054-NLR-NLR-V-38-KALENDERUMMA-v.-MARIKAR-et-al.pdf
Kalen d erumma v. Marikar. „
27K
1936
Present: Moseley J. and Fernando A.J.KALENDERUMMA v. MARIKAR et al.
151—D. C. Batticaloa, 7,907.
Donation—Gift by Muslims—No intention to part with possession—Roman-Dutch law applicable.
Where a Muslim deed of gift was expressed in the following terms :We the said donors, reserving both of our life-interest to the thus describedproperty shall possess and enjoy the produce thereof till our life-time,shall live thereon and make a perfect use of 'the same. In considerationof the love and affection we bear towards our children and for theirshares lawfully becoming entitled to by way of children’s rights, and fotdiverse other reasons, we do hereby donate, convey, and set over unto1 17 Allahabad 174.
272
Kalenderumma v. Marikar.
them the paddy land, &c….. nnH these five persons shall accept
in common and possess and enjoy the same according to their pleasure,for ever, subject to the life-interest of both of us, and we the donors andeach and every one of us shall have the right to possess and enjoy theproduce of the properties till our lifetime. In testimony of havingwritten this deed we the donors do donate unto them and I, for myselfand on behalf of the other four minors, have accepted this donationwith gratitude and delight.
Held, the donor did not intend to part with the possession of thepremises at the time of gift and that the deed, not being governed by theMuslim law, should be given effect to tinder the Roman-Dutch law.
Weerasekere v. Peiris (34 N. L. R. 281), Sultan v. Peiris (35 N. L. R. 57),Ponniah v. Jamal et al. (37 N. L. R. 96) referred to.
^^PPEAL from a judgment of the District Judge of Batticaloa.
In this action the question at issue was whether the deed of donationNo. 870 was a valid one. The deed was executed by one AvoovackerUssenalewaii and his wife in favour of their children, the parties beingMuslims. The material portion of the deed is given in the headnote.The learned District Judge held that the deed was not valid under theMuslim law.
H. V. Perera (with him G. E. Chitty), for defendants, appellants. Thedonors had no intention to make a gift as known to the Muslim law. Thelanguage of the deed shows that there was no absolute gift. Even beforethe grant is made the donors reserve to themselves a life-interest. Thissuggests that property and possession was to pass after the death of thedonors. The Privy Council has in the case of Weerasekere v. Peiris1 laiddown the principles which should govern Muslim deeds of gift. It wasthere pointed out that all the terms of the deed must be taken intoconsideration when construing it and where the donor never intended topart with the property in or the possession of the premises during hislifetime or that the donee should have any control over or possession ofthe premises it must be assumed that a valid gift as understood in theMuslim law was not intended. These principles are of general applicationand cannot be limited to cases where there is a fidei commissum created.The interpretation put upon the decision of the Privy Council by the FullCourt in Sultan v. Peiris8 is not correct. Such an interpretation is notbinding. No principle has been laid down by the Full Court. TheChief Justice goes upon one ground and Garvin J. upon another. TheChief Justice insists on the requirement that all the terms of the deedshould be examined to see if it shows an intention to make such a gift. inter vivos as is recognized by Muslim law. Garvin J. said that if theintention was to make a gift to take effect after the donor’s death it isbad under the Muslim law and the intention of the donor must be giveneffect to under the general law. In any event the present deed is not onall fours with the deed interpreted in Sultan v. Peiris (supra). The policyof the law is to give effect to a deed.
Croos da: far era, for plaintiffs, respondents.—The judgment of the PrivyCouncil should be limited to the particular deed considered there. Thatdeed created a fidei commissum, reserved a usufruct and postponed vesting.1 (1932) 34 N. L. R. 281.1 (1933) 35 N. L. R. 57.
FERNANDO A.J.—Kalenderumma v. 'Marikar.
