i am) 34 n. t.. /?. m.
Sultan v. Petris.
set of rules can be applied which will give effect to that intention youmust apply those rules. The rules of Muslim law do not bind a Muslimin all his transactions.
[Dbieberg J.—Cannot you have under the Muslim law a gift with acondition ? If so, one need not apply the Roman-Dutch law.]
All such conditions are void under Muslim law. A forfeiture of rightsin favour of another person is bad. A condition should not be imposedon the donee except a condition that he should make a return to the donor.The test to be applied is not what system of law the parties had in mindbut the construction of the deed and the sort of gift it did create. (Weera-sekera v. Pieris (supra).) Where the donor does not give possession the giftwould be bad under Muslim law.' But such a gift may be good under theRoman-Dutch law. The document must first be examined in the lightof Muslim law because the parties are Muslims and have the privilege ofdonating under that law. If the terms of the gift are repugnant to thatlaw then the Roman-Dutch law applies. The effect of the Privy Councildecision is that you exclude the Muslim law whenever a donation includesa subsequent condition.
| Macdonell C.J.—Suppose there is no fidei commissum but the giftreserves a usufruct during the life-time of the donor and the gift is notto take effect till after death?]
The Privy Council ruling would still apply, that is the Roman-Dutchlaw would govern such a case. In the deed under consideration there isa condition that if one donee changes his faith the property is to go to theother. Under Muslim law that condition fails. There are several otherconditions in the gift which become inoperative, if the gift fails under theMuslim law. There is also an express delivery of title deeds to vest title.There is clearly an intention to contract under the Roman-Dutch law.In previous cases where there has been a reservation of a life-interest theRoman-Dutch law has been applied without question. (Ahamadu Lebbev. Sulaiyama*.) Even under the Muslim law this gift is good. What isreserved is not a real right but a right to take the produce (Sahul Hamid v.Mohideen Nachiya~—Vide judgment of Dalton J.; Abdul Gani v. JahanBegam*).
Hayley, K.C. (with him Garvin and Rajapakse), for defendant, respond-ent—The systems of law prevailing at the time were not interfered with by;the Portuguese, Dutch, and English invaders. (Ribeiro 91 and 92; Cleg-horns Minutes in Dickman’s Civil Service Manual 280; Proclamation ofSeptember 23, 1799; 1 Browne, Appendix A, at p. 9.) The Roman-Dutchlaw is not the common law of the land in the strict sense. Donationsaccording to Muslim law were always recognized. (Vand. Appendix B, 21.)This law is a personal and not merely local law and goes with the person.(Maine’s Hindu Law and Usage 55.) If the Muslims borrowed a customfrom a parallel system of law that custom would become an extension ofthe Muslim law. Kandyan law has adopted the fidei commissum. (A. G. A.Kandy v. Kalubanda *; Menika v. Banda3. It does not follow that
’SC. W. /?. 208.3 44 Allahabad 301 at 314.
3 34 N. t. B. 57.1 23 W. t». R■ 20.
*2i N. L. R. 207.
Sultan v. Peiris.
the Kandyan subjects himself to the Roman-Dutch law. An Afghan inCeylon is governed by the Muslim law (Kahn v. Maricar').
Limited gifts are not contrary to Muslim law. The Sunni law does notrecognize them but the Shiah law does. (Tyabji, 1913 ed., p. 349, ss.446, sqq.) Where a Muslim deed creates a fidei commissum it would bemore reasonable to say that the Shiah law was followed rather than theRoman-Dutch law. Even in such a case there must be delivery ofpossession. (Tyabji, s. 448.) The judgment of the Privy Council inWeerasekera v. Pieris (supra) is confined to that particular case. The basisof that judgment is this. Apart from the idea of a gift which must beconstrued according to Muslim law is the idea of a settlement which isusual in Roman-Dutch law. Being a settlement there is no intention ofgifting. A valid fidei commissum is not a gift at all. The Privy Councilare careful to avoid all mention of a gift. They do not look at it in thislight, is it a gift with a condition or a gift without a condition? Butrather, is it a gift or a settlement? The whole judgment is founded onintention. The fact that it was called a gift was immaterial. In thedeed under consideration the whole intention is to create a gift at once.The donor wrongly thought that he could keep a right to the profits.The donees get an immediate right, for example, the right to alienate.There are no restrictions of any kind as to sale, mortgage, &c. It cannotbe said of this deed that the donor did not intend to make a Muslim deedof gift.
A condition such as the one attached to this gift does not create a fideicommissum. (2 Burge 159.) The idea of a fidei commissum is to confer abenefit on a party. A suspensive condition such as this is intended toimpose a penalty and the intention of the donor in such a case is not thecreation of a fidei commissum. The gift is a conditional gift and not afidei commissum. (Voet 39, s. 3.) In any case the fidei commissumis bad for want of designation of the ultimate donee. It is clear that theprimary intention of the donor in this case was to make a gift and thePrivy Council decision therefore does not apply.
Hi V. Perera, in reply.—The intention was to give immediate title.That is clear from the terms of the deed. The statement in the deed isbinding on the parties. The deeds were handed over. The instrumentmust be construed to give effect to the intention of the parties. Anycondition must be construed rather as supporting that intention thandefeating it. The document must be construed so as to ensure to thedonor the rights he reserves to himself if that is possible. The rightreserved here is not a usufruct, only a right to reside in the propertywithout interference. The question is, can the right to possession begiven to the donees consistently with the terms of the grant. This is acontract, a bilateral act. There is a contractual liability in the donee togive the rents and profits. (Sahul Hamid v. Mohideen Natchiya2.) Thewhole possession is not kept back by the donor. There is symbolicaldelivery of the title deeds. A gift which creates a fidei commissum orusufruct must be governed by the Roman-Dutch law.
[Garvin J.—But if it is not allowed by the Muslim law ?]
1 16 N. L. R. 43d.
* 34 N. L. R. at 63.
MACDONELL C.J.—Sultan v. Peiris.
Muslim law does not prohibit it. It will merely not give effect to it.
If the Roman-Dutch law which is the common law allows it, a Muslimcan make a gift under the Roman-Dutch law which is not allowed by theMuslim law. A deed with a reservation of a usufruct is good in Ceylon.The decision of the Privy Council can be carried as far as that. OrdinanceNo. 10 of 1931 says so. That is not a radical change in the law but a recog-nition of what was the law. A Muslim gift is a giving of all one’s rightsin a thing. Not the giving of the dominium reserving the usufruct(Tyabji 256.) A Muslim who makes such a gift brings himself under theRoman-Dutch law.
[Garvin J.—Is there any authority that a man can contract himselfout of his system of law ?]
Not by a mere declaration to that effect, for example, if a Muslim makesa simple hiba. Muslim law does not recognize the bundle of rights whichwe call the dominium. It only recognizes the thing itself.
[Garvin J. referred to 3 Moore’s Indian Appeals 345. The PrivyCouncil considered the case of a gift to take effect after death and heldthat it was bad not because it was unknown to the Muslim law butbecause seisin could not be given.]
That was in India. An Indian Muslim cannot fall back on any othersystem of law. In Ceylon the common law which is the Roman-Dutchlaw recognizes this kind of gift. Here there is a failure of the mostessential element of a Muslim gift. Where a donor reserves the usufructone cannot say that he intended the donee to take such possession as isrequired by the Muslim law. The principle of the Privy Council decisioncannot be narrowed down to the case of a fidei commissum merely. TheRoman-Dutch law recognizes donations which do not involve the givingof the property. The Muslim law recognizes gifts which involve theimmediate giving of the property. Donations involving the reservationof a usufruct are known to the Roman-Dutch law but not to the Muslimlaw. Therefore clearly the intention of the donor was not to make a validgift under the Muslim law. One must look at the intention of the donor,not the object he intended to secure. If there was an intention to retainthe usufruct clearly there was an intention to keep the property and todeliver after death. In this case there is also a fidei commissum. It is agift with a limitation. There is also an intention to create a trust, e.g., togive a benefit to a servant. No prohibition against alienation is necessaryto create a fidei commissum. (Pereira v. Perera1; Lee, 2nd ed. 244;2 Burge 150.)
March 27, 1933. Macdonell C.J.—
These were two actions, instituted on June 17, 1930, and March 31,1931, respectively, each praying the same relief, namely, a declarationthat the assignee of the insolvent be declared entitled as such assignee tocertain lands. In action S. C. 337 the plaintiff is the assignee himselfand the defendant is the uncle of the insolvent. In action S. C. 339 theplaintiff is a certain Chetty creditor of the insolvent and the defendants
1 20 K. h. n. 468 aI 469.
MACDONELL C.J.—Sultan v. Peiris.
are the same, uncle of the insolvent, the insolvent himself, and the assignee,joined we are told, ex abundanti cautela. The evidence is to be foundalmost wholly in action S. C. 337.
A single judgment was given in the Court below and, being against theplaintiff in each action, each of them appealed, their petitions of appealbeing identical in terms, and the two appeals were heard together by mybrother Dalton and myself, but after argument they were referred to aFull Bench of four Judges before whom they were, as before, argued asone appeal. The facts were these.
One Saibo Sultan, being childless and possessed of considerable houseproperty in Colombo, made on August 15, 1913, a deed of gift No. 4.277,P 1, of that property to his nephews Abdul Cader and Uduman for a halfshare each. Uduman is the insolvent mentioned above for whose assigneea declaration is sought in these two actions. The donor is a Moslem,and so are his nephews the donees, and each of them was of full age in1913 when deed 4,277 was executed.
