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1911 Present: Pathirana, J., Ratwatte, J. and Wanasundera, J.
MICHAEL GUNASEKERA and Others Defendants-Appellants andABEYWICKREMA JAYATILLAKE, Plaintiff-Respondent.
S. C. 245/68 Inty – D. C. Colombo 10328/P.
Gift to minor – Who should accept? – Donor not natural guardian – Same principle extended.
Rev. Gunasekera who had no children of his own adopted Maisy Wijesekcra as hisown child. There was no legal adoption. Rev. Gunasekera by Deed of Gift P5 donated anundivided 1/3 share of the land to Maisy Wijesekera a minor who was an orphan. TheDeed of Gift was accepted by Letitia Gertrude Pinto at the request of the donor. MaisyWijesekera subsequently sold her rights on Deed P5 to the plaintiff and the 1st Defendant.The 4th and 7th defendants appellants challenged the validity of the Deed of Gift for wantof valid acceptance.
Held, where a parent donates property to his child such a gift may be accepted onbehalf of the child by a person authorised by the parent to accept the gift. There must alsobe the intention on the part of the parent to divest himself of the property in favour of thechild with some kind of solemnity indicating to all concerned the exact nature of thetransaction.
Held, further (Wanasundara J. dissenting) that this principle can be extended to thepresent case where Rev. Gunasekera is not a natural guardian and that the acceptance ofthe gift P5 by Letitia Gertrude Pinto is valid.
The case of Francisco v. Don Sebastian reported in 69 N.L.R. 440 not followed.
A Q/APPEAL from a judgment of the District Court of Colombo.
H. W. Jayewardene with V. Arulambalam and Miss S. Fernando for 4th,7th and 8th defendant-appellants.
Nimal Senanayake with Miss S. M. Senaratne for the Plaintiff-Respondent.
Cur. adv. vult.
June 24th, 1977. Pathirana, J.
i
The plaintiff-respondent instituted this action to partition the landdescribed in the schedule to the plaint. He pleaded that Rev. Gunasekera, hispredecessor-in-title, who was entitled to the entirety of the land, by deedNo. 10873 of 23.5.44 (P5) donated an undivided 1/3 share to MaisyWijesekera subject to his life-interest. Maisy Wijesekera sold her rights bydeed No. 747 of 31.5.59 (P6) to the plaintiff and the 1st defendant whobecame entitled therefore to a l/6th share each.
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The question for decision in this appeal is whether there had been a validacceptance of the deed of gift No. 10873 of 23.5.44 (P5) by which Rev.Gunasekera transferred an extent of immovable property in favour of his“adopted daughter” Maisy Wijesekera, a minor, who subsequently sold to theplaintiff and the 1st defendant her rights in the deed of gift, P5, by deed P6 of31.4.59. The 4th and 7th defendants-appellants challenged the validity of thedeed of gift for want of valid acceptance by the donee or on her behalf by aperson competent to accept. They further pleaded that Rev. Gunasekera bydeed of revocation No. 1660 of 1.10.53 (4D6) about ten years after theexecution of P5 had revoked P5. Having subdivided the land into lots hegifted by deed No. 407 of 1955 a defined portion in extent about 9 perches tohis adopted son Michael Gunasekera, the 4th defendant, subject to thedonor’s life interests and by deed No. 250 of 17.8.56 (7D1) he gifted toUpasena, the 7th defendant, an extent of 11.80 perches subject to the donor’slife interest.
Rev. Gunasekera had no children of his own. He had adopted MaisyWijesekera as his own child. The deed of gift P5 by Rev. Gunasekera infavour of Maisy Wijesekera was accepted by Letitia Gertrude Pinto to whosecousin Rev. Gunasekera was married. The Deed P5 describes LetitiaGertrude Pinto as “aunt” of the said donee. Maisy Wijesekera was an orphan.She lived at St. Margaret’s Home where orphans were living. She wasboarded in the Convent and during the holidays she came and lived withRev. Gunasekera in his home. So one knew who her close relations were.Rev. Gunasekera died on 15.11.58.
The main contention raised at the trial was that Maisy was an orphan andone did not know who were her close relations. Acceptance must thereforebe by a properly appointed curator and in the absence of acceptance by aperson so appointed the deed of gift had not been validly accepted.
The learned District Judge followed the principle laid down by Gratiaen, J.in the case of Mohaideen v. Maricair' – where it was held that under theRoman Dutch Law, a father, when he makes a donation to his minor child,can authorise some other person by “a special mandate” to accept the gifton the child’s behalf. He also adopted the following test laid down byGratiaen, J. at page 176 in the same case:-
… the real test in each case is whether the father has “proved hisintention to divest himself of the property” in favour of his child “withsome kind of solemnity indicating to all concerned the exact nature ofthe transaction.”
(1952) 54 N.L.R. 174
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He therefore held that as Rev. Gunasekera was instrumental in procuringthe acceptance of the gift by Letitia Gertrude Pinto in an open and publicmanner as to make it binding and irrevocable on him, the deed of gift wasvalidly accepted. He also held that the deed of revocation, 4D6, did notvalidly revoke the deed of gift P5.
Donation is regarded in Roman Dutch Law as a contract. As in othercontracts no obligation arises until acceptance by the donee or by someperson qualified to accept on the donee’s behalf. The acceptance must bemade during the lifetime of the donor and the donee in as much as otherwisethe will of the donor and the donee would not be united as required in thecase of a contract of donation. The exception is that if the gift is to take effectafter the donor’s death it may be accepted by the donee after the donor’sdeath. Nonai v. Appuhamy} The onus is on the claimant to satisfy the Courtof the existence of the animus donandi which is essential to his case.Timoney and King, v. King3 – and Mayer and Others v. Rudolph’s Executors.“In the case of donations to a minor there are judicial dicta to the effect thatunder the Roman Dutch Law such a gift to be valid must be accepted by hisnatural guardian or by his legal guardian appointed either by will or byCourt. According to this view of the Roman Dutch Law the mother andfather have the relationship of the natural guardian as also the grandmotherand grandfather. The uncle of the minor was not considered a naturalguardian. Silva v. Silva.5
The judgment of the Privy Council in Nagalingam v. Thanabalasingham6- which was delivered on 6th October, 1952 has laid down the strict viewthat only a natural or legal guardian can accept such a gift on behalf of aminor. In this case a gift of immovable property by a father to his minor sonand accepted by the maternal uncle on the minor’s behalf withoutappointment by the lawful authority, was held invalid for want of acceptance,the uncle not being a natural guardian. In this decision at page 125 theirLordships stated:-
“Their Lordships see no reason for doubting the correctness of thedecision of the District fudge that the maternal uncle’s acceptance of thegift on behalf of the minor was not a valid acceptance according to theLaw of Ceylon. The finding is supported by authority. In addition to thecase of Silva v. Silva (11 N.L.R. 161) on which the District fudge reliedon there are two other decisions of the Supreme Court to the same effect,namely, Avichchi Chetty v. Fonseka – (1905) 3 A.C.R. 4 and Cornells v.Dharmawardene – (1907) 2 A.C.R. Supp., XIII. A maternal uncle is nota natural guardian; in the strict sense he is not even a member of thesame family.”
