SAHUL HAMID v. MOHIDEEN NACHIYA

019-NLR-NLR-V-34-SAHUL-HAMID-v.-MOHIDEEN-NACHIYA.pdf


Sahul Hamid v. Mohideen Nachiya.
57
1932Present: Dalton J. and Jayewardene A.J.
SAHUL HAMID v. MOHIDEEN NACHIYA.
83—D. C. Jaffna, 26,351.
Muslim law—Deed of gift to children—Absolute and irrevocable—Acceptanceby major son on behalf of minors—Reservation of right to live on premisesand enjoy the rents and produce—Ordinance No. 10 of 1931, s. 3—Retrospective effect.
A Muslim gifted certain premises to her four sons as a gift absoluteand irrevocable. The gift was accepted by the eldest son, a major, onbehalf of his minor brothers.
The deed further provided that the donor shall have “ the right of livingin the premises and enjoying the rents and produce thereof during herlifetime ”.
Held, that the donation was a valid one under the Muslim law.
Per Dalton J.—That the Muslim Intestate Succession and Wakfs Ordi-nance, No. 10 of 1931, in regard to the declaration in section 3 isdeclaratory of the law applicable to donations not involving fidei commissa.
Per Jayewardene A.J.—That the donation was irrevocable.
Ordinance No. 10 of 1931 is not merely declaratory of the existinglaw, and therefore not retrospective.
T
HE plaintiff, a minor appearing by his next friend, instituted thisaction for a declaration that the .deed of gift executed by the
defendant (his mother) in favour of himself and of three of his brothers. was a valid one and that it was irrevocable. The parties are Muslims.The deed was executed by the defendant on December 20, 1929, in favourof four children, three of whom were minors, and was signed by the fatherand the eldest son, who accepted it on behalf of the minors. The defendantpurported to revoke the deed on February 13, 1930. The material factsof the deed are as follows:—“I …. with the consent and con-currence of my husband, in consideration of the natural love and affectionwhich I have and bear unto my sons, do hereby grant, convey, assign,transfer, set over, and assure unto the said donees as a gift inter vivos,absolute and irrevocable that piece of land called …. subject tothe terms and conditions …. To have and to hold the saidpremises hereby granted unto the said donees in equal shares, provided,however, that I, the said donor, shall have the right of living in the saidpremises and enjoying the rents and produce thereof during my lifetime ”
The learned District Judge held that the gift was a valid one under theMuslim law and gave judgment for the plaintiff.
N. E. Weerasooria (with him Thyagaraja), for defendant, appellant.—The deed of gift should be construed according to Muslim law. Theremust first be a valid gift under the Muslim law. Then only can anyquestion of fidei commissum arise. The requisites of a valid gift underthe Muslim law have been reviewed in Weeresekere v. Peiris1. Thereshould be a manifestation of the wish to give, an acceptance, and complete
1 (1931) 32 N. L. It. 176.'
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DALTON J.—Sahul Hamid v. Mohideen NacKiya.
and effectual possession. In the deed under consideration no questionof complete and effectual possession on the part of the donees can arise.To the donor are reserved the right of residence and the right to enjoy therents and produce during her lifetime. This is, in effect, the reservationof an usufruct; and even if the rights reserved are less, they are sufficientto prevent the taking of complete and effectual possession (Tyabji onMohammedan Law (2nd ed.), ss. 383, 400, &c., pp. 427, 451, &c.). Thefact that the donor is a parent and the donees her minor children istherefore immaterial.
H. V. Perera (with him M. I. M. Haniffa) for plaintiff, respondent.—Thewords here are different to the words used in Weeresekere v. Peiris (supra).There the words used gave the donor a “ a life interest ” and the power ofrevocation. Here the gift is expressly “ absolute and irrevocable ”.In such a case, no revocation is possible (Rafeeka et al. v. MohammedSathuck'). The decisions of the Privy Council in Umjad Ally Khan v.Mohumdee Begum – and Muhamed Abdul Ghani v. Fakr Jahan Begum3 areclearly applicable. Further, in view of Ordinance No. 10 Of 1931 theconstruction of the deed should be governed by the Roman-Dutch law.The Ordinance came into operation subsequent to the decision in Weere-sekere v. Peiris (supra). The words and intention of the Ordinance areclearly declaratory and the Ordinance is retrospective in operation.Counsel' also cited Abdul Rahim v. Hamidu Lebbe * and Maxwell on Statutes.
