ALIYA MARIKAR ABUTHAHIR v. ALIYA MARIKAR MOHMMED SALLY

049-NLR-NLR-V-43-ALIYA-MARIKAR-ABUTHAHIR-v.-ALIYA-MARIKAR-MOHMMED-SALLY.pdf


193
AUya Marikar Abuthahir v. Aliya Marikar Mohammed Sally.
1942 Present: Howard CJ^ Moseley S.P.J., Soertsz, Hearne and
Wijeyewardene JJ.
ALIYA MARIKAR ABUTHAHIR v. ALIYA MARIKARMOHAMMED SALLY.110—D. C. Kegalla, 1,351.
Muslim deed of gift—Reservation of life-interest in donor—Fidei commissumattached to the gift—Valid fidei commissum created—Roman-Dutch law.A Muslim executed a deed of gift in favour of one of his sons, reservingto himself and his wife, if she survives him, the right to- take, enjoy andreceive the rents and profits of the property gifted, during theirlifetime.
He also reserved to himself the right to revoke and cancel the giftat his will and pleasure.
The gift was also subject to a fidei commissum in favour of the donee’schildren.
The donee and the donor’s wife accepted the gift.
Held, that the deed created a valid fidei commissum, and was a validgift under the general law although between Muslims.
Weerasekere v. Peiris (34 N. L. R. 281) followed.
Sultan v. Peiris (35 N. L. R. 57) over-ruled.
T
HIS was a case referred to a Bench of five Judges under section 51of the Courts Ordinance.
The facts are as follows : —
A Muslim, Tarnby Lebbe Aliya Marikar, executed a deed of gift infavour of one of his sons, Mohamed Sally, the defendant-appellant.The deed contained the following provisos : —
(a) That the said Aliya Marikar shall be at liberty and the right ishereby reserved to him to take, receive and enjoy the rents andprofits of the said premises during his lifetime and, after hisdeath, his wife shall be at liberty and the right is herebyreserved to her to take, receive and enjoy the rents and profitsof the same during her lifetime, and Aliya Marikar, the saiddonor, reserving the right to revoke or cancel these presentsat his will and pleasure.
• ■=) That the said Mohamed Sally shall not sell, mortgage or alienatethe premises but shall only hold and possess the same duringhis lifetime and, after his death, the same shall devolve on hischildren ….
In the event of the said Mohamed Sally dying without issue thesaid premises shall devolve on his brothers and the children ofhis deceased brother.
The deed of gift was accepted by the donee and the donor’s wife.
The donor died in 1934. In 1936 his widow conveyed her life-interestin the property to the plaintiff who is another son. The plaintiff suedthe defendant to recover the rents and profits which were wrongfullyappropriated by the latter. The defendant resisted the claim on the
194Aliya Marikar Abuthahir v. Aliya Marikar Mohammed Sally.
ground that the deed was invalid as it was not implemented by delivery ofpossession of the subject-matter of the gift to the donee as required by theMuslim law. The learned District Judge held against the defendant.
V. Ranawake (with him H. A. Koattegoda and Kariapper), for thedefendant, appellant.—The question for consideration is whether thedeed of gift executed by Aliya Marikar on August 23, 1928, is governedby the Muslim law or the Roman-Dutch law. It is submitted that it isgoverned by the Muslim law. A deed of gift between Muslims has to befirst tested by Muhammedan law even though the deed purports tocontain a fidei commissum, the validity of which must admittedly betested by Roman-Dutch law. This is the rule as laid down by theSupreme Court in Weerasekere v. Peiris This rule is not affectedby the judgment of the Privy Council in that same case. In the deed ofgift considered by the Privy Council in Weerasekere v. Peiris z it was held(1) that there was an intention to execute it under the Roman-Dutch law,and (2) that it was a gift in futuro. In both these respects the deedin the present case differs from the deed in Weerasekere v. Peiris (supra),for the deed in this case is prima facie a Muslim gift and, further, it is agift in praesenti. The District Judge was, therefore, wrong in givingjudgment against the appellant on the basis of Weerasekere v.Peiris. Sultan v. Peiris “, where Weerasekere v. Peiris is fullyconsidered, is applicable to the facts of this case. These two decisionsare not in conflict with each other. In Sultan v. Peiris the Muslimlaw was held to prevail, despite the fact that the word “ fidei-commissum ” appeared in the deed. See also Ponniah et al. v. Jameelet al.4, Casie Chetty v. Mohamed Saleern et al.3, and Abdul Caffoor v. PackirSaiboCases in which the deeds construed were similar to the one inWeerasekere v. Peiris are Kudhoos v. JunoosKalender Umma v.Marikar‘ and Ismail v. MohamedThe gift in this case fails for wantof seisin. There is a vesting of. the dominium in the donee, but nopossession passed. There is nothing to show that the parties intendedto make the gift under the Roman-Dutch law.
H. V. Perera, K.C. (with him Haniffa, Ameer, and Ariaratnam), for theplaintiff, respondent.—This case comes directly within the ratiodecidendi of the judgment of the Privy Council in Weerasekere v. Peiris.The present §tate of the law is very unsatisfactory. There is areal conflict between Weerasekere v. Peiris and Sultan v. Peiris andconfusion has resulted from the fact that subsequent decisions havefollowed the one or the other.