The deed recites the properties owned by the donor and his intentionto transfer and convey them to his nephews, “ as and by way of gift intermvos subject to the reservations, conditions, agreements, and restrictionshereinafter mentioned” and the donor then states “I do hereby grant,convey, transfer, assign, set over and assure as and by way of gift intervivos absolute and irrevocable upon and subject to the reservations,conditions, agreements, restrictions, hereinafter mentioned, unto the saidAbdul Cader and Uduman and their respective heirs, &c., the aforesaidseveral allotments of land and premises . . . . ” and there followsa full description of the parcels so granted. The habendum is as follows:“ to have and to hold the said several allotments of land and premiseshereby conveyed as and by way of gift inter vivos absolute and irrevocableunto the said donees and their respective heirs, &c., in the proportion ofan undivided one-half part or share …. upon and subject to thefollowing reservations, conditions, agreements, and restrictions, to wit: —(1) That notwithstanding the gift hereby made, I the said donor reserveto myself during my life time the full and unfettered right of residing inany of the said premises hereby gifted and of taking and enjoying the rents,profits, produce and income of all the said several allotments of land andpremises hereby gifted without the interference of the said donees oreither of them. (2) That the said donees and each of them shall alwaysprofess the Islamic faith as they have hitherto done and shall marry onlya virgin or spinster and not a widow or a divorced woman. (3) That ifeither of the said donees shall at any time hereafter abandon the Islamicfaith or shall marry a widow or divorced woman then the title to theshare of the delinquent donee of the several allotments of land andpremises which I have hereby gifted to him shall at once devolve on theother donee who shall thereafter be entitled to the whole of the saidseveral allotments of land and premises herein described as if the entirety ofthem had been' gifted to him alone by me ”. It will be seen that restric-tion (3) does not provide for the case of a donee who has thus becomeentitled to the whole, himself thereafter abandoning the Islamic faith ormarrying a widow or divorced woman. There was evidence that theelder of the two donees—who is no party to either of these two actions—
MACDONELL C.J.—Sultan v. Peiris.
had married a widow prior, according to the unde donor, to the executionof this deed of gift. But the unde donor was an unsatisfactory witnessin several respects, he denied some things which were certainly true, andalthough the birth certificate of 1907 was filed of a child aUeged to be thatof a married woman whom the elder donee is said subsequently to havemarried, still no evidence was given as to the year when he did marry her,and the learned trial Judge does not pronounce on the statement that themarriage was before the execution of deed 4,277. It must thereforeremain uncertain whether the elder donee married before the executionof deed 4,277 or after. There are the usual covenants for title at the endof which come the following words: “ by way of vesting the legal titleto the premises donated from the date thereof in the donees, I herebyhand them this deed and the connected deeds thereof” and the deedconcludes with the usual clause in deeds of gift, by which the doneesthankfully accept the gift so made to them. The deed is signed by thedonor and the two donees. The Notary’s attestation clause to the deedstates that the words (quoted just above) as to handing over the deed ofgift and the connected deeds so as to vest the legal title were “ interpolatedbefore the foregoing instrument was read over and explained to the said. . . . Saibo Sultan” the donor, and goes on as follows:—“Andthe donor has requested me (sc. the Notary) to hand to the said doneesthe original of this instrument and the connected title deeds of thepremises devised thereby”. It was argued that the deed itself and theattestation clause were not in harmony. The donor says he hands overthe deed of gift and the connected deeds to the donees but the attestationclause makes it clear that at the time of attestation the deed of gift andthe other deeds were in the hands of the Notary. After attestation theNotary would have duties to perform with regard to the deed attestedar.d for the next few days after attestation he would have to have custodyof the deed of gift; consequently it would be difficult if not impossiblefor the deed to be at once given into the custody of the donees so as toremain continuously in the same. The Notary is stated to be dead andthere is no evidence forthcoming as to what was done with the deeds atthat time. None the less on the principle omnia praesumuntur rite actaand taking notice, as one surely may, of notarial practice, one mayconclude that the donor did manually hand, as he says he did, the deedof sift ar.d connected deeds to the donees, and that a few minutes after-wards the Notary took those deeds into his own custody, as he wouldhave to do to complete his duties as Notary with regard to them. Asthis was a taking away from the custody of the donees of the deeds justgiven them, the Notary was made to add in writing the request to himof the-donor to “hand to the said donees the original of this instrumentand the connected deeds ”. semble when he had completed his notarialduties with regard to them. One may conclude then that the donor didat the execution of the deed of gift hand it to the donees; he says he■does so, and the attestation clause can be interpreted as not being acontradiction of that statement.
It seems to be common cause that the properties donated by deed 4,277represented all the immovable property then owned by the donor, and thereis no evidence that he acquired any other immovable property thereafter.
MACDONELL C.J.—Sultan v. Peiris.63
The further facts are these. The elder nephew donee who is said tohave married the widow does not come into the story at all. The uncledonor and the younger nephew donee, the now insolvent, continued tolive together in the uncle’s house at 5, Jefferson street, after the deed asbefore, apparently until the nephew’s insolvency in May, 1930. Theother properties given by it consisted of residential buildings—housesand tenements—in Rifle street, Church street, New Station Passage,Malay street, and Glennie street, all in Slave Island and all closely con-tiguous to each other and to 5, Jefferson street, also donated, where theuncle and nephew continued to reside. Those properties were let totenants who paid rent for same. The uncle donor is said in the evidencein action No. 337 of the plaintiff in action No. 339—the Chettiar creditor—to have been bed-ridden for 4 or 5 years prior to July, 1931, but he himselfsays that he has been “ ill for two or three years ” and later that he hasbeen bed-ridden for 15 years, the two statements do not agree. Thelearned District Judge who took his evidence at his residence in Jeffersonstreet described him as “ a very old man now largely crippled ” but addsthat “he still has a vigorous memory and in his day must have beenquite a capable man ”. One may perhaps take it as proved that for someyears prior to the date of the trial of this action, July, 1931, he left themanagement of his affairs to others. In 1898 he had granted a power ofattorney D 2 in action 339, in wide terms, and he says in his evidence-that this power remained uncancelled after the execution in 1913 of deed4,277 ; this instrument gives authority to the attorney named in it topurchase lands on behalf of the maker but not apparently to execute thetransfer deeds that would be necessary on such purchases and “to callfor and give consent to or oppose the partition or sale of any houses, lands,messuages or tenements belonging to us solely or jointly or in common,with any other person or persons and to join in or oppose any action,suit or other judicial proceeding for effecting any other partition or saleIn 1917 he granted a power of attorney, D 3 in action 339, to his nephew,the insolvent in much less ample terms; it included however a power“ to superintend, manage and control the houses, lands or other propertywhich I now am or hereafter may be possessed of or entitled to ”. Theplaintiff in action 339 says (the evidence is in action 337) that he has seenthe nephew, the insolvent, collecting rents for the properties donated indeed 4,277, and the uncle in his evidence states that the nephew did soafter the date of the power of attorney, D 3, to him of 1917. No receiptsfor these rents were produced or (apparently) called for. As the onus ison the plaintiffs in these two actions to establish the validity of the deedof gift 4,277, it would be for them to show that receipts were taken in thename of the donee insolvent. There is no evidence that the tenants orany of them at any time attorned to the donees or to either of them. Itis proved that the donee insolvent used himself to pay the municipaltaxes on these properties from 1928 onwards (it is the practice of theColombo Municipality to destroy receipts three or more years old, so noevidence as to these payments is available earlier than 1928) and thesereceipts are made out in the name of the donee insolvent, but the pro-perties remained registered in the municipal books in the name of theuncle the donor, no change ever being made in that respect. The. clerk
MACDONELL C.J.—Sultan v. Petris.
from the Municipal Treasurer’s Department who gave evidence says:
“ A man's name once registered his name remains as such until somebodywrites and gets it altered, and a Notary Public has to send an abstract oftitle deeds The donee insolvent had property in this part of Colomboaf his own, entirely distinct from that of the subject of deed 4,277, and thisproperty was in his own name and the receipts for taxes on this pro-perty state that fact. On the other hand in certain applications to theMunicipal Engineer and to the Waterworks Engineer for permission tomake alterations or additions to 5, Jefferson street, where the uncle andnephew were residing, the nephew does describe himself as owner.
The nephew was extravagant and became heavily indebted. Hegranted mortgages for considerable sums on his own properties, those,that is, independent of the ones the subject of deed 4,277, and these:properties have been sold under mortgage decrees by the mortgagees.He obtained an overdraft for Rs. 30,000 from a bank and deposited withit on September 12, 1929, the title deeds of the properties the subject ofdeed 4,277 and executed to the bank a letter on a printed form P 11,admitting the deposit of the deeds, specifying the properties to whichthey related, and undertaking to execute a mortgage bond over them ifand when the bank should call on him to do so. This letter P 11 does notname deed 4,277 as among those deposited with the bank, but it seems- tohave been so deposited. He at no time did mortgage any of the propertiesmentioned in it nor is there evidence, apart from this letter to the bank,that he ever proposed doing so. During the early part of 1930 thenephew seems to have been evading his creditors and the service of writsout against him. The bank was trying to serve him with a summons andon May 29, 1930, it seized a pharmacy business which he was carrying on.On May 30, 1930, he was declared insolvent on his own petition. Mean-while on April 14, 1930, the uncle donor had executed deed 2,380, P 4,by which he purported to revoke deed 4,277 of August, 1913, and thenephew insolvent signs a statement at the end of P 4 that he consents tothe revocation and cancellation of deed 4,277. The same day the uncleexecuted a will, hitherto there had not been any will made by him,bequeathing the property mentioned in deed 4,277 to the nephew insol-vent's wife and children. The insolvent’s own property, independent ofthat the subject of deed 4,277, has been sold by the secured creditors ashas been said, and if this purported revocation of deed 4,277 is held to bea good revocation or if the deed 4,277 is held not to have been a validdeed of gift, then and in either case there will be, we are told, no assetsof the insolvent wherewith to satisfy the claims of the unsecured creditors.
In action S. C. 337 (D. C. 37,280) the assignee by leave of the Courtsues the uncle, the donor. After reciting the execution of deed 4,277 and_ averring that the other nephew donee had forfeited his half share, andthat the insolvent is owner of the entirety of the properties the subject ofit, he states “on or about the 14th day of April, 1930, the defendantacting in concert and collusion with the said Mohamed Batcha Udumanand or with intent to defraud the creditors of the said Mohamed BatchaUduman purported to revoke the said deed of donation by deed No. 2,380,dated 14th day of April, 1930, attested by M. S. Akbar of Colombo,Notary Public, and now claims to be the owner thereof and the said deed
MACDONELL. C.J.—Sultan, v. Peiris.
is void in law”. Alternatively he states “that the said MohamedBatcha Uduman was the owner of the said lands and premises describedin the schedule hereto and the deed of donation was irrevocable by anyact inter partes and that the deed of donation No. 4,277 is still in force andthat he is entitled to a declaration that he as provisional assignee of tkeinsolvent estate of Mohamed Batcha Uduman is the owner of the saidlands and premises described in the schedule hereto and that the saiddeed of revocation No. 2,380 is null and void”. Wherefore he prays:“ (a) for judgment declaring him as assignee the owner of and entitled tothe lands and premises described in the schedule hereto, (b) that the deedof revocation No. 2,380 be declared null and void, (c) for costs of suit,and (d) for such further and other relief in the premises as to this Courtshall seem meet”. In action S. C. 339 (D. C. 43,620) a Chettiar creditorwho had proved in the insolvency sues, as has been said, the uncle thedonor, the insolvent donee, and adds the assignee as defendant also. Theallegations in his plaint are to the same effect as those in action 337, andhe prays “ (a) for a declaration that the third defendant as assignee of theinsolvent estate of Mohamed Batcha Uduman is the owner of or is entitledto the said lands and premises described in the schedule of this plaint,(b) and order declaring that the deed of revocation No. 2,389 mentionedin the plaint is null and void, (c) for the costs of this action, and (d) forsuch further and other relief in the premises as to this Court shall seemmeet ”. The learned trial Judge gave one judgment in the two actions.The important parts of that judgment are these.
He considered that the- law governing the case was the law as it stoodwhen these actions were brought, viz., June 17, 1930, and March 31, 1931,and not the law as declared in Ordinance No. 10 of 1931, which came intooperation on June 17, 1931. The judgment of the Privy Council inWeerasekera v. Pieris1 holds that Ordinance No. 10 of 1931 is not retros-pective in effect, consequently it will be unneccessary to consider thatOrdinance.
