Mohamed Cassim V. Abdul Jabbar Et Al

1951 Present: Basnayake J. and Gunasekara J.

MOHAMED CASSIM, Appellant, and ABDUL JABBAR et al.,
Respondents

S. C. 115-D. C. Kandy, 1,556

Muslim Law-Conditional gift- Validity.

Where a Muslim made a gift of certain premises to another Muslim subject to the condition that the donee should render all necessary assistance and succour to the donor so long as the latter lived and that after the donor's death the property should continue to remain in the donee and his heirs, executors, administrators and assigns

Held, that there was a valid conditional gift. In Muslim Law contingent gifts are void but conditional gifts are good.

APPEAL from a judgment of the District Court, Kandy.

H. V. Perera, K.C., with M. I. M. Haniffa and T. B. Dissanayake, for the plaintiff appellant.

H. W. Tambiah, with P. Somatilakam and S. Sharvananda, for the defendant respondent.

Cur. adv. vult.

October 10, 1951. BASNAYAKE J.-

The appeal in this case came up for hearing on the 19th of September, 1947, before Justices Canekeratne and Windham. It was decreed that: " If the defendant pays the costs of the contest in the court below and costs of appeal within a period of one month after the bill has been taxed by the plaintiff, the defendant will have the right to put forward the case on this point-that deed D1 is governed by the Roman Dutch Law. It will not be open to the respondent to set up any other defence. The plaintiff will be at liberty to contend that the deed is governed by Muslim Law or otherwise, as the case may be. If the costs are not paid or if the defendant fails in his contention that the deed is governed by the general law judgment will be entered for the plaintiff as prayed for. "

The costs were paid on 14th June, 1949, and when the matter came up for hearing the following issues suggested by counsel for the defendant were agreed on-

(1) Is deed No. 31390 of the 9th December, 1924, marked Dl, governed by the Roman Dutch Law ?

(2) If so, does any title pass to the plaintiff upon the title pleaded by him ?

(3) Damages ? Agreed on at Rs. 10 per month as from 23rd October 1944.

No evidence was led by either side but the arguments of counsel were heard. Thereafter the learned District Judge delivered judgment dismissing the plaintiff's action with costs and holding that the deed Dl was governed by the Roman Dutch Law. The present appeal is from that decision.

I shall first consider the material paragraphs of the deed the original of which is in Sinhalese. There are two translations of the deed. I shall quote from Dl which reads :

" . . . . in consideration of the love and affection which I bear to my dear son Ismail Lebbe's son Abdul Jabbar .... and with the object of receiving from him all assistance and succour I may be in need of do hereby donate grant convey and assign by way of gift with my good will and pleasure unto the said Ismail Lebbe's son Abdul Jabbar the premises described below ....

" Therefore so long as I the said Uduma Lebbe's daughter Mariam Beebee live in this world, the said Ismail Lebbe's son Abdul Jabbar shall render me all necessary assistance and succour. And after my death the aforesaid premises shall devolve on the said Ismail Lebbe's son Abdul Jabbar his heirs executors administrators and assigns, unto whom I do hereby assign the sole authority to hold and possess the same for ever free of dispute or to deal with the same at will and pleasure. "

It is contended that this is a gift to take place upon death and as such is invalid according to Muslim Law but valid according to Roman Dutch Law. Counsel for the respondent laid great emphasis on the word " devolve " in the context " the aforesaid premises shall devolve on the said Ismail Lebbe's son Abdul Jabbar ". He argued that the word suggests that the donor retained the property for herself during her lifetime and stipulated that it should pass only on her death.

Ne

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