008-NLR-NLR-V-42-CASIE-CHETTY-v.-MOHAMED-SALEEM-et-al.pdf
1940
KEUNEMAN J.—Caste Chetty v. Mohamed Saleem.. 41
Present: Keuneman and Cannon JJ.
CASIE CHETTY v. MOHAMED SALEEM et al.
320—D. C. Colombo, 820.
Muslim law—Deed of gift—Immediate transfer of dominium—Possession notgiven—Validity of gift—Law applicable.
Where a deed of gift by a Muslim manifests an intention to make animmediate transfer of the dominium to the donee, the deed is governed bythe Muslim Law.
In such a case, if possession of the subject-matter of the gift is not givenby the donor to the donee, the gift fails as an essential condition underthe Muslim Law has not been complied with.
Sultan v. Petris (35 N. L. R. 57) followed ; Weeresekere v. Peiris(34 N. L. R. 281) explained.
^^PPEAL from a judgment of the District Judge of Colombo
H. V. Perera, K.C. (with him Tillainathan), for plaintiff, appellant.
S. A. Marikar (with him M. M. K. Subramaniam), for fourth and fifthdefendants, respondents.
Cur. adv. vult.
October 10, 1940. Keuneman J.—
In this case the facts are as follows :—Ashiya Umma was entitled totwo contiguous lots of land depicted in plan P 3. By her deed 4 D 1, ofJune 5, 1930, she purported by way of gift “ to grant, convey, assign,transfer, set over, and assure ” the premises in question to the second tofourth defendants “as a gift inter vivos absolute and irrevocable ”. Thegift was made subject to a condition, which was fully set out in thehabendum clause, namely, “ that I the said Ashiya Umma shall duringmy lifetime have the right to take and enjoy the rents, profits, issues,and income of the said premises”. The only question discussed in thecase is the validity of this deed of gift.
Subsequently, Ashiya Umma, by her deed P 1 of August 30, 1930,purported to declare that the said deed 4 D 1 was null and void, and torevoke, cancel, annul, and make void the said deed. It was not arguedin this case that the said revocation had any legal effect.
On the same day, by deed P 2, Ashiya Umma gifted to the first defend-ant the divided allotment of land marked “ A ” in plan P 3, and morefully described in the schedule to the plaint. P 2 does not contain anyreservation of a life-interest in favour of the donor.
Thereafter, the first defendant mortgaged the premises donated to him,the mortgage bond was sued upon, and the premises in question were soldin execution and purchased by the plaintiff, who obtained conveyance P 4dated July 27, 1936.
Plaintiff in this action sued for declaration of title, ejectment, anddamages. In his judgment, the learned District Judge dismissed hisaction, and the plaintiff appeals.
As I have already indicated, the only question which arises for deter-mination in this appeal concerns the validity of the deed 4 D 1. Theparties to this deed were all Muslims, and once again the question arisesas to whether Muslim law or the Roman-Dutch law is applicable in thiscase.
42KEUNEMAN J.—Casie Chetty v. Mohamed Saleem.
It has been strenuously argued for the appellant that the deed 4 D 1discloses an intention on the part of the donor to make an immediatetransfer of the dominium, but that, as possession was not given, the deedfails and is void under Muslim law. I may add that it is not in disputethat the deed purports to make an immediate transfer of the dominium,but reserves to the donor the right of possession. I have examined thedeed and have come to the same conclusion. But Counsel for the respond-ents argued that, in accordance with the decision of the Privy Council inWeerasekere v. Peiris* the gift in this case must be regarded as valid.
With respect, I am of opinion that the facts in this case are differentfrom those in the case decided by their Lordship of the Privy Council.
In the first place, in the case of Weerasekere v. Peiris (supra), the donor,in addition to reserving a life-interest, had purported to impose a fideicommissum on the donee. In this connection their Lordships say: —
“ It was argued on behalf of the plaintiff-appellant that where sucha deed as that under consideration involves a fidei commissum, the lawby which the document is to be construed is the Roman-Dutch Law.and that the whole of the document, and not one part of it only, is tobe construed by Roman-Dutch Law ; that the principles of the Moham-medan Law were to be applied only in the case of 'pure’ donations, asthey were called, made by Muslims in Ceylon ; in other words, todonations not involving fidei commissa.”
