IDROOS SATHUK , Appellant, and SITTIE LEYAUDEEN et al , Respondent

122-NLR-NLR-V-51-IDROOS-SATHUK-Appellant-and-SITTIE-LEYAUDEEN-et-al-Respondent.pdf


I’ULLE J'.—Idroos Sathuk v. Sittie Leyaudeen509
1950Present: Dias S.P.J. and Puile J.
JDROOS SATHUK, Appellant, andSITT1E LEYAUDEEN, el al.} Respondents
S. C. 374—I). C. Colombo, 2,997
.Muslim Law—Fideicommissutn created by deed—Donation to minors—Capacity ofmother to accept gift—Applicability of Roman-Dutch law—Muslim widow inCeylon—Natural guardian of her minor children.
Where a fidoicommissum is created by a dood of gift betweon Muslimsa Muslim widow is entitled, as natural guardian, to accept the gift for and onbehalf of her minor children, when they are the donees. In such a c:vae, thevalidity of the acceptance luts to bo determined solely within the frameworkof the Roman-Dutch Low.
The principles of Muslim Law which do not recognise a widow as thenatural guardian of her minor children are not applicable to Muslims in Ceylon.A Muslim widow is thercforo entitled in Ceylon to accept a gift on bohalf ofher minor children.
.Aj’PEAI. from a judgment of the District Court, Colombo.
By deed of gift PI one Saffra Umraa created a fideicommissum infavour of the cltildren of the donees. The donees were the minorchildren of her deceased son. The gift was accepted on behalf of thedoneos by their mother, Fatheela Umma. The validity of this acceptancewas attacked on the ground that, the parties to the deed of gift beingMuslims. Fatheela Umrua, as the mother of the donees, did not have thecapacity to accept the gift on behalf of her children.
It was not disputed that Saffra Umma intended to create and didcreate a valid fideicoramissum such as is recognised by the Homan*Dutch law.
E. B, Wikramam-jahe, K.C., with <S. Cauagarayer and M. A. M.Hussein, for tho defendant appellant.
//. V. Perera, K.C., with Ii. W. Jayeivardene and G. F. StthukavaUr,for tho plaintiffs respondents.
Cur, adv. vult.
July 26, 1950. Pullk J.—
The appellant in this case is the defendant against whom the plaintiffshave obtained a decree declaring them entitled to the premises describedin the schedule to the plaint and for ejectment and damages.
The parties are Muslims. The plaintiffs based their title on a deedof gift No. 1428 of .June 28, 1927, marked PI, executed in theirfavour by one Saffra Umma. Tim defendant relied on a later deed ofgift No. 1483 of February 4, 1928, marked Dl, by which Saffra Ummaafter purporting to revoke deed No. 1428 gifted the same premises tothe defendant. The only point urged in favour of the appeal was thatthe gift made by Pi was bad for want of a valid acceptance.
510PULLE J.—Idrooe Sathuk v. Sittie Leyaudeen
One Idroos Lebbe Marikar Mohamcd Zain the son of Saffra Ummawas married to Sheka Marikar Fathecla Umma. Their children arethe plaintiffs of whom the first, who is the eldest, was bom onJanuary 4, 1914. At tbe time the deed PI was executed, MohamedZain the father, was dead and the plaintiffs were minors.
By the deed of gift PI Saffra Umma reserved to herself the right toenjoy the rents and profits of the premises during her life time andcreated a juUicommissum in favour of the children of the donees. Therewere other conditions and restrictions to which it is not necessary torefer for the purpose of deciding the question arising on this appeal.The gift was accepted by Fatheola Umma in the following words :—
“ And these presents further witness that I Sheka Marikar Fatheela
Umma who is the mother of the said donees do hereby thankfully
accept the foregoing gift for and od behalf of the said donees who
are all minors
The validity of this acceptance was attacked on the ground that theparties to the deed of gift being Muslims, Fatheela Umma, as the motherof the donees, did not have the capacity to accept the gift on behalfof her children.
It is not disputed that Saffra Umma did not intend to make a giftsuch as is recognised in Muslim Law but that she did, in the words ofthe Privy Council in the case of W eerasekere v. Peiris l, intend to createand that she did create a valid fideicommiasum such as is recognisedby the Roman-Dutch law.
