KUDHOOS v. JOONOOS

061-NLR-NLR-V-41-KUDHOOS-v.-JOONOOS.pdf


Kudhoos v. Joonoos.
261
1939Present: Moseley A.C.J. and Wijeyewardene J.
KUDHOOS v. JOONOOS.7—D. C. Colombo, 47,499.
Misjoinder of parties and causes of action—No ground for dismissed of action
—Amendment of pleadings—Action by administrator before grant of
letters—No justification for dismissal of action—Muslim deed of gift—
Reservation of life-interest—Intention to create gift under Roman-
Dutch law.
A Court is not bound to dismiss an action on the ground of amisjoinder of parties and causes of action.
In such a case the Court may on application made and in the exerciseof its discretion strike out one or more plaintiffs and give an opportunityfor amendment of the pleadings, so as to make the plaint conform to therequirements of section 17 of the Civil Procedure Code.
Abraham Singho v. Jayaneris Singho (3 C. L. W. 53) not folowed.
Where an administrator, who had applied for letters of administrate _>ninstituted an action before the grant of letters to him, the Court maypostpone the hearing of the action pending the grant.
The Court would be justified in refusing to dismiss the action in suchcircumstances.
Silva v. Weerasuriya (10 N. L. R. 73) followed.
The failure to take out letters of administration is an irregularitywhich comes within the scope of section 36 of the Courts Ordinanceand the respondent, who has obtained a decree, is entitled to claim thebenefit of the section.
Where a Muslim donated property subject to the reservation of a life-interest in his favour and creating a fidei commissiim in favour of thechildren of the donee,
Held, that the donor intended to create and did in fact create a validfidei commissum as known to the Roman-Dutch law.
Weerasekere v. Peiris (34 N. L. R. 281) followed.
T
HIS was an action for declaration of title to property bearingassessment No. 64 at Hulftsdorp street.
By deed P 1 of December 8, 1894, Ummukuludu Umma gifted theproperty to Mahmood Natchia reserving a life-interest in her favour
252
Kudhoos v. Joonoos.
and subject to a fidei commissium. By deed P 2 of September, 1902,Mahmood Natchia conveyed certain interests in the property to thedefendant.
Ummukuludu died intestate about 1897 and letters of administrationwere granted to the first plaintiff. Mahmood Natchia died intestate in June,1924, and letters of administration in respect of her intestate estate weregranted to the second plaintiff on April 23, 1934. This action was institu-ted in January, 1932, asking for judgment declaring the first plaintiffentitled to the property as administrator of the estate of Ummukuludu orin the alternative declaring the second plaintiff entitled to the propertyin his own behalf or as belonging to the estate of Mahmood Natchia. Theplaintiff alleged that the Second plaintiff was the husband and sole heir ofMahmood Natchia and that he has applied for letters of administration toher estate in D. C. Colombo (Testy.) 5,967.
The defendant field answer pleading, inter alia, that there was a mis-joinder of parties and causes of action and that plaintiffs could not main-tain the action.
On March 16, 1934, the case came up for trial and the District Judgeheld on the preliminary issue that there was a misjoinder of plaintiffsand causes of action.
The plaintiff’s Counsel thereupon moved to delete the name of thefirst plaintiff and to proceed with the action as ft the instance of thesecond plaintiff., The case was then postponed as the second plaintiffhad not yet obtained letters of administration to the estate of MahmoodNatchia.
In November, 1937, the case was heard and judgment given in favourof the second plantiff.
