Tho plaintiff filed this action against 4 defendants. The 1st defendantis Kadiramalai, the son of Suppiah, and one of the donees named in theDeed of Donation 4D3 of 1933. The 2nd defendant is also one of thedonees named in that Deed, namely Eliatamby the grandson of thedonor Suppiah. The 3rd named defendant is tho other done© Nagalingamunder whom tho plaintiff claims title to the allotment of 5| lachamsupon Nagalingam’s dispositions P5 and P6. The 4th defendant namedin the plaintiff’s action is the person in whose favour the two leases of1955 (4D9 and 4D10) were executed.
The 1st, 2nd and 4th defendants filed a joint answer ; the substantialposition taken in. their answ er and at tbe trial is that by virtue of theDeed of Donation of 1933 (4D3), tho three donees named in that Deed,
e., the 1st, 2nd and 3rd defendants, each became entitled to a 1/3 shareof the allotment of 5f ImB specified in the plaint, and that the plaintiffas the successor in title of the 3rd defendant Nagalingam is entitledonly to a 1/3 share of that allotment. The 4th defendant subsequentlyfiled a separate answer, and Counsel who appeared for him at the trialframed inter alia an issue which set up the title of the 4th defendant toa 1 /3 share of the allotment claimed by the plaintiff. The 4th defendantrelied upon a Deed P17 of 14th March 1959, by which the 2nd defendanthad conveyed a 1/3 share of this allotment to the 4th defendant.
The plaintiff relied on the Deed P3 of 1924, and claimed that by virtueof that Deed the title to this allotment had vested in the 3rd defendantNagalingam, the son of Suppiah, and that Nagalingam’s title had vestedin the plaintiff by the Deeds P5, P6 and P8. The contention for the4th defendant was that the Deed P3 of 1924 ceased to be effective when
H. N. G. FERNANDO, C.J.—Clielliah v. Sivasnmboo
Suppiah, in exercise of his right to dispose of this allotment, executedthe Deed of donation 4D3 of 1933 gifting this and the other four allotmentsjointly to the 1st, 2nd and 3rd defendants, and as already stated thelearned trial Judge agreed that Suppiah did have the right to make thatgift. But despite earlier arguments to the contrary, Counsel for the4th defendant in appeal ultimately conceded that the Deed of Donation4D3 had not been duly registered ; accordingly the deeds on which theplaintiff has relied have priority over 4D3 and over the deed P17, uponwhich the 4th defendant claims title to a 1/3 share of this land.
Thore is thus no doubt that the plaintiff’s claim of title upon the deedsmentioned in the preceding paragraph of this judgment must prevailover the 4th defendant’s claim of title under the Deed P17.
But there remains the question whether the facts of this case establishthat the three donees named in the Dead of Donation 4D3 had eachacquired a title by prescriptive possession to a 1 /3 share of this allotmentand of all the other four allotments dealt with in 1933 by the Deod ofDonation 4D3. I have already mentioned the uncontested conclusionof the District Judge that Suppiah had in law the right to dispose of allthe allotments, and my own opinion that in fact the entirety had beenpossessed in common from 1933 until 1955 in accordance with Suppiah’sDeed of Donation. Thus the 4th defendant can rely on the PrescriptionOrdinance and on the possession of hid vendor the 2nd defendant for along period as a co-owner to rebut the plaintiff’s claim of title to thisparticular allotment.
In regard to this question of prescription, issue No. 21 posed thequestion whether “ the 4th defendant acquired prescriptive title to a1/3 share of this allotment”, and issue No. 22 posed the similar questionwhether,the 1st defendant had a prescriptive title to a 1 /3 share. Theseissues were both answered in the negative by the learned trial Judge.In dealing with the question raised in issue No. 21, the learned Judgemade the following observations :—
“ The next question for consideration is whether the 4th defendantis entitled to the interests he claims on P17 by prescriptive title. The4th defendant has not called Kumarasamy Eliyathamby the vendor tohim of interests in the subject matter of this action on the Deed P17,and of the otty mortgage and lease on 4D9, to speak to the possessionof interests sold to him by Eliyatamby. The 4th defendant has alsonot called Kathiragamathamby who otty mortgaged and leased tohim interests on the Deed 4D10. According to the plaintiff the 4thdefendant obstructed him only in 1959 after tho execution of P8 whenhe went to put up a fence on the eastom portion of lot 1. The plan4D3 made in 1962 for the partition action shows that there were livefence? on the Northern, Western, Southern and a portion of the Easternboundary of the subject matter of this action. The execution of bondsP10 of 1958 and tho subsequent bonds referred to earlier, and the
H. N. G. FERNANDO, C.J.—Chelliah v. Sivasamhoo
seizure report P9, show that not only did the deceased 3rd defendantdeal with the subject matter of this action as a distinct and separateland but this position was accepted by Eliyathamby who transferredto the 4th defendant a 1/3 share of subject matter of this action on PI 7.Tho ov'donco of the 4th defendant on tho question of prescription isunconvincing. It is more probable that the 3rd defendant thepredecessor in title of tiro plaintiff had been in possession of thosubject matter of this action from 1933, after the death of his fatherNagalingam Suppiah, and had prescribed to it and the plaintiff isentitled to the benefit of the prescriptive possession of the deceased3rd defendant.”
