Zainabu Natchia V. Usuf Mohamadu

1936 Present : Macdonell C.J., Dalton S.P.J.,
Poyser and Koch JJ.

ZAINABU NATCHIA v. USUF MOHAMADU.

320-D. C. Puttalam, 4,432 & 22-D. C. Puttalam, 4,468.

Muslim law-Deed of transfer on marriage-Property transferred as and for kaikuli-Absolute transfer to husband-No trust in favour of the wife- Meaning of kaikuli.

Where a deed of transfer, reciting an intended marriage between Muslims and the intention of the transferor (the parent) to give kaikuli, prior to marriage, according to the Muslim religion payable to the bridegroom at an agreed sum, proceeds, as and for a transfer of this sum, to grant, sell, set over, and deliver immovable property to the bridegroom, his heirs, executors, &c.; and adds that the said property together with all the right, title, and interest, the bridegroom and his heirs, executors, &c, shall possess and enjoy for ever,-

Held, that the transfer gave full dominium in the property to the bridegroom unaffected by any trust in favour of the bride.

Semble, in the Muslim law kaikuli is a sum of money given by the parents of the bride to the intended husband, which the husband possesses and owns but which he has to pay over to the wife, if she demands it, or to her heirs, on death.

Meerasaibu v. Meerasaibu (21 N. L. R. 221) and Pathumma v. Cassim (2 C. W. R. 263) referred to.

THESE were two appeals from the District Court of Puttalam referred by Akbar and Koch JJ. to a Bench of four Judges. The question was whether a Muslim deed of transfer of property given at marriage to the bridegroom created a trust in favour of the bride.
In the first case the parents of the bride, the plaintiff, executed on July 11, 1925, a deed styled as follows : " No. 6,077-Kaikuli Transfer" the relevant parts of which are given in the headnote. The deed was accepted by the bridegroom, the first defendant. Thereafter the first defendant mortgaged the property with the second and third defendants. The second defendant put the bond in suit, obtained decree, and with the permission of Court purchased the land. The plaintiff now sued for a declaration that she is entitled as beneficial owner to the property conveyed by deed No. 6,077 and to a declaration that the deed created a trust in her favour.

In the second case the parents of the bride (the plaintiff), executed a deed in similar terms in favour of the bridegroom the first defendant. There was no acceptance but the first defendant entered into possession of the property. Thereafter he mortgaged the property with the third defendant who put the bond in suit and advertised the property for sale. The plaintiff thereupon brought this action asking that she be declared entitled to the property as beneficial owner and for a declaration that the deed created a trust in her favour.

The learned District Judge held that the transfer was in consideration of marriage and that although the word kaikuli was used in the deed no trust was created and that the husband was the absolute owner of the property.

L. A. Rajapakse (with him Ismail and B. P. Peiris), for plaintiff, appellant.-For the meaning of kaikuli see Vand. 162. It must be restored to the wife's heirs or the wife if demanded. It constitutes a fund for her own exclusive benefit and is a first charge on the husband's property. Husband is only trustee of property for the wife. The term is incorrectly used in Pathuma v. Cassim [1 21 N.L.R. 221 ] but it was held that there was a trust. See also Pathuma v. Idroos [[2 31 N. L. R. 230.]]. The term kaikuli is a technical term with a well-recognized meaning. In this case there is an express declaration made by the transferee that it is held in trust. The intention of the transferor is to be gathered by a reference to the terms. The document must be read as a whole. The property is not given absolutely. The occasion for making the transfer is stated. Kaikuli is a term understood by both grantor and gr

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