Prior to Weerasekere v.' Peiris the Muslim law in Ceylonrecognized only pure donations, and in the construction of fidei commissumthe principles of the ordinary general law and not of the Muslim law werealways applied—(1873) 2 Grenier (D. C.) 28; Rahiman Lebbe et. al. v.Hassan Ussan Umma et al.10; Saidu v. SamiduFor the first time inWeerasekere v. Peiris the Supreme Court took the view that a
> (1931) 32 N. L. R. 176 at 181.
(1932) 34 N. L. R. 281.
3 (1933) 35 N. L. R. 57.
(1936) 38 N. L. R. 96.
6 (1940) 42 N. L. R. 41.
• (1941) 42 N. L. R, 428.’ (1939) 41 N. L. R. 251. 6 (1936) 38 N. L. R. 271.9 (1933) 35 N, L. R. 331.10 (1916) 3 C. W. R. 88.
11 (1922) 23 N. L. R. 506.
SOERTSZ J.—Aliya Marikar Abuthahir v. Aliya Marikar Mohammed Sally. 195
transaction could be broken up into two separate parts, one of which beinggoverned by the Muslim law and the other by the Roman-Dutch law.On appeal to the Privy Council the decision of the Supreme Court wasreversed and the old view was restored.
There are three conditions necessary, in Ceylon, for the validity of aMuslim gift: (1) Intention, (2) Acceptance, (3) Delivery of possession.For Muslim law to be applicable, there should be the intention to givedelivery of the property completely, reserving nothing to the grantorand giving nothing to a third party. There is a full statement of the lawin Weerasekere v. Peiris'. Sultan v. Peiris (supra) is an interpretationof Weerasekere v. Peiris. It does not, however, state correctly theprinciple laid down by the Privy Council. There is not in Sultan v.Peiris a consistent statement of principle.
C. V. Ranowake in reply.—For principles on which to determine theintention of the parties to a contract with reference to the law by which itshould be governed, see Dicey’s Conflict of Laws (5th ed.), pp. 666-8 andVol. 6 Halsbury’s Laws of England (2nd ed.) p. 263, section 321.
Cur. adv. vult.
February 25, 1942. Soertsz J.—
This case has been referred to us under section 51 of the CourtsOrdinance in view of the obscurity in which Muslim donations areinvolved in the present state of our law.
Whatever doubts and difficulties there might have been in regard' tothese donations before the Privy Council delivered its opinion in the caseof Weerasekere v. Pieris (supra) (December, 1932) that opinion enunciatedthe governing principle in terms so clear that there was every reason forsupposing that the matter had been settled once and for all. But theunfortunate, case of Sultan v. Pieris ’ came up shortly afterwards (March,1933) before a Divisional Bench and served to revive the earlier confusion;indeed, to make the last state worse than the first.
If I may say so with respect, the judgments delivered in that case are,by no means, easy to follow. But that is not all. Macdonell C.J. andGarvin J. who wrote those judgments gave substantially differentinterpretations of the opinion of the Privy Council. The two otherJudges, Drieberg and Akbar JJ: expressed their concurrence with thejudgment of the Chief Justice, but he, in a later case Ponniah v. Jameel ‘recanted his interpretation and adopted that of Garvin J.
In these circumstances, it is hardly matter for surprise that such adiversity of views as we have to-day should have arisen. That wasalmost inevitable. Judges sitting, in the ordinary course, found them-selves confronted with the unquestionable authority of the’ Privy Counciland with what appeared to be an authoritative decision of the DivisionalBench interpreting that opinion in two different ways, and it fell to themto endeavour, as well as they could, to reconcile what are, in reality,irreconcilable views.
A brief summary of the cases subsequent to Sultan v. Pieriswill suffice to show Bow' uncertain and unsatisfactory the law relatingto this question has been during the last decade or so. The cases in
1 {1932) 34 N. L. R. 281 at 284 et seq.1 35 N. L. R. 81.
=> 38 N. L. R. 96.
196 SOERTSZ J.—Aliya Marikar Abuthahir v. Aliya Marikar Mohammed Sally.
question are those of Ismail v. Mohamed (Nov. 1933), Ponniah v. Jameel(Mar. 1936), Kalender Umma t>. Marikar (Oct. 1936)Kudhoos v. Junoos(Oct. 1939)’, Casie Chetty v. Mohamed Saleem (Oct. 1940)*, AbdulCaffoor v. Packir Saibo (May 1941) '.