Weerasooria, in reply.—The decision in Weeresekere v. Peiris (supra)did not turn on the reservation of the right of revocation. OrdinanceNo. 10 of 1931 is not retrospective. It amends the law and effectsconsiderable changes. Even if it was intended to be declaratory, thewords used are not clear enough to make it declaratory. If there is anyambiguity, the rule is not to make an Ordinance retrospective (Youngv. Adams6).
May 27, 1932. Dalton J.—
The parties in this appeal are Muslims, mother and son. On December20, 1929, the mother (appellant) executed notarially a deed of donationof certain immovable property in favour of her four children, threeof whom were minors. The deed was signed by her, her husband, andthe eldest son, the latter himself a major signing for himself and thethree other children. On February 13, 1930, she purported to revokethe deed, and in June, 1930, plaintiff, the second son, who is stated tobe twenty years of age, appearing by his next friend, his father, com-menced this action claiming that the deed was a valid deed of donationthat was irrevocable. It has been suggested in the lower Court that afterthe deed of donation was executed, the donor mortgaged the property,and that it is really the case of the mortgagee that is being defended, butthere is no evidence of any such act on her part.
The only issue in the case was whether the deed in favour of 'he plaintiffwas null and void. In dealing with that issue, however, it aas to bedecided whether Muslim law or Roman-Dutch law is applicable. No
1 Ceylon Law Weekly 103.3 44 All. 3.01.
11 Moore I. A. 517.*28 N. L. R. 136.
3 (1898) .1. C. 469.
DALTON J.—Sahul Hamid v. Mofiideen Nachiya.
59
evidence was led in the lower Court apart from the production of thedeed itself, and after hearing argument on these points the trial Judge hasheld, applying Muslim law, that the deed is a valid one and that theplaintiff is entitled to succeed. It was not necessary, therefore, for him toconsider the second point raised on behalf of plaintiff that a valid fideicommissum is created by the deed and that therefore it is governed byRoman-Dutch law. The donor has appealed from that finding.
Following the order in which the trial Judge dealt with the two points, Iwill first of all deal with his finding that, under Muslim law, the deed is avalid deed of gift and irrevocable. The material parts of the deed are asfollows: —
Know all men …. that I, . . . . wife of . . . .of … . (hereinafter called and referred to as the donor) withthe consent and concurrence of my husband, the said …. asis testified by his becoming a party hereto and signing these presents, inconsideration of the natural love and affection which I have and bearunto my sons, …. hereinafter called and referred to as thedonees …. do hereby grant, convey, assign, transfer, set over,and assure unto the said donees as a gift inter vivos absolute andirrevocable that piece of land called . . . . together with alleasements, rights, and advantages whatsoever appertaining ….and all the estate, right, title, interest, claim, and demand whatsoeverof me into, upon, or out of the said premises …. subject tothe terms and conditions hereinafter mentioned:
To have and to hold the said premises hereby granted or intendedso to be unto the said donees in equal shares; provided, however, thatI, the said donor, shall have the right of living in the said premises, andenjoying the rents and produce thereof during my lifetime; provided,further, the donees shall not seek partition of the said premises eitheramicably or in a Court of law, and they, the said donees, shall not alienateor encumber or lease the said premises, except among themselves.In the event of any of the donees dying without issue, the said pre-mises shall devolve on the surviving donees; and in case the saiddonees should die possessed of the said premises leaving issue thesaid premises shall devolve on their respective children.
And I, the said …. the first-named donee, do hereby formyself and on behalf of my minor brothers, …. thankfullyaccept this gift subject to the conditions hereinafter mentioned.
The usual notarial attestation follows. The word “ hereinafter ” inthe last line of the deed may be taken to be an error for “ hereinbefore ”,as no other conditions are thereafter mentioned.
The essentials for a valid deed of donation in Muslim law have beenthe subject of numerous decisions in these Courts. The latest case uponwhich the appellant relies is Weeresekere v. Peiris1. From the authori-ties there cited, it is clear that the three conditions requisite for a validdonation are manifestation of the wish to give on the part of the donor,the acceptance of the donee either impliedly or expressly, and the takingpossession of the subject-matter of the gift by the donee either actually1
‘ 32 N. L. R. 176.
