094-NLR-NLR-V-69-E.-H.-FRANCISCO-and-another-Appellants-and-A.A.-DON-SEBASTIAN-and-2-others-.pdf
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SRI SKANDA RAJAH, J.—Francisco v. Don Sebastian
1964Present: Sri Skanda Rajah, J., and Alles, J.
H. FRANCISCO and another, .Appellants, and A. A. DONSEBASTIAN and 2 others, Respondents
S. C. 20-21/61 (Inty.)—D. C. Negombo, 123/P
Minors—Donation to a minor—Acceptance—Persons who are not competent to accept—Marriage Registration Ordinance (Gap. 112), s. 21.
A deed of donation in favour of a minor, while his parents who are not thedonors are alive, is not valid unless it is accepted by the natural guardian ofthe minor.
Where a gift is made to a minor who is the offspring of an adulterine union,the putative father of the donee is not competent to accept it.
A.PPEAL from a judgment of the District Court, Negombo.
J. A. L. Cooray, with D. A. E. Theverapperuma, for the 2ndDefendant-Appellant in S. C. 20 and for the 2nd Defendant-Respondentin S. C. 21.
T. P. P. Goonetilleke, for the 1st Defendant-Respondent in S. C. 20and for the 1st Defendant-Appellant in S. C. 21.
V. Thillainathan, with A. J. F. Fonseha, for the Plaintiff-Respondent.
Cur. adv. vult.
November 4,1964. Sri Skanda Rajah, J.—
It behoves us to explain the delay in the disposal of these two inter-locutory appeals. They were originally heard by Basnayake, C.J., andHerat, J., on 6th and 24th September, 1962, and judgment was reserved.About eighteen months later Herat, J., died and four months laterBasnayake, C.J., retired. On the first day of hearing by us we dismissedappeal No. 20/61 as there was no merit in it. Then we called uponMr. Thillainathan. He was, however, not well enough to argue.Therefore we heard him on 8th October, 1964, allowed appeal No. 21/61with costs reserving our reasons, which we set out hereunder.
The point of law involved is the validity of acceptance of giftsto minors.
By deed 15373 of 13.1.1922 (P2) one Maria Alwis gifted to Kotte -Muhandiramge Emaliyanu Rodrigo and Ponweera Aratchige DonGabriel, both minor children of one Maria Perera, who does not appearto have been related to the donor Maria Alwis. Maria Perera wasmarried to Stephen Rodrigo and they begat Emaliyanu. Maria Pererathen eloped with Jusey, son of the donor Maria Alwis, and by thatadulterine union she had Gabriel. Stephen Rodrigo was alive, but,living in separation from Maria Perera, at the time of the gift onP2—he died on 1.10.1923 (vide death certificate 1 D5). Jusey it waswho accepted the gift on P2; wherein he purported to accept on behalfof Gabriel “ a son of mine ” and on behalf of Emaliyanu “ anadopted son of mine ”.
ALLES, J.—Francisco v. Don Sebastian
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In the case of a donation to a minor the law requires acceptance by thenatural or legal guardian of the minor : Silva v. Silva *. This has beenaccepted as correct in later cases, including Nagalingam v. Thanabala-eingham2 and Nagaratnam v. John3.
Section 21 of the Marriage Registration Ordinance, Cap. 112, enacts :—“ A legal marriage between any parties shall have the effect ofrendering legitimate any children who have been procreated betweenthe same parties before marriage, unless such children shall have beenprocreated in adultery.”
At the date of P2 Jusey was not Gabriel’s natural guardian. In fact,he was for all time prohibited from becoming Gabriel’s natural guardian.Therefore, he could not validly accept the gift on behalf of Gabriel. OnlyMaria Perera was competent to do so, because the mother is the naturalguardian of a bastard.
As regards the gift to Emaliyanu : his father Stephen Rodrigo, whowas alive at that date, and Maria Perera, were his natural guardians.Only one of them could validly accept a gift to him.
For these reasons, P2 was invalid for want of acceptance and couldtherefore, convey no title to Emaliyanu and Gabriel, through whom theplaintiff claims.
The argument that Maria Alwis had allowed acceptance by Jusey and,therefore the acceptance was valid does not find favour with us. All thecases which can be called in aid of this argument are cases of gifts byparents to their minor children and they had either permitted orauthorised acceptance by others for the obvious reasons that theythemselves could not accept the gifts on behalf of their minor donees,e.g. Abeyawardene v. West 4 ; Nagaratnam v. John 5 ; Francisco v. Costa 6.
This being an action- for partition the plaintiff’s action will standdismissed with costs payable to the first defendant-appellant both hereand below. Though the first. defendant’s appeal is allowed he willnot be entitled to a declaration of title in his favour in view of the natureof this action.
Alles, J.—
I agree with the views expressed by my brother Sri Skanda Rajah, J.and the order proposed by him.
The plaintiffs claimed title through Deed of Gift No. 15373 of 13.1.22(P2). By this Deed Maria Alwis, the donor, gifted certain shares to twominors Emaliyanu Rodrigo and Ponweera Aratchige Don Gabriel. Thegift was accepted by the donor’s son Jusey on behalf of Gabriel as a ‘ son ’and on behalf of Emaliyanu as an ‘ adopted son ’. The only questionthat arises in this appeal is the validity of the acceptance by Jusey onbehalf of the two minors.
i (1908) 11 N. L. R. 161.4(1957) 58 N. L. R. 313 (P.C.)
* (1952) 54 N. L. R. 121 (P. C.)•(1958) 60 N. L. R. 113.
■ (1958) 60 N. L. R. 113.*(1888) 8 S. C. C. 189.
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ALLES, J.—Solicitor-General v. Thangamani Pitchai
Emaliyanu Rodrigo •was the son of Maria Perera and Stephen Rodrigoand both parents were alive at the time of the execution of P2, and as thenatural guardians of their son either of them could have accepted thegift on behalf of Emaliyanu. Gabriel was the offspring of the adulterineunion between Jusey and Maria Perera. His natural guardian was hismother Maria Perera who was alive at the time of the execution of theDeed of Gift and could have accepted the gift on behalf of Gabriel. Jusey’sa cceptance of the gift was therefore bad and no title passed to the plaintiffs.
Appeal No. 20 dismissed.
Appeal No. 21 allowed.