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Present: Wood Benton A.C. J. and De Sampayo A.J.
KHAN v. MAKICAR.
159—D. C. Batticaloa, 3,671.Muhammadan lata—Code of 1806—Law applicable to immigrants fromIndia professing the Muhammadan faith—Law relating to im-movables—Lex loci rei sitae—Donation—Acceptance—Delivery.
The Muhammadan law is based on religion, and is applicable toall followers of Islam; it applies to Malays and to immigrants fromIndia known as the Coast Moormen.
The Muhammadan law is applicable not only in respect ofmovables and personal relations, such as marriage, but also withregard to immovable property situated in Ceylon. Where anAfghan donated a land to his minor son, held that the law appli-cable to the donation was the Muhammadan law and not theRoman-Dutch law.
De Sampayo A.J.—It may be assumed then that, the propertydonated in this case being situated in Ceylon, the law of Ceylongoverns. But why should this be the Roman-Dutch law and notthe special law applicable in Ceylon to the parties concerned ?The Muhammadan law in this respect is as much part of the locallaw as any other of the various systems of law prevailing in Ceylon.When a question arises as to the right to any immovable propertywherever situated in Ceylon, it may be necessary to look for thelaw to some special law which prevails among the particularpersons concerned.
rj^JBK facts and arguments appear from the judgment.
J. Grenier, K.C., and G. Koch, for the defendant, appellant.
B. Jay e-war dene and Balasingham, for the plaintiff, respondent.-
July 1, 1913. Wood Renton A.C.J.—
The plaintiff-respondent, who is a minor, claims in this actionthrough his next friend a garden and tiled house which belonged tohis father Palavan Khan, and which Palavan Khan gifted to himby deed P 1, dated November 6, 1910. The defendant, as trusteeof the mosque at Puliyantivu, claims the same property by deed ofgift dated March 1, 1912, from the same donor. It was admittedat the trial that Palavan Khan was an Afghan who had been longsettled in Ceylon, and that his wife, the mother of the plaintiff, wasa Moorish woman of Badulla. The case proceeded in the DistrictCourt on tEe assumption that Palavan Khan was, and- that his sonthe plaintiff is, a Muhammadan by religion. He appears to have]
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retained the donation deed of 1910 in his possession, and to havealso continued in possession of the property donated. On the sameday on which he executed the deed of donation in favour of themosque he revoked the earlier deed in favour of the plaintiff. Inhis last will, which was executed on March 15, 1912, he madeindependent provision for the plaintiff, and excluded from theoperation of the will the property donated to the mosque. Fouror five days later Palavan Khan died.
The defendant relied in support of his claim to the property onthe donation deed in favour of the mosque. He contended thatthe earlier deed in favour of the plaintiff was invalid, inasmuch asthere had been no acceptance of the donation on the minor’s behalf,and argued, in the alternative, that the plaintiff could not, in anyevent, retain the benefits conferred on him by the will and at the sametime repudiate the donation, which the will specially mentioned,in favour of the mosque. The defendant’s counsel, Mr. JosephGrenier, however, at the argument of the appeal, conceded that weare not at present concerned with the question of election, andconfined/ his argument tof the first alternative contention. Theplaintiff’s answer to the defendant’s case in regard to that pointis that Palavan Khan and his sons are Muhammadans subject to .the provisions of the Muhammadan Code of 1806, that under theMuhammadan law as it exists in Ceylon no acceptance of a donationby a father in favour of his son is necessary (Affefu&een v. Peria-iamby '*), and further, that by the same law such a donation cannotBe revoked. Mr. Grenier, on behalf of the defendant, did notcontest the correctness of this statement of the rules of Muham-madan law. But he denied that either the plaintiff or his fatherwas a person to whom that law was applicable, and argued thatBoman-Dutch law must detehnine the validity of the donationin the plaintiff’s favour.
The learned District Judge held that the plaintiff and his fatherwere subject to Muhammadan law, and I think that his decisionwas right. The Code of 1806 is extended by section 10 of OrdibanceNo. 5 of 1852 to “ Muhammadans ” in all parts of the Colony, andthere is ample authority for the proposition that it extends to thewhole Island (InreiMohamadu Canny 2 andD.C. Battic'aloa, 17,825.*)Muhammadan law recognizes no distinction between movable andimmovable property,® and the decisions of the Supreme Court showt&at no such distinction has been recognized in so far asi the appli-cability of the Code to this Colony is concerned.® There can, in myopinion, Be no room for the application in Ceylon of any lex loci rexsite as regards immovable property. I do not think that Palavan
i (1911) 14 N. L. R. 296.* (1877) Ram. 1877,87.
a (1866) Ram. 1888-88, 159.5 Gp. D. C. Colombo, 59,578, Gren.,
9 Wilson's Anglo-MvhammadanD. C. Hi., p. 28; Cassim «. Peria
Law, 3rd ed.t p. 264 (1878).Tamby (1898) 2 N. L. R. 200.
