066-NLR-NLR-V-54-NOORUL-MUHEETHA-Appellant-and-SITTIE-LEYAUDEEN-et-al-Respondents.pdf
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SIR LIONEL LEACH—NooruZ Muheetha v. Sitie Leyaudeen
[In the Pbivy Council]
Present: Viscount Simon, Lord Morton of Henryton, LordCohen and Sir Lionel Leach
NOORUL MUHEETHA, Appellant, and SITTIE LEYAUDEENet al., Respondents
Privy Council Appeal No. 38 op 1951S. C. 374—D. G. Colombo, 2,997
Muslim law—JTideicomnvissum—Donation to minors—Acceptance by widowedmother—Validity—Applicability of Roman-Dutch, law.
Where a fideicommiaaum in respect of immovable property was created bya deed of gift between Muslims and, the donees being minors, the gift wasaccepted on their behalf by their mother, who was a widow—
Held,, (i) that the law applicable in determining the authority of the motherto accept the gift on behalf of her infant children was the Muslim law andnot Roman-Dutch lew.
WeeraseJcera v. Reiris (1933) 34, jV. L. R. 281, distinguished.
(ii) that under the Muslim law as received in Ceylon, and in thecircumstances of the particular case, the mother had the necessary authorityto accept the gift.
^LpPEAL from a judgment of the Supreme Court reported in (1950)51 N. L. R. 509.
Phineas Qnetss, Q:G.*, "with Dingle Foot and S. Canagarayar, for thedefendant appellant. ’ ^
Stephen Chapman, for the respondents.
•..Cur. adv. vult.
January 12, 1953.[.Delivered by Sib Lionel Leach]—
The parties in this case are Mahomedans residing in Ceylon. Theappeal raises a question of considerable difficulty, namely whether Roman-Dutch law or Muslim law gov,erns,- in the matter of acceptance, a giftof immovable property made by* a Mahpmedan in favour of minors, therebeing embodied in the deed conveying the property a fidei commissumfor the benefit of the donees’ children. A. fidei commissum is well knownin Roman-Dutch law, which is the basis of the law of Ceylon, but it is• completely alien to Muslim jurisprudence.
The deed with which the appeal is concerned was executed by SaflraUmma, the paternal grandmother of the respondents, on -28th June,1927. The donor was the, widow of one Meera Lebbe Marikar IdroosLebbe Marikar. There were two sons of the marriage, Idroos LebbeMarikar Mahomed Sathuk, the defendant in the action which has givenrise to the appeal, and Idroos Lebbe Marikar Mahomed Zain, th^ fatherof the responddnts, who died before the execution of the deed. Byit the donor conveyed certain immovable property in Colombo to therespondents in equal shares, subject to the reservation of a life interest
SIR LIONEL LEACH—Noorul Muheetha v. Sittie Leyaudeen
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to herself, with a fidei commissum for the benefit of the children of thedonees on the death of their parents. All the donees were then minors.Their mother, Fatheela Umma, purported to accept the gift on theirbehalf in these words :—
“ And these presents further witness that I Sheka Marikar FatheelaUmma who is the mother of the said Donees do hereby thankfullyaccept the foregoing gift for and on behalf of the said Donees who areall minors. ”
The deed also contained this statement :—
“ And the said Idroos Lebbe Marikar Mohamed Sathuk who is thepaternal uncle of the said donees doth hereby renounce all and everyright interest or claim whatsoever which he may or shall have in respectof the said premises hereby gifted adverse to them and in the eventof any question arising as to the validity of these presents by reasonof the said Donees not being put into possession of the said premisesaccording to law the said Idroos Lebbe Marikar Mohamed Sathukhereby agrees not to take any objection whatsoever to his advantageor take any other steps whatsoever detrimental to the interests ofthe said Donees in respect of the premises hereby conveyed.”
