Ponniah v. Jameel.
Present: Macdonell C.J. and Poyser J.
PONNIAH et al. v. JAMEEL et al.
379—D. C. Colombo, 27.
Muslim law—Deed of gift inter vivos in praesenti—Reservation of usufruct bydonor—Gift subject to fidei commissum—Acceptance by donees—Delivery of deed as a symbol of possession—Gift governed by Muslimlaw—Invalid for want of delivery of possession.
Where a deed of gift by a Muslim was expressed in the following terms;“ I do hereby voluntarily give, grant, convey, transfer, assigns, set over,and assure by way of gift unto the said donees the land and premises…. to have and to hold the said land and premises hereby
granted and conveyed subject to the following terms, conditions, andrestrictions, namely, that I, the said donor shall have the right during mylifetime to take and enjoy the rents, profits, issues and incomes of thesaid premises by way of usufruct, and the said donees shall not be atliberty to give, sell, mortgage or otherwise alienate or encumber the said
premises or any part of share thereofthat they shall only
be entitled to hold, possess, and enjoy and take and receive the rents,profits issues and incomes derived or arising out of the said premises1 26 N. L. R. 467.
Ponniah v. Jameel.
during their lifetime and that, after their death, the said premises shalldevolve under the bond of fidei commissum in perpetuity on their childrenor other remote descendants …. These presents also witnessthat the donees do hereby thankfully accept the foregoing gift, subjectto the terms, restrictions, &c.
“ And whereas under the Muslim law a gift is not complete until thepossession of the lands and premises has been given over to the donee.
“ And whereas under this deed, I said donor have reserved unto myselfa usufruct for my lifetime.
“ And whereas it is necessary that I should make it clear that this deedis irrevocable by me I, hereby on signing this deed, do hereby hand overthis deed to the donees as a token of the transfer of possession of propertyhereby conveyed in accordance with the decision of the Supreme Court.
“ And I further declare that I have given up every right I may haveunder any law whatsoever to revoke this deed.”—
Held, that the donor intended to make a valid gift inter vivos totake effect at once as recognized by Muslim law and that the deed failedof being a valid Muslim gift since under it possession did not pass.
Weerasekera v. Peiris (34 N. L. R. 281) distinguished ; Sultan v. Peiris(35 N. L. R. 57) explained and followed.
HIS was an action under section 247 of the Civil Procedure Code
T brought by the plaintiffs to have it declared that a certain landand premises were not liable to be seized and sold in execution againstthe defendant, as executor of the estate of one Nona Nei, wife of N. E. M.Pakir, a Muslim. Plaintiff claimed the premises by virtue of a deed ofgift No. 1,176 dated September 4, 1924, under which the said Pakirdonated them to their father Abdul Rahim. The relevant parts of thedeed of gift are set out in the headnote.
On June 17, 1927, by deed No, 2,592 the donor purported to revoke thedeed of gift No. 1,176 on the ground that the words therein, declaring itirrevocable had been inserted by the notary without instructions andalso on the ground of ingratitude and disobedience by the donee.
On the same day Pakir and his wife Nona Nei made a mutual will bywhich, subject to certain bequests, they bequeathed the residue to thesurvivor.
Abdul Rahim, the donee, died on July 31, 1929, predeceasing the donorPakir who died on September 23, 1927, leaving the plaintiffs as his heirs.
Nona Nei died in 1931, owing money to first defendant who in D. C.Colombo, 53,810 obtained judgment for Rs. 6,000 against second defendantas executor of her estate. The first defendant sought to execute hisjudgment on the property as belonging to Nona Nei under the mutualwill as against the plaintiffs, who claimed under the deed of gift No. 1,176.
The learned District Judge held that the gift was a valid gift underthe Muslim law and gave judgment for the plaintiffs.
H. V. Perera (with him S. Nadesan and G. E. Chitty), for appellant.—Thecase is covered by the decision in Sultan v. Peiris As the third requisitefor the validity of a gift in the Muslim law, viz. seizin, is absent thegift is bad.
The intention of the donor was clearly to make a gift inter vivos accordingto the Muslim law. The donor purported to give immediate legal title.
1 35 N. L. R. 57.
4J N. B 32999 (1/54)
Ponniah v. Jameel.
It is expressly stated in the deed that, as under the Muslim law a gift isnot complete until possession is given (Mohommadu v. Marikar ‘), the deedis handed over as a token of the transfer of possession.
Such symbolic delivery is not sufficient, where a usufruct has beenreserved. In all the cases where delivery of the deed was held to bedelivery of possession, there was no reservation of a life-interest. There-fore, the possession of the donor is referable to the title of the donee.
The terms “ usufruct ” and under the bond of “ fidei commissum/’ do notnecessarily negative the original intention of the donor. The Roman-Dutch law principles have no application, therefore.
The Privy Council case of Weerasekera v. Petris' applies to a giftin futuro only. The important words of the document there are “ after mydeath, the same shall be possessed ”. The correct interpretation of thePrivy Council decision is found in the judgment of Garvin J. in Sultan v.Peiris (supra, at pp. 86 and 88). The case in appeal is one where thedonor intends to make a gift in praesenti.
