Delivered by SIR LANCELOT SANDERSON.—Weerasekere v. Peiris. 281
1932[In the Privy Council;]
Present: Lord Tomlin, Lord Thankerton, and Sir Lancelot Sanderson.
WEERASEKERA v. PEIRIS.
Fidei commissum—Muslim gift to his son—Reservation of right to enjoy the
rents and profits and of right to revoke—No intention to make a gift under
Muslim law—Roman-Dutch law applicable.
Where a deed of gift by a Muslim to his son contained the followingconditions : —
“To have and to hold the said premises unto the said Arisie Marikar,his heirs, executors, administrators, and assigns for ever subject to theconditions and restrictions hereinafter mentioned, that is to say, that I,the said Ahamado Lebbe Marikar, have reserved to myself the right andpower to cancel and revoke these presents and to make any other deedor deeds therewith or deal with the said premises sis I shall think fit andproper during my lifetime, as if this deed had not been executed, andthat I have further reserved to myself the right of taking, receiving, andenjoying the rents, profits, issues, and income of the said premises-duringmy lifetime, and after my death the same shall go to and be possessedby the said Arisie Marikar as his property, provided, however, that thesaid Arisie Marikar shall not sell, mortgage, gift, exchange, or otherwisedispose of or alienate the said premises or any part thereof and furtherhe shall not be at liberty to encumber the rents, profits, income, or issuesof the said premises or suffer or allow or subject the said premises or therents, profits, issues, and income thereof to be seized, attached, or'soldby any writ of execution for ary debt, dues, default or undertaking ofthe said Arisie Marikar, that he shall not lease the said premises for.any term exceeding three years at a time. Provided, however, that thesaid donee can make gifts to his daughters in their marriage but not toany other. Provided, however, that after the death of the said doneethe said property shall devolve on his children as their absolute propertyand I do hereof for myself, my heirs, &c.( covenant and promise andagree to and with the said Arisie Marikar that the said premises herebygifted are free from encumbrance, &c
“And I, the said donee, do hereby thankfully accept the above giftmade to me in the foregoing deed subject to the conditions therein set-forth,”—
Held, that the donor created a valid fidei commissum such as is recog-nized by the Roman-Dutch law and that the donor did not intend tomake such a gift as is recognized under the Muslim law which necessitatesthe donee taking possession of the subject-matter of the gift duringthe lifetime of the donor.
PPEAL from a judgment of the Supreme Court.1
December 9,1932. Delivered by Sir Lancelot Sanderson—
This is an appeal by Don Charles Weerasekere, who was the plaintiffin the suit, against a decree of the Supreme Court of the Island of Ceylon,dated January 20, 1931, whereby an order of the District Court ofColombo, dated July 15, 1930, was set aside, and the plaintiff’s action wasdismissed.
i 32 N. L. R. 176.
282 Delivered by SIR LANCELOT SANDERSON—Weerasekere v.* Peiris.
The suit was brought by the plaintiff against the defendant, HettigeDon John Peiris, claiming that certain immovable property situatedwithin the Municipality and District of Colombo, and described in theschedule of the plaint, should be partitioned in terms of the PartitionOrdinance No. 10 of 1863, and for such other and further relief as to theCourt should seem meet.
The claim was based upon a deed, dated March 11, 1904, executed byAhamadoe Lebbe Marikar Arisie Marikar Hadjiar (hereinafter called the“father”) and his son, Arisie M. H. M. S. Hadjiar (hereinafter called‘‘the son”), who were Mohammedans of the Shaft sect and resident inthe Crown Colony of Ceylon. The deed refers to five-sixths of theproperty in question.
By the said deed the father purported to give, grant, assign, and transferthe five-sixths share of the said premises to the son as a gift inter vivos.The plaintiff alleged that the gift was subject to a fidei commissum infavour of the children of the son and that the five-sixths share upon thedeath of the son, which took place on February 12, 1929, devolved uponhis sons, Abdul Hassein and Mohammed Hassein. By a deed datedAugust 30, 1927, the plaintiff purchased all the right, title, and interestof Abdul Hassein and Mohammed Hassein, and by reason thereof heclaimed to be entitled to the five-sixths share of the said premises.
The father died in 1908 or 1909, and on his death the son dealt with theentire premises as if he were the sole and absolute owner thereof.
