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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wendt.
BABAIHAMY v. MARCINAHAMY et al.
D. C., Oalle, 8,009.
Donation to minor—Acceptancebyminor—Validity—Fidei commissum—
Right of survivorship.
It is competent for a minor to accept a donation in his favour,inasmuch as he is benefited thereby.
Where one of several donees, who were all present at theexecutionof the deed of gift, acceptedthedonation on behalf of
himself and some minor donees and entered into possession of theproperty,—
Held,that suchpossession must beconsidered as possession on
his ownbehalf andon behalf of the minors,and constituted a valid
acceptance of the donation. .
Wherea deed ofgift creates a singlefideicommissum with insti-
tution of the donees’ descendants, so long as a descendant of anyof the donees exists he is' entitled to the possession of the entireproperty.
TiUekeratne v. Abcyesekara1- followed.
PPEAL by the plaintiff from a judgment of the District Judgeof Galle (K. W. B. MacLeod, Esq.). The facts and arguments
fully appear in the judgment of Wendt J.
Bawa (with him A. Drieberg), for the plaintiff, appellant.
A. St. V. Jayewardene, for the defendants, respondents.
Cur. adv. vult.
July 27, 1908. Wendt J.—
The parties are agreed that Tombuage Jando was the originalowner of the property in dispute, and that by the deed No. 1,071 ofJune 5, 1860 (not 1868, as erroneously stated in the translation),he gifted one-half of the soil and the whole of the house to his adopteddaughter Nonkohami, and the other half of the soil to his otheradopted children, her brothers, named Salman, Davit, and Baron.The deed created a fidei commissum. It does not appear that thedonees were any relations in blood of the donor. In 1889 Davit andBaron conveyed to Salman two-thirds of the property, the vendors’title being alleged to be by “ inheritance from parents;” and in 1896Salman sold and conveyed the whole property to Karlentinahami,reciting as his title the deed of 1889 and ‘‘ inheritance from parents.”Neither deed makes mention of the donation of 1860. The “ parents ”never had any title. In 1899 Karlentinahami conveyed to theplaintiff, who, in November, 1905, brought the present action. The1 66 L. J. P. O. SS; 2 N. L. R. 313.
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first defendant is the only child of Nonkohami, who died thirtyyears ago, and tne second defendant is the husband of the first.The added parties are the children and heirs of Salman, who diednine or ten months before the trial. Baron died soon after his deedof 1889, and Davit eight or ten years ago, both of them intestate andwithout issue, so that Salman and the first defendant were their nextof kin.
The learned District Judge finds that neither plaintiff nor hisvendor Karlentinahami ever had possession, and there is no reasonfor disagreeing with that finding.
The plaintiff, a6 I understand, put6 his case in this way: Thedonation was invalid for want of acceptance (the acceptance clausehaving been signed by Salman alone), and Salman alone hadpossession—at any rate since 1889—and he thereby acquiredprescriptive title. As regards this prescriptive title the DistriotJudge has found that it was not established, and I- think that findingright. There remains the question as to acceptance.
