Present : De Sampayo J. and Schneider A.J.

MOHAMADU v. MARIKAR.

72-D. C. Matara, 8,300.

Muhammadan law-Donations-Delivery of -possession may be actual or constructive-Custom not to give possession to a daughter until four of five years after the birth of a child.

Under the Muhammadan law the delivery of possession for the purpose of an effective donation need not be actual, bat may be constructive.

Delivery of the deed is a constructive as well as an effective delivery of possession of the lands.

Affefudeen v. Periathamby[1 (1911) 14 N. L. R. 295.] explained.

 THE facts appear from the judgment.

Bawa, K.C., for defendant, appellant.

A. St. V. Jayawardene, for plaintiff, respondent.

Cur. adv. vult.

July 7, 1919.   De Sampayo J.-

We dismissed this appeal at the conclusion of the argument on .behalf of the defendant-appellant, and it is only necessary to state shortly our reasons for doing so. The plaintiff, as administrator of his deceased wife, Pathumma Natchia, claims a half share of the land called Udumanpulligedarawatta. Pathumma Natchia was the only daughter of the defendant, and on her marriage with the plaintiff the defendant gave her as dowry the said half share of land and certain other property mentioned in the kaduttam. The marriage took place on November 6, 1914, and a few days after­wards, namely, on November 13, 1914, the defendant confirmed the gift by the execution of a deed in favour of Pathumma Natchia. The defendant now pleads that possession of the property was not delivered, and was in fact withheld from her, and that no title consequently vested in her, and he relies on the decision in Affefudeen v. Periatamby,1 [1 (1911) 14 N. L. R. 295.] which expounds the Muhammadan law on the subject of donations.

In my opinion the Muhammadan law, even as explained in the decision relied on, does not help the defendant in this case. For the delivery of possession for the purpose of an effective donation need not be actual, but may be constructive, and Lascelles C.J. summarized the law thus: " The principle which underlies the numerous authorities appears to be that any act by which the donor

places the donee in the position to exercise the right of property over the subject of the gift satisfies  the requirements of the law as regards delivery of possession."

When the facts of this case are examined in the light of this principle, it will be found that the requirements as to delivery of possession was amply satisfied. The gift was accepted by Pathumma Natchia on the face of the deed, and after the deed had been completed, the defendant himself took the plaintiff to the notary and had the deed delivered to him. The plaintiff got the deed registered, and when it was received by him from the registrar it was put in a box of Pathumma Natchia's, and remained there till her death. No doubt the deed is now produced by the defendant, but that circumstance is easily explained. The plaintiff and Pathumma Natchia lived in defendant's house during their married life, and after Pathumma Natchia's death some unpleasantness appears to have arisen between the plaintiff and the defendant, and the plaintiff left the house, leaving behind him the box in which the deed was, and some other belongings of Pathumma Natchia. In this respect Affefudeen v. Periathamby (supra) is distinguishable, and, in my opinion, the delivery of the deed was a constructive as well as an effective delivery of possession of the lands, for, to use the language of Lascelles, C.J., there was an act done by which the defendant placed Pathumma Natchia in a position to exercise the rights of property over the subject of the gift. The defendant says that there is a custom amongst the Muhammadans not to give possession to a daughter until four or five years after the birth of a child, which he calls the " period of probation " of the husband. There is no foundation for this asser