He mortgaged the premises to secure a loan obtained from the trusteesof the will of one E. J. Rodrigo in the year 1913.
The premises were sold in execution of a mortgage decree obtainedagainst him in 1916, and the said trustees, having purchased the saidpremises, entered into possession thereof.
In June, 1929, the said trustees sold the said premises to the defendant,who went into and remained in possession thereof up to and at the timeof the action, which was instituted on August 16, 1929.
The defendant’s case was that no valid and operative gift was madeby the father to the son by the deed of March 11, 1904, and that the sonnever took possession or held the said premises under the alleged gift.
The defendant further alleged that the son, on the death of his father,entered upon the premises and enjoyed the same as absolute owner, andthat he and those claiming – under him, including the defendant, hadacquired a title by adverse and uninterrupted possession.
The District Judge who tried the action decided in favour of theplaintiff and held that the deed of March 11, 1904, created a valid fideicommissum, and that the five-sixths share was conveyed by the fatherto the son, subject to the restrictions set out in the deed. The DistrictJudge further held that the possession of the defendant and his prede-cessors could not create a title by prescription against the children of theson, who did not die until 1929.
He therefore made a decree in favour of the plaintiff in respect of thefive-sixths share of the premises.
Delivered by SIR LANCELOT SANDERSON—Weerasekere v. Peiris. 283
No reliance was placed in this appeal upon the title of the defendantalleged to have been created by reason of adverse possession, and thearguments on both sides were directed to the construction and effect ofthe deed of March 11, 1904.
The defendant appealed to the Supreme Court of Ceylon, and thelearned Judges of that Court held that the alleged gift by the father to theson was void and of no effect. They decided that Mohammedan lawmust be applied to the deed of March 11, 1904, for the purpose of testingthe validity of the gift inter vivos, and that inasmuch as the son did nottake possession of the property during the lifetime of his father, therewas no valid and complete gift according to Mohammedan law. Theytherefore allowed the appeal and dismissed the plaintiff’s action. Theplaintiff has appealed against this decision to His Majesty in Council.
The dates of the material facts are as follows :—In 1886 the fatheracquired the premises in question. In January, 1903, he executed a leaseof the premises for three years from February 1, 1903, in favour of a certainlessee, who went into possession thereof. On March 11, 1904, the deedhereinbefore referred to was executed by the father and the son.
In June, 1906, the father granted another lease of the premises forthree years from July 1, 1906, to another lessee, who went into possessionthereof. In February, 1908, the 1904 deed was registered. In 1908 or1909 the father died. In May, 1909, the son granted a lease of thepremises for three years from July 1, 1909. On April 30, 1913, the sonmortgaged the premises to the above-mentioned trustees, who obtaineda decree against him. The property was sold by order of Court, andpurchased by the trustees in 1916. On August 30, 1927, Abdul Hasseinand Mohammed Hassein sold their right, title, and interest in the premisesto the plaintiff. On February 12, 1929, the son died. On June 26, 1929,the defendant purchased the premises from the said trustees, and onAugust 16, 1929, the plaintiff instituted his suit against the defendant.
The terms of the deed of March 11, 1904, upon which this appealdepends, are as follows : —
“ Know all men by these presents that I, Ahamadoe Lebbe MarikarArisie Marikar Hadjiar of New Moor street in Colombo, for and inconsideration of the natural love and affection which I have and bearunto my son Arisie Marikar Hadjiar Mohamado Salih Hadjiar ofColpetty and for divers other good • causes and • considerations mehereunto specially moving do hereby give, grant, assign, transfer, setover and assure unto the said Arisie Marikar Hadjiar Mohamado SalihHadjiar, his heirs, executors, administrators, and assigns as a gift intervivos absolute and irrevocable the land and premises described in theschedule hereto (of the value of Rupees Two thousand Five hundred)together with all my right, title, interest, claim and demand whatsoeverin, to, upon or out of the same which said premises have been held andpossessed by me under and by virtue of the title deed bearing No. 2208dated 28th December, 1886, attested by James Perera, Notary Public,described in the schedule which is annexed hereto.
