS. C. 2S0—D. C. Colombo, 5,701 P
jOotialion—Acceptance by unauthorised agent—Validity—Reservation oj life-interest indonor—Accejjtance after donor's death—Validity.
Acceptance on behalf of a donee, but without tho donee’s authority, rendersa deed of gift inoperative.
Quaere, whether a deed of gift reserving a life-interest in tho donor can boaccepted by tho donee after tho death of tho donor.
j^^lPPEALi from a judgment of the District Court, Colombo.
V. Perera, Q.C., with N. Dissanayake, for the 9th-14th defendants-a,p pell ants.
(1032) 34 N. L. R. 37.
Wf Jayewarden?, Q.O., with S. tSharvananda, for the plaintiff-respohdent.
No appearance for the 2nd—9th respondents.
Cur. adv. vulf-
March 8. 1956. Gratiae.v. J.-
The plaintiff instituted this action on October 10th 1949 for the saleunder the provisions of the Partition Ordinance of a narrow strip ofland 9£ per ches in extent, depicted in the plan No. 1937 filed of record.The property which is situated in New Moor Street, Colombo, was atthat time a “ Takkiya ” which was regularly attended by Muslims asa place of worship (except on Fridays). There was a shrine room on thesite and two Muslim “ saints ” had been buried t here with the permissionof the Municipal authorities in 1930 and 1937 respectively. The Sth.defendant, who claimed to be the trustee of the Takkiya, intervened inthe action. After his death the loth defendant, his successor in thatoffice, was substituted in his place. The other intervenients are the-appellants who claimed to be the legal owners of the property holdingit in trust for the congregation!
The property had belonged several years ago to a Muslim lady calledNatchi Umma. According to the plaintiff, she donated it (subject to alife-interest in herself and also to a fideicommissum in favour of the.donee's children) to her grandson Mohamedo Usoof by PI of 1891..No specific evidence was led as to when precisely the donor died-Mohamedo Usoof himself died on 23rd April 1945. The plaintiff claims,that the property then passed to him as fideicommissary under Pi andto his brother Noor Mahaliya whose interests have since passed to the1st to 7th defendants. The learned Judge accepted this chain of titleand ordered a sale of the property under section S of the Partition-Ordinance on that basis. ■
The appellants conceded that the property originally belonged toNatchi Umma, but denied that PI operated as a valid donation intervivos because it had not been accepted either by Mohamedo Usoofpersonally or on his behalf by any person authorised by him. Theirposition was that Natchi Umma continued to be the owner until shedied and that the property then passed to her daughter Kando Umma.(the mother of Mohamedo Usoof). • According to the oral evidence,Kando Umma died in 189S, but her death certificate was produced inthis Court and proves that she in fact died on 11th June 1902.
It has been clearly established that Mohamedo Usoof, assertingabsolute title to her property, sold it on 1st February 1907 to OmarLebbe Marikkar, from whom it ultimately passed in I91S by a successionof transactions to tJie’ bppellants’ father. By that date the property-had been dedicated (by one of the purchasers claiming absolute ownership-through Mohamedo Usoof) for use as a Takkiya. The Municipal Assess-ment Register 9D2 proves that it has since 3 91S been recognised as atMosque.
agree ivith the learned Judge’s ruling that neither the purporteddedication of the property for the purposes of a religious trust nor thefact that two pious Muslims have since been buried there would afford adefence to the action if in truth the legal title to the site including theshrine room and the graves now belongs to the plaintiff and his co-heirs.Indeed, the onty ground on which Mr. HT. V. Pcrcra invited us to set asidethe judgment under appeal was that the donation of the property toMoliamedo Usoof by PI was inoperative for lack of acceptance. It istherefore unnecessary to discuss certain topics which seem to haveexcited much interest in the lower Court—for instance the question as tothe particular processes by which a pious Muslim may be recognised ashaving attained the status of a “ saint ”. In short-, the case can bedecided without causing offence to the religious feelings of the litigants.I therefore return to tho point of law raised by Mr. Percra.