It is not correct to say that a Muslim can contract himself out of theMuslim law, though there are dicta to support that view. One mustdistinguish between the rights and obligations of the parties to a contractfrom the contract itself. Stipulations may be made affecting the former,but the validity of the contract itself must be determined by the law towhich they are subject.
Counsel also cited Razeeka v. Sathuck3, Meydeen v. Abubaker*, andMarikar v. ZJmma*.
Rajapakse (with him S. Alles and J. R. Jayewardene), for respondent.—The question is one of intention. Was it intended that it should be avalid gift under Muslim law or under Roman-Dutch law ? If upon aperusal of the whole document an intention to make a gift under theRoman-Dutch law is manifested, then the Roman-Dutch law principlesshould be applied. A Muslim can show an intention to make a giftoutside the Muslim law, e.g., under the Roman-Dutch law. These arethe principles laid down by the Privy Council in Weerasekera v. Peiris(supra, at pp. 285 and 286). The Divisional Court interpreted Weera-sekera v. Peiris in this way. See per Macdonell C.J. in Sultan v. Peiris(supra, at p. 76), also Musheen v. Habeeb°.
Garvin J. interpreted it differently, but Drieberg and Akbar JJ.expressly agreed with the interpretation of Macdonell C.J.
One must give to a deed that construction which will give it forcerather than that which will make it waste paper. Verba sunt ita intelli-genda ut res magis valeat quam pereat. See Ahamadu Lebbe v. Sulari-gumma et al.'
That the donor intended to make a gift under the Roman-Dutch lawis clear, because he uses legal expressions, e.g., r usufruct ’ and bond of‘ fidei commissum both of which are unknown to the Muslim law, andare well understood in the Roman-Dutch law.
> 21 N. L. R. 85.
* 34 N. L. R. 281.a 33 N. L. R. 176.
1 2 G.W. R. 208.
4 21 N. L. R. 2844 37 N. L. R. 237.
* 14 C. L. Rec. 130 at p. 132.
MACDONELL C.J.—Ponniah v. Jameel.
In Sultan v. Petris the donor intended to gift under Muslim law butperhaps “ unwittingly expressed himself as to create a fidei commissum ”,See per Macdonell C.J. in 35 N. L. R. at p. 75.
Apparently symbolic delivery is made by giving the title deeds,ex abundanti cautela, because the donor feared, that if the Muslim lawperchance was applied, it may not be otherwise valid.
Even “ symbolic delivery ” is not known to the Muslim law, but to theRoman-Dutch law.
The principle in Weerasekera v. Peiris (supra) should be applied here.One cannot whittle it down by applying it to the circumstances of thatcase only.
Counsel also cited Sahul Hamid v. Mohideen’ Abdul Ghani v. JohanBegam ’, and Fatima Beebee v. Aliamad Baksh
Cur. adv. vult.
March 30, 1936. Macdonell C.J.—
This case raises a question as to the construction of a deed of gift madeby a Muslim to a Muslim. The facts are as follows. On September 4,1924, one N. E. M. Pakir, a Muslim, executed before a notary deedNo. 1,176 which is expressed as irrevocable and purports to give, undercertain conditions, certain lands to certain grandsons and granddaughtersof the donor. One of these grandsons was Tuan Ariffin Abdul Rahim(hereinafter called the donee) and the deed purported to give him a halfshare of land No. 1 set out in its first schedule. (His brother, donee ofthe other half, does not come into the story.) The material portions ofthis deed No. 1,176 (PI), will be set out later. On June 17, 1927, by deedNo. 2,592 (1D2), the donor Pakir purported to revoke the deed of giftNo. 1,176 (PI) on the ground that the words therein declaring it irrevo-cable had been inserted by the notary without instructions and had notbeen explained to him by the notary, also on the ground of ingratitudeand disobedience by the donees, but no attempt was made at the trial toprove any of these assertions. On the same day, June 17, 1927, Pakirand his wife Nona Nei made a mutual last 'will No. 2,594 by which,subject to certain bequests, they bequeathed the residue of their propertyto the survivor of them. The wife Nona Nei, it may be mentioned, hadsigned the deed No. 1,176 (PI) “ as testifying to her agreement to theconditions mentioned ” therein. Abdul Rahim the donee on deedNo. 1,176 died on July 31, 1929, predeceasing the donor Pakir who diednearly two months later on September 23, 1929 ; the minor children ofthe deceased donee are the first to fifth plaintiffs in this action, the sixthplaintiff being their guardian ad litem. If the will of June, 1927, No. 2,594,was valid, the widow Nona Nei would become entitled under it. Shedied intestate in 1931, owing money to the first defendant who in D. C.Colombo, No. 53,810 obtained judgment for Rs. 6,000 against seconddefendant as executor of her estate. This then raises a question betweenthe first defendant, creditor of her estate, and the plaintiffs, representingthe donee on deed No. 1,176 (PI.) The first defendant sought to executehis judgment against the executor of Nona Nei, on property that includedthe land gifted in deed No. 1,176 to the donee. The plaintiffs, representing1 34 N. L. ft. 57.s 44 Allahabad 301.
* 31 Calcutta 319 at 330.
MACDONELL C.J.—Ponrtiah v. Jameel.
the donee, claimed the land gifted to their father, the donee, on deedNo. 1,176 and, their claim being dismissed, brought this, a section 247action.