C. Thiagalingam (with him T. K. Curtis), for defendant, appellant.—There was a misjoinder of parties and of causes of action. Two personsclaiming on two contradictory titles cannot, in law, join in the sameaction against the same defendant. On this point alone the whole actionshould have been dismissed, and no opportunity should have been givento the second plaintiff to continue his action after the first plaintiff’sname was deleted. Section 11 of the Civil Procedure Code should beread with section 17. Section 18 is a correct corollary to section 17and enables a party to be struck out only where several plaintiffs havejoined in the same action, and not where different actions are embodiedin the same plaint. The English rule is similar to ours—Smuruthwaiteet al. v. Hannay et al.1 That case was followed here in Don SimonAjrpuhamy et al. v. Marthelis Rosa* which, in turn, was followed inSivakaminathan v. Anthony et al. * and Abraham Singho v. JayanerisSingho et al.*. In Fernando et al. v. Fernando however, the case was .remitted, but it was left open to the defendant to raise the objection of.misjoinder in the trial Court. The following authorities are also ofassistance to the appellant :—Mulla’s Code of Civil Procedure (9th ed.)406 ; Ali Serang et al. v. Beadon6 Varajlal Bhaishanker et al. v. Ramdat
> (1894) A. G. 494.
= (1906) 9 N. L. R. 68.3 (1935) 3 C. L. W. 51.
' (1930) 3 C. L. W. 53.
(1937) 39 N. L. R. 145.
(1885) I L. R. 11 Cal. AS4.
Kudhoos v. Joonoos.
253
Harikrishna et al.Peninsular & Oriental Steam Navigation Company v.Tsune Kijima et al’; Ram Narain Dut v. Annoda P’rosad Joshi et al.’;Ettaman v. Narayanan et al. ’.
At the date of his plaint, the second plaintiff had not been appointedadministrator. He cannot, therefore, claim any rights as administratorin the present action.
The rights of parties must be determined as at the date of the action—section 42 of the Civil Procedure Code; Silva v. Nona Hamine' ;Ponnamma v. Weerasuriya’; Eminona v. Mohideen et al.’; Silva v.Fernando et al. *.
The deed P 1 does not create a valid gift under Muslim law—Weera-sekere v. PeirisSultan v. Peiris Ponniah et al. v. Jameel et al.”. P 1contemplates a gift in futuro not in presenti.
S. J. V. Chelvanayagam for second plaintiff, respondent.—The objectionregarding the status of the second plaintiff should have been taken at theearly stages of the case. No objection was raised in the District Courtthat the second plaintiff had not obtained letters of administrationat the date of the plaint. Nor is the objection taken in the petition ofappeal now—Steward v. North Metropolitan RailwaysFurther, it isopen to any one who has an interest in the property of a deceased toinstitute an action in respect of such property. The fact, that therespondent had not obtained letters would not vitiate the action—Alagakawandi v. Muttumal ”.
[Wueyewardene J. referred to The Administrator-General of Bengal v.Lalit Mohan Roy “.]
R. D. Sethna v. Grace Hemingway ” is directly in point.
In regard to the question of misjoinder, section 36 of the CourtsOrdinance can cure the irregularity, if any—Appuhamy v. Banda”;Rup Narain V. Gapal Devi Mahant Ramdhan Puri et al. v. ChandhuryLachmi NarainThe practice of the Ceylon Courts has been not todismiss the entire action for misjoinder—Jayamaha et al. v. Singappuet al.”; Menika v. Menika et al”; Kanagasabapathy v. Kanagasabain;London & Lancashire Fire Insurance Co. v. P. & O. Company et al.“;Salima Bibi et al. v. Sheik Muhammad et al.”; Behari Lai et al. v. KoduRam”; Alagamma et al. v. Mohammadu et al.m. It may even be arguedthat there was no misjoinder. There is a distinction between conflict-ing claims and contradictory claims—Lingammal et al. v. ChinnaVenkatammal"; Paules Appuhamy v. The Attorney-General"; Fakirapa
1 (1901) I. L. R. 26, Bom. 259.
» (1895) A. C. 661.
(1887) I. L. R. 14 Cal. 681.
(1938) 12 C. L. W. 152.
5 (1906) 10 N. L. R. 44.
(1908) 11 -V. L. R. 217.
’ (1930) 7 T. L. R. 162.
» (1912) 15 N. L. R. 499.
(1932) 34 N. L. R. 281.
»• (1933) 35 N. L. R. 57.
11 (1936) 38 N. L. R. 96.
«* (1886) 16 Q. B. D. 556.