3 (1919) 21 N.L.R. 1653 (1920) SALR 133"(1919)21 N.L.R. 165
’(1908) 11 N.L.R. 1616 (1952) 54 N.L.R. 121
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There is another line of decisions which seems to take a more liberal viewrecognising a broader class of persons who can accept gifts made to a minorby his parents. This view appears to keep abreast with the gradualdevelopment of the principles of Roman Dutch Law on donations which inthe words of Gratiaen J. in Mohaideen v. Maricair5 – “are perfectly capableof sensible adaptation to suit modern conditions and situations in thiscountry”. A leading case on this trend is Mohaideen v. Maricair (supra) -delivered on 18th July 1952 before the judgment of the Privy Council inNagalingam v. Thanabalasingham.6 In this case a father donated to his minordaughter certain lands. The uncle at the express request and with the fullconcurrence of the father who was the donor and the natural guardian of thedonee, formally accepted the gift. Gratiaen J. having observed that theRoman Dutch Law relating to donations by the father in favour of his minorchild had taken a more liberal view than the early Roman Law said:-
“It seems to me that these principles are perfectly capable of sensibleadaptation to suit modern conditions in this country, and that the realtest in each is whether the Father has “proved his intention to divesthimself of the property” in favour of his child “with some kind ofsolemnity indicating to all concerned the exact nature of thetransaction”. De Kock v. Van de Wall – (1895) 12 S.C. 163. The RomanDutch Law does not regard it as incongruous that the donor, qua parentof the donee, should formally accept his own gift on the child’s behalf. Afortiori, he could authorise some other person by “a special mandate” toaccept the gift. Voet 39-5-13. In the present case, he was instrumental inprocuring the necessary acceptance by Pathumma’s uncle “in such anopen and public manner as to make it binding on the father andirrevocable by him. “Maasdorp’s Institutes” – (5th Ed) 3,69.93. Theproperty was formally conveyed and the deed was duly registered inaccordance with the law affecting title to land in Ceylon; and heunambiguously manifested his intention to complete the gift which inconsequence became irrevocable as far as he was concerned. Vide alsofootnote (a) at page 17 of Krause's translation of Voet on Donations. Thecase is not complicated by other considerations which may possiblyarise if a transaction of this kind is attacked by a creditor of the donor.”
De Villiers, C.J. in the case of Slabber's Trustee v. Neezer's Executor1makes this observation at page 167 regarding the changes the law relating todonations has undergone.
‘There is no branch of law which has been more altered than that whichrelates to donations.”
*(1902) 11 N.L.R. 161’(1895) S.C. Cases 163
* (1952) 54 N.C.R. 121
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He refers to the earlier Roman Law which regarded the son or daughterwho was still in familia as having no legal existence independently of thepaterfamilias. One consequence was that a father could not even make adonation to him. The Dutch Law modified the stringency of the old patriapotestas, and at an early stage allowed the father to contract with his child,but did not at once allow donations to be made. Subsequently such donationswere allowed with certain limitations, and the intervention of some publicauthority was required to give validity to the donation.
In Lewishamy v. Cornells de Silva8 a donation by a father was accepted onbehalf of the minor donee by his elder brother. It was held that as the fatherof the donee permitted the elder brothers to accept for the minor brotherthere was nothing wanting in the implementation of this donation. This Courton this occasion followed the decision in Francisco v. Costa9 where parentsgifted a land to their minor son, an infant of tender years, and the son’smaternal grandmother. The gift was accepted by the grandmother whoentered into possession. Clarence J. took the view that there was a validacceptance for the following reason:
“Since the parents, when they executed this conveyance, allowed thegrandmother to accept on behalf of the infant and take possession of theproperty, I can see nothing wanting to clothe the gift with reality.”
As against this view there is the case of Packirmuhaiyadeen v.Asiaumma.10 The question arose in this case whether the donation by a fatherin favour of his minor son was validly accepted by the donee’s elder brotheron behalf of the minor donee. It was held that there was no valid acceptanceon behalf of the minor donee. Sansoni J. having also referred to Mohaideenv. Maricair (supra) however followed the Privy1 Council judgment inNagalingam v. Thanabalasingham (supra) and dealt with the matter thus:—
“To deal with the first question it is clear that the major brother wasneither the natural nor the legal guardian of his minor brother. Therehave been cases where acceptance by a major brother on behalf of hisminor brother has been held to be sufficient. See Lewishamy v. de Silva(supra), where Middleton J. followed Francisco v. Costa (supra), a case inwhich acceptance by the grandmother of a donee was consideredsufficient. But the reason given in those two cases was that the father,who was the donor, permitted acceptance by those persons. I do notthink that such a reason would be upheld today. Subsequent cases suchas Babaihamy v. Marcinahamy" and Binduwa v. Unity'2 have upheld theacceptance by such persons who are neither legal nor natural guardiansonly where possession of the property by the donees was subsequentlyproved. See Fernando v. Alwis°. The recent'decision of the Privy
■(1906)3 Bal. 43
(1956) 57N.L.R. 449
(1910) I3N.L.R. 295
’(1889) 8S.C.C. 189" (1908) 11N.L.R. 232“(1903) 37N.L.R. 201
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Council in Nagalingam v. Thanabalasingham(supm) makes it clear thatacceptance on behalf of a minor by such a person as an uncle is not> avalid acceptance even where the donor was the father and the donee washis minor son. Sir Lionel Leach in that case said “a maternal uncle is nota natural guardian; in the strict sense he is not even a member of thesame family. Without appointment by lawful authority KantharSinnathamby (the uncle) could not act for Kandavanam (the minordonee) and it is not suggested that any such appointment existed.”
