Rafecka ©. Mohamad Sathuck.
1931Present: Macdonell C.J. and Lyall Grant J.RAFEEKA et al. v. MOHAMAD SATHUCK.
80—D. G. (Inty.) Colombo, 35,824.
Muslim law—Deed of gift—Possessionby donor—Minority of donees—Attorn-
ment to natural guardian~-Delivery of possession—Validity of gift.
Where thegrandmotherofMuslimchildrenwho wereminorsgifted
.certain premises to them and remained in possession, paying rent to their motherfor and on their behalf,—
Held. that there had been sufficient delivery of possession of thepremises—byattornmeutto thechildrenthroughtheirnatural
guardian—to constitute a valid donation under the Muslim law.
MACDOKELL C.JRafeeka v. Mohamad Sathnck.
^^PPEAL from a judgment of the District Judge of Colombo.
Keuneman, for defendant, appellant.
No(larajah (with him Abeyeaekere), for plaintiffs, respondents.
February 5, 1932. Macdonell C.J.—
The parties in this case are the same as in the action Rafeeka et al.v. Mohamed Sathuck 1 decided by my brother Garvin and myself onNovember 18, 1931, and the' facts so far as material are as follows: —Mohamfed Zain died on January 9, 1925, being then the owner of anundivided one-half share of the premises in dispute, 56, New Moor Street,Colombo, and prior .to bis marriage to Fatheela he had lived in thosepremises. After his marriage he went with his wife to live at 94, Messengerstreet, Colombo, and his mother Saffra Umma occupied 56, New Moorstreet. The mother Saffra Umma paid her son, the deceased MohamedZain, Es. 25 a month which were actually used by him in paying the rentof 94, Messenger street in which he lived. The only receipts producedwere made out by the landlord to Mohamed Zain in his name. There- is evidence from which .the learned trial Judge inferred that these Rs. 25per mensem were paid to him by his mother Saffra Umma as rent for hisshare, one-half, of the premises 56, Messenger street, of which she was in' occupation, and 1 do not think one can say that that inference waswrong. The mother Saffra Umma was his tenant, then, of his half sharein 56, New Moor street. He died, as has been said, on January 9, 1925,intestate, leaving his widow Fatheela and five minor children, plaintiffsiu this action, and his widow Fatheela administered his intestate estate'under letters granted her on August 8, 1927, in testamentary suitNo. 2,714, P 10. Thereafter by notarial deed No. 684 of October 21,1927, P If, she as administratrix conveyed her deceased husband'shalf share of the above-mentioned premises to the heirs thereunder, viz.,to herself, to the deceased’s mother Saffra Umma, and to her own minorchildren the 1st to 5th plaintiffs aforesaid, for the share to whicheach was respectively entitled on the intestacy. On the same day,October 21, 1927, she joined with Saffra Umma in conveying by notarialdeed No. 686, P 12, all their right, title, and interest in their shares inthe said premises “as a gift absolute and irrevocable ” to Fatheela’sfive minor children the plaintiffs aforesaid. Deeds 684, P 11, and 686,P 12, were both duly registered. The five minor children therefore bythis deed of gift, No. 686, P 12, if a valid one, became owners of theshare which had previously belonged to their mother Fatheela and theirgrandmother Saffra Umma. For .the appellant attention was drawnto the fact that after the death of .the son Mohamed Zain, 'the motherSaffra- Umma became owner of a fraction, probably 28/336, of his halfshare of the premises in dispute and that as admittedly she lived inthose premises from long before his death continuously up to her owndeath in 1929, She was, probably from his death in 1925, certainly fromthe conveyance No. 684 by the administratrix Fatheela, in possession
* 33 N. L.R. 176.
MACDONELL C.J.—Rafeeka v. Mohamad Sathuck.
of this fractional share. But with this fact must be taken another one,namely, that according to the evidence she continued to pay the Bs. 25per mensem from the death of Mohamed Zain in 1925 continuously upto her own death in 1929, whioh payment the learned District Judgeinfers to have been rent for her occupation of her son Mohamed Zain'shalf. If she had wanted at any time to mark the change in her rightsas to the premises in question, she could have done so by reducing theamount paid by her each month or by other sufficient indication. Theonly other material fact in the case is that Saffra Umma by notarialdeed No. 1,486, D 22, of February 4, 1928, purported to revoke her deedof gift No. 686 of October 21, 1927, P 12, to her five minor grandchildrenand by the same deed No. 1,486 to give .to her son Mohamed, defendantin this case, her own undivided share in the premises. The five minorchildren by their next friend brought this action for partition and saleof the premises and the learned District Judge gave judgment in theirfavour, holding that Saffra Umma had no power to revoke the gift by herunder deed No. 686 of her share of the premises and that consequentlydeed No. 1,486 was of no force. It is from this decision that the presentappeal is brought.The parties to these deeds are Muslims and the
validity or otherwise of these deeds must be tested by Mohammedanlaw.
