Seyambo Natchia V. Osman

Present - Ennis A. C. J. and Dalton T.

SEYAMBO NATCHIA v. OSMAN.

367-D. C. Galle, 21, 219):

Muhammadan law-Donation-Delivery of possession may be actual or constructive-Delivery of deed-Acceptance of deed constitutes delivery.

Under the Muhammadan law a necessary element to constitute the validity of a deed of gift is delivery of possession, actual or constructive.

Delivery of the deed amounts to constructive delivery of possession for this purpose and where such gift is to a minor child acceptance by the father appearing on the face of the deed constitutes a delivery of the deed.

Queue, whether a Muslim dowry deed given in consideration of marriage is a deed of gift.

THIS action was brought by plaintiff against the administrator of the estate of her deceased daughter, Zohara. Plaintiff gifted to her certain lands mentioned in paragraphs 8 and 5 of the plaint by deed of gift dated November 7. 1916. She at first married one Haniffa. He died in 1917. Thereafter she married his brother, the present defendant. Zohara herself died on August 22, 1922, and defendant applied for letters of administration to her estate, and included these lands in the inventory. Plaintiff then brought the present action claiming the lands on the ground that the gift had not been completed by delivery. The learned District Judge, while holding that there was no delivery, was of opinion that the deed, being one given in consideration of marriage did not require delivery for its validity.

Drieberg, K. C. (with him Croos Da Brera and Alilip), for plaintiff appellant. -In the case of a Muslim gift it is essential that there should be seisin. In the present case no possession was ever given. The only exception would be premises No. 109, where plaintiff permitted her daughter and her husband to take up their residence. Even this does not amount to the delivery of possession contemplated in Muhammadan law, vide Tyabji, p. 301.

There is also evidence that plaintiff possessed the properties as her own even after the deed of gift. Plaintiff has mortgaged the whole of these lands in 1919, vide P 14. The defendant was an attesting witness thereto.

There has been no delivery of the deed even. The deed has always been with plaintiff.

[Ennis A. C. J. -Is there no acceptance of the deed on the face of it ?]

Yes. In Muhammadan law such symbolic delivery is insufficient.

There must be seisin.

The finding on possession is against the defendant. Even if there has been acceptance of the deed, there must be delivery in addition.

The learned Judge has held the deed to be one for valuable consideration. Deeds of this nature are not for valuable consideration, but deeds of gift.

Counsel cited Mohamadu v. Marikar [1 (1919) 21 N. L. R. 84.] and Affefudeen r. Periatamby. [2 (1911) 14 N. L. R. 295.]

E. W. Jayewardene (with him Soertsz), for defendant, respondent, not called upon.

June 4, 1925. Ennis A. C. J. -

This was an action for declaration of title, and for a declaration that a certain deed of gift did not operate to convey any title in favour of the donee Zohara; and further that the property mentioned in that deed had been wrongfully included in the estate of Zohara. The learned Judge found in favour of the defendant, and the plaintiff appeals.

It appears that, by the document Dl, on November 17, 1916, the plaintiff gifted to her daughter a number of properties described in paragraphs 3 and 5 of the plaint. The gift was a dowry gift. The daughter duly married, and her husband died in February, 1917. Zohara then took a second husband, who is the defendant in this case. She died on August 28, 1922, whereupon the defendant applied for administration of her estate, and included in the estate the lands gifted in 1916. Later, it appears that the defendant married Zohara's younger sister. The deed of gift D 1 was not registered, but it was accepted on behalf of Zohara by her father who duly sign

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