^ As to the purported revocation of April 14, 1930, by deed 2,380, P 4,he said : “ There can be no question I think in this case that the revocationis bad ”. On this point then he finds in favour of the plaintiffs, and thedefendants (respondents on this appeal) did not, either when these appealswere argued before my brother Dalton and myself or when they werere-argued before the Full Bench, contest the correctness of his conclusionthat the revocation was bad. He held that the Chettiar creditor's actiosNo. 339 would not lie, but at the earlier two Judge hearing of theseappeals it was conceded for the respondents that that action, No. 339,would lie, and Poulier v. Alles2 and Doresamy v. Fernando9 seem to beauthority that it would, at least in so far as the plaintiff therein soughtto set aside the purported deed of revocation 2,380, P 4, the ineffective-ness of which was only conceded after the two Judge hearing of theappeals had commenced. During that hearing it was conceded then thataction No. 339 would lie, and at the Full Bench hearing the point wasnever mentioned at all. On this point then it is agreed that the rulingbelow that the action No. 339 would not lie, was incorrect.
i 11932) 34 N. L. R. 2B1.* 2/ N. L. R> 319.a 31 N. L. R. 413.
MACDONELL C.J.—Sultan v. Peiris.
On the issue 5 (c), was the deed 238 executed with intent to defraudthe creditors of the donee insolvent, the learned trial Judge says asfollows:—“ I should say that the parties did contemplate depriving thecreditors of Oduman of the property which he owned but that the questionof intention does not affect the revocation, if the revocation is otherwisevalid. If the revocation was in order, there is no question of defraudingcreditors
The main issue was No. i which was as follows:—“Was the deed 4,277of August 15, 1913, operative to convey title in respect of propertymentioned in the deed to the donees”? And this was the sole issueargued to us at the Full Bench hearing of the appeals. The learned trialJudge answered the issue thus. After mentioning that the parties,Muslims, will be governed by Shafei law, he says: “One of the chiefessentials of a donation according to Muslim law was the transfer ofpossession from the donor to the donee. Until that was done title didnot pass. Where the donation was unfettered by any reservations,constructive possession might well be given in one of the ways mentionedin the text books, or by delivery of the deed of gift where that was intendedto be a sign of the delivery of possession. But where the deed itselfexpressly reserves the possession to the donor there is no room for arguingthat constructive possession must be held to have been given because thedeed of gift was handed to the donees. It has been argued that Odumanmade repairs, collected the rents and paid taxes. All these were quiteconsistent with the relationship in which he stood to the donor, but thematter is put beyond doubt by the fact that he .held a power of attorneyfrom the donor authorizing him to do these acts. The donor had noother property and if the possession had been handed to Oduman therewas absolutely no need for a power of attorney. The donor could nothave emphasized more than he has done in this case the fact that heretained and exercised control over the properties gifted ”.
This issue then was the crux of the whole case. If the deed 4,277 wasa valid deed of gift, then admittedly it could not be revoked; both sidesconceded that. If it. was not a valid deed of gift, then there was nothingto revoke, and nothing for the assignee or the creditors to claim.
The parties here, donor and donee,' were Muslims and gifts betweensuch must presumably be governed by Muhammadan law. It is wellsettled that to constitute a valid gift by Muhammadan law three thingsare necessary: a declaration by the donor of his intention to give, expres-sion of acceptance by the donee, and delivery of possession or seisin(actual or constructive) to the donee. The first two requirements areadmittedly satisfied here and the only question is, has the third require-ment been satisfied also. The plaintiff-appellants, in arguing that ithas been, rely on the words of the donor in the deed 4,277 “by way ofvesting the legal title …. in the donees I hereby hand them thistitle deed and the connected deeds”, and they argue that the donor,being a Muslim, must be taken to have known that under this law deliveryof possession is an essential to the validity of a gift and to have intendedby handing over the deed to give possession. In Sayambo Natchia v.Osman it is said that delivery of the deed of gifts is a constructive delivery
> 26 N. L. R. 446.
MACDONELL CJ.—Sultan v. Petris.
of possession but since in that case a father seems to have taken possessionon behalf of a minor child (the word “ minor ” occurs only in the head-note and not in the report but the fact of minority seems to be assumedall through), and since there was evidence that the donee actually tookthe rents of the land given, perhaps this dictum as to delivery of the deedof gift being constructive delivery of possession was unneceessary for thedecision of that case. Let it however be assumed that delivery of a deedof gift can under certain circumstances be delivery of constructivepossession: does the deed as a whole show that possession, actual orconstructive, was given? This will neccessitate an examination of thewhole deed, particularly of the earlier clause reserving certain rights tothe donor.
But before doing so it is necessary to state the law of Ceylon as affectingMuhammadans. The proclamation of September 23, 1799, declared that“ the administration of justice in … . Ceylon …. shallbe … . according to the laws and institutions that subsistedunder the ancient Government of the United Provinces”, and this pro-vision was repeated and re-enacted in Ordinance No. 5 of 1835, and it hasalways been held that it secured to the Muhammadan inhabitants of theIsland the right to live under their own laws and institutions in so far asrecognized by the Government of the United Provinces. Meanwhile theCharter of 1801, section 32, had declared that “in the cases of Cingaleseor Mussulman natives, their inheritance and succession to lands and allmatters of contract and dealing between party and party, shall be deter-mined in the case of Cingalese by the Laws and Usages of the Cingalese,or in the case of Mussulmans by the Laws and Usages of Mussulmans,and where one of the parties is a Cingalese or Mussulman, by the Laws andUsages of the defendant ”. This Charter was repealed by the Charter of1833, but this repeal did not affect the proclamation of 1799, whichtogether with its re-enactment by Ordinance No. 5 of 1835 has always beenheld to establish the right of Muhammadans to use their own law, withinthe limits to be mentioned below. In 1806 a ‘ code ’ of “ Special laws, con-cerning the Maurs or Muhammadans ” (‘ Moorman ’ is a usual local namefor a Muhammadan) was promulgated for the Province of Coldmbo dealinghowever only with Succession, Inheritance and Matrimonial matters,and its provisions were extended by section 10 of Ordinance No. 5 of 1852, toMuhammadans residing in the other parts of the Colony. The judgment ofSchneider J. in Rahiman Lebbe v. Hassan Ussan Umma1 may be quotedfrom to show the extent of the reception of Muhammadan law in Ceylon.Reported cases show that since a.d. 1862 our Courts have consistentlyfollowed the principle that it is so much and no more of the Muham-madan Law as has received the sanction of custom in Ceylon thatprevails in Ceylon. (1862) Anonymous case D. C. Colombo No. 29,129in Vanderstraaten’s Reports, Appendix B. xxxi.;(1873) D. C.
Colombo 59,578 in Grenier’s Reports, Part iii., p. 28; (1914) Rama Ummav. Saibu (17 N. L. R. 338), being but a few among a number of others. Itis true that the treatises on the Muhammadan Law generally are fre-quently referred to in ,our Courts. But this is done only to elucidatesome obscure text ih our written Muhammadan Law or in corroboration
‘3 0. W. R. 88.
MACDONELL C.J.—Sultan v. Peiris.
of evidence of local custom. I cannot find a single decision that has goneto the length of holding that apart from the prevalence of a local customMuhammadan Law has any application in Ceylon. On the contrarythere is authority to the effect that where there is a conflict between theMuhammadan Law as found in the treatises and local custom that thelatter should be followed. (Sale Umma v. Padily, 10 N. L. R. 109;Bandirale v. Martamma Natchia, 10 N. L. R. 235.) The principles of theMuhammadan Law as found in treatises have been adopted as governingMuhammadans here in the matter of pure donations, because since 1862there has been evidence that the custom of the Ceylon Muhammadansrecognized those general principles. (D. C. Colombo No. 29,129 ubisupra). But in the construction of wills, deeds, fidei commissa, and inordinary matters of contract the principles of the ordinary general lawand not of the Muhammadan Law are always applied. (D. C. ColomboNo. 59,578, Grenier’s Report, 1873, Part iii., p. 28; and Kadija Umma v.Meera Lebbe, 7 N. L. R. 23.)” There are also decisions, (Affudeen v.Periatamby’ and Cader v. Pitcha ~) which hold that it is the law of theShafei sect which should be resorted to in cases where Muhammadan lawis to be applied.
It must be observed that there is no discoverable legislative enactmentdeclaring the Roman-Dutch law to be the general law or the ‘ commonlaw ’ of the Island. If one went solely by statutes, one would have toconclude that it was but one among a number of laws in force in Ceylon.Kandyans, Tamils and Muhammadans are declared each to have their ownlaw, and if Roman-Dutch law has become the general or (if one may usethe term) residuary law of the Island—a law, that is, which provides (1)for Kandyans, Tamils and Muhammadans in matters where their ownpersonal law, as receiyed, is silent and (2) for the other portions of thecommunity generally^—this has been effected by judicial decision, support-ing itself on such statute law as refers to legal terms familiar to Roman-Dutch law. If the Roman-Dutch law is the residuary law of the Island,as it unquestionably is, it has not been by reason of positive enactmentthat this has been effected.
To return. There is a uniform succession of decisions that in Ceylongifts by one Muhammadan to another must be governed by Muhammadanlaw and that by that law a gift to be valid must, as said above, satisfythree conditions: expression of intention to give, expression of intentionto accept, and delivery of possession or seisin actual or constructive. Toascertain what is a sufficient delivery or transfer, recourse has been had,in default of any rule established by local Ceylon custom among Muham-madans or by a case decided here, to the recognized treatises on Muham-madan law, such as those of Ameer Ali and Tyabji, and to the Indiancases cited therein. These last have, however, been but sparingly used,since we have not here adopted the developments by the Indian Courtsof Muhammadan law, nor is it necessary to do so, since Muhammadan lawin Ceylon cqvers a much smaller portion of the general field of law thanit does in India. But it is certainly part of the local Muhammadan lawas to gifts that there must be delivery or transfer of possession, and thei 14 N. L. It. 295 at 300.2 19 -V. h. R- S46 at 248.
MACDONELL C.J.—Sultan v. Peiris.
onus is on the donee to show that such has taken place. This brings usto the words in the present gift importing a restriction.
