( 379 )
Present : Ennis and Porter JJ.
HABEEBU v. SILVA.
300—D. C. Galle, 18,265.
Muhammadan law—Gift of land subject to long lease—Seisin deliveryof possession—Lapse of time after gift—Presumption.
A Muhammadan gifted in 1801 a land which was subject toa long lease to his daughter N, who accepted the same in thedeed. N died in 1807, leaving a son five years -old, who subse-quently transferred it to plaintiff. The defendant urged that asthe donor was not in possession of the property at tne time of thegift, the only way by which the seisin of the property could beproved would be to show that the donee had received the rentsand profits of the property gifted, and that there was no evidenceon this point.
The Court presumed m the circumstances of the cases that therent was spent on behalf of the minor son.
“ One must presume after lapse of years that everything hadbeen done that should have been done.” In the present case thereis an accumulation of small details which seem to indicate that-the Judge was right in coming to the conclusion that possessionhad been taken of the land gifted to the donee.
HE facts appear from the judgment.
Jayawardene, K.C. (with him Samara ivickreme and Cooray), forthe. appellant.
E. W. Jayawardene (with him Abdul Coder), for the respondent.February 21, 1922. Ennis J.—
This is an appeal from a decree in a partition action. It appearsthat the boutique in question originally belonged to Packir Bawaand his wife Haniffa. The defendant* claims by succession andtransfer all the . rights of Packir Bawa and Haniffa. The plaintiffclaims under a deed of gift from Packir Bawa to his daughterMayadu Nat-cliia, executed on June 6. 1891, and duly accepted inthe deed. Mayadu Natchia died in 1S97, leaving as one of her.heirs a child of five, Abdul Cader. who subsequently conveyeda share to the plaintiff, upon which the plaintiff bases his claim.The only point urged on appeal is that the deed of gift of June 6,1891, was never acted upon. It appears that there was an endorse-ment on the original Crown grant, which was produced by thedefendant, showing that the gift had been made. The learnedJudge held that this fact, together with the fact that the deedwas executed many years ago, was quite sufficient to support thepresumption that the deed of gift had been acted upon. It is *against this view of the case that the present appeal has been taken.
( 380 )
It has been strongly urged that, where the donor was not inpossession of property at the time of the gift, the only way bywhich seisin of the property could be proved would be to show'* that the donee had received the rents and profits of the propertygifted, and it was urged in his case that there was no such evidence.We were referred to the case of MulUek Abdool Gaffoor v. Muleka 1to support the contention that there must be such proof orsome such proof of possession. That case itself seems to showthat the Courts are reluctant to set no'value on a deed of gift bythe application of a rule that lands let on lease could not be madethe subject of a gift unless actual possession had been given. In thepresent case it appears that at the time of the donation the boutiquedonated was under lease for sixteen years! a lease which expired in1902; and in 1902 it would seem that Packir Bawa was dead, andthe donee, Mayadu Natchia, was also dead. Neither of them,therefore,could havebeencalled to give evidence as to how the
rents andprofits hadbeendealt with.Abdul Cader gave evidence
and said that on his mother's death his grandmother took care ofhim and supported him, and that he had always lived in her house.In these circumstances it would seem impossible to hold thatthe grandmother, Haniffa, had taken the rents and profits ofthis land without allocating them to the maintenance of AbdulCader. This bears out the Judge's finding that one must presumeafter lapse of yearsthateverythinghad been done that should
‘ have beendone. Inthe present casethere is an accumulation of
small details which seems to indicate that the Judge was right incoming to the conclusion that possession had been taken of theland gifted to the donee; and, in any event, it would be impossiblefor this Court to 6ay that the presumption was wrong. I wouldaccordingly dismiss the appeal, with costs.
Porter J.—I agree.
110 Cal. 111$.
HABEEBU v. SILVA