Aliya Marikar Abuthahir V. Aliya Marikar Mohammed Sally

1942 Present: Howard C.J., Moseley S.P.J., Soertsz, Hearne and
Wijeyewardene JJ.

ALlYA MARIKAR ABUTHAHIR v. ALlYA MARIKAR
MOHAMMED SALLY.

110-D. C. Kegalla, 1,351.

Muslim deed of gift-Reservation of life-interest in donor-Fidei commissum attached to the gift-Valid fidei commissum created-Roman-Dutch law.

A Muslim executed a deed of gift in favour of one of his sons, reserving to himself and his wife, if she survives him, the right to. take, enjoy and receive the rents and profits of the property gifted, during their lifetime.

He also reserved to himself the right to revoke and cancel the gift at his will and pleasure.

The gift was also subject to a fidei commissum in favour of the donee's children.

The donee and the donor's wife accepted the gift.

Held, that .the deed created a valid fidei commissum, and was a valid gift under the general law although between Muslims.

Weerasekere 11. Peiris (34 N; L. R. 281) followed.

Sultan v. Peiris (35 N. L. R. 57) over-ruled.

THIS was a case referred to a Bench of five Judges under section 51 of the Courts Ordinance.

The facts are as follows:

A Muslim, Tamby Lebbe Aliya Marikar, executed a deed of gift in favour of one of his sons, Mohamed Sally, the defendant-appellant.

The deed contained the following provisos:

(a) That the said Aliya Marikar shall be at liberty and the right is hereby reserved to him to take, receive and enjoy the rents and profits of the said premises during his lifetime and, after his death, his wife shall be at liberty and the right is hereby reserved to her to take, receive and-enjoy the rents and profits of the same during her lifetime, and Aliya Marikar, the said donor, reserving the right to revoke or cancel these presents at his will and pleasure.

(b) That the said Mohamed Sally shall not sell, mortgage or alienate the premises but shall only hold and possess the same during his lifetime and, after his death, the same shall devolve on his . children. . . .

(C) In the event of the said Mohamed Sally dying without issue the said premises shall devolve on his brothers and the children of his deceased brother.

The deed of gift was accepted by the donee and the donor's wife.

The donor died in 1934. In 1936 his widow conveyed her life-interest in the property to the plaintiff who is another son. The plaintiff sued the defendant to recover the rents and profits which were wrongfully appropriated by the latter.. The defendant resisted the claim on the

ground that the deed was invalid as it was not implemented by delivery of possession of the subject-matter of the gift to the donee as required by the Muslim law. The learned District Judge held against the defendant.

C. V. Ranawake (with him H. A. Koattegoda and Kariapper), for the defendant, appellant.-The question for consideration is whether the deed of gift executed by Aliya Marikar on August 23, 1928, is governed by the Muslim law or the Roman-Dutch law. It is submitted that it is governed by the Muslim law. A deed of gift between Muslims has to be first tested by Muhammedan law even though the deed purports to contain a fidei commissum, the validity of which must admittedly be tested by Roman-Dutch law. This is the rule as laid down by the Supreme Court in Weerasekere v. Peiris[(1931) 32 N. L. R. 176 at 181]. This rule is not affected by the judgment of the Privy Council in that same case. In the deed of gift considered by the Privy Council in Weerasekere v. Peiris[ (1932) 34 N. L. R. 281.] it was held (1) that there was an intention to execute it under the Roman-Dutch law, and (2) that it was a gift in futuro. In both these respects the deed in the present case differs from the deed in Weerasekere v. Peiris (supra), for the deed in this case is prima facie a Muslim gift and, further, it is a gift in praesenti. The District Judge was, therefore, wrong in giving judgment against the appellant on

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