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July 9 and 13.
FERNANDO et al. v. CANNANGARA et al.D. C., Grille, 3,354.
Deed of gift—Acceptance—Gift to minor children—Who may accept a deedof gift.
A deed of gift by a father in favour of certain of his minorchildren contained a clause that the deed, together 'with the donor’stitle deeds of the property gifted, was handed to the child firstnamed in the deed. The deed was in fact handed to a nephew ofthe donor who was present at its execution, and who immediatelythereafter returned it to the donor to get it registered. The donorgave it back to him a month afterwards, and since then it remainedin his possession—
Held, that the donor’s nephew was not a competent person toaccept the gift on behalf of the children, and that the deed wasinoperative for want of a valid acceptance.
'T'HIS was an action brought by four minors through their nextfriend, under the 247th section of the Civil Procedure Code,with the object of freeing from seizure and sale certain shares inthe soil of, and houses standing on, a land called Kosgahawatta.The shares and houses were seized on September 26, 1894, inexecution of a judgment against Eliagedare Tamby alias LewisFernando of Bentota. The minors alleged that through their nextfriend, the fifth plaintiff, they objected to the seizure and sale oft> ,se shares, and their claim being disallowed this action was.nstituted. They averred possession of the land, and based theirtitle to it upon a deed of gift dated 15th June, 1893, which theysaid was duly accepted by them. At the end of this deed therewas a clause which purported to hand the notarial act itself andthe title deed to Charles Fernando, the first-named child in thedeed of gift. The defendants impeached this gift alleging thatthe donor was in insolvent circumstances when he made it, andthat it was made to defeat the claim of the defendants to the costsin the action under which the shares in the land were seized inexecution. They further pleaded that the land remained in thepossession of the donor.
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The District Judge upheld the deed of gift and entered judg-ment for plaintiffs.
The defendants appealed.
Domhorat, for appellant.
Pereira, for respondent.
13th July, 1897. Wuhebs, J.—
The issues agreed upon were the following : —
Have plaintiffs a good title by the deed of gift ?
Was it executed without consideration to defraud thedefendants ?
Was the donor in insolvent circumstances when he madethe gift ?
The defendants were called upon to begin. This was objectedto by their counsel, who said the onus of proving the acceptanceof the gift lay upon the plaintiffs. The plaintiffs undertook thisburden. The fifth plaintiff was called, and he said he was presentwhen this gift was accepted ; that the donation deed was handedto him ; and that he returned it to the donor to get it registered,who returned it to him a month afterwards, since which time ithas been in his possession- These acts, he says, were intended byhim and the donor as acceptance by him for the minors. Thiswitness is the donor’s nephew by marriage, and he lives with thedonor and his children. The donor was called, and he confirmedwhat the former witness said about the acceptance.
The father swears that at the time he made this gift, whichembraces as many as twenty-one lands, he owned other propertyworth three or four‘thousand rupees, and that he owed nothingat the time of the gift to anybody. Afterwards, when he was castin costs by the defendants, he tendered other property of his ownfor execution, but the defendants managed to get the Fiscal toseize part of his children’s property. No evidence was called tocontradict the witness, so I think it must be taken that the giftcannot be said to be void on the ground of fraud.
The only question is, Did this gift pass the shares to the minorchildren ? The District Judge supports the gift. He says, a giftto minor children by a parent is not invalid by reason of the doneesbeing the infant children of the donor. It is too late for us now tosay that a parent cannot legally make a gift to minor childrenunder his or her tutelage in view of previous decisions of this Court,though how that came to be laid down as law in the teethof the Roman-Dutch Law authorities I am not able to7-
July 9 and 13,
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*8®'- understand, it however still remains law that a donation is notJuly 9 and 13. vajj,j UTjess the donee has accepted it. These children were one andWethers, J. all incompetent to accept this gift. As I said before, the deedprofessed to surrender itself and the title deeds to one of thechildren. Now, the case for the plaintiff was that the fifth plaintiffaccepted the gift for the children.
The recent decision on that point is in the judgment of thisCourt in the case of the Government Agent, Southern Province, v.Carolis (2 N. L. R. 72). This lays down two propositions that anacceptance on the face of the document by somo person or other isnot necessary, and that acceptance of a gift will be presumed whenthere are circumstances to justify such a presumption.