The words to be interpreted are expressed as imposing a “reservationcondition agreement or restriction ” subject to which the gift is made,and are as follows:—“That notwithstanding the gift hereby made, I thesaid donor reserve to myself during my life time the full and unfetteredright of residing in any of the said premises hereby gifted and of takingand enjoying the rents, profits, produce and income of all the said severalallotments of land and premises hereby gifted without the interferenceof the said donees or either of them ”. The donor reserves to himself theunfettered right to live in any of the premises given without interferencefrom the donee. Then it is difficult to see how the donee could grant alease of any of these premises, or a lessee be safe in taking a lease from thedonee for any term however short, since the donor has reserved to himselfthe right at any time to move into and reside in the premises so leased.I find it difficult to give to these words any other meaning than that thedonor after the gift as before retains the right to say who shall live ineach and every of the premises he purports to give. Prior to the gift hewas in possession of the properties gifted and had the right, subject ofcourse to any subsisting contract with a tenant, to live in any building hechose on his different properties and after the gift he has the same rightwith regard to them that he had before, and that right is to remain tohim “ full and unfettered ” by “ interference ” from the donee. With alldeference to the forcible argument put to us for the appellants, I cannotsee in these words anything else than an expressed intention to retainafter the gift what confessedly the donor had before it, the possession ofthese properties. The words that follow are to a like effect. The donoris to have the “ full and unfettered right …. of taking andenjoying the rents, profits, produce and income of all ” the propertiesgiven “ without interference ” by the donee. He can “ take ” thoserents, and a man takes rents, I apprehend, by demanding them, and, ifthe demand is not complied with, by instituting such legal proceedings asmay be necessary. In the face of these words could the donee bringaction against a lessee requiring him to pay his rent? If the lessee calledfor and obtained inspection of the deed of gift under which the doneeclaimed the right to sue—and he could not claim such a right underanything else—an exception by the lessee that the donee was not theperson entitled to sue, that he had no locus standi m judicio would have,I apprehend, to be upheld and the donee’s plaint dismissed. Per SirEdward Vaughan Williams in Nawab Umjad Ally Khan v. MussumatMohundee Begum —“ It remains to be considered whether a realtransfer of property by a donor in his life time under the MuhammadanLaw, reserving not the dominion over the corpus of the property nor anyshare of dominion over the corpus3 but simply stipulating for and obtaininga right to the recurring produce during his life time is an incompletegift”, and he goes on to quote a passage from the Hedaya which showsthat it is not an incomplete gift. That was a case of a gift of mobiliayGovernment promissory notes, possession of which had been handed overto the donee, with a promise from him to pay to the donor for his life time
i U Moore's /. A. 517 at 548.
MACDONELL C.J.—Sultan v. Petris.
the interest aiming on those notes. There the corpus had been trans-ferred, here, as I understand the words used in the deed of gift, the titleto the corpus has been transferred but a considerable “ share of dominionover the corpus” has not been transferred, the donor seefas to retainover that corpus, not the dbminium or ownership, but at least the enjoy-ment and the possessory rights, after the gift as before.
Some idea of what is meant by giving possession is obtained fromTyabji, 2nd edition, p. 441, where he quotes from a work on Shiah lawwhich however lays down, he says, rules of general applicability:—
“ Delivery of possession is the transfer of the customary control over thething from the transferor to the transferee …. There is no doubtas to possession being transferred by vacating with reference to immov-ables, in the sense of the removing of obstacles in the way of the transfereeand by the transferor raising his hand and giving him permission; thisis necessary in order to place the transferee in the same position as thetransferor …. Takhliat, or vacating a property, means givingup all dealings with it and leaving it entirely at the disposal of thepurchaser or the donee without leaving any obstacle in the way of hisusing it ”. This metaphor, “ raising the hand ” or “ taking off the hand ”,is several times used by Tyabji as expressing what the donor must dobefore it can be said that he has given possession to the donee. Now inthis case it is exactly the “ taking off the hand ” or “ raising the hand ”which seems to be absent. The donor is to have certain full and unfetteredrights without the interference of the donee. The use of such phrasesdo not suggest that the donor has “ raised ” or “ taken away hishand ”.
Tyabji says further—2nd ed., p. 421—that the donor “must do every-thing which according to the nature of the property the subject of thegift is necessary to be done in order to transfer the ownership of theproperty and to render the gift complete and binding on himself” andthat he “ will be held to have done everything that is necessary to be doneto transfer possession, when he has put it in the power of the donee totake possession of the subject of the gift, if he so chooses ”. Where thesubject of the gift is immovable property let to tenants, their attorningto the donee will be proof that possession has passed to him. There isno suggestion that that was done here, or (one may mention) that anychange of the name of owner was made in the municipal records ofColombo, or that there was even any handing over, symbolical or actual,of the premises 5, Jefferson street, where the donor and donee continuedto reside after the gift as before—indeed this last could not be done con-sistently with the reservation to the donor of the “full and unfetteredright of residing in any of the premises hereby granted ”.
One may perhaps note that had the ‘ reservations and restrictions ’been worded as requiring the donee to ‘ permit ’ the donor to reside inany of'he premises named in the deed and as requiring him to ‘handover ’ the rents and profits to the donor, or to 4 permit ’ the donor toreceive them, then it might have been possible to hold that the donor had4 raised ’ or 4 taken off the hand ’ and that there was evidence fromwhich it could be inferred that he had 4 put it in the power of the donee
MACDONELL C.J.—Sultan v. Peiris.
to take possession of the subject of the gift’, but these things are justwhat the wording of the deed seems to preclude; the donor is to doeverything himself, unfettered and unrestricted.
If we examine the subsequent doings of the parties, we do not, I thinkfind any evidence that clearly points to an intention to transfer. Thedonee seems sometimes to have collected rents but it is left uncertainwhether he collected those rents in his own name or in that of the uncledonor, and until some evidence is produced to show that he did collectthose rents in his own name, it must be assumed that he collected themin the name of his uncle the donor since the onus is upon those seeking toestablish transfer of possession, and this is a piece of evidence from whichtransfer of possession might be inferred. He paid municipal taxes andtook receipts in his own name but this again is equivocal without theproduction of other evidence to show that the properties he was payingtaxes for were in his possession. He ordered repairs and negotiated withthe Municipality for structural alterations to premises forming part ofthe property mentioned in deed No. 4,277 but these acts again wereequivocal. He may have done them as agent for his uncle, he may havedone them for himself as owner. The possibility that he did these thingsas agent is strengthened by the power of attorney given him by the uncledonor in 1917. The fact that the title deeds and deed No. 4,277 were inhis possession so that he could and did deposit them at the bank on aspecies of equitable mortgage can be attributed, no doubt, to the declare^tion at the end of the deed by the donor that he hands over the title deedsto the donee, but if what has been said above is correct, this handing overof the title deeds and the fact that they remained in the donee's possessionare insufficient to establish transfer of possession of the properties in theface of the declaration earlier in the deed which has, I am driven toconclude, the effect of retaining possession of them in the donor.
The position is then that we have in this deed a definite statement thatthe legal title is transferred and what seems to be an equally clear state-ment, and not less clear because 'it is not worded in artificial terms, thatpossession is to be retained by the donee. The two provisions have to beread together, being each a part of the same deed, and we have to judgefrom what the donor has said what it was that he intended by these twoprovisions in the deed, and he seems to have said, and therefore to haveintended, that he has given the legal title but not so as to give possession,but under Muhammadan law which one assumes is the law applicable tothis deed, if he did not give possession, he did not. make a valid deedof gift.
The matter cannot however be decided simply on the foregoing con-siderations since while these appeals were pending the Privy Council gavejudgment in Weerasekera v. Pieris (supra) and it is necessary to examinethem in the light of that judgment.
The deed to be interpreted in that case was one made by a Muham-madan donor in favour of his son the donee, also, a Muhammadan, andin it he declared that in consideration of natural love and affection hegave, granted, assigned^ transferred,-^set over and assured unto the donee,his heirs, executors, administratorsnd assigns as a gift inter vivosabsolute and irrevocably the (property specified, to have and to hold unto
MACDONELL CJ.—Sultan v. Petris.
the donee, his heirs, &c., subject to the conditions and restrictions tofollow, namely, that the donor had reserved to himself the right andpower to cancel and revoke the deed and make any other deed (withregard to the property specified) as he should think fit and proper duringhis life as if the deed had not been executed, and had also reserved tohimself the right of taking, receiving and enjoying the rents, profits, &c.,of the property during his lifetime, and further that after his death theproperty should go to and be possessed by the donee as his property butso that he should not have power to sell, mortgage, give, exchange orotherwise …. alienate it or encumber the rents, profits, &c., orallow the property or its rents, profits, &c., to be seized, attached or soldunder writ of execution for any debt, default, &c., of the donee and thathe should not lease the property for more than three years, with power tothe donee however to make gifts to his daughters, and that after the deathof the donee the property should devolve on his children as their absoluteproperty. The donee accepted the gift subject to the above conditions.
If this deed had been one between a donor and a donee who were notMuhammadans, then one would be correct in describing it as a gift intervivos which was to take effect if at all (since it was revocable), only on thedeath of the donor, and then under the bond of a fidei commissum for thelife time of the donee, the whole being a transaction conforming to theprovisions of Roman-Dutch law.
The Privy Council judgment mentions the three conditions requiredfor the validity of a Muhammadan deed of gift and agrees that ‘ the lastmentioned provisions ’ in the deed then under consideration ‘ constitutea fidei commissum ’. It then goes on to say that the common law ofCeylon is the Roman-Dutch law as it obtained in the Netherlands aboutthe commencement of the 19th century—with all respect, one prefers tocall it the residuary law of Ceylon rather than its common law—and itnotes that under that law donations involving fidei commissum were wellknown and recognized. It then proceeds to say that the question beforethe Board depends on the construction of the deed which it summarisesas follows: —“ The conditions and restrictions mentioned in the deed arequite inconsistent with a valid gift inter vivos according to the Muham-madan law. For, by the deed, the father reserved to himself the right tocancel and revoke the so called gift, as if the deed had not been executed,and to deal with the premises as he thought fit; he reserved to himself therents and profits of the premises during his life time, and it was onlyafter his death that the premises were to go to, and be possessed by, hisson. In their Lordships’ opinion, all the terms of the deed must be takeninto consideration when construing the deed, and it seems clear to theirLordships that it was never intended that the father should part withthe property in, or the possession of, the premises, during his life time,or that the son should have any control over or possession of the premisesduring his father’s life time. In other words, it was not intended thatthere should be a valid gift as understood in the Muhammadan law.The deed further provided (among other things) that after the father’sdeath, the son should not sell, mortgage or alienate the premises or anypart thereof, that his powers of leasing the premises should be limited togranting leases for three years and that apart from gifts which the son
MACDONELL C.J.—Sultan v. Petris.
might make to his daughters on their marriage, the premises upon thedeath of the son should devolve upon the children of the son as theirabsolute property. It was not disputed that the last mentioned provisionconstituted a fidei commissum according to Roman-putch law, but, asalready stated, it was contended on behalf of the respondent that inas-much as the terms of the first part of the deed purported to constitute agift inter vivos between Muslims, the Muhammadan law must be appliedthereto, and as possession of the premises was not taken by the son duringthe father’s life, the gift was invalid and the fidei commissum, which wasbased on it, also failed. Their Lordships are not able to adopt thiscontention of the respondent, and upon the true construction of the deed,having regard to all its terms, they are of opinion that the father did notintend to make to the son such a gift inter vivos as is recognized in Muham-madan law necessitating the donee taking possession of the subject-matter during the life time of the donor, but that the father intended tocreate and that he did create a valid fidei commissum such as is recognizedby the Roman-Dutch law”.
