1933 Present: Dalton S.P.J. and Poyser J.

ISMAIL v. MOHAMED.




196-D. C. Matara, 6,885.

Donation-Gift by Muslim-Reservation of life-interest and right of revocation -Possession by donee-Renunciation of life-interest-Intention of donor-Roman-Dutch law.

A Muslim donated certain premises to his brother-in-law reserving to himself the right of revocation and a life-interest. The donation was accepted by the donee, who lived on the premises. Later the donor executed a deed renouncing in the donee's favour his life-interest and right of revocation.

Held, that donor intended to create and did in fact create a donation such as is recognized under the Roman-Dutch law.

Held, further, that the combined effect of the two deeds was to constitute a valid gift under the Muslim law.

APPEAL from a judgment of the District Judge of Matara.

N. E. Weerasooria (with him Haniffa), for first defendant, appellant in No. 196.

H. V. Perera, for the appellant in No. 197, and for the respondent in No. 196.

Hayley, K.C. (with him Rajapakse), for the second defendant, respondent in both appeals.

Garvin (with him Alles), for third defendant, respondent, in both appeals.

November 29, 1933. DALTON S.P.J.-

Two appeals, taken together, arise in this action. The plaintiff (appellant in No. 197) brought this action to partition a lot of land, depicted as lot B on the plan No. 316 produced in the case. He claimed that he was entitled to an undivided one half, allotting the remaining undivided half to the defendant (appellant in No. 196). The added defendant (respondent in both appeals) intervened, claiming the wh6le of the lot.

The trial Judge dismissed the action on the ground " that plaintiff has brought a partition action in ' order improperly to take advantage of the Partition Ordinance", and directed that he do pay double stamp duty. The plaintiff and defendant both appeal from that conclusion, and Mr. Hayley for the respondent concedes that he cannot support the judgment on the ground upon which the trial Judge has decided the case. He nevertheless argues, and of course is entitled to argue, that the judgment is correct for other reasons.

The parties are all Muslims, the intervenient being the brother-in-law of the defendant. The latter lived with his brother-in-law, by whom he was brought up since his mother's death in 1905 when he was one year old, and sister, and was maintained and educated by the former, although his father lived with them in the same house.

In 1918, by the deed P 1, intervenient donated the lot in question to the defendant, reserving, however, the power to revoke the deed, and also a life-interest in the premises for himself, and after his death for his wife, defendant's sister. Defendant accepted the gift, signing the deed together with intervenient, and the deed was handed to him by the notary. Thereafter the evidence shows that defendant continued living on the premises, which was his home during his holidays. He says he attended the Royal College, Colombo, from 1919 to 1924.

In 1922 intervenient executed a further deed in favour of the defendant (exhibit P 2), renouncing the power of revocation and the life interest he had retained for himself, and granting "the rights thereof to the credit and interest of the said donee ", the defendant. Nothing was said about the life-interest in favour of the intervenient's wife, which however in any

case was not to take effect until the intervenient's death. The deed P 2 goes on to state that " the donee, his heirs, executors, and administrators can do anything they like with the said property from date hereof without contravening the other covenants of the deed, as if I the said Omardeen Hadjiar reserved no life-interest and no right of revocation at pleasure in the said deed of gift. And I also declare that I or my heirs have no claim whatever from henceforth and that if any further documents become necessar