If a Fiscal's conveyance is not executed in favour of the purchaser of a land at a Fiscal'ssale no title passes. If however the purchaser enters into possession after the sale andpossesses the land for longer than the prescriptive period, title by prescription isestablished.
A donation can be accepted by a minor provided he was of sufficient understanding.Looking after the donor in his illness can be evidence of such sufficient understanding.
Under the Roman-Dutch Law a donation to be valid has to be perfected by acceptance.Acceptance can be by traditio (actual delivery) of the thing donated to the donee orthere can be a clear expression of the donee's intention to receive the donation. Adonation is a bilateral agreement to which there must be two consenting parties. Takingdelivery of the deed and entering into actual possession of the property can be proof ofacceptance though no particular form of acceptance is required. Where in a partitionsuit the plaintiff relies on a donation for his title, the burden of proof of his title beingupon him. he must prove that the donation was valid by acceptance.
Where there was proof only of the presence of the donees at the execution of the deedbut there was no expression of acceptance by. the donees, possession of the land hadnot given to the donees and there was no evidence that the deed itself was handed overto the donees and further no other circumstances from which acceptance by thedonees could be presumed, the donation is not valid.
Cases referred to:
Carolisv. Perera-(1911) 14NLR219.
Mohideen Hadjiarv. Ganeshan-(1963) 65NLR421.
Babaihamy v. Marcinahamy-{ 1908) 11 NLR 232.
Hendrick v. Suditaratne-(1912) 3 CAC 80.
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[1987] 2 Sri L R
Public Trustee v. Uduruwana-( 1949) 5 T NLR 193.
Nagalingamv. Thanabalasingham-(1948) 50NLR 97.
Binduav. Untty-(1910) 13NLR259.
APPEAL from judgment of the Court of Appeal.
M.S. A. Hassen with Ishan Waffa and S. Jayatillekeior 4th defendant-appellant.
N.R. M. Daluwatte P C. with K. S. Titakeratne and Miss Nandadasa forplaintiff-respondent
Cur. adv. vult.
May 8, 1987.
The plaintiff filed this action to partition a portion of a land calledBogahawatta described in the schedule to the plaint. At thecommencement of the trial he confined the action to lots A & Bdepicted in Plan No. 295 dated 06.07.68 made byLicensed-Surveyor, Dharmawardena, marked 'X'.
. The plaintiff's case is that one Juwakeenu Perera was the originalowner and he upon deed No. 5783 of 9.8.1870 (P1) gifted a halfshare of several portions of a land called Bogahawatte to his brotherMarikku Perera and his nephew Nikulas Fernando (a son of hisdeceased sister Maria) subject to his life interest and reserving thebalance half share of the said lands in favour of his wife AgidaFernando. Thereafter Agida Fern indo died and the plaintiff avers thather 1 /2 share of the lands too devolved on Marikku and Nikulas as herheirs and they thus became en itled to a 1 /2 share each of the landsought to be partitioned. The p.aintiff claims a 1/4 share of the landsby right of purchase upon deed No. 1360 of.23.01.1967 (P8) fromthe heirs of Nikulas as set out in the plaint.
The position of the 4th defendant Abubucker, is that the entirety ofthe land belonged to Marikku Fernando. He claims rights in the land byright of purchase on three deeds 4D3, 4D9 and 4D14 from the heirsof Marikku as set out in his statement of claim and by right ofprescriptive possession. He states that the plaintiff has no interests inthe corpus and prays that the action be dismissed.
The learned District Judge held that the deed of gift P1 conveyed norights to Nikulas for two reasons. The first was that Juwakeenu thedonor on P1 had purchased rights in the land at a Fiscal's sale held on
Abubucker V. Fernando (L. H. De. Alwis, J )
7.12.1835 by virtue of a writ issued in D.C. Kalutara case No. 502but had not obtained a Fiscal's conveyance. In the absence of aFiscal's conveyance Juwakeenu got no rights on the Fiscal's salewhich he could have conveyed to Nikulas on P1. The other reasongiven by the learned District Judge was that the gift on P1 was notaccepted by Nikulas on the face of the deed and consequently norights passed to him.
