085-NLR-NLR-V-50-SARAUMMA-Appellant-and-MAINONA-et-al.-Respondents.pdf
CANEKEBATNE J.—Saraumma v. Mainona
319
1948Present : Canekeratne and Gratiaen JJ.SARAUMMA, Appellant, and MAINONA et a’., RespondentsS. C. 423—D. C. Kandy, 1,527
Muslim law-—Gift by father to daughter—-Revocahility—Muslim Intestate
Succession and Wahfs Ordinance (Cap. 50)—Proviso to section 3.
Where by a deed executed in 1941 a Muslim of "the Shafei sect grantedby way of gift certain property to his daughter and subsequently revokedthe gift—-
Held, that there was nothing in the first part of the proviso to section 3of the Muslim Intestate Succession and Wakfe Ordinance (Gap. 50) toshow that the power of revocation inherent in such a case has beenmodified or varied.
Appeal
from a judgment of the District Judge, Kandy.
H. W. Tambiah, with M. A. M. Hussein, for the plaintiff appellant.No appearance for the defendants respondents.
Cur. adv. vult.
September 23, 1948. Caneke&atite J.—
This is an appeal by the plaintiff from a judgment dismissing her claimto an undivided two-ninth shares of a land. By deed P 5 dated August20, 1941, one Slema Lebbe granted by way of gift these shares to hisdaughter the plaintiff, the deed of gift is in Sinhalese and has beenattested by a notary practising in the Sinhalese language in a Kandyandistrict, and like the deed referred to in the case of Coder v. Pitche 1,P 5 in some respects resembles a Kandyan deed of gift. The father bydeed 3 D 1 dated March 2, 1942, revoked the gift in favour of the plaintiff,and by deed 3 D 2 sold those shares to the third and fourth defendants-respondents. The learned Judge held that the effect of the proviso tosection 3 of Cap. 50 of the Ceylon Legislative Enactments is to makeevery gift revocable unless it is stated in the deed that it isirrevocable.
Mr. Tambiah contended firstly that deed P 5 was irrevocable andsecondly, that it could not be revoked except in the course of judicialproceedings. As there was no appearance for the respondents and wehave had no assistance on their behalf it is not desirable to say anythingmore than what is required for the decision of the present case.
The parties to the action are Sunni Muhammadans of the Shafei sectto which most Muhammadans who are natives of Ceylon belong. Theother principal sects of the Sunni school are the Hanafis, Malikis and
1 (1916) 19 N. L. R. 246.
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CANEKEB.ATNE J.—Saraumma v. Mainona
Hanbalis. Two of the conditions necessary for the validity of a gift,according to the Hunafi Law, are (1) acceptance, expressed or implied,subject to exceptions in the case of a gift to a minor son, &c,, (2) seisinby the donee of the subject of the gift,i.e., if the property is not alreadyin the hands of the donee. Seisin might be actual or constructive1.Actual delivery of possession is not absolutely necessary. If the characterof the possession changes, the mere retention of the subject-matter of thegift in the hands of the donor, would not affect the validity of the gift.A gift of immovable property in the occupation of tenants will be completeeither by the delivery of the title deeds or by requisition to the tenantsto attorn to the doneex. According to the Hanafi Law, a donorcould revoke a valid gift (i.e., one which has been completed by deliveryof the property to the donee) whether he has or has not reserved to him-self the power to revoke it, except in two cases (e.g., between husband andwife, and a gift to a blood relation within the prohibited degrees). Exceptin these cases the power of revocation seems to be inherent in the donor ofevery gift. The power may come to an end in one of six ways. It may,however, be necessary to take proceedings before the Kazee or Judge2.According to the Shafeis, no gift (except such as have been made byparents to their children) can be revoked, whether change of possessionhas taken place or not 3.