But first of all in regard to Sultan v. Pieris itself, the interpretationMacdoneh C.J. put upon the opinion of the Privy Council was that it laiddown that a Muslim might “ manifest a sufficiently clear intention tocontract himself out of the Mohamedan law as to gifts altogether and,therefore, to make it—the only alternative—under the Roman-Dutchlaw ”, and in that view of the matter he said that “ in examining a deedof gift from one Mohamedan to another one must examine the deed asa whole and with regard to all its terms to see u it shows an intentionto make such a gift inter vivos as is recognized by Mohamedan lawHe then proceeded to examine the deed in question in that way, and cameto the conclusion that the inference that arose from all the terms of thedeed was that the “ donor and his conveyancer …. intended…. to emphasize the Mohamedan character of the deed of gift
and to ensure the donees remaining in that faith ”, by imposing a for-feiture in the event of their abandoning the Islamic faith or marryinga widow or a divorced woman.. He added “ I find it difficult to give duesignificance to the penalty or forfeiture clause unless the donor consideredhimself as acting under and within the ambit of his own Mohamedanlaws ”. Having reached that conclusion, he examined the deed to seewhether it complied with the essential requisites of a gift as understoodin the Muslim law, and he held it to be void because it was not in con-formity with those requisites. In other words, the learned Chief Justiceinterpreted the opinion of the Privy Council as laying down that, in thefirst instance, it is necessary to consider all the terms of the deed in orderto ascertain whether the donor has manifested an intention to contracthimself out of the Mohamedan law or not. If he has not, the Mohamedanlaw must be applied ; if he has, the Roman-Dutch law governs thequestion of the validity of the deed. It will appear presently, that thisis how Dalton J. understood the interpretation given in Sultan v. Pieris(supra) of the opinion of the Privy Council.
But, as a matter of fact, Garvin J. gave a different interpretation.He said “ the effect of their Lordships’ decision, as I conceive it, is that _where it appears upon the construction of the deed as a whole that theintention of the donor is not to make an immediate gift but a gift to takeeffect after his death, there is not such a gift as is understood by theMuslim law and the intention of the donor must, if possible, be giveneffect to under the general law ”, He went on to add “ as to the conten-tion that their Lordships’ judgment proceeds upon the principle that aMuslim may by a sufficient manifestation of such an intention obtainfor a deed which is in form a transfer by way of gift made by him,the effect which it would be given if the Roman-Dutch law applied,notwithstanding that it would be bad and inoperative as such under thesystem of law to which he is subject, I can only say that as I understand
the judgment no such principle is laid down”.
1 (.IS A L. H. 271.
41 -V. L. 11. 251.
» {1940) 42 .V. I,. 11. 41.
» (1941) 42 .V. ].. ft. 429.
SOERTSZ J.—Aliya Marikar Abuthahir v. Aliya Marikar Mohammed Sally. 197
This is in direct opposition to the view taken by Macdonell C.J. As Ihave already observed Drieberg and Akbar JJ. who were the othermembers of that Divisional Bench expressly agreed with the judgment ofthe Chief Justice, so that the view of the Chief Justice was the view ofthe majority of the Bench and, therefore, the authoritative interpretationof the opinion of the Privy Council. As I have already pointed out,the learned Chief Justice later adopted the interpretation given byGarvin J. and explained how the two concurring Judges came to expresstheir agreement in the way in which they did, but the fact remains thattheir concurrence, as recorded, is with the judgment of the Chief Justice.
Dalton J. regarded the interpretation of Macdonell C.J. as containingthe true ratio decidendi of Sultan v. Pieris, when he considered the caseof Ismail v. Mohamed (supra) and distinguished it from that case. Inthe case just mentioned, a Muslim donor made a gift to the donee reservingfor himself and for his wife life-interest and reserving to himself a powerof revocation. The donee accepted the gift and the deed itself was handedto him. Shortly afterwards the donor renounced by deed both thepower of revocation and the life-interest that had been reserved. Manyyears later, he sought to repudiate the gift on the ground that thereservation of the power of revocation and of life-interests was obnoxiousto the Mohamedan law and that, therefore, -the deed was void. Dalton
J.with whom Poyser J. agreed, held that even if the Mohamedan lawwere applicable there was a valid gift because the effect of the deed ofgift read with the deed of renunciation was to create a valid transfer ofdominium, and that, on the evidence, the donee was shown to have hadpossession as well. But he ruled that, on a true interpretation of thedeeds, it was the Roman-Dutch law that was applicable because theretention of the power of revocation and the reservation of a life-interestwere “ quite inconsistent with a valid gift under Muslim law, whereasthey are entirely consistent with a valid gift under the Roman-Dutchlaw.” Counsel who appeared for the party impeaching the deed hadalso submitted that a Muslim could not possibly make a gift reserving alife-interest, and in regard to that submission, Dalton J. said, “ Mr. Hayleyfor the respondent, however, carried his argument so far as to say that aMuslim in Ceylon is debarred by law from making a donation reservinga life-interest in himself, but that seems to me quite inconsistent with theprinciple laid down by the Privy Council in Weerasekere v. Pieris”.He held that Sultan v. Pieris (supra) had no application to the casebefore him for the reason that the Mohamedan law was appliedin that case because the Judges had found, on an examination of all theterms of that deed, that both the donor and the conveyancer hademphasized the Muslim character of the deed, whereas in the deed he wasconsidering there was no such implication. The point I seek to stress isthat Dalton J. did not accept the interpretation given by Garvin J. of theopinion of the Privy Council although Counsel “ urged that the case forthe application of Muslim law and not of Roman-Dutch law is the samein the circumstances here as it was in the circumstances of that case ”(i.e., Sultan v. Pieris). This submission could have been made onlyon the interpretation given by Garvin J.