Conformably to the principles of the judgment, it will be necessarythen to ascertain the true construction of the present deed having regardto all its terms, and if so, the present deed seems to be clearly distinguish-able from that under consideration in the Privy Council judgment. Thepresent deed purports to make a gift inter vivos absolute and irrevocable,these words being repeated in the habendum clause, and purports to vestin the donees the legal title by handing to them the deed itself and theconnected deeds. It purports to make an immediate and irrevocablegift of the legal title, that is of the dominium. In the deed in Weerasekera v.Pieris (supra) on the other hand, there was a “ so called gift ” whichtransferred nothing at all unless and until the donor died without havingrevoked the deed; until that event happened nothing could vest in thedonee. Further: the donor in the present deed imposes a penalty orforfeiture clause on either of the two donees who at any time thereafterabandons the Islamic faith or marries a widow or divorced woman; onewould say a tolerably clear indication that he was purporting to make agift under the Muhammadan law as he understood it. Regard must behad to all the terms in the deed, and I find it difficult to give due signifi-cance to this penalty or forfeiture clause unless the donor consideredhimself to be acting under and within the ambit of his own Muhammadanlaw. Yet again, the clause stating that he handed over the deed andconnected deeds “by way of vesting legal title”, and the reinforcementof this in the attestation clause by his request to the Notary to hand overthe deed and connected deeds to the donee, certainly suggest, at the veryleast are consistent with, knowledge by him that a gift under Muham-madan law to be valid must be a gift in praesenti, and even with a beliefthat this handing over of the deeds was sufficient to ensure possessionpassing. Handing over the title deed is a thing from which constructivedelivery of possession, unless negatived by other provisions, can beinferred. One concludes then that the donor did intend to make such agift inter vivos as is recognized in Muhammadan law, with possession,passing to the donee.
MACDONELL C.J.—Sultan v. Petris.
It is true that the deed fails as a Muhammadan deed of gift since therestrictions imposed are so worded as to prevent possession passing butthis is no more than saying that the deed failed of its intention, a commonenough event, as reported cases on conveyances of immovable propertyshow; the conveyancer failed to effect the donor’s purpose. But thepurpose itself seems clear from the foregoing considerations.
One would also repeat what has been said earlier. Had the restrictionsbeen expressed as requiring the donee to permit the donor to reside inany of the premises named in the deed, and requiring him to hand overthe rents and profits to the donor or to permit the donor to receive them,it might well have been held that there had been a transfer of possession.
If it be argued that the donor here could not have intended to makesuch a gift inter vivos as is recognized in Muhammadan law, since on therestrictions and reservations as expressed in the deed, no possessioncould pass to the donee, this would firstly be very like arguing that noMuhammadan can intend to make a gift inter vivos under Muhammadanlaw unless that deed turn out to be valid under Muhammadan law inevery respect—his intention must effect its purpose to be an intention atall—and secondly it would, in determining what the intention of the donorwas, be laying stress solely on one clause in the deed and disregardingothers, equally important, the clause declaring the deed to be irrevocable,the statement of intention to vest the legal title in the donees, that is totransfer the dominium in praesenti, the handing over of the title deeds,and not least the forfeiture clause if either donee abandons the Muham-madan faith. When the various provisions in the deed are all examinedto ascertain intention, the balance certainly seems to incline in favour ofthe donor having intended to make a gift inter vivos as recognized byMuhammadan law.
But the deed must be examined further. Restriction (3) says that“if either of the said donees shall at any time hereafter abandon theIslamic faith or shall marry a widow or divorced woman then the titleto the share of the delinquent donee of the several allotments of land andpremises which I have hereby gifted to him shall at once devolve on theother donee who shall thereafter be entitled to the whole of the saidseveral allotments of land and premises herein described as if the entiretyof them had been gifted to him alone by me ”. This restriction, thougha penalty or forfeiture clause, is none the less a fidei commissum, for itprovides that if one of the donees does either of two named things, hismoiety shall go over to the other, who would to that extent be a fideicommissarius. Lee, 3rd ed., 277“ Very often fidei commissum
depends upon a condition as where a wife is appointed heir with a giftover in the event of re-marriage”, and he cites Huber 2.19.44. Butthough this is technically the effect of this restriction, I think that boththe donor and his conveyancer would have been surprised had they beentold that the donor “ intended to create or did create a valid fidei com-missum such as is recognized by the Roman-Dutch • law ”. What theyintended was to emphasize the Muhammadan character of* the deed ofgift, and to ensure the donees remaining in that faith—the intention isimperfectly expressed since they did not look beyond the possibility ofone donee apostatizing, but the intention is unmistakable. Here then
MACDONELL CJ.—Sultan v. Petris.
we have a clause which is, beyond question, “a valid fidei commissumsuch as is recognized by Roman-Dutch law”. But it is also a penaltyor forfeiture clause inserted to prevent the donees abandoning the Islamicfaith, and, to give due effect to what the donor has said and to whattherefore he must be presumed to have intended, one would say that hehas thereby stated that this is a Muhammadan deed of gift betweenMuhammadans, and so presumably to be governed by Muhammadan law,but that, perhaps unwittingly, he has so expressed himself as to create afidei commissum valid under the residuary law of the Island. There isthen no contradiction between the two aspects of this clause, a forfeitureif the Islamic faith is abandoned but in the form of a fidei commissum.
But perhaps the matter must be probed further. Suppose it be arguedthat the donor, having created by this clause'a valid fidei commissum,has thereby excluded the possibility of his having intended when makingthis clause to act under Muhammadan law—the two things mutuallyexclusive, the creation of the Roman-Dutch law fidei commissum, theintention to act under Muhammadan law, an opposition between them sostrong that the making of a valid fidei commissum of any kind ipso factorules out the possibility of any intention in so making it and in so far asit is a valid fidei commissum thereby and in the clause where it occurs,of acting under Muhammadan law—then two observations would haveto be made. First, one would say that this would be an insistence onnames to the forgetting of the realities behind those names, the reality ofthe clause being the intention that a donee shall forfeit if he abandonthe Islamic faith, the phraseology in which that intention is clothedbeing a fidei commissum under Roman-Dutch law. Secondly, one wouldsay that granting to the full that this clause creates modo et forma a validfidei commissum under Roman-Dutch law, yet the effect of it is to penalizeby forfeiture a donee abandoning the Islamic faith,—this surely must beconceded on any interpretation of the clause—and that consequently touse this fidei commissum to prove that the maker cannot have had theintention when making it and in so far as he made it, of acting under andwithin the ambit of Muhammadan law, would be to use the same piece ofevidence to prove two contrary positions.
This question, the intention of this forfeiture clause, has been discussedat length to satisfy oneself that one has fully considered, from severalaspects, what the intention can have been, and one is brought backcontinually to the original conclusion, that the right way to apprehendit is to hold that it is an attempt to ensure the donee or donees remainingin the Islamic faith and if so that the intention of its maker was therebyto act under Muhammadan law.
Returning now to the main question. One concludes from an exami-nation of all the provisions in the deed 4,277 that the donor intended tomake a valid gift inter vivos as recognized by Muhammadan law but thatthe deed failed to be a vaild one since under it possession did not pass.
But the Privy Council judgment in Weerasekera v. Pieris (supra) whichone has been endeavouring to follow and apply, as clearly one must fromthe similarity of the matter there in dispute to that in the present appeal,states a question—it was one raised in that appeal—to which no cate-gorical answer seems discoverable in that judgment; the answer may be
MACDONELL C.J.—Sultan v. Peiris.
implied but it is not explicit. The question raised is best set out in thewords of the judgment itself—“ It was contended on behalf of the respon-ent that inasmuch as the terms of the first part of the deed purported toconstitute a gift inter vivos between Muslims, the Muhammadan law mustbe applied thereto, and as possession of the premises was not taken bythe son during the father’s life, the gift was invalid and the fidei commissumwhich was based on it also failed ”. The answer that the judgment givesis that the deed, on an interpretation of all its terms, showed an intentionto create, and the creation of, a valid fidei commissum such as is recog-nized by Roman-Dutch law but that it did not show an intention to makesuch a gift inter vivos as is recognized in Muhammadan law. I havepurposely transposed the terms of the answer so as to deal first with thefidei commissum. A valid fidei commissum was created by the deed inWeerasekera v. Pieris -(supra) and to grasp the effect of this conclusion onereminds oneself that while a trust can be created merely by a declaration ofA that he holds in trust for B, a fidei commissum needs for its creationsomething, here a gift (since there was no question of a will), which isvalid to effect a transfer of dominium; gift of dominium to the fiduci-arms with a conditional limitation over—if so one may phrase it—infavour of another or others, fideicommissarii. If then a valid fideicommissum was created by that deed, there must have been a gift initself valid to pass the dominium to the son the fiduciarius. There wasno intention “ to make to the son such a gift inter vinos as is recognizedin Muhammadan law ”, but there must have been an intention to make agift, and a gift must have been made, for without it no fidei commissumcould come into existence, and that gift must have been such as is recog-nized in some system of law, presumably the Roman-Dutch law, theresiduary law, as one has called it, of the Island. With all submission,and endeavouring to understand and apply the principles which seemimplicit in this judgment, one finds it difficult to escape from this conclu-sion. In Weerasekera v. Pieris (supra) there was a valid fidei commissum,but to create this at all, a valid gift was necessary. The deed then wasa valid gift, but under Roman-Dutch law, since its terms negatived anyintention to make such a gift as is recognized by Muhammadan law.Then the judgment seems to imply this proposition, that a Muhammadanin a deed of gift can manifest an intention ta make that gift outsideMuhammadan law altogether and therefore to make it—the only alter-native—under Roman-Dutch law, and that one of the ways of doing sois to create by his deed a valid fidei commissum in an instrument which ifmade not by a Muhammadan would be valid as a deed of gift underRoman-Dutch law. In other words, if he manifest a sufficiently clearintention, he can contract himself out of the Muhammadan law as togifts altogether. Henceforward then in examining a deed of gift fromone Muhammadan to another one must examine the deed as a whole andwith regard to all its terms, to see if it shows an intention to make such agift inter vivos as is recognized by Muhammadan law. If it does showsuch an intention, the validity of that gift will be determined by the rulesapplicable to a Muhammadan deed of gift, namely, the three mentionedearlier in this judgment. If it does not show such an intention yet doesshow an intention to make a deed of gift, the validity of that gift will
GARVIN S.P.J.—Sultan v. Peiris.
be determined by the rules applicable to a deed of gift made under theresiduary law, the Roman-Dutch.
One puts forward these propositions with all submission since it may bethat one has failed to grasp the principles on which this judgment of thePrivy Council is based, yet they certainly seem implicit in it, and if thatis so, then an explicit statement of them would have been of greatassistance to this Court in determining such cases of gift from oneMuhammadan to another as may arise hereafter.
For the reasons given above I am of opinion that these appeals shouldbe dismissed with costs.