It is no doubt correct that the failure to obtain a Fiscal's conveyanceupon a Fiscal's sale passes no'title to the purchaser. Carolis v. Perera(1). But as was submitted by learned counsel for the plaintiff, thelearned Judge erred in failing to consider that Juwakeenu, as stated inthe deed, possessed the land from the date of the Fiscal's sale in1835 up to the time of the execution of P1 in 1870 which is a periodof about 35 years. He thus acquired a prescriptive title to the land.J.uwakeenu therefore had title to the land in 1870, when he executedthe deed P1 in 1870.
The next question is whether Nikulas accepted the donation fromJuwakeenu on P1. The District Court held that none of the donees onthe face of the deed P1 accepted the gift. The Court of Appeal while.coming to the same conclusion went on further to state that itappeared from the attestation clause to the deed that both partieswere present at the execution of the deed and that the words ‘bothparties' could only mean the donor and donees. On this constructionof the attestation clause the Court of Appeal held that the doneeswere present at the execution of P1 and that PI is a valid deed of gift,evidently on the basis that their presence was a circumstance pointingto their acceptance of the donation. It accordingly set aside thejudgment of the District Court and directed that interlocutory decreebe entered allotting 1 /6th share to the plaintiff who had bought someof the interests of Nikulas's heirs and a 5/6 share to the -4thdefendant.
It is necessary to set .out the attestation clause in the deed P1. TheEnglish translation of it,, made by the interpreter of the District Court,Kalutara and filed by the plaintiff along with the deed readsas follows:…
‘I, B. G. Perera, Notary Public, do hereby certify that the foregoinginstrument was read over and explained by me the said Notary tothe within-named executant in the presence of the said witnesses,
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[1987] 2 Sri LR.
the same was signed by the said executant, the witnesses and byme the said Notary in my presence and in the presence of oneanother all being present at the same time at Beruwala on this 9thday of August, 1870.
Which I attest.
Sgd. B. G. Perera
Notary Public."
There are several omissions in this translation including thereference to "both parties" and as such it is not an accuratetranslation.. Since the Court of Appeal took the view that the words'both parties" appearing in the attestation clause referred to the donorand donees, I got down the document produced in the District Courtand carefully read the deed which is in Sinhala. The correct translationis as follows:
"I, B. G. Perera, Notary Public, residing at Beruwala in the Districtof Kalutara in the Island of Sri Lanka do hereby certify that I executedthe foregoing deed of gift at the residence of the Donor and after Iwell and truly read over and explained it to both' partiesabove-mentioned who are known to me, in the presence of thewitnesses above-mentioned who are also known to me, the Donorand the witnesses aforesaid who are known to each other placedtheir signature before me and in the presence of eaclt other to threedocuments of this tenor on this 9th day of August, 1870.
Which I attest.
Sgd. B. Q. PereraNotary PublicBarberiya.
It would thus appear from the attestation clause that the doneesalso were present at the execution of P1 as held by the Court ofAppeal. There are however no words expressing acceptance of thedonation by the donees in the deed P1. A point of contest raised in thecase runs as follows: 2
(2) "Did his (Juwakeenu Perera's) interests devolve as set out in thePlaint."
Abubucker v. Fernando (L. H. De Alwis. J.)
The plaint stated that Juwakeenu Perera gifted a 1/2 share of hisrights in the land to Marikku and Nikulas from the latter of whom theplaintiff claims rights. Being a partition action the burden lay on theplaintiff to prove that he has rights in the land he seeks to partition. Itwas therefore incumbent upon him to establish that P1 was a validdeed of donation which was accepted by Nikulas, although no specificissue was raised on it.
The Court of Appeal had taken the view that P1 was a valid deed ofgift-because the donees were present at the time of the execution ofthe deed.
The plaintiff under cross examination, when questioned whetherthere was acceptance of the deed P1, replied that the donees wereminors at the time and that no one accepted the gift on their behalf.But that makes no difference to the plaintiff's case. A minor who hassufficient understanding has capacity to accept a gift. MohideenHadjiar v. Ganeshan, (2).