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DALTON J.—Sahul Hamid v. Mofyideen Nachiya.
or constructively. Applying these requirements to the deed that theyhad to construe in that case, the learned Judges came to the conclusionthat all three of the conditions had not been fulfilled, and that thereforethe deed was not a valid one. The facts of the case before us are, however,in my opinion very different from the facts in that case, for there thedonor in express terms reserved to himself not only a life interest orusufruct, but also the right of dealing with the property as owner as ifthe deed of donation had not been executed, and he finally states theproperty shall go to the donee and be possessed by him after the deathof the donor.
The appellant here expressed clearly her wish to give, and sets out herreasons for making the gift. The donation is expressly accepted by oneof the donees for himself and the others. Have they complied with thethird condition by taking possession either actually or constructively ofthe subject-matter of the gift? It is urged for the appellant that theyhave not done so inasmuch as she has reserved for herself a life interestin the property, that is, a real right in the property which implied posses-sion and enjoyment of the premises for herself, and which is inconsistentwith their effective possession. The necessity for possession in orderto complete a gift, says Tyabji in his Principles of Muhammedan Lcnu(section 383) is based on the same ground as that on which a contractwithout consideration cannot be enforced. Where, the donor has notdone everything to divest himself of the property in order to completethe gift, some third party must make him do what he has left undone,and this infringes the principal notion connected with a gift, its voluntarynature.
The donees living with their parents in the premises, as was the casehere, on the execution of the deed there would be no change in theoccupancy of the premises to denote that the donees had come intopossession as a result of the donation. Tyabji, in section 396, states that,where the donor and the donee are present on the same premises whichform the subject of the gift, an appropriate intention may put the donorout of possession and the donee into it without any actual physicaldeparture or formal entry. It has been held according to Muslim lawa gift by a father to his minor child of property in the parent’s possessionis complete on his declaration that a gift has been made (Abdul Rahim v.Hamidu Lehhe'). The parent will probably in all such cases still remainin possession since the donee is a minor, but whether that possession ison behalf of the minor, or, as a result of other conditions in the deedwhereby the donee retained rights in the property, for himself is aquestion that must be decided according to the facts of each case. Inthe absence of any such reservation the weight of authority is statedto be in favour of the view that in the case of a gift by a father to hisminor child of property in his possession the gift is complete on hisdeclaration that a gift has been made, and thereafter his possession isthe possession of the donee. ;
The fact that the deed we are required to construe is stated to beabsolute and irrevocable has been referred to, and Rafeeha et al. v.
1 28 N. L. R. 136.
DALTON J.—Sahul Hamid v. Mohideen Nachiya.tfl
Mohammed Sathuck' was cited. There it was held that where a deed ofdonation given by a Muslim recites that the donation is absolute andirrevocable, such donation cannot be revoked by the donor. It isnot necessary, however, for us to consider that question here. If therequirements to constitute a valid deed of gift are not present, thequestion of its irrevocability does not arise.
The terms of the deed which we are required to construe could not bemore explicit than they are for the purpose of conveying all rights in theproperty to the donees. Can it be said that, by the conditions she hasattached to this conveyance, she is retaining possession and enjoy meritof the property in such a way as to be inconsistent with real possessionby the donees? She retains the right to live in the premises and toenjoy the rents and produce thereof during her lifetime. It cannot besaid that she has retained the right of “ usufruct ” as has been done insome of the cases cited to us, for there are various things that a usufruc-tuary can do that she has not retained for herself. I am not sure thatthe term “ usufruct ” is happily used in reference to deeds of donationto which we are asked to apply Mohammedan law, since it implies tMtthe bare ownership is vested in another person. She has not evenretained all the rights which would come under the lesser right of v.svs.It is urged she has retained a life interest, but she has retained nothingwhich seems to me can possibly be described as a real right or such aninterest as in English law would be an estate for life.
__i' *
Ameer Ali (Mohammedan Law, Vol. I., p. 136) states where the intentionis clear to transfer the entire right of property in the corpus of the gift, amere reservation of interest in its rents and issues, or any profit accruingtherefrom or a subordinate share in its enjoyment does not affect thevalidity. He adds also that this view is not restricted in the case of aminor donee. In such a case the reservation would merely be a conditionof the gift rather than an indication of the donor in making the gift thatthere has been no change of status in the possession of the subject-matterof the gift. (Vide Maydeen v. Abubaker) An example of such reser-vation of the income of property, the subject of a deed of donation, forlife appears in the case of Ibrahim Natchia v. Abdul Cader '. It was heldthere that it imported no right of possession in the person in whose favourthe reservation was made. Another case to which our attention wascalled is Maricar u. Umma'. There Lyall Grant J. dealing with theparticular deed before him which, inasmuch as it reserved a life interestin the donors with the right to mortgage or transfer it, the donees only topossess after the donors’ death, was held not to be a valid donation,points out that the question to be decided is whether it is the case of adeed of donation with conditions derogatory from the grant, or a freegrant to which are attached oonditions and limitations.