“ To have and to hold the said premises with all and singular theappurtenances thereunto belonging or used or enjoyed therewith orknown as part and parcel thereof unto him the said Arisie Marikar
284 Delivered by SIR LANCELOT SANDER SON—Weerasekere v. Peiris.
Hadjiar Mohamado Salih Hadjiar, his heirs, executors, administratorsand assigns for ever subject to the conditions and restrictions hereinaftermentioned, that is to say: that I, the said Ahamado'e Lebbe MarikarArisie Marikar Hadjiar, have reserved to myself the right and power tocancel and revoke these presents and make any other deed or deedstherewith or deal with the said premises as I shall think fit and properduring my lifetime as if this deed had not been executed and that Ihave further reserved to myself the right of taking, receiving and enjoy-ing the rents, profits, issues and income of the said premises during mylifetime and after my death the sanie shall go to and be possessed bythe said Arisie Marikar Hadjiar Mohamado Salih Hadjiar as hisproperty, provided, however, that the said Arisie Marikar HadjiarMohamado Salih Hadjiar shall not sell, mortgage, gjft, exchange orotherwise dispose or alienate the said premises or any part thereof andfurther that he shall not be at liberty to encumber the rents, profits,income or issues of the said premises or suffer, allow or subject the saidpremises or the rents, profits, issues and income thereof to be seized,attached or sold by any writ of execution for any debt,, dues, defaultor undertaking of the said Arisie Marikar Hadjiar Mohamado SalihHadjiar, that he shall not lease the said premises for any term exceedingthree years at a 1 time nor execute any subsequent leases before theexpiration of the lease then in existence for the said premises. Providedhowever that the said donee can make gifts to his daughters in theirmarriages but not to any other." Provided, however, that after thedeath of the said donee the said property shall devolve on his childrenas their absolute property and i do hereby for myself, my heirs, execu-tors and administrators covenant, promise and agree to and with thesaid Arisie Marikar Hadjiar Mohamado Salih Hadjiar, his heirs,executors, administrators and assigns that the said premises herebygifted are free from any incumbrance and that I and my aforewrittenshall and will at all times hereafter warrant and defend the same untohup,, and his aforewritten against any person or persons whomsoever.
“ And I the said donee to hereby thankfully accept the abovegift made to me in the foregoing deed subject to the conditions thereinset forth.
“ In witness whereof we the said Ahamadoe Lebbe Marikar ArisieMarikar Hadjiar and Arisie Marikar Hadjiar Mohamado Salih Hadjiardo hereunto and to two others of the same tenor and date as thesepresents set our hands at Colombo on this Eleventh day of March A.D.One thousand Nine hundred and Four.”
The learned Judges of the Supreme Court held that on the trueconstruction of the deed the first part thereof was intended to create agift inter vivos, that Mohammedan law must be applied thereto, andthat by such law three conditions were necessary for a valid gift intervivos, viz., expression by the donor of intent to give, acceptance by thedonee express or implied, and the taking possession of the subject-matterof the gift actually or constructively by the donee. They further heldthat the premises in question were subject to a lease at the time of thedeed of 1904, and that there was no evidence that the donee had possessioneither actual of constructive, during the lifetime of the father. They
Delivered by SIR LANCELOT SANDERSON—Weerasekere v. Peiris. 285
therefore came to the conclusion that as the deed purported to createa gift inter vivos between Mohammedans, it was void under Moham-medan law.
It was argued on behalf of the plaintiff-appellant that where such adeed as that under consideration involves a fidei commissum, the law bywhich the document is to be construed is the Roman-Dutch law, and thatthe whole of the document, and not one part of it only, is to be construedby Roman-Dutch law ; that the principles of the Mohammedan law wereto be applied only in the case of “ pure ” donations, as they were called,made by Muslims in Ceylon ; in other words, to donations not involvingfidei Commissa.
“The Common law of Ceylon is the Roman-Dutch law as it obtainedin the Netherlands about the commencement of the last century,” seeKaronchimamy v. Angohamy' in which case Moncrieff A.C.J., in givingjudgment in the year 1904, quoted a passage to this effect fromMr. Pereira’s ** Laws of Ceylon,” 1904 edition.
Mr. Pereira, in his 1913 edition, while not doubting the law obtainingin Ceylon, has some hesitation in accepting the designation “ CommonLaw ”, as being correct.
There is no doubt, however, that the law adopted by the BritishGovernment in Ceylon in 1799 was practically the law which obtained inthe Netherlands at the beginning of the last century. Under that lawdonations involving fidei commissa are well known and recognized as validtransactions.