With respect, I do not think that their Lordships have given theirdecision on this particular question argued. As will appear later, theirdecision appears to have been based upon a wider principle. But I thinkit is necessary to point out that in the present case no complication arisesby an attempt on the part of the Muslim donor to create a fidei commissum.
The second point of differentiation between the case of Weerasekere v.Peiris (supra) and the present case is brought out in this passage of theirLordships’ judgment: —
“ 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 withthe property in or the possession of the premises during his lifetime, orthat the son' should have any control over or possession of the premisesduring his father’s lifetime. In other words, it was not intended thatthere should be a valid gift as understood in the Mohammedan law ”.(I may add that the italics are mine).
It appears, that, on an interpretation of the whole deed in that case,their Lordships were of opinion, that, neither dominium nor possessionwas intended to pass immediately, and that such a deed was not a validgift as understood by the Mohammedan law. As Macdonell C.J. saysin the later case of Sultan v. Peiris *.
“ In the deed in Weerasekere v. Peiris (supra) …. there .was a ‘ so called gift’ which transferred nothing at all unless and untilthe donor died without having revoked the deed ; until that eventhappened nothing could vest in the donee.”
1 34 N. L. R. 281.
1 35 X. L. if. 57.
KEUNEMAN J.—Casie Chetty -v. Mohamed Saleem.43
Macdonell C.J. contrasts this with “ an immediate and irrevocable giftof the legal title, that is of the dominium.
Garvin J. in the same case said : —
“ The effect of their Lordships decision, as I conceive it, is thatwhere it appears upon a construction of the deed as a whole that theintention of the donor is1 not to make an immediate gift, but a gift totake effect after his death, there is not such a gift as understood by theMuslim law, and the intention of the donor must if possible, be giveneffect to under the general law.”
Garvin J. examined the language of the deed in Weerasekere v. Peiris{supra), and pointed out that the construction that it was a deed to takeeffect, not immediately, but on the death of the donor, was inherent inthe terms of the deed.
In Sultan v. Peiris {supra), it was held that where a Muslim, by a deedof gift inter vivos intended to take effect immediately, reserved “ the fulland unfettered right of residing in any of the premises hereby gifted, andof taking and enjoying the rents and profits of all the said allotments,without interference of the said donees or either of them ”, such a deedwas governed by the Muslim law and was not valid, because there was nodelivery of possession of the subject-matter of the gift. This is a decisionof four Judges, and is binding on us. In my opinion, this decision is notin conflict with the decision in Weerasekere v. Peiris {supra).
Sultan i). Peiris {supra) was followed in Ponniah v. Jameel.' In hisjudgment in the latter case Macdonnell C.J. adopts the language I havealready quoted of Garvin J. in Sultan v. Peiris {supra) and adds :—
“ If I may paraphrase …. those words of Garvin J., Iwould say that the Muslim law only recognizes as gifts those giftspurporting to be made in praesenti from one Muslim during his life toanother Muslim, and that it does not recognize—indeed knows nothingof—gifts which are to take effect, if at all, after the death of the donor.”
The deed in that.case inter alia purported to create a fidei commissum,but in view of the fact that the donor intended to make a valid gift intervivos to take effect at once as recognized by the Muslim law, it was heldthat the deed was governed by the Muslim law, but failed as, under it,possession did not pass and was retained by the donor. Macdonnell C.J.emphasised that “ parties can mutually stipulate that certain incidentsof the contract are to be good by the law of a particular place, but thevalidity of the contract must- be governed by the law to which they arethemselves subject ”. He also repudiated the correctness of “ the'suggestion that a Muslim ‘ can contract himself out of the Muslim law asto gifts altogether ’, a notion to which currency was given by somespeculations—obiter—in my judgment in Sultan v. Peiris (supra) ”.
The next case to which we have been referred is that of Kalenderummav. Marikar ‘ Fernando A.J. carefully examined the decisions in Weera-sekere v. Peiris (supra), Sultan v. Peiris (supra)-, and Ponniah v. Jameel
1 38 A*. L. Ii. 96.
