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Present : Ennis A.C.J. and De Sampayo J.
NONAI et al. v. APPUHAMY et al.
94—D. C. Nuwara Eliya, 401.
Gift by husband andwife—Life interest res ere ed-~Prohib Mon against
alienation by survivor—No acceptance by donee—Gift to anotherperson by survivor—Prescription.
A and his wife B jointly executed deed of gift in favour of .- plaintiffs in 1895, reserving life interest in donors and survivor,and further prohibiting alienation by survivor.
A died in 1896. On September 4, 1902, B gifted the land to C,who accepted the same and possessed the land. On September 26,1912, B confirmed the earlier gift of 1895 by deed. The .-deed of1895 was not accepted during the lifetime of A.
Held, that C’s title was good.
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The acceptance by plaintiffsdid not relateback tovesta right of
ownership., in the property in the donees- from the date of the deed.
Until acceptance the plaintiffs had no estate inremainder,
reversion,, or otherwisewhich would prevent prescription running
Db Saupato J.—The effect of non-acceptance of a gift by adonee is to entitle the donorto revoke thegift andmake any other
disposition ofthe property.The clause in the. deed of 1896
prohibiting alienation by thesurvivor did not standinthe way of
B giving her share to C.
In the case of a gift in present* (possession alone being postponedto the death of the donor)the acceptancecannottakeplace after
the death of the donor.
rjnHE facta are fully set out in the judgment of De Sampayo J.
Bawa, K.C. (with him Hayley), for appellants.
A. St. V. Jayawardene (with him Samarawickreme and Zoysa),for respondents.
Gut. adv. vult-
September 2, 1919. Ennis A.G.J.—
The property in dispute in this case originally belonged to JohnAppu and his wife Justinabamy by right of purchase. On December13, 1895, they jointly executed deed No. 18,053 gifting the land tothe plaintiffs and added parties. The deed recited that the donorshad no children, and reserved a life interest in the donors andsurvivor. The plaintiffs and added parties are the nephews andnieces of John Appu and an adopted daughter. An endorsementon the deed states that the donors kept it after its execution. JohnAppu died on January 10, 1896, without having revoked the gift.
On September 4, 1902, Justina executed the deed D 1, No. 7,337,by which she gifted the land absolutely to her daughter by anearlier marriage, Carlinahamy, the wife of the first defendant.Carlinahamy died in 1904, and the first'defendant was appointedadministrator of her estate, and as such conveyed the property tothe heirs, himself and the added defendants in the case.
On September 26, .1912, Justina executed the document No. 54,in which she confirmed the earlier gift of 1895, and recited thatcertain persons had accepted the gift during the lifetime of herhusband.
Justina died in 1914, and the present action was instituted onJuly 4, 1916. The learned Judge found as a fact that the earliergift of 1895 was never accepted; that Carlina did accept the gift of1902, and she and her family have been in possession ever since,have lived on the land, and built substantial houses. There is noevidence that Carlinahamy was aware of the earlier deed of gift, andher husband, the first defendant, has given evidence that he never
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heard of it. It appears further that the earlier deed of gift was notregistered till 1918, and then only a copy of it, not the original,which has not been produced. The learned Judge dismissed theaction, and the plaintiffs and added parties appeal.
I see no reason to interfere with the finding of fact that there wasno acceptance of the earlier gift.
On appeal, it was urged, on the authority of Voet 39, 5, 13, that agift which reserved a life interest in the donors could be acceptedafter their death. Assuming this to be so (I do not consider itnecessary to decide the point), the next argument was that theacceptance related back to the gift to vest a right of ownership inthe property in the donees from that date; and as they were notentitled to possession till the death of the donors, no prescriptioncould rim against them in favour of the donors or any subsequentdonee. I am unable to see how any right of property could vest inthe donees till acceptance. Until acceptance the plaintiffs had noestate in remainder, reversion, or otherwise which would, under theproviso in section 3 of the Ordinance No. 23 of 1871, preventprescription from running against them. That being so, the issueof prescription raised in the case is conclusive. There is no definitefinding on this issue in the judgment, but the defendants led evidenceon it, and the Judge has found that the defendants have been inpossession ever since the gift to Carlina in 1902. It is clear that theyheld ut dominus for over ten years before Justina executed the deedNo. 54, and were still so holding at the date of action. In my opinionthe defendants have a clear prescriptive title, and it is unnecessaryto go further into the case. I would dismiss the appeal, with costs.
De Sampayo J.—
John Appu and his wife Justinahamy became entitled to theproperty in question by right of purchase upon a deed datedNovember 27, 1885. By deed of gift dated December 13, 1895,they donated the property to the plaintiffs and the added parties,Benjamin Talalla and Pranso, who are John Appu’s -nephews andnieces, “ to be possessed by them, their children, grandchildren, anddescendants.” The gift purported to be subject -to the followingconditions:— .
‘ That in the event of any one of us, the said two donors, pre-deceasing the other of them, it shall not be lawful for the survivorto lease the said land, buildings, plantations, and premises for aperiod exceeding three months, or to mortgage, tender as securityjtransfer, or in any other manner encumber the same, but maypossess the said land and premises and appropriate and enjoy theproduce mid income thereof.
