NEW LAW REPORTS OF CEYLONVOLUME XXXIV
1932Present: Garvin S.P. J. and Maartensz A. J.
HASHIM v. MOHIDEEN145—D. C. (Inty.) Colombo, 31,077
Trust—Conveyance in trust for maintenance of minors—No gift over to donees—Absence of provision for ultimate destination of property—Resultingtrust—Trusts Ordinance, No. 9 of 1917, s. 85.
Where property was gifted and conveyed by A to B to be held bythe latter in trust for the grandchildren of A during their minorityand subject, inter alia, to a life interest in A, and to the condition- thatB should, during the minority of the donees, recover the rents andapply them for the maintenance of the minors, after making the dis-bursements necessary for taxes and repairs,—
Held, that the deed did not amount to a gift to the minors but a con-veyance to B in trust for them during their minority.
There being no provision for the destination of the property on theattainment of majority of the minors, the trustee must hold the propertyfor the benefit of the author of the trust or her legal representatives.
NE Awwa Umma conveyed property to first defendant to be held intrust for plaintiff and his brother, who were her grandchildren,
during their minority, reserving to herself a right to the rents and profits.She kept the deed of gift with her. The gift was accepted for the minorsby the first defendant. Thereafter Awwa Umma sold the land to thesecond defendant, who gifted it to the third 'defendant. Plaintiff afterattaining majority brought this action to vindicate his title to the land.
The District Judge gave judgment for the plaintiff.N
V. Perera, for defendants, appellants.—Immediate seisin is necessary,for the validity of a gift in Muslim law. . Where the property is vestedin a trustee for the minors seisin must be given to the trustee. Wherea life interest is reserved to the donor, the trustee can get seisin only onthe death of the grantor. This is not a case similar- to ond~where aparent-gifts to a child and keeps the deed with himself. Here' the trusteeis in a position to keep the deed. But the grantor keeps it. The sub-sequent deed of sale entirely ignores the deed of gift. This is a clearindication of revocation as in Kandyan law, where the sale is deliberateand on the basis that the vendor is owner.
Hashim v. Mohideen.
For the effect on a gift of the reservation of a life interest see Weerasekerev. Peiris For the gift to be valid not merely possession but legal titlemust be given. A condition may then be imposed on the donee. It' must be always on the donee to be observed after he gets possession.Here possession by the trustee is to commence after the death of thedonor who reserves the rights to be enjoyed by her. * This is a rightthat may be transferred. It is the reservation of a right not the imposi-tion of a condition.
[Garvin J.—How do you get over Ordinance No. 10 of 1931 ?]
The Ordinance was not in operation at the time of the action.
[Garvin j.—The Ordinance declares what is the law. It is intendedto remove all doubts. No other law is applicable.]
It is a change of the law. It can take effect only after the law hasbeen changed. In India it has been held that the Muslim law applies'• even where the return is in the form of a trust.
[Garvin J.—The Ordinance says that this is the only law applicablein these matters.],
The Ordinance says “ shall be ”.
• [Garvin J.—This is not a change of the law.]
The word “ applicable ” merely means “ relating . to ”. It does notmean “ to be applied by the Courts ”. The law is not a matter affectingthe CouhE only. It is a matter that concerns private individuals as well.
[Maartensz J.—“ Shall ” is imperative. It does not indicate futurity.]
It is imperative. But because it is imperative it necessarily impliesfuturity. If it was a declaratory statute the. word would be “ is ”. Onemust distinguish between rules of procedure which must guide the Courtand rules of substantive law.
In re Corell1 is a case of a true declaratory-statute. That is not anOrdinance defining the law because in certain parts it obviously enactsnew law and repeals previous Ordinances. The expression “ it is declared ”to make riew law is not incorrect and not uncommon (Harding v. Commis-sioner of Stamps, Queensland 3). See the Removal of Doubts Ordinanceregarding Kandyan law, No. 14 of 1909. Language is employedthere which is unambiguous. The proviso to section 3 changes the law. even if the section merely declares the law. Section 4 does not purportto declare the law..'.