In the Court below the above facts were admitted, and it was foundunnecessary to take evidence. The District Judge held that the deedNo. 1,176 was a valid gift under Muslim law and that it duly gave to thedonee Abdul Rahim a half interest in the land No. 1 in the first schedule ;consequently it was not the property of Nona Nei whose estate seconddefendant was administering and consequently first defendant could notexecute on it. It is from this decision that the present appeal is brought.
It is now necessary to set out the material portions of deed No. 1,176,which are as follows : —
The deed begins with a recital that the donor has made provision forhis wife Nona Nei and for a certain grandson and granddaughter butthat he has not yet made provision for his three other grandsons, whomhe names, and one of whom is the donee, or for his two granddaughters,and that he is desirous of making provision for them. He then recitesthat it is necessary to cancel certain three deeds fully described, and hesays, “ The power to cancel which I have in law on the ground that accord-ing to Muslim law the possession of the properties covered by the saiddeeds has not been given over by me to the donees under the said deeds,and on the further ground that the said donations have been accepted bymy wife Nona Nei who is the step-grandmother of the said donees and whois therefore not a guardian qualified in law to accept the said donationson behalf of the said donees ”, and he accordingly purports to revoke thethree deeds in question. The deed then proceeds to say that in .con-sideration of love and affection unto the three grandsons mentioned “ Ido hereby freely and voluntarily give, grant, convey, transfer, assign, setover and assure by way of gift unto the said two of the male donees,namely Mohamat Usoof Abdul Rahim and Tuan Ariffin Abdul Rahim ”(the donee in this case and the father of plaintiffs 1 to 5) “ the land andpremises mentioned as land No. 1 in' the First Schedule hereto ….subject to the terms, conditions, and restrictions contained ….“ To have and to hold the said land and premises mentioned as land No. 1in the First Schedule hereby granted and conveyed in equal shares untothe said two of the male donees, namely Mohamat Usoof Abdul Rahimand Tuan Ariffin Abdul Rahim ” (the donee in this case and father of theplaintiffs 1 to 5)… subject to the following terms, conditions
and restrictions, namely, that I the said donor shall have the right duringmy lifetime to take and enjoy the rents, profits, issues, and incomes of thesaid premises by way of usufruct, and that the said male donees shall notbe at liberty to give, sell, or mortgage, or otherwise alienate, or encumberthe said premises or any part or share thereof or any of the rents, profits,issues, or incomes thereof, and that neither the said premises nor the rents,profits, issues, or incomes thereof or any part thereof or a share of anyone of them shall be liable to be seized or sequestered or taken in executionof any process of Court against the said male donees but that they shallonly be entitled to hold, possess, and enjoy and take and receive the rents,profits, issues, and incomes derived or arising out of the said premisesduring their lifetime, and that after their death the said premises shall
MACDONELL. C.J.—Ponniah v. Jam.eel.101
devolve under the bond of fidei commissum in perpetuity on their childrenor other remote descendants or any deceased child or children per stirpes,that is to say, the child or children of any deceased child taking the shareto which his or her or their parent would have been entitled if aliveThere then follows a gift in precisely similar terms to his two grand-daughters, reserving to the donor for his lifetime the same usufruct andsubjecting the gift to the same bond of fidei commissum. Then followsthe usual covenants that he has power to grant, that the premises grantedare free from encumbrances, and for further assurance.
He then proceeds—
“ And these presents also witness that the said male donees and femaledonees do hereby thankfully accept the foregoing'gifts subject to the terms,conditions, and restrictions and in token of the said acceptance do herebyput their signatures to this deed.
“ And this deed further bears the signature of Nona Dalila Abdul Rahimaforesaid as testifying to her agreement to the conditions mentioned inthis deed.
“ And whereas under the Muslim law a gift is not complete until thepossession of the lands and premises conveyed have been given over tothe donees.
“And whereas under this deed I the said donor have reserved untomyself a usufruct for my lifetime.
“ And whereas it is necessary that I should make it clear that this deedis to be irrevocable by me hereafter.
“ I hereby on my signing this deed do hand over this deed to the saidmale donees and female donees as a token of the transfer of possession ofLhe said properties hereby conveyed in accordance with the decision ofthe Supreme Court.
“ And I further declare that I have given up every right that I mayhave under any law whatsoever to revoke this deed.
“ And I further undertake that I will not revoke this deed, and we thedonees do hereby thankfully accept the foregoing gifts. ”
The questions before us on this appeal are these. Was this deedNo. 1,176 a Muslim deed of gift, and if it was, was it an effective andvalid Muslim deed of gift ? If both these questions be answered in theaffirmative, then the respondents must succeed in this appeal,' there wasa valid gift to their father Rahim the donee, and they are his successorsin title, either as his heirs or as fidei commissarii under the deed of gift tohim. The learned trial Judge has found no difficulty in answering boththese questions in the affirmative ; the donor thought himself bound byMuslim law and the document must be construed according to Muslimlaw, and “ the gift was valid and effective to pass title to Rahim andafter him to the plaintiffs ”. The appellant adopts that part of thejudgment which declares No. 1,176 to be a Muslim deed of gift butdenies that it was a valid Muslim gift since under it possession did not passto the donee. The respondents agree with this last contention of theappellant and make common cause with him that possession did not passto the donee under the deed and that consequently it cannot as a Muslimdeed of gift be valid or effective, but they maintain that it is not a Muslimdeed of gift at all but that it is a valid gift inter vivos under Roman-Dutch
MACDONELL C.J.—Ponniah v. Jameel.
