( 508 )
Present: Schneider and Garvin JJ.
KHALID v. PAKEEB.»
239—D. C. Colombo, 383.
Muhammadan, late—rGift subject to condition that donor do recover rentand pay a portion to donee—" 'Seizin
* P, in pursuance of an agreement to settle upon his grand-daughter Z a property by way of dowry,, executed a deed of giftD 1, and provided that the donor P was at liberty during his lifeto recover and receive the rents and pay unto Z Bs. 40 permensem, and in the event of P failing so to pay, Z was to recoverthe entire rents, and P was to .forfeit the right to recover rent.Z donated vthe property to the plaintiff with the consent of P. In'an action by the plaintiff, P contended that D 1 was inoperativeunder Muhammadan law to pass title to Z or to any one claimingthrough her, as Z had no " seizin
Held, that the objection was invalid, as P’s • possession wassimilar to that of a tenant under Z.
Plaintiff, who was a curator of a minor, brought an action for decla-ration of title with the sanction of Court. He . did not get himselfappointed next friend; the action was brought in the came of thecurator. The defendant in his ainswer objected that the plaintiffwas not entitled to maintain the action in his name. The plaintiff,immediately before trial, moved to get himself appointed nextfriend. The District Judge' ordered the plaint to be taken offthe file. Ihe Supreme Court allowed the plaint to be amendedby the addition of the name of the minor, and directed the curator(original plaintiff) to be appointed next friend.
HIS was an action for declaration of title, possession, anddamages.
The action was commenced by the plaintiff as curator of aminor, and before he commenced the action he obtained the sanctionof the District judge. The plaintiff did not get himself appointedns next friend of the minor, nor was the action brought in the nameof the minor. The defendant in his answer took the objection.that the plaintiff was not entitled to maintain the action in liisown name, and that the action was misconceived and not main-tainable. Immediately before trial plaintiff applied for leave toput himself right by being appointed next friend.
The Acting District Judge (V. M. Fernando, Esq.) made thefollowing order: —
Mr. Batnam argues that the appointment of next friend is notnecessary, but at the same time he presses his application. He furthercontends that there is no application under sect ion 478.
( 509 )
I do not see that anything can be gained by insisting on a formalapplication under suction 478. Plaintiff having instituted the aotionas curator, the defendant took objection to the action on that ground,and apparently expected that the action would be dismissed for thatreason. The plaintiff who is now alive to his position seeks to remedythe defect by getting himself appointed next friend. To this the defend-ant objects.,
I think the fsirest way I can deal with the matter is to treat theobjection of the defendant as an application under section 478. andto order the plaint to be taken off the- file, plaintiff paying defendant'scosts. As pointed out by the Supreme Court in 0 N. L. It. 148,this order will not prevent the plaintiff from having the plaint restoredto the file after he is appointed next friend.
The plaintiff appealed, and the Supreme Court delivered the follow-.
mg judgment on October 18, 1921: —
This is .an -.appeal from an order of the District Court of Colombo,an order which turns out to be in entire accordance with a previousdecision of the Full Bench of this Court. The facts are that an actionwas commenced by. the plaintiff as curator, and that before he com-menced this action he obtained the sanction of the District Judge tothe plaint. Theaction was, however, misconceived,as it hasnow
been settled bythecase ofGunasekera v.Abubakker 1 thatan
action by aminor is not wellbrought if broughtin the name ofthe
curator, andthat before suingthe curator shouldobtain the authority
of the Courtto institute an action as the next friend of the minorand
in the nameof tho "manor. Itwas pointed ont inthe answer thatthe
action was misconceived. But it was not till immediately beforetrial thatthe plaintiff appliedfor leave to put himselfright by being
appointednextfriend of theminor. This applicationwas also mis-conceived. The minorwas nota party to thesuit.The application,
therefore, shouldhavebeen toadd the minorandto appointthe
curator asnextfriend. Whenthe application came before the Court,
the Court preferred to act on the precedent of Gunasekera v. Abubakker(supra).
Mr. de Silva now appeals to us not to put him to the necessity ofwasting all that has been done in the action and of paying unnecessarycosts, bntevenat this stageto allow an amendmentof the plaint.
