008-NLR-NLR-V-61-JAYAH-Appellant-and-SAHEEDA-Respondent.pdf
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Jay ah v. Saheeda
Present: K. D. de Silva, J., and Sinnetamby, J.
JAY AH, Appellant, and SAHEEDA, Respondent
S.C. 277—D. G. Colombo, 290S8/M
Muslim Law—Dowry—“ KaihuZi ”—“ Siridanum ”—Assessment of evidence ofintention of donor.
In regard to a dowry given by the parents of a Muslim bride the fact that thedonation was designated " Kaikuli ” or “ Stridanum ” cannot be ignored whenassessing whether the donor intended to make an absolute gift to the bridegroom
*.V (1917 1 K. B-. ad- 393.2 {1948) 2 All M.B. 1021.
3 {1919) 21 N. L. .72. 321 at 326.
K. jD. DE SLLVA, J.—Jay ah v. Saheeda
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—,
A
-^APPEAL from a judgment of the District Court, Colombo.
M.Rafeelc, for the defendant-appellant.
M. I. M. Haniffa, with S. H. Mohamed, for the plaintiff-respondent.
Cur. adv. vult.
-June 14, 1957. DE Silva, J.—
The marriage of the plaintiff and the defendant who are Malays by raceand Muslims by religion was registered on August 23, 1951—vide marriage-certificate PI. On that occasion the plaintiff’s father handed over to"the defendant the husband a sum of Rs. 2,000. This amount has been•entered in the marriage certificate against the item “ amount ofatridanum ”, The “ thali ” ceremony took place on September 29,1951, and soon after that the defendant conducted his wife to a houseat Fountain House Lane, Mara-dana, where he, his mother and married■sister resided. The plaintiff began to complain that her mother-in-law.and sister-in-law were harassing her. In January 1952, she went toreside with her parents at Padukka. Thereafter she instituted an action-against the defendant to recover maintenance and obtained an orderin her favour. In January 1953, the defendant divorced the plaintiff by"the pronouncement of “ Talak ” according to Muslim law. The plaintiffinstituted this action in June, 1953, to recover from the defendant■■(a) certain articles of jewellery, clothes and furniture or their value
a sum of Rs. 300 as Mahar (c) Rs. 151 as lying-in-expenses- incurred• "when her child was bora and (d) a sum of Rs. 2,000 paid by her father to■the defendant as “ stridanum ” at the time of their marriage. The■defendant filed answer admitting his liability to pay a sum of Rs. 300 asMahar. He also admitted that certain articles of furniture belonging to"the plaintiff were in his house and he expressed his willingness to return-them to her. He denied the rest of the plaintiff’s claim. He also stated-that the sum of Rs. 2,000 was paid to him for his own use in connectionwith the marriage expenses and. for the purchase of presents for the brideand denied his liability to return the same to the plaintiff.
At the trial the defendant admitted that the plaintiff was entitled torecover the sum of Rs. 151 as lying-in-expenses. The learned District-Judge rejected the plaintiff’s claim in respect of the articles of jewellery,“clothes and furniture but held that the plaintiff was entitled to recover"the sum of Rs. 2,000 given to the defendant as “ stridanum **. The■defendant has appealed from that judgment.