Garvin S.P.J.—
This is an appeal from a judgment of the District Court whereby theplaintiffs action was dismissed with costs. The plaintiff is the assigneeof the insolvent estate of M. B. Oduman and the purpose of his action isto obtain for the benefit of the creditors the lands and premises describedin his plaint which he claims as the property of the insolvent. Thedefendant denies the title of the insolvent and claims to be the lawfulowner of the premises.
M. B. Oduman, the insolvent, and M. B. Abdul Cader are nephews ofthe defendant. On August 15, 1913, the defendant executed the deedbearing No. 4,277 which is in form a transfer by way of gift of these landsand premises to his two nephews subject to the following reservations,conditions, agreements and restrictions, to wit:—
That notwithstanding the gift hereby made I the said donorreserve to myself during my life-time the full and unfettered right ofresiding in any of the premises hereby gifted and of taking and enjoyingthe rents, profits, produce and income of all the said several allotmentsof land and premises hereby gifted without the interference of the saiddonees or either of them.
That the said donees and each of them shall always profess theIslamic faith as they have hitherto done and shall marry only a virginor spinster and not a widow or a divorced woman.
That, if either of the said donees shall at any time hereafterabandon the Islamic faith or shall marry a widow or divorced womanthen the title to the share of the delinquent donee of the several allot-ments of land and premises which I have already gifted to him shall atonce devolve on the other donee who shall thereafter be entitled to thewhol of the said several allotments of land^ and premises hereindescribed as if the entirety of them had been gifted to him alone.
That, after the death of me the said donor the donees shall payto my old servant Abone Ismail during his life-time monthly pensionor allowance of thirty rupees (Rs. 30) from the date of my death andshall allow him the free use of a tenement suited to his status the rentof which is not to exceed twelve rupees (Rs. 12) per mensem and incase he shall predecease his wife then this monthly payment of Rs. 30shall be made to his widow and the free use of the tenement shall alsobe allowed to his widow till her death.
The learned District Judge has construed the deed as a whole as a giftwhich is subject to the reservation of a life-interest in the donor and
GARVIN S.PJ.—Sultan v. Perris.
following the judgment of this Court in Weerasekera v. Peiris1 held thatit was obnoxious to the Muslim law which governed the case. Thejudgment of this Court in Weerasekera v. Peiris {supra) has since beenreversed upon appeal to the Privy Council, and the argument addressedto us by Council for the appellant is based on the judgment of theirLordships of the Privy Council.
As a matter of construction it was submitted that the document is inform of a deed of gift with the reservation to the donor of a life-interestby which the donor has also impressed upon the subject of the gift a validfidei commissum.
Counsel invited our attention to the case of Sahul Hamid v. MohideenNachiya? where Dalton J. held that a reservation in terms very similarto those in which the donor in this case has reserved to himself rights inthe subject of the gift did not amount to the reservation of a “ real rightin the land ”. My own view on the point is fully set out in Weerasekerev. Peiris (supra) at page 188 at the bottom of the second column asfollows:—
If then the reservation referred to in these judgments (the referenceis to certain judgments in Indian cases under consideration) is in lawmerely a right to receive from the donee the produce or profits of thesubject of the gift based on agreement and not a real right in the land,then, when such land is in the possession of the donee, it is susceptibleof delivery of possession as fully as if there were no such reservation.The difference between personal rights proceeding from and based onagreement are contrasted with real rights in the land. The reservationin this case to the donor during his life-time of “ the full and unfetteredright of residing in any of the premises hereby gifted and of taking andenjoying the rents, profits, produce and income of all the said severalallotments of land and premises hereby gifted without the interferenceof the said donees or either of them ” is the reservation of real rights in theland. They are in no sense rights proceeding from a mere agreement onthe part of the donees to hand over to the donor the rents, profits andincome of the premises.
But it is not necessary to pursue the matter further. Counsel preferredto take up the position, I think rightly, that the donor in the case beforeus did reserve to himself real rights in the subject of the gift but thesehe urged were not so extensive as to be inconsistent with an intention todeliver possession of the premises to the donees.
The reservation by the donor to himself of the right to live in any ofthe premises and to take all the rents, profits, produce and income of thelands and premises gifted appear to me to negative any intention on thepart of the donor to surrender possession of the subject of the gift to thedonees.
Indeed, the main contention addressed to us was that the judgment of thePrivy Council in Weerasekere v. Peiris (supra) proceeded upon the principlethat in a case of gifts between Muslims where by reservations, conditionsand restrictions of the character referred to the donor indicates that henever intends to part with the possession of the premises during his life-time, it is manifest that he did not intend that there should be a valid gift> (1931) 32 N. L. B. 176.2 (1932) 34 N. L. R. 57.
GARVIN S.P.J.—Sultan v. Peiris.
as understood in the Muhammadan law and must therefore be taken tohave intended to make such a gift as is known to the Roman-Dutch law.In short, that it is competent for a Ceylon Muslim to make a gift inaccordance with the principles of the Muslim law to which he is subjector at his will to free himself from those laws and make a gift which must be.governed by the principles of the Roman-Dutch law if his intention is thatregard be sufficiently manifested by reservations, restrictions or conditionswhich run counter to the fundamental principles of the Muslim law of gift.
If this be the correct view of the principle underlying the judgment ofthe Privy Council then the effect upon titles to land and upon the law ashitherto understood is very far-breaching. I would instance the case ofgifts subject to the reservation of a life-interest in the donor. It is wellsettled law that such gifts are governed by the Muslim law and beingobnoxious to the fundamental requirement of delivery of possession arevoid and of no effect. In such cases, the donor in terms manifests hisintention not to part with possession of the property gifted. That, it isurged, is a manifestation of an intention not to make “ such a gift intervivos as is recognized by the Muhammadan law as necessitating the doneetaking possession of the subject-matter during the life-time of the donor ”,but to make a gift which would be operative under the Roman-Dutch law.
The alternative view was suggested that the Privy Council judgment isauthority only for the proposition that in the case of a gift betweenMuhammadans where the donor impresses the subject of the gift withwhat would be a valid fidei commissum if tested by the Roman-Dutch law,the Muhammadan law is excluded and the whole transaction is broughtunder the Roman-Dutch law. The position then would be that in everycase in which a deed contains provisions which appear to be intended toimpress the subject of the gift with a fidei commissum these provisionsmust first be examined in the light of the Roman-Dutch law and if theyare found to be sufficient to create a fidei commissum the Muslim law isexcluded. Presumably, if upon such an examination it is found that thelanguage used does not create a valid fidei commissum the gift will onlytake effect if it is a valid gift under the Muslim lav/.
As I shall presently endeavour to show we are required to determineall matters relating to gifts between Muslims in accordance with theirlaws and usages so far as they obtain in Ceylon, but it is a long establishedand inveterate custom among us to determine the validity of restrictive•clauses in Muhammadan deeds of gift in accordance with principles•derived from the Roman-Dutch law.
In view of the importance of these questions not only to the MuslimsTout to members of other communities, whose title to property in numerousinstances depends upon the validity of the acts of their Muslim prede-cessors in title, it is desirable in the first instance to examine more fullythe position of the Muslim law in our legal system with special referenceto the law in regard to gifts between Muslims.
In his treatise on the Laws and Customs of the Singhalese (vide Intro-•duction, section 4) Mr. Hayley when dealing with the assumption madein modern times that the Dutch had imposed the Roman-Dutch law oil.nil the native inhabitants of this Island traces the history of the laws of•the Sinhalese back to the time of the Portuguese who were the first
GARVIN S.P.J.—Sultan v. Petris.
invaders of Ceylon. He refers to an incident reported in Kibeiro(Dr. Pieris’ translation, p. 92) where we find it recorded that at a meetingbetween the Portuguese and delegates, representative of the Singhalese,the Portuguese agreed to preserve to the Singhalese “all their laws,rights and customs without any change or diminution ”. That the Dutchpursued a similar policy is beyond question. It is to them we are indebtedfor he compilation and promulgation of a code of the laws and customsof the Tamils of Jaifnapatam known as the Tesavalamai. They appearto have displayed a similar anxiety to ascertain and codify the laws ofthe Kandyans (vide Hay ley, p. 23, who cites Bertolacci, Appendix A). Thisis further confirmed by Lawson D.J. in, D. C. Colombo 29,129, a case ofthe year 1865 ’, who says: “ It is indeed matter of history and of notoriety,that the Moors under the Dutch Government were allowed to be governedby their own laws and usages ….”. It is hardly necessary tomake further citation.
Shortly after the capitulation by the Dutch, His Majesty’s Governmentmade a proclamation dated September 23, 1799, declaring that theadministration of justice shall be exercised by all Courts of the Island. . . . “ according to the laws and institutions that subsisted under theancient Government of the United Provinces . . . .”. Thesewords thus gave Royal recognition and sanction not only to the Roman-Dutch law but to the Kandyan law, the Muslim law, the Thesavalamaibut even the Mukkuwa law, which together formed part of the “ Lawsand Institutions that subsisted under the ancient Government of theUnited Provinces”.
In a note on “ the operation of the Roman-Dutch law when in conflictwith native usages ” by T. Berwick, District Judge of Colombo, anacknowledged authority on the subject, this writer refers to the followingpassage in the Royal instructions to the first Governor quoted in theProclamation of 1798, by which the Governor is directed that the tem-porary administration of justice “ in these settlements should, as nearlyas circumstances would permit, be exercised in conformity to the laws andinstitutions that subsisted under the ancient Government of the UnitedProvinces, subject to such deviations, &c.”, as “ words which do notrecognize the European Dutch law, but simply desire that the law, what-ever it may have been (whether Singhalese, Moorish or other) hithertoadministered by the Dutch in these settlements, should continue tillfurther arrangements”—vide 1 Browne, App. A, p. 12. If in a matterso clear any doubts be possible, they are removed by clause 32 of theCharter of 1801 which provided “ that in the cases of Cingalese or Mussul-man Natives, their inheritance and succession to lands, rents and goods,and all matters of contract and dealing between party and party, shallbe determined in the case of Cingalese by the laws and usages of theCingalese, or in the case of Mussulmans, by the laws and usages ofMussulmans, and where one of the parties is a Cingalese or Mussulman,by the laws and usages of the defendant ”.
The position then and now is that there was preserved to the Cingalese,Mussulman and other natives of the Island 'as also to the Dutch inhabit-ants, their respective laws and usages. Indeed as Mr. Berwick remarks1 (1869-1871) Vanderslraaten's Reports, Appendix B, 31.
GARVTN S.P.J.—Sultan v. Petris.
in the note referred to “Never once (that I can remember) has theLegislature or the Supreme Authority recognized the existence of theRoman-Dutch law, while it has more than once expressly confirmed thenative usages
This brief historical examination of the subject under considerationleads to the conclusion that the Muslim law and the other indigenoussystems of law are as much a part of the common law of this Island asthe Roman-Dutch law and that there is no body of legal principles andusage common to all parts of the Island and all its inhabitants in thesense of the Common law of England.