Even if the Ordinance applies and the case is to be governed by Roman-Dutch law the plaintiff has no title. The deed creates" a trust duringminority. As soon as the party attains majority there is a resultingtrust in favour of-the .grantor (section 85, Trusts ^.Ordinance). There isno gift over to the minors. Even if Awwa Urama had no title at the dateof the transfer, the subsequent title accuring to her on the expiration ofthe trust will enure to the benefit of her vendees.
’32 N. L. R. at 185.'3 (1907) 1 Ch. 249.
3 (189S) A. C. 769.
GARVIN S.P.J.—Hashim v. Mohideen.
N. E. Weerasooria (with him E. B. Wickramanayake), for plaintiff,respondent.—Parties have gone to trial on the basis that the gift wasa gift to the children. The intention of the deed is that the firstdefendant, in the event of the donor’s death, collects the rents for theminor’s maintenance.
[Garvin J.—This is an express conveyance to the first defendant.]
No issue was raised at the trial as. to whether or not there was a giftover to the minor beneficiaries on their attaining majority. It wasnot pleaded in the answer. The intention of the donor was obviouslyto benefit her grandchildren, the beneficiaries.
February 1, 1932. Garvin S.P.J.—
This was an action for a declaration that 'the plaintiff was entitledto a quarter share of the premises .described in the plaint. He pleaded,and this is an admitted fact, that one Awwa Umma was the owner ofthe premises in question. The plaintiff and his brother are grandsonsof that Awwa Umma. During her lifetime, Awwa Umma executed adeed bearing No. 4,534 and dated February 10, 1913, which relatesto a half share of the preihises. It is upon this deed the plaintiff baseshis claim to a quarter share, presumably allocating the remaining quarterto his brother. The learned District Judge treated the deed as a giftto the plaintiff and his brother, who were then minors. Applying whatappeared to him to be the correct principles of the Muslim law he heldthis to be a gift by a paternal ancestor to the two minors, and, therefore,one which was complete without seisin. He then proceeded to dealwith the question of the reservation by the donor of the life interest toherself and expressed the opinion that this did not vitiate the gift. He nextaddressed himself to the question whether the deed had been revoked, and,while holding that the deed was one which might have been revoked,held that in fact it had not been revoked. Upon the basis of thisfinding he declared the plaintiff entitled to the share claimed by him.
Now the whole of the learned District Judge’s judgment proceedsupon the assumption that this is a gift by Awwa Umma to her twograndsons. But the true effect and purpose of the • deed is set out bythe plaintiff in paragraph 3 of his plaint, in which he alleges that “ thesaid Awwa Umma gifted and conveyed an undivided half share of thesaid premises to the first defendant to be held by the first defendantin trust for the plaintiff and the plaintiff’s brother Mohamado AbdulCader Mohamed Makeen during their minority and subject inter aliato a life interest in favour of the said Awwa Umma and to the conditionthat the first defendant should during the minority of the said doneesrecover the rents of the said premises and apply the same to main-tenance of the said donees after making disbursements necessary fortaxes and repairs ”. This may be taken to be a fair summary of thecontents of this deed. It is clearly not a gift to her grandsons but aconveyance to the first defendant in trust for them during their minority.It is unnecessary- therefore to follow the learned District Judge or toconsider how far he is correct in his view as- to the law applicable hadthis been in fact a gift by Awwa Umma to her grandsons. The onlypoint in connection with which it might perhaps be necessary to apply
GARVIN S.P.J.—Hashim v. Mohideen.
the principles of the Muslim law would be to determine whether thisgrant to the first defendant is a valid gift under the Muslim law,but it is unnecessary to do so for it seems to me that even if it be treatedas a perfectly valid gift in trust the plaintiff must fail in this action.