law; they would uphold the judgment below that it was a valid gift,but say that it was valid under another system of law and that it was nota Muslim deed of gift at all. The appellant says it is a Muslim deed ofgift, but as such invalid ; the respondents, that it is valid, but not as aMuslim deed of gift. Now “ the conditions required by Muslim law toconstitute a valid donation are stated by Ameer Ali to be (1) a manifesta-tion of the wish to give on the part of the donor ; (2) the acceptance ofthe donee, either impliedly or expressly ; and (3) the taking possessionof the subject-matter of the gift by the donee, either actually or con7structively ” (Affefudeen v. Periatamby'). These three conditions havealways been accepted with us as those requisite to make a valid Muslimgift and it is necessary then to keep them in mind while examining theterms of deed No. 1,176.
The opening recitals give the names of the donor, of his wife and of thedonees, his grandsons and granddaughters, they all bear Muslim names.The donor after reciting that he has not so far made provision for certainof his grandsons, including the donee, and for certain of his granddaughters,proceeds to recite the necessity of cancelling certain deeds (specified) andto state that he has the power in law to cancel them since “ according toMuslim law the possession of the properties covered by the said deedshas not been given over by me to the donees under the said deeds, andon the further ground that the said donations have been accepted by mywife Nona Nei who is the step-grandmother to the said donees and whois therefore not a guardian qualified in law to accept the said donationson behalf of the said donees. ”
By this recital he relies on a power given him (he says) by Muslim lawto cancel deeds of gift where no possession has passed and where theperson purporting to accept for the donees was not a guardian qualifiedby that law to do so. If no possession passed under the deeds to becancelled, or if the person purporting to accept was not by Muslim lawqualified to do so, then the deeds would perhaps be ineffective, and notneed to be cancelled, but that the donor purported in this part of thedeed 1,176 to be acting under and in conformity with Muslim law, therecan be no question, and he recognizes categorically the third requisite—vide supra—of a valid Muslim gift, the donee taking possession. He thenproceeds to revoke the deeds specified.
He then recites the consideration moving him—love and affection—and proceeds to “ give, grant, convey, transfer, assign, set over, andassure by way of gift ” unto the donee a certain land, “ subject to theterms conditions and restrictions contained ”—that is contained in thedeed—for all the donor’s interest, and estate with all rights, &c., pertain-ing thereto. Then follows the habendum, to the donee, and after thatthe gift is stated to be subject to the following terms, conditions, andrestrictions, namely, “ that I, the said donor shall have the right duringmy lifetime to take and enjoy the rents, profits, issues, and incomes of thesaid premises by way of usufruct ”—note, that the donor not only reservesto himself rights which will amount to a usufruct, but names the term ofart in Roman-Dutch law, usufruct, which connotes them—“ and thatthe said male donees shall not be at liberty to give, sell, or mortgage or
1 14 N. L. it. at p. 297.
MACDONELL C.J.—Ponnidh v. Jameel.
otherwise alienate or encumber the said premises or any part or sharethereof or any of the rents, profits, issues, or incomes thereof, and thatneither the said premises nor the rents, profits, issues, or incomes thereof,or any part thereof or a share of any one of them shall be liable to beseized or sequestered or taken in execution of any process of court, againstthe said male donees but that they shall only be entitled to hold possessand enjoy and take, and receive the rents, profits, issues, and incomesderived or arising out of the said premises during their lifetime, and thatafter their death the said premises shall devolve under the bond of fideicommissum in perpetuity on their children or other remote descendantsor any deceased child or children per stirpes, that is to say, the child orchildren of any dceased child taking the share to which his or her ortheir parent would have been entitled if alive.”’ Again, note that he notonly defines the settlement or entail that is to fetter in the haqds of thedonee and his descendants the property given but labels it with theappropriate term of art—fidei commissum—of Roman-Dutch law.
It is on these two restrictions, the usufruct for life reserved and thefidei commissum imposed, but particularly on the former, that respond-ents rely to uphold the judgment below as will be more fully shown later.
The deed No. 1,176 then proceeds to make a gift to the donor’s grand-daughters in precisely similar terms—consideration, gift, interest, andestate, habendum and restrictions, usufruct and fidei commissum againnaming them. Then follow the covenants that the donor has power tomake the gift, and that the property gifted is free from incumbrances,and also a covenant for further assurance. Then follows the acceptanceby the donees themselves—from this you presume that they were of fullage when deed No. 1,176 was executed, and both in the trial Court andhere it was common cause that they were of full age then—and therecital that the donor’s wife Nona Nei has herself signed the deed as testify-ing her agreement thereto, and then certain clauses which must be quotedagain in full, “ and whereas under the Muslim law a gift is not completeuntil the possession of the lands and premises conveyed have been givenover to the donees. And whereas under this deed, I the said donorhave reserved unto myself a usufruct for my lifetime. And whereas it isnecessary that I should make it clear that this deed is to be irrevocableby me hereafter. I hereby on my signing this deed do hand over thisdeed to the same male donees and female donees as a token of the transferof possession of the said properties hereby conveyed in accordance withthe decision of the Supreme Court. And I further declares that I havegiven up every right that I may have under any law whatsoever to revokethis deed. And I further undertake that I will not revoke this deed,and we the donees do hereby thankfully accept the foregoing gifts. ”
The clauses just quoted must be read with the other terms of the deedof gift, and particularly with those where the donor cancels certainspecified deeds because the possession required by Muslim law had notpassed under them, and those where he reserves the usufruct to himselffor lifetime in the property given and places it under the bond of fideicommissum, and taken as a whole, the deed No. 1,176 seems to say “I, aMuslim give under Muslim law to other Muslims certain property. True,I have placed that property under the bond of fidei commissum but
MACDONELL C.J.—Ponniah v. Jameel.