In Ceylon, therefore, we have several different systems of law eachwith a claim to recognition to the extent to which it obtained in theIsland which no Court may ignore. These different systems are not inthe nature of personal privileges which the individuals to whom they areapplicable may claim to surrender at their will. The preservation tothe Muslims of their laws and usages is not a privilege in any different orother sense than the similar preservation in the case of the Dutch inhabit-ants of the Roman-Dutch law or in the case of the Kandyans of theirlaws and usages.
The Muslims are therefore subject to their own laws and usages to theextent to which they obtain in Ceylon and the Courts are required toadminister and apply those laws and usages in determining all questionsrelating to “ their inheritance and succession to lands, rents and goods,and all matters of contract and dealings . . . .”. But it is doingno injustice in the light of our knowledge of the laws and usages of theMuslims, Kandyans, and “ inhabitants of Jaffnapatam ” to say of themthat in no single instance is there anything approaching a completesystem of law. They are very limited in their scope and from the earliesttimes it became necessary to supply their deficiencies by the applicationof the principles of the only complete system of jurisprudence then inforce in the Island, viz., the Roman-Dutch law. It has thus becomethe inveterate practice in Ceylon to resort to the Roman-Dutch law inall matters outside the area covered by the other systems of law whereit can be applied without conflict with any of its provisions, rules orprinciples. The Roman-Dutch law thus became the general law of theIsland applicable to all its inhabitants in all matters upon which theirpersonal laws are silent and in this sense the Common law of the land.
Among the laws and usages of the Muslims in force in Ceylon are thoserelating to gifts. It remains to inquire what those laws and usages were.It is well settled here that according to the laws and usages of the Muslimsin Ceylon it is essential to the validity of a gift that there should be (1) amanifestation of the wish to give on the part of the donor, (2) theacceptance of the donee, express or implied, and (3) the taking possessionof the subject-matter of the gift by the donee—vide (1865) D. C. Colombo29,129 (supra) and Affefudeen v. Periatamby1. There is no evidence thatso far as is relevant to the matter under discussion the Muslim laws andusages in force in Ceylon during its administratibn by the Dutch in regardto gift went any further. Indeed, it would seem that so long as thesefundamental requirements were complied with a gift between Muslims35/91 (1911) 14 N. L. R. 295.
GARVIN S.P.J.—Sultan v. Peiris.
was valid and effective. The whole body of the Muslim law as it obtainson the neighbouring continent of India does not appear ever to haveformed part of the laws and usages of the Ceylon Muslims. Indeed, inso far as it has developed at all that development has followed a somewhatdifferent course.
There are indications that the Muslim inhabitants of this Islandrealized the advantage of being able to settle property by impressing theirgifts with fidei commissa, an advanage which the majority of theircountrymen subject to the Roman-Dutch law enjoyed. The earliestreported case of such a gift is D. C. Colombo 59,578', the deed underconsideration bore the date November 12, 1853. The deed was in forma gift to one Aydroos but subject to conditions and restrictions which inthe case of persons subject to the Roman-Dutch law would have clearlyburdened the gift with a valid fidei commissum. The subject of the giftwas seized in execution against Aydroos who seems to have died thereafter.The widow and children brought an action to have the seizure set asideclaiming to be entitled to the premises under the fidei commissumimpressed on the gift. The defendant contended that the land vested inAydroos absolutely and that the conditions and restrictions in the deedof gift, were void and inoperative. It is to be noted that it was notsuggested that the gift offended against any of the three requirements of-the Muslim law of gift referred to earlier. The defendant affirmed thetransaction as a valid gift to Aydroos. His contention is set out in thejudgment as follows:—“The defendant contends that the restrictionsagainst alienation (wrongly styled condition) is illegal, void and inoperativeand rests his proposition on the Muhammadan law ”. The judgmentproceeds: “ It is argued for the plaintiffs, that this question, being oneaffecting real property, must be governed not by Muhammadan law butby the Lex Loci; and for the defendants, that in this instance the Muham-madan law is the Lex Loci ”. The Judge then refers to the Charter andconcludes that the Muhammadan law is part of the Common law of thecountry. He then considers to what extent the Muhammadan lawobtains, he points out that “ the whole immense body of Muhammadanlaw ” is not law in Ceylon and that the branch of law known as Wukf wasnot introduced into Ceylon and did not become part of the customarylaw of the Ceylon Muslims, and concludes as follows:—“The clause inquestion would be valid by the ordinary law of Ceylon, and must thereforebe held valid in this case, however the Muhammadan law may vary inthis regard in distant parts of the world. He expresses the opinion that asthe Muhammadan system of jurisprudence relating to the construction ofwills, &c., and the effect of void conditions did not form part of the lawof Ceylon the matter should be governed by what he refers to as theordinary law of the land, He finally holds the clause to be good butnotes with satisfaction that the Muhammadan law as it exists out ofCeylon is substantially similar. This presumably is a reference to thelaw of the Shiah sect which recognizes the gift of a limited estate, e.g., agift by A to B for life and after him to C.
The case with which Berwick D.J. was dealing was one of gift between^Muslims which the contestants were agreed was a valid gift under the1 Grenier's Reports, Vol. 11, Part III., p. 38.
GARVIN S.PJ.—Sultan v. Peiris.
Muslim law in force in Ceylon to the donee Aydroos. The sole contestrelated to the clause which restricted alienation by the donee in favour of“ his heirs in perpetuity The question which was proposed and decidedwas whether such a clause was void or valid and operative. The learnedJudge held that as the rules by which such matters were determinedunder the Muslim law in other countries did not form part of die lawsand usages of the Muslims of Ceylon which are silent on the point thevalidity of the clause should be determined in accordance with the rulesof the Roman-Dutch law by which the validity, nature and scope of fideicommissa created by gift are ascertained. A fidei commissuui may beimposed upon a legatee by the terms of the will or upon a donee by theterms of the gift. It is hardly necessary to say that there must be ayalid transfer of property to the legatee or donee before a fidei commissum-can operate. Under the Muslim law of Ceylon no transfer of propertytakes place without delivery of possession. Berwick D.J. did not holdthat the validity of the transfer by way of gift was to be determined inaccordance with the principles of the Roman-Dutch law of gift or thatonce it was ascertained that the restrictive clause would be effective tocreate a valid fidei commissum, supposing the gift to be valid, the wholetransaction must be judged by the Roman-Dutch law. Nor was he calledupon to decide anything more or other than whether in the case beforehim the clause was obnoxious to the laws and customs of the Muslim lawin force in Ceylon.
Whether that learned Judge was right or wrong in resorting to theRoman-Dutch law and determining the question of the validity of sucha clause in accordance with the principles of that law where the Muslimlaws and customs in force in Ceylon were silent the Courts of Ceylon havethereafter invariably applied the rules of the Roman-Dutch law relatingto fidei commissa created by gift whenever any question arose as to thesufficiency of such a clause to establish a fidei commissum or as to thenature or scope of the fidei commissum thereby created in connection witha gift between Muslims. And the Muslims, who in all probability hadcommenced to do so long before the case referred to was decided, con-tinued to burden their gifts with fidei commissa. This is evidenced bya long chain of decisions of this Court in every one of which this Court wascalled upon to decide whether the language used by the donor or testatorwas sufficient to impress the gift with a fidei commissum or assuming thatit was, to determine some question as to its nature or scope and in everycase the matter was determined in accordance with the Roman-Dutchlaw of fidei commissa. In no single case was the Court invited to determinethe validity of the gift to the donee by the Roman-Dutch law of gift;nor has this Court ever said that that question must be decided by theRoman-Dutch law and not by the Muslim law where the language usedby the donor when imposing restrictions or restraints was in other respectssufficient to creat a fidei commissum. Counsel have failed to point toany one of the numerous cases of Muslim gifts involving fidei commissadecided by our courts in which it was held that a gift which was bad forwant of seisin was a valid gift under the Roman-Dutch law because thelanguage used by the donor disclosed an intention to impose a fideicommissum on the donee.
GARVIN S.PJ.—Sultan v. Petris.
The first instance of a deed of gift whereby the donor in addition toimposing a burden in the nature of fidei commissum on the donee reservedto himself a usufruct for life and where it was quite clear that there hadbeen no delivery of possession to the donee the validity of which was inquestion is the case of Weerasekere v. Peiris (supra). Indeed, there is but oneother case of a deed of gift with such a reservation which came before thisCourt in any connection, the case of Ahamadu Lebbe v. Sulaiyamma et al.1but there all the parties claimed under the deed and the only questionsubmitted to the Court related to their respective rights under the deed.
In the circumstances and consistently with the repeated rulings of thisCourt that there was an infringement of the fundamental principle of theMuslim law of gift as it obtains here, that delivery of possession wasessential to the validity of all gifts, it was held that the gift was bad. Inthe absence of delivery of possession there was no valid transfer of propertyto the donee on whom the fidei commissum was imposed.
In Weerasekere v. Peiris (supra) I suggested that the present position ofthe law was the result of the development of the Muslim law in force inCeylon by the absorption into that system of fidei commissum and theprinciple of the Roman-Dutch law relating to fidei commissum. So thatin determining the validity of restrictions and restraints in an otherwisevalid Muslim gift we were applying principles which now form part ofthe laws and customs of the Muslims of Ceylon.
A more recent parallel development has gone on in the Kandyan law.As recently as the year 1907 when the case of a gift by a Kandyan wherethe donor sought to impose a fidei commissum came before our Courts inDantuwa v. Setuwaa, Middleton J. did not think it was intended that anyanalogy of the Roman-Dutch law of fidei commissum should be applied toa Kandyan deed of gift. But the Kandyans continued to annex suchclauses to their gifts and in the year 1921, Sir Thomas de Sampayo whosaw nothing in the Kandyan law of gift to prevent such restrictionsbeing imposed upheld the validity of the clause and gave effect to itremarking “ it is not a question of applying any particular rule of theRoman-Dutch law to the construction of this deed of gift. It is rather aquestion of the right of an owner of property to dispose of it according tohis pleasure. I am not aware of any principle of the Kandyan lawwhich prevents a Kandyan from giving a limited interest to one person,and providing that at the termination of that interest the propertyshould vest in another person. Such a disposition would, of course,be called in the Roman-Dutch law a fidei commissum. It may not be aproper expression to describe a similar disposition by a Kandyan. Itis, however, a convenient expression, and if the thing itself may be doneamong the Kandyans, the Court will not hesitate to give effect to it,simply because the disposition may also amount to a fidei commissum.”—(Assistant Government Agent, Kandy v. Kalu Banda1.)
A few years later Jayewardene A.J. in Menika v. Banda* upheld sucha gift by a Kandyan observing “the deed of gift, although it creates afidei commissum is valid under the Kandyan law which governs the rightsof the parties in this case”. The right of a Kandyan to burden hisdisposition with fidei commissum has never since been questioned. It
’ (MM) 2 C. IV'. R. 2OS.J (19211 23 N. L. R. 26.
– (1V07) 11 N. L. R. 3V.* (19231 25 AT. L. R 207.
