Elmandry and Others v Salem (Civil Appeal No. 30 of 1956) [1950] EACA 313 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR RONALD SINCLAIR (Vice-President), BRIGGS and BACON. Justices of Appeal

### (1) HAIDER BIN MOHAMED ELMANDRY, (2) MOHAMED BIN ISSA BIN SALIM, (3) FATUMA BINTI SALIM BIN ISSA, (4) SALIM BIN MOHAMED BIN SALIM, (5) SALIM BIN ALI BIN SALEM, Appellants (Original Plaintiffs)

#### $\mathbf{v}$ .

### KHADIJA BINTI ALI BIN SALEM alias BIMKUBWA, Respondent (Original Defendant)

# Civil Appeal No. 30 of 1956

(Appeal from the decision of H. M. Supreme Court of Kenya, McDuff, J.)

Muslim Law—Gift of land—Whether retention of rents and profits by donor invalidates gift—Costs taxed in the Supreme Court reduced.

The appellants were the executors and heirs of a Muslim of the Shafei school who during her lifetime had made a gift of a house and land to her niece, the respondent. After the transfer had been registered the house and land were leased by the respondent to the deceased for 20 years, subject to defeasance on the death of the deceased, at a nominal rent of Sh. 30 per annum. The appellants sued for a declaration that the gift was invalid under Muslim Law and for rectification of the register. The Supreme Court held that the gift was valid and made an order for delivery up to the respondent of the certificate of title which had been found among the deceased's effects.

Held (29-9-56).—(1) The reservation in form of any interest similar to a life interest or the reservation of any effective control over the corpus of the gift will invalidate the gift.

(2) The reservation of the annual fruits of the property without control of the corpus is permissible.

(3) The deceased did not retain a part of what she purported to give, but gave the whole of her original interest and received back something essentially different.

Appeal dismissed. The instructions fee in the Supreme Court proceedings had been allowed at Sh. 9,000 which the Court considered so unduly large that it must have been arrived at unjudicially or on wrong principles and reduced it to Sh. 2,000.

Cases referred to: Nawab Umjad v. Mussumat, 11 Moore I. A. 517; 20 E. R. 195,<br>Phul Bee v. R. P. M., 13 Rangoon 679; Sarifuddin v. Mohiuddin, 54 Cal. 754; Mohamed Abdul Ghani v. Fakhr Jahan Begam, 49 I. A. 195.

S. C. Gautama and S. R. Gautama for appellants.

Todd for respondent.

BRIGGS, J. A.—This appeal raises a narrow, but interesting, point concerning the Muslim law of gifts. The parties are of the Shafei school. Khadija binti Salim bin Issa, now deceased, was the registered proprietress of a piece of land and house at Mombasa which she had let to two tenants at rack rents. She was the aunt of the respondent, Khadija binti Ali bin Salim, and desired to give the house to her niece while continuing to enjoy during her lifetime the rents and profits thereof.

On 25th January, 1944, she transferred the land and house to the respondent by a transfer which on 8th February was duly registered. At the same time and, as is now conceded, as part of the same transaction the respondent executed a

lease of the land and house to the deceased for her lifetime at a nominal rent of Sh. 30 per annum. The registering authority rejected this lease as unfit for registration on the ground that a registrable lease must be for a fixed term. On 12th May a new lease was executed, again at a rent of Sh, 30 per annum, but expressed to be for a term of 20 years, subject, however, to immediate defeasance on the death of the lessee. This was duly registered.

The deceased paid to the respondent through her husband the full rents of the house for January, February, March and April and the proportion for 1st to 11th May. Thereafter she paid the nominal annual rent until her death in 1953. At the time of her death the certificate of ownership was in the deceased's possession and among other title deeds of property which she owned; but there was evidence, which the Court below accepted, that after the transfer the certificate had been handed to the respondent and was later by her returned to the deceased for safe custody.

