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Present: Mr. Justice Wood Benton and Mr. Justice Grenier.jvjy gt jqjq
BINOTJA v. UNTTY el al.
D. C., Negombo, 7,639.
Donation—Acceptance•—Question of fact—Acceptance by brother of minordonee—Action on a mortgage bond against children of mortgagor—
Ho estate left behind by mortgagor—Is plaintiff entitled to get amoney <decree ?
Acceptance maybe manifested in any wayinwhich assentmay
be given or indicated. The question of acceptance is a questionof fact, and each case has to be determined according to its owncircumstances.
Where a donation bya fatherto his children wasaccepted byhis
major son on his ownbehalf and onbehalf of hisminor children,
and where the donor surrendered the property to the donees afterthe execution of the deed of gift, and where the major son possessedthe land thenceforwardand hisminorbrother andsisters tookthe
produce themselves on becoming majors, and where, the childrendealt with the land as owners while the donor was still alive,—
Held, that there was sufficient acceptance of the deed of gift.
In an action on amortgagebondby a mortgagee againstthe
children of the deceased mortgagor, the- Supreme Court refused toenter even a money decree for what it was worth against themortgagor's estate, where it appeared from the evidence that themortgagor left noestate which can be madeavailable forthepur-
pose of satisfying such a decree, and where the defendants were notthe administratorsof the mortgagor’s estate,andwheretheyhad
done nothing to.identify themselves with anypropertybelonging
to him.fjl HE facts appear in the judgment.
H. A. Jayewardene (with him Rosairo), for the plaintiff, appellant.—
The acceptance of the gift by the major brother, on behalf ^f his minorbrothers, is not valid. Only a natural guardian or legal guardiancan accept on behalf of a minor. See Fernando v. Cannangara; 1Wellappu v. Mudalihami; 1 2 Avichi Ohetty v. Fonseka;3 4 Qoone-wardene v. Bastion Appuf Silva v. Silva; 5 169, C. R. Ratnapura,
9078 (October 11, 1907); Muttupillai v. Valupilli.* The only casein which it was held that a person who was neither a natural nor alegal guardian can accept a gift on behalf of a minor is- Lewishamyv. Silva.7 Counsel also referred to Sinnapillai v. Tilliampalam.3
1 (1897) 3 N. L. B.6.6(1908)11 N. L. B. 161.
* (1903) 6 N. L. B.233.*(1909)4Bed. 110.
3(1905) 3 A. C. B.4.7(1906)3Bed. 43.
4(1905) 5 Tam. 75.3(1878)2S. C. C. 5.
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July 5,1910 Baton (with him A. St. V. Jayewardene), for the defendants, res-Bindua v. pondents.—Acceptance need not be on the face of the deed; a deedUnity Qf gift may be accepted at any time before the death of the donor.
or even after the death of the donor (see Tissera v. Tissera '). Minorsmay accept a gift when they come of age (Voet.39,5,13). Lewishamyv. Silva * is an authority in favour of the respondent.
Jayewardene, in reply.
Cur. adv. vult.
July 5, 1910. Wood Renton J.—
I see no reason to differ from the conclusion at which the learnedDistrict Judge has arrived. It does not follow from the fact thatSinda fraudulently concealed his donation of November 8, 1897, infavour of his children from Mr. Carron at the date of his mortgageto that gentleman in June, 1904, that the deed of 1897 itself wasfraudulent; and .the circumstances mentioned by the District Judgeas to the recital in the deed of gift of the prior mortgage of 1891 infavour of the plaintiff-appellant and the due registration of the deedjustify him in coming, as he did, to the conclusion that it was agenuine transfer. After careful consideration I am of opinion thatthere is sufficient evidence of acceptance of the deed to validate it.It is quite clear that by the Roman-Dutch Law acceptance may bemanifested in any way in which assent may be given or indicated.In the present case there is evidence showing that Sinda not onlypermitted his eldest son Sumara, who was one of the donees, andwho was of full age at the time, to accept the donation on his ownbehalf and on that of the mirror children, but also that he surren-dered the property in question to the donees after the execution ofthe deed ofgift; that Sumarapossessed thelandthenceforward,
and that hisminor brothers andsisters took theproducethemselves
on becomingmajors; and that they dealt withthelandas owners
while Sindawas still alive. Ihave examinedallthecases that
were cited to us in the argument", but I do not think it is necessaryto deal with them in detail. The question of acceptance is aquestion of fact, and each case has to be determined according toits own circumstances. I would hold that here there is ampleevidence of the acceptance of the donation to satisfy the require-ments of the law in the conduct of Sinda himself at the time of thedonation and subsequent to it, in the possession of the land bySumara, a donee and a major, with Sinda’s consent, and as Sinda’sagent, if it is necessary to hold so much, for the purpose of theacceptance of the donation, and in the conduct of the minor doneesthemselves during Sinda’s life. It is true that the critical point oftime in such a case as this, where the donation was one taking effectat once on the execution of the deed, is the date of-the execution of> (1908) Z S. C. D. 36.1 (1906) 3 Bal. 43,
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the deed itself. But for the purpose of determining whether there July 6,1910was such an acceptance, we are entitled to look not only at thecircumstances accompanying, but also at those subsequent to, the RbntonJ.date of the donation. Taking all the facts of the present case I holdv
that a sufficient acceptance of the deed of gift has been established.Unity
It remains only to say a word as to Mr. Hector Jayewardene’sthird point, that in any event he was entitled to a money decreeagainst Sinda’s estate for what it is worth. It appears on theevidence that Sinda has left no estate which can be made availablefor the purpose of satisfying such a decree; that the respondentsare not his administrators; and that they have done nothing as yetto identify themselves with any property belonging to him. Underthese circumstances (see Mudianse v. Mudiame 1 and Parama-nather v. Paramanather 2) they are not liable to have such a decreeentered against them. On these grounds I would dismiss theappeal with costs.
Grenier J.—I agree.Appeal dismissed.
BINDUA v. UNTTY et al