Abdul Cafoor v. Packir Saibo.
Present : Moseley S.P.J. and Keuneman J.
ABDUL CAFOOR v. PACKIR SAIBO.
3—D. C. Badulla, 6,636.
Muslim law—Donation—Right of possession postponed—Gift invalid.
Where a deed of gift by a Muslim provided inter alia as follows : —
That the said M. N. (the donor) shall and will have the full, freeand undisturbed use, occupation and enjoyment of the said landand premises hereby gifted and granted as aforesaid during the timeof her natural life without any let or hindrance whatever from orby the said M. A. K. (the donee), his heirs, executors, administratorsand assigns.
That after the death of the said M. N. the said M. A. K. and hisaforewritten shall be at liberty to enter into and to take possessionof the said land and premises.
' Held, that the deed of gift must he construed according to the principlesof the Muslim law and that as immediate possession did not pass to thedonee, the gift was inoperative.
Caste Chetty v. Mohamed Saleem 142 N.. L. R. 41) followed.
MOSELEY S.P.J.—Abdul Cdfoor v. Packir' Saibo.
^ PPEAL from a judgment of the District Judge of Badulla.
N. E. Weerasooria, K.C. (with him E. A. P. Wijeyeratne), for appellant.H. V. Perera, K.C. (with him S. J. V. Chelvanayagam and M. I. M.Haniffa), for respondents and added respondents.
Cur. adv. vult.
May 23, 1941. Moseley S.P.J.—
This was an action for declaration of title to certain property which, itis agreed, was on April 21, 1904, owned by one Meynoon Natchia. Onthat date she executed a deed of gift, P 1, in favour of the appellant. OnJune 21, 1934, she revoked P 1, and on the same date executed deeds byvirtue of which the respondents ultimately came into possession of theproperty. Hence this action which hinges on the validity or otherwiseof the deed P 1, the relevant portions of which are set out hereunder : —"Whereas the said Lewena Constable Meynoon Natchia has agreedwith her adopted son Srail Lebbe Marikar Abdul Kaffoor aforesaid togift, grant, assign, transfer, set over and assure unto him the said SrailLebbe Marikar Abdul Kaffoor the land, tenement and premises here-after in the schedule hereto more particularly described subject howeverto a primary mortgage thereof in favour of the late Mrs. Edith Bartholo-muesz of Badulla under a bond bearing No. 2859 dated August 6, 1888,attested by the said B. L. Potger of Badulla, Notary Public.
Now this indenture witnesseth that in pursuance of the said agree-ment and in consideration of the natural love and affection which shethe said Lewena Constable Meynoon Natchia, has and bears unto hersaid adopted son, Srail Lebbe Marikar Abdul Kaffoor aforesaid, she the 'said Lewena Constable Meynoon Natchia doth hereby give, grant,assign, transfer, set over and assure by way of gift the land and premiseshereinafter more particularly described with their and every of theirappurtenances unto him the said Srail Lebbe Marikar Abdul Kaffoor,his heirs, executors, administrators and assigns.
To have and to hold the said land and premises with their and everyof their' appurtenances unto him the said Srail Lebbe Marikar AbdulKaffoor,. his heirs, executors, administrators and assigns for ever,subject however to the following covenants, conditions, and reservationsherein set forth and contained, namely : —
That the said Lewena Constable Meynoon Natchia shall and will
have the full free and undisturbed use, occupation andenjoyment of the said land, premises and of the buildingsstanding thereon, hereby gifted and granted as aforesaid,during the term of her natural life without any let or hindrancewhatsoever from or by the said Srail Lebbe Marikar AbdulKaffoor, his heirs, executors, administrators and assigns.
That after the death of the said., Lewena Constable Meynoon
Natchia he the said Srail Lebbe Marikar Abdul Kaffoor andhis aforewritten shall be at liberty to enter into and to takepossession of the said land and premises.
MOSELEY S.P.J.—Abdul Cafoor v. Packir Saibo.
That the said Lewena Constable Meynoon Natchia doth herebybind herself that she shall not nor will at any time hereafterrevoke, cancel, annul or make void the gift hereby made as‘ aforesaid on any reason or pretext whatsoever.
And the said Srail Lebbe Marikar Abdul Kaffoor doth hereby thank-fully accept and receive the above gift under and subject to the termsand restrictions herein before set forth and contained.”
The parties to the deed are Muslims and the question for decision iswhether it is to be construed according to the principles of Muslim law orthose of Roman-Dutch law. I may say at once that it is common groundthat the appellant never entered into possession. The respondent’s caseis that the deed is governed by Muslim law and that, since possession wasnot given, the deed is inoperative. For the appellant it is contended thatthe reservation of a life interest to the donor, the stipulation that thedonee is entitled to possession after the death of the donor, and thecovenant not to revoke the deed point to the intention of the parties tocontract under Roman-Dutch law, in which case the deed is operativein favour of the appellant. The latter relies in particular upon the clausein the deed which expressly postpones possession. No such clause, it iscontended, appears in any deed which has been the subject of considerationby the Privy Council or by this Court, and we are invited to infer there-from an expression of intention on the part of the donor to enter into acontract apart from the Muslim law.