The transfer contains a declaration by the deceased that she had put the respondent into possession. The parties also visited the house, and there the deceased said, "This house I am giving you, and have possession with my full consent". The respondent replied "I accept this, and I take possession". The tenants were not asked to attorn to the respondent, since it was intended that the deceased should continue to collect and enjoy the rents under the lease. The deceased covenanted in the lease to keep the house in repair and to pay outgoings.

The executors and heirs of the deceased sued jointly, alleging that the gift of the land and house was invalid by reason of the provisions of Muslim law, and claiming a declaration and rectification of the register. The respondent contended that the gift was valid, and asked for an order for delivery to her of the certificate of ownership. The Supreme Court held the gift to be valid and made the order for delivery. The executors and heirs appeal.

The facts are now for the most part agreed, but the appellants ask us to differ on two points from the learned trial Judge. They contend that the receipts given by the respondent's husband for rent were fabricated and that no rent was really paid, and they say that the deceased's possession of the certificate of ownership with her other titles indicated some retention of control by her, and was not merely for safe custody on behalf of the respondent. I have listened with care to the argument on these points, for either of them might have some importance; but I am quite unable to discover any sufficient ground for reversing the findings of the Court below. There was ample evidence to support them and it was primarily a question of credibility. I think the findings must stand,

The question is then whether on these facts the gift is valid or invalid under Muslim law. It is not disputed that a Muslim of full age and sound mind, as the deceased was, can in certain ways and by appropriate forms dispose of any of his property to any living donee, but the question is whether any of the numerous restrictions on that power applies in this case. It is contended first for the appellants that there was no delivery of possession. See Mulla, Principles of Mahomedan Law, 13th ed., paras. 149 and 150. There are two answers to this. First, I think that not only the heirs, but also the executors, of the deceased are bound by the declaration in the transfer. There are no special circumstances to enable the Court to go behind that declaration. *Mulla*, para. 150 (4), Secondly, I think that possession was given as completely as in the circumstances the law required. When house property is in the occupation of a tenant, a request to him to attorn is only one of the means of transferring possession. Here there were various matters, all indicating such a transfer—the formal words on the site, the

receipt of the certificate of ownership duly endorsed, the receipt of rent, and the granting of the lease, *Mulla*, para, 152 (2). I think there was no defect in the gift on this formal ground.

There is, however, a much more serious objection of substance. It is clear that a gift to take effect *in futuro* or on a contingency is bad. *Mulla*, paras, 162 and 163. It is contended that on a correct view of the facts of this case the gift was invalid under these rules. Remembering the principle that the heirs' rights of inheritance must be safeguarded, the Court must look to the substance of the transaction as well as the form. Since the practical effect of what occurred was to confer a benefit on the respondent with effect from the death of the deceased, but she took no substantial benefit before that death, it is necessary to see that this gift comes within a recognized exception to the general rule against future or contingent gifts, or, as one may regard it, is governed by a different principle.

The respondent contends that this gift is within the special class of "Hiba-basharat-ul-iwaz", or "gift with a stipulation for return". A good example of this is to be found in Nawab Umjad v. Mussumat, 11 Moore I. A. 517, 20 E. R. 195. A transferred Government promissory notes to B, subject to a condition that B should pay the interest thereon to A during his lifetime. There was no condition reserving any dominion or control over the corpus of the property transferred. The Privy Council held that the gift was valid, and so also was the reservation of the income, a valid trust being created in favour of A. This was a Shia case; but the same principle has been held to apply to Sunnis, and should accordingly, I think, be considered applicable to Shafeis unless authority to the contrary be found. Later cases have extended this principle to cover payment of rents and profits to a third party during his lifetime.

On the other hand, the appellant contends that this case is within the principles laid down in *Phul Bee v. R. P. M.* 13 Rang. 679, and *Sarifuddin v.* Mohiuddin, 54 Cal. 754. In the former case the donee claimed under a deed of trust which reserved to the donor a life interest in the subject matter of the gift, including the right to possession during his lifetime. In the latter the question was whether this was really a gift on conditions or a sale, in which case it was governed not by Muslim law but by the Indian statute law. The deed reserved to the donor, not the rents and profits of the property, but an annuity of a fixed amount which might have exceeded the rents and profits. She also reserved the right to possession of part of the subject-matter. It was held that the transaction was really a sale.