The question therefore which arises in this appeal, in their Lordships’opinion, depends upon the construction of the deed of March 11, 1904.
It is true that in the first part of the deed the father purported to give,grant, assign, transfer, set over and assure to the son as a gift inter nivosabsolute and irrevocable the land and premises. But in the habendumor second part of the deed it is made clear that the son was to hold thepremises subject to the conditions and restrictions thereinafter mentioned,and the last paragraph in the deed shows that the son accepted theso-called gift subject to the conditions set forth in the deed.
The conditions and restrictions mentioned in the deed are quite incon-sistent with a valid gift inter vivos according to the Mohammedan law.For, by the deed, the father reserved to himself the right to canceland revoke the so-called gift, as if the deed had not been executed, andto deal with the premises as he thought fit; he reserved to himself the rentsand profits of the premises during his lifetime, and it was only after hisdeath that the premises were to go to and be possessed by the son.
In their Lordships’ opinion, all the terms of the deed must be takeninto consideration when construing the deed, and it seems clear to theirLordships that it was never intended that the father should part with theproperty in or the possession of the premises during his lifetime, or thatthe son should have any control over or possession of the premises duringhis father’s lifetime. In other words, it was not intended that thereshould be a valid gift as understood in the Mohammedan law.
The deed further provided (among other things) that after the father’sdeath, the son should not sell, mortgage or alienate the premises or any
» 8 Ceylon N. L. B. 1 at p. 8.
286 Delivered by SIR LANCELOT SANDERSON—Weerasekere v. Peiris.
part thereof, that his powers of leasing the premises should be limited to
granting leases for three years, and that apart from gifts which the sonmight make to his daughters on their marriage, the premises upon thedeath of the son should devolve upon the children of the son as theirabsolute property.
It was not disputed that the last-mentioned provisions constituted afidei commissum according to Roman-Dutch law, but, as already stated,it was contended, on behalf of the respondent, that inasmuch as the termsof the first part of the deed purported to constitute a gift inter vivosbetween Muslims, the Mohammedan law must be applied thereto, and aspossession of the premises was not taken by the son during the father’slife, the gift was invalid and the fidei commissum, which was based on it,also failed.
Their Lordships are not able to adopt this contention of the respondent,and upon the true construction of the deed, having regard to all its terms,they are of opinion that the father did not intend to make to the son such'a gift inter vivos as is recognized in Mohammedan law as necessitating thedonee taking possession of the subject-matter during the lifetime of thedonor, but that the father intended to create and that he did create a validfidei commissum such as is recognized by the Roman-Dutch law.
Their Lordships’ attention was drawn to Ordinance No. 10 of 1931,which is entitled “An ordinance to define the law relating to Muslimintestate succession, donations, and charitable trusts or wakfs” and inparticular to clauses 3 and 4 thereof—which are as follows : —
“ 3. For the purposes of avoiding and removing all doubts it ishereby declared that the law applicable to donations not involving fideicommissa, usufructs and trusts, and made by Muslims domiciled in theIsland or owning immovable property in the Island, shall be the Muslimlaw governing the sect to which the donor belongs. Provided that nodeed of donation shall be deemed to be irrevocable unless it is so statedin the deed, and the delivery of the deed to the donee shall be acceptedas evidence of delivery of possession of the movable) or the immovableproperty donated by the deed.I
“ 4. It is hereby further declared that the principles of law prevail-ing in the maritime provinces shall apply to all donations', other thanthose to which the Muslim law is made applicable by section 3/’
Their Lordships do riot base their decision upon the provisions qf thesaid Ordinance, because in their opinion the Ordinance cannot governthe present case, as it did not come into effect until June 17, 1931, andit cannot be said to be retrospective in effect.
Their Lordships’ conclusion, as intimated above, is based upon theiropinion as to the true construction and effect of the deed of 1904 and thelaw then applicable thereto.
For the above-mentioned reasons their Lordships are of opinion thatthe appeal should be allowed, the decree of the Supreme Court of Ceylondated January 20, 1931, should be set aside, and the order of the DistrictJudge of July 15, 1930, should be restored. The respondent must pay tothe appellant his costs of this appeal, and of the appeal to the SupremeCourt, and their Lordships will humbly advise His Majesty accordingly.
WEERASEKERA v. PEIRIS