Kalenderumma V. Marikar Et Al.,

1936 Present : Moseley J. and Fernando A.J.

KALENDERUMMA v. MARIKAR et al.

151-D. C. Batticaloa, 7,907.

Donation-Gift by Muslims-No intention to part with possession-Roman-Dutch law applicable.

Where a Muslim deed of gift was expressed in the following terms : We the said donors, reserving both of our life-interest to the thus described property shall possess and enjoy the produce thereof till our life-time, shall live thereon and make a perfect use of the same. In consideration of the love and affection we bear towards our children and for their shares lawfully becoming entitled to by way of children's rights, and for diverse other reasons, we do hereby donate, convey, and set over unto

them the paddy land, &c and these five persons shall accept in common and possess and enjoy the same according to their pleasure, for ever, subject to the life-interest of both of us, and we the donors and each and every one of us shall have the right to possess and enjoy the produce of the properties till our lifetime. In testimony of having written this deed we the donors do donate unto them and I, for myself and on behalf of the other four minors, have accepted this donation with gratitude and delight.

Held, the donor did not intend to part with the possession of the premises at the time of gift and that the deed, not being governed by the Muslim law, should be given effect to under the Roman-Dutch law.

Weerasekere  v. Peiris (34 N. L. R. 281), Sultan v. Peiris (35 N. L. R. 57), Ponniah v. Jamal et al. (37 N. L. R. 96) referred to.

APPEAL from a judgment of the District Judge of Batticaloa.

In this action the question at issue was whether the deed of donation No. 870 was a valid one. The deed was executed by one Avoovacker Ussenalewaii and his wife in favour of their children, the parties being Muslims. The material portion of the deed is given in the headnote. The learned District Judge held that the deed was not valid under the Muslim law.

H. V. Perera (with him G. E. Chitty), for defendants, appellants. The donors had no intention to make a gift as known to the Muslim law. The language of the deed shows that there was no absolute gift. Even before the grant is made the donors reserve to themselves a life-interest. This suggests that property and possession was to pass after the death of the donors. The Privy Council has in the case of Weerasekere v. Peiris [1 (1932) 34 N. L. R. 281. ] laid down the principles which should govern Muslim deeds of gift. It was there pointed out that all the terms of the deed must be taken into consideration when construing it and where the donor never intended to part with the property in or the possession of the premises during his lifetime or that the donee should have any control over or possession of the premises it must be assumed that a valid gift as understood in the Muslim law was not intended. These principles are of general application and cannot be limited to cases where there is a fidei commissum created. The interpretation put upon the decision of the Privy Council by the Full Court in Sultan v. Peiris[2 (1333) 35 N. L. R. 57.] is not correct. Such an interpretation is not binding. No principle has been laid down by the Full Court. The Chief Justice goes upon one ground and Garvin J. upon another. The Chief Justice insists on the requirement that all the terms of the deed should be examined to see if it shows an intention to make such a gift inter vivos as is recognized by Muslim law. Garvin J. said that if the intention was to make a gift to take effect after the donor's death it is bad under the Muslim law and the intention of the donor must be given effect to under the general law. In any event the present deed is not on all fours with the deed interpreted in Sultan v. Peiris (supra). The policy of the law is to give effect to a deed.

Croos da Brera, for plaintiffs, respondents.-The judgment of th

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