Learned counsel for the appellant contends that to constitute a validdonation acceptance by the donee is essential. Where the donee isa minor it is not every person who is empowered to accept the donationon behalf of the minor. He relics on the cases of Fernando o. Weerakooniand Wellappu v. Mndalihami 3. The former case decided that a minorcannot accept a gift, until at least he attains majority and that a grand-parent and parents, when not also the donors, may accept for the minor.Both cases specifically held that a father who is the donor cannot act inthe dual capacity of donor and acceptor. Reliance was also placedon Cornelia v. Dkamaivardene4 according to which Middleton, J., held,“ that the acceptance of a deed of gift made by a father in favour ofhis minor child by an uncle of the minor on behalf of the minor is nota valid acceptance as not having been an acceptance of a legal or conven-tional guardian The capacity of a legal or natural guardian to acceptis also recognised in Fernando el al. v. Gannangara6 and Silva v. Silva s.It is argued on these authorities that if Fathecla Umma did not at thetime she purported to accept tbe gift come within the description oflegal or natural guardian of her children the gift failed and that thequestion whether she was the natural guardian fell to be determinedby the Muslim and not the general law of the land.
There is undoubtedly authority for the statement that in MuslimLaw a mother is not the natural guardian. See the judgment of Mr.Ameer Ali in the Privy Council case of Imambandi and Others v. Mulsaddi
1 {1923) 24 N. L. R. 281.* (1907) 2 A. 0. R. Xlll.
18N. L. It. 212.* (1900) 3 N. L. R. 6.
* (1903) 6 N. L. R. 233.• (1909) 11 N. L. R. 161.
Pl’LLE <J.—Idroos Sathuk v, tttttie LcyaudeenolT
and Others, (1917-18) Law Reports Indian Appeals 73. Great stresswas laid on the following passage in Minhaj Et Talibin, p. 169 :—
“ A father is the guardian of his children during their minority..In default of the father the guardianship reverts to the father’s father,,and then to a testamentary executor appointed for that purpose bythe father or father’s father, and as a last resort to the Court, which,however, may depute some reliable person as administrator. Amother can never be guardian in her own right, but the father or father’sfather may so appoint her by will
The soundness of the argument urged on behalf of the appellant-rests on-the validity of two propositions :—
That a transaction the efficacy of which depends on the Roman-
Dutch Law ought to be split up into its component parts amithe legality of each part tested in order to ascertain whetheror not it is obnoxious to the personal or religious law of tea-parties to the transaction.
That the entirety of the Muslim Law of guardianship is part of
the personal or religious law applicable to Muslims in Ceylon.
The judgment of the Privy Council in Weerasekere v. Feins 1 is itselfa warning against dividing up a transaction, intended to be governed,by one system of law, into parts and pronouncing against its validitybecause one part docs not survive a test by the application of thepersonal or religious law governing the contracting parties. It is clearthat under the Roman-Dutch Law upon the death of the father themother is vested with the rights of control over the person and propertyof her children, in the absence of special arrangements made by t-hefather in a testamentary disposition. In the present ease there is nosuggestion that any one else besides Fatheela Umma exercised, de facto,the rights of a guardian over her children, On the death of her husband'she was appointed administratrix of his estate. Further in 1933 she-was appointed by Court curator of the estate and guardian of the personsof the minors. I do not see anything intrinsically objectionable, in thesecircumstances, in regarding Fatheela Umma, in the Roman-Dutch Law-sense. as a natural guardian entitled to accept the gift for and on behalfof her minor children.
The subject is not free from difficulty. Difficulties always arisewhen a single transaction falls within the orbits of different systems oflaw. Though not exactly in point I would quote Professor Cheshire whosays in his work on Private International Law (3rd Edition) p. 259,
“ The desideratum of Private International Law is to reduce as far as;possible the number of laws that govern the ordinary dealings of life.The ideal is that a single transaction should be governed by a singlelaw, and though, of course, this is not completely attainable, it is atleast possible and desirable in the matter of capacity I appreciatethat guardianship is perhaps more a matter of status than of capacity1 (1933) 3i N. L. R. SSI.