Muslims in making gifts as understood by Muslim law have been in thehabit of placing it under that bond for generations past, and true alsoI have reserved to myself a usufruct for my life in the property given, butI am well aware of, and intend compliance with, that requirement of avalid gift under Muslim law that possession must pass to the donee underit, therefore, I declare the deed to be irrevocable and myself to haveabandoned every right I have to revoke it thereby transferring at onceto the donees the dominium in the property gifted, and, by handing overto the donees as I do hand over to them this deed of gift, I transferpossession also, in accordance with the ruling, as I understand it, inMohamadu v. Marikar', where it is said, ‘ The delivery of the deed is aconstructive as well as effective delivery of possession of the lands ’ andin fulfilment of the requirement of Muslim law that to make a gift underit valid, possession must be given to the donees He gives the dominiumand, purports to give cy-pres, the possession also, intending throughoutto make a gift under Muslim law as he understands it. “ All the terms ofthe deed must be taken into consideration when construing the deed ”
(Weerasekera v. Peiris') and taking all the terms of this deed into con-sideration I can only conclude that the donor’s intention in executingdeed No. 1,176 was to make “ a valid gift as understood in the Muslimlaw ” (ibid).
This construction of deed No. 1,176 is subject to this, that there is noauthority binding upon me which requires me to decide differently, andthis brings me to the two cases pressed upon us in the argument of thisappeal (Sultan v. Peiris 3) and the Privy Council decision in Weerasekerav. Peiris (supra).
It is best first to discuss Sultan v. Peiris because that decision has notbeen passed in review by the Privy Council and in the absence of such isbinding upon us, being a four Judge decision, unless it be shown to beinconsistent with the ruling of the Privy Council in Weerasekera v. Peirisand that that ruling applies in the present case, or unless it can be shownthat the facts now before us are distinguishable from one or other of thesedecisions. For the appellant it was argued that the present appeal isdistinguishable on the facts from the Privy Council ruling in Weerasekerav. Peiris but that it is indistinguishable on the facts from the decision inSultan v. Peiris which therefore must bind us in determining the presentappeal. For the respondent it was contended that the facts of the presentcase are sufficiently the same as those in Weerasekera v. Peiris to makethe ratio decidendi in that case applicable, and binding, in this appeal.
First then for Sultan v. Peiris. The facts there were that the donor cMuslim had made to two donees, also Muslims, a gift inter uiuos stated tobe irrevocable of certain urban lands with the houses on them subject tothe restriction that the donor reserved to himself “ during his lifetimethe full and unfettered right of residing in any of the said premises herebygifted and of taking and enjoying the rents, profits, &c., of all the ….premises hereby gifted without the interference of the said donees oreither of them ”—this was reservation to the donor of a usufruct for hislife, though the word usufruct was not used, “ real rights in the subject> 21 N. L. R. at 85.2 3i N. L. R. 281 at 285.
2 35 N. L. R. 57.
MACDONELL C.J.—Ponniah v. Jameel.
