196-NLR-NLR-V-47-UTHUMALEVAI-et-al-Appellants-and-AVVA-UMMA-Respondent.pdf
Uthumalevai v. Avva Umrrta.
591
1946Present: Nagaiingam A.J.UTHUMALEVAI el al., Appellants, and AV VA UMMA, Respondent.221—C. It. Kalmunai, 279.Muslim Law—Prescription—Donation—Minor—-Oral gift of immovableproperty by Muslim father to his minor child—Possession of propertyby father is possession on behalf of donee.
Where a Muslim father donates immovable property to his minorchild, though not effectually by a notarial deed, possession of theproperty by the father is deemed to be possession by the minor.
1 (1897) 3 N. L. R. 5.1 (1913) 16 N. L. R. 315.
£62
NAGALINGAM A.J.—TJthumalevai v. Awa Umma.
A
PPEAL from a judgment of the Commissioner of Requests,K&lmunai.
G. E. S. Perera, for the defendants, appellants.
C. Renganathan, for the plaintiff, respondent.
Cur. adv. wilt.
November 27, 1946. Naoaunqam A.J.—
The plaintiff instituted this action for a declaration of title to 6/11share of an allotment of land described in the schedtde to the plaint.Admittedly the land belonged to one Meera Lebbe Saibu Lebbe. Hedied leaving two sons and seven daughters. Two of the sons and two ofthe daughters conveyed their interests in the land in dispute to theplaintiff who is the wife of one of the sons, and the plaintiff on this basisprefers her claim. Her claim is resisted by the 2nd defendent who isalso a daughter of Meera Lebbe Saibu Lebbe on the footing that the landin question had been donated to her by her father and that she had alsoacquired title by prescription. The 1st defendant is the husband of the2nd defendant. The 2nd defendant has been unable to produce the deedof gift in her favour although she stated in her evidence that to herknowledge a deed was executed by her father in her favour and that thedeed was in existence at the date of her father’s death and that it hadbeen taken possession of by the plaintiff’s husband who was her elderbrother and that he had not handed it over to her as a result of someill-feeling between the parties. She further states that although attemptshad been made to trace the deed she had been unsuccessful in her attempts.The learned Commissioner properly holds that there is no proof thatthe land was gifted to her. The 2nd defendant, however, gave testimony—and her testimony has been accepted on this point by the learnedCommissioner and has not been challenged in appeal—that the fatherhad dowried lands and residing gardens to all his daughters. Thelearned Commissioner further finds that Saibu Lebbe “ had really setapart the land in dispute for the 2nd defendant The foundation forthis finding is furnished by deed D 1 of 8th October, 1930, by whichSaibu Lebbe gifted a portion of land immediately to the north of theland in dispute to another of his daughters, namely, one Mariankandu.In that deed of gift the donor in describing the land gives the boundaryon the south as “ the share of garden granted to Kulanthaiummah ”who is the 2nd defendant. It would appear to have been contendedbefore the learned Commissioner that this description at any rate furnishesa 'Starting point for prescription as the description of the boundaryclearly indicates that he had prior to the date of that gift granted theland in dispute to the 2nd defendant. The learned Commissioner inregard to this aspect of the matter holds that as the father was living onthe land in dispute along with the 2nd defendant who was a minor at thedate of the deed of gift to Mariankandu and therefore at the date of thegift to her as well, the 2nd defendant cannot count the period ofpossession by the father till his death which took place in 1937. The
NAGAX.INGAM A.J.—Ulhumalevai v. Awa Urnma.
563
learned Commissioner, however, finds that from the date of the 2nddefendant’s marriage which took place about a year after her father’sdeath she was exclusively and adversely possessing the land in disputeas her property. This view of the learned Commissioner is contested.
The parties are admittedly Muslims and the question is whether the2nd defendant can claim the benefit of the father’s possession after thedate on which there is proof of signification by him of his having grantedthe land to the 2nd defendant. The 2nd defendant having been a minorprior to 1930, the date of the deed D 1, and there being no suggestionthat either the 2nd defendant or anyone on her behalf made a purchaseof the land in question from the father, the father’s grant must needshave been a gift. Strictly speaking, under Muslim Law no deed ofconveyance as known to us is necessary to make a donation even of readproperty, but in Ceylon even Muslims are bound by the Prevention ofFrauds Ordinance which requires that a conveyance of immovableproperty should be notarially executed. But it does not follow as wasargued that before prescription can commence it should be proved thata valid deed of conveyance was in fact executed. It is sufficient if it isshown that even if there was nothing more than an oral gift the doneeentered upon possession of the land gifted and had adverse and exclusiveuser for the prescriptive period.
It is dear law that where a Muslim father donates his property to hisminor child, no transmutation of possession is necessary, and the possessionby the father would be regarded as possession by him on behalf of thedonee. Tyabji (2nd edition, section 400) lays down the propositionthus :—
“ Where the father or grandfather (or some other person entitled tobe the guardian of the property) of a minor or person of unsound mindhaving a real and bona fide intention to make a gift makes a declarationof gift in favour of the said minor or person of unsound mind and thesubject of the said gift is (at the time of the declaration) in thepossession of the said father or grandfather (or other guardian) or ofsome person on his behalf, the gift is complete without any transferof the possession of the subject of the gift; the declaration of gifthaving in law the effect of transforming the possession of the donoron his own behalf into possession on behalf of the donee as the guardianof the property of the donee.”
Ameer Ali (4th edition, page 123) states the law as follows :—
The gift is completed by the contract and it makes no differencewhether the subject of the gift is in the hands of the father or in thatof a depositary (on behalf of the father). When a father makes agift of something to his infant son, the infant by virtue of the gift becomesproprietor of the same provided the thing given be at the time in thepossession of the father or of any person who stands in the position oftrustee for the father because the possession of the father is tantamountto the possession of the infant by virtue of the gift and the possessionof the trustee is equivalent to that of the father.
£64
Arnolis Sing ho v. Mary Nona.
This principle has been consistently followed in our Courts: Affefudeenv. Periatamby 1; Abdul Rahim v. Hamidu Lebbe et al* ; Razeeka et al. v.Mohamed Sathuck 3.
Once, therefore, it is established that the father had donated theproperty to the minor, though not effectually by a notarial deed, it mustnecessarily follow from the authorities cited that possession by the fathermust be deemed to be possession of the infant, and if this be so, the infantor minor is entitled to fall back upon the period of possession by thefather during her minority. Applying these principles to the facts ofthe present case the possession by the father from 1930 to 1937 must beregarded as possession by the 2nd defendant, and the period of thatpossession can legitimately be added to the period of subsequent possessionby her after her father’s death. The total of this period is certainlyover ten years and would enable the 2nd defendant to acquire title byprescription. I therefore hold that the 2nd defendant has acquired atitle by prescription to the land in dispute.
I set aside the judgment of the learned Commissioner and enter decreedismissing plaintiff’s action with costs both in this Court and the Courtbelow.
Appeal aUoioed.