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Present} Ennis A.C.J. and De Sampayo J.
MEYDEEN v. ABUBAKEB et al.216—D. G. Jaffna, 13,025.
Muhammadan law—Deed of gift—Interpretation—Gift subject to a reset- .vation—Possession by donor.
The secondand third defendants,Muhammadans, executed a ■
deed conveying to the plaintiff certain lands by way of donation,saying, " as we reserve for ourselves a life interest over the saidlands and their appurtenances hereby donated, we do declare thathe shall after our lifetime possess the same as his own property.'’
“ Held, that the deed was inoperative as a gift under theMuhammadan law.
Ennis' A.C.J.—“ The reservation in this case does not appearto be a condition of the gift, but rather to indicate the intentionOf the donor in making the gift, and, therefore, there 'has been nochange of status in the possession of the land. The character ofthe donor’s, possession did not change. They possessed as owners'and not under the donee.”
rpHE facts appear from the judgment'.
A. St. V. Jayewardene (with him Tisseveraainghe), for appellant.—Delivery of deed is not essential to pass title. Execution of thedocument as required hy Ordinance No. 7 of 1840 takes the placeof delivery in Muhammadan law. Donation is not vitiated by theenjoyment of the income by the donor. Muhammadan law relatingto donation does not apply in Ceylon. (Gren., pt. 3, p. 28.) TheMuhammadan law of land tenure was never introduced into Ceylon.If Muhammadan law applies, property under usufructuary mortgagecannot be gifted. In a donation with a condition, the donation will begood and the condition void. Tyabji on Muhammadan Law, p. 259.Thus, life interest cannot be reserved, and this becomes an absolutegift. Further, the donee was in possession, and had paid the taxes.At the time of the execution of the deed, if donor and donee arein possession, delivery of possession will be presumed. • HumeraBibi v. Najm-un-nissa.*
Bawa, K.G. (with him Arulanandan), for the respondents, citedJainabai v. Sethana.2
November 11, 1919. Ennis A.C.J.—
In this case the secondv and third defendants executed a deedconveying to the plaintiff certain lands by way of donation, saying,“ as we reserve for ourselves a life interest over the said lands and
i (1906) I. L. B. 28. Att, 147.* (1910) 34 Bom. 604.—
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their appurtenances hereby donated, we do declare that he shallafter our lifetime possess the same as his own property.” Thisdeed is dated February 4, 1908, and is numbered 4,798. It wasaccepted by the plaintiff, but the deed itself has been produced bythe defendants. On October 29, 1917, by deed No. 5,884, the secondand third defendants purported to- sell to the first defendant !fora sum of Bs. 1,000 the land in dispute in the present case. The .learned Judge held that the deed No. 4,793 was inoperative as agift under Muhammadan law. It has been urged on appeal that theMuhammadan law of donation does not apply in Ceylon, and, inview of the case of Affefudeen v. Periatamby, l- it was suggestedthat this matter might be referred to a Full Court. That casedecided that donations between Muhammadans were regulated bythe Muhammadan Law, and for this proposition the case D. C.Colombo, No. 12,129 (Vanderstraaten, Ap-pendix B, p. 31), wasrelied upon. In addition to this case, we have been referred to alater case in the same set of reports at page 175. These two casesappear to have been heard before a Bench of three Judges. It istoo late now to go into the question as to whether the Muhammadanlaw of donation applies in Ceylon. It would seem merely to opena field for speculation as to the existence in Ceylon of Muhammadanlaw prior to the Dutch occupation of Ceylon. I would, therefore,accept the ruling accepted in Affefudeen v. Periatamby,1 that dona-tions between Muhammadans are regulated by Muhammadan law.That being so, we have to consider in this case whether the documentNo. 4,793 is an effective donation in Muhammadan law. Under -Muhammadan law apparently three things were necessary to aneffective donation: an intention to give, an acceptance by the donee,and a seisin of the property by the donee. These matters are dealtwith in Amir Ali at pages 40 and 95. In the present case the deeditself shows that there was no intention to make an absolute gift.
It expressly says that, the donee is not to possess the property untilafter the death of the donors, so that no question of seisin, construc-tive or ■ otherwise, can arise under this deed, as the deed itself inits terms does not give the property absolutely. The Muhammadanlaw requires that there should be a clear intention to give theproperty absolutely. The reservation,, in this case does not appearto be a condition of the gift, but rather to indicate the intentionof the donor in making the gift, and, therefore, there has been nochange of status in the possession of the land. The character ofthe donors’ possession' did not change. They possessed as owners,and not under the donee. In the circumstances, the decree pf thelearned Judge is, in my opinion, right, and I wpuld dismiss theappeal, with costs.
Db Sampayo J.—I agree.
(1911) 14 N. L. B. 295
MEYDEEN v. ABUBAKER et al