Zainabu Natchia v. Usuf Mohamadu.
1936 Present: Macdonell C.J., Dalton S.P.J., Poyser and Koch JJ.ZAINABU NATCHIA v. USUF MOHAMADU.
320—D. C. Puttdlam, 4,432 & 22—D. C. Puttalam, 4,468.
Muslim law—Deed of transfer on marriage—Property transferred as and forkaikuli—Absolute transfer to husband—No trust in favour of the wife—Meaning of kaikuli.
Where a deed of transfer, reciting an intended marriage betweenMuslims and the intention of the transferor (the parent) to give kaikuli,prior to marriage, according to the Muslim religion payable to thebridegroom at an agreed sum, proceeds, as and for a transfer of this sum.to grant, sell, set over, and deliver immovable property to the bridegroom,his heirs, executors, &c.; and adds that the said property together withall the right, title, and interest, the bridegroom ard his heirs, executors,&c., shall possess and enjoy for ever,—
Held, that the transfer gave full dominium in the property to the bride-groom unaffected by any trust in favour of the bride.
Semble, in the Muslim law kaikuli is a sum of money given by theparents of the bride to the intended husband, which the husband possessesand owns but which he has to pay over to the wife, if she demands it, orto her heirs, on death.
Meerasaibu v. Meerasaibu (21 N. L. R. 221) and Pathumma v. Casshn(2 C. W. R. 263) referred to.
1 (1887) 8 S. C. C. 99.
Zainabu Natchia v. Usuf Mohamadu.
HESE were two appeals from the District Court of Puttalam referredby Akbar and Koch JJ. to a Bench of four Judges. The question
was whether a Muslim deed of transfer of property given at marriage tothe bridegroom created a trust in favour of the bride.
In the first case the parents of the bride, the plaintiff, executed onJuly 11, 1925, a deed styled as follows : “ No. 6,077—Kaikuli Transfer ”the relevant parts of which are given in the headnote. The deed wasaccepted by the bridegroom, the first defendant. Thereafter the firstdefendant mortgaged the property with the second and third defendants.The second defendant put the bond in suit, obtained decree, and with thepermission of Court purchased the land. The plaintiff now sued for adeclaration that she is entitled as beneficial owner to the property con-veyed by deed No. 6,077 and to a declaration that the deed created atrust in her favour.
In the second case the parents of the bride (the plaintiff), executed adeed in similar terms in favour of the bridegroom the first defendant.There was no acceptance but the first defendant entered into possessionof the property. Thereafter he mortgaged the property with the thirddefendant who put the bond in suit and advertised the property for sale.The plaintiff thereupon brought this action asking that she be declaredentitled to the property as beneficial owner and for a declaration that thedeed created a trust in her favour.
The learned District Judge held that the transfer was in considerationof. marriage and that although the word kaikuli was used in the deed notrust was created and that the husband was the absolute owner of theproperty.
L. A. Rajapakse (with him Ismail and B. P. Peiris), for plaintiff,appellant.—For the meaning of kaikuli see Vand. 162. It must berestored to the wife’s heirs or the wife if demanded. It constitutes a fundfor her own exclusive benefit and is a first charge on the husband’sproperty. Husband is only trustee of property for the wife. The termis incorrectly used in Pathuma v. Cassim but it was held that there wasa trust. See also Pathuma v. Idroos:. The term kaikuli is a technicalterm with a well-recognized meaning. In this case there is an expressdeclaration made by the transferee that it is held in trust. The intentionof the transferor is to be gathered by a reference to the terms. Thedocument must be read as a whole. The property is not given absolutely.The occasion for making the transfer is stated. Kaikuli is a term under-stood by both grantor and grantee. The recital in the deed is that it iskaikuli. It is accepted on the basis that it is kaikuli. Normally theoperative part governs a deed. It is only if. there is ambiguity that yourefer to the recitals. The intention was to vest the full legal estate.The trial Judge relies on Meera Saibo v. Meera Saibo'. In that case theproperty was given on account of the marriage, not necessarily as kaikuli.Also the transfer was made after the marriage. Kaikuli is given beforemarriage. The use of the words “ heirs, executors, &c.” does not exclude 3
1 21 R.L.R. 221
3 2 G. IV. R. 263.