“Now if there was any force in the argument that an elder brother or agrandmother or an uncle could accept a donation on behalf of a minormerely because the father, who was the donor, permitted suchacceptance, the Privy Council would undoubtedly have held that therewas a valid acceptance in that case. I am therefore of opinion that therewas no valid acceptance on behalf of the minor donee in the presentcase. I might add that we are not dealing in this case with the questionwhether a father who is a donor can authorise another person by aspecial mandate to accept the gift. There is no evidence in the record onwhich such a plea could have been raised. It is therefore not necessary toconsider such a case as had to be considered by Gratiaen J. and Pulle J.in Mohaideen v. Maricair(supra)”.
In short, firstly, Sansoni J. was not prepared to accept as correct the viewthat where the acceptor was neither the natural nor legal guardian of theminor and if the father permitted such a person to accept the gift on behalf ofthe minor such acceptance is valid. Secondly, in regard to the decided caseswhere acceptance was by a person who was neither the legal nor the naturalguardian, he observed that the acceptance was upheld in these cases onlywhen the possession of the property by the donees was subsequently proved.
Gratiaen J. however, in Mohaideen v. Maricair thought that in the case ofacceptance by a person who was neither the natural -nor legal guardian thefact that possession of the property by the donees subsequent to the donationwas not an essential requirement to be taken into consideration to determinethe question of valid acceptance. Having referred to Francisco v. Costa andLewishamy v. de Silva (sujjra) he said:-
“It is true that in both these cases the property was in fact subsequentlypossessed on the minor's behalf but I am not convinced that this furtherstep is always essential to clothe the parent’s gift to his child withvalidity. Such a requirement certainly will be highly artificial where theparent had reserved to himself the enjoyment of the property during hislifetime.”
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I am in agreement with this view of Gratiaen J. especially in view of thefact that in many donations of property by parents in favour of minors suchdonations are invariable subject to the life interest of the donor. The questionof valid acceptance has generally to be determined independently of the factwhether or not possession was enjoyed by the donees subsequent to thedonation.
In Abeywardene v. Westthe Privy Council was called upon to deal witha case where a donation was made in favour of two minors Jane and Ceciliawhich was accepted on their behalf by Cooray and their brothers Alfred andJames. Cooray was Jane's brother-in-law married to her sister Isabella. It washeld that there was no reason to think that this was not.a valid acceptance onbehalf of Cecilia and Jane. Lord Keith of Avonholm at page 319 observed:-
“Their natural, guardians, their father and their mother, could not acceptfor them, because they were the donors. In similar circumstancesacceptance on behalf of a minor donee by his grandmother (who was theother donee) was held good in Francisco v. Costa and Others (supra) aswas also acceptance by a brother on behalf of his minor brother inLewishamy v. De Silva (supra). One of the grounds of judgment in thesecases was that the donors had allowed such acceptance to be made onbehalf of their minor children ”
In Nagaratnam v. John15 – Sansoni J. having referred to the vexedquestion as to what constitutes proper acceptance of a donation to a minoracknowledged that his earlier decision in Packirmuhaiyadeen v. Asiaumma(supra) could no longer be considered correct. In this case the father gifted aland to his minor daughter. As the donee was a minor the donation wasaccepted on her behalf by her maternal grandfather. While holding that there■was authority for the proposition that a grandfather is a natural guardian of aminor following Silva v. Silva, Avichchi Chetty v. Fonseka and Cornells v.Dharmawardene'1 he held that the grandfather was a proper person to accepton behalf of a minor. He therefore held that the donation was a valid one.Sansoni, J. however, stated that there was a further reason why theacceptance in this case should be considered to be good and it was that thedonor had allowed the acceptance to be made by the grandfather on behalf ofhis minor child. In this case Sansoni J. observed:-
“The recent Privy Council decision in Abeywardene v. West (supra)leaves no doubt on this point, for it was held there that acceptance bytwo brothers and a brother-in-law of a donation made by the parents of aminor donee is good. Lord Keith of Avonholm said in that case: “Insimilar circumstances acceptance on behalf of a minor donee by his
(1957) 58 N.L.R. 313
(1905)3 A.C.R. 4
(1958) 60 N.L.R. 113(1907)2 A.C.R. Supp. XU
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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 hisminor brother in Lewishamy v. de Silva (supra). One of the grounds ofjudgment in these cases was that the donors had allowed suchacceptance to be made on behalf of their minor children.”
Having referred to the fact that the learned District Judge in the LowerCourt had followed the reasoning in his judgment in Packirmuhaiyadeen v.Asiaumma (supra) – it was held that the minor donee’s elder brother cannotaccept the donation on the donee’s behalf even where the donor was thefather of the minor. Sansoni J. then observed:
“. . . but this judgment can no longer be considered correct. My decisionwas based on the view that an elder brother is not a natural guardian ofhis minor brother, and the mere fact that the father allowed him to accepta donation on behalf of his minor brother would not make theacceptance valid. I thought that the decision in Nagalingam v.Thanabalasingham (supra) justified such a conclusion, since in that casethe parents (who were the donors) seemed to have allowed the maternaluncle of their minor child (who was the donee) to accept the donationon the child’s behalf. The Privy Council decided that since the maternaluncle was neither a natural guardian nor appointed by lawful authorityhe could not accept the donation. I ought to add that there is no referencein the judgment – I have already quoted the relevant passage – to thecircumstance that the parents allowed the minor’s uncle to accept thedonation. However, it is now clear from Abeywardene v. West (supra) thatin the case of a donation made by parents, acceptance of the donation bythe brother-in-law and the brothers of the minor donee is good, for thereason that the donors have allowed such acceptance to be made onbehalf of the minor child.”
In Kirigoris v. Eddinhamyn a deed of donation was executed by a personin favour of A, B and C. A was the donor’s son, and B and C were A’s sisterand step-sister respectively. A had reached the age of majority but B and Cwere minors. The gift was accepted by A on his own behalf and on behalf ofthe minors B and C.T. S. Fernando J. following Abeywardene v. West (supra)and Navaratnam v. John (supra) held that the acceptance on behalf of theminors was valid for the reason that the donor had allowed such acceptance.
