MUTTALIBU, Appellant, and HAMEED, Respondent

020-NLR-NLR-V-52-MUTTALIBU-Appellant-and-HAMEED-Respondent.pdf

Present : Dias S.P.J. and Swan J.MUTTALIBU, Appellant, and HAMEED, DespondentS. C. 335—D. C. Kandy, 2,308
Muslim, law—Benami transaction—Not recognized in Ceylon—Usage—Proof, andjudicial notice, thereof—Evidence Ordinance (Cap. JL1), S. 57—Donation—Ingredients thereof.
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Trusts Ordinance (Cap. 72)—Sections 2 and 84—Purchase of property by father in
name of son—.Equitable doctrine of advancement—Resulting trust—Burden ofproof.
A, An Indian Muslim domiciled in Ceylon for' fifty years, provided the con-sideration to four vendors, B. C. D. and E, who thereupon transferred by deedproperty to F, who was the son of A. A and F having fallen out, A sued F (a)for a declaration that F held the property in trust for A, or (b) for a declarationthat (i) the four properties, or (ii) the consideration for the four transfers, weregifts to F by A, who was entitled to revoke the gifts.
It was sought to be argued, in view of the decisions of the Privy Council inGopeekrtst Gosain v. Gungapersaud Gosain (1854) 6 Moore’s Indian Appeals 53and Moulvie Sayyud Uzhur AH v. Musswmat Beebee Ultaf Fatima (1869) 13 Moore'sIndian Appeals 232, that the usage in India known as Benami transactionsapplied to this case and that, therefore, F held the lands or the considerationas a trustee for his father A.
Held, (i) that there was no proof that the usage in India known as Benamitransactions had been introduced into Ceylon. The Muham me dan Law whichprevails in Ceylon is so much, and no more of it, as has received the sanctionof custom or usage in Ceylon. Abdul Rahiman v. Ussan Unvma (1916) 19N. L. R. 178 followed.
that the existence of a usage is a question of fact, and must be provedby the evidence of persons who become cognizant of its existence by reason oftheir occupation, trade, or position. A usage is not proved by merely bringingthe person interested in establishing its existence to give oral evidence of itsexistence unsupported by other evidence. A usage must be notorious, andcertain, and must not offend against the intention of any legislative enactment.A usage passes through three well marked stages, namely, (a) the primary stagewhen the particular usage must be proved with certainty and precision,(b) the secondary stage when the Court has become to some degree familiar withthe usage, and when slight evidence only is required to establish it, and (c)the final stage when the Court takes judicial notice of the usage and evidenceis not required. Quaere, whether, in viewof the terms of section 57of theEvi-dence Ordinance, a Ceylon Court can takejudicial notice of ausage.Dodwell if;
Co. v. John (1915) 18 N. L. R. 137 and Kumarappa Chetty v. Ceylon WharfageGo. (1905) 2 Bal. 120 referred to.
that it is a well settled principle of Equity, which is recognized by section2 of the Trusts Ordinance, that where afather or person inloco parentispur-chases property in the name of his childor wife thele is astronginitialpre-
sumption that such transfer was intended for the advancement of such childor wife, and the provisions of section 84 of the Trusts Ordinance do not applyto such transaction. The onus in such cases is, therefore, on the party seekingto establish the trust to prove that fact. F, therefore, did not hold the landsor the consideration in trust for his father A. Fernando v. Fernando (1918) 20N. L. R. 244 and Ammal v. Kang any (1910) 13 N. B. R. 65 approved andapplied.
that the transactions could not be regarded as donations either of thelands or of the consideration given by A. Affefudeen v. Periatamby (1909)12 N. L. R. 313 dissented from.
^^PPEAD from, a judgment of the District Court, Kandy.
5. J. V. Chelvanayagam, K.C., with H. W. Tamibiah, for the plaintiffappellant.—When a person buys property in the name of his son the-transaction may be regarded either as a trust or as a gift- Viewed as atrust section 84 of the Trusts Ordinance is applicable to the facts of thepresent case.
[Dias S.P.J. referred to the presumption of advancement for thebenefit of the son.]