3 31 N. L. R. 230.
MACDONELL C.J.—Zainabu Natchia v. Usuf Mohamadu.
the beneficial interest being assigned to another. (Woce v. MallardShovelton v. Shovelton*, Wright v. Wilkin3.) Where there is no expresstrust a declaration by the transferee that the property was. in trust issufficient to constitute a trust. (Gardener v. Rowe'.) There Js adeclaration made by the first defendant in his answer.
H. V. Perera (with him F. A. Tisseverasinghe and G. E. Chitty), forsecond and third respondents.—The term kaikuli is not found in the textbooks. It means a bribe. The word suggests something given as aninducement to marry. Kaikuli is for the husband’s own use. That isthe evidence of custom in the case. The reported cases have confusedkaikuli with maggar and applied the same principles to both. Maggarbecomes payable on the consummation of the marriage. The meaning ofkaikuli is irrelevant to the case. The only issue is whether the deedcreates a trust. No other trust is alleged. Sections 84 and 94 of theTrusts Ordinance do not apply to this case. The appellant relies on theuse of the word kaikuli in the recitals. It is not used in the operativepart. This gives without limitation the full legal and beneficial rights.Whatever the word kaikuli may mean in the recitals the operative partmust govern the deed.
Rajapakse, in reply.
Case No. 22—D. C. Puttalam, 4,468.
N. Nadarajah (with him E. B. Wikremanayake), for plaintiff, appellant.
H. V. Perera (with him F. A. Tisseverasinghe and Chitty), for defendant,respondent.
Cur. adv. vult.
March 11, 1936. Macdonell C.J.—
The point raised in these appeals was the same in each and way sent byAkbar and Koch JJ. to a Bench of four Judges for decision, namely,whether the deed in each case created a trust in favour of the plaintiff.The appeals raise a question as to the meaning of kaikuli among theMuslims of Ceylon.
In the first case, No. 320/33, the parents of the bride, the plaintiff,wishing to give her in marriage to a Muslim, executed on July 11, 1925,a deed headed as follows :“ No. 6,077—Kaikuli Transfer ”, which
proceeds to say : “ Know All Men by these Presents that 1 (father of thebride) of Puttalam having agreed to give my daughter (plaintiff) to (firstdefendant) bachelor as early as possible, and the kaikuli prior to marriageaccording to the rights of our Muhammadan religion payable to thebridegroom having been agreed upon by me at Rs. 1,000, as and for atransfer of this sum of Rs. 1,000 I do hereby grant, sell, set over anddeliver the property appearing below unto the said bridegroom (firstdefendant) and to his heirs, attorneys and assigns ” Then follows adescription of the property transferred, and the deed goes on “ that thesaid property and all things belonging thereto together with my right,
3 2 B. <t* S, 232.
* 2 Simon & Stewart 346.
1 (1852) 21 L. J. Ch. 355.1 32 Beavan 143.
MACDONELL C.J.—Zainabu Natchia v. Usuf Mohamadu.
title, and interest in respect of the same the bridegroom (first defendant)and his heirs, attorneys and assigns shall from date hereof possess andenjoy for ever”. There follows the usual recital that the property hasnot been encumbered and a covenant for further assurance, and thenfollows the acceptance clause, “ and I the aforementioned bridegroom(first defendant) have with full consent accepted the aforesaid propertyas for the kaikuli Rs. 1,000 which this person agreed to give me
The deed was notarially executed and the marriage took place. There-after the first defendant mortgaged the property conveyed by deedNo. 6,077 to the second and third defendants, and the second defendantput the bond in suit, obtained a decree, and, with the permission of theCourt, purchased the land at the sale consequent on the decree. Theplaintiff, the wife, now sues for a declaration that she is entitled asbeneficial owner to the property conveyed by deed No. 6,077, and to adeclaration that that deed creates a trust in favour of her, the plaintiff,and that the said land is held by the first defendant upon the said deedfor the use and benefit of the plaintiff. When this action came on fortrial issues were framed but no evidence was led, and the plaintiff’s claimwas dismissed in a judgment in which the following is an importantpassage : “ In all the cases where the wife’s claim to kaikuli has beenallowed, the kaikuli claim was money and in such cases proof was alwaysprocurable to prove that the money was ‘ in charge of ’ the bridegroom‘ in trust ’ for the bride who had the right to demand it at any time.Following the case of Meera Saibo v. Megra Saibo I would hold that thedeed No. 6,077 was a transfer to the first defendant in consideration ofmarriage and that although the word kaikuli was used in the deed notrust was constituted either express or implied …. A veryreading of the deed seems to indicate that the parties to the deed did notunderstand kaikuli to be anything other than the absolute property ofthe husband ”.
