CADER v. PITCHA

059-NLR-NLR-V-19-CADER-v.-PITCHA.pdf


1919.
( 246 )
Present: Wood Renton C.J. and De Sampayo J.
CADER v. PITCHA.
383—D. G. Kurunegala, 5,447.
Muhammadan law—Donation by father to children—Power of revocation.
It is competent under the Muhammadan law applicable to Ceylon(Shafei law) for a father to revoke a donation to his son without thedecree of' a Court of law. The right to revoke the gift is not limitedby the condition that the property is wanted for the maintenance
■ of the children.
rp HE facts are set out in the judgment of De Sampayo J.
H. J. C. Pereira and F. M. de Saram, for plaintiff, appellant.
Bawa, K. C., J. W. de Silva, and M. W.. H.. de Silva, for addeddefendants, respondents.
Cur. adv. vult.
October 20, 1916. Wood Renton C.J.—1
My brother De Sampayo has fully stated the facts in this case,and there is no need for me to recapitulate them.. The point fordetermination is whether under the Shafei law applicable to Muham-madans in this Colony it is competent for a father to revoke -adonation to his son without the decree of a Court of law and withoutany reason for the revocation. The local Code of 1806 throws nolight on the question. But with one exception, to which I will referin a moment, all the recognized text books on Muhammadan lawsupport an affirmative answer to it. Most of the schools of. Muham-madan law assimilate gifts to alms (see Nauphal’s Droit Musulman,/ La Propriete 1). But to this principle the Shafei law presents anexception in the case of donations by a father to a son, providedthat the donee has not irrevocably disposed of the object received(MacNaghten's Muhammadan Law,2 Amir Ali’s Muhammadan Law,3and De Tornauw Le Droit Musulman4). Vandenberg in hisMinhadj At Talibins—a treatise on the Muhammadan law as itprevailed in the Indian Archipelago—discusses the whole subjectin the same sense. It results from these authorities that such adonation as we have here to deal with can be revoked by any aptwords, although not by implication from subsequent dealings by.thefather with the subject-matter of the donation. There is no tracein any of the writers above mentioned'of any requirement that the
Pages 112 et seq.8 Vol. /., p. 190.
Pages 202 and 203.4 Pvge 182.
* Vol. II., pp. 193 to 195.
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donor should have recourse to a legal tribunal, or that any just cause 1916.for the revocation should be assigned, or that any other conditionthan that the property donated should still be at the donee’s disposal Renton C.J.-has been attached by Shafei law to the exercise of the donor'b right. Coder vThe appellant’s counsel drew our attention, however, to1 a passage Pitehain the Hedaya,1 in which the meaning of the Shafei rule is stated to bethat a father may retract a gift to his son when he wants it for themaintenance of the son," and this passage is oited by Wilson2 inthe notes to section 316 of his treatise, which deals with the revoca-tion of gifts. But it must be remembered, and Sir Boland Wilsonis careful to point out,9 that such works as the Hedaya are not so muchlaw books in the strict sense of the term as discussions on Muham-madan moral philosophy and theology. I am very far from beingsatisfied that the clause in the citation on which the appellant’scounsel relies is anything more than an illustration of one class ofcases, namely, where the subject-matter of a donation is required for'the maintenance of the donee, in which the power of revocationcould not rightly be withheld. The Hedaya itself,4 a few lines'above the passage in question, expressly points out that the revoca-bility of donations by a father to a son results from the father’em-power over the property of his son.®
On these grounds I would dismiss this appeal with costs.
De Sampayo J.—
This case raises an important question of Muhammadan law. Theplaintiff is son and one of five children of Packir Meedin by one wife;and the added defendants are Packir Meedin’s children by anotherwife. Packir Meedin, who was entitled to an undivided one-third*share of certain lands, by deed dated November 28, 1902, gifted halfof the share to the plaintiff and the other half to the plaintiff’sbrothers and sisters, who were all then minors, but by deed dated1January 8, 1909, he purported to revoke the gift, and by anotherdeed of the same date gifted the whole one-third share- to- the addeddefendants. The plaintiff has brought this action to vindicate half:of one-third share gifted to him, and the principal issues that ariseare whether the gift was valid, and, if so, whether it was validlyrevoked.
The parties are Muhammadans resident in Kurunegala. Thedeed of gift is in Sinhalese, and has been drawn and attested by a .Sinhalese notary practising in Kurunegala, and has probably on-that account taken the form, in 6ome respects, of a Kandyan deed oPgift for maintenance. It recited that the gift was made in considera-tion of the love and affection the donor bore to his children, the;donees, “ for the purpose of my obtaining succour and- assistance*
1 Vol. III., p. 801.3 Pages 28 and- 47.
3 Digest of Anglo-Muhammadan Law. * Page BOO..
* Wilson's Notes to 8- 3161
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1918.