There is no case where the doctrine of advancement from fatherto son was recognized in Ceylon.
[Dias S.P.J.—Thatdoctrine was adopted before the Trusts
Ordinance was enacted.]
Ammal v. Kangany 1 does not consider the doctrine of advancement.Fernando v. Fernando 2 is no authority for saying that the doctrine ofadvancement is engrafted in our law, Fernando- v. Fernando 3 was acase of advancement from mother to son. What was held in that casewas that the son held the property in trust for the mother. The doctrineof advancement was considered but not applied. Hence any dicta in thecase with regard to the doctrine are obiter. In any event the doctrineof advancement is only a presumption that arises in respect of certainclasses of persons.—Berwick v. Berwick 4; Gopeekrist Gosin u. Gunga-persaud Gosain 5; Moulvie sayyud ZJzhur Ali v. Mussumat Beebee UltafFatima 6. Particular habits of life and usages are recognized by theCourts when determining the question whether the doctrine of advance-ment should be applied in any particular case—Kenvick v. Berwick(supra).
If the transactions in this case are held not to create trusts then itis submitted that they must be regarded as gifts under the MuslimDaw. Under Muslim Daw gifts from father to son are revocable.The gift of the money is tantamount to a gift of the land. The Courtmust look to the substance of the transaction and not to the form—-Affefudeen v. Fefiyatamby 1 ■ See also Voet (de Sampavo s translation].39-5-2,39-5-10; and Pandit Ram Narain v. Maulvi Muhammad
Hadi 8. On the question of revocation see Gader v. Pitche 9. Section Sof the Muslim Intestate Succession and Wakfs Ordinance (Cap. 50)has no effect on donations not effectuated by deeds. The proviso to
section 3 does not apply in the present case as the deeds here are notfrom donor to donee. Section 3 was construed by Canekeratne J. in•JSaraumma v. Mainona 1. That was a case of direct gift.
H. V. Perera, K.C., with N.K. Cholcsy, K.C., and Cyril E. 8. Perera.for the defendant respondent.—In order to ascertain whether the doctrineof revocation in Muslim law applies it is necessary to consider whether•the transaction is a valid gift under Muslim law. Under Muslim law thesubject matter 'of the gift must be owned by the donor and subject tohis control at the time the gift*was made—Tyabji :Muhameddan Law
{1913 ed.) pp. 276,277; Amir Ali : Principles of Muhammeddan Law,Pol. I, p. 35 ; Weeraseltera v. Pieris 2. In the present case the plaintiff.neither had title to nor possession of the property transferred. Beforethe transfer was made the vendor was holding the property as owner.and not as agent of the plaintiff. The transaction is therefore not adonation. Section 3 of Cap. 50 has no application to the present case.
On the question of trust it is submitted tKat section 2 of the Trusts•Ordinance (Cap. 72) distinguishes all the Indian cases cited. There isno corresponding section in the Indian Trusts Act. The doctrine ofadvancement is a rule of English law, not a presumption of fact. On theapplicability of English principles of Equity in Ceylon see Abeyesundera■v. Ceylon Exports Ltd 3. The existence of a usage is a question of factand must be proved by clear andi convincing evidence—10 Hailshamp. 60. One witness cannot prove a usage. In the present ease it wasan interested witness, the plaintiff himself. The findings of, the trialjudge should not be disturbed.
S. J. V. Chelvanayagam, K.C., in reply.—The presumption of advance-—-ment was applied in the Indian cases cited as a principle of the Englishlaw. See the judgment of the Rangoon Court in Kerwick v. KerwicTc 4.Ammal v. Kangany 5 did not deal with the question of donation whichwas not even raised. Affefudeen- v. Periatamby 6 was a case of donation.See also Tyabji: Muhameddan Law (3rd ed.) pp. 378-38Q.
Cur. adv. vult.