It is common ground that this clause does not operate to estop thedefendant from asserting title to the property. The deed was signed bythe donor, the defendant and the minors’ mother and was certified by anotary public. It is accepted that it embodies a fidei commissum asknown to Roman-Dutch law.,
On the 4th February, 1928, Saffra Umma executed a document by-which she purported to revoke the deed of gift-executed 'by her in favourof the respondents and to grant the property to the defendant for his lifeand after his death to his son Mohamed Sathuk-Mohamed Huzain. Onthe 6th December, 1929, Saffra Umma died and upon- her ’ death thedefendant went into possession.of the property.
On the 27th September, 1942, the respondents, who then were all offull age, instituted in the Distict Court of Colombo the action for adeclaration that they are entitled to the property and for a decree forpossession. By a judgment dated the 31st May, 1945, the DistrictJudge granted the- reliefs sought 'hy the respondents. The defendantappealed to the Supreme Court, but during its pendency he died, andhis widow, the appellant before their Lordships, was substituted in hisplace.''
At the trial the defendant conceded that in as much as the deed of the28th June, 1927j. Created a fidei commissum it was governed by Roman-Dutch law, but he contended that there had been no valid acceptance,because the parties to the deed were Mahometans, and under Muslimlaw a mother was not recognized as a natural guardian of her children inmatters concerning property. He also, maintained that there had been avalid revocation of the deed of gift. The District Judge decided againstthe defendant on both the points. He held that once it was admittedthat the deed created a fidei commissum the transaction as a whole must
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SIR LIONEL LEACH—Noorul Muheetha v. Sittie Leyaudeen
conform to the requirements of Roman-Dutch law, and under that law awidowed mother could validly accept a gift on behalf of her minor children.He rejected the second contention on the ground that the deed did notreserve to the donor a right of revocation.
In the Supreme Court the only argument advanced in support of theappeal was that the deed of gift was bad for want of an acceptance validunder Muslim law. The Court (Dias S.P.J. and Pul Ip, J.), in agreementwith the District Judge, held that the question of validity had to bedetermined solely within the frame of the Roman-Dutch law and underthat law the respondents’ mother had authority to accept the gift ontheir behalf. The learned judges considered that even if this conclusionwere wrong the defendant was not entitled to succeed as it had not beenshown that according to Muslim law as administered in Ceylon a Muslimwidow could not be deemed to be the guardian of her minor children.They were of the opinion that before the principle of Muslim law onwhich the appellant relied could be applied there must be a cursus curiae.in favour of its application in Ceylon. The result was that the appealwas dismissed on the ground that the defendant was not entitled to haverecourse to Muslim law to defeat the plaintiffs’ claim that FatheelaTJmma was empowered by the general law of the land to accept the gift.
In the course of his judgment (with which Dias S.P.J. agreed) Pulle J-referred to the judgment of the Board in Weerasekera v. Peiris1. Inthat case a Mahomedan resident in Ceylon executed a deed purportingto give to his son immovable property in Colombo. The gift was subjectto conditions which were inconsistent with a gift recognized by Muslimlaw, but it created a fidei commissum as known to Roman-Dutch law. Itwas held that the gift was not invalid on the ground that possession hadnot been, given to the donee as required by Muslim law. In deliveringthe judgment of the''Board Sir Lancelot Sanderson said :—
“ It was-not disputed that the last mentioned provisions constituteda fidei commissum according to Roman-Dutch law, but, as alreadystated, it was contended, on behalf of the respondent, that inasmuchas the terms of the first part of the deed purported to constitute agift inter vivos between Muslims, Mahomedan law nust be applied■ thereto, and as possession of the premises was not taken by the sonduring the father’s life, the gift..was invalid and the fidei commissum,which was based on it, also failed.
Their Lordships are not able to adopt this contention- of the re-spondent and upon the true construction of the deed, having regardto all its terms, they are of opinion that the father did not intend tomake to the son such a gift inter vivos as is recognized in Mahomedanlaw as necessitating the donee taking possession of the subject-matterduring the lifetime of the donor, but that the father intended to createand that he did create-a valid fidei commissum such- as is recognizedby the Roman-Dutch law. ”
Their Lordships respectfully agree with these observations but do notfind them of assistance in the decision of the present case. In Weerasekerav. Peiris (supra) the Board were considering the effect of the deed and1 (1933) A. 0. 190 ; 34 N. L. R. 281.