In the second case, S. C. No. 22/34—D. C. Puttalam, No. 4,468, theparents of the bride, the plaintiff, all being Muslims, intending to giveher in marriage to the first defendant, also a Muslim, executed on J^ 'uary13, 1920, the following deed, P 1, which is headed as follows : “ TransferDeed of Kaikuli, No. 4,524, Amount Rs. 2,750 ” and then proceeds to sayas follows : “ Know All Men by these Presents that as we (the parents)of Puttalam town have agreed to give our daughter (the plaintiff) inmarriage to (first defendant) as sqon as possible, we have agreed to payas kaikuli to the bridegroom (first defendant) by the said marriage,according to the rights of our Muhammadan religion, the sum of Rs. 2,750.For this sum of Rs. 2,750 we do hereby set over and assign as transferthe under-mentioned property unto the said bridegroom (first defendant),his heirs, executors, administrators and assigns ”. There follows adescription and extent of the property referred to, and it then proceeds asfollows : “ We do hereby make known that the (first defendant) his heirs,executors, administrators and assigns shall from the time of the saidmarriage possess the aforesaid property and all things belonging, con-nected, used or enjoyed thereto together with all our right, title andinterest therein, that the said property has not been encumbered or
• 1 2 O. W, R. 263.
MACDONELL C.J.—Zainabu Natchia v. Usuf Mohamadu.
alienated in any way, that it is my own and that if any dispute or irregu-larity arise regarding this we shall settle the same”. The deed wasnotarially executed. It contains, as will be seen, no acceptance clausebut it is common cause that the bridegroom went into possession inaccordance with the deed and that the marriage duly took place. There-after the bridegroom, first defendant, mortgaged the property conveyedto him by deed No. 4,524 to the third defendant for money lent to himby the third defendant, taking (it would appear) at the same time aguarantee from second defendant of his debt to the third defendant. Thethird defendant mortgagee put his bond in suit, obtained judgmentthreon and advertised the property for sale. The plaintiff wife thereuponbrought this action on February 27, 1933, asking that she might bedeclared entitled to the property as beneficial owner and for a declarationthat the deed No. 4,524, quoted from above, created a trust in favour ofher the plaintiff and that the land was held by the first defendant uponthe said deed for the use and benefit of the plaintiff. When the casecame on for trial the plaintiff called no evidence and the second defendantcalled the local Marikar who proved that, at any rate at Puttalam,kaikuli is always looked upon as the absolute property of the bridegroomand that the wife has no claim to it. That, he said, was the acknowledgedcustom at Puttalam, and he went on to say that even in cases of divorcethe kaikuli is never demanded by the bride or her parents and is neverrepaid by the husband. He adds, “ What is demanded by the wife andinsisted on by custom is that maggar which the husband has got to payto the wife. The maggar which is promised by the husband to the wifedepends on the kaikuli given to him, the maggar being always double thekaikuli. The reason is that in case the wife is discarded she kept backher maggar as a penalty …. Kaikuli is not necessary for amarriage ; maggar is essential. Without maggar there cannot be anymarriage. What I have stated above is the universal custom in Puttalam.Kaikuli is not mentioned in our religious books ; it is regulated by customonly. I have not heard of any case of kaikuli being considered propertyof the bride or held in trust for her by the bridegroom. There is no suchcustom. Wherever there is kaikuli the maggar is always double. Whenthere is no kaikuli the maggar may be anything according to the meansof the parties ”. The Marikar does not seem to have been cross-examinedon this opinion of his as to local custom. The learned Judge who hadalready decided the earlier case No. 320/33 D. C. Puttalam, No. 4,432,gave a judgment to the same purport in this case, basing himself on theMeera Saibo case in 2 C. W. R. 263; he also accepted the evidence of theMarikar quoted from above. He accordingly dismissed the plaintiff’saction.