August 23, 1950. Dias S.P.J.—
By deed of transfer P2, dated December 20, 1933, one W. Weerakoon-conveyed to the defendant respondent for a sum of Rs. 5,500 the premisesbearing assessment number 282, Trineomalee Street, Kandy. It is•admitted that the consideration for this transfer was found by thedefendant’s father who is the plaintiff appellant. By deed P8, datedMay 19, 1938, one Cader Mohideen conveyed to the defendant the premisesnumbered 56 and 56a in Castle Street, Kandy, for a sum of Rs. 6,000.These premises had been mortgaged to the plaintiff who had put thebond in suit and obtained mortgage decree. The notary’s attestationin P8 shows that out of the consideration a sum of Rs. 5,500 was setoff at the request of the plaintiff in full settlement of the balance claim•and costs due to him, and the balance sum was paid to the vendor (mort-gagor). By deed P9, dated December 24, 1941, one Ramasamy Rettiar
»
{1948) SO AT. L. R. 319.*A.. I. R. (1918) Lower RurmaIS.
(1932) 34 N. L. R. 281 at p.284.e(1910) 13 N. L. R. 65.
* (1936) 38 2F. L. R. 117 at p.124.«(1909) 12 1C. L. R. 315.
for a consideration of Es. 37,500 conveyed to the defendant Panchi -pitiya Estate. The attestation shows that out of the considerationRs. 2,000 was acknowledged to have been received previously. The-balance was paid in cash in the presence of the notary. The plaintiff’scase is that it was he who found that money for his son the defendant.
Ein ally, by deed. P10, dated March 29, 1944, one Davudu Saibo conveyedto the defendant Ginigathhena Estate for the sum of Rs. 35,000. Theattestation shows that the consideration was paid by two cheques of theplaintiff in favour of the defendant who endorsed them to the transferor.
S. 84 of the Trusts Ordinance (Chapter 72) provides :
“ Where property is transferred ,to one person for a considerationpaid or provided by another person, and it appears that such otherperson did not intend to pay or provide such consideration for thebenefit of the transferee, the transferee must hold the property forthe benefit of the person paying or providing the consideration
In the case of three of the above-mentioned deeds, namely, P2,P8;
and P10, it is clear that the plaintiff (father of the defendant) providedthe consideration for those transfers. In the case of the deed P9 theplaintiff asserts that it was he who provided the consideration. I shallfor the purposes of this judgment assume that that is the fact.
Section 2 of the Trusts Ordinance also provides :
“ All matters with reference to any trust, or with reference to anyobligation in the nature of a trust arising or resulting by the implicationor construction of law, for which no specific provision is made in this-Ordinance, shall be determined by the principles of Equity for the timebeing in force in the High Court of Justice in England ”.
It is a well recognized principle of Equity that a purchase by A in B’s-name raises no presumption of a trust where B is the xoife or child of A.In such a case a strong presumption arises that the parent intended,it to be a gift (I am using that word in the popular sense) for the advance-ment of the child. In other words, the provisions of s. 84 of the Trusts.Ordinance do not apply where the consideration for the transfer has beenfound by the father or a person standing in loco parentis to the transferee-
Although our Trusts Ordinance was only enacted in the year 1917,nevertheless, ever since the time the British connexion began in this-Island, and thereafter, our Courts have applied principles of Equity to theproblems which arise in our Courts whenever necessary. Keunemanin his Notes on the Laio of Trusts {pages 3-9) has traced the historicaldevelopment of the rules of Equity in general, and of the Law of Trusts-in particular in this Island, culminating in the enactment of the Trusts-Ordinance. That the doctrine of “ advancement ” is part of the lawof Ceylon is placed beyond all question by the provisions of section 2,.which makes applicable the English rules of Equity to all casus omissi.
The case of Fernando v. Fernando1 (which was probably decided shortlybefore the Trusts Ordinance became law) is an authority in point.Counsel for the plaintiff *appellant strenously argued that what the
learned Judges said in that case in regard to the doctrine of advancementare obiter dicta, and therefore, not binding on us. It is thereforenecessary to consider that contention.