198 SOERTSZ J.—Aliya Marikar Abuthahir v. Aliya Marikar Mohammed Sally.
The next case is that of Ponniah v. Jameel {supra). It came beforeMacdonell C.J. and Poyser J. The former delivered the judgment inthe case and it was in the course of this judgment that he adopted theinterpretation given by Garvin J. and explained how the other Judgescame to express their concurrence with his own judgment. The donorin that case and his conveyancer appear to have had a thoroughlyconfused idea as to the meaning of the judgments in Sultan v. Pierisand they sought to secure the validity of the gift notwithstandingthe reservation of the donor’s life-interest and the fidei cotmmissumhe had imported into it, by means of an express declaration that thedeed of gift was handed over to the donees “ as a token of the transfer ofpossession of the property hereby conveyed in accordance with thedecision of the Supreme Court It is obvious that they were obsessedwith the bugbear of seisin and that their minds were running on thedictum in Sultan v. Pieris as affording them their only hope ofescape—“delivery of possession may be constructive but must be real ”,and they supposed that this solemn avowal of the handing over of the deedto the donee with the additional declaration they made that the donor“ has given up every right he may have under any law whatsoever torevoke the deed ” satisfied the requisite condition of a real delivery.But all the anxious thought they had brought to bear, all the precautionsthey had taken, were in vain. They seemed never to be able to makethe gift they desired. The deed was held to come within the interpreta-tion given by Garvin J. and to be void because it amounted to a giftintended to take effect at once and was unaccompanied by delivery ofpossession, the donor having reserved a life-interest.
The case of Kalender Umma v. Marikar1 followed and added to thisburden of doubt and uncertainty. Fernando A.J., while professing toadopt the interpretation giver, by Garvin J. in Sultan v. Pieris andadopted by Macdonell C.J. in Ponniah v. Jameel, in reality, departedfrom it and gave an interpretation that brought the case with whichhe was dealing within the rule laid down by the Privy Council in Weera-sekere v. Pieris. He appears to have t^Jcen the view that the gift inSultan v. Pieris was made with the intention that it should take effectimmediately because it not only purported to be an absolute and irrevoc-able gift, but also because there was in the deed a declaration that thedeed of gift together with the-connected deeds was handed to the donees,and that the deed before him could, not be said to have been made withany such intention because although it declared that the donors “ annexthe aforesaid deeds with this ”, there is nothing to show that even thedeed of gift itself was intended to be delivered to the donees. I wouldrespectfully submit that this is excessive refinement. There is adeclaration in the deed that the donation was accepted “ with gratitudeand delight ”. That declaration viewed in the light of the maxim invokedby Macdonell C.J. in Suit an v. Pieris, namely that “ omnia pTaesumunturrite esse facta” seems to me to lead fairly to the conclusion that thedeeds wehe handed to the donees. If, then, the giving up of the deedsto the donee is the decisive factor in regard to the question whethera gift is an immediate one or one in futuro, no differentiation can properly
1 (1936) 3S N. L. R. 271.
SOERTSZ J.—Aliya Marikar Abuthahir v. Aliya Marikar Mohammed Sally. 199
be made between the two deeds. In other respects, they were identical.In both deeds, there was a forthright donating, conveying and settingover, without retention of any power of revocation. In both deeds,there was the reservation of a life-interest. And yet Garvin J. held thatsuch a deed is invalid because a life-interest was reserved, while FernandoA.J. purporting to adopt the interpretation given by Garvin J. heldthat such a deed is valid because the reservation of the life-interest makesit clear “ that the donor did not intend to part with the possession of thepremises at the time of the gift.”
It will be seen on a careful examination of the judgment of Garvin J.in Sultan v. Pieris that he did not consider the handing of the deedsto the donee to be of material importance in -a case in which actualpossession of the subject-matter of the gift is not given. He said “ themere delivery of the deed …. is not constructive delivery whenthe donor had clearly manifested his intention that it was he and notthe donee who was to take all the rents, profits, produce andincome ”.
In point of time, the next case that arises for consideration is that ofKudhoos v. Junoos1 but before I proceed to deal with that case referenceto the case of Casie Chetty v. Mohamed Saleem * seems to be opportune inview of the opinion Keuneman J. expressed in regard to the judgment inKalender Umma v. Marikar (supra). Confronted with the facts, that thejudgment was not what it appeared to be and that it did not follow the test itpurported to adopt, he sought to solve the difficulty by suggesting thatFernando A.J. had used the word “ possession ’’ per incuriam insteadof the word “ property ” or of the word “ dominium ”. But the trendof the whole judgment is opposed tp that view of the matter. In theend Keuneman J. followed Sultan v. Peiris because he found that the deedhe had to consider purported to inake an immediate gift and had,therefore, to be tested by Mohamedan law and that it failed by that testinasmuch as possession of the property gifted was not given to the donee.He said that he did not find the judgments in Sultan v. Pieris inconsistentwith the opinion of the Privy Council in Weerasekere v. Pieris.
But in the earlier case of Kudhoos v. Junoos, already referred to, Wijeye-wardene J. took a very different view. Referring to the contention, ofCounsel who attacked the deed as obnoxious to the Mohamedan lawbecause while purporting to make an immediate gift the donor reservedto himself a life-interest, Wijeyewardene J. said that it was “ an invitationto them to whittle away the effect of the Privy Council decision byendeavouring to ignore the plain meaning of the judgment and decidethe present case according to the view of law expressed in the decisionreported in 32 N. L. R., p. 176 (that is to say, the judgments given here inWeerasekera v. Pieris) which was the very judgment overruled by thePrivy Council ”. He went on to say that “ It is not possible to reconcilesome of the views expressed in the two subsequent decisions (i.e., inSultan v. Pieris and Ponniah v. Jameel) with the ruling of the PrivyCouncil, but in spite of these views I am bound to follow the decision of the. Privy Council ’
1 (1939) 41 N. L. R. 251.