512
PULLE J.—Jdross Sathuk v. Siltie L&yaudeen
but even here judicial opinion does not favour tho rigid application ofthe lex domicilii. Lord Greene, M.R.,is quoted at p. 256 (ib.) as saying:—
“ It would be wrong to say that for all purposes the law of thedomicil is necessarily conclusive as to capacity arising from status…. There cannot be any hard and fast rule relating to theapplication the law of the domicil as determining status and capacityfor the purpose of transactions in this country ”.
In my judgment the validity of the acceptance by Fatheela Ummahas to be determined solely within the framework of the Roman-DutchLaw, If she were governed by that law, she would on the facts of thecase be the natural guardian of her children and, therefore.cred
to accept the gift on their behalf
If th« conclusion Triiich I have reached is not correct, it still remainsto bo determined whether the principles of Muslim Law on which theappellant has relied can be regarded as part of the law applicable toMuslims in Ceylon. In the case of Rahiman Lebbe and another v. UssanUmma and others1 Schneider, A.J., said “ The reported coses show thatsince 1862 our Courts have consistently followed the principle that it is:8o much and no more of the Mohammedan Law as has received thesanction of custom in Ceylon that prevails in Ceylon . . . . It istrue the treatises on the Mohammedan Law generally are frequentlyreferred to in our Courts. But this is done only to elucidate someobscure text in our written Mohammedan Law or in corroboratiou of.evidence of local custom. I cannot find a single decision that hasgone to the length of holding that apart from the prevalence of a localcustom Mohammedan Law has any application in Ceylon Ennis, J.,said much to the same effoct. No authority has been cited showingthat a Muslim widow in Ceylon is not regarded as the natural guardianof her minor children.
Learned counsel for the plaintiffs cited the case of In the matter of the.Application of Sego Meera Lebbe Ahamadu Lebbe Marikar for a Writof Habeas Counts8 as authority for the general proposition that what-ever might be the Muslim Law according to the Koran a question ofguardianship has to be determined according to the general law appli-cable to ail inhabitants of the country. In the case cited tho custodyof a Muslim child was claimed both by the father and the maternalgrandmother, the mother being dead. It was held that there was hoMuslim law in force depriving the father of his right to such custodyin preference to all other persons. Dias, J., said the MohammedanLaw on this point, as it is found in books, is mixed up with various consi-derations peculiar to their faith ; and in the absence of evidence to thecontrary, I am inclined to uphold the right of the father as against thegrandmother. It is & rule recognised by all civilised countries andconsonant to natural justice The judgment of Dricberg, J., inJunaid v. Mohideen et al. 9 indicates that the particular ruling that afather is preferred to a grandmother as a guardian has not been followedin numerous cases since the judgment of Wood-Renton, J., in Wappu.Marikar and Ummaniumma4. The principle enunciated by Dias, J.,
1 (1916) 3 C. W. It. 88 at 99.» (/S33) 34 N. L. R. 141.
* (1889-91) 9 S. C. C. 42,* (1912) 14 N. L. It. 225.
In re Batuwantudawe
513
however, remains unaffected. One point, therefore, clearly emergesfrom a consideration of the cases on this point that before Muslim Lawoould be applied there must be a cursus curiae in favour of applyingthat law. • There is no cursus curiae of which I am aware which deprivesa Muslim widow of a preferential right to the custody and guardianshipof her minor children and to be in charge of their property. It wouldindeed be strange if a Muslim widow having the preferential right toadminister her husband’s estate under section 523 of tho Civil ProcedureCode, the title to a part of which estate would vest in her children, isnot to be regarded as their natural guardian.
In the result I find that the appellant is not entitled to have recourseto Muslim Law to defeat the plaintiffs’ claim that Fatheela Umraa wasempowered by the general law of the land to accept the gift.
For the reasons whieh I have stated the appellant’s contention thatthe gift to the plaintiffs was bad for want of a valid acceptance fails.
I would dismiss the appeal with costs.
Bias S.P.J.—I agree.
Appeal dismissed.