Idroos Sathuk V. Sittie Leyaudeen.Et Al.,

1950   Present : Dias S. P. J. and Pulle J.

IDROOS SATHUK, Appellant, and SITTIE LEYAUDEEN, et al., Respondents

S. C. 374-D. C. Colombo, 2,997

Muslim Law-Fidicommisswn created by deed-Donation to minors-Capacity of mother to accept gift-Applicability of Roman-Dutch law-Muslim widow in Ceylon-Natural guardian of her minor children.

(i) Where a fidicommissum is created by a deed of gift between Muslims a Muslim widow is entitled, as natural guardian, to accept the gift for and on behalf of her minor children, when they are the donees. In such a case, the validity of the acceptance has to be determined solely within the framework of the Roman-Dutch Law.

(ii) The principles of Muslim Law which do not recognise a widow as the natural guardian of her minor children are not applicable to Muslims in Ceylon. A Muslim widow is therefore entitled in Ceylon to accept a gift on behalf of her minor children.

APPEAL from a judgment of the District Court, Colombo.

By deed of gift P1 one Saffra Umma created a fidicommissum in favour of the children of the donees. The donees were the minor children of her deceased son. The gift was accepted on behalf of the donees by their mother, Fatheela Umma. The validity of this acceptance was attacked on the ground that the parties to the deed of gift being Muslims, Fatheela Umma, as the mother of the donees, did not have the capacity to accept the gift on behalf of her children.

It was not disputed that Saffra Umma intended to create and did create a valid fidicommissum such as is recognised by the Roman-Dutch law.

E. B. Wikramanayake, K. C., with S. Canagarayer and M. A. M. Hussein, for the defendant appellant.

H. V. Perera, K. C., with if. W. Jayewardene and G. F. Sethukavaler, for the plaintiffs respondents.

Cur. adv. vult.

 July 26, 1950. PULLE: J.-

The appellant in this case is the defendant against whom the plaintiffs have obtained a decree declaring them entitled to the premises described in the schedule to the plaint and for ejectment and damages.

The parties are Muslims. The plaintiffs based their title on a deed of gift No. 1428 of June 28, 1927, marked P1, executed in their favour by one Saffra Umma. The defendant relied on a later deed of gift No. 1483 of February 4, 1928, marked Dl, by which Saffra Umma after purporting to revoke deed No. 1428 gifted the same premises to the defendant. The only point urged in favour of the appeal was that the gift made by P1 was bad for want of a valid acceptance.

One Idroos Lebbe Marikar Mohamed Zain the son of Saffra Umma was married to Sheka Marikar Fatheela Umma, Their children are the plaintiffs of whom the first, who is the eldest, was born on January 4, 1914. At the time the deed P1 was executed, Mohamed Zain, the father, was dead and the plaintiffs were minors.

By the deed of gift P1 Saffra Umma reserved to herself the right to enjoy the rents and profits of the premises during her life time and created a fidicommissum in favour of the children of the donees. There were other conditions and restrictions to which it is not necessary to refer for the purpose of deciding the question arising on this appeal. The gift was accepted by Fatheela Umma in the following words: -

"And these presents further witness that I Sheka Marikar Fatheela Umma who is the mother of the said donees do hereby thankfully accept the foregoing gift for and on behalf of the said donees who are all minors".

The validity of this acceptance was attacked on the ground that the parties to the deed of gift being Muslims, Fatheela Umma, as the mother of the donees, did not have the capacity to accept the gift on behalf of her children.

It is not disputed that Saffra Umma did not intend to make a gift such as is recognised in Muslim Law but that she did, in the word

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