Now the intention of the donor Awwa Umma is perfectly clearlyand plainly expressed in her deed. She starts by stating that she“ intended to grant and convey an undivided half part of the aforesaidallotment of land unto my son Mohamado Ibrahim Saibo MohamadoMohideen (the first defendant) to hold in trust for my grandchildrenMohamado Abdul Cader Mohamado Hashim (the plaintiff) and Moha-mado Abdul Cader Mohamado Makeen during their minority and subjectto the terms and conditions hereinafter expressed Then follow thewords by which she grants, assigns, transfers, and sets over the sharesunto the said Mohamado Mohideen “ to be held by him in trusty for andunto the said Mohamado Abdul Cader Mohamado Hashim and Moha-mado Abdul Cader Mohamado Makeen during their minority subjectto the terms and conditions hereinafter mentioned Lastly we cometo the habendum which is as follows :—“To have and to hold the saidpremises hereby conveyed or intended so to be …. unto the
said Mohamado Ibrahim Saibo Mohamado Mohideen in trust and toand for the use of the said Mohamado Hashim and Mohamado AbdulCader Mohamado Makeen, their heirs, executors, administrators, andassigns until they attain the age of majority upon and subject to thefollowing terms and conditions that is to say :(1) That I do hereby
reserve unto myself the right and privilege to enjoy the rents, issues,and profits of the said premises during my natural life. (2) That aftermy death the said Mohamado Ibrahim Saibo Mohamado Mohideenshall hold the same in trust for the said Mohamado Abdul Cader Moha-mado Hashim and Mohamado Abdul Cader Mohamado Makeen until -they attain the age of majority.”
This, is, therefore,' beyond all question a conveyance to the firstdefendant in trust for the plaintiff and his brother until they attaintheir majority subject to the reservation to^the donor of a life interest.Assuming as I have done earlier that this is a good and valid grant tothe first defendant notwithstanding the- reservation of a life interestand any other objections that might possibly have been raised to it,it remains for us to consider whether in terms of the trust the plaintiffwho has now attained his majority is entitled, as he maintains, to aquarter share of these premises. Wherever this trust is mentionedthroughout the deed it is definitely stated to be a trust for the minorsduring their minority. The only variation in the phraseology is in thesecond condition by which the trustee is told that he must hold the samein trust after the death of the donor and until the minors attain theirmajority. The donor does not in this deed expressly state what isto be the ultimate destination of the property. The question, there-fore, for us is whether it is open to the plaintiff to contend that uponthe attainment of majority by him and his brother it must devolveupon them. There is nothing . in the language used by the donor orcreator of this trust to indicate that such was her intention. Sincesomething has been said in the course of the evidence as to the relations
between these parties it is quite conceivable that the sole object andpurpose which this transaction was intended to serve was to assurethat if Awwa Umma who had made herself responsible for the upbringingof these two minor children did not survive till they attained majoritythey would be provided for until they came of age.
This would seem therefore to be an instance of a devisfe of propertyin trust where the trust does not exhaust the entire corpus. Indeed,notwithstanding that the trust was limited to the rents and profitsthere is no provision made as to the ultimate destination of the property.In such a case it would seem to be the principle of the law (vide section 85of the Trusts Ordinance, No. 9 of 1917) that the trustee must hold theproperty for the benefit of the author of the trust or his legal represen-tative. The author of the trust is now dead. We are not in a positionto say exactly who the heirs or the legal representative may be. Theplaintiff’s father admittedly was alive at the date of .action. He wouldcertainly under the circumstances be an heir. The first defendant,who is a son of Awwa Umma, would himself be an heir. There wellmay be other heirs but it is pot for us here to determine who those heirsare or whether the plaintiff is to be entitled to take by intestate successionany fractional share of these premises. Moreover, it is contended thatby reason of certain other deeds executed by Awwa Umma during herlifetime certain of the other defendants have acquired interests adverseto the heirs. Those are questions upon which we express no opinionand which must be left for determination in .appropriate proceedings.It is sufficient for the determination of this case to say that the plaintiffhas wholly failed to show that he is entitled to a quarter share of thesepremises upon the title which he pleaded and put in issue in this action.His action therefore fails, but it is agreed that the dismissal of his actionwhich must necessarily follow this decision should not affect any rightwhich he may have to claim as an heir of Awwa Umma to be entitledto a fractional share of these premises.
For these reasons we think that this appeal must be allowed and theplaintiff’s action dismissed with costs in both Courts.
Maartensz A.J.—I agree.