On behalf of the respondents it is argued that Muslim law applies primafacie to a deed entered into by Muslims, and that the matter is placedbeyond doubt when, as in the case of the deed before us, title passes withthe execution of the deed. We have had brought to our notice all theauthorities relating to the construction of such deeds from Weerasekere v.Peiris 1 to Casie Chetty v. Mohamed Seleem et al.2. In the last-mentionedcase Keuneman J. after a careful review of the authorities to which I havereferred and in particular of Weerasekere v. Peiris (supra) and Sultan v.Peiris between which he was of opinion that there was no conflict, felt“ constrained to hold that in the case of Muslims, where the deed of giftmanifests an intention to make an immediate transfer of the dominium,the Muslim law is applicable. In such a case, if possession is not givenby the donor to the donee, one of the conditions essential under Muslimlaw has not been complied with and the deed of gift is invalid ”.
At a somewhat late stage in the argument Counsel for the appellantsought to show that the immediate passing of dominium is a circumstancewhich is common to all gifts made inter vivos and should not therefore bevested with the significance which it has been sought to attach to it. Hedrew our attention to the case of Waas v. Perera et al. *. The deed thereunder consideration contained a covenant not to alter or change the giftand provided that possession should pass after the death of the grantor.Drieberg J. remarking on the frequency of such donations, held that therewas “ abundant authority that they are donations inter vivos, and as such
* 34 N. L. R. 281.» 42 N. L. R. 41.
= 35 N. L. R. 57.* 32 N. L. R. 69.
MOSELEY S.P.J.—Abdul Caffoor v. Packir Saibo.431
the subject of the gift vests at once in the donee and it is only the deliveryof the property which is postponed to a later date, and the consequence isthat the property is transmitted to the donee’s heirs if the donee happensto die before the donor
The decision in that case was followed in Fernando et al. v. Soysa1 inwhich Ennis A. C. J., after considering a passage from Maasdorp, Vol. III.,page 99, which is based upon Voet (Bk. 39, Tit. 5, para. 3) observed that“ it appears from Voet that a donation inter vivos vests at once in thedonee”. It will be observed that in Waas v. Perera (supra) Drieberg J.elaborates this quotation from Voet and describes “ the subject of the gift ”as vesting immediately in the donee. In Uduma Levvai v. Mayatin Vavaet al.', Grenier A. J. referring to the recognition by Roman-Dutch law ofdonations inter vivos which are to take effect after the death of the donorsaid, “ the gift is a present, one taking effect immediately on due accept-ance by the donee, but the possession of the thing donated is postponedtill the death of the donor”.
It seems to me that the point for our decision is, what precisely doespass in the case of such a donation when possession is postponed. It isabundantly clear from the authorities cited that whatever passes issufficient to enure to the benefit of the donee’s heirs if the donee shouldpredecease the donor, but Counsel for the respondents contends that it isnot the title which passes, but merely a spes. It will be observed that innone of the authorities quoted is it said that in the case of a donationinter vivos it is the “ title ” or “ dominium ” which passes. In fact inthe passage from Voet (Bk. 39, Tit 5, para. 4) the point under considerationwas not the passing of the dominium in the subject-matter of the gift, butthe technical distinction between donationes inter vivos and donationesmortis causa. Maasdorp, however, in a passage on the same page quotedby Ennis A. C. J. in Fernando et al. v. Soysa (supra) sets out the position asfollows : —
'* When the donation has not been completed by transfer or delivery,but has, nevertheless, been accepted by the donee, the, latter will havea right of action against the donor to compel him to specific performanceof his agreement.” .
He draws a sharp contrast between the position in such a case and thatin which donation is completed by delivery in which case the effect willbe to pass “ the ownership in the subject-matter of the donation ” to thedonee. In support of the proposition he relies upon Vest (Bk. 39, Tit. 5,para. 19) in which the learned commentator, speaks of the passing of the“ dominium ”.
It seems to me therefore that in this respect the argument of Counsel forthe respondents is well supported and that where a donation inter vivoshas not been completed by transfer or delivery, what passes is merely aright to enforce a contract.
A reference to the deed before us the pertinent portions of which areset out above indicates, in iny view, the immediate transfer of thedominium in the property, a view which was held by the learned District
* si N. L. R. 114.
• 10 N. L. R. 347.
MOSELEY S.P.J.—Abdul Cafoor v. Packhn Saibo.
' Following the view expressed by Keuneman J. in Casie Chetty v.Mohamed Saleern et al. (supra) I think that the District Judge was right inholding that the deed P 1 should be construed according to Muslim law.The failure, therefore, of the appellant to obtain possession renders thedeed inoperative.
I would therefore dismiss the appeal with costs.
Keuneman J.—I agree.
ABDUL CAFOOR v. PACKIR SAIBO