Udumalevvai v. Mustapha.
1932Present: Drieberg and Akbar JJ.
UDUMALEVVAI et al. v. MUSTAPHA.
174—D. C. Batticaloa, 6,989.
Fidei commissum—Muslim donation—Construction of fidei commissum—Roman-Dutch law.
Where a deed of gift by which the donor (a Muslim) donated certainproperty to his sons contained the following provision:—“They (i.ethedonees) shall possess and enjoy as their own from this day and in caseany one of them happen to die without issue the shares will have to goto all my male children. ”
Held, that it created a valid fidei commissum.
Y three deeds of gifts a Muslim donated certain immovable propertyto his sons, the three plaintiffs and one Mustapha, who died
intestate and issueless. The sole question was whether the deed createda fidei commissum. in favour of the plaintiffs in respect of Mustapha’s share,or whether that share devolved on the latter’s heirs, represented by thedefendant. The learned District Judge held that the deed created avalid fidei commissum.
H. V. Perera, for defendant, appellant.—Conceptions of Roman-Dutchlaw cannot be incorporated into Muslim deeds. Muslims are governedby Muslim law but they may adopt principles of the Roman-Dutch law.The present deeds can be properly construed under the Muslim law.There is no indication that parties intended to incorporate a fideicommissum into the donation. This is merely a gift with an invalidcondition. A bad condition in a Muslim grant is no indication that thedonor intended to grant on the basis of the Roman-Dutch law. Thereis no need to resort to the rules of any other system of law whereMuslim law suffices. Otherwise you may have a bad Muslim gift thedefects of which may be cured by resorting to the Roman-Dutch law.No fidei commissum can be created by a Muslim deed of gift unlessthe donor expresses a clear intention that he is making the grant on thebasis of the Roman-Dutch law, e.g., by the use of the words “ underthe bond of fidei commissum ”. Even if you apply the Roman-Dutchlaw there is no fidei commissum in this case. The operative words ofa grant must be given greater effect than the habendum. Where thereis a complete grant which is unconditional, the imposition of acondition in the habendum is bad. A person cannot derogate from hisown grant.
Croos Da Brera for plaintiffs, respondents.—The fidei commissum isvalid. For centuries fidei commissa have formed part of the customs
AKBAH J.—Udumalevvai v. Mustapha.
and usages of the Muslims. Only the personal law of Muslims has beenintroduced into this Colony. The jus uccrescendi has been applied toMuslim deeds (20 N. L. R. 225). Under Ordinance No. 10 of 1931 theRoman-Dutch law is declared to be applicable. The issues raised makeit clear that the parties in the lower Court recognized the intention tocreate a fidei commissum but were only in dispute as to its validity. Thequestion of the validity of the deed was raised in the answer but not inthe issues. It may be therefore presumed to have been waived. Thedeed must be interpreted according to the usages and customs of theMuslims in Ceylon. If the deed is good according to Muslim law, thevalidity of the fidei commissum has to be judged according to Roman-Dutch law (Weeresekere v. Peiris'). No express prohibition againstalienation is necessary to create- a valid fidei commissum (Perera v-Perera*). The presence of the word “ assigns ” is not obnoxious(Wijetunga v. Wijetunga3, Coudert v. Don Elias4, and Mirando v.Coudert').
H. V. Perera, in reply.
July 11, 1932. Akbar J.—
By three deeds (P 1, P 2, and P 3) a donor donated immovable propertyto his four sons, namely, the three plaintiffs and one Mustapha, who diedintestate and issueless.
The whole question is whether under these deeds Mustapha’s sharewent to his heirs-at-law represented by the defendant or to his brothers,the plaintiffs. Under P 1,- the donor “ for and in consideration of thenatural love and affection which I have and bear unto my children…. do hereby give by way of donation ” the properties mentioned.The rest of the deed is to this effect “ they shall possess and enjoy thesaid properties as their own from this day for ever and in case any one ofthem happen to die without issue the shares will have to go to all mymale children. I do hereby give away by way of donation the above-mentioned properties to my sons, the said K. Muhamado Mustapha and
K.Muhamado Utumalevvai, and their heirs, executors, administrators, andassigns. They shall possess and enjoy the said properties as their ownfrom this day for ever ”. P 2 and P 3 are to the same effect, except thatthe second clause is worded as follows:—“ These properties shall bepossessed and enjoyed by them as a gift during their lifetime and in theevent of any one happening to die without any issues .the same shalldevolve on all my male children who are alive.