In Chelliah v. Sivasamboo19 the donor gifted certain immovable propertyto three persons namely to his two sons and a son of his deceased daughter.The three donees were all minors at the time and the donor allowed hissecond wife to accept the donation on behalf of the donees. The acceptor wasthe stepmother of two of the donees and also of the deceased mother of theother donee. According to the terms of the deed the acceptor was
(1956) 69N.L.R. 223.
(1971)75 N.L.R. 193.
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entitled to accept and enjoy the income and produce till the donees attainedmajority. It was held that the acceptance by the donor’s second wife wasvalid. Alles J. in a carefully considered judgment has referred to andanalysed the two lines of decisions.
We have therefore two trends of decisions each supported by a decision ofthe Privy Council. The first is the strict view set out in Nagalingam v.Thanabalasingham that acceptance of a gift made by a parent to a child mustbe by the natural or legal guardian and the more, liberal view expressed inAbeywardena v. West (supra) that in case of such a gift a donation is validwhere a donor had allowed such acceptance to be made on behalf of theirminor children by a person other than a legal or natural guardian.
South African Courts appear to veer towards the more liberal view thatacceptance of a donation made by a parent to a minor child to be valid neednot necessarily be accepted by a legal or natural guardian. As an example ofthe different approach to the same problem, I would refer to the case ofWellappu v. Mudalihamy20 where Layards C.J. expressed the view that hecould not see how the donor of a gift to a minor even though he was thefather can accept it on the minor’s behalf because the rule of law whichrequires the acceptance by a competent person of a gift is based on theprinciple that a donation is a contract and there must be two parties to everycontract. He, therefore, failed to see how a donor even though the father canact in the two capacities at the same time. He therefore concluded:-
“I cannot persuade myself that a father can even expressly accept on hischild’s behalf a gift he has himself made.”
The South African Courts, however, appear to have taken a different viewon this same question. In the case of Slabber’s Trustee v. Neezer’s Executor(supra) De Villiers, C.J. has however expressed the following view:-
“An unregistered donation by a father to his minor child is not deemedto be complete without clear proof of acceptance by the child, or by thefather on behalf of the child. Acceptance by the child alone is sufficientif he has reached the age of puberty; but if he is under that age, the giftmust be accepted by the Court, the Master, or the father in his behalf,whether the minor be under or above the age of puberty, the completeacceptance by the father would be sufficient; but such acceptancewould be incomplete as such without some act done by the father toprove his intention to divest himself of the property, such as deliveryto a third person, transfer in the Deeds Office, or, in the case of a cessionof action, notice to the debtor of such cession to the child”.
(1903) 6 N.L.R. 233.
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I find a case decided inl908 by Wendt J. – Babciihamy v. Marcinahamy-which appears to be in accord with the principles laid down in Slabber'sTrustee v. Neezer's Executor and differing from Wellappu v. Mudalihamy(supra). In this case a person called Jando gifted one half of the property to hisadopted daughter Nonkohami and the other half to his other adoptedchildren, her brothers, namely Salmon, Davit and Baron. The deed created afideicommissum. Jando was a major while the others were minors. Thenotary’s attestation was to the effect that after he had read and explained thedeed to Jando and the donees Salmon, Davit, Baron and Nonkohami in thepresence of the witnesses the same was signed “by all the proper parties” inthe presence of each other. The four donees accepted the donation and thedeed states that those who are of proper age to sign had signed thereto.According to the notary’s attestation all proper parties, meaning those whoare of the proper age had signed in his presence. There was also evidencethat some minor donees signed and entered into possession of the property.Wendt J. stated at page 234:-
“No case has been brought to our notice which lays down the broadproposition that a person under the age of twenty-one years is incapableof validly accepting a donation. Such a broad proposition would, I think,be contrary to our law. It is true a minor is incapable of binding himselfto his own detriment by an onerous contract, but he can always acceptan unequivocal benefit, such as a donation essentially is. Voet, lib. 26, 8,2 after stating that in some cases the authority of a guardian is notnecessary, that in many cases it is both necessary and sufficient, and incertain cases necessary but not sufficient, lays down that it isunnecessary in all those cases in which the ward makes his conditionbetter, and does not in turn bind himself to the other party, as where heexacts a stipulation from another or obtains possession “(compare 1Nathan, Common Law of South Africa, 159; 1 Massdorp’s Institutes,p. 246).” Acts and obligations entered into by the wards, without theguardian’s knowledge (says Van Leeuwen) are not binding, but void tothe extent to which they have been defrauded or prejudiced thereby. Butif the wards have profited by the transaction, it will hold good; so thatthey may stipulate and bind others, and, indeed, be themselves boundwhere it is for their benefit, but they cannot bind themselves to theirprejudice”. (1 Kotze, p. 135) Again, after saying that minors cannotwithout the knowledge and assistance of their guardians bindthemselves, Van Leeuwen adds (ibid., vol II., P4): “with this distinction,that by accepting anything from another, they may indeed acquiresomething, but do not bind themselves in favour of another further thanthey have been actually benefited thereby.”
I agree with Mr. Jayewardene, who appeared for the appellants, that thedecision of Wendt J. in Babaihamy v. Marcinahamy (supra) will not strictly
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apply to the present case as there has in fact been no. acceptance by MaisyWijesekera. This decision however emphasizes the tendency even in thiscountry as far back as 1908 that a donation to a minor to be valid need notnecessarily be accepted by the restricted category of persons called legal ornatural guardians.
Gratiaen J in Mohaideen v. Maricair (supra) follows the principle laiddown in the South African case when he says that the real test in each case iswhether the father has “proved his intention to divest himself of theproperty” in favour of his child “with some kind of solemnity indicating toall concerned the exact nature of the transaction.” He thereafter made thefollowing observation:-
“The Roman Dutch Law does not regard it as incongruous that thedonor, qua parent of the donee, should formally accept his own gift onthe child’s behalf. A fortiori, he could authorise some other person by “aspecial mandate” to accept the gift.”
In my view, the liberal approach expressed by Gratiaen J. in Mohaideen v.Maricair and the Privy Council in Abeywardene v. West (supra) and the casesthat followed these decisions have laid down principles which are capable of“sensible adaptation to suit conditions and situations of this country” withoutoffending the basic principles of the Roman Dutch Law of donation. To mymind the basic principle, adherence to which is a sine qua non in a donationis that it is a contract and no obligation or legal effect follows unless then; isacceptance of the donation. In the case of acceptance of a gift on behalf of adonee the class of persons competent to accept a donation has undergonechanges to keep abreast with “the increasing complexities of modernorganised society” without offending this basic principle. The rigours of theoriginal strict view have been toned down in the passage of time by judicialdicta.
