Present : Bertram C.J. and Schneider J.

SAIDU v. SAMIDU.

401-D.C.Galle, 18,613.

Deed of donation treating a fidei commissum-Is it valid under the Muhammadan law ?-Prohibition against lease for over two years- No penalty stated-Brutum fulmen-Eight of lessor to sue trespasser in ejectment.

A deed of gift created a fidei commissum and contained a prohibition against leasing for more than two years. There was no penalty imposed in the event of the lease exceeding the prescribed limit. M, a fiduciary, leased it for four years, commencing from 1920, to defendant, but M died in 1919. Thereafter the child of M and the widow of M leased the property for six years to the plaintiff.

Held, that the lease to defendant, which was to take effect after the death of M, was not valid, and that the lease to plaintiff was valid, though it exceeded two years.

The deed of donation was as follows :-

No. 14,060,

Know all men who are concerned by these presents:-That I, Isa. Umma, wife of Cader Kuttyna Kudas Sarai Lebbe Marikkar of Galu-piyadda, within the Four Gravets of Galle, do hereby declare that as I am willing to grant something out of my immovable property unto my sons Sarai Lebbe Marikkar Mahammado and Sarai Lebbe Marikar Mahammado Abdul Cader, both of Galapiyadda, who have been nourishing me with humble obedience for their future welfare, therefore 1 do hereby grant over as a gift the following premises held and possessed by me by right of purchase tinder and by virtue of a registered deed No. 2,668, attested by Porolis Charles Perera Gunatilaka, Notary, on February 14,1887, to wit :-

Therefore in future no claim, demand, or dispute shall be made or cause to be made either by me, the said donor, or by any of the heirs, executors, administrators, and assigns of my estate; and the said two donees, Sarai Lebbe Marikkar Mahammado and Sarai Lebbe Marikkar Mahammado 'Abdul Cader, their heirs, executors, administrators, and assigns of their estates are hereby authorized to have and to hold from this day the said premises hereby donated to possess, commending from July 27, 1894, the said premises shall be possessed accordingly,

the same is, can, shall, or may be alienated, and that at one time they shall not be leased out for a term over two year. That should then come a time when there shall be no Sarai Lebbe Marikkar Sarai Lebbe Marikkar Mahammado Abdul Cader, and their children, grandchildren, or descendants, then, at such time, the said premises shall be vested in the Kottuwal Palliya alias Mahapalliya at our Muhammadan religion, situate at Talapitiya, to take the produce thereof.

Thus making these special orders this deed of gift was caused to be drawn, and I, the said Is a Umma, have set my hand and seal to three of the same tenor as these presents on this 1st day of October, 1893.

And I, Sarai Lebbe Marikkar Mahammado, do hereby declare that I have accepted this gift granted to me and to my brother who is under age with thanks to the donor promising to possess the same in equal shares.

In witness whereof, &c

THE facts appear from the judgment.

Soertsz, for the appellant.

Abdul Cader, for the respondent.

March 28,1922. BERTRAM C.J.-

This appeal relates to a document executed by one Isa Umma on October 1,1893, and the action is concerned with the claims of rival lessees claiming under that document. There seems no question that it was the intention of the person executing that document to create a fidei commissum. It was contended in the Court below that as the parties to the transaction were Muhammadans, and the document in the initial part of it was in the form of a deed of gift, the matter was governed by the Muhammadan law, and, that, consequently, any attempt to impose a restriction on alienation upon the donees was invalid, and that the document, therefore, must be treated simply as a deed of gift.

Mr. Abdul Cader, however, in this Court quite properly a