of the gift ”, as Garvin J. says at 35 N> L. R. 78—and subject to therestriction that if either donee apostatized from the Islamic faith ormarried a widow or a divorced woman, his moiety should go over to theother donee, which was a penalty clause but also a fidei commissum infavour of the donee who did not incur the penalty. The deed of gift thensaid as follows “ by way of vesting the legal title to the premises donatedfrom the date thereof in the donees, I hereby hand them this deed andthe connected deeds thereof ” and the attestation says, “ And the donorhas required me the Notary to hand to the said donees the original ofthis instrument and the connected title deeds of the premises devisedthereby ”, and, as later on, one of the donees produced and depositedwith a bank the deeds in question, one can presume that they were handedover, as the deed says. In this clause, as Garvin J. says at 35 N. L. R. 87,“ the intention to make an immediate gift is manifested in a very specialand exceptional manner ”. The decision of the Court in Sultan v. Peiris(supra) was that “ this gift between Muslims fails for want of delivery ofpossession …. The donor intended to make and purported to makean immediate transfer by way of gift but failed to make an effectivetransfer to the donee, because he endeavoured at the same time to reserveto himself rights of possession in the subject of the gift and did not makesuch a delivery of possession as is necessary to transfer the property ”,per Garvin J., 35 N. L. R. at 88, or as I put it, ibid, at 75, “ One concludesfrom an examination of all the provisions in the deed …. thatthe donor intended to make a valid gift inter vivos as recognized byMuslim law but that the deed failed to be a valid one since under itpossession did not pass. ”
Now the deed to be interpreted in the present appeal resembles innearly all its provisions that in Sultan v. Peiris. In each the donorprofesses to make an immediate and irrevocable gift inter vivos and in«ach he hands over to the donees the deed itself, in Sultan v. Peiris by wayof vesting legal title in the donees from the date of the deed, in the presentdeed No. 1,176, as token of the transfer of possession of the properties byit conveyed. In each the donor reserved to himself in unmistakablewords the usufruct of the property for his life, in Sultan v. Peiris emphasiz-ing his life-interest by forbidding the donees to interfere though not usingthe actual word, usufruct ; in the present deed he does actually use thatword. In each the donor created a fidei commissum, in Sultan v. Peiris inthe form of a penalty and not using the actual word fidei commissum,the property to go over if a donee does any of certain things, here as abond fettering the property in perpetuity in the hands of the donees andtheir descendants, actually using the word fidei commissum. In eachthere is an explicit declaration that the donor intends the deed to havethe character of a deed of gift under Muslim law, in Sultan v. Peiris bysaying that the donee apostatizing from the Muslim faith loses his shareto devolve on the other donee, here by a number of recitals which showthat the donor knew transfer of possession to be a necessary condition ofa valid Muslim deed of gift and by a positive act, handing over the deed,which he thought was a handing over of possession or a token of suchhanding over.
MACDONELL C.J.—Ponniah v. Jameel.
With all deference to the forcible argument put to us that the donoron deed No. 1,176 by his reservation to himself of a life interest and bynaming it, usufruct,, and by his putting the property given under thebond of fidei commissum, naming that very word, intended to make a deedof gift outside Muslim law altogether, I cannot distinguish the presentcase from Sultan v. Peiris and am forced to conclude on the authority ofthat case which in the absence of a superior authority is binding on me,that under the deed in this case the donor intended to make a valid giftinter vivos as recognized by Muslim law but that the deed fails of being avalid Muslim gift since under it possession did not pass.
In holding that possession did not pass, I am differing with all respectfrom the learned District Judge who holds in effect that possession didpass. A further statement of the law as to gifts between Muslims willbe given later from the judgment of Garvin J. in Sultan v. Peiris, for thepresent it seems sufficient to say that a Muslim donor reserving to himselfa usufruct for life thereby manifests an intention not to give possession.This was the case here, consequently the deed fails.
A digression is necessary here. The learned trial Judge spoke of thejudgment of “ the majority of the Court “ in Sultan v. Peiris. Garvin J.left the Island on leave before my own judgment was ready to be delivered,consequently his judgment was deposited in the Registry and deliveredlater along with my own but after he had left the Island on leave, andthere was a doubt whether a judgment delivered by a Judge while on leavewould be valid and a possibility that to become valid it might have to beredelivered by him on his return months after, and it was probably forthis reason that the other two Judges concurred specifically in my judgmentin Sultan v. Peiris. This concurrence enabled a judgment to be deliveredwhich was that of a majority of the Court and of which the successfulparty could at once take advantage, notwithstanding the absence fromthe Island of a Judge who sat on the appeal.
It is necessary now to return to the question whether Sultan v. Peirisis the authority that must determine this appeal or whether there isanother decision of higher authority governing the facts of the presentcase. This brings one to a discussion of Weerasekera v. Peiris (supra).The deed of gift there was in the following terms : “ Know All Men by thesePresents that I (the donor), for and in consideration of the natural loveand affection which I have and bear unto my son (the donee), ….do hereby give, grant, assign, transfer, set over and assure unto the saiddonee, his heirs, executors administrators and assigns as a gift inter vivosabsolute and irrevocable the land and premises described in the schedulehereto (of the value of Rupees Two thousand five hundred) together withall my right, title, interest, claim, and demand whatsoever in, to, upon orout of the same ….
“ To have and to hold the said premises with all and singular the appur-tenances thereunto belonging or used or enjoyed therewith or known aspart and parcel thereof unto him the said donee, his heirs, executors,administrators, and assigns for ever subject to the conditions and re-strictions hereinafter mentioned, that is to say, that I the said donorhave reserved to myself the right and power to cancel and revoke thesepresents and make any other deed or deeds therewith or deal with the
MACDONELL C J.—Ponniah v. Jameel.
sai4 premises as I shall think fit and proper during my lifetime as if thisdeed had not been executed and that I have further reserved to myselfthe fight of taking, receiving, and enjoying the rents, profits, issues, andincome of the said premises during my lifetime and after my death thesame shall go to and be possessed by the said donee as his property,provided, however, that the said donee shall not sell, mortgage, gift,exchange or otherwise dispose or alienate the said premises or any partthereof and further that he shall not be at liberty to encumber the rents,profits, income, or issues of the said premises or suffer, allow, or subject thesaid premises or the rents, profits, issues, and income thereof to be seized,attached or sold by any writ of execution for any debt, dues, default orundertaking of the said donee, that he shall not lease the said premises forany term exceeding three years at a time nor execute any subsequentleases before the expiration of the lease then in existence for the saidpremises. Provided, however, that the said donee can make gifts to hisdaughters in their marriages but not to any other. Provided, however,that after the death of the said donee the said property shall devolve onhis children as their absolute property and I do hereby for myself, myheirs, executors, and administrators covenant, promise, and agree toand with the said donee, his heirs, executors, administrators, and assignsthat the said premises hereby gifted are free from any incumbrance andthat I and my aforewritten shall and will at all times hereafter warrantand defend the same unto him and his aforewritten against any person orpresons whomsoever.
