1931    Present : Macdonell C.J. and Garvin S.P.J.

WEERASEKERE v. PEIRIS.

169-D. C. Colombo, 34,065.

Muslim law-Gift subject to life interest- Fidei commissum-No delivery of possession actual or constructive Validity of gift-Construction of fidei commissum.

Where a Muslim gifted to his son immovable property, reserving a life interest and the right to dispose of the property during his lifetime, and there was no delivery of possession, actual or constructive, to the donee,-

Held, that the gift was not a valid one under the Muslim law.

Where such a gift contained a fidei commissum, the validity of the gift must be determined by the Muslim law, although the construction of the fidei-commissum be governed by the Romance Dutch law.

THIS was an action for declaration of title to certain premises which belonged to one Arisi Marikar, who by a deed bearing No. 11,221 dated March 11, 1904, purported to give and grant five-sixths to his son, Salih Hadjiar, as a gift inter vivos. According to plaintiff the gift was subject to a fidei commissum in favour of the children of Salih Hadjiar and on the death of the latter the property devolved on his sons, Abdul Hassen and Mohamed Hassen. By deed No. 1,027 of August 30, 1927, the plaintiff purchased the right, title, and interest of Abdul Hassen and Mohamed Hassen;

The defendant's case was that upon the death of Arisi Marikar in 1908 or 1909 Salih Hadjiar dealt with the premises as sole and absolute owner. He mortgaged the premises with the trustees of the last will and testament of E. J. Rodrigo in 1913. In execution against him the premises were sold in 1916 and purchased by the trustees, who entered into possession. On June 20, 1929, they conveyed the property to the defendant. It was contended on his behalf that there was no valid or operative gift made by Arisi

Marikar to Salih Hadjiar and that the latter never held the premises under the gift.

The learned District Judge held that the gift was valid and that it was subject to a fidei commissium and gave judgment for the plaintiff.

Keuneman (with him Weerasooria, Rajapakse, and Marikar), for defendant, appellant.-Salih Hadjiar was in possession of whole of the premises and a purchaser from him gets good title. His title became a good prescriptive title after he obtained the premises from Arisi Marikar. We must see whether there is a valid gift. Conditions for such are (1) acceptance, (2) seizin, (3) intention. Reservation of life interest precludes seizin. Clause in deed " Assign as gift inter vivos absolute and irrevocable " is in the operative part of instrument. The next clause reserves first the right to revoke or alternatively deal with the premises as he thinks fit. Arisi Marikar had no intention to part with the possession or the dominium. Where there is an ambiguity in deeds earlier clause holds good. First clause gives an absolute gift. " Absolute" rules out fidei commissum. Our contention is, whatever the interpretation is, there is no condition that fetters the gift. If it is held that there is a fidei commissum no seizin has been given in which case the deed is bad. There might be constructive delivery of possession but not where deed itself does not intend to give possession (Affefudeen v. Periatamby [14 N.L.R. 295.] ). Reservation of life interest results in no change of status in person giving the gift. Onus is on donee to prove that possession was given (Tyabji, p. 309, s. 402), except in case of gift to minor son. District Judge seeks to distinguish by reference to case reported in 11 Moore's Indian Appeals, Privy Council, p. 547. Gift, with return not of property itself or part of it, is not incompatible with Muslim law.

Attempts by Muslims to do so will not impose fidei commissum on them. Fidei commissum is repugnant to Muslim law and cannot be imported into the law (Abdul Gaffur v. Niza Mudin [17 Bombay 1] ). You must first decide whe