It is from the two decisions of the same learned Judge to the sameeffect that the present appeals were brought, and it will be seen from theabove recital of the facts that the facts are substantially the same in eachcase and that the trial of the two cases only differs in that there wasevidence of local custom as to kaikuli in the second case but no suchevidence in the first one.
The argument for the appellant was this. Kaikuli is given by thebride’s parents to the bridegroom to be held by him in trust for the bride.The mortgagee in each case is affected with knowledge of the kaikuli deed
MACDONELL. C.J.—Zainabu Natchta v. Usuf Mohamadu.
through which alone the bridegroom came to be the owner of the landmortgaged, and as each deed describes itself as a kaikuli deed the mort-gagee took a bond with full knowledge that he was taking it over kaikuliproperty, that is property impressed with a trust, and that therefore hemust hold that property in trust for the plaintiff, the wife. Thisargument necessitates an examination of the authorities on kaikuli.
It is a legal conception unknown to the ordinary Muhammadan lawand no mention of it is to be found in such recognized authorities as AmeerAli or Tyabji, and it seems to be a feature of Muslim marriages knownonly in Ceylon. Kaikuli, we are told, is a Tamil word and in Winslow’sTamil Dictionary it is translated (1) “ a bribe ”, and (2) “ among Moormenmoney from the father-in-law and mother-in-law to the bridegroomIt is therefore a word which doubtless has a local significance in Ceylon(probably on the Malabar Coast also), but is not a term of art beyondwhat decided cases have said to be its meaning. It is referred to in acase in Marshall but examination of that case shows that it really decidednothing on the point. The case which does go into it at greatest lengthis one reported in Vanderstraaten at page 162, D. C. Colombo, 3107,decided in 1871. The report begins by quoting from the judgment inthe Court below as follows : “ The point reserved for consideration waswhether after the dissolution of a Muhammadan marriage by the death ofthe wife, the surviving husband is bound to account to her heirs formoney which formed the ‘ Kaicooly ’ gifted by her father as dower atthe time of the marriage …. On the marriage of Muhammadansit is usual for the bride’s father to contribute or to stipulate for paymentcf a certain sum which is called the ‘ Kaicooly ’, while the bridegroomcontributes or stipulates for a certain other sum called the ‘Magger’.The aggregate amount, although it remains in the hands of the husbandand under his control and management, only does so, until it is demandedfrom him by the wife, and it forms a settlement intended exclusively forher sole personal benefit, independent of her husband and children andall others. It is payable to her heirs at her death if she has not previouslyreceived it, and forms a first charge on the husband’s property. It is alsopayable to her on divorce, but not only so, it has been decided yesterdayafter careful examination of the authorities it may be demanded by her
at any time, even during the subsistence of the marriage
It follows from all this that although the dower may be permitted toremain in the husband’s custody during the pleasure of the wife, it is onlyas a temporary depositee or trustee of her private and separate property,and that if she has not demanded or received it from him, or expresslydisposed or authorized the disposal of it during her life, it passes to herheirs, and even seems to form a preferent debt on the husband’s propertyunless she has without case deserted him ”. The report then simplysays that in appeal this judgment was affirmed. It is said to have beena judgment of the whole Court which at that time consisted of threeJudges only and it is perfectly clear that by “ kaikuli” was meant a sumof money. The order of the Court below was that a certain sum was tobe appropriated to the deceased wife’s heirs as kaikuli and another sumof money as maggar. There is nothing in the report suggesting thatkaikuli could be lahd.
MACDONELL C.J.—Zainabu Natchia v. Usuf Mohamadu.