The facts in Fernando v. Fernando1 are as follows:A lady named
Nonnohamy had two sons—Edwin and Samuel. 1STonnohamy lent moneyon a mortgage, and caused the bond to be written in favour of herson Edwin. In making her last will Nonnohamy dealt with the moneydne on that bond as if it was l^er own property. Edwin was presentwhen Nonnohamy gave instructions to the notary to draft the will, buthe made no protest. After Nonnohamy’s death Edwin, as one of theexecutors, filed an inventory in which he without protest disclosed themoney due on the bond as being part of the estate of his deceased mother.He also elected to take benefits under his mother’s will. Edwin thendied, and a contest arose between Samuel (Nonnohamy’s survivingexecutor) and the administratrix of Edwin’s estate as to the ownershipof the money due on the bond. It was held (1) that the law is ‘‘‘wellestablished ” that the presumption which arises (now under s. 84 of theTrusts Ordinance) when property is bought in the name of one personwith the money of another of a resulting trust in favour of the personwho provides the money, does not apply in a case Where property isbought by a father or another person in loco parentis in the name of achild. (2) Whether this doctrine applies to a mother is open to some doubt,and there are divergent decisions on the subject. The balance of authoritygoes to show that such a presumption does not necessarily arise, butonly when she has placed herself in loco parentis within the special meaninggiven to those words in these cases. Very little evidence in the case of amother beyond relationship is wanted to establish that she stands inloco parentis—there being very little additional motive required to inducea mother to make a gift to a child. (3) The presumption of a gift infavour of a child can, however, be displaced by evidence of the intentionof the parties. The cases show that the evidence of intention must becontemporaneous with the purchase, and relate to the intention at thetime. Subsequent acts and declarations are admissible, but are of littleprobative value. (4) On the facts it was held that there were no contem-poraneous statements of Nonnohamy. The only statement was whatshe said in her will when she dealt with the money as her own. Therewas however strong evidence showing that no gift to Edwin was intendedfrom his own acts. It was further held that Edwin, having elected totake under his mother’s will, neither he nor his privies could thereaftersay that the money was not the property of Nonnohamy.
It was held that such a contention could not be supported in view of theStatute of Frauds, but the Court also referred to the presumptionswhich may arise in such a case, and to the evidence necessary to establisha trust. I, therefore, hold that the doctrine of advancement is and alwayshas been part of the law of Ceylon and forms an exception to the rule ofresulting trusts formulated by s. 84 of the Trusts Ordinance. In a casewhere a father or person in loco parentis buys property in the name of achild, there is an initial presumption that s. 84 of the Trusts Ordinancedoes not apply. On the contrary, theje is a strong initial presumption•that the transaction was for the benefit of the child. The onus thereforelies on the parent or person in loco parentis to rebut that presumption,by proof of his intention not to rfiake the child the absolute owner.
' In this case, however, the plaintiff appellant seeks to avoid the conse-quences of this presumption of advancement by contending that thatdoctrine does not apply to Indian Muslims in Ceylon. This is the firsttime such a contention has been set up in Ceylon, and it is thereforenecessary to consider the matter carefully.
The Indian Trusts Act, No. 2 of 1882, although it is almost identicalwith our own Ordinance, does not contain a provision similar to our s. 2which makes the English principles of Equity to apply to casus omissi.This difference between the two systems of law should be borne in mindwhen considering the Indian cases.
In the case of Gopeekrist Gosain v. Gungapersaud Go sain1 the PrivyCouncil held that the presumption of the Hindu Law in a joint undivided•family is that the whole property of the family is the joint estate, and theonus lies upon a party claiming any part of such property as his separateestate to establish that fact. Therefore, when a purchase of land wasmade by a Hindu in the name of one of his sons, the presumption ofHindu Law is in favour of its being a benami purchase, and the burdenof proof lies on the party in whose name it was purchased to prove that•he was solely entitled to the legal and beneficial interest in such purchasedestate. The Privy Council said “It is very much the habit in India tomake purchases in the names of others, and, from whatever cause orcauses the practice may have arisen, it has existed for a series of years,and these transactions are known as ‘benami transactions ’ ’’. In thecase of Moulvie Sayyud Uzhur Ali v. Mussumat Beebee Ultaf Fatima2the principle in the former case in regard to benami purchases betweenHindus was held to be equally applicable to similar transactions betweenMuhameddans. The Privy Council said : “It is however perfectlyclear that in so far as the practice of holding lands and buying lands in thename of another exists, that practice exists in India as much amongMuhameddans as among Hindus’’. In Kenvick v. Kerwick 3 whichwas a case between Europeans from Lower Burma, the Privy Councildid not apply the principle laid down in the two earlier Privy Counciljudgments but decided that the English rule of Equity applied to Euro-peans. The Privy Council said: “It is a mistake to suppose that accordingto the cases already cited the determination of the question which rule
1 (1854) 6 Moore's Indian Appeals at p. 74 et seq.