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Khan’s last will itseli can help us in solving the only question thatwe have at present to decide. By the Muhammadan law hisdonation in favour of his son was valid and irrevocable. Theplaintiff is, therefore, entitled to succeed. I would dismiss theappeal with costs.
Dk Sampayo A. J.—
It was argued in the Court below that, even if the Muhammadanlaw applied, the donation to the plaintiff was invalid because therehad not been any delivery of possession, and Affafudeen v. Peria-tamby 1 was cited in support of that argument. * But that decisionitself shows, and it is good law, that actual change of possession isnot necessary and constructive delivery is sufficient, and that adonation by a father to his minor son, as in this case, is one of theexceptions, because the continued possession of the father will bepresumed to be on behalf of the minor son. The principal questionwas whether the Muhammadan law applied at all, because if it did,acceptance of the donation would admittedly not be necessary.It was admitted in the Court below that the plaintiff, .and presu-mably his father Palavan Khan also, were Muhammadans; at allevents, the arguments proceeded on the footing that Palavan Khanbeing an Afghan was a Muhammadan. The contention, however,was that in Ceylon the Muhammadan law applied only to native-born Muhammadans. There is no foundation for this contention,and it was not pressed in appeal, though the matter was put in aslightly different form. For it was suggested, but not seriouslycontended, that the Muhammadan law applied only to “ Moors.”But even this position cannot be maintained. It is true that theMuhammadan Code of 1806, entitled “ Special Laws concerningMaurs or Mohammedans,” was to be'observed ” by the Moors inthe Province of Colombo.” But it is clear that the words “Maurs”and ” Mohammedans ” were used as synonymous terms. Whenthe Ordinance No. 5 of 1852 extended the Code to the whole Island,the only word used was “ Mohammedans,” and the Ordinance No. 8of 1886, which provided a system of marriage registration forMuhammadans, is still plainer, and in section 17 speaks of “ personsprofessing the Muhammadan faith.” The Muhammadan law hascertainly been applied without any question to Malays and toimmigrants from India known as the Coast Moormen. The fact isthat the Muhammadan law is based on religion, and is applicableto all followers of Islam. Even before the Ordinance No. 5 of 1852the Supreme Court applied it to Moors in Kandy, observing thatthey were " governed by their own laws and customs of inheritanceand marriage which are founded on their religion.” (Saibo Tambyv. Ahamat,2)
» (19X2) U N. L. R. 995.
3 (2951) Ram. Reports 199.
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The main argument in appeal is that the Muhammadan law isapplicable only in respect of movables and personal relations, such asmarriage, and that with regard to immovable property the lex locirei site, that is to say, the general law of Ceylon, applies. But theCode of 1806 and Muhammadan law generally regulate inheritanceand succession, and surely an estate may consist of immovableproperty. Ameer Ali’s Mohammedan Law, vol. II., p. 151, is citedas an authority to the effect that the lex loci governs all questionswhich relate to immovable property. That is no new propositionor one special to India. There the learned author is discussing thequestion as to what law would govern the succession to the realestate of a Moslem, if, for instance, the property Were situated inEngland, and he says that under the general rule of Internationallaw, wnatever might have been the person's domicile, the lex lociand in the supposed case the English law would govern. There isno doubt as to that, nor, on the other hand, as to the Muhammadanlaw governing if the property were situated in India. This is thewhole effect of the passage cited. It may be assumed then that,'the property donated in this case being situated in Ceylon, the lawof Ceylon governs. But why should this be the Roman-Dutch lawand not the special law applicable in Ceylon to the parties con-cerned? The Muhammadan law in this respect is as much partof the local law as any other of the various systems of law prevailingin Ceylon. When a question arises as to the right to any immovableproperty wherever situated in Ceylon, it may be necessary to look tfor the law to some special law which prevails among the particularpersons concerned. The special law or custom to be so appliedmay be, to borrow an expression from the judgment of the PrivyCouncil in Kumari Debi v. Chunder Dhabal,1 ** a personal as distin-guished from geographical custom,” but it would nevertheless be apart of the local law of Ceylon. To hold otherwise would be toupset the law as applied for over a century to titles to immovableproperty, not only among men like Palavan Khan and the plaintiff,but among the entire Muhammadan population of Ceylon.
In my opinion the District Judge is right in applying the Muham-madan law to this case, and in upholding the validity of the donationby Palavan Khan to the plaintiff. The appeal should therefore bedismissed with costs.
i (1902) I. L. ft. 89 Cal. 433.
KHAN v. MARICAR