042-NLR-NLR-V-37-MUHSEEN–et-al.-v.-HABEEB-et-al.pdf
198
MACDONELL C.J.—Muhseen v. Habeeb.
1935Present: Macdonell C.J. and Poyser J.
MUHSEEN et al. v. HABEEB et. al.
351—D. C. Colombo, 51,070.
Muslim law—Dowry gift—Gift in futuro—Validity—Intention of parties—
Roman-Dutch law.
A dowry deed promising to pay something in futuro is valid under theMuslim Law.
Per Macdonell C.J.—The intention of the parties so far as it maybe judged by the terms of the deed seems to be that the deed should beinterpreted by the ordinary law of the land.y^PPEAL from a judgment by the District Judge of Colombo.
A. E. Keuneman (with him S. A. Marikar), for defendants, appellants.
H. V. Perera (with him L. A. Rajapakse), for plaintiffs, respondents.February 20, 1935. Macdonell C.J.—
In this case all the parties are Muslims, and in 1926 the defendants,husband and wife, executed a deed No. 999 (P 1) in favour of theirdaughter, the first plaintiff, and her intended husband, the second plaintiff.This deed recites that the defendants, husband and wife, are the ownersof certain property in the Pettah and that a marriage has been arrangedbetween their daughter first plaintiff and the second plaintiff, and thenproceeds to say : “ And whereas in consideration of the said marriagethe said parties of the first part have agreed to pay the said parties ofthe second part a sum of Rupees Thirty (Rs. 30) per month from andout of the rent of the aforesaid premises.
“ Now this agreement witnesseth :(1) That the said parties of the
first part shall and will pay the said parties of the second part each andevery month a sum of Rupees Thirty (Rs. 30) from and out of the rentof the aforesaid premises commencing from this date. (2) In the eventof the said premises, being sold and money deposited in Court it is agreedthat the said parties of the second part shall be entitled to draw from theLoan Board dividend a sum of Rs. 50 per month. (3) In the eventof new properties being purchased out of the funds in Court the rightis hereby reserved to the parties of the second part to recover a sum ofRs. 30 per month out of the rent of such properties.”
The marriage duly took place and for a time the periodical rents outof the premises were duly paid by the defendants to the first and secondplaintiffs. Thereafter payment fell into arrears and the plaintiffs broughtthe present action against the defendants on the deed (P 1) for the arrearsof these rents. The defendants contended that if any monies were duefrom them under this deed they were due from the rents of the propertiesmentioned therein and that as they the defendants had not received therents from these properties there was nothing due from them under thedeed. But the learned Judge found as a fact that the defendants didreceive these rents, and his finding on that point was not challenged onappeal.
The main defence raised at the trial and on appeal by the defendants-appellants was that this deed (P 1) being a promise to pay something,the rents, not in existence at the time of the deed—a promise, that is,to pay something in juturo—the deed was bad by Muslim law, the lawby which it must be governed seeing that all the parties thereto were
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M^CDONELL C.J.—Muhseen v. Habeeb.
Muslims. The learned trial Judge rejected this argument, gave judgmentfor plaintiffs, and it is from that judgment that the present appeal isbrought.
