Abdul Rahim V. Hamidu Lebbe

 1926 Present: Garvin and Lyall Grant J J.

ABDUL RAHIM v  HAMIDU LEBBE et al.

244-D. C. Matara, 1,298.

Muslim law-Donation of  property by father to minor son-Delivery of possession.

Under the Muslim law a gift by a father to his minor child of property in the parent's possession is complete on his declaration that a gift has been made.

IN this action the plaintiff sued for a declaration of title to a shave of certain lands, which formed the subject-matter of a deed of gift, executed by the first and second defendants in favour of their two minor daughters, Mukulath Natchia and Mumina Natchia. The plaintiff married Makulath Natchia on February 20, 1917, and she died on November 28, 1917. The plaintiff claimed, as the heir of his deceased wife, a half share of the interest conveyed to her by the deed of gift. The defendants pleaded that no title passed under the deed as there had been no delivery of possession of the lands to the donees. The learned District Judge, held in favour of the plaintiff.

Hayley (with Keuneman), for defendants, appellants.-All the parties to this action are Muhammadans, and the Muhammadan law-will apply. Three things are necessary, as held by Affefudeen v. Periatamby,1 to constitute a valid deed of gift, viz., declaration of intention to gift, acceptance, and seizin by donee. In the present case no delivery of possession was made to the donees.

Under the Muhammadan law a deed of gift by a father to his son can be revoked (vide Cader v. Pitcha 2 ).

1 (1911) 14 N. L. R. 295.

2 (1916) 19 .N. L. R. 246.

Counsel also cited Mohamadu v. Marikar.1

Drieberg, K. C. (with Soertsz), for plaintiff, respondent.- The declaration of the intention to gift is clear from the language of the instrument and the fact that it was also registered by the father. There has been acceptance because the donees too signed the deed.

Possession as required by law has been in the donees. Ameer Ali, Vol. 1, at pages 172 and 173, speaks of the possession of the parent as being tantamount to possession by the child. Tyabji (1913) at pages 307 and 308 goes further than parent and child and speaks of the possession of the de facto guardian as a possession by the child.

Wilson 354: A gift can he revoked only upon an application to Court.

Cur. adv. vult.
 

March 28, 1926. GARVIN J.-

In this case the claim of the plaintiff depends upon the validity of a deed of gift bearing No. 23,310 and dated November 9, 1915. This deed was executed by the first and second defendants in favour of their two minor daughters, Mukulath Natchia and Mumina Natchia. The plaintiff married Mukulath Natchia on February 20, 1917. She died on November 28, 1917. The plaintiff claims to be entitled, as heir of his deceased wife to a half share of the interest conveyed to her by this deed in the seven lands described in the plaint. The defendants in their answer admitted the execution of the deed, but pleaded that no title passed as there had been no delivery of possession of the subjects of the gift to the donees. All the parties concerned in the issues which arise in this case are Muhammadans.

It is now well settled law that any question touching the validity of a gift between Muhammadans must be decided with reference to the Muhammadan law. It is essential to the validity of such a gift that there should be a declaration by a donor of his intention to made a gift acceptance of the gift by the donee, and seizin by the donee of the subject of the gift (vide Affefudeeu v. Periatamhy (supra).

In this instance the declaration of an intention to give is amply manifested by the deed by which the defendants in making the gift stated that it was made by way of an absolute and irrevocable gift, and manifested their intention that the properties which formed the subject of the gift were to be held by the donees absolutely and for ever " from the date of the deed." If further evidence of an

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