1948 Present: Canekeratne and Gratiaen JJ.

SARAUMMA, Appellant, and MAINONA et al,
Respondents

S. C. 423-D. C. Kandy, 1,527 

Muslim law-Gift by father to daughter-Revocability-Muslim Intestate Succession and Wakfs Ordinance (Cap. 50)-Proviso to section 3.

Where by a deed executed in 1941 a Muslim of the Shafei sect granted by way of gift certain property to his daughter and subsequently revoked the gift-

Held, that there was nothing in the first part of the proviso to section 3 of the Muslim Intestate Succession and Wakfs Ordinance (Cap. 50) to show that the power of revocation inherent in such a case has been modified or varied.

 APPEAL from a judgment of the District Judge, Kandy,

H. W. Tambiah, with M. A. M. Hussein, for the plaintiff appellant.

No appearance for the defendants respondents.

Cur. adv. vult.

 September 23, 1948. CANEKERATNE J.-

This is an appeal by the plaintiff from a judgment dismissing her claim to an undivided two-ninth shares of a land. By deed P 5 dated August 120, 1941, one Slema Lebbe granted by way of gift these shares to his daughter the plaintiff, the deed of gift is in Sinhalese and has been attested by a notary practising in the Sinhalese language in a Kandyan district, and like the deed referred to in the case of Cader v. Pitche 1[(1916) 19 N. L. R. 246.], P 5 in some respects resembles a Kandyan deed of gift. The father by deed 3 D 1 dated March 2, 1942, revoked the gift in favour of the plaintiff, and by deed 3 D 2 sold those shares to the third and fourth defendants-respondents. The learned Judge held that the effect of the proviso to section 3 of Cap. 50 of the Ceylon Legislative Enactments is to make every gift revocable unless it is stated in the deed that it is irrevocable.

Mr. Tambiah contended firstly that deed P 5 was irrevocable and secondly, that it could not be revoked except in the course of judicial proceedings. As there was no appearance for the respondents and we have had no assistance on their behalf it is not desirable to say anything more than what is required for the decision of the present case.

The parties to the action are Sunni Muhammadans of the Shafei sect to which most Muhammadans who are natives of Ceylon belong. The other principal sects of the Sunni school are the Hanafis, Malikis and

Hanbalis. Two of the conditions necessary for the validity of a gift, according to the Hanafi Law, are (1) acceptance, expressed or implied, subject to exceptions in the case of a gift to a minor son, &c., (2) seisin by the donee of the subject of the gift, i.e., if the property is not already in the hands of the donee. Seisin might be actual or constructive 1[Ameer Ali, Muhammadan Law (4th Ed.), Vol. I, 113, 114. See 14 N. L. R. 295 , 26 N. L. R. 446, p. 448.]. Actual delivery of possession is not absolutely necessary. If the character of the possession changes, the mere retention of the subject-matter of the gift in the hands of the donor, would not affect the validity of the gift A gift of immovable property in the occ