In the case of Weeresekere v. Peiris (ubi supra), upon which the appellantstrongly relies, two judgments of the Privy Council were considered,TJmjad Ally Khan v. Mohumdee Begum' and Muhammed Abdul Ghani v,
/ Ceylon Law Weekly 103.3 28 N. L. R. 31S.
21 -V. L. R. 281. ** 31 XR. '257.
311 Moore J. A. 51t.
34/8-
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DALTON J.—Sahul Hamid, v. Mohideen Nachiya.
Fakr Jahan Begum1, but the facts in the local case under considerationwere distinguished from the facts in those two cases. In the first-namedcase it was held that a donation reserving not the dominion over the corpusof the property, nor any share of the dominion over the corpus, butmerely stipulating for and retaining a right to the recurring produceduring the donor’s lifetime, is not an incomplete gift by Mohammedanlaw. It was held there the gift related to the substance of the articledonated and not to the use of it, and there was no such participation inthe thing donated as would invalidate the gift. In the second case, thedeed as construed by the Lords of the Privy Council made a gift of movableand immovable property, the donor reserving to herself for her life theusufruct of the property, the subject of that appeal. She made it clear,however, she did not reserve to herself any right to transfer by mortgage,sale, or gift any part of the property. They read the deed as intendingto be and to operate as an immediate and irrevocable disposition of allthe donor’s movable and immovable property, subject to the reservationfor her own use during her lifetime, of the usufruct of the property inquestion. The donee took physical possession of part of the propertydonated and exercised acts of ownership, but the donor remained inphysical possession of the particular property, the subject of the action,for over twenty years after the execution of the deed. After considerationof the requirement for a valid gift under Muslim law it was held thedonee must be regarded as having been constructively in possession ofall the property donated, and the gift was a valid gift in Muslim law.
Commenting on these two judgments in Weeresekere v. Peiris (supra)Garvin J. agrees that if the reservations dealt with are merely rights toreceive from the donee the produce or profits of the gift based on agreementand not a real right in the land, then when such land is in the possession ofthe donee, it is susceptible of delivery as fully as if there were no suchreservation. The reservation before us seems to me to be clearly no morethan that, and retaining no real right in the land. The added conditionof right of residence, having regard to the relationship of the parties,seems to me under the circumstances to be of exactly the same nature,and in no way to prevent the completion of the gift by delivery ofpossession. I agree with the trial Judge’s conclusion that the deed ofdonation in favour of the plaintiff was a good and valid deed in Muslimlaw, and the issue was rightly answered in favour of the plaintiff.
The second question raised, that a valid fidei commissum was createdby the deed, and hence governed by Roman-Dutch law, the deed beingthereby taken out of the operation of Muslim law, if answered in theaffirmative would also entitle the plaintiff to succeed. The trial Judgehas not dealt with this point, in view of his finding on the first question,but on appeal it was fully and ably argued before us.
In Weeresekere v. Peiris (ubi supra) this Court held that where a giftcontained a fidei commissum, the validity of the gift must be determined byMuslim law, although the construction of the fidei commissum is governedhy Roman-Dutch law. That decision is dated January 20, 1931. ByOrdinance No. 10 of 1931, which came into force on June 17, 1931, it isdeclared that donations not involving fidei commissa are governed by
' 44 All. 301.
JAYEWARDENE A.J.—Sahul Hamid v. Mohideen Nachiya.
63
Muslim law, it following that donations involving fidei commissa aregoverned by the common law. The question to be decided here is whetherthat Ordinance is declaratory of the law, since otherwise it is admitted itcan have no retrospective effect.
