059-SLLR-SLLR-2003-V-2-RAHUMATH-UMMA-v.-ANSER-AND-OTHERS.pdf
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RAHUMATH UMMAv
ANSER AND OTHERS
COURT OF APPEALDISSANAVAKE, J. ANDSOMAWANSA, J.
A.212/90, (F)
C. GALLE 23212/PMAY 17, 2001OCTOBER 29,2002 ANDFEBRUARY 18, 2003
Muslim Intestate Succession Ordinance, No. 10of 1931 – section 3 – Donation- Deed c.f nift in consideration of love and affection – Is it revocable? –
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Kandyan Law Ordinance, section 4(i) – Comparison – Findings of primaryfacts by trial judge – Can they be disturbed?
The original owner “L” gifted the subject matter to the 3rd defendant-appellantin 1977, and had by a deed of revocation in 1980 revoked the said deed. It wascontended that as the deed of gift was executed in consideration of the loveaffection, succour and assistance expected of the donee – niece – it is unre-vocable.
The District Court held with the plaintiff-respondent, that the deed is revoked.
On Appeal
Held:
With the enactment of Muslim Intestate Succession Ordinance in 1931the law pertaining to donations and their revocation are governed bystatute and it is no longer speculative but very much settled.
In terms of the proviso to section 3, “No deed if donation shall be
deemed to be irrevocable unless it is so stated in the deed”
The trial judge who had the greater advantage of hearing, seeing andobserving the demeanour of the witnesses has accepted the evidenceof the witnesses as to the due execution of the deed. It is well estab-lished that findings of primary facts by a trial judge who hears and seeswitnesses are not to be lightly distincted on appeal.
APPEAL from the judgment of the District Court of Kegalle.
Cases referred to:
Sinna Marikkar v K. Thangaratnam – 57 NLR 260
Fraddv Brown & Co. Ltd., – 20 NLR 282
Alwis v Piyasena Fernando – (1993) 1 Sri LR 320
Manohara de Silva with Samantha de Silva for 3rd defendant-appellantFarook Thahir with A.L.M. Mohamed for plaintiff-respondent.
Cur.adv. vult
17 October, 2003
SOMAWANSA, J.
The plaintiff-respondent instituted the instant action in the 01District Court of Kegalle to partition the land called “MawathgodaWatte Kattiya” and “Mawathugoda Kattiya” morefully described inthe schedule to the plaint.
The position taken by the plaintiff-respondent was that theoriginal owner Mohamed Lebbe Meera Lebbe who had by deed No.
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366 dated 31.03.1977 marked P1 gifted the property sought to bepartitioned to the 3rd defendant-appellant had subsequently bydeed of revocation No. 882 dated 21.05.1980 marked P2 revokedthe said deed of gift No. 366 marked P1 and by deed of gift No. 883. dated 21.05.1980 marked P3 gifted the said property to his son the1st defendant-respondent. That a few months later the 1st defen-dant-respondent by deed No. 949 dated 21.09.1980 marked P4conveyed an undivided 20 perches out of the land sought to be par-titioned to the plaintiff-respondent. Thus he claimed that he becameentitled to 20 perches while the 1st defendant-respondent to thebalance.
The 3rd defendant-appellant while admitting that the originalowner was Mohamed Lebbe Meera Lebbe and that he by deed No.366 marked P1 gifted the land sought to be partitioned to her tookup the position that the said Meera Lebbe did not execute the deedof gift No. 822 marked P2 and that in any event the deed of gift No.366 is not revocable under Muslim Law. In the premises, the 3rddefendant-appellant prayed that the action be dismissed and thatshe be declared as having acquired prescriptive title to the land insuit.
At the commencement of the trial, the parties admitted theidentity of the corpus, that Meera Lebbe was the original owner ofthe corpus and that he by deed of gift No. 366 marked P1 gifted thecorpus to the 3rd defendant-appellant. 7 points of contest wereraised by the parties but the main points of contest was whether thedeed of gift No. 822 marked P2 was signed by Meera Lebbe andwhether the deed of gift No. 366 marked P1 was revocable underMuslim Law.