(1940) 42 N. L. R. 41.
200 SOERTSZ J.—Aliya Marikar Abuthahir v. Aliya Marikar Mohammed Sally.
The last case of this series is that of Abdul Caffoor v. Packir Saibo ' inwhich Moseley J., sitting with Keuneman J., followed the judgment ofKeuneman J. and concurred in by Cannon J. in Casie Chetty v. MohamedSaleem.
To sum up, Sultan v. Pieris gave two different interpretations of theopinion of the Privy Council. In Ismail v. Mohamed, Dalton J., Poyser
J.agreeing, held that the deed in that case did not come within theinterpretation given by the Chief Justice with which Drieberg and AkbarJJ. agreed, and he did not adopt the interpretation given by Garvin J.although Counsel rightly submitted that on that interpretation the twocases were indistinguishable. In Ponnidh v. Jameel, Macdonell C.J., withwhom Poyser J. agreed, adopted Garvin J’s interpretation in Sultan v.Pieris. In Kalender Umma v. Marikar Fernando A.J., MoseleyJ. agreeing, purported to follow Garvin J’s interpretation in Sultan v.Piei-is but as already pointed out departed from it. In Kudhoos v.Junoos Wijeyewardene J. with whom Moseley A.C.J. agreed foundSuitan v. Pieris to be inconsistent with the opinion of the Privy Council inWeerasekere v. Pieris, and felt bound to follow the latter. In Casie Chettyv. Mohamed Saleem Keuneman J., Cannon J. agreeing, found that Sultanv. Pieris was not inconsistent with the opinion of the Privy Council,and followed Garvin J’s interpretation suggesting that Fernando A.J’sconclusion in Kalender Umma v. Marikar was due to an erroneous use ofthe word “ possession ”. In Abdul Caffoor v. Packir Saibo, Moseley J.,with whom Keuneman J. agreed, followed Casie Chetty v. Mohamed Saleem.
It is in this uncertain state of the lav/, that the present case arises forconsideration, and it arises on the facts that I shall now state.
One Tamby Lebbe Aliya Marikar executed a deed of gift in favour ofone of his sons, who is the defendant-appellant before us. The donorreserved to himself and to his wife, if she survived him, the right to take,enjoy and receive the rents and profits of the property gifted during theirlifetime. He reserved to himself the right to revoke and cancel the giftat his will and pleasure. He also annexed a fidei commissum to the gift.The donee and the donor’s wife thankfully accepted the gift.
The donor died in 1934. In 1936 his widow conveyed her life-interestin the property to the plaintiff who is another son.
Relying upon this deed, the plaintiff brought this action alleging that,whereas he is entitled to the rents and profits of the property, thedefendant is wrongfully receiving and appropriating to himself the rubbercoupons issued in respect of it under the Rubber Control Ordinance.
The defendant, apparently more concerned with the present thanabout the future, repudiated the plaintiff’s claim on the ground that thedeed on which that claim is ultimately based, that is of course the deedin favour of the defendant himself, is void inasmuch as it was notimplemented by delivery of possession of the subject-matter of the giftto the donee in the manner required by the Mohamedan law.
It seems to suit the defendant’s immediate purpose to invoke theMohamedan law. In other circumstances, there can be little doubthe would as vehemently have called in aid the Roman-Dutch law. Suchis the good fortune that attends some Muslim donors and donees, and
' 11941) 1°. -Y. L. 11. t ”i.
SOERTSZ J.—Aliya Marikar Abuthahir v. Aliya Marikar Mohammed Sally. 201
persons claiming through them ! They have the choice of two systemsof Jaw to suit the changing occasion and, what is more, they appearto have an even change either way.
The learned trial Judge held against the defendant. He found thatthe case was clearly within the rule laid down in the opinion given by theJudicial Committee of the Privy Council in Weerasekere v. Pieris andthat the deed of gift is valid.
The appeal is from that order. Counsel for the appellant submits thatin view of the interpretation put upon the opinion of the Privy Councilby the Divisional Bench in the case of Sultan v. Pieris, the rule laid downin that opinion has no application to this case.
We must, therefore, examine the cases of Weerasekere v. Pieris andSultan v. Pieris for ourselves. In the former case, a deed of gift in termsvery similar to those of the gift in this case came up for consideration.There, too, the donor reserved to himself the right to cancel and revokethe gift and to deal with the property as he thought fit, as if the deed ofgift had not been executed. He reserved to himself the right to takethe rents and profits of the property gifted during his lifetime, anddeclared that “the same shall go to and be possessed ” by the doneeafter his death. He also subjected the gift to a fidei commissum.The trial Judge held that the gift was valid and gave judgment accordingly.
On appeal, Macdonell C.J. and Garvin J. reversed that finding. Theyheld that the gift was obnoxious to the Mohamedan law because nopossession of the property gifted was intended to be given or was, in fact,given to the donee inasmuch as the donor had reserved to himself a life-interest. They took the view that as the first part of the deed purportedto constitute a deed inter vivos, the Mohamedan law must be appliedthereto, and as possession of the premises was not taken by the donee inthe donor’s lifetime, the gift was offensive to the Mohamedan law.The failure of the gift, they said, resulted in the failure of the fidei com-',nissum based upon it.