GARVIN S.P.J.—Sultan v. Peiris.
has never to my knowledge been suggested that when a Kandyan or aMuslim makes a gift with a fidei commissum attached to the grant thatthe Roman-Dutch law of gift applies to the exclusion of the Kandyanor Muslim law as the case may be so that for instance the questionwhether the deed is revocable or not, must be determined by the Roman-Dutch law. But upon whatever theory they may have proceeded theeffect of the judgments of this Court in regard to gifts between Muslimsrnay be summarized as follows:—
The law applicable to gifts between Muslims is the Muslim law as
it obtains in Ceylon which to the extent to which it exists istheir common 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) the acceptance of the donee either express or implied, (c) thetaking possession of the subject-matter of the gift by the donee.
Clauses imposing restrictions and restraints which would be
effective to create a fidei commissum if tested by the principlesof Roman-Dutch law are not obnoxious to the Muslim law as itobtains in Ceylon and are therefore valid.
Where the donor reserves to himself a usufruct for life and therefore
manifests his intention not to give possession, the gift is bad asit offends against the requirement of the Muslim law that thedonee must take possession of the subject of the gift before thetransfer can take place, until when the gift is not valid andcomplete.
The case of Weerasekere v. Peiris (supra) was presented to us as a deed ofgift whereby the donor reserved to himself a life-interest which disclosed aclear intention not to give possession and negatived any suggestion thatthere had been such delivery of possession but contained language whichwould have burdened the donee with a fidei commissum if there had beena valid transfer of the property by way of gift. Such a gift is bad whenexamined in the light of the proposition of law stated above. Thelanguage of the donor was clearly sufficient to create a fidei commissumif the gift was in other respects a valid gift under the Muslim law. Therewas no authority to be found in our law for the proposition that a trans-action which is bad as a gift under the Muslim law could be given effectto as a valid gift under the Roman-Dutch law. But there is authorityfor the proposition that there is nothing in the laws and customs of theMuslims of Ceylon relating to gift which- prevents a Muslim from impress-ing an otherwise valid gift with a burden in the nature of fidei commissumand that if he does the validity of the clause or clauses in the deed by whichsuch a burden is sought to be impressed must be tested and determinedin accordance with principles derived from the Roman-Dutch law.
One point which is strongly emphasized throughout the judgment ofthe Privy Council reversing our judgments is “ that it was never intendedthat the father should part with the property in or the possession of thepremises during his lifetime”. Now if I may respectfully say so, therecertainly is to be found in the deed strong indications that the fathernever intended to give anything until after his death. Having reservedto himself the fullest rights of property in and enjoyment of the premises
GARVIN S.P.J.—Sultan v. Petris.
during his lifetime he says: " after my death the same shall go to and bepossessed by the said Arisi Marikar Hadjiar Mohamado Salih Hadjiaras his property If the matter was governed by the Roman-Dutch lawthis would be an instance of a donation to take effect after the donor’sdeath which is under the rules of that system of law a good gift intervinos if accepted “ in which case there is no doubt that the stipulation isat once perfected and irrevocable, although it will have effect only afterthe promissor’s death and the thing promised will only then be trans-ferred from among the donor’s property”. Voet XXXIX. 5, 4 (deSampayo’s Translation). An instance of such a gift but not betweenMuslims is the case of Fernando v. Soysa There is no reason to doubtthat in the case of such a gift by persons subject to the Roman-Dutch lawa fidei commission might have been validly imposed on the donee. TheirLordships concluded that the father did not intend to make such a giftinter vivos as is recognized under the Muslim law as necessitating thedonee taking possession of the subject-matter during the lifetime of thedonor but that the father intended to create and did create a valid fideicommission such as is recognized under the Roman-Dutch law.
But a gift to take effect after the donor’s death is void under theMuhammadan law though it may take effect as a testamentary bequest.As a gift such an “endowment after death” is inoperative and void byreason of absence of any relinquishment by the donor or of seisin by thedonee—Jeswunt Sing-Jee TJbby Sing-Jee and Chuter-Sing-Jee Deep Sing-Jee v. Jet Sin-Jee Ubby Sing-Jee *. The attitude of the Muslim law inCeylon towards such deeds is similar; see D. C. Colombo 29,129 (supra)where it was said of a grant by way of gift of certain lands to S N “ fromand after the death of the donor ’’ that it “ could not take effectaccording to the original intent of the donor because no delivery can bemade to him at the time when the gift is to take effect. ”
The view that when a Muslim makes a deed of gift to take effect afterhis death he is doing an act which is not contemplated by the Muslim lawof gift as it obtains in Ceylon was not submitted to us, possibly for thereason that it was thought the matter was concluded by the decision inD. C. Colombo 29,129 (supra) referred to above. In that view sucha deed of gift is not a gift within the contemplation of the Muslim law.
The effect of their Lordships’ decision, as I conceive it, is that where itappears upon the construction of the deed as a whole that the intentionof the donor is not to make an immediate gift but a gift to take effectafter his death there is not such a gift as understood by the Muslim lawand the intention of the donor must, if possible, be given effect to underthe general law.
As to the contention that their Lordships’ judgment proceeds upon theprinciple that a Muslim may by a sufficient manifestation of such anintention obtain for a deed which is in form a transfer by way of gift madeby him the effect which it would be given if the Roman-Dutch law.applied, nothwithstanding that it would be bad and inoperative as suchunder the system of law to which he is subject, I can only say that as Iunderstand the judgment no such principle is laid down.
It only remains therefore to apply the ruling of their Lordships as Iconceive it to the facts of the case before us.
»(mm si n. l. ft. iu.
2 9r
GARVIN S.P.J.—Sultan t>: Petris.
Apart from a superficial similarity the two cases are clearly distinguish-able. There is upon the construction of this gift a clear intention to makean immediate gift of the premises. There is first the recital “ whereas Iam desirous of transferring and conveying the aforesaid allotments ofland and premises to my nephews M. B. Abdul Cader and M. B. Oduman,
. … as and by way of gift ”—which is followed by the words ofgrant, “I . . . . do hereby grant, convey, transfer, assign, setover and assure as and by way of gift inter vivos absolute and irrevocable?—and lastly the intention to make an immediate gift is manifested in avery special and exceptional manner in the last clause but one in whichthe donor says “ by way of vesting the legal title to the premises donatedfrom the date hereof in the donees I hereby hand them this deed and theconnected deeds”.
There is first the expression of an intention to transfer and convey “ byway of gift ”, then a grant “ as and by way of gift inter vivos ”, and lastlythe statement that the deed and the connected deeds were delivered “ byway of vesting title to the premises from the date hereof
The deed is in form a gift inter vivos to take effect immediately. It isnot a deed which discloses an intention to make a gift to take effect afterthe death of the donor and is therefore clearly distinguishable from the case-of Weerasekere v. Peiris {supra) and outside the ruling of the Privy Council.
It was urged, however, that the reservation to the donor of the full andunfettered right of residing in any of the said premises hereby gifted andof taking and enjoying the rents, profits, produce and income of all thesaid several allotments of land and premises hereby gifted without theinterference of the said donees or either of them being inconsistent withan intention to give such delivery of possession as is required by theMuslim law is indicative of an intention not to make such a gift as isrecognized by the Muslim law. This aspect has already been consideredearlier. I need only add that instances are not rare in which the primaryintention of a person is defeated by other words in a deed and that underany system of law cases are not infrequent in which an act intended tohave a definite legal effect fails by reason of attempts to make reservationsor impose restrictions and conditions. The circumstance that a personwho has so clearly manifested an intention to make an immediate gift ofproperty fails to carry out his intention by the reservation to himself ofrights which defeat his purpose is not of itself a sufficient reason for ascribingto him an intention not to make a gift under the system of law whichapplies to him or for ascribing to him an intention to invoke the principlesof a different system of law. Where the parties to a deed of gift are Mus-lims the presumption in the absence of strong indications to the contraryis that they intend to act in accordance with their own laws and customs.
It was then urged that the rights reserved to the donor did not includeevery right of possession so that it is possible for some possession to havebeen given. Even so, the possession which is necessary to complete agift under the Muslim law involves the surrender to the donee of all thedonor’s rights of possession and enjoyment-in the subject of the gift.Delivery of possession may Le constructive but it must be real in thesense that it is intended that the donee should have the full possessionmid control of the subject of the gifts so that he may enjoy the benefits
GARVIN S.P.J.—.Sultan v. Peiris.
derivable from it. Such transfer of possession is essential to the transferof ownership of the property from the donor to the donee without whichthere can be no gift.
“ The necessity for the transfer of possession is expressly insisted uponas part of the substantive law, in order that that may be effectuated,which is sought to be effectuated by a gift, viz., the transfer of the owner*ship of the property from the donor to the donee”. (Tyobji, s. 383,p. 433.) It is not merely a matter of form.
The mere delivery of the deed, assuming that to have taken place, is notconstructive delivery when the donor has clearly manifested his intentionthat it was he and not the donee who was to take all the “ rents, profits,produce and income ”.
Nor do I think the evidence in the case shows that as a fact there wassuch a transfer of possession. It is not suggested that the donee AbdulCader ever took possession of the premises or any part of them. As tothe donee Oduman he lived with his aged uncle the donor. The evidenceas to his connection with the premises and such acts as he is said to havedone are not inconsistent with the retention by the donor of the rights whichhe reserved for himself. That evidence has been fully analyzed by HisLordship the Chief Justice and I have nothing to add to what he has said.
This gift between Muslims fails for want of delivery of possession. In theabsence of a valid transfer of the premises to the donees no fidei commissumcan exist, and if the law is what I deem it to be there is no purpose indiscussing whether and if so what effect can be given to the clauses bywhich the donor sought to impose conditions and restrictions on the donees.
The further argument was addressed to us that the decision of thePrivy Council is authority for the proposition that in every case of adeed between Muslims which purports to be and is intended to be animmediate transfer of property by way of gift with a fidei commissumimposed on the donee, the Roman-Dutch law applies to the exclusion ofthe Muslim law notwithstanding that under the Muslim law whichapplies to the parties the gift may be bad for want of seisin.
I can only repeat that their Lordships appear to me to have reachedtheir decision in a different way and for different reasons.
The Muslim law is excluded not because the donor wished to excludeit but because he did not intend “ to part with the property in or thepossession of the premises” and did not therefore intend to and did notpurport to make such a gift as is understood by the Muslim law. Whathe did intend to do and what he did do was to create a fidei commissumby a donation to take effect after his death.
Such a donation not being a gift as understood by the Muslim law ofgift as it obtains in Ceylon there was nothing to prevent the donationbeing given the effect intended under the Roman-Dutch law.
This in my judgment is not such a case in that the donor intended tomake and purported to make an immediate transfer by way of gift butfailed to make an effective transfer to the donee, because he endeavouredat the same time to reserve to himself rights of possession in the subjectof the gift and did not make such a delivery of possession as is necessaryto transfer the property. .
Drieberg J.— I agree with my Lord the Chief Justice.
Akbar J.—I agree with my Lord the Chief Justice.