Another case cited was that reported in 1877 (Ramanathan 65), wherethe Supreme Court held that the effect of the case in Vanderstraaten wasthat it only establishes the right of a Muhammadan wife to preference inrespect of her maggar and kaikuly upon the unencumbered effects of herhusband.
The next case to be mentioned is that of Meera Saibo v. Meera Saibo(supra) decided in 1916. This was a case where the surviving husbandclaimed as against the intestate heirs, i.e., the parents, a halfshare of certainlands given by the parents as dowry after the marriage to the wife whobad died intestate and childless. The material parts of the dowry deedare as follows : “ We (the defendants) on account of the marriage thathas taken place between (plaintiff) and (the wife) and for the sum ofRs. 750 kaikuli or dowry money agreed to be given to (the plaintiffhusband) and for dowry, do hereby give, grant and set over to them boththe property herein described as dowry (The two lands were thendescribed, and the deed proceeds) “ Out of the property thus describedthe first property for the kaikuli money of the plaintiff husband and thesecond property for their dowry are given as dowry and so they shall thisday take charge of them and they and their heirs, executors and adminis-trators shall have the full right for ever freely to possess them.” Thejudgment of the Court was delivered by de Sampayo J. who points outthat the deed was drawn by a Tamil Notary and that he did not, for aNotary, quite appreciate the significance of the words he was using. Hegoes on to say, “ The word kaikuli has a special meaning in Muhammadanlaw but neither the Notary nor the parties were aware of it, and it certainlyseems to me that the word has been used in a sense quite different fromits ordinary signification. Now kaikuli, properly speaking, is a marriagegift, made to the bride by her parents and is handed to and remains in thecharge of the husband during the subsistence of the marriage and may beclaimed from him by the wife or her heirs under the same circumstancesas maggar which is contributed by the husband himself ”. He refers tothe case in Vanderstraaten at page 162 and then proceeds, “Kaikuliundoubtedly is a gift to the husband and * forms a settlement intendedexclusively for her own personal benefit independent of her children andall others’ (Vanderstraaten 162). The husband has only the control andmanagement of the subject of the gift until it is demanded by the wife orher heirs ”. He then proceeds to say that the deed under discussionseems to show ignorance of the proper meaning of tbe terms used. Hecontinues, “ I think that the only reasonable conclusion to draw from thelanguage used is that a gift to the husband himself had been promisedat the marriage. This kind of marriage gift or ‘ dowry ’ to the husbandon marriage is common to most communities in Ceylon. It is the pricepaid to the man for marrying the donor’s daughter. That this is so inthe present instance is made more clear by what follows in the deed itself,for it distinguishes the ‘ dowry ’ meant for both husband and wife fromthe kaikuli meant for the husband alone, inasmuch as it expressly statesthat the first land is ‘ for the kaikuli money of the husband ’ and the secondland for the ‘ dowry ’ of both …. Moreover, as the learned DistrictJudge observes, the reference to ‘ their heirs, executors and administrators’negatives the idea that the gift, so far as the husband was concerned, was
MACDONELL C.J.—Zoinabu Natchia v. Vsu} Mohamadu.
