Present: Dalton S.P.J. and Poyser J.
ISMAIL v. MOHAMED.
196—D. C. Matara, 6,885.
Donation—Gift by Muslim—Reservation of life-interest and right of revocation—Possession by donee—Renunciation of life-interest—Intention ofdonor—Roman-Dutch law.
A Muslim donated certain premises to his brother-in-law reserving tohimself the right of revocation and a life-interest. The donation wasaccepted by the donee* who lived on the premises. Later the donorexecuted a deed renouncing in the donee’s favour his life-interest andright of revocation.
Held, that donor intended to create and did in fact create a donationsuch as is recognized under the Roman-Dutch law.
Held, further, that the combined effect of the two deeds was to consti-tute a valid gift under the Muslim law.
DALTON SJJ.—Ismail v. Mohamed.
PPEAL from a judgment of the District Judge of Matara.
N. E. Weerasoorio (with him Haniffa), for first defendant, appellantin No. 196.
H. V. Perera, for the appellant in No. 197, and for the respondent in No.196.
Hayley, K.C. (with him Rajapakse), for the second defendant, respond-ent in both appeals.
Garvin (with him Alles), for third defendant, respondent, in both.appeals.
November 29, 1933. Dalton S.P.J.—
Two appeals, taken together, arise in this action. The plaintiff (appel-lant in No. 197) brought this action to partition a lot of land, depicted aslot B on the plan No. 316 produced in the case. He claimed that he wasentitled to an undivided one half, allotting the remaining undivided halfto the defendant (appellant in No. 196). The added defendant (respond-ent in both appeals) intervened, claiming the whble of the lot.
The trial Judge dismissed the action on the ground “ that plaintiff hasbrought a partition action in ‘ order improperly to -take advantage of thePartition Ordinance ’ ”, and directed that he do pay double stamp duty.The plaintiff and defendant both appeal from that conclusion, andMr. Hayley for the respondent concedes that he cannot support thejudgment on the ground upon which the trial Judge has decided the case.He nevertheless argues, and of course is entitled to argue, that the judg-ment is correct for other reasons.
The parties are all Muslims, the intervenient being the brother-in-lawof the defendant. The latter lived with his brother-in-law, by whom hewas brought up since his mother’s death in 1905 when he was one year old,and sister, and was maintained and educated by the former, although hisfather lived with them in the same house.
In 1918, by the deed P 1, intervenient donated the lot in question tothe defendant, reserving, however, the power to revoke the deed, and alsoa life-interest in the premises for himself, and after his death for his wife,defendant’s sister. Defendant accepted the gift, signing the deedtogether with intervenient, and the deed was handed to him by the notary.Thereafter the evidence shows that defendant continued living on thepremises, which was his home during his holidays. He says he attendedthe Royal College, Colombo, from 1919 to 1924.
In 1922 intervenient executed a further deed in favour of the defendant(exhibit P 2), renouncing the power of revocation and the life-interest hehad retained for himself, and granting “ the rights thereof to the creditand interest of the said donee”, the defendant. Nothing was said aboutthe life-interest in favour of the intervenient’s wife, which however in any
DALTON SJ?J.—Ismail v. Mohamed.
case was not to take effect until the intervenient’s death. The deed P 2goes on to state that “ the donee, his heirs, executors, and administratorscan do anything they like with the said property from date hereof withoutcontravening the other covenants of the deed, as if I the said OmardeenHadjiar reserved no life-interest and no right of revocation at pleasure inthe said deed of gift. And I also declare that I or my heirs have no claimwhatever from henceforth and that if any further documents becomenecessary to be executed to confirm this deed in favour of the doneeAbdulla Saibu Mohammadu, I the said Omardeen Hadjiar hereby agreeto execute the same
The evidence shows that, as stated above, defendant who came of agein 1925 continued thereafter to live on the premises during his holidays.The notary, to whom the parties were known, states that he was livingthere with intervenient as his adopted son, and the evidence shows thathe always regarded it as his home. It is impossible therefore to agreewith the trial Judge’s finding that defendant was never in possession ofthe premises.