With regard to the order of the District Jodge, we obviously cannotsay that he was wrong. Nor was the plaintiff himself correct in theprocedurewhichhe adopted.Nevertheless, the pointis a purely
technical one. No good end would be served by compelling theplaintiff to institute a fresh action. He was, to a certain extent,misled by the fact that the District Judge had overlooked the factthat the action was misconceived when he sanctioned the plaint. As.however, the defendant was in no way to be blamed for the series ofmistakes, I think that though relief should be allowed to the plaintiffagainst the consequences of his mistake, it should be allowed onterms of. his paying the eosts of the defendant both in this Court andin the Court below. I would, therefore, set .aside the order of thelearned District Judge and allow the plaint to be amended by theaddition of the name of the minor, and would direct the plaintiff to beappointed next friend of the minor for the purpose of the action, and
1 (M2) 6 N. L. R. 148.
that the character in which he purports to sne should beaccordingly. ..The plaintiff te pay the costs of the defendant both inthis Court and in respect of the day of argument in the Coart below.
Db Sampayo J.—I agree.
When the case came up for trial after proper amendments, theDistrict Judge (L. M. Maartensz. "Esq.) gave judgment for theplaintiff.
The facts appear in the head note.
The deed in question, D 1, was as follows :—
To AUi to Whom these Pbesents shald come.
Noordeen ]$buno Mohammed Pakeer of Slave Island inColombo
sends greetings: —
Whereas under and by virtue of deed No. 5,515 dated November 1,1886, attested by …• &c., the said Noordeen Ebunu Mohammed
Pakeerisseized • andpossessed of orotherwisewell andsufficiently
entitledto all that partof the garden with the twonew bailings standing
thereon, called and known as Gorakagahawatta and in the schedulehereto particularly described:
And whereas at the treaty for the marriage of Nei Zulaikkha,Awiglifaw of Abdul Baheen Ajmacen of Slave Island in Colombo, withTuwanNayeen Samahon ofDawsonstreet in. Slave Island,Colombo,
it hasbeen agreed by andbetweenthe parties hereto thatthe said
property should be settled npon the said Nei Zulaikkha as dowry,subject to the terms, conditions, and stipulations hereinafter contained:
Nowknow ye, and thesepresentswitness, that tho saidNoordeen
Ebunu Mohammed Pakeer, in pursuance of the said agreement and inconsideration of the said marriage, doth hereby give, grant, convey,assign,Betover, and assure unto thesaid NeiZulaikkhaas dowry,
subjecttothe terms,conditions, andprovisoshereinafterstipulated
the land and premises described in the schedule hereto, together withall rights, privileges, easements, servitudes, advantages, and appurte-nances belonging or appertaining, or usually held or enjoyed therewith,or reputed to belong or be appurtenant thereto, together with all theestate,, right, title, interest, claim, and demand whatsoever of thesaid Noordeen Ebunu Pakeer in and to the said premises, and withall deeds, vouchers, and writings relating thereto.
To have and to hold the said premises hereby granted and. conveyedot intended so to be (of the value of Bs. 15,000) unto the said NeiZulaikkha, upon and subject to tho. following terms, conditions, andprovisos, to wit: —
(1) That the said Nei Zulaikkha shall not sell, mortgage, lease,encumber, or otherwise alienate the said premises or any part ■ thereofunto any person or persons whomever, and that after her demise the.same shall evolve upon her descendants to be by them divided andtaken in terms of the Muhammadan law of inheritance.
(8) Provided, however, that nothing herein contained shall preventthe said Nei Zulaikkha from giving the said premises or any partthereof unto any one or more of her female children as dowry.
( S1I )
(8) That the said Noordeen Ebunu Mohammed Pakoer may be atliberty daring hie lifetime to recover and receive the rente, profits, XkaUdw.and income of the said premises hereby conveyed and pay onto the Adfceersaid Nei Znlaikkha the sum of the rent of the said premises, and thatin the event of the said Noordeen Ebnnn Mohammed Piakeer failing,,refusing, or neglecting to pay unto her the said earn of Bs. 40 monthlyas aforesaid, that then in such case it shall be lawfol unto the saidNci Znlaikkha to recover and enjoy the whole rent of the said premises,and in such case the said Noordeen Ebunu Mohammed Pakeer shallcease or forfeit the right to recover the rents of the said premises.