an impersonal one, if the point raised by the defendants may be so put,or was only for a temporary purpose. I accordingly think that, thoughthe word kaikuli was used in the deed, it is so used incorrectly, and thatthe plaintiff was in fact intended to be an actual beneficiary to the extentof half the property gifted by the deceased The learned Judge thengoes on to discuss another point that had been raised, namely, could agift to two persons be under any circumstances construed as a grant toone of them, and decides that the provisions of Ordinance No. 7 of 1840were decisive that it could not. He then goes on to ask, must the husbandbe considered a trustee of the half interest in the land which he claimedin the case ? He proceeds again, “ We are of course familiar withresulting trusts which arise from circumstances of fraud and which in aproper case will be recognized by the Court, but this is not a case of thatkind. The rule of Muhammadan law stated in the text books and in thejudicial decisions, to the effect that kaikuli may be re-claimed from thehusband, is not of any assistance in the present case. Kaikuli, as weknow, generally consists of money. The very definition of the termgiven in Vanderstraaten (at page 162) describes it as a sum of money andI believe that in the kadutams or marriage agreements in vogue amongthe local Muhammadans the amount is expressed in the denominationpeculiar to them as so many ‘ kalanjees of gold ’. When kaikuli is inthe shape of money, the matter of reclaiming it from the husband involvesno legal difficulty. But when it assumes the form of immovable propertyconveyed to the husband on a duly executed notarial instrument, the lawappears to me to step in and to present a different aspect”. He laterrefers to the case of Packeer Bawa v. Hassen Lebbewhich he says, “ is astill stronger case because there the lands were given ‘in dower’ on theoccasion of the marriage itself. The Court said that the word ‘ dowry ’was not conclusive as to the character of the gift, and Hutchinson C.J.observed, ‘ it is styled a ‘ dowry deed ’, but ‘ dowry ’ is not always amongMuhammadans any more than among Christians given either to thewife alone or to the husband alone or to them jointly. There is no lawto prevent the donor from making provision in a dowry deed for thehusband and children as well as for the wife ”. After this quotationfrom the case at 4 A. C. R. 61, de Sampayo J. proceeds, “ These remarksapply with great force to the present case, for notwithstanding the use ofthe words ‘ kaikuli ’ and ‘ dowry ’ in the deed under consideration it isvery plain that the donor intended to make and did in fact make provisionfor the husband as well as for the wife. The question will always be oneof construction of a particular deed, and I should like to add that, in viewof the Ordinance 7 of 1840, which would prevent a person from claimingthe whole land where the deed in fact gives him only a share and fromclaiming anything where nothing is given to him, the rule of constructionshould be stringent and the supposed intention of the parties should notbe made to over-ride the ordinary effect of the deed ”.
Two of the other cases cited to us may be mentioned, firstly, Pathummav. Cassim *. This was again the judgment of de Sampayo J., where theplaintiff wife sued the defendant husband for the sum of Rs. 150 asinaggar and for a sum of Rs. 150 given by her parents to the defendant■ * 4 A. C. R. 61.*21 R- 221.
MACDONELL C.J.—Zainabu Natchia v. Usuf Mohamadu.
husband for kaikuli. The learned Judge says, “ Dowry or kaikuli is heldin trust by the husband for the wife and cannot be withheld on theground that it has been spent for the sustenance of the marriage". Itmay be that the phrase “ dowry or kaikuli ” is lacking in precision inthat the two terms are not synonymous, kaikuli being rather a species ofthe genus dowry with legal incidents peculiar to itself, but the passagequoted, if applied to kaikuli, is in accordance with the earlier authorities.Another case cited was Pathumma v. Idroos', where my brother Daltonrefers to the case in 21 N. L. R. 221 and to the possible confusion in thewords used in that judgment, and then proceeds, “ It is clear that maggaris a payment by the husband to the wife on the marriage, which he callsdowry money and which remains in the husband’s hands, while thekaikuli, which he calls dower, is a payment by the parents of the brideto the husband This, he says, is held in trust by the husband forthe wife, both maggar and kaikuli being recoverable by the wife in theeventualities set out.
The gist of these cases seems to be this. Kaikuli is a sum of moneygiven by the parents of the bride to the husband, or intended husband,which the husband possesses and owns but which he has to pay over tothe wife, if she demands it, or to her heirs, if she is dead. He is, if wewish to put it so, a trustee of the kaikuli for his wife or for her. heirs.
Now it is to be noticed that kaikuli seems to mean money and notanything else. The original way of expressing it seems to have been togive as and for kaikuli so many “ kalanjees of gold ”, some obsoletecurrency but clearly a payment of money. I do not think any case wascited to us which showed that if land was given to the bridegroom asrepresenting kaikuli, that land could be followed into the hands of a thirdparty if the husband alienated it. But it will be objected, decided caseshave established that the husband holding this kaikuli is trustee for hiswife or her heirs, and that in the present case the mortgagee and anypurchaser on a mortgage decree, had full knowledge of the fact that theproperty mortgaged or purchased was a kaikuli property and thereforesubject to a trust. The mortgagee or purchaser would take then withfull knowledge of the trust and could not in conscience be allowed to holdit as against the wife or her heirs cestuique trust.