The Ordinance from the first line of its title to the end of the fifthsection, the portion with which we are here primarily concerned, is full ofdifficulties as has been made clear to us during the course of the argumentwe have heard, and it has been described as a fruitful source of futurelitigation. I do not propose, however, in view of the fact that the judg-ment appealed from- must be supported on the first point raised, toexamine the matter in detail or to do more than give expression to myopinion ; it being conceded that if the deed creates a fidei commissum thatplaintiff was entitled to succeed on the second point also. The argumentadduced on his behalf leads me to the conclusion that the Ordinance, inregard to the declaration in section 3, is declaratory of the law applicableto donations not involving fidei commissa. A long chain of decisions ofthis Court leads one to the conclusion that a Muslim deed involving afidei commissum was without question regarded as being governed by thecommon law ; and it would seem the question was not in any doubt untilvery lately. What had given rise to that doubt is not clear, or whetherdoubts were current on this particular point before the decision in Weere-sekere v. Peiris (supra) is also not clear, if one examine the original draftbill, upon which Ordinance No. 10 of 1931 was eventually based with theexplanatory memorandum attached. That bill, to which counsel hasdrawn our attention, and which has been very much changed in theprocess of becoming law, is published in the official Gazette of March 1,1929, Part II., p. 178.. Nothing I have heard from Mr. Weerasooriafor the appellant has satisfied me that the opinion I have formed is wrong,although he made it clear the question was not such an easy one to decideas it first appeared to be.
For the reasons I have given I am satisfied the judgment of the lowerCourt was correct, and the appeal must be dismissed with costs.
Jayewardene A. J.—
By deed No. 740 dated December 20, 1929, the defendant, who is aMohammedan woman, gifted the land called Thalvupalam and Kavai-yankadu, “ with the house, well, and cultivated and spontaneous plantssituated thereon,” to her four sons, three of whom, including the plaintiff,were minors, as a gift absolute and irrevocable. The gift was dulyaccepted by the eldest brother for himself and his minor brothers. Itwas provided by the deed that the donor should have the right of livingon the land, and enjoying the rents and produce during her lifetime..The deed created a fidei commissum binding on the donees in favour oftheir children. By deed No. 15,450 dated February 13, 1930, thedefendant purported to revoke the deed of gift. The plaintiff by hisnext friend has brought this action for a declaration that the deed ofrevocation is void. The learned District Judge has entered judgmentfor the plaintiff, and the defendant appeals.
The Mohammedan law distinguishes two kinds of gifts (properly so-called) by the terms sudakah and hiba. Both are voluntary transfers of
64
JAYEWARDENE A.J.—Sahul Hamid v. Mohideen Nachiya.
.property without consideration.; in the former the motive is to acquirereligious merit, in the latter affection towards the donee (Wilson’sAnglo-Mohammedan Law, 6th ed., p. 323). Gifts are rendered valid bytender, acceptance, and seisin ” (Hedaya, p. 482). The donee of a thingacquires no right over it unless he actually takes possession. Thisimportant condition is founded on an express saying of the Prophet,
“ that a gift is not valid unless possessed ” (Baillie Digest of MohammedanLaw, p. 508).
The taking of possession may be either actual or constructive, accordingto the Privy Council ruling in Muhammed v. Fakr Johan'. No actualdelivery of possession is necessary where a parent makes a gift to a minorson. The gift is completed by the deed, and if the parent retains possessionhis possession is equivalent to possession by the minor and no formaldelivery and seisin is required (Fatima Bibi v. Ahmeed Baksh”). Wherethere is on the part of the father or other guardian a real and bona fideintention to make a gift, the law will be satisfied without change ofpossession and will presume the subsequent holding of the property to beon behalf of the minors, according to the Privy Council, in Amirunissa v.Abedoonissa In the case of a gift by a parent to a minor child, noacceptance is necessary, the gift is completed by the contract ; no trans-mutation of possession is necessary, for the possession of the parent istantamount to that of the child (Ameer Ali, p. 173) .This principle hasbeen accepted and followed by this Court (Affefudeen v. Periatamby *,Abdul Raheem v. Hamid", Rafeeka v. Mohammed Sathuck").
