Ponniah Et Al. V. Jameel Et Al.,

1936 Present : Macdonell C.J. and Poyser J.

PONNIAH et al. v. JAMEEL et al.

379-D. C. Colombo, 27.

Muslim law-Deed of gift inter vivos in praesenti-Reservation of usufruct by donor-Gift subject to fidei commissum-Acceptance by donees- Delivery of deed as a symbol of possession-Gift governed by Muslim law-Invalid for want of delivery of possession.

Where a deed of gift by a Muslim was expressed in the following terms; " I do hereby voluntarily give, grant, convey, transfer, assigns, set over, and assure by way of gift unto the said donees the land and premises .... to have and to hold the said land and premises hereby granted and conveyed subject to the following terms, conditions, and restrictions, namely, that I, the said donor shall have the right during my lifetime to take and enjoy the rents, profits, issues and incomes of the said premises by way of  usufruct, and the said donees shall not be at liberty to give, sell, mortgage or otherwise alienate or encumber the said premises or any part of share thereof that they shall only be entitled to hold, possess, and enjoy and take and receive the rents, profits issues and incomes derived or arising out of the said premises

during their lifetime and that, after their death, the said premises shall devolve under the bond of fidei commissum in perpetuity on their children or other remote descendants .... These presents also witness that the donees do hereby thankfully accept the foregoing gift, subject to the terms, restrictions, &c.

" And whereas under the Muslim law a gift is not complete until the possession of the lands and premises has been given over to the donee.

" And whereas under this deed, I said donor have reserved unto myself a usufruct for my lifetime.

" And whereas it is necessary that I should make it clear that this deed is irrevocable by me I, hereby on signing this deed, do hereby hand over this deed to the donees as a token of the transfer of possession of property hereby conveyed in accordance with the decision of the Supreme Court.

" And I further declare that I have given up every right I may have under any law whatsoever to revoke this deed."-

Held, that the donor intended to make a valid gift inter vivos to take effect at once as recognized by Muslim law and that the deed failed of being a valid Muslim gift since under it possession did not pass.

Weerasekera v. Peiris (34 N. L. R. 281) distinguished ; Sultan v. Peiris (35 N. L. R. 57) explained and followed.

THIS was an action under section 247 of the Civil Procedure Code brought by the plaintiffs to have it declared that a certain land and premises were not liable to be seized and sold in execution against the defendant, as executor of the estate of one Nona Nei, wife of N. E. M. Pakir, a Muslim. Plaintiff claimed the premises by virtue of a deed of gift No. 1,176 dated September 4, 1924, under which the said Pakir donated them to their father Abdul Rahim. The relevant parts of the deed of gift are set out in the headnote.

On June 17, 1927, by deed No. 2,592 the donor purported to revoke the deed of gift No. 1,176 on the ground that the words therein, declaring it irrevocable had been inserted by the notary without instructions and also on the ground of ingratitude and disobedience by the donee.

On the same day Pakir arid his wife Nona Nei made a mutual will by which, subject to certain requests, they bequeathed the residue to the survivor.

Abdul Rahim, the donee, died on July 31, 1929, predeceasing the donor Pakir who died on September 23, 1927, leaving the plaintiffs as his heirs.

Nona Nei died in 1931, owing money to first defendant who in D. C. Colombo, 53,810 obtained judgment for Rs. 6,000 against second defendant as executor of her estate. The first defendant sought to execute his judgment on the property as belonging to Nona Nei under the mutual will as against the plaintiffs, who claimed under the

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