As has been repeatedly pointed out, there are certain essentia] re-quisites for the validity of a Mohamedan law gift or hiba as it is called.There must co-exist (a) a signification on the part of the donor of hiswillingness to make to the donee an immediate and unconditionaltransfer, without consideration, of all the donor’s ownership of or of allhis rights in an existing and specified thing; (b) an acceptance by thedonee of the gift so signified; (c) as complete a delivery of possessionas it is possible for the donor to give to the donee. (See Tyabji 1919Ed., p. 365.)
It is difficult to understand why the learned Judges here, in dealingwith Weerasekere v. Pieris on appeal, singled out the requisite in regard todelivery of possession, and made that the crucial test of validity. A giftinvolving a fidei commissum is not absolute and is, so far as Mohamedanlaw is concerned, a contradiction in terms. But the judgments of thisCourt in Weerasekere v. Pieris suggest that effect can be given to sucha condition under the Mohamedan law if there is “ an otherwise validgift ” as known to that law. Perhaps, the phrase “ an otherwise validgift ” affords a clue to the reasoning in those judgments which appearsto be as follows:—A fidei commissum offends against the strict Mohamedan
202 SOERTSZ J.—Aliya Marikar Abuthahir v. Aliya Marikar Mohammed Sally.
law of gifts; but the Mohamedan inhabitants resident in this Islandhave “ absorbed ” the principle of fidei commissum “ into their system ”of gifts, and have evolved a new kind of gift sanctioned by custom;therefore, what remains to consider is the sole question whether there is animmediate gift accompanied by immediate possession.
But if I may say so with respect, this is to beg the question. Itassumes that a new Muslim gift had become so sanctioned by custom asto have acquired the force of law.
There does not, however, seem to be any justification for that as-sumption. The evolution of customary law is not based on any elementsof deliberate will and consent, but on what Ulpian calls the “ tacitusconsensus populi longa consuetudine inveteratus ”. That cannot besaid—having regard to the known facts—of the way in which Muslimshere charged their gifts with fidei commissa. If it is at all possibleto say that a new kind of gift involving fidei commissa had been absorbedby Muslims into their system of law, a similar claim can be made withas much force in regard to gifts reserving usufructs. Such gifts weknow are no less numerous than those containing fidei commissa. Thethree deeds in these three cases themselves, I mean in Weerasekere v.Pieris, in Sultan r>. Pieris and in the present case, are three such instances.
But it is this very reservation of a usufruct in the case of Weerasekere v.Pieris that Macdonell C.J. and Garvin J. employed to defeat that deed.They condemned a gift which could not possibly have been intendedto be a Muslim gift simply because it was not a Muslim gift. Analysedto its first logical basis, their finding meant that a Muslim could notmake any gift other than the one known to the Mohamedan law, butthey reluctantly conceded the exception of the “ otherwise valid gift ”with a fidei commissum imposed as something sanctioned by custom.The true position, however, appears to be that it was not at all a case ofMuslims absorbing any other kind of gift into their system of law and soevolving a new form of gift, but of their making gifts, some of which wereor purported to be in conformity with their law, while others were orpurported to be in conformity with the general law of the land. Effect isgiven to the latter not because, as was supposed by Macdonell C.J., aMuslim donor has manifested a sufficiently clear intention to contracthimself out of the Muslim law, nor merely because he has made manifestthat his intention is to address himself to making such a gift as is knownto the general law, but because he has, in fact, made a gift that can begiven effect to under that law. For example, suppose a Muslim donorhas made a gift in which he stipulates that the donee shall hold theproperty gifted “ under the bond of fidei commissum ” but fails to designatebeneficiaries ; in such a case, it may reasonably be said that the intentionof the donor is to create a fidei commissum, but that does not mean thatthe Mohamedan law is ousted. The prohibition will, in that event,in the words of Bertram C.J., be treated as brutum julmen, and the deedwill be held valid or invalid according as there are present, or are notpresent, the essential requisites of a Muslim gift. It is for this reasonthat, in the opinion they gave, their Lordships are careful to say that“ they are of opinion that the father did not intend to make to the son
SOERTSZ J.—Aliya Marikar Abuthahir u. Aliya Marikar Mohammed Sally. 203
such a gift inter vivos as is recognized in Mohamedan law as necessitatingthe donee taking possession of the subject-matter, but that the fatherintended to create and that he did create a valid fidei commissum
This view is supported by the judgment of that eminent District Judgeof Colombo, Judge Berwick. The judgment I refer to is reported inGrenier’s Appeal Reports, Part 2 (1873) (D. C. cases) at p. 28. The judg-ment was affirmed on appeal by this Court for the reasons given by theDistrict Judge. He found that the deed in that case which was a deed ofgift between Muslims containing a fidei commissum is_valid. The con-tention advanced against that deed was that the condition against aliena-tion involved in. the fidei commissum was obnoxious to the Mohamedanlaw ; that the condition must, therefore, be disregarded and theproperty held to have vested absolutely in the donee. Berwick D.J.disposed of that contention in a few words—He said “ the clause inquestion would be valid by the ordinary law of Ceylon and must, therefore,be held valid in this case, however the Mohamedan law may vary in thisregard in distant parts of the world ”.