This then brings us to the question as to whether the deeds in thesecases or either of them do constitute a trust. In case S. C. No. 320/33—D. C. Puttalam, No. 4,432, the deed P. 1. recites an intending marriageand the intention to give “ the kaikuli prior to marriage, according to ourMuhammadan religion, payable to the bridegroom agreed upon by me atRs. 1,000 the recital seems clear enough. The deed goes on, “ As andfor a transfer of this sum of Rs. 1,000, I do hereby grant, sell, set over,and deliver the property appearing below unto the said (bridegroom) andto his heirs, attorneys and assigns ”, and the deed then describes theproperty referred to and adds, “ that the said property and all thingsbelonging thereto together with my right, title and interest in respect ofthe same, the bridegroom and his heirs, attorneys and assigns shall fromdate hereof possess and enjoy for ever ” ; a species of repetition of thehabendum in rather fuller language but agreeing entirely with the first
* 31 N. L. R. 230.
MACDONELL C.J.—Zainabu Natchia v. Usuf Mohamadu.
and earlier habendum. This is the operative part and again it seemsperfectly clear. It is a transfer complete and unqualified of the fulldominium of the property described later in the deed. If the recitalsshow an intention to create a trust (let that be conceded), and the opera-tive part is a clear and unqualified transfer of the dominium, and itcan hardly be disputed that it is, then it is necessary to apply the wellunderstood rules on this point ; per Lord Esher M.R., in Ex parteDawes “ Now there are three rules applicable to the constructionof such a question. If the recitals are clear and the operative part isambiguous, the recitals govern the construction. If the recitals areambiguous and the operative part is clear, the operative part mustprevail. If both the recitals and the operative part are clear but theyare inconsistent with each other( the operative part is to be preferred ”.Now conceding that the recitals do clearly show the intention to createa trust, then since the operative part equally clearly confers an unqualifieddominium, they are, in the words of the judgment just cited, inconsistentwith each other and the operative part must prevail.
In the other case, S. C. No. 22/34 D. C. Puttalam, No. 4,463, the deedP. 1. therein contains a recital of an agreement to give a daughter inmarriage and a further agreement “ to pay as kaikuli to the bridegroom…. by the said marriage, according to the rights of our Muham-
madan religion, the sum of Rs. 2,750 ”—again the recital is clear. Thenfollows the operative part, “ For this sum of Rs. 2,750 we do hereby setover and assign as transfer the under-mentioned property unto the saidbridegroom, his heirs, executors, administrators and assigns ”, and, asin the other deed, so this one, proceeds after describing the propertyto make a species of second habendum, as follows, “We do hereby makeknown that the said bridegroom, his heirs, executors, administrators, andassigns from the time of the said marriage possess the aforesaid propertyand all things belonging, connected, used, or enjoyed thereto, togetherwith all our right, title, and interest therein ”. The two habendums, ifone can call them so, agree entirely, though, as in the former deed, perhapsthe second habendum may be considered as emphasizing the rights whichthe bridegroom took under the deed.
I doubt it can be said that in either of these deeds the operative part isin the least degree ambiguous, and if that is so, the operative part mustprevail, since in each it is inconsistent with the recital. In each of thetwo cases, then, the bridegroom took an unqualified dominium in theimmovable property conveyed, and the persons who dealt with him forthat property—mortgagee or purchaser under the mortgage decree—didso unaffected by any trust.
