1916 Present: Wood Renton C.J. and De Sampayo J.

CADER v. PITCHA.

383-D. C. Kurunegala, 5,447.

Muhammadan law-Donation by fattier to children-Power of revocation.

It is competent under the Muhammadan law applicable to Ceylon (Shafei law) for a father to revoke a donation -to his son without the decree of a Court of law. The right to revoke the gift is not limited by the condition that the property is wanted for the maintenance of the children.

THE facts are set out in the judgment of De Sampayo J.

H. J.C. Pereira and F. M. de Saram, for plaintiff, appellant.

Bawa, K. C, J. W. de Silva, and M. W. H. de Silva, for added defendants, respondents.

Cur. adv. vult.

October 20, 1916. WOOD RENTON C.J.-

My brother De Sampayo has fully stated the facts in this case, and there is no need for me to recapitulate them. The point for determination is whether under the Shafei law applicable to Muhammadans in this Colony it is competent for a father to revoke a donation to his son without the decree of a Court of law and without any reason for the revocation. The local Code of 1806 throws no light on the question. But with one exception, to which I will refer in a moment, all the recognized text books on Muhammadan law support an affirmative answer to it. Most of the schools of Muhammadan law assimilate gifts to alms (see Nauphal's Droit Musulman, La Propriete 1). But to this principle the Shafei law presents an exception in the case of donations by a father to a son, provided that the donee has not irrevocably. disposed of the object received (MacNaghten's Muhammadan Law,2 Amir Ali's Muhammadan Law,3 and De Tornauw Le Droit Musulman4). Vandenberg in his Minhadj At Talibin5-a treatise on the Muhammadan law as it prevailed in the Indian Archipelago-discusses the whole subject in the same sense. It results from these authorities that such a donation as we have here to deal with can be revoked by any apt words, although not by implication from subsequent dealings by the father with the subject-matter of the donation. There is no trace in any of the writers above mentioned of any requirement that the
             
1 Pages 112 et seq.                                             3 Vol. I., p. 190.
2 Pages 202 and 203.                                           4 Page  182.
                                                    5 Vol. II., pp. 193 to 195.           

donor should have recourse to a legal tribunal, or that any just cause for the revocation should be assigned, or that any other condition than that the property donated should still be at the donee's disposal  has been attached by Shafei law to the exercise of the donor's right.

The appellant's counsel drew our attention, however, to a passage in the Hedaya,1 in which the meaning of the Shafei rule is stated to be that a father may retract a gift to his son " when he wants it for the maintenance of the son," and this passage is cited by Wilson2 in the notes to section 316 of his treatise, which deals with the revocation of gifts. But it must be remembered, and Sir Roland Wilson is careful to point out,3 that such works as the Hedaya are not so much law books in the strict sense of the term as discussions on Muhammadan moral philosophy and theology. I am very far from being satisfied that the clause in the citation on which the appellant's counsel relies is anything more than an illustration of one class of cases, namely, where the subject-matter of a donation is required for the maintenance of the donee, in which the power of revocation could not rightly be withheld. The Hedaya itself,4 a few lines-above the passage in question, expressly points out that the revocability of donations by a father to a son results from the father's power over the property of his son.5

On these grounds I would dismiss this appeal with costs.

DE SAMPAYO J.-

This case raises an important question of Muhammadan law. The plaintiff is son an