1932    [IN THE PRIVY COUNCIL.]

Present : Lord Tomlin, Lord Thankerton, and Sir Lancelot Sanderson.

WEERASEKERA v. PEIRIS.

Fidei commissum-Muslim gift to his son-Reservation of right to enjoy the rents and profits and of right to revoke-No intention to make a gift under Muslim law-Roman-Dutch law applicable.

Where a deed of gift by a Muslim to his son contained the following conditions: -

"To have and to hold the said premises unto the said Arisie Marikar,. his heirs, executors, administrators, and assigns for ever subject to the conditions and restrictions hereinafter mentioned, that is to say, that I, the said Ahamado Lebbe Marikar, have reserved to myself the right and power to cancel and revoke these presents and to make any other deed or deeds therewith or deal with the said premises as I shall think fit and proper during my lifetime, as if this deed had not been executed, and that I have further reserved to myself the right of taking, receiving, and enjoying the rents, profits, issues, and income of the said premises during my lifetime, and after my death the same shall go to and be possessed by the said Arisie Marikar as his property, provided, however, that the said Arisie Marikar shall not sell, mortgage, gift, exchange, or otherwise dispose of or alienate the said premises or any part thereof and further he shall not be at liberty to encumber the rents, profits, income, or issues of the said premises or suffer or allow or subject the said premises or the rents, profits, issues, and income thereof to be seized, attached, or sold by any writ of execution for any debt, dues, default or undertaking of the said Arisie Marikar, that he shall not lease the said premises for  any term exceeding three years at a time. Provided, however, that the said donee can make gifts to his daughters in their marriage but not to any other. Provided, however, that after the death of the said donee the said property shall devolve on his children as their absolute property and I do hereof for myself, my heirs, &c, covenant and promise and agree to and with the said Arisie Marikar that the said premises hereby gifted are free from encumbrance, &c 

"And I, the said donee, do hereby thankfully accept the above gift made to me in the foregoing deed subject to the conditions therein set-forth,"-

Held, that the donor created a valid fidei commissum such as is recognized by the Roman-Dutch law and that the donor did not intend to make such a gift as is recognized under the Muslim law which necessitates the donee taking possession of the subject-matter of the gift during the lifetime of the donor.

APPEAL from a judgment of the Supreme Court. [1 32 N. L. R. 176.]

December 9,1932. Delivered by SIR LANCELOT SANDERSON-

This is an appeal by Don Charles Weerasekere, who was the plaintiff in the suit, against a decree of the Supreme Court of the Island of Ceylon, dated January 20, 1931, whereby an order of the District Court of Colombo, dated July 15, 1930, was set aside and the plaintiff's action was dismissed.

The suit was brought by the plaintiff against the defendant, Hettige Don John Peiris, claiming that certain immovable property situated within the Municipality and District of Colombo, and described in the schedule of the plaint, should be partitioned in terms of the Partition Ordinance No. 10 of 1863, and for such other and further relief as to the Court should seem meet.

The claim was based upon a deed, dated March 11, 1904, executed by Ahamadoe Lebbe Marikar Arisie Marikar Hadjiar (hereinafter called the "father") and his son, Arisie M. H. M. S. Hadjiar (hereinafter called " the son "), who were Mohammedans of the Shan sect and resident in the Crown Colony of Ceylon. The deed refers to five-sixths of the property in question.

By the said deed the father purported to give, grant, assign, and transfer the five-sixths share of the said premises to the son as a