MUZANNA AND OTHERS

Vs.

KADIJA BEEBI AND OTHERS

COURT OF APPEAL
NAWAZ, J.
CA/1190/2000/F
DC GALLE 11012/P

Acceptance of gift under Muslim Law-Kadutham-Partition-Evidence Ordinance, section 90-Prevention of Frauds Ordinance, section 2

At the trial, the plaintiff relied on a dowry deed under Muslim Law known as Kadutham in olden times, which required no notarial attestation for its validity. On appeal, the validity of the document was challenged on the basis that the Kadutham was not signed and accepted by the donee.

Held:

1. Under Muslim Law, acceptance by the donee, whether express or implied, is a fundamental requirement for a gift to be valid.

2. The word "assigned" appearing just after the word "signed" opposite the name of the bridegroom on the Kadutham could be considered as an acceptance of the gift on behalf of his bride, having regard to the fact that a woman of Islamic Faith in the 19th Century would have hardly ventured out to sign a Kadutham in front of men on the day of her betrothal (Nikah).

Cases referred to:

1. Kulu Beg Afzal Beg v. Guizar Beg Lal Beg AIR 1946 NAG 357

APPEAL from the Judgment of the District Court of Galle.

Sandamal Rajapakshe with Janaka Ratnayake for the Defendant-Appellants.

Dr. Sunil Coorey with Sudharshani Coorey and A.W. Diana Stephnie Rodrigo for the Substituted Plaintiff-Respondents and 3rd, 4th and 8A Defendant-Respondents.

cur. adv. vult.

July 30, 2019

NAWAZ,J.

The issue that arises in this appeal is whether there is evidence of acceptance of a deed of gift executed as far back as the 19th century and subsequent possession on the part of the donee. This became the bone of contention because it is through the deed of gift that the Plaintiff-Respondent in this partition action derived title and the Appellants in the case contend that their devolution prevails over as a result of the invalidity of the deed of gift. Admittedly Muslim Law applies in regard to the deed of gift and this Issue raised for the first time in appeal remains to be disposed of by reference to Muslim Law.

Let me first deal with the facts in the case which pertain to the land located in Gintota, Galle. The facts are so intricate that they have to be understood having regard to the pleadings and pedigrees that the parties filed. Though the facts assume importance and I would set them down, the appeal was argued by Mr. Sandamal Rajapakse the learned Counsel for the 6th and 7th Defendant-Appellants on the single point- Is the Muslim dowry deed which was known as Kaduttham in olden times and which was produced in the case, valid in Muslim Law?

Factual Matrix

The Plaintiff-Respondent (hereinafter sometimes referred to as "the Plaintiff") instituted this action to partition a land called "Lot A of Sellamarrikkar Thottam" which is in extent of 1 Rood and 30 Perches. The Plaintiff pleaded the following pedigree- one-half share of the land was owned at one time by 3 persons namely Alia Marrikkar Mohamed Thahir, Alia Marrikkar Mohamed and Alia Marrikkar Ayesha Umma. These 3 persons transferred the one-half share of the land to 2 persons namely, Abdul Rahuman Mohamed and Abdul Rahuman Ahamed. Abdul Rahuman Ahamed transferred his 1/4th share to Abdul Rahuman Mohamed. Thus, Abdul Rahuman Mohamed became the owner of one-half share of the land to be partitioned. Later by a deed of gift, Abdul Rahuman Mohamed gifted the same to his daughter who was the Plaintiff in this case namely Mohamed Kadija Beebi.

A commission was issued to one Dayananda Weerasekara Licensed Surveyor who depicted the said land in Plan No. 2906 dated 27th, 28th and 30th of October 1990. The corpus was depicted as A1, A2, A3 and A4 in Plan No. 2906.

The 3rd, 4th and 8th Defendants filed a joint statement of claim and pleaded the following:

They admitted the fact that the land depicted as A1, A2, A3 and A4 in Plan No. 2906 is the land to be partitioned in the action. They also stated that at