Casie Chetty V. Mohamed Saleem Et Al.,

 

1940     Present: Keuneman and Cannon JJ.

 

CASIE CHETTY v. MOHAMED SALEEM et al.

 

320-D. C. Colombo, 820.

 

Muslim law-Deed of gift-Immediate transfer of dominium-Possession not given-Validity of gift-Law applicable.

 

Where a deed of gift by a Muslim manifests an intention to make an immediate transfer of the dominium to the donee, the deed is governed by the Muslim Law.

 

In such a case, if possession of the subject-matter of the gift is not given by the donor to the donee, the gift fails as an essential condition under the Muslim Law has not been complied with.

 

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

 

APPEAL from a judgment of the District Judge of Colombo

 

H. V. Perera, K.C. (with him Tillainathan), for plaintiff, appellant.

 

S. A. Marikar (with him M. M. K. Subramaniam), for fourth and fifth defendants, respondents.

 

Cur. adv. vult.

 

October 10, 1940. KEUNEMAN J.-

 

In this case the facts are as follows : -Ashiya Umma was entitled to two contiguous lots of land depicted in plan P 3. By her deed 4 D 1, of June 5, 1930, she purported by way of gift " to grant, convey, assign, transfer, set over, and assure " the premises in question to the second to fourth defendants " as a gift inter vivos absolute and irrevocable ". The gift was made subject to a condition, which was fully set out in the habendum clause, namely, " that I the said Ashiya Umma shall during my lifetime have the right to take and enjoy the rents, profits, issues, and income of the said premises ". The only question discussed in the case is the validity of this deed of gift.

 

Subsequently, Ashiya Umma, by her deed P 1 of August 30, 1930, purported to declare that the said deed 4 D 1 was null and void, and to revoke, cancel, annul, and make void the said deed. It was not argued in this case that the said revocation had any legal effect.

 

On the same day, by deed P 2, Ashiya Umma gifted to the first defend­ant the divided allotment of land marked " A" in plan P 3, and more fully described in the schedule to the plaint. P 2 does not contain any reservation of a life-interest in favour of the donor.

 

Thereafter, the first defendant mortgaged the premises donated to him, the mortgage bond was sued upon, and the premises in question were sold in execution and purchased by the plaintiff, who obtained conveyance P 4 dated July 27, 1936.

 

Plaintiff in this action sued for declaration of title, ejectment, and damages. In his judgment, the learned District Judge dismissed his action, and the plaintiff appeals.

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