For the appellants it was argued, as it had been below, that this was agift and bad by Muslim law as promising to give something not yet inexistence. It is undoubted law that in Ceylon gifts between Muslimsmust be governed by Muslim law not because of anything in what wecall the Muhammadan Code (vol. I., pp. 919 et sq.), but because by wellunderstood custom the portion of Muslim law governing gifts has beenreceived by the Muhammadan community in Ceylon and has been actedupon by them so as to give it by custom and usage the force of law. Nowthe first thing that strikes you upon reading (P 1) is that it is not a puregift. It is something more. It is a dowry deed expressed in commonform and made in consideration of an intended marriage, and if noquestion of Muslim law arose unquestionably binding by the ordinarylaw of the Island. It does not refer in terms to the Muslim gifts on oron account of a marriage known as Kaikooli or Maggar, and its termsseem to exclude both these species of gifts, Kaikooli being a gift by theparents of the bride to the bridegroom for the behoof of the bride, thebridegroom being a species of trustee thereof, and Maggar being a giftby the husband to the bride after the consummation of the marriage.Cases reported show that it is customary among Muslims in the Islandto make dowry deeds without reference to either of these things, Kaikoolior Maggar; usually these dowry deeds, to judge by reported cases,contain a fidei commissum. But it was argued to us, and this was thestrongest point for the appellants, that no reported case can be discoveredwhere a Muslim dowry deed has been upheld wherein there was a promiseto pay something not yet in existence, something in future. I do notknow that this is quite correct. In the case cited to us, Pakeer Bawa v.Hassen Lebbethe dowry deed is quoted in full and it seems to say thatbefore the marriage the father-in-law had promised to give a certain sumof money, probably therefore something in futuro, to his daughter on hermarriage, and that he was afterwards redeeming that promise by makinga settlement of certain lands to the value of the sum promised. Puttingthe argument for the appellants at its strongest it would be this. Thereare a considerable number of cases reported dealing with the interpreta-tion of dowry deeds among Muslims. None of these cases speak of agift of something not yet in existence, in futuro. This must be taken asa clear indication that the Muslims in the Island consider themselvesbound by that rule of Muslim law that gift in futuro are invalid andcould not be enforced, and that it was with that rule in their minds thatthey have refrained hitherto from making dowry deeds which did containa promise to pay something not yet in existence, in futuro. But thisargument is valid only if the promise to give a dowry is a promise tomake a gift and so to be governed by the law as to gift. This howeverdoes not seem to be correct. In 2 Ameer Ali 440 (5th ed.) we read“ Munafa (profits accruing from land investments, business, industry,&c.)…. are proper subjects of dower”. Tyabji 171 (2nd ed.)
says “The rents and profits of property …. may validly be
14 A. C. R. 61.'
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the subject of mahr", i.e., dower. These passages refer, certainly, todower given or promised to the wife by the husband : does it make anydifference that here it is dower given or promised by the wife’s parents?There seems no reason why it should. The natural conclusion to drawis that dower, if it is a gift at all, is a gift of a special kind, governedby its own rules of which the prohibition as to giving things in futurois not one.
But is the deed (P 1) to be interpreted by Muslim law at all? So faras you can judge the intention of the parties by what they have said,this deed seems a very clear declaration by the parties making it thatthey intended it to be interpreted by the ordinary law of the Island.If so, it would seem to be an instance of what you conclude is.the in-ference to be drawn from the Privy Council decision in Weerasekera v.Peries' that Muslims, if they so wish, can contract out of their Muslimlaw altogether, and this inference is the stronger because this deed makesno reference expressly or impliedly to the only things in Muslim law asto dowry deeds which they seem to have adopted, namely, Kaikooli andMaggar. Applying what seem to be the inference from the Privy Councildecision I would be inclined to say that this deed (PI) was made underthe ordinary law of the Island and not under Muslim law at all. Thesame result, though from a different starting point, is arrived at in thewell known dictum, of Schneider J. in Rehiman Lebbe v. Hassan UssanUrrvma “ I would add that where Mussalmans or Moors in Ceylon go toa Notary and enter into a contract which is valid according to the generallaw prevailing in the Island there should be unequivocal evidence ofan inveterate custom before such a transaction could be pronounced bya Court of law to be invalid or inoperative because of such custom. Astrong presumption arises in such a case that the parties intended to bebound by their contract solemnly entered into, and that from longresidence in the country they had learned to adopt the general law onthe subject unless there was some definite and well reputed custom tothe contrary.”
In the present case there was certainly no “ evidence of an inveteratecustom ”, on the contrary the reported cases seem to show that in thematter of dowry deeds the Muslim community here has adopted theordinary law of the Island.
If then this deed must be interpreted according to Muslim law, thereis authority that the gift promised therein is valid by that law. If itmust be interpreted according to the ordinary law, then it is admittedlyvalid.
It was also urged to us that the promises contained in this deed (P 1),those said to be in consideration of marriage, could only affect the in-tended husband and not the intended wife also. There might be con-sideration moving from the intended husband to support the promiseby the parents in law to him, but there could not be consideration movingfrom the intended wife to support the parents’ promise to her. But inthe view I take of this appeal it does net seem necessary to pronounceon this argument. I am of opinion that the judgment below was right,and that this appeal should be dismissed with costs.
Poyser J.—I agree.Appeal dismissed.
i 34 N. L. B. 281.2 19 N. L. R. 176, at p. 185; and 3 C. W. R. 88, at p. 100.