Udumalevvai Et Al V. Mustapha

1932 Present : Drieberg and Akbar JJ.

UDUMALEVVAI et al. v. MUSTAPHA.

174-D. C. Batticaloa, 6,989.

Fidei commissum-Muslim donation-Construction of fidei commissum- Roman-Dutch law.

Where a deed of gift by which the donor (a Muslim) donated certain property to his sons contained the following provision:-"They (i.e., the donees) shall possess and enjoy as their own from this day and in case any one of them happen to die without issue the shares will have to go to all my male children. "

Held, that it created a valid fidei commissum.

BY three deeds of gifts a Muslim donated certain immovable property to his sons, the three plaintiffs and one Mustapha, who died intestate and issueless. The sole question was whether the deed created a fidei commissum in favour of the plaintiffs in respect of Mustapha's share, or whether that share devolved on the latter's heirs, represented by the defendant. The learned District Judge held that the deed created a valid fidei commissum.

H. V. Perera, for defendant, appellant.-Conceptions of Roman-Dutch law cannot be incorporated into Muslim deeds. Muslims are governed by Muslim law but they may adopt principles of the Roman-Dutch law. The present deeds can be properly construed under the Muslim law. There is no indication that parties intended to incorporate a fidei commissum into the donation. This is merely a gift with an invalid condition. A bad condition in a Muslim grant is no indication that the donor intended to grant on the basis of the Roman-Dutch law. There is no need to resort to the rules of any other system of law where Muslim law suffices. Otherwise you may have a bad Muslim gift the defects of which may be cured by resorting to the Roman-Dutch law. No fidei commissum can be created by a Muslim deed of gift unless the donor expresses a clear intention that he is making the grant on the basis of the Roman-Dutch law, e.g., by the use of the words " under the bond of fidei commissum". Even if you apply the Roman-Dutch law there is no fidei commissum in this case. The operative words of a grant must be given greater effect than the habendum. Where there is a complete grant which is unconditional, the imposition of a condition in the habendum is bad. A person cannot derogate from his own grant.
Croos Da Brera for plaintiffs, respondents.-The fidei commissum is valid. For centuries fidei commissa have" formed part of the customs

and usages of the Muslims. Only the personal law of Muslims has been introduced into this Colony. The jus uccrescendi has been" applied to Muslim deeds (20 N. L. R. 225). Under Ordinance No. 10 of 1931 the Roman-Dutch law is declared to be applicable. The issues raised make it clear that the parties in the lower Court recognized the intention to create a fidei commissum but were only in dispute as to its validity. The question of the validity of the deed was raised in the answer but not in the issues. It may be therefore presumed to have been waived. The deed must be interpreted according to the usages and customs of the Muslims in Ceylon. If the deed is good according to Muslim law, the validity of the fidei commissum has to be judged according to Roman-Dutch law (Weeresekere v. Peiris [1 32 N. L. R. 176. ]). No express prohibition against alienation is necessary to create a valid fidei commissum (Perera v-Perera[2 20 N. L. R. 463. ]). The presence of the word " assigns" is not obnoxious (Wijetunga v. Wijetunga [3 15 N. L. R. 493.] , Coudert v. Don Elias [4 17 N. L. R. 129.], and Mirando v. Coudert [5 19 N. L. R. 90.]).

H. V. Perera, in reply.

July 11, 1932. AKBAR J.-

By three deeds (P 1, P 2, and P 3) a donor donated immovable property to his four sons, namely, the three plaintiffs and one Mustapha, who died intestate, and issueless.

The whole question is whether under these deeds Mustapha's share went to his heirs-at-law represented by the defendant or to his brothers,

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