The question is, Was this an acceptance, and was the fifth plaintiffcapable of accepting it? I think it was an acceptance if the fifthplaintiff was competent to accept the gift for the children- Voetis at one with Vander Linden, that a donee may signify his intentionof accepting a liberality by a letter or a messenger, who is a livingletter. But I take it that in such a case the donee must himself becompetent to take the gift. Then Voet goes on to say that slavescould accept a gift for their master, but then they were by lawcapable of acquiring property for their master. Indeed, a gift to aninfant too young to speak and to appreciate the nature of the giftcould be accepted by the infant’s slave. So tutors could acceptgifts for Infants, and curators for the insane, and certain publicofficials were competent as such to accept gifts for othersincompetent (Voet, XXXIX. 5,12).
I gather the law to be that a gift can only be accepted at the timeby an agent of the donee, conventional if the donee is competentto appoint one, or one considered by law as his agent, such as ftlegal and perhaps a natural guardian, or by ai~public official.
. I do not think there was any valid acceptance of this gift, thefifth plaintiff not being competent to accept the gift for the children.So I would set aside the judgment and dismiss the plaintiff’s actionwith costs.
Lawbie, A.C. J.—
I agree. Mr. Justice Temple in 1851, in the case reported inRamanathan, 1843-54, p. 114, declared that by the Roman-DutchLaw parents cannot legally make a donation in favour of thechildren who are still minors and under their tutelage. Thatcase was from the District Court of Jaffna, where Roman-Dutch
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Law did not apply, and the case was remitted for inquiry whether l897-there was any local customary law superseding the Roman-Dutch g and 13.Law on the subject. The first case I find reported is Maartensz v. Lawrie,Casinaden, a Batticaloa case reported in Ramanathan, 1863-68, A.C.J.p. 132, where remit was made for further evidence whetherpossession had followed on a donation by a father to his son fromwhich acceptance might be evidenced. Without that evidencethe judgment of this Court implied that the donation would beinvalid. In 1875, in a case reported in Ramanatahan, 1872-75,p. 215, there was a donation by a father to three illegitimatechildren, two of whom were minors at the date of the donation.
He reserved his own life-rent, and thirty years afterwards hedied. The donees then claimed. This Court, setting aside thejudgment of the District Court, held that there were in the casemauy circumstances from which acceptance might fairly andreasonably be implied, but what the circumstances were the shortjudgment does not indicate. Then followed the case reportedin 8 S. C. 0.
Dias, J., said that he had never heard of a single case in whichit was either contended or decided by a court of law that a donationto a minor child is void.
Mr. Justice Clarence also said that he knew of no case in whichsuch a gift was beyond the parent’s power to make. Both theseJudges however concede that in Roman-Dutch Law a donation bya parent to a minor still subject to the donor’s parental authorityis (if not absolutely void) at least revocable or unavailing againstthe parents’ creditors. The Jaffna case in 1851 I have referred toshows that the learned Judge had overlooked one expression ofthe opinion of this Court-, that by the Dutch Law such a dona-tion could not be sustained. The case reported in 8 S. C. C.is peculiar. There the donation was to the mother and the childof the donor. It was accepted by the donee, and was certainlygood as regards the one-half gifted to her. It appears that theminor child lived with the grandmother, for we read of the minorand the grandmother having entered into and having remainedin possession independently of the father, the donor. There, too,there was express acceptance by the grandmother for herself andfor the minor.
The last case of a donation to a minor is not in point, for therethe donation was not by the parents, but by the grandparents, andthe property donated came into the possession of the minor’sparents. The Chief Justice (Bonser) held, and I agreed withhim, that we ought to presume that the parents entered intopossession on behalf of . the children.
July 9 and 13-
In the present cage, the donation to minor children was clearlyto put the property beyond the reach of creditors. I do not saythat that was fraudulent—it may be that there was enough left tosatisfy all the donor’s debts; but this we know, that he has notsatisfied their debts by voluntary payments, and that his creditorsseized the lands gifted to the minors. There was no acceptanceof the gift on the face of the deed itself ; there was no acceptanceby a public person or by any one authorized to act for the minors ;no possession followed ; there are in fact no circumstances fromwhich acceptance can be presumed.
The donation not having been accepted was still revocable bythe donor. The lands gifted have not been put beyond the reachof his creditors.
FERNANDO et al. v. CANNANGARA