There was no allusion whatever to a new kind of Muslim gift whichhad “ absorbed ” the principle of fidei commissum. Nor was therereference to any such thing in any of the later cases before the suggestionwas made in Weerasekere v. Pieris.
There is not one word in the Privy Council opinion to suggest such aview. There is in the opinion delivered by the Privy Council a passagethat is parallel to the dictum quoted from the judgment of Berwick
J. Their Lordships said “ the common law of Ceylon is the Roman-Dutch Law …. under that law donations involving fidei com-missa are well known and recognized transactions ”. This is, clearly,the statement of Berwick D.J. that “ the clause in question is validby the ordinary law of Ceylon,” in ampler form. Indeed, it is no ex-aggeration to say that Berwick D.J.’s judgment contains in germ theprinciple we find fully developed in the opinion delivered by thir Lord-ships of the Privy Council in Weerasekere v. Pieris. If the judgment ofBerwick D.J. had been carried to its logical conclusion we should havesteered clear of all difficulties. But, unfortunately, while the letter of itwas observed the spirit was either not appreciated or was ignored.Thereafter, Muslim donations containing fidei commissa were invariablyrecognized as valid, but Muslim donations in which the donor reserved alife-interest or a usufruct were frowned upon and nearly always rejectedon the ground that such a reservation offended against the requirementof the Mohamedan law that a gift should be accompanied by immediateseisin of its subject-matter. If I may say so, this was an illogical attitude.If a gift between Muslims that contained a fidei commissum is a valid gift,although it is inconsistent with the Mohamedan law, it must follow thata Muslim gift reserving a life-interest to the donor is also valid. The onlydifference between the two is that the former violates only one essentialrequisite of a Mohamedan law gift namely, the requisite of an absoluteand unconditional transfer of ownership, while the latter violates. twoessential requisites, the one just mentioned and also the requisite ofimmediate seisin. But it cannot be pretended that that is sound reasonfor recognizing the one and rejecting the other. If, as Berwick D.J.
204 SOERTSZ J.—Aliya MaHkar Abuthahir v. Aliya Martkar Mohammed Sally.
pointed out, the clause imposing the fidei commissum is valid because it isvalid by the ordinary law of Ceylon, for the same reason must a clausereserving a usufruct be valid.
The inconsistency of view undoubtedly arises from the fallaciousassumption that a gift qua gift between Muslims resident in Ceylon muststand or fall by the Mohamedan law. That was precisely the fallacyexposed by the Privy Council.
In the Privy Council, their Lordships quite clearly disapproved themethod of interpretation the Judges here had adopted. They said“ it was contended, on behalf of the respondent, that inasmuch as theterms of the first part of the deed purported to constitute a gift inter vivosbetween Muslims, the Mohamedan 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 italso failed. Their Lordships are not able to adopt this contention of therespondent, and upon the true construction of the deed, having regardto all its terms, they are of opinion that the father did not intend to maketo the son such a gift inter vivos as is recognized in Mohamedan law asnecessitating the donee taking possession of the subject-matter duringthe lifetime of the donor, but that the father intended to create andthat he did create a valid fidei commissum, such as is recognized byRoman-Dutch law.” But when the case of Sultan v. Pieris came beforethe Divisional Bench, the Judges resorted once again to the method ofconstruction that had been expressly condemned by their Lordships.They could not, of course in view of the opinion expressed by the PrivyCouncil, consider as preliminary questions, as they had done in their judg-ments which were reversed by the Privy Council,—
whether there Was a gift inter vivos—regardless of the question
whether that gift was intended to take effect in praesenti or
in futuro.
whether actual possession of the property gifted had been delivered
to the donee.
They sought to surmount that difficulty by proceeding to examine thedeed to ascertain, by way of a preliminary step, whether there was a giftinter vivos intended to take effect in praesenti or in. futuro with a view torejecting the deed if it was a gift in praesenti unaccompanied by actualdelivery of possession. In other words, they interpreted the opinionof the Privy Council as limited to gifts inter vivos and in futuro forGarvin J. says “ the effect of their Lordships’ decision …. isthat where it appears upon the construction of the deed as a whole thatthe intention of the donor is not to make an immediate gift hut a gift to takeeffect after his death, there is not such a gift as is understood by Muslimlaw and the intention of the donor must if possible be given effect to underthe general law ”.
I cannot find that their Lordships said anything of the kind in the wholecourse of their opinion, nor can I find any such statement implied inanything they said. They make no reference whatever to gifts intendedto take effect immediately as contrasted with gifts to take effect after thedonor’s death.