The deed of donation recited that the donor was old and infirm,and proceeded, in consideration of his love and affection to the fourdonees, whom he had adopted as his own children, to gift certainlands to them with a fidei commissum in favour of their descendants.The deed then proceeded: “ Thus this deed is caused to be written,signed, sealed, and granted to the said four individuals (namingthem) to be retained with any one of them, on this 5th day of June,1860 a.d., by me, the said Tombuage Jando at Galupiadde. ” Herefollowed the donor’s signature, and then the following paragraph:“ We the said four persons (named) do hereby declare to haveaccepted the above donation granted by Tombuage Jando with thehighest regards, to have entered into possession of the said landfrom this day, and to have bound ourselves to observe the abovedirections without violation or contradiction of even one syllable,and we who are of proper age to sign have also signed hereto.” Herefollowed a cross and Salman’s signature in English characters, andthen the notary’s attestation to the effect that after he had read andexplained the deed to Jando and the donees Salman, Davit, Baron,and Nonkohami in the presence of the witnesses, the same wassigned “ by all the proper parties ” in the presence of each other.From an. inspection of the original instrument it appears probablethat the cross at foot of the acceptance clause was the mark of one ofthe donees other than Salman, which of them there is no evidence todetermine. At all events it is clear that all four donees were presentat the execution of the deed, and. assented to its terms, setting forththat they accepted the donation, and that Salman being of ” properage to sign,” by which I suppose full age is meant, actually signed it.In the body of the deed the donor ” annuls all my rights, title,claim, and demand whatsoever in and to the same from Idle datehereof,” and the acceptance clause witnesses that the donees “ have
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1908.entered into possession of the said lands from this day." It is, I
July 21. think, a fair inference, from the circumstances attending the execu-Wendt jr. tion of the deed, that the donees whose signature do not appear, ifminors, were still old enough to understand the nature of a gift andto express their wishes to the notary. The fact that Salman, theirbrother, was over twenty-one years old. supports this inference.
No case has been brought to our notice which lays down the broadproposition that a person under the age of twenty-one years isincapable of validly accepting a donation. Such a broad proposi-tion would, I think, be contrary to our law. It is true a minor isincapable of binding himself to his own detriment by an onerouscontract, but he can always accept an unequivocal benefit, such as adonation essentially is. Voet, lib. 26, 8, 2, after stating that in somecases the authority of a guardian is not necessary, that in many casesit is both necessary and sufficient, and in certain cases necessarybut not sufficient, lays down that “it is unnecessary in all thosecases in whioh the ward makes his condition better, and does not inturn bind himself to the other party, as where he exacts a stipulationfrom another or obtains possession " (compare 1 Nathan, CommonLaw of South Africa, 159; 1 Maasdorp’s Institutes, p. 246).“ Acts
and obligations entered into by the wards, without the guardian’sknowledge (says Van Leeuwen), are not binding, but void to theextent to which they have been defrauded or prejudiced thereby.But if the wards have profited by the transaction, it will hold good;so that they may stipulate and bind others, and, indeed, bethemselves bound where it is for their benefit, but they cannot bindthemselves to their prejudice.” (I Kotze, p. 135.) Again, aftersaying that minors cannot without the knowledge and assistance oftheir guardians bind themselves, Van Leeuwen adds (ibid., vol. II.,p. 4): “ with this distinction, that by accepting anything fromanother, they may indeed acquire something,, but do not bind them– selves in favour of another further than they have been actuallybenefited thereby.”
So I regard Salman’s brothers and sisters as having been competentto accept, and as having signified their acceptance of, the donation.The deed attests a present transfer of possession, and Salmanadmittedly entered into possession. Twenty-nine years afterwardshe accepts a conveyance of their interest in the land from hisbrothers Davit and Baron, so that they also had possession. Andthis possession, in view of the admission of Jando’s title, is itselfevidence of acceptance of the donation. In view of Salman havingsigned an acknowledgment of acceptance and of entry into possessionby all the donees, I would regard his occupation (even if he hadexclusive occupation) as having been on behalf of his brothers andsister as well as himself, and the District Judge has rightly foundagainst the allegation of prescriptive possession by him. I thereforehold that the title of the donees was completed by acceptance.
The deed of donation did not create two separate fidei commissaof the moities of the land in question, but a single fidei commissum,with institution of the donee’s descendants. It follows that so longas a descendant of any one of the donees exists, he is entitled to thepossession of the whole property as against an alienee of one of thedonees (Tillekeratne v- Abeysekara >)■ The first defendant being sucha descendant, plaintiff’s action fails, and it was rightly dismissed bythe District Judge.
The appeal must therefore be dismissed, with costs.
Hutchinson C.J.—I concur.
July 27.Wendt <T.
BABAIHAMY v. MARCINAHAMY et al