273
In Sultan v. Peiris (supra) the principles laid down in Weerasekere v. Peiris(supra) have been explained by the Full Court. It was there held thata deed of gift inter vivos intended to take effect immediately and reserv-ing life-interest was not valid under the Muslim law on the ground thatdelivery of possession was not given. Macdonell C.J. said that to con-stitute a valid gift three essentials were necessary, viz., expression ofintention to give, expression of intention to accept, and delivery ofpossession. He emphasized the fact that in Weerasekere v. Peiris thedonor intended to create a valid fidei commissum as recognized by theRoman-Dutch law and not a gift inter vivos as known to Muslim law.Garvin J. pointed out that where the intention-is not to make an imme-diate gift but one to take effect after death there is not such a gift asunderstood by the Muslim law and the intention must be given effectto under the general law. He added that the Privy Council excludedthe Muslim law because the donor intended to create a fidei commissumby a donation to take effect after his death. Sultan v. Peiris has beenfollowed in a judgment in 379—D. C. Colombo, No. 27.
The deed under consideration is in no way different from that consideredby the full Court. It is a gift inter vivos to take effect immediately. Suchgifts are customary and known to the Muslims. The gift is howeverdefeated by the failure to give possession. There is no intention to makethe gift to take effect after the death of the donor and therefore doesnot come within the meaning of the judgment in Weerasekere v. Peiris.Deeds reserving life-interest have been held to be bad. (Vide Meyadeen v.Abubakker1 and Marcar v. Umma ) The decision in Sultan v. Peiris isbinding. Not to follow it would be to unsettle the law. If any doubtsare entertained the question should be referred to a fuller Court.
H. V. Perera, in reply.
October 15, 1936. Fernando A.J.—
At the trial in this action, the learned District Judge heard argumentswith regard to the first issue only, apparently. on the footing that adecision of the first issue would dispose of the action. That issue was inthese terms, “ is the deed of donation No. 870 a valid one ? ” The deeditself appears to be in Tamil, and a translation of it has been filed.According to the translation, the terms of the deed which are material tothis argument are as follows : — “ Avoovacker Ussenalewaii and wife A Ado execute deed of donation unto our children in the manner following. ”Then come the boundaries and description of four lands. The deed thencontinues, “ We the said donors, reserving both of our life-interest to thethus described property shall possess and enjoy the produce thereof tillour lifetime, shall live therein and make a perfect use of the same.' Inconsideration of the love and affection we bear towards our aforesaidchildren, and for their shares lawfully becoming entitled to by way ofchildren’s rights, and for diverse other reasons, we do hereby donate,convey, and set over unto them the paddy land into five equal shares,the one-fifth of the eastern side to Mera Lewaii, the next one-fifth shareto U. Avoovacker …. and also the properties described in second,third, fourth paragraphs hereof, and these five persons shall accept in1 {1919) 21 N. L. R. 284.1 (1929) 31 N. L. R. 237.
274
FERNANDO A.J.—Kalenderumma v. Marikar.
common and possess and enjoy the same according to their pleasure,for ever, subject to the life-interest of both of us, and we the donors, andeach and every one of us shall have the right to possess and enjoy theproduce of the properties all our lifetime. Thus consenting we annex theaforesaid deed with this, and we declare that these properties at presentare free from all encumbrances. In testimony of having written thisdeed, we the donors do donate unto them and I, U. Meeralewaii, for myselfand on behalf of the other four minors have accepted this donation withgratitude and delight. ”
The donors and donees are admittedly Muslims, and the question raisedis whether the deed of gift is valid in law. The rules applicable in con-struing deeds of gift between Muslims were considered by the Privy CounciLin Weerasekere v Petris.1 and the deed of donation in that case was adeed by which a father purported to donate a land to his son, as a giftinter vivos absolute and irrevocable. But in the habendum it was madeclear that the son was to hold the premises subject to the conditions andrestrictions thereinafter mentioned, which included the right of thefather to cancel and revoke the gift, and a reservation in his favour ofthe rents and profits during his lifetime. The deed made it clear thatthe premises were to go, and be possessed by the son only after his father’sdeath. Their Lordships then proceeded to state that all the terms of thedeed must be taken into consideration when construing the deed, andthat it was clear that it was never intended that the father should partwith the property or the possession of the premises during his life-time..For these reasons their Lordships came to the conclusion that it was notintended that there should be a valid gift as understood in the Muslim lawunder which three conditions were necessary for a valid gift inter vivos,namely, and expression by the donor of intent to give, acceptance by thedonee, and the taking possession of the subject-matter actually or con-structively by the donee.