SOERTSZ J.—Aliya Murikar Abuthahir v. Aliya Marikar Mohammed Sally. 205
Garvin J. is obviously referring to that part of their Lordships’ opinionin which they say “ 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 …. and it was
only after his death the premises were to go and be possessed by the son ”.And again “ it was never intended that the father should part with theproperty in …. the premises during his lifetime
But their Lordships made those observations in the course of examiningali the terms of the deed to see whether there could be said to be a giftvalid according to Mohamedan law. They pointed out several tactswhich are inconsistent with the Mohamedan law conception of a gift,for instance the fact that there is no such transfer, of the donor’s propertyin the subject-matter of the gift as is required by Mohamedan law, for thereservation of the power to cancel and revoke and the provisions thatthe premises would pass to the donee completely only after the deathof the donor are inconsistent with the requirement of an immediate andabsolute transfer of all the donor’s rights in and to the property gifted.They next drew attention to the reservation of the life-interest whichis likewise inconsistent with the requirement of immediate seisin.Thirdly, they referred to the prohibition against alienation which whileoffending against the requirement that a gift should be unconditionalwas framed in terms that were adequate to create a fidei commissum.such as is known to and is recognized by the general law of the land.
Their Lordships were applying the test they proposed as the true test,namely, a construction of the deed having regard to all its terms. Thatwas the ratio decidendi in Weerasekere v. Pieris. But in Sultan v. Pieris,the Judges preferred to assume that the ratio decidendi was that the giftin that case was not a gift in praesenti but in futuro, in order, as I haveindicated, to escape from the authoritativeness of the opinion of thePrivy Council.
A summary—not intended to be exhaustive—will show what appearstc be the true position in the light of the opinion given in the PrivyCouncil. Their Lordships said that in construing a deed of gift to whichMuslims are parties, regard should be had to all the terms of the deed—“ all the terms of the deed must be taken into consideration ” as is done inthe case of any other deed. If, upon such a construction, the deedconforms to the essentials of a Muslim gift, effect will of course be givento it. The fact that such a deed is a good deed according to the generallaw, as well, is coincidence. It does not make the deed any better or anyworse. If, however, upon such a construction, it is found that althoughthe parties to it are Muslims, the deed is not in compliance with Moha-medan law, and there is nothing more, the deed fails. But if there areterms in it inconsistent with Mohamedan law, but known to and recog-nized by the general law, the inference is that it was not intended thatthere should be a valid gift as understood in the Mohamedan law.but that the donor intended to produce the particular transaction knownto and recognized by the general law, and if he has produced it, effectwill be given to the deed under that law.
If this test is applied to the deed in Sultan v. Pieris, there can be onlyone answer in regard to its validity, and that is that the donor there like43/17
206 SOERTSZ J.—Aliya Marikar Abuthahir v. Aliya Marikar Mohammed Sally.
the donor in Weerasekere v. Pieris “ did not intend to make to the■ donee such a gift inter vivos as is recognized by the Mohamedan lawas necessitating the donee taking possession of the subject-matter duringthe lifetime of the donor, but that he intended to make and did makesuch a gift as is known to Roman-Dutch law ” as a gift with a usufructreserved to the; donor and a fidei commissum conditionale superimposed,and that the deed is valid under that law. Applying the same test to thedeed in this case, it is as clear that the donor intended to create and didcreate a . valid fidei commissum, and -that he did intend to reserve anddid reserve life-interests for himself and his wife, features inconsistentwith the gift of the Mohamedan law, but frequently appearing in giftsunder the Roman-Dutch law.
In concluding their opinion their Lordships referred to OrdinanceNo. 10 of 1931 which is “ an Ordinance to define the law relating toMuslim intestate succession, donations, and charitable trusts or Wakfs ”and they drew attention in particular to sections 3 and 4 of that Ordinance.Those sections are as follows : —
For the purpose of avoiding and removing all doubts it is hereby
declared that the law applicable to donations not involving fideicommissa, usufructs and trusts and made by Muslims domi-ciled in the Island or owning immovable property in the Island,shall be the Muslim law governing the sect to which the donorbelongs. Provided that no deed of donation ?shall be deemedto be irrevocable' unless it is so stated in the deed, and thedelivery of the deed to the donee shall be accepted as evidenceof delivery of possession of the movable or immovable propertydonated by the deed.
“ It is hereby further declared that principles of law prevailing in the
maritime provinces shall apply to all donations, other than thoseto which the Muslim law is made applicable by section 3.”
Their Lordships then went on to say that they do not base theirdecision upon the provisions of the Ordinance “ because in their opinionthat Ordinance cannot govern the present case as it did not come intoeffect until June 17, 1931, and cannot be said to be retrospective in effectThe reference to these two sections of the Ordinance, and the declarationthat their Lordships do not base their decision upon them-because theyhave no retrospective force are significant for, upon the interpretationsubmitted in this judgment, the first sentence in section 3 is, in effect,an anticipation by the Legislature of the rule their Lordships laid down,
For these' reasons we hold that—
Sultan v. Pieris was wrongly decided and must be overruled.
-Ponniah v. Jameel, Casiechetty v. Mohamed Saleem, and Abdul
Caffoor v. Packir Saibo, based as they are on Sultan v. Pieris,were wrongly decided and must be overruled.
Kalender TJmrha v. Marikar was in the result correctly decided but
not for the reasons given in the judgment in that case.
The King v. Weerasamy.
207
,(4) Kudhoos v. Junoos and Ismail v. Mohamed are. approved.-
The trial Judge in the present case was right when he held that thedeed of gift in favour of the defendant is within the rule laiddown by the Privy Council in Weerasekere v. Pieris.
This appeal, therefore, fails and it is dismissed with costs.
Howard C.J.—I agree.
Moseley S.P.J —I agree.
Heakne J.—I agree.
Wijeyewardene J.—I agree.
Appeal dismissed.