Noorul Muheetha V. Sittie Leyaudeen

[IN THE PRIVY COUNCIL]

1953 Present : Viscount Simon, Lord Morton of Henryton, Lord Cohen and Sir Lionel Leach

NOORUL MUHEETHA, Appellant, and SITTIE LEYAUDEEN et al., Respondents

PRIVY COUNCIL APPEAL No. 38 OF 1951

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

Muslim law-Fideicommissum-Donation to minors-Acceptance by widowed mother-Validity-Applicability of Roman-Dutch law.

Where a fideicommissum in respect of immovable property was created by a deed of gift between Muslims and, the donees being minors, the gift was accepted on their behalf by their mother, who was a widow-

Held, (i) that the law applicable in determining the authority of the mother to accept the gift on behalf of her infant children was the Muslim law and not Roman-Dutch law.

Weerasekera v. Peiris (1933) 34 N. L. R. 2S1, distinguished.

(ii) that under the Muslim law as received in Ceylon, and in the circumstances of the particular case, the mother had the necessary authority to accept the gift.

APPEAL from a judgment of the Supreme Court reported in (1950) 51 N. L. R. 509.

Phineas Quass, Q.C., with Dingle Foot and S. Canagarayar, for the defendant appellant.

Stephen Chapman, for the respondents.

Cur. adv. vult.

January 12, 1953. [Delivered by SIR LIONEL LEACH]-

The parties in this case are Mahomedans residing in Ceylon. The appeal raises a question of considerable difficulty, namely whether Roman-Dutch law or Muslim law governs, in the matter of acceptance, a gift of immovable property made by a Mahomedan in favour of minors, there being embodied in the deed conveying the property a fideicommissum for the benefit of the donees' children. A fidei commissum is well known in Roman-Dutch law, which is the basis of the law of Ceylon, but it is completely alien to Muslim jurisprudence.

The deed with which the appeal is concerned was executed by Saffra Umma, the paternal grandmother of the respondents, on 28th June,. 1927. The donor was the widow of one Meera Lebbe Marikar Idroos Lebbe Marikar. There were two sons of the marriage, Idroos Lebbe Marikar Mahomed Sathuk, the defendant in the action which has given rise to the appeal, and Idroos Lebbe Marikar Mahomed Zain, the father of the respondents, who died before the execution of the deed. By it the donor conveyed certain immovable property in Colombo to the respondents in equal shares, subject to the reservation of a life interest

to herself, with a fidei commissum for the benefit of the children of the donees on the death of their parents. All the donees were then minors. Their mother, Fatheela Umma, purported to accept the gift on their behalf in these 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 deed also contained this statement :-

" And the said Idroos Lebbe Marikar Mohamed Sathuk who is the paternal uncle of the said donees doth hereby renounce all and every right interest or claim whatsoever which he may or shall have in respect of the said premises hereby gifted adverse to them and in the event of any question arising as to the validity of these presents by reason of the said Donees not being put into possession of the said premises according to law the said Idroos Lebbe Marikar Mohamed Sathuk hereby agrees not to take any objection whatsoever to his advantage or take any other steps whatsoever detrimental to the interests of the said Donees in respect of the premises hereby conveyed."

It is common ground that this clause does not operate to estop the defendant from asserting title to the property. The deed was signed by the donor, the defendant and the minors' mother and was certified by a notary public. It is accepted that it embodies a fidei commissum as known to Roman-Dutch law.

On the 4th February, 1928, Saffra Umma executed a docum

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