1913 Present: Wood Renton A.C.J. and De Sampayo A.J.

KHAN v. MARICAR.

159-D. C. Batticaloa, 3,671.

Muhammadan law-Code of 1806-Law applicable to immigrants from India professing the Muhammadan faith-Law relating to immovables-Lex loci rei sits-Donation-Acceptance-Delivery.

The Muhammadan law is based on religion, and is applicable to all followers of Islam ; it applies to Malays and to immigrants from India known as the Coast Moormen.

The Muhammadan law is applicable not only in respect of movables and personal relations, such as marriage, but also with regard to immovable property situated in Ceylon. Where an Afghan donated a land to his minor son, held that the law applicable to the donation was the Muhammadan law and not the Roman-Dutch law.

DE SAMPAYO A.J.-It may be assumed then that, the property donated in this case being situated in Ceylon, the law of Ceylon governs. But why should this be the Roman-Dutch law and not the special law applicable in Ceylon to the parties concerned ? The Muhammadan law in this respect is as much part of the local law as any other of the various systems of law prevailing in Ceylon. When a question arises as to the right to any immovable property Wherever situated in Ceylon, it may be necessary to look for the law to some special law which prevails among the particular persons concerned.

THE facts and arguments appear from the judgment.

J. Grenier, K.C., and G. Koch, for the defendant, appellant.

H. Jayewardene and Balasingham, for the plaintiff, respondent.

July 1, 1913. WOOD RENTON A.C.J.-

The plaintiff-respondent, who is a minor, claims in this action through his next friend a garden and tiled house which belonged to his father Palavan Khan, and which Palavan Khan gifted to him by deed P 1, dated November 6, 1910. The defendant, as trustee of the mosque at Puliyantivu, claims the same property by deed of gift dated March 1, 1912, from the same donor. It was admitted at the trial that Palavan Khan was an Afghan who had been long settled in Ceylon, and that his wife, the mother of the plaintiff, was a Moorish woman of Badulla. The case proceeded in the District Court on the assumption that Palavan Khan was, and that his son the plaintiff is, a Muhammadan by religion. He appears to have

retained the donation deed of 1910 in his possession, and to have also continued in possession of the property donated. On the same day on which he executed the deed of donation in favour of the mosque he revoked the earlier deed in favour of the plaintiff. In his last will, which was executed on March 15, 1912, he made independent provision for the plaintiff, and excluded from the operation of the will the property donated to the mosque. Four or five days later Palavan Khan died.

The defendant relied in support of his claim to the property on the donation deed in favour of the mosque. He contended that the earlier deed in favour of the plaintiff was invalid, inasmuch as there had been no acceptance of the donation on the minor's behalf, and argued, in the alternative, that the plaintiff could not, in any event, retain the benefits conferred on him by the will and at the same time repudiate the donation, which the will specially mentioned, in favour of the mosque. The defendant's counsel, Mr. Joseph Grenier, however, at the argument of the appeal, conceded that we are not at present concerned with the question of election, and confined his argument to the first alternative contention. The plaintiff's answer to the defendant's case in regard to that point is that Palavan Khan and his sons are Muhammadans subject to the provisions of the Muhammadan Code of 1806, that under the Muhammadan law as it exists in Ceylon no acceptance of a donation by a father in favour of his son is necessary (Affefudeen v. Periatamby 1), and further, that by the same law such a donation cannot Be revolted. Mr. Grenier, on behalf of the defendant, did not