E. W. Jayawardene, for defendant, appellant.
Drieberg, K.C. (with him Coder), for plaintiff, respondent.
February 16, 1928. Schneideb J.—
This is an appeal by the defendant, who was sued by the plaintiff,a minor appearing by his next friend, claiming a declaration thathe was entitled to the land which was the subject-matter of theaction, and praying that the defendant be ejected therefrom, andhe be awarded damages. The learned District Judge has decreedin favour of the plaintiff that he is entitled to the land, but that thedefendant is entitled “ to possess the said premises, subject to apayment by him of Bs. 40 a month." The facts are theseThe
defendant was the owner of the land in question. By the deedmarket! D 1 in 1916 he gifted this land to his granddaughter NeiZulaikkha. The deed sets out that the' donation was made inpursuance of an agreement that the property should be settledupon the donee as dowry. The deed is a conveyance in presentiof the title to the land by the defendant to Nei Zulaikkha, " subjectto .the terms, conditions, and provisos hereinafter stipulated." 1One of the provisos forbids the sale of the land by Nei Zulaikkha,and provides that after her demise the land should devolve uponher descendants in terms'of the Muhammadan law of inheritance.
Another proviso empowers Nei Zulaikkha to grant the whole ofthe land or any part of it to any one or more of her female childrenas dowry. Next comes the proviso which has given rise to thisaction. It runs as follows : “ The said Noordeen Ebunu Moham-med Pakeer (defendant) may be at liberty, during his life-timeto recover and receive the rents, profits, and income of the aaidpremises hereby conveyed, and pay unto the said Nei Zulaikkhathe sum of Bs. 40 per month in lieu of rent of the said premises,and that in the event of the said Noordeen Ebunu MohammedPakeer failing, refusing, or neglecting to pay unto her the said sumof Bs. 40 mqnthly as aforesaid, that then in such case it shall belawful unto the said Nei Zulaikkha to recover and enjoy the.wholerent of the said premises, and in such case the said NoordenEbuuu Mohammed Pakeer shall cease or forfeit the right torecover the rents of the said premises."
The documents in the case reveal the fact that Nei—Zulaikkhaafter some time lived separated from her husband, who is the nextfriend of the minor plaintiff: In 1920 by a deed of gift, Nei Zulaik-kha conveyed to the plaintiff by deed “ all her right, title, andinterest in and to the said land and premises, subject to the con-dition that the donee was not to sell, mortgage, lease, or otherwisealienate or encumber the premises,” but that upon his death theywere to devolve upon, his children in terms of the Muhammadanlaw, and in the event of his leaving no issue they were to devolve •on the brothers and sisters of the donor Nei Zulaikklia and theirdescendants. At the end of this deed occurs the following passage :
” These presents further witness that Noordeen Ebunu MohammedPakeer (the defendant), the donor of the said 'premises under thesaid deed No. 5,891 (D 1), doth hereby consent to the foregoinggift being given and granted, subject to the terms and conditionshereinafter contained.”
The defendant contested the plaintiff's claim on the ground thatthe deed D 1 was inoperative to pass title to the donee Nei Zulaikkhaor any other person claiming through her on the ground that theMuhammadan law governed the parties, and that there must be** seizin ” on the part of Nei Zulaikkha to enable her to claim titleunder that deed. The case of Qunaeekera v. Abubahher (supra) wasrelied upon. It appears to me that there is no foundation for thisargument. The very deed D 1 indicates the nature of the occu-pation of the land which the defendant had from the date of thedeed D 1. The part of the deed which I have recited leaves noroom for doubt, but that the defendant was only in the positionof a person entitled to occupation of the premises, provided andonly so long as he paid a rent of Rs. 40 to Nei Zulaikkha. I 'amunable from whatever point the deed be looked at to come to anyother conclusion than that the defendant’s rights under the deedD 1 are any larger than those I have stated them to be. There isanother and a potent reason why the plaintiff should succeed,His rights under the deed of gift in his favour entitled – him tojudgment against the defendant who is debarred from contestingthem.
For these reasons I would affirm the judgment of the lower Court,and dismiss the appeal, with costs.
Garvin J.—I agree.
Appeal dismissed. •
PRINTED AT TBS GOVERNMENT PRESS, CEYLON
KHALID v. PAKEER