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WELLAPPU v. MUDALIHAMI.
D. C., C-hilaw, 2,275.
Donation by father to minor son—Conduct of father as regards acceptance ofdeed of gift—Evidence of acceptance—Power of father to accept on behalfof his minor son a deed of gift made by himself.
A gift by a father to his minor son is not void, but there must besomething which the law can recognize as an acceptance on his behalf.
Where a father, after making the deed of gift, remained in possession ofthe property, managed it, and, while the donor was still a minor, revokedthe deed of gift, such conduct cannot be regarded as acceptance of thedeed, even if a father can be at once donor and acceptor of the gift.
The rule of law which requires acceptance by a competent person isbased on the principle that a donation is a contract to which theremust be two parties. A father making a donation cannot accept it onhis child’s behalf.
T was alleged by the first plaintiff that in 1885 his father, thedefendant, executed a deed of gift granting him certain lands
mentioned in the plaint when he was a boy of about- twelve yearsof age; that the plaintiff received and gave back the deed to thedefendant for safe-keeping; that about 1893 he married and
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entered into possession of the lands; and that in November, 1899,he leased thegi to the second plaintiff, whom the defendant ousted.The first plaintiff therefore prayed for a declaration of title in hisfavour and for ejectment of the defendant.
The defendant admitted the deed of gift, but pleaded that heexecuted it when he was very ill and expected to die; and that hedid not deliver the deed or surrender his possession of the landto the donees. In evidence he produced a document dated 1893,by which he intended to revoke the deed of gift.
The District Judge, Mr. J. G. Fraser, held that, as the first plaintiffwas a minor for several years after the deed of gift was executed,the question of possession was of no importance; and that theonly real issue was whether the deed of gift was valid or not forwant of acceptance. As the donor was still alive and no groundfor revocation appeared to have arisen, and the donee was willingand eager tp accept the donation, as might be seen from the factof his bringing this action, the District Judge held that the dona-tion was good, and that the defendant was bound to deliverpossession to the plaintiff.
The defendant appealed. The case was argued on 16th March,1903.
Sampayo, K.C., appeared for appellant.
H. Jayawardena, for respondent.
Cut. adv. vult.
March 25, 1903. Layakd, C.J.—
In this action the plaintiffs sued the defendant appellant for adeclaration of title to certain lands described in the plaint and to>have the defendant ejected therefrom.
The plaintiffs based their title on a deed of gift executed by theappellant in favour of the first plaintiff. The defendant contendedthat there was no acceptance of the gift, and that therefore no titleto the land passed to the first plaintiff. The deed, it appears, wasnever registered, and never left the defendant’s possession; further,it was executed during the minority of the donee, and no accep-.tance on his behalf was made by any one.
The Judge appears to have considered that acceptance andpossession were of no importance, and gave judgment for therespondents on the ground that “ the donee is still alive, and thatthe donee is willing and eager to accept the donation,, as is shownby his bringing this action
In this case the defendant is the father of the first plaintiff, and'no question has been raised in this appeal as to the right of thefather to donate to his son. I think rightly, because the decisions
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of our Courts show how the Roman-Dutch Law has been interpretedin this respect. It is clear that a gift by a father to his son being
a minor is not by our law necessarily void. By Roman Law it
was, as the son had no independent legal existence, and with Latabd, CJ.certain exceptions held no property, but in this respect the Roman-Dutch Law according to some authorities has not followed theRoman Law.(Van der Keessel, bk. III., chapter II., sec8; Grotius'
Opinions, DeEroyne'sTranslation, p. 386;Franciscov. Costa,
28 8. C. C. 189.)
The contrary authorities (Vanderlinden, Henry's Translation,p. 214) have not been followed here, on the ground that theRoman doctrine depended on the patria potestas, which has noplace in ourlaw. Byour law persons areall eithermajors or
minors, overor undertwenty-one years ofage, andwe know
nothing of the elaborate distinctions of Roman Law, whichrecognized three stages of non-age, “ infancy,” “ puberty,” and” minority;” and consequently the only material fact is that thefirst plaintiff was a minor. A gift by a father to his son is notinvalid in our law, provided there be something that the law canrecognize as an acceptance on his behalf (Francisco v. Costa,
8 S. C. C. 189; Government Agent v. Karolis, 2 N. L. R. 72;
Fernando v. Cannangara, 3 N. L. R. 6). Now, here the father,remains in possession, manages the property, and, whilst the doneeis still a minor, revokes the deed of gift. I cannot regard thefather's conduct here as an acceptance of the deed of gift made byhimself to his child, even if a father can be at once donor andacceptor of the gift on behalf of the donee. When a grandparentmade a donation to his grandchild, the entry into possession bythe parents was held presumed to be on the donor’s behalf, andthis was properly construed as an acceptance. (Government Agentv. Karolis).
The cases reported in Rdmandthan, 1863-1868, p. 132, and1872-1875, p. 215, only show that there must be some affirmativeevidence of acceptance on the minor’s behalf. Is there such1 evidence here? I cannot say there is. I cannot see how thedonor of a gift to a minor, even though he be the father, canaccept it on the minor’s behalf. The rule of law which requiresacceptance by a competent person of a gift, is based on theprinciple that a donation is a contract, and there must be twoparties .to every contract. fVoet, .XXXIX, 5, 12, 13.) I fail .to seehow a donor, even though a father, can act in- two capacities atthe same time. I cannot persuade myself that a father can evenexpressly accept on his child’s behalf a gift he has himself
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Finding as I do that the father’s conduct in this case did notshow an acceptance of the deed of gift on behalf of the minor,and doubting as I do whether a father can accept a deed of giftmade by himself on behalf of his minor child, even if there wassuch an acceptance here, and holding as I do that to perfect adeed of gift in favour of a minor there must be an acceptanceby some one capable of accepting on behalf of the minor or bythe minor upon attaining the age of majority,, and that therehas been no such acceptance, I think the judgment of the DistrictTudge must be set aside and judgment entered for defendant,with costs of suit and of this appeal.
I agree, and would quote from Yoet (XXXIX. 5, IS) the follow-ing passage as showing that the donor may withdraw his donationat any time before acceptance: Donanti liberum ext donationemnecdum acceptatam revocare, wti liberum cuique est ah aliocontractu quocunque inchoato, sed nondum ad finem perducto, senperfecto, resilire invito eo quocum contrahi coeptum juerat.
WELLAPPU v. MUDALIHAMI