In the marriage certificate this stun of Rs. 2,000 has been described-as “ stridanum ”. Although there is no provision in Muslim law requiring"the parents of a Muslim bride to provide a dowry yet there is nothing to■prevent them from doing so, if they so desire. Indeed it is customary-among the Muslims of this country to give dowries to their daughters.'The dowry so given falls tinder one' of two categories, namely, ELaikuli and"Stridanum. Kaikuli, properly speaking, is a marriage gift- made to r.be
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K. D. DE SILVA, J—Jay ah v. Saheeda
bride by her parents, and is handed to and remains in the charge of thehnsband under his control and management during the subsistence of the-marriage and may be claimed from him by the "wife or her heirs.Stridanum which is a word of Sanskrit origin means the “ woman’s-wealth1’ or gift to a ^woihan. Strictly speaking, the wife has the fullcontrol and management of the property which forms her “ Stridanum ”and the husband has no rights whatsoever over it. But as it was pointedout by de Sampayo J. in Meera Saibo v. Meera Saibo 1 '* Kaikuli ” and“ Stridanum ” being words taken over by Muslims from other systems oflaw are often used by them in a sense different from their originalconnotation. In the case referred to, de Sampayo J. observed “ What-ever the intrinsic meaning of the words may he, we have to take account-of the meaning which the parties then selves attached to them in this*particular deed. ” The relevant part of the deed which came up forconsideration in that case is in the following terms :—“ We (the defen-dants) on account of the marriage that had taken place betweenM. A. C. M. Meera Saibo and wife M. M. Asiatumuna of the same placeand for the sum of Rs. 750, Kaikuli or dowry money, agreed to he givento Meera Saibo, and for dowry, do hereby give grant and set over to*them both the property herein described as dowry ”. That deed was.drawn up in Tamil and the word which has been translated as “ dowry ”is ” Seethanam ” which is the Tamil derivative of the Sanskrit word“ Stridanum It was contended by the plaintiffs in that case who*were the parents of Asiatumuna who had in the meantime died withontissue, that no rights passed on the deed to Meera Saibo on the groundthat the lands conveyed formed “ Kaikuli ” and “ Stridanum ”property. This contention was rejected by de Sampayo J. who was-associated with Wood Renton C. J. on two grounds. In the first placehe said that the terms “ Kaikuli ” and “ Seethanam ” were not used intheir literary sense but in entire ignorance of their true meaning. As theterms of the deed indicated a general intention to make a gift to thehusband and wife it was held that Meera Saibo, the husband, becameentitled to a half share of the property conveyed on that deed. In thesecond place it was held that a grant to two persons cannot under anycircumstance be construed as a grant to only one person. The OrdinanceNo. 7 of 1840 and the law of evidence were regarded as being decisive onthat point. This case was cited with approval by Macdonell C.J. inZainabu Natchia v. Usuf Mohamadu 2 which is a case decided by a benchof 4 Judges. In that case two deeds of transfer executed by the parentsof a Muslim bride in favour of the bridegroom, for payment of “ Kaikuli ”agreed upon, came up for consideration. It was contended on behalfof the wife that the lands conveyed on these deeds formed “ Kaikuli ”property and that her husband held them in trust for her. This argume ntwas rejected on the ground that the operative part of each deed clearlyconveyed an unqualified dominium in the property to the transfereeeven if it was conceded that the recitals indicated an intention to createa trust. A principle deducihle from these decisions appears to he that-where there is a conflict between the designation of the donation andthe intention of the parties making the donation the intention should
1 {2920) 2 (7. TT. JZ. 255.~ (2933'j 3857.
Cfritravelii v. S. I. Police, Kanttdai
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prevail. So that even though the property gifted is described as-ft Kaikuli ” or “ Stridanum ” yet if it is otherwise clear that the realintention of the donor was to make an absolute gift to the bridegroomthat intention must be given effect to. However in assessing the-evidence of intention the fact that the donation has been designated“ K'aiknli ” or “ Stridanum ” cannot be ignored, because these areterms widely in use and the majority of Muslims, 1 take it, know whatthey connote. But I am unable to agree with the learned District Judgewhen he stated “ It will be a contradiction in terms to describe a giftgiven to a man as e Stridanum * By this dictum if he meant that in nocircumstances could a gift described as ** Stridanum ” be construed as-a gift to the bridegroom it is too wide a proposition and finds no support-from the recent decisions of this Court. In appropriate cases, as Iobserved earlier, if it is clear that the intention of the donor was to makean absolute gift to the bridegroom the use of the word " Stridanumto describe the gift is no bar to holding it to be a gift to the bridegroom-
In the instant case the learned District Judge after considering theevidence definitely held that the sum of Its. 2,000 was intended by theparties to be a marriage settlement in favour of the plaintiff. He also-refused to accept the evidence led on behalf of the defendant that this-amount was intended as a personal gift to the defendant. I am unable-to say that these findings are wrong ; on the contrary there is ample-evidence to support them. Accordingly I dismiss the appeal with costs-
SrsorETAMBY, J.—1 agree.
Appeal dismissed.