Having so recently considered the law with reference to Mohammedandeeds of gift in the case Rafeeka et at. v. Mohamed Sathuck cited above,it hardly seems necessary to set out at length what was said Inthe judgment in that case. Fatheela, the mother of the plaintiffs, isin the position of their guardian, so her possession is that of the minorsand no acceptance on their part is necessary. Now Saffra Umma, Hiegrandmother, by paying rent for the share of the premises vested inthe children by the deed No. 686 to which she was a party, seems tohave recognized their possession of the premises in question. No .doubtthe rent. Bs. 25 per mensem was actually received by their motherFatheela, but as her possession is the possession of her minor childrenthe plaintiffs, this fact makes no difference. See 1 Ameer Alir 4th Ed.p. 119t quoting with approval Shaikh Ibrahim v. Shaikh Sulemantl‘‘As to the law of the case the Courts below are to bear in mindthat when land is occupied by tenants a request to them to attorn tothe donee is the only possession that the donor can give of the land inorder to complete a proposed gift. Such a possession would ….be sufficient". Now here the donor has done something more thanrequesting tenants to attorn to the donee; she. being herself the tenanthas attorned and paid rent to a person, Fatheela, whose possession isthat of the donees. It is a “ giving of possession " as complete as thesubject-matter of the gift allows, and a kind of delivery appropriate tothe subject-matter of the gift made to a person whose possession in lawis that of the donees. Then I .think that the gift made by Saffra Umma indeed No. 686, P 12, has been completed by delivery of possession andis one therefore that cannot be revoked.
Perhaps the acts of Saffra Umma as tending' to give or not to givepossession under this deed No. 686, P 12, can be analyzed thus. During
i 9 Bom. 146.
1208,MACDOXELL C..7.—Hafeeka v. Mohamed Sathuck.
the lifetime of her son Mohamed Zain she was paying rent Rs. 25 permensem for the right to occupy his property. At his death in January,1925, she became entitled to a small fraction—28/336 of one-half—of thiaproperty, but she continued to pay the same rent as before. Had thispayment been continued by her for ten years she might, I apprehend,have been held to have lost her fractional share by prescription; atleast it could have been argued that by paying rent for those ten yearsshe had continued to do and to repeat doing an act inconsistent withher co-ownership. OnOctober 21,1927, sheexecutes thedeed of gift
No. 687, V 12. Let usassume that-the wordsin it “ a giftabsolute and
irrevocable ” are of no force or at least of insufficient force to completethe gift, and that something further is needed, viz., delivery of possession• to someone whose possession will be that of the donees. As a Muslimshe must be presumed to know Mohammedan law, and she deliberatelycontinues to pay Rs. 25 per mensem rent to Fatheela thereby attorningto her and recognizingher right topossessionwhich right is by implica-tion of law the right ofthe donees.If this actof the donorSaftra Umma
was not intended to have that meaning it was for her to say so, and ifa Court interprets jt as a deliberate attornment to one who representsthe minor children and whose possession is theirs, the donor has noright to complain. There is no necessity to take it as high as an estoppel.It js sufficient to call it an admission on the part of the donor which canreasonably be interpreted as an attornment to the donees through theirmother Fatheela.
In conclusion I would respectfully concur in and would desire torepeat the words of Garvin J. in his judgment in Bafeeka et dl. v. MohamedSathuclc (supra), “ Under the Kandyan law gifts are ordinarily revocablebut this Court has held and it is now settled law that when such a gift isexpressed to be irrevocable the donor may not revoke it. I can see noreason why the principle of these decisions should not be applied to thecase of gifts between Muslims. This view of the law is affirmed in section3 of Ordinance No. 10 of 1931 which while defining and declaring the lawas to donations by Muslims domiciled in Ceylon provided ‘ that no deedof donation shall be deemed to be irrevocable unless it is also stated inthe deed …"
1 conclude that this proviso to section 3 of Ordinance No. 10 of 1931means that when a Mohammedan deed of donation is stated to beirrevocable, this shall be conclusive of its irrevocable character.There
can be no hardship in this, whatever the system of law under which the deedis made. “ That men do perform their covenants made without whichcovenants are in vain and but empty words *' was laid down by Hobbes-as one of the laws of nature. It is, and a necessary law.
For the foregoing reasons, I am of opinion that this appeal must bedismissed with costs.
.Lyall Ghant J.—I agree
RAFEEJA et al. v. MOHAMAD SATHUCJ