** (1920) 22 N. L. R. 111.
" (1907) 3 Bal.
i* (1908) 12 C. )V. N. 738.
(1914) I. L. R. 33 Bom. 618.
»• (1922) 24 N. L. R. 217.
« L. R. (1909) 36 I. A. 103 at p. 1«■ (1937) A. I. R. 42.
>• (1910) 13 A'. L. R. 348 at p. 350.*• (1923) 25 N. L. R. 6.
« (1923) 25 A’. L. R. 173.
*« (1914) 18 N. L. R. 15 al p. 20.
** (1895) 1. L. R. 18 AU. 131.
** (1893) I. L. R.-15 AU. 380.
“ (1917) 4 C. W. R. 73. r*• (1882)U. L. R. 6}Mad. 239.
i. 286.•
21-
254
WIJEYEWARDENE J.—Kudhoos v. Joonoos.
v. Rudrapa*; Haramoni Das si et al. v. Hari Chum Chowdhry'-, Mruty-umjaya et al. v. Janakamma et al.*.
P 1 creates a valid gift. Weerasekere v. Peiris (supra) would be appli-cable. Vide also Ismail v. Mohamed. ‘ and Muhammad Abdul Ghaniet al. v. Fakhr Jahan Begam et al.‘.
Thiagalingam, in reply.—At the date of the plaint, the plaintiffcould not claim as administrator. This point is covered by issue No. 11.It can also, being a pure point of law, be taken for the first time in appeal—Fernando v. Abeyagoonesekere° Niles v. Velappa’. To guide one inthe construction of section 42 of the Civil Procedure Code, The King v.The Justices of Middlesex “ and Edward Garnett v. William Bradley *are of assistance. Indian cases should be read in the light of section 212of the Indian Succession Act. In India, contradictory views have beentaken, e.g., in Sethna v. Hemingway (supra) and in re Ramdas BrijGovandas ”.
Cur. adv. vult.
October 23, 1939. Wijeyewardene J.—
This is an action for declaration of title to a property bearing assess-ment No. 64 at Hultsdorp street. By deed P 1 of December 8, 1894,one Ummukuludu Umma gifted the property to Mahmood Natchia,reserving a life interest in her favour and subject to a fidei commissum.By deed P 2 of September 30, 1902, Mahmood Natchia conveyed certaininterests in the property to the defendant.
Ummukuludu Umma died intestate about 1897 and letters ofadministration were granted to the first plaintiff. Mahmood Natchiadied intestate in June, 1924, and letters of administration in respect ofher intestate estate were granted to the second plaintiff on April 23, 1934.
The present action was instituted in January, 1932, asking forjudgment declaring the first plaintiff entitled to the property asadministrator of the estate of Ummukuludu Umma or “ in the alternativedeclaring the second plaintiff entitled to the property in his own behalfor as belonging to the estate of Mahmood Natchia ”. The plaint allegedthat the second plaintiff was the husband and sole heir of MahmoodNatchia and that he has applied for letters of administration to herestate in D. C., Colombo (Testamentary) 5,967. The action was pre-sumably instituted by the plaintiffs claiming an alternative title in eitherof them owing to the uncertainty which prevailed at least at the timeof the institution of the action regarding the validity of Mohammedandeeds of gift subject to certain conditions and limitations.
The defendant filed answer pleading inter alia that there was a mis-joinder of parties and causes of action and that the plaintiffs could nottherefore “ maintain this action ”.
On March 16, 1934, the case came up for trial before the then DistrictJudge of Colombo, Mr. O. L. de Kretser, when the defendant’s Counselsuggested the following issue for decision as a preliminary issue: —
Is there a misjoinder of plaintiffs and of causes of action?
' (3891) J. L. R. 16 Bom. 119.* (1931) 34 N. L. R. 160 at p. 163.
» (1895) I. L. R. 22 Gal. 833.1 (1937) 39 N. L. R. 145.
» (1903)1. L. R. 96 Mad. 647.* (1831) 2 B. <fc Ad. 818 at p. 821.
