1933 Present: Macdonell C.J., Garvin S.P.J., Drieberg and Akbar JJ.

SULTAN v. PEIRIS.

337-D. C. Colombo, 38,728.

Muslim law-Deed of gift-Gift inter vivos intended to take effect immediately -Reservation of life-interest-Validity under Muslim law-Applicability of Roman-Dutch law.

Where a Muslim, by a deed of gift inter vivos intended to take effect immediately, reserved to himself during his life-time " the full and unfettered right of residing in any of the premises hereby gifted and of taking and enjoying the rents, profits, produce and income of all the said allotments of land and premises hereby gifted, without the interference of the said donees or either of them ",-

Held, that the gift was not a valid one under the Muslim law, as it did not comply with the requirement of that law that delivery of possession of the subject-matter of the gift must be made to the donee in order to make the gift complete.

THIS was an appeal from a judgment of the District Judge of Colombo dismissing two actions in which the relief claimed was for a declaration that the assignee of an insolvent estate was entitled to certain property. The defendant denied the title of the insolvent and claimed to be the lawful owner of the premises. M. B. Oduman (the insolvent) and M. B. A. Cader are nephews of the defendant. On August 15, 1913, the defendant executed deed No. 4,277 which was a transfer by way of gift of the property in question to his two nephews, containing certain reservations, conditions, agreements, and restrictions, which are fully set out in the judgment of the Supreme Court. The learned District Judge held that the deed of gift was subject to the reservation of the life-interest of the donor and was therefore obnoxious to the Muslim law. He therefore dismissed the actions.

H. V. Perera (with him Canakeratne, Nadarajah and E. B. Wikramanayake), for plaintiff, appellant.-The effect of the Privy Council ruling in Weerasekera v. Pieris1[(1932) 34 N. L. R. 281] is that a Muslim can waive his right to be governed by his own law and submit to the common law. The Roman-Dutch law is generally applicable, and the special laws are in the nature of privileges afforded to particular classes. A document must be construed in a manner which will give effect to the intention of the parties rather than in a manner which will defeat that intention. A distinction must be drawn between what the document says and what the parties do afterwards.

[GARVIN J.-When will the Muslim law apply, and when the Roman-Dutch law ?]

Muslim law requires actual giving. If possession is not actually given the deed would be bad according to Muslim law. If the rules to be applied are so strict that the intention of the parties is to be defeated there is no escape from that position. But if it is possible that another

set of rules can be applied which will give effect to that intention you must apply those rules. The rules of Muslim law do not bind a Muslim in all his transactions.

[DRIEBERG J.-Cannot you have under the Muslim law a gift with a condition ? If so, one need not apply the Roman-Dutch law.]

All such conditions are void under Muslim law. A forfeiture of rights in favour of another person is bad. A condition should not be imposed on the donee except a condition that he should make a return to the donor. The test to be applied is not what system of law the parties had in mind but the construction of the deed and the sort of gift it did create. (Weerasekera v. Pieris (supra).) Where the donor does not give possession the gift would be bad under Muslim law. But such a gift may be good under the Roman-Dutch law. The document must first be examined in the light of Muslim law because the parties are Muslims and have the privilege of donating under that law. If the terms of the gift are repugnant to that law then the Roman-Dutch law applies. The effect of the Privy Council decision is that