Where a parent therefore donates property to his child such a gift may beaccepted on behalf of the child by a person authorised by the parent to acceptthe gift. There must also be the intention on the part of the parent to divesthimself of the property in favour of the child with some kind of solemnityindicating to all concerned the exact nature of the transaction. But as WoodRenton J. stated in Binduwa v. Untty2' – the question of acceptance is aquestion of fact, and each case has to be determined according to its owncircumstances. The donation of course, must not be detrimental to the minorbut must benefit him.
The next question is whether in the current case a person like Rev.Gunasekera who had adopted Maisy Wijesekera and to whom he was heronly “father” in this world is in the same position as a parent and whether he
(1910) 13 N.L.R. at 260.
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could request some person of his choice to accept the gift on her behalf whenhe made the donation in question.
Mr. Jayewardene, however, contended that the liberal view I have referredto has been circumscribed by judicial decisions relied on by him culminatingin the Privy Council judgment in Abeywardene v. West (supra) whichrestricted it to those cases where only a natural guardian like a parent is thedonor and is thereby unable to accept his own gift to his minor child. In sucha circumstance he can nominate a person who is not a natural guardian toaccept a donation on behalf of the donor's minor child. He submitted that thepresent case is not such a case as Rev. Gunasekera is not the natural guardianof Maisy Wijesekera.
In my view the principle laid down in these cases could logically andwithout injustice be extended to such a case. The Roman Dutch Law is not astatic unchanging law like the laws of the Medes and the Persians. In PearlAssurance Company Ltd. v. Government of the Union of South Africa22Lord Tomlin spoke meaningfully of the malleability and adaptability of theRoman Dutch Law to meet changing situations in modem life. He said:-
“In the first place, the questions to be resolved are questions of RomanDutch Law. That law is a virile living system of law, ever seeking, asevery such system must, to adapt itself consistently with its inherentbasic principles to deal effectively with the increasing complexities ofmodern organised society. That those principles are capable of suchadaptation cannot be doubted”.
Adoption of children has through the ages been a common occurrence inthe life of our people to whatever race, caste or creed they belong to. Peopleadopt near relations and even strangers. Affection and concern for theirfuture compel them to donate properties to such adopted children to providefor their future.-In making such a donation in order to pass legal title to thedonee is it always necessary that the acceptance of such a donation should beby a natural or legal guardian as understood in some of the decisions which Ihave referred to. So long as the donor seriously intends to benefit his minoradopted child by a donation and intends to divest himself of the property infavour of such adopted child, I see no reason why such person should notselect a person in whom he has confidence to accept the gift on behalf of hischild. Could it be contended that such a donation is bad for want ofacceptance by a competent person? I do not think so.
I find that there is no positive evidence of Maisy having being at any timeadopted by Rev. Gunasekera under the Adoption of Children Ordinance,Chapter 61 which came into operation on 1st February, 1944. I shalltherefore deal with this case on the footing that there was no such adoption
“(1934) A.C. 570.
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under the Ordinance in respect of Maisy by Rev. Gunasekera. In the casebefore us nothing has also been urged to show that the donation has not beento the minor's benefit.
The donation was made in my view by Rev. Gunasekera with due'solemnity indicating to all concerned the exact nature of the transaction andhe also did so with the intention to divest himself of the property in favour ofthe child. Although on the date of execution of the deed, that is 23.5.54, Rev.Gunasekera was living in Colombo, he went all the way to Kegalle to havethis deed of gift executed. One of the attesting witnesses to this deed hechose was a reverend gentleman, called Rev. Paul Victor Covilpulle. Theacceptor was described as an aunt of the donee. This in fact, is not strictlycorrect. Maisy Wijesekera was not present at the execution of the deed. Atthis time she was at St. Mary’s School, St. Margaret's Convent, Polwatte,Colpetty. Letitia Pinto was a person in whom apparently Rev. Gunasekerahad confidence. She is the 3rd defendant in this case. She has given evidenceand stated that she had known Maisy and that she had been adopted by Rev.Gunasekera. Rev. Gunasekera had by deed (3D1) of 14.7.45 gifted a share ofthis same property to her and the attestation was by the same NotaryMr. Herat who attested P5. We also find that Rev. Gunasekera by deed 2D1of 14.7.45 that is the same day, gifted a second property to Dr. D. W.Walpola. It was the same Letitia Pinto who accepted the gift on behalf ofDr. Walpola. The Notary who attested the instrument was the sameMr. Herat. According to the evidence of Letitia Pinto, Rev. Gunasekera cameall the way to Kegalle to ask her to sign the deed accepting the deed of gift.The deed of gift itself was not revoked for nearly 10 years till 1953. Thisshows that when Rev. Gunasekera donated the property he did so with theintention to divest himself of the property. The reason why Rev. Gunasekeradecided to revoke the deed appears to be that Maisy Wijesekera had gotmarried on her own accord when she was 18 or 19 years old without hisconsent.
In the context of modern times where families migrate from theirancestral homes and villages to far away places even overseas they mightfind it difficult to get a natural guardian to accept a gift in favour of a minor.Could acceptance in such an event be only by a legal guardian appointed byCourt? Situations may arise when there is a sense of urgency for the donationto be given to a minor by a person and the delay and expense in appointing alegal guardian may defeat the anxious and serious intention of such a personto benefit a minor by donation. In such situations should a parent or anyother person like Rev. Gunasekera if he has a serious intention of partingwith his property by donation to a minor for his benefit not be permitted toappoint a person of his choice to accept such gift on behalf of the minordonee specially as in the case of Maisy who had no known kith and kin.What difference does it make that the person accepting the donation onbehalf of the minor is not the natural or legal guardian of the minor in such
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situations? No grounds of morality, reason or justice can be urged againstsuch acceptance of a gift by a person so chosen on behalf of the minor. Thelaw being the soul of reason cannot therefore stand against such anacceptance.