(1933) 13 C.tL: See. 105.* (1878) 3 A. C. 944 at p. 950.
(1922) I. L. R. UAH. 301.(1885) J. L. R. 10 Bom. 107.
WIJEYEWARDENE J.—Kudhoos v. Joonoos.
255
The District Judge answered the issue in the affirmative and theplaintiff’s Counsel moved to delete the name of the first plaintiff and toproceed with the action as at the instance of the second plaintiff. TheJudge thereupon dismissed the first plaintiff’s action and framed anumber of issues suggested by the Counsel for the second plaintiff andthe defendant. The case was however postponed as the second plaintiffhad not obtained at that time the letters of administration to the estateof Mahmood Nacthia.
The case came up for hearing ultimately before another District Judgeof Colombo who delivered his judgment in November, 1937, in favour ofthe second plaintiff. The present appeal is preferred by the defendantagainst that judgment.
In arguing the appeal before us the appellant’s Counsel raised thefollowing points: —
The action should have been dismissed as there was a misjoinder of
parties and of causes of action.
As the second plaintiff had not obtained letters of administration
at the time he filed the plaint, the action should have beendismissed in view of the District Judge’s finding that the secondplaintiff was not an heir of the estate of MahmoodNatchia.
The deed of gift P 1 was invalid and that the property did not
therefore belong to the estate of Mahmood Natchia.
The defendant became the absolute owner of the property under
P 2.
In support of his first contention the appellant’s Counsel argued thatthe order of the District Judge dated March 16, 1934, was tad in so faras it allowed the second plaintiff to proceed with the action and there wasno provision in the Code which enabled the Judge to strike out thename of one plaintiff and permit the action to proceed in the name of thesecond plaintiff, as in this case there was not only a misjoinder of partiesbut also a misjoinder of causes of action. He relied strongly on section 17of the Civil Procedure Code and a decision of this Court (Abraham Singhov. Jayaneris Singho, Supreme Court Minutes, March 6, 1930) reported in(1935) 3 Ceylon Law Weekly 53.
Now section 17 of the Civil Procedure Code enacts: —
“ Nothing in this Ordinance shall be deemed to enable plaintiffsto join in respect of distinct causes of action ”.
I am unable to agree that this enactment compels a Court to dismissan action for misjoinder of parties and of causes of action.I do not think we are compelled by any other provision of the CivilProcedure Code to read into this particular enactment anything morethan it states. All that the section states is that the plaintiffs shouldnot join in respect of distinct causes of action. I do not see any reasonwhy a Court should not, on an application made to it, exercise itsdiscretion and strike out one or more of the plaintiffs so as to make theplaint conform to the provisions of sections 17. In Jayamaha et al. v.Singapjru et al.' Hutchinson C.J. said—“ The first plaintiff’s cause of
* (1910) 13 N. L. R. 348.y *
256
WIJEYEWARDENE J.—Kudhoos v. Joonoos.
action is for trespass on portions of his land A. and he has nothing to dowith B. The second plaintiff’s is for trespass on his land B, and he hasnothing to do with A. It is true that allthedefendants who filed answer
claim ultimately from the sannas; buttheclaimsofthe plaintiffs are
for distinct causes of action, and ought not to have been joined. SeeSection 17 of the Civil Procedure Code. Their Counsel says that he iswilling that the second plaintiff and his claim should be struck out.But there was no application by either party to strike him out; andsection 18 does not empower the DistrictCourttodo so without an
application; and I think that we havenopowertodo it now The
order made by Hutchinson C.J. with the concurrence of van LangenbergA.J. was to the effect , that the case should be sent back to the DistrictCourt for the consideration of an application to strike out one of theplaintiffs and that the District Judge should deal with it on such termsas to costs, amendment of pleadings, if necessary, and otherwise as hethought fit and if he acceded to it he should proceed with the trial of theother issues.