At the conclusion of the trial the learned District Judge by hisjudgment dated 05.07.1990 held with the plaintiff-respondent. It isfrom the said judgment that the present appeal has been lodged.
At the hearing of this appeal, the counsel for the 3rd defen-dant-appellant contended that the deed of gift No. 366 marked P1is not revocable under the Muslim Law as the said deed of gift wasexecuted in consideration of the love, affection, succour and assis-tance expected of the donee who is the niece of the donor and asthe said deed falls within the category of unrevocable deeds asenumerated in the book “Outlines of Mohammedan Law” by Asaaf
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A. Faisee 3rd Edition at page 257.
It appears that in Sri Lanka there had been conflicting judicialdecisions on the law governing donations under the Muslim Law. Inthe absence of any enactment dealing with this aspect of theMuslim Law our Courts have relied mostly on the opinionsexpressed in text books. In construing the opinions expressed bythe Muslim Jurists our Courts have found considerable difficulty.However it is to be seen that with the enactment of Muslim IntestateSuccession Ordinance, No. 10 of 1931 the law .pertaining to dona-tions and their revocation are now governed by statute and it is nolonger speculative but very much settled.
Declaration of law relating to donations is dealt with in section3 of the said Ordinance, No. 10 of 1931 and the proviso reads asfollows:
“For the purposes of avoiding and removing all doubts it ishereby declared that the law applicable to donations not. involving usufructs and trusts, and made by Muslims domiciledin Sri Lanka or owning immovable property in Sri Lanka, shallbe the Muslim law governing the sect to which the donorbelongs:
Provided that no deed of donation shall be deemed to be irrev-ocable unless it is so stated in the deed, and the delivery of thedeed to the donee shall be accepted as evidence of deliveryof possession of the movable or the immovable propertydonated by the deed.”
In the case of Sinna Marikkarv K. ThangaratnamWPer Gratiaen, J.
“The proviso to section 3 of the Muslim Intestate Successionand Wakfs Ordinance (Cap. 50) was enacted for the specialpurpose of relieving Judges in Ceylon of the responsibility ofsolving these knotty problems. The proviso expressly states:
“no deed of donation shall be deemed to be irrevocable
unless it is so stated in the deed”
The only question for decision in that appeal was whether “agift of immovable property by a Muslim lady to her grandchil-dren in terms of a notarial transfer dated 11th December 1935was irrevocable.
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According to the Minhaj et Taliban (Howard’s translation) page235 “a father or any ancestor” may under the Shafei law,revoke a gift in favour of a child or other descendant, providedthat the donee has not irrevocably disposed of the thingreceived, e.g. by selling or dedicating it. Sir Roland Wilson“suspects”, however, that the term “ancestor” in this passageonly includes “the true grandfather but not female ancestorsor false grandparents”. A Digest of Anglo-Mohammedan Law(1930 Edn.) page 430. The learned District Judge adopted this 90latter opinion, and held that the deed was irrevocable.”
Gratiaen, J. observed –
“As the deed of gift in question was made after the provisocame into operation, it is quite unnecessary for us to deter-mine what precisely is meant by the word “ancestor” appear-ing in Mr. Howard’s admirable translation into English of Mr.
Van den Berg’s French translation of a treatise written inArabic. The proviso is intended to remove doubts and difficul-ties on issues of this kind”.
In that case “Mr. Kandiah argued that the Ordinance ought not 100to be given an interpretation which may possibly have theresult of introducing a violent change in what he described as“the common law right of Muslims”.
Gratiaen, J. observed –
“With respect, the Ordinance does not purport to change thegeneral law of Ceylon. It merely limits in certain ways theextent to which recognition can reasonably be given to thepersonal laws of a particular section of the community. Thenecessity for this limitation became apparent when the Courtsfound it increasingly difficult to determine the true scope of nocertain aspects of those personal laws. The language of sec-tion 3 and its proviso are clear and unambiguous, and cannotwork hardship to Muslim donors and donees who take thetrouble to examine it before entering into transactions of thekind to which this action relates.”
