Back
RAFEEKA et al. v. MOHAMAD SATHUCK
NLR33V295
1931 Present: Macdonell C.J.
and Lyall Grant J.
RAFEEKA et al. v. MOHAMAD SATHUCK.
80-D. C. (Inty.) Colombo, 35,824.
Muslim law-Deed of
gift-Possession by donor-Minority of donees-Attornment to
natural guardian-Delivery of possession-Validity of gift.
Where the grandmother
of Muslim children who were minors gifted certain premises to them and remained
in possession, paying rent to their mother for and on their behalf,-
Held, that there had been sufficient delivery of possession of the premises-by
attornment to the children through their natural guardian-to constitute a valid
donation under the Muslim law.
APPEAL
from a judgment of the District Judge of Colombo.
Keuneman, for defendant, appellant.
Nadarajah (with him Abeyesekere), for plaintiffs, respondents.
February 5, 1982. MACDONELL C.J.-
The parties in this case are the same as in the action Rafeeka et al. v. Mohamed
Sathuck 1[33 N. L. R. 176.] decided by my brother Garvin and myself on November 18, 1931, and the
facts so far as material are as follows:- Mohamed Zain died on January 9, 1925,
being then the owner of an undivided one-half share of the premises in dispute,
56, New Moor Street, Colombo, and prior to his marriage to Fatheela he had lived
in those premises. After his marriage he went with his wife to live at 94,
Messenger street, Colombo, and his mother Saffra Umma occupied 56, New Moor
street. The mother Saffra Umma paid her son, the deceased Mohamed Zain, Rs. 25 a
month which were actually used by him in paying the rent of 94, Messenger street
in which he lived. The only receipts produced were made out by the landlord to
Mohamed Zain in his name. There is evidence from which the learned trial Judge
inferred that these Rs. .25 per mensem were paid to him by his mother Saffra
Umma as rent for his share, one-half, of the premises 56, Messenger street, of
which she was in occupation, and I do not think one can say that that inference
was. wrong. The mother Saffra Umma was his tenant, then, of his half share in
56, New Moor street. He died, as has been said, on January 9, 1925, intestate,
leaving his widow Fatheela and five minor children, plaintiffs. ill this action,
and his widow Fatheela administered his intestate estate under letters granted
her on August 8, 1927, in testamentary suit No. 2,714, P 10. Thereafter by
notarial deed No. 684 of October 21, 1927, P 11, she as administratrix conveyed
her deceased husband's half share of the above-mentioned premises to the heirs
thereunder, viz., to herself, to the deceased's mother Saffra Umma, and to her
own minor children the 1st to 5th plaintiffs aforesaid, for the share to which
each was respectively entitled on the intestacy. On the same day, October 21,
1927, she joined with Saffra Umma in conveying by notarial deed No. 686, P 12,
all their right, title, and interest in their shares in the said premises " as a
gift absolute and irrevocable " to Fatheela's five minor children the plaintiffs
aforesaid. Deeds 684, P 11, and 686, P 12, were both duly registered. The five
minor children therefore by this deed of gift, No. 686, P 12, if a valid one,
became owners of the share which had previously belonged to their mother
Fatheela and their grandmother Saffra Umma. For the appellant attention was
drawn to the fact that after the death of the son Mohamed Zain, the mother
Saffra Umma became owner of a fraction, probably 28/336, of his half share of
the premises in dispute and that as admittedly she lived in those premises from
long before his death continuously up to her own death in 1929, she was,
probably from his death in 1925, certainly from the conveyance No. 684 by the
administratrix Fatheela, in possession
of this fractional share. But with this fact must be taken another one, namely,
that according to the evidence she continued to pay the Rs. 25 per mensem from
the death of Mohamed Zain in 1925 continuously up to. h