In London & Lancashire Fire Insurance Co. v. P. & O. Company et at1,de Sampayo J. who was of opinion that there was a misjoinder of partiesand of causes of action said that he would send the case back for trialof the first cause of action excluding the second cause of action: InAlagamma v. Mohamadu* Shaw and de Sampayo JJ. held that neithersection 17 nor any other provision of the Civil Procedure Code necessitatedthe dismissal of an action in all cases where there has been a misjoinderof parties and causes of action. De Sampayo J. further observed in thecourse of his judgment:—“Section 17 of the Code is one of a number ofsections concerned with the framing of an action, and it is obvious fromthe whole set of provisions that the intention of the Code is not to maketechnical defects wholly to defeat an action but to facilitate the correct-ing of such defects in order that the Court may once and for all adjudicateon the merits of the case. Section 93 gives to the Court wide powers ofamendment, and 1 think the District Judge should have exercised thosepowers in this case. It is not as if the plaintiff had not moved him to doso, for it appears that when the legal issue on the objection in questionwas discussed by both sides, Counsel for the plaintiffs intimated to theCourt that he was prepared to strike off from the record the first, second,and third plaintiffs and their particular claims ”.
In this connection reference may also be made to Menika v. Menika*;Kanagahabapathy v. Kanagasabai*; and Fernando v. Fernando*.
Section 17 of our Code corresponds to section 31 of the Indian Code ofCivil Procedure, 1882, and under that section it was held in Behari Laiand another v. Kodu Ram‘ that where a suit was bad for misjoinder ofplaintiffs and causes of action it was not proper to dismiss the suit withoutgiving the plaintiff an opportunity of amendment.
I regret I am unable to assent to the view expressed in 3 Ceylon LawWeekly 53 and I hold that the first point raised by the appellant fails.
The second point urged on behalf of the appellant is that the claimof the second plaintiff is preferred as an heir and as administrator of the
1 (1914) 18. N. L. R• IS.
(1923) 25 N. L. R, 173.
(1937) 39 N. L. R. 145.• (1893) 15 AU. 381.
*(1917) 4 C. W. R. 73.
(1923) 25 N. L. R. 6.
WIJEYEWARDENE J.—Kudhoos v. Joonoos.
257
estate of Mahmood Natchia and that as the District Judge has foundagainst the second plaintiff’s claim as an heir there remaind only hisclaim as administrator which should have been dismissed as he obtainedthe letters of administration about two years after the institution of theaction. If the appellant intended to urge this argument in the lowerCourt, no explanation is forthcoming as to his failure to make his positionclear at least on March 16, 1934, when the District Judge decided thepreliminary issue regarding the misjoinder of plaintiffs and of causes ofaction. Had he done so, it would have been open to the second plaintiffto withdraw his action and file a fresh action immediately after heobtained the letters of administration on April 23, 1934, and before theexpiry of ten years from the death of Mahmood Natchia in June, 1924.If the appellant's contention is now upheld and the plaintiff is compelledto file a fresh action it will be open to the defendant to plead against himthat he has obtained title by prescriptive possession. There appearsto be some ground for the complaint of the Counsel for the respondentthat this point has been taken for the first time at the hearing before usand if the point is now upheld his client will be seriously prejudiced.Though the learned District Judge has dealt with the various mattersin dispute argued before him in a very full and well considered judgment,he has made no reference whatever to this point. It is no doubt justpossible that the District Judge may have forgotten to consider thisargument thought it was urged before him, but in that case I should haveexpected the appellant to raise this point in the petition of appeal inwhich he has raised specifically various other points of law. The petitionof appeal in fact makes no reference whatever to this point. Thelearned Counsel for the respondent has referred us to Steward v. NorthMetropolitan Tramways Co.1 and pleaded that the appellant should notbe allowed to urge this objection at this stage of the proceedings.