The effect of the two deeds P 1 and P 2 is that the intervenient gaveover to the defendant, by way of gift, all his rights in the lot, reservingnothing for himself. There was the contingency that, on his death, a life-interest in favour of his wife might come into existence, but in fact shedied in February, 1931. On the execution of P 2, however, there wasnothing to prevent full and effective possession being given to defendant,and the evidence in my opinion is only consistent with that possessionhaving been given. It is true intervenient still continued to live on thepremises with his wife, her father and the defendant, but there is evidenceto show that he regarded the latter as the owner. In 1926 there had beenan action by a neighbouring owner against defendant and intervenient,in which the latter took up the position that the premises now in disputebelonged to the defendant. No evidence was led by the intervenientto controvert the evidence of defendant and his witnesses on thispoint.
In February, 1931, intervenient’s wife died, and he mafried again twomonths later, bringing his new wife to the premises. That was the originof the dispute between defendant and intervenient, and there was adisagreement between them over the late wife’s property. Defendantwanted to raise money and so looked round for a purchaser of what heconsidered his property under the deeds of gift. The plaintiff was foundbut only had sufficient money to buy half the lot, an undivided half beingthereupon conveyed to him by defendant by deed P 3 of June, 1931.The intervenient, however, refused to let plaintiff have possession ofhis purchased interest in the premises, although defendant was livingthere, whereupon he instituted this action against the defendant for apartition.
His right to institute this action, under the provisions of section 2‘ofthe Partition Ordinance, if he was entitled under P 3 to an undivided halfof the lot, it is now conceded cannot be questioned, and the trial Judgewas wrong in his conclusion on this point. The fact that he was also
DALTON S.P.J.—Ismail v. Mohamed.
never in possession of the interest claimed is no bar to his maintainingthe action. These points were decided by the Full Bench in Sinchi Appuv. Wijegunasekera1 many years ago.
Mr. Hayley, however, contends on behalf of the intervenient (respondent)that according to Muslim law, which he argues is applicable here, therewas no valid donation of the lot to the defendant. He argues that thedeed P 1 conveyed no title to defendant, and the deed P 2 in no waybettered his position in that respect.
According to Muslim law, according to the authorities, three things arenecessary to constitute a valid gift, a declaration by the donor of hisintention to give, acceptance by the donee, and the delivery of possession.Had deed P 1 stood alone, it is clear that, since the donor retained forhimself a life-interest, possession was not then given to the donee. Thesecond deed P 2, however recites the deed P 1 and from its terms is clearlyintended to be complementary of the earlier deed, granting to the doneeall the rights the donor had reserved for himself in the earlier deed. Thetwo deeds must be read together, and on the execution of the seconddeed, the donor had parted with each and every right and interest hehad in the property. The donee was living on the premises, and the onlyconclusion, to which in my opinion one can reasonably come upon thedocuments and verbal evidence, is that effective possession was thereupongiven to the donee.
Under Muslim law therefore, if it is applicable, on the execution of thesecond deed P 2, that deed, coupled with the earlier deed which it wasto supplement, was in my opinion .operative to convey title to thedefendant.
On the deeds and evidence here, however, I have very great difficultyin accepting Mr. Hayley’s contention that Muslim law is applicable atall in this case. In my view of the authorities and the decision of thePrivy Council in Weerasekere u. Peiris", in my opinion Roman-Dutch lawapplies. The deed of gift, the subject of that case, was executed by aMuslim resident in Ceylon in favour of his son. The Supreme Court hadheld that the deed, which it was urged involved a fidei commissum accordingto Roman-Dutch law, was void under Muslim law in the absence ofdelivery. It was pointed out, however, by their Lordships of the PrivyCouncil that the conditions and reservations mentioned in the deed werequite inconsistent with a valid gift inter vivos according to Muslim law.In their Lordships’ opinion all the terms of the deed must be taken intoconsideration when construing a deed, and it seemed clear to them thatit was never intended that there should be a valid gift as understood inMuslim law. They pointed out that Roman-Dutch law is the commonlaw of Ceylon, and on a true construction of the deed and having regardto all its terms, they held the father, the donor, intended to createand did create a valid fidei commissum such as is recognized by Roman-Dutch law.