Mohamedo Usoof was admittedly of age at the time when the deedPI was executed in his favour, but the deed of donation PI purportedon the face of the document to have been accepted on his behalf by hisaunt Sotha Umma. There is no proof that he had authorised this lady toaccept the gift or that he was even aware of the donor’s intention tomake it. Prima facie therefore the purported acceptance by SothaUmma was insufficient to perfect the gift. Voet 39:5: 11 and 12. Thereis also no direct or convincing circumstantial evidence of any subsequentacceptance of the gift by Mohamedo Usoof on his own account during thelife-time of the donor…
As a general rule, acceptance after the donor’s death does not operateto perfect the gift. “ For the will of the donor and the donee were notat one before the donor’s death, and after the death of the donor theycould not be united to the prejudice of the heir, who had acquired areal right to the property concerning which the donation had not beenaffected. ” Voet 39 : 5 : 13. The plaintiff relies, however, on anexception to the general rule, namely, that a gift may be perfected byacceptance after the donor’s death “if the execution or fulfilment ofthe donation has been postponed till after the donor has died.” Voet(ibid.). It was argued that in the present case the donor had reservedto herself a life-interest in the property, so that the “ fulfilment ” of thedonation was in truth postponed. It was suggested in Pokuhamy v.Juan 1 that if a donor reserves to himself the light to possess the-property till his death, Voet 39: 5: 13 is authority in support of a validacceptance after death. But this decision appears to have been principallybased on a prior acceptance by the natural guardian of the donees whowere minors, and on “ other circumstances from which acceptance nra3-fairty and reasonabty be implied ”.
The ruling in Lokithamy v. Juan1 was followed in Tissera v. Tisserabut with respect, I think that the question calls for reconsideration in anappropriate case. "When A conveys his property to B reserving a life-interest to himself, the title to the property passes immediately to B,and the enjo3-nrent of onty one of the rights incidental to full ownershipis-postponed.' I doubt if it can fairly be said that in such a situation1 (1S75) Ram. Rep. 215.* (190S) 2 Weer. 36,
•there has-been a postponement of the “fulfilment” of the donation."The law would therefore seem to require “ a present acceptance of the•dominium…which the deed . confers subject to the – life-interest.” per"Wood Rent-on J. in Hendrick v. Sudritarana x. – I shall assume, however,that it was open to Mohamedo Usoof to perfect the gift in his favour byacceptance after his grandmother died. Even then I take the view thatnroof of such accentance has not been satisfactorilv established
The evidence relied on by the plaintiff indicates at best that MohamedoUsoof first dealt with the property by executing two leases in favour ofthird parties in 1899 and 1901 (before his mother died) and that lie latermortgaged it in 1903 (after her death). The indentures of lease and themortgage bond have not been produced, and there is no material fromwhich we may infer that he had expressly (or even by necessaryimplication) acknowledged that his title was derived from, and limitedby the terms of, the deed PI. Indeed, PI had expressly prohibitedhim, as fiduciary, from mortgaging the property and it would be strangeindeed if one were to regard the execution of a mortgage in violation ofprohibition as affording proof of acceptance of the gift subject to thatvery prohibition. Those transactions which took place after MohamedoUsoof’s mother had also died are not inconsistent with the hypothesis■that he had leased or mortgaged the property by virtue of some other•title asserted by him. Let it then be supposed that the leases executedin 1899 and 1901 took place before the death of Natchi Umrna. In that•event the transactions would prima- facie contradict acceptance of thegift subject to the donor’s life-interest.
The burden was on the plaintiff to establish a valid acceptance of thegift, and not on the defendant to disprove it. It must be emphasisedIn this connection that Mohamedo Usoof sold the property in 1907reciting a title which was quite inconsistent with his suggested acknowledg-ment of the status of a mere’fiduciary. In Tissera v. Tissera 2 by way ofcontrast, the donee,, when dealing with the property, had expresslyrecited .that he had acquired title by virtue of the deed of gift, andOrenier J. observed that “ if there had been no acceptance of the gift onbehalf of the donees or by the donees themselves there would not havebeen this recital in the bond.”
A person seeking to establish a valid acceptance of a gift by circum-stantial evidence must furnish proof from which it may fairly be inferred,on a balance of probability, that the donee was aware of the execution ofthe deed of gift and had accepted it subject to the terms and conditionsof the grant. If, at the end of the case, the evidence on this issue isequivocal, the burden of proof is not discharged. I would thereforeallow the appeal and dismiss the plaintiff’s action with costs in both
Sansoxi, J.—I agree.
i 11912) 3 C. A. C. 80. See also the observations of De Sampa>/o J. in Xonai v.
Appuliamy (1019) 21 N. L. 21. 165 at 169.
– (1908) 2 Wcer. 36.
FALIL A. CAFFOR et al., Appellant, and M. Y. M. HAMZA et al., Respondents
:1956Present : Gratiaen, J., and Sansoni, J.