1 38 N. L. R. 271.
44KEUNEMAN J.—Casie Chetty v. Mohamed Saleem.
(Supra), and expressly adopted the test laid down by Garvin J. in Sultanv. Peiris (supra) ..as explained by Macdonell C.J. in Ponniah v. Jameel(supra). However,' in setting out that principle, he used language whichhas led to a misconception. He said : —
“ In this case, on a construction of the deed as a whole, it is clearthat the donor did not intend to part with the possession of the premisesat the time of the gift, and that the deed, which is therefore notgoverned by Muslim law, can be given effect to under the Roman-Dutch Law. ”
I have pointed out that the substance of the decisions in those twocases was that where there was no intention to grant dominium at once,but the property was to pass at a later date, the Muslim Law had noknowledge of such a gift, but that the position was different where therewas an immediate transfer of dominium with a reservation to the donorof the right of possession. I think that the use of the term ‘ possession ’rather than ‘ property ’ or ‘ dominium ’ by Fernando A.J. was madeper incuriam. It is quite clear in any event that Fernando A.J. was nottrying to distinguish the case of Sultan v. Peiris (supra), but on thecontrary was expressly basing his decision on that case. Fernando A.J.also clearly sets out the argument addressed to him, that, in the case hewas deciding, the deed disclosed an intention on the part of the donor“ not to make an immediate gift, but a gift to take effect after his death ”.
The last case cited to us by Counsel for the respondent is that ofKudhoos v. Joonoos.1 Wijeyewardene J. examined the language of thedecision of their Lordships of the Privy Council in Weerasekere v. Peiris(supra). He also set out the terms of the deed in that case as follows : —
“ The deed purported to transfer the property as ‘ a gift inter vivosabsolute and irrevocable ’ subject to—
“ (a) a reservation to the donor of the right of taking and enjoyingthe rents and income of the property ;
“ (b) a burden of fidei commissum ;
“ (c) a right in the donor to revoke the gift.”
If I may say so, with deference, this statement does not take intoaccount the vital distinction drawn by the Judges in Sultan v. Peiris(supra), namely, that in the deed constructed by the Privy Council, neitherdominium nor possession was to pass immediately, but only on the deathof the donor.
Wijeyewardene J. continued : —“ The deed P 1 is a deed of gift betweenMuslims subject to a reservation of a life-interest in favour of the donor,and creating a fidei commissum in favour of the children of the donee. Iam unable to see any indication in the deed of the donor’s intention tomake a gift inter vivos as known to the Muslim law, and I have no doubtthat the donee intended to create, and did in fact create a valid fideicommissum as known to the Roman-Dutch law
After mentioning the later cases of Sultan v. Peiris (supra) and Ponniahv. Jameel (supra), he continued.—“ It is not possible to reconcile some of
■ 41 N. L. R. 261.
Perera v. Punchi Appuhamy.45
the views expressed in the two subsequent decisiohs of this Court ..
.. with the ruling of the Privy Council, but I am bound to follow the
decision of the Privy Council
With respect, I am of opiniofi that there is no conflict between thedecision in Weerasekere v. Peiris (supra) and that in Sultan v. Peiris(supra). While we are undoubtedly bound by the decision of the PrivyCouncil in cases where that decision applies, it is equally clear that we arebound by the decision of the four Judges of the Supreme Court in caseswhere their decision is in point, unless and until that decision is over- -ruled by a higher tribunal. I do not think it is open to us to canvass thecorrectness of the latter decision. We are accordingly constrained tohold that, in the case of Muslims, where the deed of gift manifests anintention to make an immediate transfer-of the'dominium, the Muslimlaw is applicable.
In such a case, if possession is not given by the donor to the donee, oneof the conditions essential under the Muslim law has not been compliedwith, and the deed of gift is invalid.
It follows from this that the deed 4 D 1 is invalid and of no effect at law,and the respondents’ claim thereunder fails. I set aside the judgmentappealed against and enter judgment for the plaintiff as prayed for withcosts in both Courts.
Cannon J.—I agree.
Appeal allowed.