“ And I the said donee do hereby thankfully accept the above gift madeto me in the foregoing deed subject to the conditions therein set forth ”.
This deed then by the words of grant purported to be an irrevocableone but in the habendum subjected the grant to certain conditions, namely,that the donor could at any time revoke the deed and make another deedor deeds dealing with the property gifted, and that the donor should havethe right to take the rents and profits during his lifetime, a usufruct,though the word is not used, and that after his death the property shouldgo to the donee and his children under fidei commissum though againthat term is not used. This Court held (32 N. L. R. 176) that the gift wasgoverned by Muslim law but that it was not valid since no possessionpassed, also that the validity of the gift must be determined by Muslimlaw but the construction of the fidei commissum by Roman-Dutch law.The Privy Council reversed this decision, ruling that “ upon the trueconstruction of the deed, having regard to all its terms, the father did notintend to make to the son such a gift inter vivos as is recognized in Muslimlaw as necessitating the donee taking possession of the subject-matterduring the lifetime of the donor, but that the father intended to createand did create a valid fidei commissum such as is recognized by the Roman-Dutch law ”. This decision was examined in both the judgments inSultan v. Peiris and endeavour made there to discover its exact scope,and it was also exhaustively and acutely analysed by both learned Counselon this appeal, to whom I wish to express my best thanks for the assistancethey have given ; it would be lack of candour and courtesy if I did notrecognize this in ample terms.
1 35 N. L. R. 57 at SS.
MACDONEL.L C.J.—Ponniah «. Jameel.
What then is the scope of this judgment of the Privy Council in Weera-sekera v. Peiris1 ? I would respectfully adopt the answer to this questiongiven by Garvin J. hi Sultan v. Peiris, “ the effect of their Lordships'decision, as I conceive it, is that where it appears upon the constructionof the deed as a whole that the intention of the donor is not to make animmediate gift but a gift to take effect after his death there is not such agift as understood by the Muslim law and the intention of the donor must,if possible, be given effect to under the general law If I may paraphrase—I hope accurately—these words of Garvin J., I would say that Muslimlaw only recognizes as gifts those gifts purporting to be made in praesentifrom one Muslim during his life to another Muslim, and that it does not,recognize as—indeed knows nothing of—gifts which are to take effectif at all after the death of the donor. The Muslim law as to gifts is (withall respect) an undeveloped law as compared with the Roman-Dutch lawwhich is a developed law. The latter knows several kinds of gift, thatinter vivos in praesenti, that inter vivos to take effect at a future time,that inter vivos not to take effect till the death of the donor, and thedonatio mortis causa; the Muslim law knows only the gift inter vivos inpraesenti, property passing to the donee and possession also. Conse-quently if, as in Weerasekera v. Peiris, you purport to make a gift intervivos to take effect after you are dead, you are purporting to do somethingoutside the scope of your Muslim law, to do a legal act unknown to thatlaw, consequently that legal act to be valid at all must be valid .undersome other system of law. It is much as if a man at Colombo or CapeTown in the year 1800 had sought to make a declaration of trust—“ I,A, declare myself trustee of this sum of money for you X ” ; such a legalact could not have been valid, could have had no significance, under theRoman-Dutch law as it then prevailed at those places, and the manseeking to do it could not ‘ have intended that there should be a valid legalact by him as understood in the Roman-Dutch law ’—see 34 N. L. R. 285(last four lines).
If these considerations are correct, then they do away with the sugges-tion that a Muslim ‘‘ can contract himself out of the Muslim law as togifts altogether ”, a notion to which currency was given by some specu-lations—obiter—in my judgment in Sultan v. Peiris In extenuationit must be remembered that the judgments in that case were writtenin the confident expectation that appeal to the Privy Council would followand that we would receive therefrom a broad and luminous judgment onthis subject for our future guidance. In this connection I would respect-fully adopt the argument put to us by learned Counsel for the appellantin his reply on the present appeal. He distinguished between the rightsand obligations of the contracting parties on a contract—gift is a contractwith us—and the contract itself. Parties can mutually stipulate thatcertain incidents of the contract are to be good by the law of a particularplace but the validity of the contract must be governed by the law towhich they are themselves subject. Thus parties to a lease of land inCeylon might stipulate that the provisions in it as to cultivation orweeding should be interpreted according to the law of India (let us say)or of Malaya but they could not agree that the contract should be valid
1 34 N. L. E. 2S1.
2 35 N. L. B. 57 a 176:
MACDONELL C.J.—Ponniah v. Jameel.
though not notarially executed or covenant mutually not to raise thequestion of want of notarial execution, for this would be arrogating tothemselves legislative powers. I would agree.