The deed which was considered by the Privy Council in that case alsoprovided that after the father’s death, the son should not sell, mortgage,or alienate the premises and the same should on his death, subject tocertain conditions, devolve upon the children of the son, and their Lord-ships proceeded to state that “ it was not disputed that the last mentionedprovisions constituted a fidei commissum according to the Roman-Dutchlaw ”, and on the true construction of the deed, their Lordships proceededto hold that “ the father intended to create, and did create a fideicommissum such as is recognized by the Roman-Dutch law. ” Among thereasons set out in that judgment is the statement that the Common lawof Ceylon is the Roman-Dutch law as it obtained in the Netherlandsabout the commencement of the last century. The deed of gift washeld to be operative, and full effect was given to that deed.
The decision of the Privy Council was considered by a Bench of fourJudges of this Court in Sultan v. Peiris2. Macdonell C.J. in that casethought that having regard to all the terms of the deed with which he wasdealing in Sultan v. Peiris, that deed was clearly distinguishable fromthat under consideration in the Privy Council judgment, and came to the?
1 34 N. L. R. 281.
(1933) 3.5 N. L. R. 57.
FERNANDO A.J.—Kalenderumma v. Marikar.275
•conclusion that the donor did intend to make a gift inter vinos as isrecognized in Muslim law, with possession passing to the donee. He thenthought that the principles which were implied in Weerasekere v. Peiris(supra) were that a Muslim in a deed of gift could manifest an intention tomake that gift outside Muslim law altogether, and therefore to make itunder the Roman-Dutch law, and that one of the ways of doing so wasto create by his deal a valid fidei commissum ; in other words, “ if hemanifested a sufficiently clear intention, he can contract himself out ofthe Muslim law, as to gifts altogether. ” Garvin J. who also delivered ajudgment in Sultan v. Peiris (supra) thought that the effect of the PrivyCouncil judgment was that “ where it appears upon the construction of thedeed as a whole that the intention of the donor is not to make an immediategift, but a gift to take effect after his death, there is not such a gift asunderstood by the Muslim law, and the intention of the donor must ifpossible be given effect to under the general law ”. He repeats this in alater passage when he says, “ The Muslim law is excluded not becausethe donor wished to exclude it, but because he did not intend to partwith the property, or the possession of the premises, and did not thereforeintend to and did not purport to make such a gift as is understood bythe Muslim law. Such donation not being a gift as understood by theMuslim law of gift as it obtains in Ceylon, there is nothing to prevent thedonation being given the effect intended under the Roman-Dutch law. ”The other two Judges who constituted the Bench before whom Sultan v.Peiris was argued, agreed with the judgment of Macdonell C.J.
The question appears to have come up again before Macdonell C.J.and Poyser J. in Ponniah v, Jamal et aV Referring to the case of Sultanv. Peiris (supra) Macdonell C.J. sets out the probable reason why the othertwo Judges concurred specifically with his own judgment. “ Garvin J. ”,he says, “ left the Island on leave before his own judgment was ready tobe delivered, and there was a doubt whether a judgment delivered by aJudge on leave would be valid ; the concurrence of the other Judgesenabled a judgment to be delivered which was that of the majority of theCourt, and of which the successful party could at once take advantage. ”He then proceeds to adopt the answer given by Garvin J. in Sultan v.Peiris as to the scope of the judgment of the Privy Council in Weerasekerev. Peiris, and quotes from the judgment of Garvin J. the passage whichI have already quoted above, “ The effect of their Lordships’ decisionas I conceive it is that where it appears upon the construction of the deedas a whole that the intention of the donor is not to make an immediategift, but a gift to take effect after his death, there is not such a gift asunderstood by the Muslim law, and the intention of the donor must ifpossible be given effect to under the general law. ”
In Ponniah v. Jamal et al. (supra), the two Judges who heard the casecame to the conclusion that the gift there was intended to be a gift underthe Muslim law, and it failed because the possession was retained by thedonor. Counsel for the appellant in this case argued that the deed of giftin question here was one upon the construction of which as a whole, itwould be clear that the intention of the donor was not to make animmediate gift, but a gift-to take effect after his death, and he referred
1 37 N. L. R. 96.