There is no direct authority in our Law Reports on the questionwhether the plaintiff who was not an administrator at the time of filingthe plaint but obtained the letters of administration pending the actioncould obtain a decree in his favour. But there are decisions which tendto show that a Court of law should refuse to dismiss an action in circum-stances similar to those which have arisen in this case. In Silva v.Weerasuriya3 an administrator instituted an action in respect of aproperty which was not mentioned in the inventory and the value ofwhich had not been included in the sum on which stamp duty had beenpaid in the testamentary proceedings. Hutchinson C.J. said that if anapplication was made even in the Appeal Court, the case would nothave been dismissed but remitted to the lower Court to enable theplaintiff to get the letters of administration duly stamped, and Wendt J.went further and expressed his view that the Judge of the lower Courtshould not have dismissed the action in any event but adjourned thetrial in order to enable the plaintiff to get his letters duly stamped.In Kanappa Chetty v. Kanappa Chetty * the plaintiff appears to haveclaimed as an adopted heir of a deceased person whose estate was notadministered and this Court sent the case back to the District Court
1 (1886) 16 Q. B. D. 556.•* (1906) 10 N. 1.A R. 73.
3 {1908) 2 S. C. Decisions, 40.
11J. X. B 17627 (5/52)
258
WIJEYEWARDENE J.—Kudhoos v. Joonoos.
with a direction that further proceedings should be stayed to enable theplaintiff to get the letters of administration within a reasonable timeand that on the plaintiff being appointed as administrator he shouldin that capacity be substituted as plaintiff and allowed to proceed withthe action. Section 42 of our Code of Civil Procedure corresponds tosection 50 (4) of the Indian Code of Civil Procedure, 1882, and order 7,rule 4, of the Indian Code of Civil Procedure, 1908, while section 547of our Code so far as it is material for the consideration of the presentquestion is somewhat similar to section 190 of the Succession Act. InSethna v. Hemingway' Scott C.J while holding that the plaintiff whosued as administratrix before obtaining the letters of administrationshould be allowed to retain the benefit of a decree entered in her favourafter obtaining the letters of administration, said—“The plaint wasdefective in that it did not show that the plaintiff had obtained letters ofadministration and it should on that account have been rejected onpresentation.
The plaintiff however obtained letters of administration on October31, 1913, a fortnight before the hearing, and the hearing was allowed toproceed. A decree was passed for the plaintiff declaring that theRs. 10,000 in question formed part of the estate of the deceased and thatthe plaintiff was entitled to the same. This was not contrary to section190 of the Succession Act as remarked by the learned Judge. The onlytenable technical objection was to the institution of the suit before theplaintiff had an existing interest in the subject-matter. That point,however, if it had been taken and had resulted in the rejection of the suitat the hearing, would have only led to a waste of time and costs withoutbenefiting the defendants, for a fresh suit would immediately have beenbrought by the administratrix”.
Moreover, I think that in all the circumstances of this case therespondent is entitled to claim with regard to this contention the benefitof the provisions of section 36 of the Courts Ordinance which enacts that“ no judgment or order pronounced by any Court shall on appeal orrevision be reversed, altered or amended on account of any error, defector irregularity which shall not have prejudiced the substantial rights ofeither party ”.
I hold therefore that the decree obtained by the plaintiff cannot beattacked on the ground that he was not a duly appointed administratorat the time of institution of the action.
The third point involves a determination of the law which governsMuslim deed of gifts. The ruling authority on this question is Weerasekerev. Peiris2 in which the Privy Council considered the validity of a deed ofgift executed by one Muslim in favour of another. The deed purportedto transfer the property as “ a gift inter vivos absolute and irrevocable ”subject to—
a reservation to the donor of the right of taking and enjoying the
rents and income of the property ;
a burden of fidei commissum ;
a right in the donor to revoke the-gift.
1 {1914) 38 Bom. 618.
{1932) 34 X. L. B. 281..
WIJEYEWARDENE J.—Kudhoos v. Joonoos.
259
In view of the elaborate argument addressed to us by the appellant'sCounsel based on the alleged difficulty of seeing clearly the principles of-law enunciated by the Privy Council, I think it best to reproduce inextenso the relevant passage from that judgment: —
“ The conditions and restrictions mentioned in the deed are quiteinconsistent with a valid gift inter vivos according to the Mohammedan• law, for, by the deed, the father reserved to himself the right tocancel and revoke the so-called gift, as if the deed had not beenexecuted, and to deal with the premises as he thought fit; he reservedto himself the rents and profits of the premises during his lifetime,and it was only after his death that the premises were to go to and bepossessed by the son.
