113-NLR-NLR-V-53-MOHAMED-CASSIM-Appellant-and-ABDUL-JABBAR-et-al.-Respondents.pdf
BASNAYAKE T.—Mohamed Cassim v. Abdul Jabbar
495
1951Present : Basnayake J. and Gunasekara J.MOHAMED CASSIM, Appellant, and ABDUL JABBAR et al.,
Respondents
<S. C. 115—D. C. Kandy, 1,556
Muslim Laic—Conditional gift—Validity.
Where a Muslim made a gift of certain premises to another Muslim subjectto the condition that the donee should render all necessary assistance andsuccour to the donor so long as the latter lived and that after the donor’s deatnthe property should continue to remain in the donee and his heirs, executors,administrators and assigns—
Held, that there was a valid conditional gift. . In Muslim Law contingent-gifts are void but conditional gifts are good.
jAlPPEAL from a judgment of. the District Court, Kandy.
– H. V. Perera, K.C., with M. I. M. Haniffa and T. B. Dissanayake, forthe plaintiff appellant.
H. W. TamJbiah, with P. Somatilakam and S. Sharavananda, for thedefendant respondent.
Cur. adv. vult.
October 10, 1951. Basnayake J.—
The appeal in this case came up for hearing on the 19th of September,1947, before Justices Canekeratne and Windham. It was decreed that:
“ If the defendant pays .the costs of the contest in the court belowand costs of appeal within a period of one month after the bill hasbeen taxed by the plaintiff, the defendant will have the right to putforward .the case on this point—that deed D1 is governed by the RomanDutch Law. It will not be open to the respondent to set up any otherdefence. The plaintiff will be at liberty to contend that the deed isgoverned by Muslim Law or otherwise, as the case may be. If the costsare not paid or if the defendant fails in his contention that the deedis governed by the general law judgment will be entered for theplaintiff as prayed for. ”
The costs were paid on 14th June, 1949, and when '.the matter cameup for hearing the following issues suggested by counsel for the defendantwere agreed on—
Is deed No. 31390 of the 9th December, 1924, marked Dl, governed
by the Roman Dutch Law?
If so, does any title pass to the plaintiff upon the title pleaded by
him ?
. (3) Damages? Agreed on at Rs. 10 per month as from 23rd October,1944.
No evidence was led by either side but the arguments of counsel wereheard. Thereafter the learned District Judge delivered judgment dis-missing the plaintiff’s action with costs and holding that the deed Dl wasgoverned by the Roman Dutch Law. The present appeal is from thatdecision.
37 – N. L. R. Vol. – Uii
496
BASNAYAKE J.—Mohamed Cassim v. Abdul Jabbar
I shall first consider the material paragraphs of the deed the originalof which is in Sinhalese. There are two translations of the deed. I shallquote from D1 which reads:
“…. in consideration of the love and affection which I bear
to my dear son Ismail Lebbe’s son Abdul Jabbar …. and withthe object of receiving from him all assistance and succour I may be inneed of do hereby donate grant convey and assign by way of gift withmy good will and pleasure unto the said Ismail Lebbe’s son AbdulJabbar the premises described below ….
“ Therefore so long as I the said Uduma Lebbe’s daughter MariamBeebee live in this world, the said Ismail Lebbe’s son Abdul Jabbarshall render me all necessary assistance and succour. And after mydeath the aforesaid premises shall devolve on the said Ismail Lebbe’sson Abdul Jabbar his heirs executors administrators and assigns, untowhom I do hereby assign the sole authority to hold and possess the samefor ever free of dispute or to deal with the same at will and pleasure.
It is contended that this is a gift to take place upon death and as suchis invalid according to Muslim Law but valid according to Roman DutchLaw. Counsel for the respondent laid great emphasis on the word“ devolve ” in the context “ the aforesaid premises shall devolve on thesaid Ismail Lebbe’s son Abdul Jabbar ”. He argued that the wordsuggests that the donor retained the property for herself during herlifetime and stipulated that it should pass only on her death.
Neither of the translations put forward reproduces faithfully theintention of the donor as indicated in the original deed which is in^Sinhalese. With the consent of counsel we examined the originalSinhalese deed. The material portion of that deed is as follows: —
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It is clear from the language of the deed that the word “ devolvein D1 has no corresponding expression in the deed. What the donorprovides is that after her death .the property should continue to remainin Abdul Jabbar and his heirs executors administrators and assigns.
Daruuekara v. Ranmenika
497
A deed of gift in this form is familiar to Kandyan Law in which systemit is called a deed of assistance. It is admitted that the donor and doneeare Muslims governed by the Muslim Law. According to that law- contingent gifts are void but conditional gifts are good. Ameer Ali statesthe following proposition at page 85 of Volume 1 of his work. onMahommedan Law :
" If a person make a gift of land to another on condition that thedonee should give to the donor the produce of such land for his support,according to Abu’l Kasim, if the land is capable of bearing produce, thegift is good and the condition void. But if the land is waste or un-culturable, the gift is bad. Under the Shiah Law both the gift and thecondition would be valid.
One of the illustrations of a conditional gift given by Ameer Ali(Mahommedan Law, Vol. 1, p. 78, 3rd Edn.) is as follows: —
“ A gift by A to B of a certain property without any restrictionon the power of disposition, but subject to the condition that B shouldpay periodically to A, or A and his heirs, a part of the usufruct of theproperty. In such a case both the gift- and the condition would bevalid. ”
The gift in the instant case is a valid conditional gift. The appellantis therefore entitled to judgment as prayed for in terms of the decree of theSupreme Court dated the 19th day of September, 1947.
We accordingly allow the appeal with costs both here and below.
Gunasekara J.—I agree.
Appeal allowed.