046-NLR-NLR-V-06-FERNANDO-v.-WEERAKOON.pdf
( 212 )
1003.March 25.
FERNANDO v. WEERAKOON.
D. G., Galle, 5,921.
Deed of gift—Acceptance on behalf of-minors.
Though some Boman-Dutch Lawyers declare that a father cannotmake a gift to his minor son who is still subject to his power, yet thepractice in Ceylon is for parents to donate to their minor children.
Acceptance is necessary to make a donation fully effectual, but asminors cannot accept it, their grandparent and parents, when not alsothe donors, may accept for them.
T
HIS was an appeal from a judgment of the Court below, inwhich the District Judge held that the plaintiff could not
maintain his action brought upon a deed of gift in his favour.
In his plaint the plaintiff alleged that one Lewis Fernando andthe defendant were joint owners of the land which formed thesubject of dispute, and that Lewis Fernando gifted his half shareto the plaintiffs, but that in August, 1898, the defendant preventedthe plaintiffs from having their just share of the plumbagoexcavated from a pit dug by the defendant without the consentof the plaintiffs.
The defendant pleaded inter alia that the deed of gift reliedupon by the plaintiff was held by the Supreme Court in caseNo. 3,354 of the District Court ofGalle to be ofnoforceor avail
in law, as it was not accepted bythe alleged donees,andthat by
mutual arrangement between the defendant and his co-ownerLewis Fernando, the plumbago pit was worked by turns betweenthem, each person appropriating the proceeds to himself duringthe period of his possession.
At the trial it was agreed that only one issue of law should bedecided first, whether the plaintiff's action could be maintained.
The District Judge, Mr. F. J. de Livera, dismissed the action inthese trems: —
“ The deed of .gift was held to be invalid by the Supreme Courtin D. C., Galle, 3,354, reported in3 N. L. R. 6.IfD. C., Galle,
p,354 was an action that could notbe maintained,nomorecan the
present action be maintained.
" Lewis Fernando, the donor, who professed to make the gift in1893 to the plaintiffs, who were minors, is still in possession of theproperty gifted. The plaintiff’s title is not improved by the donorappearing now as a witness and .supporting their claim.”
Plaintiff appealed.
Domhorst, K.C., for appellant.
Bawa, for respondent.
Cur. adv. vult.
( 213 )
25th March, 1903. Moncbedt, J.—
Lewis Fernando and the defendant were, by Crown grant of27th September, 1892, owners of equal shares of Olakanduhena.On the 15th June, 1893, Lewis Fernando donated his half share tohis minor children the first, second, third, and fifth plaintiffs.The plaint contains a prayer for an account, and payment of certainshares or damages alleged to be due in respect of plumbago pitsdug on the land.
Vandertinden (3rd Edition, p. 124) says flatly that “ a fathercannot make a gift to his minor son, who is still subject to hispower.” So also says Voet (39, 5, 12). Groenewegen and VanderKeesel think that by Boman-Dutch Law parents may donate totheir minor children on the ground apparently that there being nopatria potestas in modem life, the principle of the Boman Lawcannot be applied. Whether the reason given is good or not, wecould hardly in this case depart from the practice of the Court. InFrancisco v. Costa (8 S. C. C. 189), Dias and Clarence, J.J., heldthat parents might donate to their minor children, and I thinkthey were mainly influenced by the fact that such donations hadconstantly been made in Ceylon. Withers, J., in' Fernando v.Cannangara (3 N. L. B. 6), expressed surprise at the practice, butfelt himself bound to follow it.
It is however objected that this donation was never acceptedby, or on behalf of, the minors. “ No donation is valid unless thedonee has accepted it; but it is immaterial whether the acceptanceis made in the instrument itself, or by a letter, or in any otherway, provided it is sufficiently clear.” (Vanderlinden, 124.)Acceptance is necessary to make a donation fully effectual; andif there has been acceptance, an action may be brought to enforcethe gift (see Van Leeuwen, 4, 30, 2). But apparently minors cannotaccept, at least they cannot until majority. It would appear that agrandparent, and parents when not also the donors, may acceptfor them.
Here the father of the minors was the donor, and I shouldjudge from his proceedings that he accepted the gift for himself.He could not accept for the minors. In November, 1898, he enteredinto an agreement with one Martino de Silva for digging plum-bago, in which he described himself as being “ in common posses-sion of ” part of Olakanduhena. He says he made the donationbecause he had many enemies, and thought he would be murdered.He brought a case against the Constable Arachchi of Pitigala andsome servants of the defendant, in the course of which he said:“ This land is mine.” In reference to Gahalawattahena, part of thedonated lands, he says: ‘‘ I have been giving that land to one
1803.
March ££..
( 214 )
IMS-Lattahandi Samis to plant,averring 1 wasthe owner." As to
March23.Ulukapugoda, which he giftedto the minors, hesays:“ It wassold
Monmmu-f,hi execution against me. I purchased it." Ithink the Judgewas
<*•right in . holding that theaction cannotbe maintained.The
appeal should be dismissed with costs.
Layard, C.J.—I agree.