But it is necessary to examine the Privy Council decision in Weerase-kera v. Peiris further to be certain of its exact effect and whether thepresent case is distinguishable. But before doing so I would wish toquote what I apprehend to be an accurate and sufficiently full statemen..of what is the Muslim law as to gifts in Ceylon, namely, the propositionslaid down by Garvin J. in Sultan v. Peiris ’.
The law applicable to gifts between Muslims is the Muslim lawas it obtains in Ceylon which to the extent to which it exists is theirCommon law.
It is essential to the validity of such gifts that there should be(a) a manifestation of the wish to give on the part of the donor, (b) theacceptance of the donee either express or implied, (c) the taking posses-sion of the subject matter of the gift by the donee.
Clauses imposing restrictions and restraints which would beeffective to create a fidei commissum if tested by the principles ofRoman-Dutch law are not obnoxious to the Muslim law as it obtainsin Ceylon and are therefore valid.
Where the donor reserves to himself a usufruct for life andtherefore manifests his intention not to give possession, the gift is badas it offends against the requirement of the Muslim law that the doneemust take possession of the subject of the gift before the transfer cantake place, until when the gift is not valid and complete ”.
Authority for these propositions can be found in our books passim., andmany of the cases constituting that authority are cited in the judgmentsin Sultan v. Peiris.
Now the learned Counsel for the respondents pressed on us that thedonor in No. 1,176 could not have intended to make a gift under his ownMuslim law but by the reservation to himself categorically of a usufructfor his life and by placing the property categorically under the bond of■fidei commissum had manifested an intention to make a kind of giftunknown to the Muslim law and therefore the only alternative, a giftunder Roman-Dutch law. In considering this we must beware of thefallacy that because a deed of gift between Muslims, and therefore primafacie to be governed by Muslim law, is for one reason or other ineffective,therefore the donor cannot have intended to make a Muslim deed of gift.A caution against this is to be found in my own judgment in Sultan v.Peiris=, and better and more fully in that of Garvin J. at p. 87 :—“ I needonly add that instances are not rare in which the primary intention of aperson is defeated by other words in a deed and that under any systemof law cases are not infrequent in which an act intended to have a definitelegal effect fails by reason of attempts to make reservations or imposerestrictions and conditions. The circumstance that a person who has soclearly manifested an intention to make an immediate gift of propertyfails to carry out his intention by the reservation, to himself of rights whichdefeat his purpose is not of itself a sufficient reason for ascribing to himan intention not to make a gift under the system of law which applies to1 35 A L. R. 57, at 85.* 35 N. L. R. 57, at 74 (1st para.).
MACDONELL C.J.—Ponniah v. Jameel.
him or for ascribing to him an intention to invoke the principles of adifferent system of law. Where the parties to a deed of gift are Muslimsthe presumption in the absence of strong indications to the contrary isthat they intend to act in accordance with their own laws and customsThis possible error put aside, we can proceed. Did the donor in deedNo. 1,176 not “intend that there should be a valid gift as understood inMuslim law ” ?
Now the test to determine this, according to the decision in Weerasekerav. Peirisseems to be that there “ it was never intended that the fathershould part with the property in or the possession of the premises duringhis lifetime or that the son should have any control over or possession ofthe premises during his father’s lifetime ”. This must be analysed andit is best to start at the end. “ It was never intended that the sonshould have any control over or possession of the premises during hisfather’s lifetime. ” In the present deed the donee certainly cannotby reason of the usufruct received, have possession of the premises duringthe donor’s lifetime but he is to have that amount of control that possessionof the deed of gift expressed as an irrevocable one would secure to him.Retaining the deed he would be able to register it, and this would givehim some security against future attempts by the donor to alienate thedominium contrary to deed 1,176.“ It was never intended that the
father should part with the property in or possession of the premisesduring his lifetime. ” Here, certainly, there was no parting by the donorwith the possession of the property during his lifetime for the usufructtherein was to remain in him for his life, but there was intention to partwith the property itself, the dominium, for the gift of that dominium wasexpressed to be made irrevocably, and the donor gave substantial proofof that intention by handing the deed of gift over to the donee. More-over, there was an expressed intention of parting with the possession ofthe property during the donor’s lifetime, for the donor says that onsigning the deed, he hands the deed over to the donees “ as a token of thetransfer of possession of the said properties ”. On the facts then thepresent case is clearly distinguishable from Weerasekere v. Peiris (supra).Attempting to put the distinction in one sentence, I would say that herethere was a transfer of the dominium and an act purporting to transferpossession, the whole to take effect now in the donor’s lifetime, conse-quently at the least an attempt to make a gift as Muslim law understandsthat term, while in Weerasekera v. Peiris (supra) there was no transferduring the donor's lifetime either of dominium or possession but a gift totake effect as to dominium and possession if at all after the donor’s death,that is, not a gift as Muslim law understands the term but outside thescope of Muslim gifts altogether. Then this case is not governed by thedecision in Weerasekera v. Peiris but, the alternative, by that in Sultan v.Peiris. The gift here was, and was intended to be a gift under Muslimlaw, but, as in Sultan v. Peiris, it fails because possession never passedbut was retained by the donor.
For the foregoing reasons I am of opinion that this appeal must beallowed with costs here and below and the action of the plaintiff dismissed.Poyser J.—I agree.Appeal allowed.
1 34 N. L. R. 281, at 285.
PONNIAH et al v. JAMEEL et al