P1 states that the donees were looking after the donor in his illnessso that the minors would have had sufficient understanding andtherefore the capacity to accept the gift.
In Babaihafay v. Marcinahamy,{3) three of the four donees wereminors. The donor signed the deed and there followed this paragraph'We the said four persons (named) do hereby declare to haveaccepted the above donation granted by T. Jando with the highestregards, to have entered into ^possession of the said land from thisday… and we who are of proper age to sign have also signed hereto."Here followed a cross and Salman's signature in English charactersand the Notary's attestation to the effect that after he had read andexplained the deed to the donor and donees, in the presence of thewitnesses, the same was signed "by1 all the proper parties" in thepresence of each other. Wendt J., said—
"At all events it is clear that all 4 donees were present at theexecution of the deed and assented to its terms, setting forth thatthey accepted the donation and that Salman being of 'proper age tosign'. . . actually signed it. It is I think, a fair inference, from thecircumstances attending the execution of the deed, that the doneeswhose signatures do not appear, if minors, were still old enough tounderstand the nature of a gift and to express their wishes to the
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[1937] 2 Sri LR.
Notary. .. .No case has been brought to our notice which lays
down the broad proposition that a person under the age of 21 yearsis incapable of validly accepting a donation. Such a broadproposition 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 …."
In the present case the donees have not signed the deed andexpressed their acceptance of the gift, nor have they taken possessionof the property. The question then is whether their mere presence is asufficient circumstance from which their acceptance of the donationcan be presumed. Learned Counsel for the plaintiff however submitted ■that there were the other circumstances from which acceptance of P Iby the donees could be presumed. He relied heavily on the dictum ofLascelles C. J., in Hendrick v. Suditaratne,(4) which runs as follows-
"There is, I think, a natural presumption in all these cases that thedeed is accepted. Every instinct of human nature is in favour of thatpresumption, and I think when a valuable gift has been offered and it' is alleged it has not been accepted, some reason should be showrfor the alleged non-acceptance of the deed. …"
In that case it was held that under the Roman-Dutch Law, no particularform is required for the acceptance of the gift and that it i$ in everycase a question of fact whether or not there are sufficient indicationsof the acceptance by the donee. Learned Counsel in the present casewent on to enumerate the several circumstances from whichacceptance of P1 could be presumed and I shall deal with them in duecourse. In the case referred to, however, the deed of gift wasdelivered to the future husband of the donee on the occasion of themarriage along with other presents so that the inference wasirresistible that the donee accepted the donation. The dictum ofLascelles C. J., must be read in the context of the facts of that case.The deed of gift was handed over to the future husband at themarriage ceremony as dowry. This was a strong circumstance ofacceptance of the donation by the donee.
In Roman-Dutch Law which is applicable in the present case, adonation is regarded as a contract and no obligation arises untilacceptance by the donee. Roman-Dutch Law-Lee, 5th Ed. Pg. 285.
SCAbubucker v. Fernando (L. H. De. Alwis, J.)231
In Public Trustee v. Uduruwana.(b) Dias J.. referring to theRoman-Dutch Lavy said-
"A 'donation' is an agreement whereby one person called the'donor' without being under any legal obligation_so to do andwithout receiving or stipulating for anything in return gives orpromises to give something to another, who is called a 'donee'. Adonation is-perfected in one of the two ways: (a) either by the donorexpressing his intention to mal e the donation, followed by theactual delivery (tradition) of the thing donated to the donee; or (b)by the donor expressing his intention to make the gift coupled withthe acceptance of the donation by the donee. Donations areperfected by tradition, or even without tradition, when the donor'sintention to give and the donee's intention to receive have beenclearly expressed. A donation is a bilateral agreement to which theremust be two consenting parties."
In that case the donor, when he was at the point of death, stated inthe presence of witnesses including the donee, that he desired to givea gift of Rs. 10,000 (by cheque) to the donee who had been hisfaithful servant. The donee when he heard his master express thisintention to donate Rs. 10,000 to him, placed the palms of his handstogether in oriental fashion and bowed low to his master saying thathe thankfully accepted the donation. The two doctors attending on thedying man forbade him from writing a cheque when the cheque bookwas brought as they believed any exertion on his part might proveinstantly fatal. In that Case there was a clear expression of the donor'sintention to donate verbally coupled with a clear acceptance by thedonee by nods, words and signs. It was held that they were sufficientto create a valid donation.
