Muhseen Et Al. V. Habeeb Et Al

1935   Present  : Macdonell C.J. and Poyser J.

MUHSEEN et al. v. HABEEB et. al.

351-D. C. Colombo, 51,070.

Muslim law-Dowry gift-Gift in futuro-Validity-Intention of parties- Roman-Dutch law.

A dowry deed promising to pay something in futuro is valid under the Muslim Law.

Per MACDONELL C.J.-The intention of the parties so far as it may be judged by the terms of the deed seems to be that the deed should be interpreted by the ordinary law of the land. APPEAL from a judgment by the District Judge of Colombo.

A. E. Keuneman (with him S. A. Marikar), for defendants, appellants.

H. V. Perera (with him L. A. Rajapakse), for plaintiffs, respondents.

February 20, 1935. MACDONELL C.J.-

In this case all the parties are Muslims, and in 1926 the defendants, husband and wife, executed a deed No. 999 (P 1) in favour of their daughter, the first plaintiff, and her intended husband, the second plaintiff. This deed recites that the defendants, husband and wife, are the owners of certain property in the Pettah and that a marriage has been arranged between their daughter first plaintiff and the second plaintiff, and then proceeds to say : " And whereas in consideration of the said marriage the said parties of the first part have agreed to pay the said parties of the second part a sum of Rupees Thirty (Rs. 30) per month from and out of the rent of the aforesaid premises.

" Now this agreement witnesseth: (1) That the said parties of the first part shall and will pay the said parties of the second part each and every month a sum of Rupees Thirty (Rs. 30) from and out of the rent of the aforesaid premises commencing from this date. (2) In the event of the said premises being sold and money deposited in Court it is agreed that the said parties of the second part shall be entitled to draw from the Loan Board dividend a sum of Rs. 50 per month. (3) In the event of new properties being purchased out of the funds in Court the right is hereby reserved to the parties of the second part to recover a sum of Rs. 30 per month out of the rent of such properties."

The marriage duly took place and for a time the periodical rents out of the premises were duly paid by the defendants to the first and second plaintiffs. Thereafter payment fell into arrears and the plaintiffs brought the present action against the defendants on the deed (PI) for the arrears of these rents. The defendants contended that if any monies were due from them under this deed they were due from the rents of the properties mentioned therein and that as they the defendants had not received the rents from these properties there was nothing due from them under the deed. But the learned Judge found as a fact that the defendants did receive these rents, and his finding on that point was not challenged on appeal.

The main defence raised at the trial and on appeal by the defendants-appellants was that this deed (P 1) being a promise to pay something, the rents, not in existence at the time of the deed-a promise, that is, to pay something in futuro-the deed was bad by Muslim law, the law by which it must be governed seeing that all the parties thereto were

Muslims. The learned trial Judge rejected this argument, gave judgment for plaintiffs, and it is from that judgment that the present appeal is brought.

For the appellants it was argued, as it had been below, that this was a gift and bad by Muslim law as promising to give something not yet in existence. It is undoubted law that in Ceylon gifts between Muslims must be governed by Muslim law not because of anything in what we call the Muhammadan Code {vol. I., pp. 919 et sq), but because by well understood custom the portion of Muslim law governing gifts has been received by the Muhammadan community in Ceylon and has been acted upon by them so as to give it by custom and usage the force of law. Now the first thing that strikes you upon reading (P 1) is that it

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