276FERNANDO AJ.—Kalenderumma ». Marikar.
to the following portions of the deed. Before the words “ we do hereby,.&c. ” occur the passage “ We the donors reserving our life-interest, shallpossess and enjoy the produce thereof, shall live therein and make aperfect use of the same, and, we do hereby donate the same unto ourchildren for their shares to which they may become entitled by way ofchildren’s rights (that is to say, after our death), and these five personsshall accept in common and possess subject to the life-interest of both ofus, and until the lifetime of the last surviving person of us. ”
In Ponniah v. Jamal et al (supra), Macdonell C.J. stated that thehanding of the deed over to the donee as a token of the transfer of posses-sion of the said properties constituted a transfer of the dominium andalso an act purporting to transfer possession. There are no such wordsin this deed, and the recital with regard to the title deeds to the propertyis merely, “ We annex the aforesaid deeds with this ”, and there is nothingto show that even the deed of gift itself was intended to be delivered tothe donees. Garvin J. in Sultan v. Peiris (supra) puts the position in thesewords “ Delivery of possession may be constructive, but must be real inthe sense that it is intended that the donee should have the full possessionand control of the subject of the gift so that he may enjoy the benefitsderivable from it. Such transfer of possession is essential to the transferof ownership of the property from the donor to the donee without whichthere can be no gift ”. He then cites a passage from Tyabji, “ thenecessity for the transfer of possession is expressly insisted upon as partof the substantive law in order that that may be effectuated which issought to be effectuated by a gift, namely, the transfer of the ownershipof the property from the donor to the donee.
In Sultan v. Peiris (supra), Macdonell C.J. came to the conclusion that thedonor did intend to make a gift inter vivos as is recognized in Muslim lawfor certain reasons which are set out in page 73 of the judgment. “ Thedeed ”, he says, “ purports to make a gift inter vivos, absolute and irrevo-cable, and purports to vest in the donees the legal title by handing thedeeds and the connected deeds to them. ” The donor imposes a penaltyon either of the donees who abandons the Islamic, faith, or marries awidow or a divorced woman. There was a clause in the deed statingthat the donor handed over the deed and connected deeds by way ofvesting legal title. None of these features appear in the present deed,so that if this is one of the tests to be applied in spite of the later judgmentin 379—D. C. Colombo, 27, still this deed is clearly not one which wasintended to be a gift under the Muslim law.
The learned District Judge disposed very shortly of the question beforehim and purported to follow the judgment in Sultan v. Peiris (supra), appar-ently because his attention was not called to the fact that before applyingthe test as to whether a deed is valid or invalid, it is necessary where thedonor and donee are both Muslims, to ascertain on a full construction ofthe deed whether the donor did or did not intend to make a valid giftinter vivos under the Muslim law. I would adopt the test laid down byGarvin J., in that case which was expressly adopted by Macdonell C.J.in the latter case, and applying this case I would hold that in this case ona construction of the deed as a whole it is clear that the donor did not
KOCH J.—de Silva v. Bastion.
277
intend to part with the possession of the premises at the time of gift, andthat the deed which is therefore not governed by the Muslim law, can begiven effect to under the Roman-Dutch law.
I would accordingly set aside the order made by the learned DistrictJudge, and hold that the deed of donation No. 870 is a valid donationthe effect of which will have to be considered under the Roman-Dutchlaw, and I would order the case to be sent back to the District Court forthe trial of the other issues. The plaintiffs-respondents will pay to thedefendants-appellants the costs of the proceedings of January 15, 1935,and of this appeal. The other costs of the action will be costs in thecause.
Moseley J.—I agree.
Appeal allowed.