I shall now deal with the case of Francisco v. Don Sebastian73 relied onby Mr. Jayewardene to support his contention that a person likeRev. Gunasekera could not authorise Letitia Pinto to accept the donation asshe was not the natural guardian or the parent. Although this decision hasfollowed Abeywardene v. West, Nagaratnam v. John (supra) and Francisco v.Costa (supra) and reaffirmed the view that in all cases of gifts by parents totheir minor children where the parents have either permitted or authorisedacceptance by others for the obvious reason that they themselves cannotaccept the gift on behalf of their minor donees, such acceptance is valid,■ however took the view that on the facts of the case there was no validacceptance. In this case the donor, Maria Alwis gifted to Emaliyanu andGabriel, both minor children of one Maria Perera, who does not appear tohave been related to the donor Maria Alwis. Emaliyanu was the son ofStephan Rodrigo who was married to Maria Perera. Maria Pererasubsequently eloped with a person called Jusey son of the donor Maria Alwisand by that adulterine union she had the donee Gabriel. Jusey accepted thedonation on behalf of the minor children Emaliyanu and Gabriel. Hepurported to do this on behalf of Gabriel “a son of mine” and on behalf ofEmaliyanu “an adopted son of mine”.
Sri Skandarajah J. (Alles J. agreeing) held that at the date of the donationJusey was not Gabriel's natural guardian as he was for all time prohibitedfrom becoming Gabriel’s natural guardian. The reason given is that bysection 21 of the Marriage Registration Ordinance children procreated inadultery cannot be legitimated by subsequent legal marriage of the parents,therefore he could not accept the gift on behalf of Gabriel and that MariaPerera the mother was the only person competent to accept the gift.Regarding the gift to Emaliyanu his father Stephen Rodrigo was alive on thatdate. Maria Perera, his mother, was his natural guardian. Only one of themcould validly accept the gift. The Court rejected the argument that as MariaAlwis had allowed the acceptance by Jusey the acceptance was valid. TheCourt on this occasion as 1 remarked took the view it was only in the case ofgifts by parents to their minor children that they can permit authoriseacceptance by others for the reason that they themselves cannot accept a gifton behalf of their minor donees. I should, however, think that the principlelaid down in Abeywardene v. West (Supra) could have been extended withoutoffending the basic principles of Roman Dutch Law to the facts of this case.The donees were Emaliyanu and Gabriel, the children of Maria Perera. Thedonor was Maria Alwis. Gabriel was the illegitimate son of Jusey, the son ofthe donor Maria Alwis. Maria Alwis therefore was “the grandmother” of thedonee Gabriel. If, however, the donee was the legitimate offspring of Jusey
(1964) 69 N.L.R. 440.
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then acceptance by Jusey at the request of his mother Maria Perera, whocould come under the category of a natural guardian, of the donation infavour of Jusey’s son was unexceptionable. Could the circumstance that thedonee was the illegitimate son of Jusey make a difference? I find it difficultto understand how the principle stated in Abeywardene v. West (supra) couldnot have been extended to this case. After all the donor Maria Alwis wasmaking a donation in favour of an illegitimate son of her own child Jusey.She has selected none other than her son Jusey, the putative father of thedonee to accept the gift. Could it be contended that the putative father wasnot competent to protect and advance the interests of Gabriel? 1 should thinkthat Jusey was competent to accept the donation on behalf of his illegitimateson Gabriel.
With respect I cannot accept as correct the reasoning given in thejudgment for rejecting the argument that although Maria Alwis had allowedJusey to accept the gift, the acceptance was not a valid acceptance.Regarding the donation to Emaliyanu it may well be that after Maria Pereraeloped with Jusey, Emaliyanu was brought up in the household of Jusey andwas considered “an adopted son” of Jusey. No doubt, Stephen Rodrigo, thefather of Emaliyanu, was alive and could have accepted the gift. But onedoes not know the state of relations at the time between Maria Perera andRodrigo. I also agree that the donation could have been accepted by MariaPerera, the mother. But could it be said that if, in fact, Emaliyanu wasbrought up in the household of Jusey, then Jusey’s mother Maria Alwis couldnot have selected Jusey to be competent to accept the gift?
On the facts of this case therefore I hold that the deed of gift, P5, wasvalidly accepted. The reasons given in 4D6, the deed of revocation, of
by Rev. Gunasekera for revoking the gift was that MaisyWijesekera was unaware of the said deed of gift and the said deed of gift wasat no time accepted by the said Maisy Wijesekera and the said deed of giftwas invalid in law for want of acceptance by the said Maisy Wijesekera orby any person authorised by law for the said Maisy Wijesekera. I havealready held that the gift P5 was validly accepted. I also agree with thelearned District Judge that there was no ingratitude established on the part ofMaisy Wijesekera towards the donor to entitle the donor to revoke the deedof gift P5.
. I would therefore dismiss the appeal with costs, and affirm theinterlocutory decree.
Ratwatte, J. -1 agree with the judgment of my brother Pathirana, J.
Appeal dismissed.
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Wanasundera, J-
I regret that I have to dissent from the majority judgment in this case andfrom the reasons by which it is supported.
This is an action for partition of the land described in the plaint and thecontest which gives rise to this appeal is one between the plaintiff-respondentand the 1st defendant-respondent on the one hand, and the 4th and 7thdefendants-appellants on the other. The title of both sides devolve throughRev. D. G. Gunasekera, their immediate predecessor-in-title.
The plaintiff-respondent alleges that Rev. Gunasekera, by instrument ofdonation P5 of 1944, gifted an undivided l/3rd share of Lot B of this land,together with two buildings, to Maisy Wijesekera, reserving to himself a lifeinterest. Maisy Wijesekera, by deed P6 of 1959, sold her rights to theplaintiff-respondent and the 1st defendant-respondent in equal shares.
The 4th and 7th defendants-appellants have challenged the validity of thedonation P5 to Maisy Wijesekera. It is their case that Maisy Wijesekera, whoappears to have been an infant at the time of the gift, had not accepted thedonation. It is also averred that Rev. Gunasekera, by deed of revocation 4D6of 1953, revoked the gift to Maisy Wijesekera. Thereafter Rev. Gunasekera,after subdividing the lands into lots as shown in plan 4D8 of 1953, gifteddefined extents of the land to the 4th defendant-appellant by deed 4D7 of1955 and to the 7th defendant-appellant by deed 7D1 of 1956.
