Nagaratnam and KandiaH.
1943Present: de Kretser and Wijeyewardene JJ.
NAGARATNAM et al. Appellant, and KANDIAH et al.Respondent.
7—D. C. Jaffna, 16,415.
Deed of Gift—Acceptance of deed by maternal uncle on behalf of minors—Presumption of acceptance.
A deed of gift to minors by their mother, their father being a lunatic,may be accepted on their behalf by their maternal uncle.
Where the deed contained a statement to the effect that the donordelivered possession of the property to the minors, acceptance may bepresumed.
DE KRETSER J.—Nagaratnam and Kandiaft. aoi
PPEAL from a judgment of the District Judge of Jaffna.
Plaintiffs, who are minors, instituted this action by their next friendunder section 247 of the Civil Procedure Code to have it declared thattwo parcels of land which they claimed upon a deed of gift No. 5218 ofMay 16, 1937, from their mother (second defendant) were not executableunder a writ obtained by the first defendant (the judgment-creditor of thesecond defendant). They further prayed for a declaration of title to theproperty. The first defendant pleaded that the gift was void becauseit was executed in fraud of creditors and was not validly accepted.
, Several issues were framed at the trial but Counsel for the defendant(Mr. Vanniasingham) wanted issue No. 3, viz., Was there a validacceptance of deed No. 5218 ? tried as a preliminary issue. No evidencewas led and the argument proceeded on the law. the District Judgeheld that the acceptance was not valid.
L. A. Rajapakse (with him O. L. de Kretser (Jnr.)), for plaintiff, appellant.—This is a gift by a mother to her minor children. The father who is thenatural guardian is presumably a lunatic ; and in these circumstances,acceptance by the maternal uncle is valid. The acceptance of a gift byminor donees may be presumed. Hendrick v. Sudritaratne'; Tissera v.Tisscra *; Government Agent v. Karolis".
The acceptance may be signified in the deed itself (as in this case in thedeed possession is stated to have been given to the donees), by a letter orin any other way, e.g., by words, by competent signs, by a nod, &'c.Pereira p. 605 ; 3 Maasdorp (4th ed.) pp. 107-109.
Acceptance may be presumed by proof that the donees possessed on the•4ft Pereira pp. 606-7 ; Bindutoa v. Unity It is a .question of fact. Thedefendant led no evidence. The D. J. has misdirected himself in thinkingthat the decision in Fernando v. Alwis * is applicable to the facts of thisease.
S. J. V. Chelvanayagam (with him T. Curtis), for the first defendant, res-pondent.—A gift in favour of minors may be accepted (a) by the minorsthemselves, (b) by some other person on behalf of the minors at therequest of the donor, (c) by possession of the property by the minors.In this case the person who purports to accept for the minors is a stranger.He is not the natural guardian. There is no evidence that the donorrequested him to accept the gift for the minors. There is no proof ofpossession by the minors. A mere statement in the deed that possessionis handed over is not proof of possession.. The deed is admitted only toprove title and for no other purpose. The plaintiffs did not tender anyevidence at all on the issue of acceptance. The only course open to thecourt is to remit the case to the lower court for any evidence that may betendered by plaintiffs on the issue of acceptance.
Cur. adv. vv.lt.
March 26, 1943. de Kretser J.—
When this case came up for trial certain issues were suggested andthereupon Mr. Vanniasingham began to address the Court on issue 3,whereupon the judge decided to deal with that as a preliminary issue of
' 'SC. A. C. 80.» S N. L. R. 78.6 37 N. L. R. SOI.
« 8 S. a. D. 30.* J3 N. L. R. SSO
352North-Western Blue Line Company and K. B. L. Perera.
law. He could only deal with the preliminary issue of law under section47 of the Civil Procedure Code. Mr. Vanniasingham then cited a numberof cases and addressed the Court. To what effect he addressed the Courtwe do not know. The learned Judge then decided the issue in favour ofthe defendant and in doing so misdirected himself as to the effect of theease Fernando v. Alwis (supra) in which he thought it was held that theacceptance by an elder brother on behalf of his minor brother was not avalid acceptance. What was pointed out in that case was that theelder brother had accepted on behalf ' of ' himself and a stranger hadpurported to accept ori behalf of the minors'. He also thought the correctlegal position should be to find out Whether there is any valid acceptanceon the face of the deed. But in the Roman-Dutch Law, as Marsdorp andWalter Pereira point out, acceptance may be signified in many ways andthe form of the acceptance is immaterial. It may be inferred fromcircumstances, and in Hendrick v. Sudritaratne it was indicated that therewas a natural presumption in all cases that the deed was accepted. Wehave in the record evidence which indicate that the minor’s fatherwas a lunatic, who had been separated from his wife by decree of Court.In the earlier testamentary proceedings it was the minor’s uncle who wasappointed guardian and it would be extremely difficult to say that insuch Circumstances the maternal uncle would not be a competent personto accept the, deed. Nor can it be assumed that the minors did notaccept the deed: ' Considering their ages and considering the fact, thatin the deed of gift there is the express statement made by the donor thatshe had that day delivered possession of the property donated, it islikely that she did deliver possession of the property. Donation is aform of contract and as such there must be an acceptance. What thelaw chiefly seems to require is evidence that the donor did intend to giftthe property. In our opinion therefore this case has been too summarilydisposed of. Issue 3 should be answered in favour of the plaintiff.There are sufficient circumstances which indicate that the deed has beenvalidly accepted. The order Of the learned District Judge is set, asideand the case is sent back for the trial to proceed on the other issues. Thecosts of the last date and of this appeal will be paid by the first defendant.respondent.
Wijeyewardene J.—I agree.,
Set aside, case remitted.