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

MUTTALIBU, Appellant, and HAMEED, Respondent

S. C. 335-D. C. Kandy, 2,308

Muslim law-Benami transaction-Not recognized in Ceylon-Usage-Proof, and judicial notice, thereof-Evidence Ordinance (Cap. 11), S. 57-Donation-Ingredients thereof.

Trusts Ordinance (Cap. 72)-Sections 2 and 84-Purchase of property by father in name of son-Equitable doctrine of advancement-Resulting trust-Burden of proof.

A, An Indian Muslim domiciled in Ceylon for fifty years, provided the consideration to four vendors, B. C. D. and E, who thereupon transferred by deed property to F who was the son of A. A and F having fallen out, A sued F (a) for a declaration that F held the property in trust for A, or (b) for a declaration that (i) the four properties, or (ii) the consideration for the four transfers, were gifts to F by A, who was entitled to revoke the gifts.

It was sought to be argued, in view of the decisions of the Privy Council in Gopeekrist Gosain v. Gungapersaud Gosain (1854) 6 Moore's Indian Appeals 53 and Moulvie Sayyud Uzhur Ali v. Musswmat Beebee Ultaf Fatima (1869) 13 Moore's Indian Appeals 232, that the usage in India known as Benami transactions applied to this case and that, therefore, F held the lands or the consideration as a trustee for his father A.

Held, (i) that there was no proof that the usage in India known as Benami transactions had been introduced into Ceylon. The Muhammedan Law which prevails in Ceylon is so much, and no more of it, as has received the sanction of custom or usage in Ceylon. Abdul Rahiman v. Ussan Umma (1916) 19 N. L. R. 178 followed.

(ii) that the existence of a usage is a question of fact, and must be proved by the evidence of persons who become cognizant of its existence by reason of their occupation, trade, or position. A usage is not proved by merely bringing the person interested in establishing its existence to give oral evidence of its existence unsupported- by other evidence. A usage must be notorious,, and certain, and must not offend against the intention of any legislative enactment. A usage passes through three well marked stages, namely, (a) the primary stage when the particular usage must be proved with certainty and precision, (b) the secondary stage when the Court has become to some degree familiar with the usage, and when slight evidence only is required to establish it, and (c) the final stage when the Court takes judicial notice of the usage and evidence is not required. Quaere, whether, in view of the terms of section 57 of the Evidence Ordinance, a Ceylon Court can take judicial notice of a usage. Dodwell & Co. V. John (1915) 18 N. L. R. 137 and Kumarappa Chetty v. Ceylon Wharfage Co. (1905) 2 Bal. 120 referred to.

(iii) that it is a well settled principle of Equity, which is recognized by section 2 of the Trusts Ordinance, that where a father or person in loco parentis purchases property in the name of his child or wife there is a strong initial presumption that such transfer was intended for the advancement of such child or wife, and the provisions of section 84 of the Trusts Ordinance do not apply to such transaction. The onus in such cases is, therefore, on the party seeking to establish the trust to prove that fact. F, therefore, did not hold the lands or the consideration in trust for his father A. Fernando v. Fernando (1918) 20 N. L. R. 244 and Ammal v.kangany (1910) 13 N. L. R. 65 approved and applied.

(iv) that the transactions could not be regarded as donations either of the lands or of the consideration given by A. Affefudeen v. Periatamby (1909) 12 N. L. R. 313 dissented from.

APPEAL from a judgment of the District Court, Kandy.

S. J. V. Chelvanayagam, K.C., with H. W. Tambiah, for the plaintiff appellant.-When a person buys property in the name of his son the transaction may be regarded either as a trust or as a gift. Viewed as a trust section 84 of th