* (1869) 13 Moore’s Indian Appeals 232.
(1920) 47 Indian Appeals 275.
of law is in any given case to apply in India entirely depended on race,place of birth, domicile, or residence; these were not to be treated asbeing per se as decisive. What were treated as infinitely more importantwere the wide-spread and persistent usages and practices of the nativeinhabitants. But subject to this qualification, it is their Xtordships*view that the principles and rules of law which would be applicable to thiscase if it were tried in one of the Courts of Chancery in England wereapplicable to it when tried in Rangoon ”1. So far as Muhameddansin Indi.a are concerned, the law js thus summed up in Article 403 inTyabji's Muhameddan Law : “ The purchase by a Muslim of propertyin the name of his son or wife or either person will, unless there arecircumstances indicating that a gift v*»as intended, ordinarily be consideredto be benami or far si, and the property to belong to the person who paidthe purchase money; but very little evidence might be sufficient to turnthe scale
That being the Indian usage what warrant is there for holding thatit has been imported into Ceylon, or that ft applies to a person like theplaintiff, who, although he was an Indian Muslim, has now becomedomiciled in Ceylon since 1900, and who was dealing with landed propertysituated in Ceylon ?
must confess that I had never heard of “a, benami transaction ”until that expression was used in this case. We have been told that theword “ Benami ” means “ in the name of ” or “ in a fictitious name ”.I looked up the Ideal digests of our case law in order to ascertain whether
Benami Transactions ” are known to our law. In Rajaratnam’s DigestI came across the following reference : “ BENAMI TRANSACTIONS—see .Fraudulent Alienation, Paulian Action, Trust There was also areference to a ease repeated in 2 Leader Law Reports, page 164. Myresearches, and those of the learned counsel on both sides, have failed tofind any reference to a Ceylon case in regard to the kind of usage we arenow dealing with. It is clear that our Coins t know nothing about thisusage.
The fact that a “ habit ”, “ practice ” or “ usage ” of a certain kindhas been persistent in India amongst Hindus and Muslims does notnecessarily mean that such habits, practices or usages have been importedinto Ceylon. A “ usage ” is a particular course of dealing, ot line ofconduct generally adopted1 by persons engaged in a particular mode ofbusiness ; or more fully it is a particular course of dealing oir line ofconduct which has acquired such notoriety, that where persons enterinto contradtual relationships in matters respecting the particular branchof business-life where the usage is alleged to exist, ^ thefse persons mustbe taken to have intended to follow that course of dealing or line ofconduct, unless they have expressly or impliedly stipulated to the copxfcrary—10 Hailsham s. 47, p. 35. A usage besides being notorious, certainand reasonable mufb not offend against .the intention of any legislativeenactment—(ibid. s. 52, p. 89)—and see Dodwell & Go. v. John 2. Nousage, however extensive, will be allowed to prevail if it be directly opposedto positive law ; for to give effect to a usage ,which involves a defiance
See In re Kershaw (1860—62) Sam,. 157.
