044-NLR-NLR-V-33-RAZEEKA-et-al.-v.-MOHAMED-SATHUCK.pdf
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MACDONELIi C.J.—Razeeko v. Mohamed Sathuck.
1931Present: Maodonell C.J. and Garvin S.P.J.BAZEEKA et al. v. MOHAMED SATHUCK.
10—D. C. Colombo, 35,823.
Muslim law—Gift by mother and grandmother to minor children—Possession
by mother—Bight to revoke—Acceptance unnecessary.
Wherethe mother and grandmother of minor children, subject to
Muslim law, gifted certain property to the minors, and the mother collectedthe rents on their behalf,—
Held, that the gift was a valid one under Muslim law and that no(acceptance was necessary to complete it.
A PPEAL from a judgment of the District Judge of Colombo.
A. E. Keuneman, for third defendant, appellant.
Nadarajah (with him Abeyesekera), for plaintiffs, respondents.
November 18, 1931. Macdonell C.J.—
The facts in this case so far as material are as follows:—MohamedZain died on January 9, 1925, in possession of an undivided half share ofthe premises No. 43, Main Street, Colombo. He left him surviving hismother Saffra Umma, his wife FatBeela, and five minor children who arethe first to fifth plaintiffs in this action. He died intestate and hiswidow Fatheela administered his estate under letters granted her intestamentary suit 2,714. Thereafter by notarial deed No. 685 of October21, 1927, she, as administratrix, conveyed her deceased husband's halfshare of the above-mentioned premises "To herself, to the deceased’s motherSaffra Umma, and to her own minor children, the first to fifth plaintiffsaforesaid, for the share to which each was respectively entitled. Theadministratrix, therefore, had in her capacity as such divested herselfof her rights as such and had conveyed to the beneficiaries entitled underthe intestacy of her late husband. On the same day, namely, October 21,1927, the same Fatheela joined with Saffra Umma in conveying bynotarial deed No. 687 all their right, title, and interest in their shares inthe said premises as a gift “ absolute and irrevocable ” fo Fatheela’sfive minor children, being plaintiffs one to five in this action. The fiveminor children therefore by this deed of gift No. 687, if a valid one,became owners of the shares that had previously belonged to their
MACDONEIiL C.J.—Razeeko v. Mohamed Sathuck.
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mother Fatheela and their grandmother Saffra Umma. The deeditself was handed to the notary executing for registration, and was dulyregistered. Thereafter, the grandmother Saffra Umma by notarialdeed No. 1,485 of February 4, 1928, purported to revoke her deed of giftNo. 687 of October 21, 1927, to her five minor grandchildren and by thesame deed No. 1,485 to give to her son Mohamed Sathuck, the addeddefendant-appellant in this case, her own undivided share of the saidpremises. This deed No. 1,485 was also registered. Thereafter theAdditional defendant-appellant got deed No. 687 from the possession ofthe notary, alleging that he intended to give it to Fatheela, and it wasf&m his custody that it was produced in this case. Instead of handing• it to Fatheela, he kept it by him until Saffra.Umma had executed deedNo. 1,485 purporting to revoke it. There was sufficient evidence thatFatheela after the execution of deed No. 687 was colleting the rents ofthe property on behalf of the five minor plaintiffs, her children. They,by their next friend, brought this action for partition and sale of thepremises in question, and the learned District Judge gave judgment in'their, favour, holding that Saffra Umma had no power to revoke the giftby her under deed No. 687 of her share of the premises, and that conse-quently deed No. 1,485 was of no force. It is from this decree that thepresent appeal is brought. The parties to these deeds are Muslims andthe validity or otherwise of these deeds must be tested by Muhammedanlaw. Muhammedan law in the Island requires three conditions as togifts: “ Manifestation of the wish to give on the part' of the donor; theacceptance of the donee either impliedly or expressedly, and the takingpossession of the subject-matter of the gift by the donee either actuallyor constructively ” (1 Ameer Ali, 4th ed., 41).
