Sahul Hamid V. Mohideen Nachiya

1932 Present : Dalton J. and Jayewardene A.J.

SAHUL HAMID v. MOHIDEEN NACHIYA.

83-D. C. Jaffna, 26,351.

Muslim law-Deed of gift to children-Absolute and irrevocable-Acceptance by major son on behalf of minors-Reservation of right to live on premises and enjoy the rents and produce-Ordinance No, 10 of 1931, s. 3- Retrospective effect.

A Muslim gifted certain premises to her four sons as a gift absolute and irrevocable. The gift was accepted by the eldest son, a major, on behalf of his minor brothers.

The deed further provided that the donor shall have " the right of living in the premises and enjoying the rents and produce thereof during her lifetime ".

Held, that the donation was a valid one under the Muslim law.

Per DALTON J.-That the Muslim Intestate Succession and Wakfs Ordinance, No. 10 of 1931, in regard to the declaration in section 3 is declaratory of the law applicable to donations not involving fidei commissa.

Per JAYEWARDENE A.J.-That the donation was irrevocable.

Ordinance No. 10 of 1931 is not merely declaratory of the existing law, and therefore not retrospective.

THE plaintiff, a minor appearing by his next friend, instituted this action for a declaration that the deed of gift executed by the defendant (his mother) in favour of himself and of three of his brothers was a valid one and that it was irrevocable. The parties are Muslims. The deed was executed by the defendant on December 20, 1929, in favour of four children, three of whom were minors, and was signed by the father and the eldest son, who accepted it on behalf of the minors. The defendant purported to revoke the deed on February 13, 1930. The material facts of the deed are as follows:-"I .... with the consent and concurrence of my husband, in consideration of the natural love and affection which I have and bear unto my sons, do hereby grant, convey, assign, transfer, set over, and assure unto the said donees as a gift inter vivos, absolute and irrevocable that piece of land called .... subject to the terms and conditions .... To have and to hold the said premises hereby granted unto the said donees in equal shares, provided, however, that I, the said donor, shall have the right of living in the said premises and enjoying the rents and produce thereof during my lifetime "

The learned District Judge held that the gift was a valid one under the Muslim law and gave judgment for the plaintiff.

N. E. Wcerasooria (with him Thyagaraja), for defendant, appellant- The deed of gift should be construed according to Muslim law. There must first be a valid gift vinder the Muslim law. Then only can any question of fidei commissum arise. The requisites of a valid gift under the Muslim law have been reviewed in Weeresekere v. Peiris [1 (2931) 32 N. L. R. 176.]. There should be a manifestation of the wish to give, an acceptance, and complete

and effectual possession. In the deed under consideration no question of complete and effectual possession on the part of the donees can arise. To the donor are reserved the right Of residence and the right to enjoy the rents and produce during her lifetime. This is, in effect, the reservation of an usufruct; and even if the rights reserved are less, they are sufficient to prevent the taking of complete and effectual possession (Tyabji on Mohammedan Law (2nd ed.), ss. 383, 400, &c, pp. 427, 451, &c). The fact that the donor is a parent and the donees her minor children is therefore immaterial.

H. V. Perera (with him M. I. M. Haniffa) for plaintiff, respondent.-The words here are different to the words used in Weeresekere v. Peiris (supra). There the words used gave the donor a " a life interest" and the power of revocation. Here the gift is expressly " absolute and irrevocable". In such a case, no revocation is possible (Rafeeka et al. v. Mohammed Sathuck[1 1 Ceylon Law Weekly 103. ]). The decisions of the Privy Council in Umjad Ally Khan

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