It was held –
“Under the proviso to section 3 of the Muslim IntestateSuccession and Wakfs Ordinance a gift of immovable proper-
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ty by a Muslim grandmother to her grandchildren is revocableunless there are words in the deed from which a renunciationof her right of revocation appears either expressly or by nec-essary implication”.
It is submitted by counsel for the 3rd defendant-appellant thatthe judgment in Sinna Marikkar v K. Thangaratnam (supra) hasbeen made in error. In this respect he refers to a paragraph onpage 261 of that case which is as follows:
“Under Kandyan Law gifts are ordinarily -revocable, but thisCourt has held and it is now settled law that when such gift isexpressed to be irrevocable the Donor may not revoke it. I cansee no reason why the principle of these decisions should notbe applied for the case of gifts between Muslims. This view oflaw is affirmed in (the Proviso to) section 3 of theOrdinance….Ever since .the Ordinance passed into Law, aMohammedan deed of donation must be DEEMED TO BEREVOCABLE unless the contrary is so stated in the documentitself.”
He submits that there is a difference between the proviso tosection 3 of the Muslim Intestate Succession Ordinance and thecorresponding Kandyan Law Ordinance. In that –
“Whilst there is express provision in section 4(1) of the afore-mentioned Kandyan law to revoke a deed of gift there is nosuch provision in the Muslim Intestate Succession Act otherthan the aforementioned deeming provision.
He submits that it is therefore necessary to consider what a“deeming provision” is and the meaning of the phrase “provid-ed that”. '
However I am not inclined to agree with this submission. Forthere is no ambiguity in the provisions spelt out in the proviso tosection 3 of the Muslim Intestate Succession Ordinance, No. 10 of1931.
As for the revocation of the deed No. 366 marked P1 theNotary Karunaratne who attested the deed of revocation No. 882marked P2 testified to the due execution of the said deed. His evi-dence revealed that Meera Lebbe was residing at Galigamuwa and• the said deed had been signed at his residence, that he had known
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Meera Lebbe personally, that before signing the deed he spoke toMeera Lebbe and was satisfied that he was of sound memory andmental condition that he had no doubts regarding his mental capac-ity to execute the said deed of revocation, that as Meera Lebbe waspartially paralysed his thumb impression was obtained. He rejects 160the suggestion that the said deed is a fraudulent.deed and also thatMeera Lebbe did not sign the deed. The first witness to the saiddeed Lai Wijeratne also gave evidence and corroborated the dueexecution of the said deed of revocation marked P2.
The learned District Judge who had the greater advantage ofhearing, seeing and observing the demeanour of the witnesses hasaccepted the evidence of these two witnesses, as to the due exe-cution of the said deed. In the case of Fradd v Brown & Co. Ltd <2>the head note reads.
“Where the controversy is about veracity of witnesses, 170immense importance attaches, not only to the demeanour ofthe witnesses, but also to the course of the trial, and the gen-eral impression left on the mind of the Judge of first instance,who saw and noted everything that took place in regard towhat was said by one or other witness. It is rare that a deci-sion of a Judge of first instance upon a point of fact is over-ruled by a Court of Appeal”.
In Alwis v Piyasena Fernando (3)
Per G.P.S. de Silva, C.J.
“It is well established that findings of primary facts by a trial 180Judge who hears and sees witnesses are not be to lightly dis-turbed on appeal.”
For the foregoing reasons I see no reason to interfere with thejudgment of the learned District Judge. Accordingly the appeal ofthe 3rd defendant-appellant will stand dismissed with costs fixed atRs. 5000/-.
The Registrar is directed to send the case record to the appro-priate District Court forthwith.
DISSANAYAKE, J. – I agree.Appeal dismissed.