The fact that a fidei commissum is imposed does not remove a gift, inregard to its validity, from the sphere of Mohammedan law. A gift may bea hiba simple or with stipulations but in each and every variation of gift, .the transaction is a hiba and must contain the essential elements thatconstitute a hiba according to Mohammedan law (Sarifudin v. Mohidin7).A gift includes a transaction in which the donor’s bounty passes to hisintended beneficiary through the medium of a trust. The Mohammedanlav/ applies to such a gift by trust, which, if without consideration, isvoid without delivery of such possession as the object of the gift issusceptible of' (Sadik Hussain Khanc and Wilson p. 322). It has beenheld by Macdonell C.J. and Garvin J. that a fideicommissary gift betweenMohammedans in Ceylon must be complete under Mohammedan lawbefore the fidei commissum can become operative. The Mohammedanlaw being applied to test its validity as a gift and the Roman-Dutch lawto test its validity as to the fidei commissum (Weeresekere v. Peiris “).
In the present case the donor is the mother, and three of the donees areher minor sons. The gift was made with the consent of the father andwas accepted by the first donee on behalf of the others. The donor anddonees seem to reside in the house on the property gifted. No physicaldeparture or formal entry is necessary in the case of a gift of property inwhich the donor and donee are both residing at the time of the gift(Mulla’s Mohammedan Law, 9th ed., p. 115). Where a Mohammedan
I 44 All. SOI. sir,.3S N. L. R. ISC,.
= 31 Cal. 31!). 330.6 0 Time* L.R. 3C<0 !>$.
« 3$ J! (Ini).QOS.7 34 Cal. 734.701.
' 14 K. 1.. R. 203.8 L. R. 43 I.A. 212.
• 32 X. L. R. 170.
JAYEWARDENE A.J.—Sahul Hamid v. Mohideen Nachiya.
65
lady executed a deed of gift in favour of a nephew, whom she had broughtup as a son, of a house in which they were both residing and the donor didnot physically depart from the house, but continued to live in the housewith her nephew and the property was transferred to the name of thenephew and the rents were recovered in his name, it was held that thegift was complete, though there was no formal delivery of possession(H umera Bibi v. Nufman Nissal) .
Then it was contended that the reservation of the right of living on thepremises and of enjoying the rents and produce during the donor’slifetime created a life interest or usufruct and that the deed came withinthe ambit of the principle enunciated in Weeresekere v. Peiris (supra).In that case Garvin J. drew a distinction between a life interest or usufructand a right to the income. He said, “ The reservation of a life interest orusufruct which is the equivalent right as known to the Roman-Dutchlaw, is a real right and includes not merely a right to the perception ofthe fruits or to the income of a land but possession and enjoyment in thefullest sense,” and he based his decision in the case on the ground thatthe donor not merely intended to reserve a usufruct, and evidenced hisintention by leasing the premises, but, in addition, he reserved the rightto dispose of the premises as an owner might, as if the deed of gift had notbeen executed. He also held that the donor did not complete the gift bydelivery of seisin either actually or contructively. Macdonell C.J.thought that there never was possession under the gift by the donee.
In many of the cases where Mohammedan gifts have been held to beinvalid, the gifts were to operate in futuro and the property was to vestafter the death of the donor. The two earliest cases reported in Vander-straaten’s Reports, App. B31 and p. 157, are in point. In Meydum v.Abubackeri the donee was not to possess until after the death of thedonor, so that no question of seisin arose, and this Court held that therewas no intention to make an absolute gift. In Maricar v. Zimina* thedonor reserved a life interest and also the right to mortgage or transfer theland when necessary and the donees were to possess after the death of thedonors.
In Affefudeen v. Periatamby (supra) and Mohamadu v. Maricar4 thedonor had refrained advisedly from giving possession to the donee and thegift was incomplete.
In (1877) Ramanathan’s Reports 87 it was held that according toMohammedan law, a deed of gift to a son, conditioned to take effectafter the death of the donor, was good, and the rule as to delivery is subjectto an exception in favour of the children of the donor on the authority ofMacnaghten 51. The case of Ibrahim Natchia v. Abdul Coder' comesnearest to the present one. It was a gift by the father to his minor son,but the right to possess the income was reserved to the mother duringher lifetime. Lyall Grant J. said “ It was, however, argued that in thisdeed, the interposition of a life interest to the mother showed that nopossession was given. I do not think, however, that any right ofpossession was given to Ava Umma * (the mother). All that the deed
28 All. 147.3 31 N. h. R. 237.
21 N. L. R. 284.4 21 N. L. R. 84.
s 28 X. L. R. 3US.
66JAYEWARDENE A.J.—Sahul Hamid v. Mohideen Nachiya.
said was that she should possess the income of the property during herlifetime. Accordingly, I think that even dealing with the deed as a deedunder Mohammedan law it is valid ”.