“ That duong our joint lifetime we reserve to ourselves theright to possess the said land and premises in manner aforesaid. ”
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The gift was not accepted by the donees on the face of the deed,or in any shape, or form. John Appu died on January 10, 1896, andJustinahamy, who survived him, by deed dated December 4, 1902,reciting that she was entitled to the property by virtue of the deedof purchase of 1885 and by right of inheritance from her husbandJohn Appu, gifted the property to Carlinahamy, her daughter by aprevious husband, who accepted the gift on the face of the deed.The defendants claim the property under Carlinahamy. Notwith-standing the deed of gift in favour of Carlinahamy, Justinahamy bydeed dated September 26, 1912, reciting that the deed of gift of 1895in favour of the plaintiffs and added parties was accepted during thelifetime of John Appu on behalf of the added parties, BenjaminTalalla and Pranso, who were then minors, by their mother andbrother, and also reciting that she was deceived into executing thedeed of gift in favour of Carlinahamy, purported to confirm andratify the joint gift of her husband John Appu and herself in favourof the plaintiffs and the added parties, and Benjamin Talalla, thefirst of these added parties, purported to accept the same on behalfof himself and the other donees.
v Apart from the question whether the recitals in the last deed byJustinahamy as to the acceptance of the original gift are legalevidence, and apart from the fact that even these recitals do notstate that the gift was accepted by or on behalf of the plaintiffs,these recitals have no evidentiary value whatsoever. Justinahamywas a very ojd woman at this time, and it is obvious that she cameunder the influence of those interested in upholding the old deed ofgift, and was not personally responsible for the declarations containedin the deed of ratification, and I agree with the learned DistrictJudge in refusing to accept them as true. This case should, there-fore, be decided on the footing that there was no acceptance of thegift of 1895 dining the lifetime of'John Appu.
The effect of non-acceptance of a gift by a donee is to entitle thedonor to revoke the gift and make any other disposition of theproperty. Consequently Justinahamy’s subsequent gift to herdaughter Carlinahamy was effective so far as her half share of the. – property is concerned, and the plaintiff's sction must fail to thatextent. Counsel for the plaintiffs and the added parties, who arethe appellants, however, maintained the proposition that the clausein the deed of gift of 1895 prohibiting an alienation by the survivorof the donors constituted a contract between them and preventedJustinahamy from making any disposition even of her half shareafter John Appu’s death, and the analogy of a joint will by husbandand wife massing their property was referred to. I fair to see anyanalogy between the two cases, and no authority was cited in sup-port of this contention. Nor can I understand how the provisionreserving a life interest in the donors and prohibiting the survivorfrom alienating the property' can be said to constitute a contract
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between the donors. In my view the prohibition against alienationwas intended, from abundance of caution, to emphasize the fact thatthe donors were to have a life interest only. Moreover, that provi-sion was, as the deed itself describes it, a condition of the gift, andif by non-acceptance the gift becomes inoperative, it seems to methat the condition must vanish with it, and the parties must berelegated to their original rights.
I, therefore, think that the plaintiffs’ and the added parties’ claimmust in any case be restricted to John Appu’s half share of theproperty. The main argument on this appeal accordingly centredround the claim to that half share. The question of acceptancestill remains. The argument on behalf of the appellants is thatacceptance may be made even after the death of the donor, and thatthis action, though brought twenty years after John Appu’s death,amounts to an acceptance. It may be conceded that the claimingof the subject, of a gift by action amounts to an acceptance of thegift, but I doubt whether there is no time limit for that purpose, andwhether such acceptance has the effect of defeating the claims ofthird parties who have acquired title in the meantime. As regardsthe possibility of acceptance after death of the donor, the authorityrelied on is Voet 39, 5, 13. There Voet distinctly states the generalrule that acceptance should be made by the donee during the life-time of the donor, inasmuch as otherwise the will of the donor andthat of the donee would not be united as required in the case of acontract of donation, but he proceeds to point out a distinction, andstates that, unless the executio of the donation is postponed to thedeath of the donor, the donee is not prevented from accepting thedonation even after the donor’s death. The word '* executio ” isdifficult to construe, but I think it expresses the idea of the donationbeing completed by the vesting of title. This appears to be a littleclearer from Van Leeuwen Gen. For. 1, 4, 12, 16, where the expres-sion is effecius donationis, the taking effect of the donation. If thisis the meaning, then Voet is no authority in support of the plaintiffs’claim, because the gift in their favour is a gift in presenti, possessionalone being postponed to the death of the donors. However, inLokuhamy v. Juan,1 which Was followed in Tisaera v. Tiesera,2 thispassage was taken to cover a case where the donor, though he madean immediate gift, reserved the right of possession during life. Evenso, we have still to consider the effect of prescriptive possession onthe part of a third party. In this case there is very good evidence,which the learned District Judge entirely accepted, that Carlina-hamy during her lifetime and the defendants after her havepossessed the property as exclusively their own ever since the giftby Justinahamy in 1902, and they must be taken to have acquired anew and independent title by prescription, unless by acceptance ofthe original gift the appellants can be regarded as having defeated
1Bam. (.1972-76) 215.
• (1908) 2 8. O. D. 36.
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that title. I cannot hold, and there is no authority for saying, thatsuch acceptance has relation back to the date of the gift so .as to vesttitle in the appellants as from that date, and to wipe out the inter-vening prescriptive title of the defendants. As regards this, Mr.Bawa further argued that as the life interest of Justinahamy onlyterminated in 1914 when she died, the appellants came under theproviso to section 3 of the Prescription Ordinance, which providesfor prescription beginning to run against parties claiming estates inremainder or in reversion only from the time when the parties soclaiming acquired a right of possession to the property in dispute.In my view this language is wholly inapplicable to the circumstancesof this case. To say that the appellants had an estate in remainder -or in reversion is to beg the question. They had no title whatsoeverto the property until acceptance, and had no right to possession onJustjnahamy’s death, when, the life interest terminated, and I thinkthe proviso in no way helps them. In my opinion the defendants’plea of prescription as regards John Appu’s share of the propertymust prevail.
I therefore agree that this appeal should be dismissed, withcosts.
NONAI et al. v. APPUHAMY et al