(1915) 18 N. L. S. at j>. 137.:
of the law Would he, obviously, contrary to fundamental principle—(ibid, s 57. p. 42). The existence of a usage is a question of fact, and mustbe proved by the oral evidence of persons who become cognisant of itsexistence by reason of their occupation, trade, or position. The evidenceto -prove a usage must be clear and convincing—(ibid. ss. 77, 78, p. 60). A.usage is not proved by merely bringing the person interested in establishingits existence to give oral evidence of its existence unsupported by anyother evidence—(ibid. s. 78, p. 61). Hailsham alsoi points out that in regardto proof, usages pass through three cwell marked stages—(a) There isthe primary stage when the particular usage must be proved with certaintyand precision ; (b) there is the secondary stage when the Court has becometo some degree familiar with the ushge, and when slight evidence only isrequired ta establish it ; and then (e) there is the final stage when theCourt takes judicial notice of the usage and evidence is not required—(ibid. s. 83 p. 63)—see also Kumarappa Chetty v. Ceylon Wharfage Co. 1It is to be noted that s. 57 of our Evidence Ordinance does not require aCourt to take judicial notice of a usage. S. 49 of the Evidence Ordinancepermits experts to be called to prove a usage, while s. 92 proviso 5 allowsextrinsic evidence to be led to prove a usage in order to explain a docu-ment. In -Abdul Rahiman v. Ussan Umma 2 the Court said “ a series ofdecisions show that Muhameddan Law applies among Mohameddans inCeylon so far- only as it is consistent with the ancient usages of the Muha-meddans of Ceylon, and is not at variance -with express enactment. ■ Thereare also a series of decisions to the effect that once such a usage hasbeen found to exist (in Ceylon), Muhameddan Law may be looked toelucidate it and supplement it in detail …. Clearly the Muha-meddan Law is based on usage, and where the (local Muhameddan)Code is silent, and no ancient custom (usage ?) has been proved thegeneral law of the Island is the law applicable ”—per Ennis J. SchneiderJ. said: " The reported cases show that since 1862 a.d. our Courts haveconsistently followed the principle that the Muhameddan Law whichprevails in Ceylon is so much and no more of it as has received the sanctionof custom in Ceylon. It is true that treatises on the MuhameddanLaw generally are frequently referred to in our Courts ; but this is doneonly to elucidate some obscure text in our written Muhameddan Law,or in corroboration of evidence of local custom. I cannot find a singledecision that has gone to the length of holding that, apart from. theprevalence of a local custom, Muhameddan Law has any applicationin Ceylon. On the contrary, there is authority to the effect that wherethere is a conflict between the Muhameddan Law as found in the treatisesand local custom, the latter should be followed ”.
Ear from there being any local usage in regard to benami transactionsin Ceylon which the ‘Courts can recognize, I am of opinion there is noproof at all that such a usage has ever been introduced into this Islandat all. It was the duty, therefore, of the plaintiff, appellant strictly toestablish that usage in Ceylon with certainty and precision by evidenceother than his own. Hot only has he failed to do so, but the usage hehas endeavoured to prove and which the trial Judge disbelieved is not ahabit, practice or usage such as is referred to in the Privy Council cases
(1905) 2 Sal. 180.
(1916) 19 A. L. It. at-pp. 178-184-185
•which the plantiff relies on. This is what the plantiff said :“ The
custom in India is for a father to transfer all the properties in the nameof the eldest son. and if the father were to die he (the son) is expectedto share these properties with his brothers and listers …. I boughtthese three properties in the name of the defendant with the intentionof getting the benefit of these properties for all my children and not forthe benefit of my female children …1 transferred to the defendant on
P5 and P6 …. in trust subject to the agreement that he shouldtransfer these lands back to me whenever I wanted to sell them ….All the properties which I transferred to the defendant … .were to be
held by him upon the same cofnditions^ that is to say, to give these landsback to me whenever I wanted to sell them, or if I died suddenly1, hewas to divide these lands amongst himself and my four sons by the secondwife …. I kept these conditions in my mind. I did not take anyadvice from a notary or a proctor when I executed P5 and P6 ….The notary told me that if P8, P9 and P10 were written in the way theywere written, my object would be achieved—that is to have them impress-ed with the trust ”. In this connection it is to be noted that the defen-dant was bom in 1925. Therefore, on the day P2 was executed in 1933he was cnlv 8 years old. At the date of P8 in 1938 he was 13. At thedate of P9 he was 16 and at the date of P10 in 1944 he was 19. It isalso a relevant fact that the plantiff married a second wife in 1933. Byhis first wife he had four daughters whom he had got married and dowered.Sis only son by the first wife is the defendant. Therefore, before hissecond marriage the plaintiff made provision for his son. Se not onlycaused the deed P2 to be executed in the defendant’s name, but on thesame day he donated by deeds P5 and P6 certain other landed property tohis son the defendant. The plaintiff’s intention was clearly to benefit hisonly son by the first marriage and to make provisions for his advance-ment. The fact that he subsequently changed his mind does not affect,the validity of the transaction and turn it into a trust.
