099-NLR-NLR-V-16-UMMAH-v.-PATHUMMA-et-al.pdf
( 378 )
1918.
Present: Wood Renton A.C.J. and De Sampayo A.J.
UMMAH v. PATHUMMA et el.
67—D. C. Batticaloa, 677.
Muhammadan law—Collation.
The principle of collation cannot be grafted into the Muhamma-dan law of succession.
/"jpHE facts appear from, the judgments.
Balasingham, for the defendants, appellants.—The intestate diedbefore he could have executed a donation deed in favour of theappellants. He had executed donation deeds in favour of the otherheirs. The respondents should either leave to the appellants theremaining property, or they must bring into hotch potch all the pro-perties they had received by way of donation. [Bartholomeusz.—The parties are Muhammadans.] There is nothing in the recordto show that the parties are Muhammadans. Even if they areMuhammadanB, there is nothing in the Muhammadan law whichexpressly excludes the principle of collation.
It has been held that a casus omissus in any of the special laws isgoverned by the Roman-Dutch law. [De Sampayo A.J.—OrdinanceNo. 15 of 1876 specially excludes Muhammadans from the operationof its provisions.] The appellants do not rely on that Ordinance.They rely on the Roman-Dutch law.
The fact that this principle of the common law has been codifiedin the Ordinance is not a ground to deny the principle to the Muham-madans if they are otherwise entited to the benefit of it.
Tamils of Jaffna, have been excluded from the operation of theOrdinance, and yet it has been held that in the case of a casusomissus in the Tesawalamai the general law of the country mightbe applied. ' Puthatampy v. Mailvakanam.2
[De Sampayo A.J.—The gifts were given, for services rendered, andcould not therefore be collated even under the RomanrDutch law.]
i (1897) 1 Ch. 196.2 (1897) 3 N. L. B. 42.
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It was conceded in the lower Court that the donation^ were executedior dividing the estate between the heirs. That is the evidence inthe case, and there is no evidence the other way.
Counsel cited Grotius 2, 11, 10; Van der Linden lt 10, 3.
1913.
Ummah «.Pethumme
Bartholomeuez, for the respondents, not called upon.
Cur. adv. vult.
June 20, 1918. Wood Benton A.C.J.—
The appellants are the daughter and the son-in-law respectivelyof Meera Lebbe Marikar, who died intestate in March, 1910. Therespondents are respectively the widow and another son and•daughter of the intestate. Before his death Meera Lebbe Marikardonated certain properties to the respondents. One of thesedonations was executed in 1908, and the other in 1909. It wouldseem that the intestate had intended to make a donation also infavour of his daughter, the first defendant-appellant, and that hegave instructions to a notary to prepare the deed of donation, butthat he ultimately declined to complete the transaction, as herhusband, the second defendant-appellant, would not pay him a sumof Bs. 100 which he demanded. The contemplated deed of donationin the appellants’ favour was in fact never executed. The appellantsclaim the land which the intestate had intended to give to hisdaughter as their separate property, and if they cannot succeed onthis point, contend that the respondents should be compelled to bringthe properties comprised in their deeds into collation. The DistrictJudge has over-ruled both contentions, and I think that he has doneso rightly.
The appellants' counsel did not maintain before us in argumentthe contention that his clients could have any claim to the propertywhich is dealt with in the abortive deed of donation, but he challengedthe judgment under appeal on the point as to collation. It is clearfrom the record, although there is no affirmative evidence on thesubject, that both the appellants and the respondents are Moors,and are, therefore, subject to the Muhammadan Code of 1806.That Code contains no provision for collation, and no such principlecan be grafted into the Muhammadan law of succession, proceedingas it does on the principle of inequality of shares as between a widowand sons and daughters of a deceased intestate, whereas the verybasis of the law of collation is equality of distribution.
The appeal, in my opinion, must be dismissed with costs.
De Sampayo A J.—
Collation is part of the Roman-Dutch law of succession to* theestate of a deceased person; and as the Muhammadans in Ceylonhave a special law of inheritance, I do not think that it is allowableto annex to the law governing Muhammadans an incident likecollation which is peculiar to the Roman-Dutch law, whose whole
( 880 )
1M8.
De SamvaxoA.J.
Vmmah «.Pathumma
fabric and spirit in respect of marriage and inheritance are soalien to the Muhammadan law. It is true that in such caseB asPuthatampy v, Mailvakanam 1 and Ibrahim, Sayibu v. Muhamadu *resort was had to the common law of Ceylon for the purpose ofsupplying omissions in special laws governing particular com-munities. But in my view it is not in every case of silence that thecommon law would be thus applied, but only where the Court isnecessarily obliged to discover and apply some law to a new situationwhich would otherwise be l.eft undetermined. In this case there isno such necessity for finding a way out of any insoluble problem.The Court is not bound to discover a law merely for the purpose ofgiving to the appellant a larger share of property than the estateleft by the deceased at his death admits of. Moreover, the lawregarding collation is now to be found in section 39 of the OrdinanceNo. 15 of 1876, which expressly excludes Muhammadans from itsoperation. The appellant, therefore, is obliged to fall back on theBoman-Dutch law pure and simple. Can this be allowed? To doso would be directly to set aside the expressed intention of theLegislature. There are also other reasons, even if the Boman-Dutchlaw applied, why the appellant cannot succeed. One of the landswhich she seeks to have brought into collation is a land gifted asdowry to the intestate’s granddaughter, Kasinavallebbe KalendarUmma, daughter of Fattumah, the third respondent to this appeal.The granddaughter is not an heir of the deceased and doeB not claimany distributive share in his estate, and the land gifted to hercannot under any circumstance be the subject of collation. As tothe gifts given to the widow, the first respondent, and to the son,the second respondent, they are not pure gifts, but come under thedescription of what Boman-Dutch writers call munus as distin-guished from donum. The deed in favour of the widow especiallyrecites that the gift is given in consideration of her having attendedhim and looked after him, supplying him with food an'f clothes andmedicine, and also in consideration of magar due to her from thedeceased, and the deed to the son also recites similar servicesrendered, and adds that the gift is given in consideration of suchservices and on condition that the donee should defray the expensesof the funeral of the donor at his death and perform certain specifiedreligious ceremonies. These gifts are therefore remuneratory gifts,which Voet (39, 5, 1) says are not gifts properly so called. Suchgifts are not liable to collation. (Voet 37, 6, 13; Maasdorp’s Insti-tutes, vol. I., p. 154.) Again, the gifts in favour of the first andBecond respondents are simple donations, and not donations proptercausas, and as such are not subject to collation (Cooray v. Perera 3).
The appeal fails in every respect, and 1 agree that it should bedismissed with costs.
Appeal dismissed.
* (1898) 9 N. L. B. 116.>{ S.C. 113.
> (1897) 8 N.L. R. 49.