Present: Lyall Grant J. and Maartensz A.J.  1929.

MARICAR v. UMMA.

186-D. C. Jaffna, 23,707.

Muslim law-Gift by parents to. children-Reservation of life-interest- No acceptance on possession-Validity.

Where Muslim parents conveyed to their minor child by a deed, styled a deed of settlement, a land reserving to themselves a life-interest and the right to mortgage or transfer the land, and there was no acceptance on behalf of the minor,-

Held, that the deed was inoperative to pass title to the donee. APPEAL from a judgment of the District Judge of Jaffna.

In this action the validity of a deed of gift by a Muslim and his wife in favour of their children was in question. The deed was styled a deed of settlement, it was executed by the parents and was not accepted by the donees. The material paragraph was as follows: " We do hereby declare that as we have life-interest on the said land with its appurtenances hereby conveyed into them by way of settlement, they are to possess and enjoy the same after our death, that we have the right and power to mortgage or transfer the said land, when it is necessary for us."

The learned District Judge held that the deed was invalid.

Croos da Brera, for first defendant, appellant.-The case of Meydeen v. Abubakker [1 (1919) 21 N. L. R. 284. ] has been distinguished in the later case of Abdul Rahim v. Hamidu Lebbe [2 (1926) 28 N. L. R. 136.], where it was held that, in the case of a gift to minor children of property in the father's possession, the gift is complete on the execution of the deed. Similarly, the reservation in favour of the mother of the right to take .the income was held not to invalidate the gift (Ibrahim Natchia v. Abdul Cader [3 (1926) 28 N. L. R. 316.] ). The decision reported in Ramanathan's Reports (1877) page 87 is a direct authority for the proposition that in the case of a gift in favour of children it is not invalidated by the fact that a life-interest is reserved and the deed is conditioned to take effect after the death of the donor. This is a judgment of two Judges and does not appear to have been considered in the later judgments. The principle laid down in this decision is not defeated by the reservation of a right to mortgage or transfer. Under the Muslim law such a reservation can be ignored and full effect given to the gift. The requirement as to delivery of possession appears to be a rule made at a time when property was chiefly movable and a gift was attended with less formalities. There is no reason why this rule should be now enforced rigorously. The tendency of the Courts has been to recognize a gift as much as possible. Counsel cited Ameer Ali, Muhammedan Law, pp. 134 and 142.

Subramaniam, for plaintiff, respondent, not called upon.

October 1, 1929. LYALL GRANT J.-

This is an appeal from the District Court of Jaffna. The question is one of the validity or the construction of a certain deed made by a Muslim and his wife in favour of their children. The first issue between the parties was " Did .this deed convey title in a one-third share of the land to the second defendant." The learned District Judge says that this issue was treated as the radical issue in the case, and he heard argument on it. He arrived at the conclusion that the deed was invalid.

The deed is called by .the parties a deed of settlement. It is executed by the parents alone, and there is nothing in the deed to show acceptance on behalf of the donees. The effective words are " This day we have conveyed unto them (the children) by way of a settlement subject to the undermentioned conditions the said land, &c." Immediately following these words are the following words : " We do hereby declare that as we have life-interest on the said land with its appurtenances hereby conveyed unto them by way of a settlement, they are to possess and enjoy the same after our death, that we have right and power to mortgage or transfer