Minhaj et Talibin, a Manual of Maharnmadan Law according to theschool of Shafei by probably En Nawawi (Howard’s translation) treats ofgifts in Book 24.“ A practice has been introduced by the Sonna, by
which parents, at any rate when not of notorious misconduct, may bygift inter vivos distribute their property equally amongst their children,without distinction of sex ; others, however, maintain that the provisionof the law of the distribution of property upon succession cannot be setaside in this way. A father or any ancestor may revoke a gift made infavour of a child or other descendant, provided that the donee has notirrevocably disposed of the thing received ” (pp. 234, 235).
Ameer Ali states thus :“ A father has the right of revoking a gift made
by him to his children, provided the donee has not irrecoverably disposedof the object received. So also other ascendants with respect to giftsmade to grand-children and their descendants ” 4.
Mr. Tambiah in attempting to limit the power to a gift to a son referred+o an extract in Wilson’s Muhammadan Law (4th Ed.) p. 441. This is apassage from the Hedaya, but it must be remembered that the Hedayacontains a discussion on moral philosophy and theology : in the course ofthe discussion it refers to the rules which are observed as law but thewhole discussion is from the Hanafi standpoint. “ ‘ It is lawful for a donorto retract the gift he may have made to a stranger ’. Shafei maintainsthat this is not lawful ; because the Prophet has said—- ‘ let not a donorretract his gift ; but let a father, if he please, retract a gift he may havemade to his son ’ ; and also, because retractation is the very opposite to
1 Ameer Ali, Mxthammadan Law (4th Ed.), Vol. I, 113, 114:
See 14 N. L. R. 295 ; 26 N. L. R. 446, p. 448.
a Ameer Ali, 151, 155.
Ameer Ali, 149.
Ameer Ali, op. cit. p. 190. In Chapter 6 he treats of the Shafei Law.
CANPEKKRATKE J.—Saraumma v. JMainona
321
conveyanceIt is otherwise with respect to a gift made by
a father to a son, because (according to his tenets) the conveyance ofproperty from a father to the son can never be complete ; for it is a rulewith him that the father has a power over the property of his son. Thearguments of our doctors on this point are two-fold. First, the Prophet
has saidWith respect to the tradition of the Prophet quoted
by Shafei the meaning of it is that the donor is not himself empowered toretract his gift, as this must be done by decree of the Kazee, with theconsent of the donee—excepting in the case of a father, who is himselfcompetent to retract a gift to his son, when he wants it for the maintenance of the son ; and this is metaphorically called a retractation ”l.
Wilson quotes this passage, and adds, after this sentence (for it is arule with him that the father has a power over the property of his son)“ this is a very remarkable statement, of which I have not been able tofind any confirmation in the Minhaj ”. No such words are to be foundin Book 24 of Howard’s translation. It would also appear that the wordsat the end of the passage (“ this must be done by a decree of the Kazee ”&c.) seem to be the comment made by Ali Ibn Abu Bakr (the author ofthe Hedaya), these are not to be found in Book 24 of Howard’s translation.The case of Coder v. Pitche {supra) decided that a father can revoke adonation to his son without the decree of a court of law. The sameview was taken in Mohideen v. Mohideen2. In a case referred to inMae Naghten’s Muhammadan Law (Precedents of Gifts 202) the right of afather to revoke a gift to the sons of a daughter was recognised, there washowever another reason given for the gift being void ; it may be assumedthat the parties belonged to the Shafei sect. The Minhaj does not confinethe right of revocation to a gift made to a son only. The text writersAmeer Ali and Wilson—so too Tyabji Muhammadan Law (2nd Ed.)section 423, p. 486—do not place a limitation on the father’s right and Ican see no reason for doing so. Had the question of revocation of deedP 5 to be decided according to the Muhammadan Law of Ceylon,unaffected by anything in Ordinance No. 10 of 1931, the revocationwould have been valid.