The judgment of the learned District Judge shows that he disbelievedthe plaintiff’s evidence on this and other matters. The evidence alsoclearly indicates that the plantiff is a man whcfee word is of little or no-value on any disputed question of fact in which he is interested. Hohad the hardihood to state on oath “ Alter the Japanese dropped bombsin 1942 everybody started making money and plundering other people.I also did the same thing ”. Not only is there not a scintilla of proofthat the practice or usage prevalent in India in regard to benami trans-actions has become established in. Ceylon, but beyond .the attempt madeby the plaintiff to prove such a usage there is, admittedly, no other evidence.As I have already pointed out a usage cannot be proved by merelybringing. 'the person interested to establish its existence unsupportedby other evidence. The findings of fact of the learned District Judgecannot be disturbed. I have no hesitation in holding that whatever maybe the usage in India, no usage such as that referred to in the PrivyCouncil cases has ever been imported into this Island or have taken roothere. Purthermdre, such a usage cannotestablished in Ceylon
because it would be in contravention of the provisions of the TrustsOrdinance.
**■ J. Ar. B.
The position then is this. The considerations for those transfers inthe defendant’s name having been paid for by his father the plantiff,there is a presumption that the conveyances were intended to be for thebenefit of the son who holds them, not as trustee for his father, butas owner in his own right. The plaintiff not only has failed to proveany usage to the contrary, but he has also failed to rebut that pre-sumption by showing that at the- time those deeds were executed hisintention was that the son should hold the lands for his (the father’s)benefit.- It is true that he now says 'he did not so intend, but as waspointed out in Fernando v. Fernando 1 such ex -post facto evidence is oflittle or no probative value. All tl^e circumstances point to a differentconclusion. No doubt the father and the son have been trading together,and in the books, accounts, and rent receipts, &c., there appears to be aconfusion as to what belongs to the plaintiff and what to the defendant.Having regard to the habits of Ideal Muslims, I can see nothing peculiarin a father and son trading and acting together in the manner this plantiffand defendant have done. The question is whether or not the plaintiffhas proved to the satisfaction of the Court that at the date the fourdeeds P2, P8, P9 and P10 were executed the intention of the plaintiffwas that full dominium was not- to pass to the defendant ? On thatquestion of fact the trial Judge has held against the plantiff and it isimpossible for a Court of Appeal to disturb the findings of the trialJ-udge who saw the witnesses and heard the evidence. The finding thatfull dominium passed to the defendant under those four deeds is rightand must, therefore, -be affirmed.
The next submission made on behalf of the plaintiff is that if the defendantis to be deemed to be the legal owner of the properties in question, whetherthe transfers were gifts or donations by the father to the son, and if so,whether they could be and have been duly revoked by the plaintiff donor ?The relevant issues read as follows ; —
If Issue No. 2 is answered in favour of the defendant—
(a.) Were the considerations for the said deeds in effect gifted by theplaintiff to the defendant ?
Were the considerations for the said deeds in effect gifts by theplaintiff to the defendant ?
If the said properties or considerations therefore are gifts, havethey been duly accepted by the defendant or on his behalf?
Has possession of the properties transferred by the said fourdeeds always remained with the plantiff for the plantiff’s own benefitand use ?
If Issue No. 5 is answered in the negative and/or Issue No. 6in the affirmative, are the said deeds or the consideration invalid asgifts to the defendant ?
Has the defendant been guilty of gross ingratitude towards theplaintiff ?
If Issue No. 8 is answered in the affirmative, is the plaintiffentitled to revoke the gifts of the properties and/or the gifts of theconsideration for the said four deeds ?.
