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Present : De Sampayo J. and Schneider A..J.MOHAMADU v. MAEIKAE.
72—D. G. Matara, 8,300.
Muhammadan law—Donation—Delivery of possession , may <be actual orconstructive—Custom not to give possession to a daughter untilfour of five years after the birth of a child.
Under the Muhammadan law the delivery of possession for thepurpose of an effective donation need not be actual, bat may beconstructive.
Delivery of the deed is a constructive as well as an effectivedelivery of possession of the lands.
Affefudeen v. Periathamby1 explained.
f,jpHE facts appear from the judgment.
Bawa, K.C., for defendant, appellant.
A. St. V. Jayawardene, for plaintiff, respondent.
Cur. adv. vult.
July 7, 1919. De Sampayo J.—
We dismissed this appeal at the conclusion of the argument onbehalf of the defendant-appellant, and it is only necessary tostate shortly our reasons for doing so. The plaintiff, as administratorof his deceased wife, Pathumma Natchia, claims a half share of theland called Udumanpulligedarawatta. Pathumma Natchia was theonly daughter of the defendant, and on her marriage with theplaintiff the defendant gave her as dowry the said half share ofland and certain other property mentioned in the kaduttam. Themarriage took place on November 6, 1914, and a few days after-wards, namely, on November 13, 1914, the defendant confirmed thegift by the execution of a deed in favour of Pathumma Natchia.The defendant now pleads that possession of the property was notdelivered, and was in fact withheld from her, and that no titleconsequently vested in her, and he relies on the decision in Affefu-deen v. Periatamby,1 which expounds the Muhammadan law on thesubject of donations.
in my opinion the Muhammadan law, even as explained in thedecision relied on, does not. help the defendant in this case. Forthe delivery of possession for the purpose of an effective donationneed not be actual, but may be constructive, and Lascelles C.J.summarized the law thus: “ The principle which underlies thenumerous authorities appears to be that any act by which the donor 1
1 (1911) 14 N. L. B. 996.
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places the donee in the position to exercise the right of propertyover the subject of the gift satisfies the requirements of the law asregards delivery of possession.”
When the facts of this case are examined in the light of thisprinciple, it will be found that the requirements as to delivery ofpossession was amply satisfied. The gift was accepted by PathummaNatohia on the face of the deed, and after the deed had beencompleted, the defendant himself took the plaintiff to the notaryand' had the deed delivered to him. The plaintiff got the deedregistered, and when it was received by him from the registrar it wasput in a box of Pathumma Natohia’s, and remained there till herdeath. No doubt the deed is now produced by the defendant, butthat circumstance is easily explained. The plaintiff and PathummaNatchia lived in defendant’s house during their married life, and afterPathumma Natchia’s death some unpleasantness appears to havearisen between the plaintiff and the defendant, and the plaintiffleft the house, leaving behind him the box in which the deed was,and some other belongings of Pathumma Natchia. In this respectAffefudeen v. Periathamby (supra) is distinguishable,. and, in myopinion, the delivery of the deed was a constructive as well as aneffective delivery of possession of the lands, for, to use the languageof Lascelles, C.J., there was an act done by which the defendantplaced Pathumma Natchia in a position to exercise the rights of. property over the subject of the gift. The defendant says thatthere is a custom amongst the Muhammadans not to give possessionto a daughter until four or five years after the birth of a child, whichhe calls tue " period of probation ” of the husband. There is nofoundation for this assertion of a custom, and I am wholly unable torecognize such a custom. To prove this alleged custom the defend-ant called an expert witness, who, however, wholly failed him. Forthe witness, while saying that a marriage gift takes effect only aftertwo or three years after a child is bom, added that delivery of thedeed was enough, and that in that case no actual possession need f ass.This appears to be not only good law, but extremely good sense.In each case the question whether the donor intended to make agift and to pass title at once is one of fact. In the present case therecan be no doubt as to the defendant’s intentions. If he, in accord-ance with a so-called custom, wished to suspend the gift, why didhe execute a deed when the kaduttam would have served his pur-pose? Then, again, why should a gift to the daughter hang upduring a period of probation of the son-in-law? The whole defenceappears to me to be an after-thought, and to have its origin in thequarrel between the plaintiff and the defendant.. It may be thatthe defendant continued to be in actual possession of the shares ofthe lands, but there is nothing extraordinary in that circumstance,inasmuch as he remained the owner of the other shares, and I thinkthe defendant must reasonably be taken to have been in possession
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on behalf of the daughter who was all along living with him. Theproduce was ‘brought into the house, and was no doubt consumedby both parties. Moreover, the gift included a share of the house,and I do not see why Pathumma Natchia, who with her husbandoccupied two rooms in the house, should not be regarded as havinghad actual possession of the share of the house. I think thatPathumma Natchia acquired good title under the deed of gift, andthat the plaintiff as her administrator is entitled to judgment.
For the above reasons, I think the appeal was rightly dismissedby us.
Schneider A.J.—I agree.
MOHAMADU v. MARIKAR