SIR LXONBL LEACH—JN'oorul Aluheetfui v. Sittie Lsyaudeen
273
held that it was to be construed and take effect in accordance withRoman-Dutch law. They were not concerned with the very differentquestion whether a person purporting to accept a gift of immovableproperty on behalf of infant donees had in fact authority so to do. TheirLordships are prepared to accept that the donor, under the deed ofthe 28th June, 1927, intended that Roman-Dutch law should apply indetermining who could accept the benefaction on behalf of her grand-children, but their Lordships are unable to agree that the intention ofthe donor is a relevant factor in determining the authority of the mother.If an agent purports to accept a gift on behalf of a principal, his authoritydepends not on anything contained in the deed of gift but on the validityof the instrument or act alleged to confer the authority. So the questionof a mother’s authority to accept a gift on behalf of her infant childrenmust depend not on the intention of some other party to the deed ofgift but on the proper law applicable under the law of Ceylon in deter-mining the capacity of infants and thre authority of guardians to enterinto binding agreements on their behalf. There is no suggestion in thepresent case that the transaction was not for the benefit of the infants,but if the argument advanced on behalf of the respondents, that theintention of the donor was relevant, were to prevail, it is obvious that aninfant might be deprived of the protection which the law as toguardian ship was intended to give him or her, and might be saddled witha burden some property involving him or her in heavy liabilities.
The respondents relied on the decision of the Supreme Court of Ceylonin Abdul Mahiman v. Ussan Umma1. In that case the question at issuewas whether an ante nuptial contract regulating Succession to propertyentered into between Mahomedans in Ceylon was valid. The Courtupheld its validity notwithstanding that it was “ a document foreignto the principles of Mahomedan law ”. In the course of his judgmentEnnis J. when referring to a document creating a 'jidei 'commisswm said“ it would seem that the Mahomedans in Ceylon have adopted andfollowed the general law of Ceylon in executing these documents ”.This case however carries the matter no further than the decision ofthis Board already cited : the mind of the Court was not directed to thequestion of the authority of a person:purporting to execute the contracton behalf of one of the parties thereto. What then, is the law applicablein determining the authority of the mother to accept the gift on behalfof her infant children ? If Roman-Dutch law were applicable, it isplain that as she was not the donor, she would have the requisite authority ;(see e.g., Fernando v. WeeraJcoon2 ; Silva v. Silva3). But their Lordshipsare of opinion that Roman-Dutch law is not applicable. The authoritiesestablish that Mahomedans in Ceylon are governed by their own personallaw as, to quote the proclamation of 23rd September, 1799, it “ subsistedunder the ancient Government of the United Provinces ” except of courseso far as the same may have been altered by statutory enactment.
There remains for consideration what is the law applicable in Ceylonto the question who is the natural guardian of the property of a Mahome-dan infant ? There is no doubt that under Muslim law, as administered
1 (1916) 19 N. L. R. 175.a (1903) 8 N. L. R. 212.
'3 (1909) 11 JST: L. R. 161.
274
Lewis Fernando v. The Queen
in India and laid down in the text books written by Indian authoritieson the subject, a mother is not a person who has inherent authorityas a guardian of the property of her infant children, but it is by no meansclear that this provision of Muslim law has found acceptance in Ceylon.The learned trial judge expressed no opinion on the point and had theirLordships to reach a conclusion on the matter without assistance from acourt in Ceylon they might have felt considerable hesitation in holdingthat the general rule of Muslim law was not applicable. The point washowever argued in the Supreme Court who reached the conclusion thatunder the Muslim law as received in Ceylon, and in the circumstances ofthe particular case, the mother had the necessary authority to accept thegift. Their Lordships are not prepared to dissent from this conclusion.They would, however, observe that the authorities as to the extent to-which and the form in which general Muslim law has been received intoCeylon seem very conflicting and they would venture to hope that thequestion of resolving by legislation the doubts which this conflict ofauthorities must create may receive early attention.
For the reasons above stated their Lordships will humbly advise HerMajesty that the appeal should be dismissed. The appellant must pay-the costs of the appeal.
Appeal dismissed.