Both Maisy Wijesekera and the 4th defendant-appellant, MichaelGunasekera, are said to have been adopted by Rev. Gunasekera.Rev. Gunasekera appears to have been a benevolent gentleman who hadtaken care of these two children. The so-called adoption of MichaelGunasekera, the 4th defendant-appellant, was prior to that of MaisiyWijesekera. Rev. Gunasekera regarded both as his adopted children, and, infact, in his last will he had referred to the 4th defendant-appellant as the one“whom I adopted.” The 4th defendant-appellant seems to have been closer toRev. Gunasekera in many ways, while Maisy Wijesekera spent her time withhim only during her holidays. There is some evidence also to indicate thatMaisiy Wijesekera did not, by reason of her behaviour towards him, endearherself to Rev. Gunasekera.
In regard to the so-called adoption, it is clear that the necessaryprocedures for a legal adoption has not been gone through in either of thesecases. Therefore, in so far as this case is concerned, Rev. Gunasekera’s gift toMaisy Wijesekera will have to be regarded as being in no better positionthan that of a donation by a stranger to a minor.
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The 7th defendant-appellant, who claims title along with the 4thdefendant-appellant, is a child of parents who had been in the service ofRev. Gunasekera. The transfer made to the 7th defendant is in consequenceof the gratitude Rev. Gunasekera had for the past services rendered by theparents.
The learned District Judge, after examining the authorities, held that thegift by Rev. Gunasekera to Maisy Wijesekera could be given effect to andupheld the title of the plaintiff-respondent and the 1st defendant-respondent.On the question as to the due acceptance of the gift on behalf of MaisyWijesekera, he followed the judgment of Mohaideen v. Maricair (supra). Heheld that “in the present case Rev. Gunasekera was instrumental in procuringthe necessary acceptance by Letitia Gertrude Pinto in such an open andpublic manner as to make it binding and irrevocable by him.”
The donation P5 which was made in 1944 has been accepted by this ladyLetitia Pinto on behalf of Maisy Wijesekera, who must have been an infant atthat time. Letitia Pinto lived in Kegalle. Rev. Gunasekera had come all theway from Colombo to meet her and to persuade her to accept it on behalf ofthe minor child. The deed was executed in Kegalle. The minor was notpresent at the execution of the deed. The recital in 4D6, the deed ofrevocation, states that Maisy Wijesekera was unaware of the gift up to thedate of the revocation, in 1953. Letitia Pinto, the acceptor, is no relation orconnection of the minor. In fact, Letitia Pinto in her evidence said that shehas had no acquaintance with Maisy Wijesekera at any time and she wasunable to give any worthwhile information about Maisy Wijesekera. MaisyWijesekera is an orphan whom Rev. Gunasekera took from a convent and"educated at his expense. She had no known relations. Letitia Pinto ishowever connected to Rev. Gunasekera by marriage – Letitia’s cousin beingthe wife of Rev. Gunasekera.
Maisy appears to have been a headstrong girl, determined to have her ownway without regard to the feelings of Rev. Gunasekera, her benefactor. Whenshe was about 18 years years old, she had got married apparently against thewishes of Rev. Gunasekera and gone away. She had not come forward togive evidence in this case. She comes into the picture only once more, that is,when she is alleged to have executed the transfer P6 in 1959 to the plaintiff-respondent and the 1st defendant-respondent. Even in this regard, theplaintiff-respondent has stated that he came to know Maisy Wijesekera onlyone month before he purchased the property from her. This appears to be aspeculative purchase, for only the sum of Rs. 3,000/- has been paid at theexecution of the deed and the purchasers have promised to pay the balanceRs. 2,000/- in the event they succeeded in having the title to the landvindicated by a court action.
The plaintiff-respondent who purchased this property is an ayurvedicphysician, and claims to have been the tenant of premises No. 12 fromRev. Gunasekera since 1949. It would, however, appear that in 1957Rev. Gunasekera was not satisfied with the plaintiff’s tenancy. After
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Rev. Gunasekera’s death, the plaintiff in 1959 apparently sought out MaisyWijesekera and obtained title from her to ensure that he would not be evictedfrom this house. He says that he was however evicted from the land in 1960by the 7th defendant-appellant.
Turning now to the law, I would like to reiterate that this donation byRev. Gunasekera to Maisy Wijesekera would have to be treated like adonation from a stranger to a minor and not on the basis of a donation by aparent to a minor child.
A donation being a contract must be accepted by the donee to give it legaleffect. In the case of a donation to a minor, the law requires that it should beaccepted by the natural guardian or the legal guardian, as a minor isdisqualified from accepting a donation. The general rule is that the parentswho are the natural guardians are competent to accept a gift on behalf of aminor. Grandparents are also brought under this category. A legal guardianwould be a person appointed by a court to look after a minor. In Silva v. Silva(supra) the court held that acceptance by an uncle of the minor wasinsufficient to give effect to the gift.
Donations made by the parents to a minor child involves specialtreatment. The father and the mother, the natural guardians of a minor child,are disqualified from accepting the gift on the child’s behalf, because theyare also the donors. There is a line of authorities in Ceylon culminating in thePrivy Council decision of Nagalingam v. Thanabalasingham (supra), whichshow that the courts made no exception even in such cases and continue toapply the strict view that it is only a natural or a legal guardian who canaccept a gift on behalf of a minor.
The Privy Council decision in Abeywardene v. West (supra), which camelater, has been the starting-point for our courts taking a turn to theliberalisation of the law in the case of donation by parents to their minorchildren.
Numerous legal decisions subsequent to this case have gone to the extentof upholding donations made by the parents to a minor child, where theperson accepting it was either permitted or authorised by the parents toaccept it on behalf of the minor donee. (Nagaratnam v. John, Kirigoris v.Eddinhamy, Chelliah v. Sivasamboo, and Francisco v. Don Sebastian(supra)).
The learned District Judge in this case has relied on the judgment ofJustice Gratiaen in Mohaideen v. Maricair (supra). This decision was prior inpoint of time to the decisions referred to above, including the two PrivyCouncil decisions. This itself was a case of a donation by a father to his
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minor daughter. It was accepted on the minor’s behalf by her uncle at theexpress request of the father. It would appear that the strict view in regard toacceptance had prevailed at the time the case was argued and JusticeGratiaen was merely anticipating the subsequent developments when hesought to broaden the category of persons who can accept on behalf of aminor a donation given by the parents. If that case had to be decided today, Ihave no doubt that we would ourselves approve of the result in that case.