The question whether the produce is distinguishable from the corpuswas considered by the Privy Council in Nawab XJmfad Ally Khan v.Mussumat Mohumudee Begum The Nawab of Oudh had made a giftto his son of Government promissory notes, with the condition that thedonee should make over to the donor during his lifetime the interestaccruing on the notes from time to time. It was held by the JudicialCommissioner of Oudh, on appeal from the Civil Judge of Lucknow, thatthe transfer to the son on the express condition that the father shouldreceive the usufruct during his life violated the Mohammedan law ofgifts and rendered the transfer inoperative. In the Privy Council it wasargued that the, donor retained the possessory rights and usufruct ofthese securities until his death, and any beneficial interest reserved in thething given to continue during the lifetime of the donor was against thepolicy of the Mohammedan law and rendered the gift invalid. TheirLordships, however, reversed the decision of the Judicial Commissioner,saying on this point: —
“ It remains to be considered whether a real transfer of property by adonor in his lifetime under the Mohammedan law, reserving not thedominion over the corpus of the property, nor any share of dominionover the corpus, but simply stipulating for and obtaining a right tothe recurring produce during his lifetime, is an incomplete gift by theMohammedan law. The text of the Hedaya seems to include the very-proposition and to negative it. The thing to be returned is not identicalbut something different. See Hedaya,' tit. " Gifts,” Vol. 3, Bk. 30,p. 294, where the objection being raised that a participation of propertyin the thing given invalidates a gift, the answer is, ‘The donor issubjected to a participation in a thing which is not the subject of hisgrant, namely, the use (of the whole indivisible article) for his giftrelated to the substance of the article, not to the use of it.’ Again, , ifthe agreement for the reservation of the interest to the father for hislife be treated as a repugnant condition, repugnant to the whole enjoy-ment by the donee, here the Mohammedan law defeats not the grantbut the condition.”
In Mohamad Abdul Ghani v. Fakr Jahan Begum – the donor madea gift of all her movable and immovable estate reserving for herselfthe usufruct of the property that was in question; but without reserv-ing any right to transfer by mortgage or sale or gift any part of theproperty. The Privy Council held that the reservation of the life-interest did not by itself make the gift of the property in questionvoid under Mohammedan law on the authority of Unfad Ally Khanv. Mohumudee Begum (supra). They thought that if the donee hadreceived any of the rents and profits of the land in question, he wouldbe held to have received them as trustee for the donor, althoughthe title to the corpus of the property was in him. Their Lordshipsalso regarded the donee as having been constructively in possession,although not in physical possession of the corpus of the propertyfrom the date of the gift in 1884 until the death of the donor in 1906.
i (1867) 11 Moo. T. A. 617 , 647.2 44 All. 301. 314.
JAYEWARDENE A.J.—Sahul Hamid v. Mohideen Nachiya.
67
A gift of property, with a reservation that the donee should not have thepower of transfer over one-third the property during the life of a thirdparty, the income being set apart for hie maintenance, was held to bevalid and the condition against alienation invalid, but the condition asto payment of a third of the income was valid and attached to the propertyin the hands of a transferee who had notice. The reservation of aninterest by the donor for himself does not interfere with the right ofproperty vested in the transferee by the act of transfer (Lali Jan v.Mohammad1). This was followed by the Bombay High Court inTavakulbai v. Imatiyaj Begum", the condition about the payment of aportion of the income being treated as an obligation in the nature of atrust, attaching to the property and binding on the transferee withnotice. With regard to the reservation of the right of residence, noauthority was quoted and I can find none. In Sarifuddin v. Mohiuddin3the donor reserved a right of residence for herself in a portion of one of theproperties. The deed was held invalid on the ground that a stipulationto pay Rs. 900 every year was not made dependent upon the profits ofthe corpus being sufficient to meet it, but no objection that the right ofresidence was reserved by the deed was taken or dealt with by the Courtas an invalidating circumstance. In Seyambo Natchia v. Osman‘ one ofthe lands gifted consisted of an undivided £ share, whereas the donorpossessed an undivided £ share. The donor and donee, mother anddaughter, continued to live together on one of the properties gifted. Itwas contended that the donor must vacate the premises gifted to enablethe donee to take possession but Ennis A. C. J. found it difficult to see howin such circumstances the donor could be expected to vacate the propertyand he held that the gift was good without such vacation.
