138-NLR-NLR-V-42-MUSTAPHA-v.-UMMA-KANIA.pdf
SOERTSZ J.—Mustapha v. Umma Kania.
551
1941Present: Soertsz and de Kretser JJ.
MUSTAPHA v. UMMA KANIA.
170—D. C. Kalutara, 21,620.
Muslim law—Gifts between spouses—Irrevocable—Gift in lieu of Mahar—
Delivery of possession not essential.
Under the Muslim law gifts between spouses are irrevocable.
A gift in lieu of Mahar is not invalid for non-delivery of possession.
^PPEAL from a judgment of the District Judge of Kalutara.
N. K. Choksy, for plaintiff, appellant.
H. V. Perera, K.C. (with him U. A. Jayasundere), for defendant,respondent.
Cur. adv. vult.
September 3, 1941. Soertsz J.—
The short point involved in this appeal was whether the learned DistrictJudge was right that the deed of gift which the plaintiff-appellant soughtto set aside was irrevocable.
The plaintiff executed the deed in favour of his wife (the defendant), “ inlieu of the Mahar due to her and in consideration of the natural love andaffection ” which he bore “ unto her ” and he declared it to be “ a gift ordonation absolute and irrevocable ”. He now seeks to set aside thisdonation on the ground (a) that “ the defendant is misconducting herselfwith one S. M. Athas ”, (b) that “ the defendant has been ungrateful anddisobedient to the plaintiff ”, (c) alternatively, that “ no possession hasbeen given over the said property and therefore the donation is null andvoid ”. The charges in (a) and (b) and the allegation that there was nodelivery of possession in (c) have not been investigated because the partieswere content that the Judge should decide as a preliminary issue thequestion raised by the defendant, namely, whether “ even if issues 1, 2and 4 (namely, the matters in (a), (b) and’(c) above) are answered in theplaintiff’s favour is the plaintiff entitled to the declaration claimed byhim”?
552
SOERTSZ J.—Mustapha v. Umnia Kania.
The learned Judge heard argument on this issue and held that the lawapplicable to Muslim donations not involving fidei commissa is the Muslimlaw, and that according to the branch of that law which prevails in Ceylon,gifts by spouses to each other are irrevocable. I am clearly cf opinionthat the trial Judge was right on both these points. Section 3 of Ordi-nance No. 10 of 1931 puts it beyond question that Muslim law governs thequestion, and once that is the case, gifts between spouses are irrevocable.I am unable to appreciate the distinction the plaintiff-appellant’s Counselsought to draw when he submitted that this irrevocability applied onlyas between donor and donee, but did not preclude a Court of law fromsetting aside a gift on grounds such as alleged in (a) and (b) if they wereestablished. A revocation of a gift- to be effective must be by proceedingsin a Court of law as is made clearly explanation (2) in section 127 in“ Principles of Mohamedan Law ” by Mulla, 4th edition, page 93 ; and,clearly, a Court of law can set aside a gift only on the grounds known tothe law it is administering in a particular case, *>nd a Mohamedanhusband or wife may not revoke a gift made by the other spouse. Thisis the law laid down without qualification in section 127 I have alreadyreferred to. It follows that the deed is not revocable on grounds (a)and (b).
In regard to ground (c) the deed declares that the gift is made in lieu ofMahar. In other words, that it was such a transaction as the Moha-medan law designated a “ Hiba-bil-uwuz The fact that the donordeclared that he was also moved by the love and affection he bore untothe donee does not alter the real character of the transaction. There isthe binding authority of th'e Privy Council for the proposition that a giftin lieu of Mahar is not vitiated by the non-delivery of possession. SeeMuhammad Esuph Ravuthan v. Pattamsa Ammal
For these reasons, I hold that the trial Judge came to a right conclusion.I dismiss the appeal with costs.
de Kretser J.—I agree.
Appeal dismissed. 1
1 23 Madras 71.