Again in Nagalingam v. Thanabalasingham (6) Canekeratne J.,said:
'A donor makes a gift with the intention that the thing wouldbecome the property of the donee; the offer must be accepted byhim to whom it is made for the concurrence of the donor and doneemust take place in order to render the donation perfect, theobligatory effect of the gift depends upon its acceptance. The donormay deliver the thing e.g., a ring or give the donee the means ofimmediately appropriating it e.g. .delivery of the deed,.or place him rnactual possession of the property."
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[1987] 2 Sri LR.
Although no particular form is required for the acceptance of a gift inRoman-Dutch Law, it is a common practice to state in the deed thatthe donee thankfully accepts the donation and also to obtain hissignature to the deed in acknowledgement of his acceptance. This hasnot been done in the present case. There is in the deed only the clearexpression by the donor of his intention to gift a half share of certainlands to the donees, reserving the life interest in the donor. But thereis no expression of acceptance by the donees in the deed. Possessionof the land was not given to the donees nor is there any evidence thatthe deed itself was handed over to the donees. The question now iswhether there are other circumstances from which acceptance by thedonees could be presumed.
In Bindua v. Untty (7) it was held that acceptance may bemanifested in any way in which assent may be given or indicated. Thequestion of acceptance is a question of fact, and each case has to bedetermined according to its own circumstances. Wood Renton, J.,said:
“It is true that the critical point of time in such a case as this,where the donation was one taking effect at once on the executionof the deed, is the date of the execution of the deed itself. But forthe purpose of determining whether there was such an acceptance,we are entitled to'look not only at the circumstances accompanying,but also at those subsequent to the date of the donation."
Learned Counsel for the plaintiff submitted that there are severaldocuments of title, which indicate that the heirs of Nikulas hadpossession and argued that acceptance by Nikulas on P1 could beinferred for them. In land acquisition proceedings of 4.2.1929 (P10) aportion of Bogahawatte was acquired by the Government Agent ofKalutara and compensation was awarded to two claimants. DonaAngelina, one of the daughters of jVlarikkg and Isabella Coray, thewidow of Nikulas, on the basis that each was entitled to a 1/2 share ofthe land. But the plaintiff's evidence is that the portion of land inrespect of which compensation was awarded lay to the north of thecorpus sought to be. partitioned. The plaintiff admitted that there wereas many as nine different portions of Bogahawatte. The portionacquired by the Crown is not described by metes and bounds andthere is no evidence that it' was one of the four lands sought to begifted on P1. That land therefore may well have been a different landwhich belonged .only to Angelina and Isabella. .
Abubucker v. Fernando (L. H. De. Alwis. J.)
In the Inventory (P6) filed by the son of Isabella Coray, Warliyanu,to whom letters of administration (P5) were issued in respect ofIsabella Coray's estate in D. C. Kalutara 2276/T, three portions ofBogahawatte are included therein, as items 20, 21 and 22. But hereagain ifhas not been established that these portions of Bogahawatte,which are not described by metes and bounds, are any of the landsreferred to in PI. In P1, the boundaries of the four-portions ofBogahawatte dealt with were notg:ven in a schedule to the deed atthe date of its execution. The boundaries were furnished by a Notary'saffidavit about 19 years later when the deed came to be registered on2.5.1889 (P4).
In the Inventory (P8) of Warliyanu's estate filed by his widowEgisthina in D. C. Kalutara 3437/T, a portion of Bogahawatte isincluded as item 8. But here again there is no evidence that it is one ofthe lands referred to in P1. In any event these, documents bythemselves do not constitute evidence of possession by Nikulas andhis heirs.