In their Lordships’ opinion all the terms of the deed must be takeninto consideration when construing the deed, and it seems clear totheir Lordships that it was never intended that the father should partwith the property in or the possession of the premises during his life-time, or that the son should have any control over or possession of thepremises during his father’s lifetime. In other words it was notintended that there should be a valid gift as understood in theMohammedan law.
The deed further provided (among other things) that after the father’sdeath, the son should not sell, mortgage or alienate the premises or anypart thereof ….
It was not disputed that the last-mentioned provisions constituted afidei commissum, according to Roman-Dutch law, but, as alreadystated, it was contended, on behalf of the respondent, that inasmuchas the terms of the first part of the deed purported to constitute a giftinter vivos between Muslims, the Mohammedan law must be appliedthereto and as possession of the premises was not taken by the sonduring the father’s life, the gift was invalid and the fidei commissumwhich was based on it, also failed.
Their Lordships are not able to adopt this contention of therespondent, and upon the true construction of the deed, having regardto all its terms, they are of opinion that the father did not intendto make the son such a gift inter vivos as is recognised in Mohammedanlaw as necessitating the donee taking possession of the subject-matterduring the lifetime of the donor, but that the father intended to createand that he did create a valid fidei commissum such as is recognizedby the Roman-Dutch law.”
If I may say so, I do not see any difficulty in ascertaining the principlesof law laid down in that judgment. Nor am I able to hold, in view of thatdecision, that deed P 1 which has to be constructed in this case should notbe regarded cis governed by the Roman-Dutch law. The deed P I is adeed of gift between Muslims subject to a reservation of a life-interestin favour of the donor and creating a fidei commissum in favour of thechildren of the donee. I am unable to see any indication in the deed ofthe donor’s intention to make a gift inter vivos as known to the Muslimlaw and I have no doubt that the donee intended to create and did in factcreate a valid fidei commissum as known to the Roman-Dutch law
260
de Silva v. William.
The argument of the appellant’s Counsel appeared to me to be an invita-tion to us to whittle away the effect of the Privy Council decision byendeavouring to ignore the plain meaning. of that judgment and decidethe present case according to the view of law expressed in the decisionreported in 32 New Law Reports 176 which was the very judgmentoverruled by the Privy Council, There are three reported cases inwhich this Court had to consider the validity of Muslim deeds of giftsubsequent to the Privy Council decision. In Sultan v. Peiris1 andin Ponniah v. Jamal', this Court held that the validity of deeds of giftin those cases should be decided according to the Muslim law and not theRoman-Dutch law. It is possible to distinguish these cases from thePrivy Council case as the learned Judges who decided those cases pointedout that the deeds themselves gave a clear indication of the donor’s inten-tion that the deeds should have “ the character of a deed of gift under theMuslim law ”. It is however not possible to reconcile some of the viewsexpressed in the two subsequent decisions of this Court mentioned abovewith the ruling of the Privy Council but in spite of these views I ambound to follow the decision of the Privy Council. In Kalenderumma v.Marikar= this Court followed the Privy Council decision and held that aMuslim deed of gift reserving a life-interest in favour of the donor wasnot governed by the Muslim law and the deed was valid according to theRoman-Dutch law.
I hold that the deed P 1 is a valid deed of gift and that effect should begiven to the fidei commissum created by it.
With regard to the fourth point the appellant’s Counsel argues that bydeed P 2 Mahmood Natchia purported to convey the entire propertyand that even if Mahmood Natchia held the property subject to a fideicommissum, the defendant became the absolute owner of the propertyon her death without leaving any fiduciary heirs. An examination of P 2shows that there is no foundation whatever for this argument as by thatdeed Mahmood Natchia conveyed for a sum of Rs. 250 only her “ life
rent or possessory interest ” in the property.
I would therefore dismiss the appeal with costs.
Moseley A.C.J.—I agree.
Appeal dismissed.