Ahayani Umma V. Kamaldeen

1955 Present: K. D. de Silva, J., and H. N. G. Fernando, J.

AHAYANI UMMA, Appellant, and K. S. KAMALDEEN,
Respondent

S. C. 562-D. C. Kandy, 3,899/L

Donation-Clause therein conferring benefit on a third party-Acceptance--Applicability of law relating to a contract creating a stipulation in favour of a third party.

A gift of immovable property by A to B subject to the life interests of A and C is, so far as C is concerned, a contract creating a stipulation in favour of a third party (C). The benefit of the stipulation (life interest) in C's favour may be accepted by C after the death of A.

APPEAL from a judgment of the District Court, Kandy.

H. W. Tambiah, with H. L. de Silva, for the defendant appellant.

N. D. M. Samarakoon, for the plaintiff respondent.

Cur. adv. vult.

December 8, 1955. DE SILVA, J.-

K. S. Kamaldeen the plaintiff respondent instituted this action against Ahayani Umma the defendant appellant for a declaration that he is entitled to a life interest in the premises No. 2/9, Slaughter House Road, Kandy, and for the ejectment of the defendant and for damages. The learned Additional District Judge entered judgment in favour of the plaintiff. This appeal is from that judgment.

It was averred in the plaint that Maimoon Umma who was admittedly the sole owner of the premises in question, gifted by deed P1 dated 2nd November, 1950, a half share of the same to one Leithen subject to a life interest in favour of the plaintiff and that she gifted the balance half share by deed P2 of the same date to the defendant also subject to a life interest in favour of the plaintiff. The plaintiff was the 2nd husband

of Maimoon Umma while the defendant is the daughter of Maimoon Umma by her first husband. The plaintiff alleged that on or about 13th September, 1952, the defendant entered into forcible occupation of the premises and continued to be in wrongful possession of the same. The defendant in her answer denied that the half share conveyed to her on deed P2 was subject to the life interest in favour of the plaintiff. The only witness called at the trial was Mr. Jaimon, Proctor and Notary, who attested the deeds P1 and P2. Although there is no evidence that Mai-moon Umma is now dead the trial appears to have proceeded on the footing that she died prior to 13th September, 1952, the date on, which the defendant is alleged to have taken wrongful possession of the premises.

The decision of this case depends on the interpretation of deed P2. The relevant part of this deed reads:-" I Maimoon Umma in consideration of natural love and affection which I bear unto . . . Ahiyam Umma .... give grant, convey, transfer, set over and assure unto the said donee her heirs executors .... by way of gift absolute and irrevocable the houses and premises fully described and set out in the schedule hereto .... to have and to hold the said houses and premises hereby gifted and conveyed with the rights and all appurtenances unto the said donee and her aforesaid absolutely forever subject to the condition, mortgage, lease etc. Subject to the further condition that I the donor do hereby reserve my life interest in and to the houses and premises hereby conveyed. " By this deed eight properties were gifted and they are described in the schedule. At the end of this schedule referring to properties 6, 7 and 8 it is stated as follows :-" Which said houses and premises marked Nos. 6, 7 and 8 in the above schedule held by me the above donor upon the above said deed No. 5393 dated 11th May, 1889, subject however to a life interest in favour of Cader Saibo Kamaldeen of No. 6, Slaughter House Road, Kandy. "

Admittedly the property No, 7 in P2 is identical with premises No. 2/9, the subject matter of this action. It was contended on behalf of the appellant that the reference to the life interest in favour of the plaintiff at the end of the schedule on P2 was a mere recital whic

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