030-NLR-NLR-V-60-M.-NAGARATNAM-et-al.-Appellants-and-F.-T.-JOHN-Respondent.pdf
Nagaratnam v. John
11?
1958Present: Gunasekara, J., and Sansoni, J.
M. NAGARATNAM et al., Appellants, and F. T. JOHN, Respondent.S. G. 406—D. C. Jaffna, 388/L
Donation—Minor—Gift made by father to his minor child—Acceptance by donees”maternal grandfather—Validity.
R gifted certain immovable property in 1918 to his daughter the 2nd plaintiff.The 2nd plaintiff’s mother had died before the deed was executed and R hadmarried again in 1915. As the donee was a minor the donation was acceptedon her behalf by her maternal grandfather.
m
SAXSOXT, J.—Nagaratnam v. John
Held, t hat the acceptance of the gift was valid for the reasons that (I) the grand-father was a proper person, to accept the donation on the minor’s behalf, and(1) the donor had allowed the acceptance to be made by the grandfather onbehalf of his minor child.
,^^-PPEAli from a judgment of the District Court, Jaffna.
K.Sivagurunuthan, with C. CheUappah, for the 1st and 2nd Plaintiffs-Appellants.
No appearance for the Defendant-Respondent.
Cur. adv. unit.
June 23, 1958. Sansoni, J.—
This appeal raises the vexed question as to what constitutes properacceptance of a donation to a minor.
The land in dispute belonged to one Rogers who by deed PI of 1915gifted it to his daughter the 2nd plaintiff. The 2nd plaintiff’s motherhad died before the deed was executed and Rogers had married again in1915. As the donee was only five years old at the time and was living inMalaya she could not obviously accept the gift herself. As appears onthe face of the deed, the donation was accepted on her behalf by hermaternal grandfather.
The defendant claimed title to the land by purchase at a sale held bythe Fiscal in 1930 in execution of a decree entered against Rogers. Healso claimed the land by prescription, but this claim cannot be sustainedif the 2nd plaintiff obtained title upon the deed Pi, because she hasbeen absent from the Island since 1915.
The case therefore turns on whether Rogers had divested himself oftitle by executing the deed PI, and this again depends on whether theacceptance of the gift by the 2nd plaintiff’s maternal grandfather was avalid acceptance.
The learned District Judge held, relying upon a decision of the PrivyOouncil in NagaMngam v. Thanabalasingham1, that there cannot be avalid acceptance of a gift on behalf of a minor donee unless such accep-tance is by a natural guardian or by a person who has been appointed bylawful authority to act for the minor. Taking the view that the 2ndplaintiff’s grandfather was neither, he held that the gift was invalid anddismissed the plaintiff’s action. The plaintiffs have appealed and it wasurged by their Counsel that acceptance by the maternal grandfather wassufficient to make the gift valid.
The particular passage in the judgment of the Privy Council upon whichthe learned Judge relied for his decision reads :
“ Their Lordships see no reason for doubting the correctness of the
decision of the District Judge that the maternal uncle’s acceptance
of the gift on behalf of the minor was not a valid acceptance according
1 (1952) 54 N.L.B. 121.
SANSONI, J.—Nagaratnam v. John
115
to the law of Ceylon. The finding is supported by authority. Inaddition to the case of Silva v. Silva on which the District Judge relied,there are two other decisions of the Supreme Court to the same effect,namely Avichchi Chetty v. Fonseka1 and Cornelia V. Dhamwwordene *.A maternal uncle is not a natural guardian ; in the strict sense he isnot even a member of the same family. Without appointment bylawful authority Kanthar Sinnathamby could not act for Kanthavanamand it is not suggested that such appointment existed. Thereforeacceptance could only spring from Kanthavanam himself, if there wasin fact acceptance. ”
There is authority for the proposition that a grandfather is a naturalguardian of a minor. In Silva v. Silva3 Grenier A.J. said : “Accordingto the Roman-Dutch Law, the mother and father stood in the relation-ship of natural guardians, as also the grandfather and grandmother. Ido not know of any case, nor has any been cited to us, in which an unclewas regarded in the light of a legal or conventional guardian. SeeAt ckchi Chetty v. Fonseka1 and Cornells v. Dharmaieardene 2 and thecases therein cited.” The learned Judge quotes no authority, butperhaps he had in mind the following statement in Walter Pereira’sLaws of Ceylon (1913 Edition) at page 194: “Father and mother, grand-father and grandmother, if competent, are preferred to all others in theguardianship of their children and grandchildren ”. As the father wasthe donor in this case he could not accept the donation: the mother wasdead : the grandfather was therefore a proper person to accept thedonation on the minor’s behalf—see Francisco v. Costa*. I wouldtherefore hold that the donation to the 2nd plaintiff was a valid one.
But there is a further reason why the acceptance in this case shouldbe considered to be good, and it is that the donor had allowed the accep-tance to be made by the grandfather on behalf of his minor child. Therecent Privy Council decision in Abeyawardene v. West5 leaves no doubton this point, for it was held there that acceptance by two brothers and abrother-in-law of a donation made by the parents of a minor donee isgood. Lord Keith of Avonholm said in that case : “ In similar cir-cumstances acceptance on behalf of a minor donee by his grandmother(who was the other donee) was held good in Francisco v. Costa and Others*as was also acceptance by a brother on behalf of his minor brother inLewishamy v. De Silva6. One of the grounds of judgment in thesecases was that the donors had allowed such acceptances to be made onbehalf of their minor children.”
The learned District Judge followed the reasoning in my judgment inPackirmuhaiyadeen v. Asiaumma 7 where I held that a minor donee’selder brother could not accept a donation on the minor’s behalf evenwhere the donor was the father of the minor, but this judgment can nolonger be considered correct. My decision was based on the view that 1 * 3 *
1 (1905) 3 A.C.B. 4.* (1889) 8 S.G.C. 189.
8 (1907) 2 A.O.li. Supp. XIII.• (1957) 58 N.L.B. 313.
3 (1908) 11 N.L.B. 161.* (1906) 3 Balasingha/rv
7 (1956) 57 N.L.B. 449.
lit'.
Mcuinna v. i pans
an elder brother is not a natural guardian of his minor brother, and themere fact that the father allowed him to accept a donation on behalf ofhis minor brother would not make the acceptance valid. I thought thatthe decision in Nagalingam v. Thandbalasingham 1 justified such a con-clusion, since in that case the parents (who were the donors) seemed tohave allowed the maternal uncle of their minor child (who was the donee)to accept the donation on the child’s behalf. The Privy Council decidedthat since the maternal uncle was neither a natural guardian nor appointedby lawful authority he could not accept the donation. I ought to addthat there is no reference in the judgment—I have already quoted therelevant passage—to the circumstance that the parents allowed theminor’s uncle to accept the donation. However, it is now clear fromAbeyawardene v. West? that in the case of a donation made by parents,acceptance of the donation by the brother-in-law and the brothers of theminor donee is good, for the reason that the donors have allowed suchacceptance to be made on behalf of the minor child.
would set aside the judgment appealed against and give judgment forthe plaintiffs as prayed for with costs in both Courts, save that there willbe no damages as there was no issue of damages raised at the trial norhave damages been proved.
Gtostasekara, J.—I agree.
Appeal allowed.