It was submitted by learned Counsel for the Plaintiff that the learnedDistrict Judge omitted to consider deed 4D1 when he stated thatMarikku's heirs have dealt with the land as though Marikku was thesole owrier. On 4D1 which is deed 10 of 14.9.50, Justina Perera, oneof Marikku's surviving children mentioned in the plaint, conveyed anundivided 1/7 share of a 1 /2 share of a portion of Bogahawatte to ‘Maria Perera. The Court of Appeal relied on 4D1 as supporting theposition that Marikku was not entitled to the entirety of the land asclaimed by the 4th Defendant in his statement of claim.
Learned Counsel for the Plaintiff also pointed out that on deed 1863of 8.1144(4D4) Christina Perera, a grandchild of Marikku dealt withonly an undivided 5/512 share of a portion of Bogahawatte (item 3 inthe Schedule). On deed 5777 of 26.12.30(4D13) MarseleenaFernando, the wife of Pelis, a son of Marikku dealt with a 1/16 of* 5/8share of Bogahawatte. Again on deed 1.5920 of 1.3.1915(4D7) Anaalias Anjalina, a child of Marikku also dealt with an undivided 1/2 shareof a portion of Bogahawatte (item 3 of the schedule). The fact that ondeeds 4D1, 4D4, 4D13 and 4D7 the successors in title to Marikkuhave not dealt with shares in the entirety of the land is no evidencethat Nikulas and his successors in title had possession of tl ie balanceshare of the land or were entitled to it.
234Sri Lanka Law Reports [1987J2 Sri L.R.
On the other hand the earliest document produced by the 4thDefendant, relating to the land after the deed P1 of 1870, is mortgagebond No. 1926 of 17.4.1925(4D17) by which Bastian, a son ofMarikku mortgaged a 1/8 share of the whole land stating that he hadbeen in possession of the land by parental inheritance.
The inventory (4D15) filed by Arijalina on 12.9.41 in D.C. Kalutara2032/T as Administratrix of the estate of her husband Juwan Pererawho is a child of Marikku, shows that an undivided 1/7 share of aportion of Bogahawatte (item 6) is included, on the basis that Marikkuwas entitled to the entirety of the land.
Nikulas quite clearly got no possession of any interests in the 1 /2share of the lands gifted to him and Marikku on P1 because the giftwas subject to the life interest of the donor Juwakenu Perera. Nordoes the original deed appear to have been handed to Nikulas at leastbecause what was produced by the Plaintiff was only a certified copyofP1.
With regard to the balance 1/2 share of Juwakenu Perera whichdevolved on his widow Agida Fernando, the Plaintiff was unable tolead reliable evidence as to who her heirs were, although at one timehe claimed that they were Marikku and Nikulas. The District Judge hasrejected this evidence and the Court of Appeal has taken the view thatthe devolution of title of the interests of Agida Fernando has not beenproved and has held-that there was sufficient evidence to concludethat the heirs of Marikku had possessed that share also.
The learned District Judge also held that there is no reliableevidence that the Plaintiff or any of the persons from whom he claimstitle had possession of any share of the land. Fie has accepted theevidence of 4th Defendant's witness, Catherine Fernando and hasheld that Marikku possessed the entirety of the the land and his heirshave dealt with the land as though Marikku was the sole owner. Thesefindings have not been interfered with by the Court of Appeal and Iaffirm them.
The Plaintiff who claims interests in the corpus from the heirs ofNikulas has failed to prove that Nikulas accepted, the donation of ashare of. the land on P1, at the execution of the deed. Nor is thereevidence that Nikulas or his heirs possessed a share of it, from which a
SC 'Abubucker v. Fernando (L. H. De, Alwis, J.)235
. .■■ ■■■ V.
presumption of acceptance can be drawn. R1 therefore is not a validdeed of donation and no rights pass on it to Nikulas. The Plaintiff'saction must therefore fail.
I set aside the judgment of the Court of Appeal and dismiss thePlaintiff's action with costs payable to the 4th Defendant-Appellant inthe following manner: Rs. 105 in the District Court, Rs. 315 in theCourt of Appeal and Rs. 525 in this court.
3HARVANANDA, C.J. -I agree.H. A. G. DE SILVA, J.-l agree
Appeal allowed.