The defendant in this case before us led no evidence at all, but seemsto have preferred to rest his case, so far as this aspect of it is concerned,» 6 N. L. R. 1.* (1933) A. C. 190: 34 N. L. R. S81.
DALTON SJP.J.—Ismail v. Mohamed.
upon the terms of the deed. The deed P 1 itself clearly expresses his in-tention to give, and the fact that he by the deed is giving subject to certainconditions and reservations, and it sets out the acceptance of the gift bythe donee. The retention of the power of revocation and a life-interestfor himself is, it is conceded, quite inconsistent with a valid gift underMuslim law, whereas it is entirely consistent with a gift under Roman-Dutch law. The Muslim law on the question of revoking a deed of giftto one’s children is referred to in Coder v. PitchaThe validity underRoman-Dutch law of the express reservation of the power of revocationin a deed of gift is supported by the decision in Government Agent, WesternProvince v. Palaniappa Chetty,‘ followed in Ponnamperuma v. Goone-sekera*. Mr. Hayley for the respondent, however, carried his argumentso far as to say that a Muslim in Ceylon is debarred by law from makinga donation reserving a life-interest in himself, but that seems to me to bequite inconsistent with the principles laid down by the Privy Council inWeerasekere v. Perris (supra). He cited also the decision in Peiris v.Sultan4 argued before a Bench of four Judges, and urged that the casefor the application of Muslim law and not Roman-Dutch law is the samein the circumstances here as it was in the circumstances of that case.As pointed out, however, by Mr. Perera in his argument before us,Macdonell C.J. in his decision (at p. 229) expresses the opinion that havingregard to the terms of the deed both donor and conveyancer in the deedintended to emphasize the Muslim character of the deed of gift, in otherwords, intended to make a gift according to Muslim law, although thedonor in fact failed to do so. He concludes his judgment by pointingout that, since the decision of the Privy Council in Weerasekere v. Peiris(supra), in examining a deed of gift from one Muslim to another one mustexamine the deed as a whole and ascertain if it shows an intention to makesuch a gift inter vivos as is recognized by Muslim law. If it shows such anintention, the validity of the gift will be determined by Muslim law; it ifdoes not show such an intention, but nevertheless an intention to make adeed of gift, the validity of the gift will be determined by Roman-Dutchlaw. Applying that construction of the decision of the Privy Council inWeerasekere v. Peiris (supra), with which construction I would say Irespectfully agree, to the deed P 1 in the case before us, I would hold thatthe donor intended to create and did create a deed of gift such as isrecognized by Roman-Dutch law.
In the result the appellants are entitled to succeed on either of thegrounds dealt with.
The order and decree of the trial Judge must therefore be set aside andthe case sent back for the partition action to continue, the interventionbeing dismissed. The appellants are entitled to their costs of the pro-ceedings already had between them and the intervenient in the lower
»19 n. L. R. m.
*UN. L. R. 161.
23 N. L. R. 236.
2 Ceylon Law Weekly 211.
DALTON SFJ.—Ismail v. Mohamad.
Court and also to their costs of. this appeal. The respondent named inthe caption as the third defendant is, however, entitled to his costs (oneset of costs only) in the appeals from the appellants, to be divided betweenthem equally. He does not appear to have been a necessary part}* to theappeals.
Poyser J.—I agree.
ISMALI v. MOHAMED