In the present case there is a complete gift showing a clear intention onthe donor’s part to divest herself in praesenti of all her title to the property,and to confer it upon the donee, as a gift absolute and irrevocable, onlyreserving the right of residence and enjoyment of the rents and produceduring her lifetime. A real transfer of property by a donor, reservingnot the dominion over the corpus of the property nor any share ofdominion over the corpus, but simply stipulating for and obtaining aright to the recurring produce during her lifetime, is a valid and completegift, according to their Lordships of the Privy Council. In this case, asthere, the gift related to the substance of the thing, not to the use of itand the donor participates not in the subject of his grant but merely inits use. The mere reservation of the right of residence (habitatio) wouldnot, in my view, derogate from the gift of the corpus and make that giftinvalid. The dominion has been in the donees from the date of the gift,which was perfected by due acceptance and delivery. Anything overwhich the dominion or the right of property may be exercised, or can bereduced to possession, or which existed as a specific entity, or as anenforceable right may form the subject of a gift. The donor mustevidence the reality of the gift by divesting himself, so far as he can, ofthe whole of what he gives ( Anwari Begum v.-Nizamuddin*).
> 34 A Li. 478.
– 41 Bom. 372.
5 21 All. 183.
" r,4 Cal. 734. 767.
* 26 N. L. R. 446.
68
JAYEWARDENE A.J.—Sahul Hamid v. Mohideen Nachiya.
As regards the revocation of the gift. By the Mohammedan law thedonor may revoke his gift unless the right of revocation is barred bycertain circumstances. Relationship within the prohibited degreesprevents the revocation of a gift and consequently there is no revocationof gift to parents or children (2 Baillie, p. 525; Tyabji, MohammedanLaw, 2nd ed., p. 473). This deed of gift is declared to be irrevocable and ithas been held in Rafeeka v. Sathuck (supra) that when a donation is statedte be irrevocable, this is conclusive of its irrevocable character on theanalogy of the Kandyan law, but according to the Mohammedan law itwould seem that the donor may revoke the gift even when he has purportedto waive his right of revocation at the time or after the declaration of thegift • provided that where he has • accepted something in return for thewaiver, he cannot revoke the gift (Tyabji, p. 484 and Wilson, p. 341).
I would hold that the deed of gift No. 740 under consideration is irrevoc-able. The fulfilment of obligations is enjioned by the Prophet himselfand Scott C.J. in Tavakalbhai v. Imatiyaj Begum (supra) cites a versefrom the Quran which according to Tyabji (Mohammedan Law, p. 473)binds all Muslims equally, “ It is of no avail that ye turn your faces inPrayer) towards the East and the West but righteousness is in … .those who perform their engagements in which they have engaged…. these are the true and these are the pious … . ”
(Quran, 2 : 72)
1 cannot pass unnoticed a further contention raised before us thatOrdinance No. 10 of 1931 was retrospective and that under section 4the principles of law prevailing in. the Maritime provinces, that is theRoman-Dutch law, applied to donations involving fidei commissa evento test their validity. The draft of this Ordinance was published in theGovernment Gazette of March 1, 1929 (Part II.), and the Ordinance itselfbecame law on June 1, 1931. The case of Weeresekere v. Peiris (supra)which held that the validity of all gifts must be tested according to theMohammedari law was decided on January 20, 1931, after the draftOrdinance was published. It was argued that the Ordinance was merelydeclaratory of the existing law and therefore retrospective, but two of theprovisions seem to be contrary to the Mohammedan law as it was under-stood at the time. It is declared that no deed of donation is irrevocableunless it is so stated in the deed. Revocability was one of thecharacteristics of a Mohammedan gift both in Ceylon and elsewhere, andin this respect there is a marked change. The mere delivery of the deedto the donee is, by the Ordinance, to be taken as evidence of delivery ofpossession. This too seems to me to be a step in advance of the acceptedMohammedan law at the time. The Ordinance was not merelydeclaratory in my opinion. It is a fundamental rule of law that no statuteshall be construed to have a retrospective operation unless such a con-struction appears very clearly in the terms of the Act, or arises bynecessary and distinct implication (Young v. Adams' West v.Gwynne3)..
I am of opinion that the judgment is right and that the appeal shouldbe dismissed with costs.
Appeal dismissed. 1
1 (2998) A. C. 469.2 (2922) 2 Ch. 15.