Is the plaintiff entitled in law to revoke his gifts to the defen-dant of the properties transferred by the said four deeds and/or thegifts of the consideration for the said four deeds ?
Has the plaintiff by deeds Nos. 1409 of 2.12. 47 and 1451 of10.2.48—
(а)Revoked the four deeds referred to in Issue 1 ?
(б)Revoked the gifts of the properties transferred by the said four
deeds ? andj
Revoked the gifts of the consideration paid or provided on thesaid four deeds ?
14. Did the said deeds or the consideration therefor requireacceptance in law ?
Counsel for the appellant complains that the learned District Judgein his judgment, although he has answered the above issues, has not givenreasons for those findings.
The first point which strikes the eye is whether these transactions canbe called “ gifts ” by the plaintiff to the defendant ? If so, then variousother questions arise, e.g., are they “ gifts ” governed by the Muha-meddan Law or by the Roman Dutch Law ? Where A pays to a vendor,B, the consideration, and B executes a deed of transfer in favour of C,can it be said that the consideration paid by A to B is a gift of thatmoney to C, or that the land conveyed by B to C is a gift of that landby A to C ?
The word “ G-ift ” has a popular meaning as well as a precise legalmeaning. I agree that in ordinary parlance when a father finds the moneyfor a transfer, and the vendor transfers the property at the father’s requestto the son, such a transaction may be described as being “ a gift ” by thefather to the son; but when we have to consider whether such a trans-action can be revoked, then precise language and precise definition areessential.
Under the Muha.meddan Law the conditions necessary to constitute avalid donation are (1) a manifestation of the wish to give on the part ofthe donor; (2)j an acceptance by the donee either impliedly or expressly,and (3) the taking possession of the subject matter of the gift by the doneeeither actually or constructively—Affefudeen v. Periathamby (No. 3),1Mohamadu v. Marikar 2. Under the Muhameddan Law a giftby a father to his minor child of property in the parent’s possession i&complete on his declaration that a gift has been mS.de—Abdul Rahim, v.Hamidu Lebbe 3. Under the Muhameddan Law the donor must havetitle to the subject matter of the gift, and he must not only own the thingdonated, but he must also possess it—Tyabji: Muhameddam Laiw (1913ed.) pp. 276, 277.
Applying these tests to the facts of this case, the plaintiff neither hadtitle to nor possession of the property transferred to the defendant.There must also be delivery by the donor _t3 the donee. In the cases
1 {1911) 14 N. L. R. 295.3 {1919) 21 N. L. R. 84.
{1926) 28 N. L. R. 136.
before us, the vendors were not possessing the land for and on behalfof the plaintiff, but in their own right* as owners. When the transfer deedswere executed, the vendors handed the same over, constructively may be,to the minor defendant, and nob as the agent of the plaintiff. Therefore,it is impossible to hold that any of these transfers are gifts under theMuhameddan Law. Tor the same reasons I find it impossible to accedeto the argument that there was a gift of the consideration money forthese transfers by the plaintiff to the defendant.
Counsel for the appellant relies on 'the case of Affefudeen v. Peria-tamby No. 1 1 where a Bench of two Judges held that where a pei’sonpays his own money for a land and gets his daughter’s name inserted inthe deed as purchaser, this is in effect a donation by the father to thedaughter. That case, however, must now be read with and subject tothe decision of the Divisional Bench in Amrnal v. Kangany 2—Where A(a father), pays the consideration to the transferor B, who transfersproperty to the son O, the case of Ammal v. Kangany 2 shows that thetransaction cannot be regarded as being a transfer in favour of A. lamy opinion, despite the decision in Affefucleen v. Periatamby No. 1 3,such a transfer cannot be held to be a gift of the property by A. to G.
If these transactions cannot be regarded as gifts or donations, the otherquestions do not arise, and it is unnecessary to consider the applicabilityof s. 3 of the Muslim Intestate Succession and Wakfs Ordinance(Chapter 50) to these transactions.
The judgment appealed against is right and must be affirmed with costs.Swan J.—I agree.
Appeal dismissed..