029-SLLR-SLLR-2001-V-2-SIRIWARDENE-v.-WIRAWANATHAN.pdf
SIRIWARDENE
v.
WIRAWANATHAN
COURT OF APPEAL
WEERASURIYA, J.
DISSANAYAKE, J.
A.339/94 (F)
C. MT. LAVANIA 1966/L
APRIL 26, 2000
JUNE 14, 2000
Rei Vindicatto – Deed of Gift – Donee a Minor accepting the gift – Validity
– Can a Minor accept a gift on her behalf.
Held :
(1)The Plaintiff Respondent was 12 years of age at the time of the execution
of the deed of gift, the Notary In the attestation clause made explicitreference to the fact that he had duly read over and explained thecontents of the deed to the donee and thereafter she has placed hersignature.
(ii) The proposition that acceptance by a minor, does not contribute validacceptance cannot affect, the validity of a deed of gift. It is competentfor a minor to accept a donation in his favour inasmuch as he isbenefitted thereby.
‘Fbr the purpose of acceptance minors may be divided into two classesviz (i) those of tender years-children and (ii) those who have sufficientintelligence. One who may be said to be a child is taken to lack allmaterial capacity or power to form a decision and so can enter intono transaction’ whatsoever. One of the 2nd class is deemed capable ofthinking for himself has intellectus but since he is yet inexperiencedand likely to act rashly, necessary auctoritas of his guardian mustgenerally be interposed to make the transaction absolutely binding.Such a minor however can take the benefit of a contract and thus hecan himself accept a gift.’
Appeal from the Judgment of the District Court of Mt. Lavinia.
Cases referred to :
Nagalingam vs. Thanabalasingham – 50 NLR 97 at 98.
Nagalingam vs. Thanabalasingham – 54 NLR 121 (PC).
CA
Slriwardene v. Wlrawanathan
(Weerasuriya, J.)
289
Babaihamy vs. Hareinahamy – 11 NLR 223.
Mohideen Htufyier vs. Ganeshan – 65 NLR 421 at 424.
Nonai vs. Appuhamy – 21 NLR 165 at 168.
Bertie Fernando vs. Missie Fernando – 1986 1 SLR 211.
N.R.M. Daluwatte RC., with Vidura Gunaratne for Defendant Appellant.
RA.D. Sanarasekera, EC., with Keerthi Sri Gunawardena for Plaintiff -Respondent.
Cur. adv. vult.
November 01, 2000
The plaintiff-respondent by her plaint dated 16.06.1989,instituted action against the defendant – appellant, seeking adeclaration of title to the land and premises described in theschedule to the plaint, ejectment of the defendant – appellanttherefrom and damages.
The defendant-appellant whilst denying averments in theplaint prayed for dismissal of the action. This case proceededto trial on 12 issues, and at the conclusion of the case, learnedDistrict Judge by his judgement dated 16.06.1994, enteredjudgment for the plaintiff-respondent. It is from the aforesaidjudgment that this appeal has been preferred.
. At the hearing of this appeal, learned President’s Counselappearing for the defendant-appellant contended that learnedDistrict Judge had misdirected himself in arriving at the followingfindings.
That the legal title to the property in suit is vested in theplaintiff-respondent; and
That the defendant-appellant has failed to establishprescriptive fights to the premises in suit
The case of the plaintiff-respondent was that by deed of giftbearing No. 64 dated 11.11.1943, attested by A.V.R Joseph,
WEERASURIYA^J.
290
Sri Lanka Law Reports
120011 2 Sri L.R.
marked PI, her father David Gunaratnam Joseph gifted thisproperty to her, reserving life interest. This deed of gift had beenduly registered as evidenced by the certified copy of theencumbrance sheet marked P3. The deed disclosed that theplaintiff-respondent had accepted the said gift. However, at thetime of the aforesaid gift, the plaintiff-respondent was a minorbeing 12 years of age. The question that arises for determinationis whether there was a valid acceptance of the deed by theplaintiff-respondent.