In the course of his judgment, however, Justice Gratiaen quoted a passagefrom the judgment of De Villiers, C.J., in Slabber's Trustee v. Neezer’sExecutor (supra). Speaking of donations proper distinguished fromremuneratory donations, he said:
“.. . They require registration in the Deeds Office if they exceed the sumof £500 in value and they are invalid and revocable to the extent of suchexcess, unless so registered. A donation by a father to his minor child iscompleted by such registration whatever the amount may be. Anunregistered donation by a father to his minor child is not deemed to becomplete without clear proof of acceptance by the child, or by the fatheron behalf of the child. Acceptance by the child alone is sufficient if hehas reached the age of puberty; but if he is under that age, the gift mustbe accepted by the Court, the Master, or the father in his behalf. Whetherthe minor be under or above the age of puberty, the complete acceptanceby the father would be sufficient; but such acceptance would beincomplete as such without some action by the father to prove hisintention to divest himself of the property, such as delivery to a thirdperson, transfer in the Deeds Office, or, in the case of a cession ofaction, notice to the debtor of such cession to the child.” (p. 168).
On many aspects, our law is different from the law in South Africa. Mereregistration does not give validity to a donation to a minor under our laws,nor do we recognise an acceptance by the minor child or by the father.However, in one sense, our law on this point can be said to be broader, as ourcourts will now uphold an acceptance on behalf of a minor by a person whohas been authorised or permitted to do so by the parents. But, theseprinciples relate to donations by a parent to his minor child. The facts of thecase before us is not such a case.
As far as the present case is concerned, the law requires that the gift beaccepted by the natural or legal guardian of the minor. Fernando v.Cannangara,u and Wellappu v. Mudalihami.“ I shall examine only theauthorities cited by the respondent contending for a deviation from thesetime honoured principles.
Counsel for the respondent has drawn our attention to a passage in thejudgment of Alles J. in Chelliah v. Sivasamboo in support of his argument.
(1897) 3N.L.R. 6.
“(1903 ) 6 N.L.R. 233.
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Alles J. referred to certain observations of Wood Renton J. in Hendrick v.Sudritaratne.26 They were as follows-
“I may further point out, that even in the case of Silva v. Silva, it wasrecognised that an acceptance by a person, who was neither the naturalnor the legal guardian of the minor, would be rendered valid where thesubject of the donation came into the possession either of the donee or ofhis self-constituted guardian.”
Counsel also referred us to a passage in Thomson’s Institutes, Vol. 2, atpage 51, which is as follows:-
“Strangers who leave any estate or legacy to the children of others mayappoint guardians for them; but this is not a personal guardianship,which concerns the maintenance and education of children, but areal guardianship, regulating the administration of the property sobequeathed.”
By these authorities counsel sought to introduce the concept of a “self-appointed guardian” and also to argue that Rev. Gunesekera was in locoparentis to the minor and it was therefore competent for him to authorise aperson to accept the donation on behalf of the minor Maisy Wijesekera.
I have examined these authorities and I find that they have little bearingon this matter. Justice Wood Renton’s statement quoted above is not borneout by the judgment in Silva v. Silva (supra). The reference to possession bythe donee or his “self-constitued guardian” in that case was a statement madeto meet an alternative argument adduced in that case that it was open to thedonee to accept the gift any time before the death of the donor. Thatstatement cannot mean that the person referred to as the “self-appointedguardian” was entitled to accept the gift on behalf of the minor, for, if so, asthere was already an acceptance by the uncle, the donation would have beenupheld by the courts. On the contrary, the court held that the acceptance bythe uncle was no valid acceptance. The term “self-constituted guardian” asAlles J. himself explains at page 213 of his judgment, means nothing morethan saying that the “donor never selected the uncle as an acceptor” and theuncle came in as an acceptor on his own, meaning that the father stood asideand allowed the uncle to accept it. Over and above this, it will be seen thatSilva v. Silva (supra) was a case of a donation by a father to a minor childand would, in the context of the present law, be decided in favour of theminor, as the father had “permitted” the uncle to accept the donation.Similarly the passage from Thomson deals with testamentary guardians andhas no application to the present situation.
My brothers are seeking to extend the principles relating to acceptanceapplicable to donations from parents to minors to cases of donations from
“(1912) A. C. 80.
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strangers. The two situations are dissimilar. In dealing with this case, wemust bear in mind that we are confronted with an exceptional situation – thecase of an orphan without a natural or legal guardian. Normally there wouldbe a guardian natural or legal, and even acceptance by a third party with thepermission of the proper guardian may suffice to ensure the validity of suchgift. If the proposed rule, which is somewhat far-reaching, is accepted, itwould mean the donor will be entitled to designate a stranger to accept adonation on behalf of a minor overriding as it were the rights of the naturalor legal guardians. Viewed in this context, I feel that this proposal may createproblems for the minor and his family and could be productive of mischief.
I agree with my brother Pathirana J. that this branch of the law hasundergone change and is susceptible of development. In my view, if furtherchanges are called for, we should move cautiously and by way ofaccustomed legal concepts and principles. I can envisage a development onthe following lines which seems already outlined in the case law. Roman-Dutch law well recognises the principle that one can ratify the act of anunauthorised person so as to give it validity. (Voet, 39.5.13; Tissera v.Tissera,27) Such ratification should take place before the death of the donor.Since a ratification relates back to the original acceptance, it could evenprevent a donor from any subsequent dealings with the property. BoltonPartners v. Lambert.28 The problems relating to acceptance, even in cases ofthis type, could, to a great extent, be resolved equitably if we were to adoptprinciples such as these.
I have made these observations in view of the somewhat broaderprinciples enunciated by my brothers. On the facts of this case, however,there has been no acceptance of the gift on behalf of the minor by a personwho is duly authorised in law to do so, nor is there evidence of a subsequentratification of Letitia’s acceptance before the death of the donor, by MaisyWijesekera. The title of the plaintiff-respondent and the 1st defendant-respondent is accordingly affected by the want of acceptance of the donationP5 from which their tide flows. In the result, I hold that title of the 4th and7th defendant-appellants is entided to prevail over that of the respondents.
I would, therefore, allow the appeal with costs.
Appeal dismissed.
(1908) Weerakoon 6.
41 Ch. 295.