The question here is, could there be revocation by Saffra Umma of hergift in deed No. 687 expressed to be “ absolute and irrevocable ” or wasthere acceptance by or on behalf of the donees and did they acquirepossession of the thing given? For, if there was such acceptance andacquisition of possession, then Saffra Umma could not revoke her gift.The donees were minors at the time and are so still. The law on thesubject is stated as follows in Ameer Ali, 4th ed., at page 123:—“ in thecase of a gift by a father to his minor child, no acceptance is necessary.The gift is completed by the contract, and it makes no difference whetherthe subject of the gift is in the hands of the father or in that of a depositary(on behalf of the father). When a father makes a gift of something to hisinfant son, the infant, by virtue of the gift, becomes proprietor of thesame, provided the thing given be at the time in the possession either ofthe father or of any person who stands in the position of a trustee for thefather, because the possession of the father is tantamount to the possessionof the infant by virtue of the gift, and the possession of the trustee isequivalent to that of the father. With regard to the validity of gifts tominors of property in the occupation of tenants ”—.which is the characterof the property in this case—“ it has been shown that a father maymake a gift to his minor child of immovable property in the Occupationof tenants or in the possession of a lessee or mortgagee without any changeof possession on the part of the persons directly holding the subject-matter of the gift, nor, to make the gift complete, is any acceptance on
178MACDONELL C.J.—Razeeka v. Mohamed Sathuck.
the part of the donee necessary. The gift once made and the intentionto convey the property unequivocally expressed, the donation is completeso far as the donor is concerned, though he may continue to hdld theproperty in his own name in the same manner as before the gift. Thesame rule applies to a gift by a mother to her infant child, whom shemaintains and whose father is dead and there is no constituted guardian ",which is exactly the case here, for the mother Fatheela is certainlyexercising the powers of guardian of the five minor plaintiffs. 1 AmeerAliy 4th ed.t 173:—" In the case of a gift by a parent to a minor child,no acceptance is necessary; * the gift is completed by the contract andit makes no difference whether the subject of the gift is in the father’shands or in that of a depositary Nor is transmutation of possessionnecessary, for the possession of the parent is tantamount to that of thechild."
These statements of the law make it clear that the gift under deedNo. 687 by Fatheela, the mother, of her share to her children, the fiveplaintiffs, was complete and irrevocable from the moment of theexecution of that deed. Her possession became that of those minorsand no acceptance on their part became necessary.
The gift under deed No. ’ 687 by Saffra Umma of her share will begoverned by the application of the same principle. 1 Ameer Alit 4th ed.t]24:—“ Where a gift is made to an infant by a person other than thefather the gift is rendered complete by the seisin of the father of theinfant. When the father is dead, the possession of the person primarilyentitled to the guardianship of the child is sufficient." Here, the seisinof the share gifted by Saffra Umma was in the mother, Fatheela. Theevidence is that she was in possession and that the tenants had paid herhalf of the rent due, that is the whole rent that would be due on the halfshare that had belonged to her husband the deceased. Then the giftby Saffra Umma was a gift of something to a minor by a person otherthan the father or guardian, which something was at the time of the giftin the possession of the guardian, in this case the mother. The mother’sseisin becomes the seisin of the minor donees, and no formal acceptanceby her is necessary. Consequently the gift by Saffra Umma under deedNo. 687 was a complete one and being complete could not be revoked.
One other fact must be mentioned. At the end of deed No. 687 thereis a clause stating that the witness Abdul Azeez Mohamed Ismail " thank-fully accepts and takes delivery of the foregoing gift for and on behalf of "the five minor donees, plaintiffs in this action. There is no evidence ofthis person Mohamed Ismail having ever done anything to accept or takedelivery or possession of the subject-matter of the gift; for instance, hecould have manifested a taking possession by giving notice to the tenantsof the premises to attorn to him for half the rent, but, on the evidence,he did nothing. Still, if the statement of tfie law, as given above, iscorrect, then from the moment of the execution of the deed the seisin ofthe mother, Fatheela, became that of the donees. Then this clause as tothe witness Mohamed Ismail " thankfully accepting and taking delivery "was surplusage, and as such can be disregarded.
For the foregoing reasons I am of opinion that this appeal must bedismissed with costs.
AXBAR J.—Mack v. Perera.
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CrAKVIN S.P.J.—
I agree and would only add a few words as to the revocability of thisgift which was expressed in the deed to be absolute and irrevocable **.Under the Kandyan law gifts are ordinarily revocablev but this Court hasheld and it is now settled law that when such a gift is expressed to beirrevocable the donor may not revoke it. I can see no reason why theprinciple of these decisions should not be applied to the case of giftsbetween Muslims. This view of the law is affirmed in section 3 ofOrdinance No. 10 of 1981, which while defining and declaring the law asto donations by Muslims domiciled in Ceylon provided *' that no deed-of donations shall be deemed to be irrevocable unless it is also statedin the deed
Appeal dismissed.