Learned President’s Counsel for the defendant-appellantcontended that a minor cannot in law accept a gift on her behalf.
The Roman Dutch Law provides that to constitute a validdonation, inter alia, there must be acceptance of the gift.
In Nagaltngam vs. Thanabalasinghama> at 98Canakaratne J. observed that for the purpose of acceptance,minors may be divided into two classes viz., those who are oftender years, who may be termed children and those who havesufficient intelligence.
He further observed as follows
“One who may be said to be a child is taken to lack allmaterial capacity or power to form a decision and so can enterinto no transaction whatsoever, his guardian whether naturalor appointed acts for him without consulting him and withcomplete authority. Such a child can hardly accept a gift. One ofthe second class is deemed capable of thinking for himself, hasintellectus but since he is yet inexperienced and likely to actrashly, the necessary auctoritas of his guardian must generallybe interposed to make the transaction absolutely binding. Sucha minor however can take the benefit of a contract and thus hecan himself accept a gift.”
It is to be noted that in the appeal to the Privy Council fromthe decision in the above case, the question whether a minor
CAStriwardene v. Wirawanathan291
(Weerasuriya, J.)
can himself accept a gift was left undecided by the Privy Council(Vide Nagalingam vs. Thanabalasingham<2).)
In the case of Babaihamy vs. Mareinahamy,3> it was heldthat it is competent for a minor to accept a donation in his favourinasmuch as he is benefitted thereby. This principle was quotedwith approval and followed in the case of Mohldeen Hadjiar vs.Ganesham141.
In the instant case, it was revealed that plaintiff-respondentwas 12 years of age at the time of the execution of the deed ofgift marked PI and she had accepted the gift as evident fromthe deed. It is noteworthy that the Notary in the attestation clausehad made explicit reference to the fact that he had duly readover and explained the contents of the deed to the donee andthereafter she had placed her signature.
The proposition that acceptance by a minor does notconstitute valid acceptance, in any event, cannot affect thevalidity of a deed, of gift. It was observed by De Sampayo J. inthe case of Nonail|gp, Appuhamy151 at 168 that the effect of non-acceptance of a gift by a donee is to entitle the donor to revokethe gift and make any other disposition of the property.
In the case of Bertie Fernando vs. Missie Fernando(6> itwas laid down that where there has been no valid acceptanceof a deed of a gift, the donor is perfectly entitled to revoke it everunilaterally and make another disposition.
In the circumstances, it seems to me that it is not justifiableto hold that no title would flow from the deed of gift marked PI.
The defendant-appellant sought to set up a plea ofprescription in respect of the property in suit. It is necessary toset down the following facts in discussing this issue.
(1) That the husband of the defendant-appellant came to thepremises in suit as a tenant under John Joseph.
292
Sri tanka Law Reports
(20011 2 Sri L.R.
That upon his death, the defendant-appellant accepted Mrs.K.S. Joseph as her landlord.
That by letter dated 21.09.1977 marked P5, defendant-appellant had Intimated her willingness to attorn to theplaintiff-respondent as her landlord.
That by letter dated 23.02.1977 marked P7, Mrs. S.K.Joseph had informed the defendant-appellant to attorn tothe plaintiff-respondent, as her landlord.
That in case No. 809/RE, the defendant-appellant hadadmitted tenancy under the plaintiff-respondent.
That in the affidavit dated 02.10.1983 to the Commissionerof National Housing, the defendant-appellant admitted thatshe was the tenant under the plaintiff-respondent.
On the above material, it was manifestly clear thatdefendant-appellant cannot plead prescriptive possession to theproperty described in the schedule to the plaint. The equitabledoctrine that a person cannot approbate and reprobate wouldappear to preclude the defendant-appellant from taking such aposition.
For the above reasons, it seems to me that there is no meritin this appeal. Therefore, I proceed to dismiss this appeal withcosts.
DISSANAYAKE, J. – I agree.
Appeal dismissed.