Suppose, however, it be argued that in each of these deeds the operativepart is not unambiguous, since each deed after reciting the intention togive or pay a sum of money as kaikuli, goes on to say, that in S. C.No. 320/33, “ as and for a transfer of this sum of Rs. 1,000 I do herebygrant ” and that in S. C. No. 22/34, “ for this sum of Rs. 2,750 we do herebyset over and assign ”, and that each deed by the phrases “ for a transferof this sum ” “ for this sum ”, incorporates into its operative part thenotion of kaikuli—stamping the land granted with the character of
117 Q. B. D. at p. 286.
MACDONELL C.J.—Zainabu Natchia v. Usuf Mohamadu.
kaikuli if one may so put it—I would answer that I doubt you can readinto the words “ for this sum ” any such meaning so as to make theoperative part ambiguous. Each deed promises the bridegroom a sumof money as kaikuli, which sum of money if given in money would (it maybe conceded) be impressed with a trust, and then each deed goes on togive the bridegroom not a sum of money but a piece of land in the fullestpossible dominium ; the grant of full dominium in the operative partcontradicts any notion of trust that there may be in the recital. Ineffect, each deed seems to say, we promise a sum of money under a trust(kaikuli) but we actually give a piece of land out and out unfettered by atrust. The words “ as and for a transfer of this sum ”, “ for this sum ”are best interpreted as in the nature of a copula, connecting words linkinggrammatically the recital which has gone before to the operative partthat follows ; I cannot see that they qualify that operative part so as tomake it ambiguous. If those words are simply, as I read them to be,a grammatical connection, then they do not qualify or render ambiguousthe operative part which in each deed says in as plain language as can bewished that the donee is to have full dominium of the land, and, as if thatwere not enough, proceeds in each deed to repeat that grant in what Ihave called a species of second habendum.
For the appellants it was pressed upon us that “ where portions of thedeed are inconsistent, we ought to give effect to that part which carriesout the intention of the parties ”—an argument which seems to beg thewhole question. Certain cases were however cited to us. One of thesewas Walker v. Giles The facts there were that certain shareholders ina building society had paid up a portion of the calls on their shares andas security for the balance they conveyed certain lands of theirs totrustees, upon trust to permit the shareholders so conveying to receivethe rents until default in payment of their contributions, and with powerto the trustees to appoint a collector of the rents if the shareholders didmake default in their contributions, also a power of sale in that event.But the deed also went on to set out an agreement by which the share-holders agreed to become tenants of the trustees of the lands conveyedunder a named yearly rental. In effect, the deed contained two operativeclauses at variance with each other, and the Court before which it camefor interpretation refused to give effect to the second operative part, theagreement to become tenants of the trustees, as inconsistent with thegeneral scope of the deed—really, as being inconsistent with the earlieroperative part. Walker v. Giles (supra) does not seem to me to support theargument put to us. Another case cited to us was Vasonji Morarji v.Chanda Bibi‘, in which the Privy Council laid stress on the necessity of“ putting a liberal construction upon deeds executed by natives of India ”.In that case, the recitals in the deed were as clear as possible to the effectthat there were debts and that the only way to discharge them was forthe widow to sell a portion of the property of her deceased husband.The operative part, it was argued, only conveyed the widow’s life interestand not the dominium but the Privy Council held—see page 379—thatthere were passages in the operative part which could be construed asreferring to a conveyance of the full dominium and not of the widows’ life' 6 C.B. 662 ; 136 B. if. 1407.* 37 Allahabad 369.
Kuluth v. Mahamadu.
interest merely. As interpreted by the Privy Council the deed was onewhere the recitals prevailed because they were clear while the operativepart was not clear. I do not think this case helps the appellants.
It will be remembered that in the second of the two cases S. C. No. 22/34—D. C. Puttalam, No. 4,468, expert evidence was taken to the effect thataccording to the local custom of Puttalam, and apparently of the neigh-bourhood also, kaikuli is looked upon as the natural property of thehusband, and the wife has no claim thereto. Only one witness deposedto this. It is perfectly true he was not cross-examined for the plaintiffbut if a decision was to be based on his evidence it might have been aswell that the Court asked him questions and also that the Court shouldhave insisted on further evidence being called. It is not necessary, as itseems to me, for the purpose of the appeal in S. C. No. 22/34, to decide onthe effect of this evidence. I think the appeal in which the evidence wasgiven, as also the other one, can be determined on other grounds, namely,those given above. For these reasons I am of opinion that these appealsmust be dismissed with costs.
Dalton S.P.J.—I agree.
Poyser J.—I agree.
Koch J.—I agree.
ZAINABU NATCHIA v. USUF MOHAMADU