Without quoting at length from these cases, I think it may be said with confidence that (1) the reservation in form of any interest similar to a life interest $\frac{1}{2}$ will invalidate the gift; (2) the reservation of any effective control over the corpus of the gift will similarly invalidate; but (3) the reservation of the annual fruits of the property, without control of the corpus, is permissible. It seems to me important to remember that the corpus of the gift in this case was not the house and land in a physical sense, but the "freehold" interest of the registered proprietor thereof. That passed immediately and irrevocably on the transfer. The respondent had then complete and unrestricted control over the "freehold", and could have transferred it at any time, subject to the lease after it was registered. I think the correct way to regard the lease is as being mere machinery to implement the right of the deceased to receive the net rents and profits. I think it does not matter that she was to collect them with her own hand. Her limited interest was not, I think, something retained, or rendering the transfer incomplete, but something agreed to be given, and given back to her, which was different in kind, though derived, from the absolutely transferred freehold. I admit that the distinction is fine; but Muslim law is full of fine distinctions, particularly where limited exceptions have been carved out of general rules. Often

practical convenience demands that an exception be made, but tradition hedges it about with technical rules in jealous regard for the safety of the principle. These considerations satisfy me that the retention, in one sense, of possession of the property by the donor is not sufficient to invalidate the gift. For her possession under the lease was something different in kind from her previous possession as proprietress. She did not retain a part of what she purported to give, but gave the whole of her original interest and received back something essentially different. See also Mohammed Abdul Ghani v. Fakhr Jahan Begam, 49 I. A. 195, 208, particularly on the issue of possession.

For these reasons I think the decision of the learned trial Judge was right, but there is one further matter which requires consideration. The value of the house and land in issue in this case was given as Sh. 9,400. This is said to be an old valuation and the value may now be substantially more, but the figure is a rough indication of the amount involved. The hearing lasted one and a half days and the costs, as stated in the decree, were taxed at Sh. 10,788/50. This sum seemed to us so fantastically high that we have examined the bill of costs. The profit costs include 74 items amounting as taxed to Sh. 9,966/75. Witnesses' expenses are Sh. 315, and other disbursements Sh. 507. There is an arithmetical error of 25 cents. It may be noted that the costs of an adjournment were séparately taxed and paid, the profit costs being Sh. 360. In the main bill only one item is excessive, namely the fee for instructions to defend. Sh. 10,000 was claimed and only Sh. 1,000 was taxed off. I consider the sum of Sh. 9,000 allowed so excessive as to indicate that it must have been arrived at unjudicially or on erroneous principles. This is merely a "getting-up" fee. Even attendances to take witnesses' statements are separately charged. Admittedly this bill was taxed under the old Kenya rules, and many of the sums allowed by that scale are unduly low: for example, the first day's hearing fee is only Sh. 180. Allowance must be made for this in fixing the instruction fee. But even so, the figure of Sh. 9,000 would be appropriate only to a long and heavy case. I do not wish to be critical of the taxing officer, particularly since he was almost wholly without experience of taxations when he taxed this bill; but I think he must have failed entirely to consider relevant factors, such as the small sum involved, the comparatively short time occupied in hearing, and the very modest amount of research required to examine the issue of law. The respondent's advocate did not question our jurisdiction to vary the decree by reducing the amount of the costs and preferred to leave questions of quantum in our hands. I would vary the decree by substituting a sum of Sh. 3,788/50 for that of Sh. 10,788/50. This involves a notional reduction of the instruction fee from Sh. 9,000 to Sh. 2,000, which I consider to be the highest figure which could properly be allowed for instructions in such a case. I am surprised to find that the appellants' advocate has taken no steps to attack the taxation. I therefore see no reason to deprive the respondent of any of the costs of this appeal. I would dismiss the appeal with costs.

SINCLAIR, Vice-President.—I agree.

BACON, J. A.—I agree.