Gifts made by Muhammadans in Ceylon could formerly, broadlyspeaking, be divided into two classes—(i) those where the propertypassed to the donee absolutely, i.e., subject to no condition, where theintention was to make the donee the proprietor of the property and givehim the right, title and interest of the donor, (ii) those where the doneeheld the property subject to conditions, as in the case of fideicommissaryprovisions, &c. The former class was often referred to as “ puredonations ”3. Thus the validity of gifts which were thought to be, orfell, within the former class was determined by the Muhammadan Law—the earliest cases are those in Vanderstraaten’s Reports 176 and App. B.,XXXI.4. Later cases are found at p. 295 of 14 N. L. R., p. 284 of 21
1 Wilson, Muhammadan Law (6th ed.), p. 430.
z (1923) 2 T. L. R. 92.
* The expression is first found in the case referred to under note 10. It is repeated in19 N. L. R. 175.
4 The decision in the Appendix is the judgment of the District Judge, the case was sentback for a re-trial on certain points. See the decision on these on page XXX V.
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CANEKERATNi£ J.—Saraumma v. Mainona
N. L. R. “ For the same reason, the rules of construction and validityand effect of such conditions as also indeed the construction, &e., of deedsand wills generally including entails and fidei commissa must he governedby the ordinary law of the country because this part of the Muhammadansystem of jurisprudence has never become part of the law of Ceylon.An exception may be found in the case of pure donations as to whichsee the decisions in Colombo D. C. 55,746 and 29,129 ” 1—the former caseis the one reported on page 175 of Vanderstraaten’s Reports, the latter onpage XXXI of Appendix B. Resort was had to the general law ofCeylon, and not to the Muhammadan Law, to test the validity of deedsfalling within the former class2. A long series of decisions rangingfrom about 1873 to 1927 had held that it was competent to Muhammadansin Ceylon to take advantage of the general law of the Island and enterinto transactions valid according to that law. In Weerasekere v. JPeiris 3this Court adopted a different view ; it held that where a deed of giftcontained a fideicommissary provision, the validity of the gift must firstbe determined by Muhammadan Law, although the validity and perhapsthe construction of the fidei commission is governed by the Roman-Dutchlaw. At the argument before the Privy Council, the appellant contendedthat the whole transaction, that is the validity of the gift and the fideicommission, was governed by the Roman-Dutch Law 4, the respondentthat a fidei commissum between Muhammadans in Ceylon must becomplete as a gift under Muhammadan law before the fidei commissumbecomes operative 6. The judgment of this Court was set aside- by thePrivy Council 6. The essential question for decision was whether thedisposition made by the father was invalid as a gift according to theMuhammadan Law or valid as a fidei commissum under the Roman-DutchLaw. It was not intended that there should be a valid gift as understood,by the Muhammadan Law. It was intended then “ ut res magis valeatquam pereat ” that there should be a valid fidei commissum 7.
A Select Committee of the Legislative Council, which was appointedin September, 1926, made on October 26, 1928, a report to the Councilon the law of testate and intestate succession, donations and trusts. Adraft bill was annexed to the Report and the bill was published in theofficial Gazette of March 1, 1929, Part H, p. 1788. The expression“ pure donation ” is found in the Report of the Select Committee and inclause 4 of the draft bill. The bill has been very much changed in theprocess of becoming law 8—the discussion of the bill in the committee
Passage from the judgment of the District Judge. This Court affirmed thejudgment “ for the reasons given, by the District Judge ". Grenier, 1873, Vol. Z, p. 28at p. 30.
One of the earliest reported cases where the general law of Ceylon was applied to testthe validity of a deed creating a fidoicommissum, is to be found in Grenier, 1873, Vol. Z,p. 28.
(1931) 32 N. L. R. 176.
(1933) A. C. 191, 192.
Lord Tomlin, as reported in Times of Ceylon of 24th November, 1932:“ Until
you confront me with a distinct authority, I should be reluctant to accede to what I thinkan absurdity, namely, that you should test the validity of one part of a transfer by one lawand another by another.”
8 (1932) 34 N. L. R. 281.
