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Present: Lyajl Grant J. and Maartensz A.J.
MARICAR v. XJMMA.18b—-T). C. JGrfpiMh, 23,707.
Muslim law—Gift by parents to children—Reservation of life-interest—No acceptance on possession—Validity.
Where Muslim parents conveyed to their minor child by a deed,styled a deed of settlement, a land reserving to themselves a life-interest and the right to mortgage or transfer the land, and therewas no acceptance on behalf of the minor,—
Held, that the deed was inoperative to pass title to the donee.
PPEAL from a judgment of the District Judge of Jaffna.
In this action the validity of a deed of gift by a Muslim andhis wife in favour of their children was in question. The deed wasstyled a deed of settlement, it was executed by the parents and wasnot accepted by the donees. The material paragraph was as follows:*' We do hereby declare that as we have life-interest on the saidland with its appurtenances hereby conveyed into them by way ofsettlement, they are to possess and enjoy the same after our death,that we have the right and power to mortgage or transfer the saidland, when it is necessary for us.”
The learned District Judge held that the deed was invalid.
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Groos da Brera, for first defendant, appellant.—The case of Meydeenv. Abubakker 1 has been distinguished in the later case of AbdulRahim v. Hamidu Lebbe,s where it was held that, in the case of agift to minor children of property in the father’s possession, thegift is complete on the execution of the deed. Similarly, the reser-vation in favour of the mother of the right to take .the income washeld not to invalidate the gift (Ibrahim Natchia v. Abdul Coder.3).The decision reported in Ramanathan’s Reports (1877) page 87 is adirect authority for the proposition that in the case of a gift infavour of children it is not invalidated by the fact that a life-interest is reserved and the deed is conditioned to take effect afterthe death of the donor. This is a judgment of two Judges and doesnot appear to have been considered in the later judgments. Theprinciple laid down in this decision is not defeated by the reservationof a right to mortgage or transfer. Under the Muslim lawsuch a reservation can be ignored and full effect given to the gift.The requirement as to delivery of possession appears to be a rulemade at a time when property was chiefly movable and a gift wasattended with less formalities. There is no reason why this ruleshould be now enforced rigorously. The tendency of the Courts hasbeen to recognize a gift as much as possible. Counsel cited AmeerAli, Muhammedan Law, pp. 134 and 142.
Subramaniam, for plaintiff, respondent, not called upon.
October 1, 1929. Lyall Grant J.—
This is an appeal from the District Court of Jaffna. The questionis one of the validity or the construction of a certain deed madeby a Muslim and his wife in favour of their children. The firstissue between the parties was “ Did .this deed convey title in a one-third share of the land to the second defendant.” The learnedDistrict Judge says that this issue was treated as the radical issuein the case, and he heard argument: on it. He arrived at theconclusion that the deed was invalid.
The deed is called by .the parties a deed of settlement. It isexecuted by the parents alone, and there is nothing in the deed toshow acceptance on behalf of the donees. The effective words are" This day we have conveyed unto them (the children) by way of asettlement subject to the undermentioned conditions the said land,&c.” Immediately following these words are the following words :” We do hereby declare that as we have life-interest on the saidland with its appurtenances hereby conveyed unto them by way of 8settlement, they are to possess and enjoy the same after our death,that we have right and power to mortgage or transfer the said landwhen it is necessary for us, tut."
»(1919) 21 N. L. R. 284.* (1926) 28 N. L. R. 136.
8 (1926) 28 N. L. R. 316.
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M aricar v.Umma
A learned argument has been addressed to us for the purpose ofshowing that this decision is incorrect. But for the reasons setforth I think the cases quoted by the learned District Judge governthe point conclusively. Whatever the presumption may be on thewording of other deeds as to the delivery of possession to minorchildren, it seems to me that the wording of this deed makes itperfectly clear that there was no intention on the part of the parentsto divest themselves of the possession of the land. The case is evenstronger because the parents have reserved the right and powerto mortgage or transfer the land, that is to say, the conditions underwhich the gift is granted are such as to reserve practically all thecontrol over the land to the donors. It was argued that theconditions derogating from the grant ought to be ignored and thegift should take effect without reference to them. I do not thinkthat this is a deed which is open to such a method of construction.The words of conveyance themselves subject the conveyance tothe conditions, and the conditions follow immediately. This isquite a different case from that of a deed which makes a free grantand at a later stage proceeds to attach limitations and conditions tothe grant.
I would dismiss the appeal with costs.
MaarteAsz A.J.—I agree. 128
The case was argued in the lower Court on the footing that thiswas a deed of donation, and an argument was put forward thatnotwithstanding the reservation of a life-interest the deed was validin so far as the donee (the second defendant) was concerned, shebeing a minor in 1911, and the authority of Abdul Bahiman v.Hamidu Lebbe 1 was quoted. The learned District Judge assumedfor the purpose of the case that the second defendant was a minor,and he proceeds, “ I think that a donation by a parent to his minorchild is deemed to be valid because possession by the parent afterthe date of the donation is considered to be possession on behalf ofthe child. But when a life-interest is reserved it cannot be saidthat the possession by the parent is possession on behalf of thechild. The parent continues to posses in his own right and not byvirtue of any right in the child. There is no- change of status in thepossession of the land." Further, the deed itself .is quite clear, onthe point. It says “ They are .to possess and enjoy the same afterour death .. ” The learned District Judge followed the
decision in the .case of Meydeenv v. Alboobucker,2 and held that thedeed was invalid, and entered judgment fori the plaintiff as prayedfor with costs.
128 y. L .B. 236.
Appeal dismissed.2 21 N. L. R. 284.
MARICAR v. UMMA