“-4*
De SampayoJ.
Coder v.Pitcha
from them until I am living in this world, for getting my remainsburied according to custom after my death, and for doing andperforming religious rites and almsgiving for the good of my soul inthe other world,” and it conveyed the property to the doneeB in theabove proportion subject to a life interest in the donor.
The District Judge has held that, the donees being the donor'sminor children, the deed, notwithstanding the reservation of a lifeinterest, constituted a valid gift under the Muhammadan law. Thisappeal has been argued' on the basis of that finding. The onlyquestion debated is whether it was competent for Packir Meedin torevoke the gift. In the deed of revocation the reason stated is thatthe donees failed to render him any assistance whatsoever. If agood and true reason be necessary to be stated for' the purpose ofrevoking a gift, I should find it difficult to hold on the facts that thereason mentioned in the deed was well founded. But in the viewT take of the Muhammadan law on this subject, it is unnecessary todecide that question of fact.
There is no available local decision on the subject of revocation ofdeeds' of gifts among Muhammadans in Ceylon. The argument has.therefore, proceeded on what may be gathered from the text bookson the Muhammadan law as prevailing in India and other Muham-madan countries. It is conceded that by the law applicable to theShafei sect, to which Ceylon Muhammadans belong, a gift to children,as distinguished from one to grangers, may be revoked by the donorhimself. This is admittedly subject to certain exceptions, which arenot relevant to this case, and need not therefore be noticed. Agift to persons other than children cannot be revoked, except bydecree of the Kazee or Judge, with the consent of the donor. It iscontended on behalf of the plaintiff that even in the case of a gift tochildren the donor may not revoke it by his own act, except when hewants it for their maintenance. Such a condition is not stated in anyof the text books, such as Amir Ali’s Muhammadan Law, Wilson’sAnglo-Muhammadan Law, Tyabji’s Muhammadan Law. The wholeargument is founded on a somewhat obscure passage in 3 Hedaya,.y).301, where it is said: “ With respect to the tradition of the Prophetquoted by Shafei, the meaning of it is that the donor is not himseLfempowered to retract his gift, as this must be done by decree of theKazee with the consent of the donor, excepting in the case of a father,who is himself competent- to retract a gift to his son when he wantsit for the maintenance of the son.” It is not at all clear that theselast words constitute an invariable condition for the retraction ofthe gift by the father. Considering that the law as to the com-petency to revoke is founded, as appears from the earlier part of thesame passage, on the principle that “ the conveyance of propertyfrom a father to the son can never be complete,” and that ” thefather has a power over the property of his son,”.it seems to me thatthe words in question do not lay down a condition,, but state an
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instance. The tradition of the Prophet himself, when he said, “ Letnot a donor retract his gift, but let a father, if he please, retract agift he may have made to his son,1' is plain and unconditional,and if any qualification was introduced by any school of doctrine,one would expect the recognized commentaries on the text to stateit in equally plain language. On the other hand, the form ofrevocation mentioned in the commentaries indicates that therevocation in the case of a gift by a father to his son is effected bythe act of the father himself without the intervention of the Court.Thus, in Amir Ali, Vol. 1., p. 126, it is stated: “ The revocation must* be effected in appropriate terms, such as ‘ I have*revoked the gift,’ or‘ restored it to my own property,’ or ‘ I have cancelled or dissolvedit.’ ” Vandenberg’s Minhadj is an exposition of the Muhammadanlaw according to the Shafei school, and at page 234 of Howard’stranslation the power of the father or ancestor to revoke a gift /isstated with certain qualifications, but the condition contended forin this case is not one of these qualifications. He, too, says that therevocation should be efEected by some such words as “ I revoke mygift,” or " I claim back the object,” or “ I wish the thing to becomemy property again,” or ” I wish to put an end to the donation.”Mr. H. J. C. Pereira, who ably argued the case for plaintiff, suggestedthat these passages had reference to the form in which the donorwould express to the Kazee his consent to the revocation. But I donot think that either the language or the context in which it occurssupports the suggestion. 1
In my judgment, not only is the intervention of the Court un-necessary for the purpose of revocation in the particular case of agift by a father to his children, but the power of the father to revokethe gift is not limited by the condition that the property is wantedfor the maintenance of the children. I accordingly think that theappeal fails, and should be dismissed with costs.
1916.
De SampayctJ. .
Coder v.1*itch a
Appeal dismissed.