1 The language used by a writer in L.Q.R. Vol. XL12C, p. 326.
8 (1932) 34 N. L. R. 67 ; 1 C. L. W. 274.
CAJNEKJ5RATNE J.—Saraunvma v. JSdainona
323
stage of the Council commenced about November 25, 1930, it was thenpostponed and taken tip in the beginning of the following year. OnFebruary 4,1931, the words “ to donations not involving fidei
commissum” were introduced in lieu of the words “ to pure
donations ” in clause 4, the clause so amended was passed on the sameday, it is now section 3 of the Ordinance. Was this due to the decision ofthis Court in Weerasekere’s case, which was delivered on January 20,1931 ? The Ordinance No. 10 of 1931, came into force on June 17, 1931.
Section 3 of Chapter 50, omitting words not material to this case,reads thus :
“ For the purposes of avoiding and removing all doubts it is herebydeclared that the law applicable to donations not involving fideicommissa, …. shall be the Muslim Law governing the sect towhich the donor belongs :
“ Provided that no deed of donation shall be deemed to be irrevocableunless it is so stated in the deed, and the delivery of the deed to thedonee shall be accepted as evidence of delivery of possession of themovable or the immovable property donated by the deed .”
Sections though framed as provisos upon preceding sections, maycontain matter which is in substance a fresh enactment, adding to andnot merely qualifying what goes before. A proviso, in the strict sense,is a qualification upon what precedes it : this proviso is not really aqualification upon the preceding clause. It operates rather by way ofan addition to the clause which precedes it. The first part of the provisostates “ no deed of donation shall be deemed to be irrevocable
”. Does the expression “ shall be deemed ” mean that somedeeds which were not actually revocable according to the MuhammadanLaw shall hereafter be revocable ? Was it used to artificially enlargethe class of deeds that could be revoked ? In the case of persons of theHanafi sect the Hanafi Law is made applicable by the enacting part ofthe section, of those of the Shafei sect the Shafei Law ; a gift to a cousinis not irrevocable according to the former system x, a gift to a child by afather, according to the latter. The second part refers to possession.Delivery of possession need not be actual2 but may be constructive. .InMohamadu v. MariTcar 3, the delivery of the deed was taken “ as aconstructive and an effective delivery of possession of the lands ” ; thedeed of gift that came up for consideration in Sultan v. Peiris 4, executedon August 15, 1913, refers to the handing of the deed of gift to the doneesfor the purpose “ of vesting the legal title to the premises ” 4. Similarlythe deed of gift mentioned in Ponnidh v. Jameel s, deed executed onSeptember 4,1924, refers to handing “ over this deed to the said .as a token of the transfer of possession ” 5. Did" the legislature know1 Ameer Ali, op. cit. 150.
8 Ameer AH, Muhammadan Law (4th Ed.), vol. I, 115, 114. See 14 N. L. R. 295 ;26 N. L. JR. 446, p. 448.
8 (1919) 21 N. L. R. 84 ; also (1925) 26 N. L. R. 446.
1 (1933) 35 N. Tj. R. 57 at p. 62. The deed in question was executed on August15, 1913.
(1936) 38 N. L. R. 96 at pp. 99 and 101. Deed states that it was “so done inaccordance with the decision of the Supreme Court ”.
324
The King v. Assappu
that there were Muhammadans who took the view that delivery of thedeed affords evidence of delivery of possession and did it intend to lay itdown as a rule or a prima facie rule ? Was it also influenced by the viewof the general law ? Donation was a contract according to the Roman -Dutch Law and acceptance of the gift by or on behalf of the donee wasthus necessary. Acceptance of a gift may be effected in many ways.It may be presumed from the physical acceptance of the deed of giftl.
There is nothing in the first part of the proviso to section 3 to showthat the power of revocation inherent in a case like this has been modifiedor varied.
The appeal is dismissed.
Gbatiaen J.—I agree.
Appeal dismissed.