062-NLR-NLR-V-57-M.-SINNA-MARIKAIR-Appellant-and-K.-THANGARATNAM-Respondent.pdf
•1955Present :Gratiaen, J., and Swan, J;M. SINK A MARIKAIR, Appellant, and K. THANGARATNAM,’Respondent .#S C. ISl—rD. C. Iinlticaloa, 559 (L)
Muslim Law—Donation by graiulmutlier—llcvocubility—Muslim Intestate Succession. and lYakJs Ordinance (C«/>. 60), s. 3..
. Under t)io proviso to section 3 of tlio Muslim Intestate Succession amt WalvfsOrdinance a gift of immovable property by a Muslim grandmother to hergrandchildren is revocable unless tlicro arc words in the deed from vvlueh arenunciation of her right of revonntion appears either expressly or by necessaryimplication.
Appear from a judgment oft lie District Court, Baftic-aloa.
S. J. ]r. Chelva-na-tjakam. Q.C., with ./. K. David-, for the defendantappellant…
V. A. Kandia-h, with »S'. Sha-rvanandn-. for the plaintiff respondent.
Cur. adv. tut It.
November 23, 1955. Gkatjaen', J.—
The only question for our decision on this appeal is whether a giftof immovable property by a Muslim lady to her grandchildren in termsof a notarial transfer dated 1 Itli December 1035 was irrevocable.
According to the 211 inha j ft Ttdibin (Howard’s translation) page 235" a father or any ancestor ” may, under the Shafei law. revoke a gift-in favour of a child or oilier descendant, provided that the donee liasnot irrevocably disposed of the tiling received, e.g., by selling or dedicatingit. Sir Roland Wilson “suspects”, however, that the term “ancestor”in this passage only includes " the true grandfather but not femaleancestors or false grandparents ”. .-I Di/jes! of A ny!o-Jfoliummedan Jmw(1930 Edn.) page 430. The learned District Judge adopted this latteropinion, and held that the deed was irrevocable.
The proviso to section 3 of the Muslim Intestate Succession and WakfsOrdinance (Cap. 50) was enacted for the special inirpo.se ot relievingJudges in Ceylon of the responsibility of solving these knotty problems.The proviso expressly states :
“ … no deed of donation shall he deemed to be irrevocable
unless it is so stated in the deed ….”,■
As the deed of gift in question was made after the proviso came intooperation, it is cjuite unnecessary for us to ' determine what precisely
is meant by the word “ ancestor ” appearing in Mr. Howard’s admirable -translation into English of Mr. Van den Berg’s French translationof a treatise written in Arabic. The proviso is intended toremove doubts and difficulties on issues of this kind. As Garvin -T.observed in Jiazeeka v. Mohamed Sat /tuck , “ Under the Kandyan Lowgifts arc ordinarily revocable, but this Court has held and it is nowsettled law that when such a gift is expressed to be irrevocable the donormay not revoke it. I can see no reason why the jirinciplc of these decisionsshould not be applied to the case of gifts between Muslims. This' viewof the law is affirmed in (the proviso to) section 3' of the Ordinance. ”Garvin .J’s opinion was cited with approval in Jiafecka's case – and,with respect, I think that it should be followed. Ever since the Ordinancepassed into law, a Mohammedan deed of donation (whoever the donormay be) must be deemed to be revocable unless the contrary is so statedin the document itself. Saraumma v. Jfainona3 has decided nothingwhich compels us to take a different view.
Mr. Kandiah argued that the Ordinance ought not to be given aninterpretation which may possibly have the result of introducing a violentchange in what he described as “ the common law right of MuslimsWith respect, the Ordinance docs not purport to change the general law ofCeylon. It.merely limits in certain ways the extent to which recognitioncan reasonably be given to the personal laws of a particular section ofthe community. The necessity for this limitation became apparentwhen the Courts found it increasingly difficult to determine thetrue scope of certain aspects of those personal laws. The languageof section 3 and its proviso are clear and unambiguous, and cannotwork hardship to Muslim donors and donees who take the trouble toexamine it before entering into transactions of ttie kind to whicht his action relates.
In the present case, I find no words in the deed from which a renuncia-tion of the right of revocation appears either expressly or by necessaryimplication. Accordingly, the donor was entitled to revoke the gift,and she did so in fact. Sir. Kandiah conceded that if this he so, thejudgment under appeal must be varied by declaring the plaintiffentitled only to an undivided £ share of the lands in dispute and todamages at Its. IS-75 per month from 27th February 1950 until theyare restored to their rights of co-ownership. The appellant must bepaid his costs in both Courts.
Swan, J.—I agree.
J ud-gment varied.