Uthumalevai Et Al V. Avva Umma

1946 Present : Nagalingam A. J.

UTHUMALEVAI et al., Appellants, and AVVA UMMA,
Respondent.

221-C.R. Kalmunai, 279.

Muslim Law-Prescription-Donation-Minor-Oral gift of immovable property by Muslim father to his minor child-Possession of property by father is possession on behalf of donee.

Where a Muslim father donates immovable property to his minor child, though not effectually by a notarial deed, possession of the property by the father is deemed to be possession by the minor.

APPEAL from a judgment of the Commissioner of Requests, Kalmunai.

C. E. S. Perera, for the defendants, appellants.

C. Renganathan, for the plaintiff, respondent.

Cur. adv. vult.

November 27,1946. NAGALINGAM A. J.-
   
The plaintiff instituted this action for a declaration of the title to 6/11 share of an allotment of land described in the schedule to the plaint. Admittedly the land belonged to one Meera Lebbe Saibu Lebbe. He died leaving two sons and seven daughters. Two of the sons and two of the daughters conveyed their interest in the land in dispute to the plaintiff who is the wife of one of the sons, and the plaintiff on this basis prefers her claim. Her claim is resisted by the 2nd defendant who is also a daughter of Meera Lebbe Saibu Lebbe on the footing that the land in question had been donated to her by her father and that she had also acquired title by prescription. The 1st defendant is the husband of the 2nd defendant. The 2nd defendant has been unable to produce the deed of gift in her favour although she stated in her evidence that to her knowledge a deed was executed by her father in her favour and that the deed was in existence at the date of her father?s death and that it had been taken possession of by the plaintiff?s husband who was her elder brother and that he had not handed it over to her as a result of some ill- feeling between the parties. She further states that although attempts had been made to trace the deed she had been unsuccessful in her attempts. The learned Commissioner properly holds that there is no proof that the land was gifted to her. The 2nd defendant, however , gave testimony and her testimony has been accepted on this point by the learned Commissioner and has not been challenged in appeal- that the father had dowried lands and residing gardens to all his daughters. The learned Commissioner further finds that Saibu Lebbe ? had really set apart the land in dispute for the 2nd defendant?. The foundation for this finding is furnished by deed D1 of 8th October, 1930, by which Saibu Lebbe gifted a portion of land immediately to the north of the land in dispute to another of his daughters , namely, one Mariankandu. in that deed of gift the donor in describing the land gives the boundary on the south as ? the share of garden granted to Kulanthaiummah? who is the 2nd defendant. It would appear to have been contended before the learned Commissioner that this description at any rate furnishes a starting point for prescription as the description of the boundary clearly indicates that he had prior to the date of that gift granted the land in dispute to the 2nd defendant. The learned Commissioner in regard to this aspect of the matter holds that as the father was living on the land in dispute along with the 2nd defendant who was a minor at the date of the deed of gift to Mariankandu and therefore at the date of the gift to her as well, the 2nd defendant cannot count the period of possession by the father till his death which took place in 1937. The

learned Commissioner, however , finds that form the date of the 2nd defendant?s marriage which took place about a year after her father?s death she was exclusively and adversely possessing the land in dispute as her property. This view of the learned Commissioner is contested.

The parties are admittedly Muslims and the question is whether the 2nd defendant can claim the benefit of the fat

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