By paragraph 1 of the answer the defendant pleaded that the deedsdid not create a valid fidei commissum, and that they were invalidaccording to Muslim law by reason of the conditions imposed in thedeeds. In spite of this plea the parties went to trial only on the issuewhether these deeds created a fidei commissum, implying that the partiesadmitted that the law to be applied in the case was the Roman-Dutch 1 2
1 32 N: L. R. 176.* 17 N. L. R. 129.
2 20 N. L. R. 463. ■519 N. L. R. 90.
s 15 N. L. R. 493.
AKBAR J.—Udumalevvai v. Miistapha.
law. Mr. Perera argued that even under the Roman-Dutch law thedeed did not create a fidei commissum. In this he is clearly wrong, for ithas been held that no words prohibiting an alienation wfere necessary tocreate a fidei commissum (Perera v. Perera1). The clear intention of thedonor as expressed in P 1, P 2, and P 3 was that each son’s share if he diedissueless was to vest in his brothers. The use of the word “ assigns ”occurs only at the end of the deed and cannot affect the clear intention ofthe donor (Mirando v. Coudert", Wijetunga v. Wijetunga3, Coudert v. DonElias Mr. Perera’s second argument was that, in spite of the issueframed, the law applicable was the Muslim law because the parties wereMuslims and unless there was a clear indication that the Roman-Dutchlaw was to apply, the presumption was that the donor intended that theMuslim law should apply, and that as Mustapha died intestate thecontingent gift over was void under the Muslim law. I cannot accede tothis argument, for the intention of the donor, as admitted by Mr. Perera,is clear. If this is so, why should we say that the donor intended thatonly the Muslim law should govern the deeds P 1-P 3, under which hisintention would be defeated. I prefer to follow the tests proposed by theSupreme Court in Weeresekere v. -Peiris/ namely, that the Muslim lawmust be first applied to see whether the gift is “ complete as a gift underthe Muhammadan law before the fidei commissum impressed on the objectof the gift can be operative ” (see also Hamid v. Nachchiya0). As DaltonJ. said in the latter case: “ In Weeresekere v. Peiris, this Court held thatwhere a gift contained a fidei commissum, the validity of the gift must bedetermined by Muslim law, although the construction of the fideicommissum is governed by Roman-Dutch law.” If we apply these tests,.the gift is valid, for there can be no question that the seizing of the estatepassed at once to the donees; we then apply the second test, namely,does the deed go on to create further successive interests which would bevalid under the Roman-Dutch law in accordance with the intention ofthe donor. The rule of interpretation under this second test must ofcourse, be the rules under the Roman-Dutch law. If I may say so withrespect, I think these tests are the only ones applicable to a case like theone now under appeal, because that portion of the Muslim law ofdonations in force in Ceylon and the law of fidei commissum under theRoman-Dutch law are both applicable to Muslims and derive their forceas law from inveterate custom and use, which have been recognized byour Courts of law. One does not stand on a higher footing than the otherso far as Muslims are concerned, and the only reason why the Muslim lawis first applied is the reason given by the Supreme Court in Weeresekere v.Peiris (ubi supra). As Garvin S.P.J- said: “ A fidei commissary gift underthe Roman-Dutch law is a gift, and before the fidei commissum canoperate on the subject of the gift there must be a valid and completegift—if, for instance, the gift fails for want of acceptance the fideicommissum of necessity also fails. Similarly, a fidei commissary gift 4 * 6
» 20 N. L. R. 463.= 19 N. L. R. 90.
315 N. L. R. 493.
4 17 N. L: R. 129.
s 32 N. L. R. 176.
6 Ceylon Lave Weekly 263.
between Muhammadan inhabitants of Ceylon must be complete as a giftTinder the Muhammadan law before the fidei commissum impressed onthe object of the gift can become operative.”
The appeal is dismissed with costs.
Drieberg J.—I agree.
UDUMALEVVAI et al. v. MUSTAPHA