The only evidence of the plaintiff during his examination in chief on thequestion of possession is contained in the following passago :—
Q.When did you first come to know that the 4th defendant Chelliahwas claiming a share of your land ?
A. When I went to fence the land in 1959.
Q.That is to say after you obtained a decree against Pasupathypillaiand wife Padrialedohuniy and transfer from them you went into
possession I
A. Yes.
Q. To your knowledge was the 3rd defendant possessing this landand taking rents from the shops 1
A. Yes.
Q. Till he died pending this action fA. Yes.
But that evidence is very nearly demonstrated to be false by theadmiaainna which the plaintiff made when cross-examined
" I knew the 5} lms before 1958.
Q.. There was no boundary fence then 1
A. Because they were using the whole land as one land there was nofence.
Q. “ They ” means who 1 Who were using it IA. Chelliah and his people. That is the 4th defendant and his people.Q. They wero using the land for how long fA. For 15 years.
Q. And then you tried to get the surveyor to put up a fence separatingthe 5J lms from tho eastern portion ?
A. I asked Nagalingam to separate my portion of the land.
H. N. G. FERNANDO, C.J.—Chelliah v. Sivaaamboo
Q. When the surveyor started to plant sticks the 4th defendantobjected to it and prevented him from doing it ?
A. When I went to plant the sticks only the 4th defendant tried toobject to it. ”
The 4th defendant’s ovidenco was that ho had for a long period been inpossession of much of the extent of 22 1ms. referred to in the Deed ofDonation, including of course the allotment of 5-J laehams now in dispute.Although ho did not oxplain how ho had been thus in possession ovenbefore the leases of 1955 in his favour, the admission of the plaintiff incross-examination that tho 4th defendant had been in pcssession for15 years, renders it highly probable that tho 4th defendant had possessedearlier under some informal arrangement.
With respect I must say that tho trial Judge docs not appoar to haveconsidered tho available evidence as to tho actual possession of thisallotment, and that he ignored altogether tho fact that tho Deed ofDonation 4D3 was actually acted upon by tho threo donees when theyexecuted leases in 1951 and 1955, and that the two leases recited aathe lessors’ source of title only tho Deed of Donation by whichSuppiah had conveyed “ a piece of land comprised of five lots ” to thelessors.
The opinion of the trial Judge that the 3rd defendant Nagalingam hadprobably possessed this allotment from 1933, aftor tho death of his fatherSuppiah, and had prescribed to it, was in the teeth of the solo ovidenco asto actual possession which was given by the 4th defendant and supportedby the plaintiff’s admission. That opinion also ignored the importantfact that Nagalingam was only about 10 years old when his father died—a fact which renders absurd the possibility that Nagalingam possessedthis allotment adversely to his (minor) co-donees. The strong inference ofpossession in common which arose from tho leases of 1951 and 1955 wasalso discounted by the trial Judge by his finding that the leases of 1955" do not deal with tho subject matter of this action, but with premisesoutside it ”,
Thi3 finding was based on certain transactions by the 2nd and 3rddefendants in 1958 and 1959, to which I shall have to refer in a differentconnection. But the claim of the 4th defendant, that this allotmentwas included in the subject of the leases, depended on the leases themselvesand on his evidence of possession under tho leases and during an earlierperiod. I have already set out the description contained in the leases4D9 and 4D10 of the subject of the leases. That description oxcludedcertain “ tenements ” bearing specified numbers. This word “ tenement ”is ordinarily used in Ceylon to describe the units of a building (usuallysinglo-storeyod) consisting of several such units, each unit comprisingonly one or a few small roomB occupied as a dwelling-place or boutique andnot meriting the description “house” or "shop”. What is regarded inthis country as a “ slum ” is an area in which peoplo live in " tenements ’*
H. N. G. FERNANDO, C.J.—Chelliah v. Sivaaamboo
of this kind. It is quito unreasonable to suppose that the Notary whoprepared the leases used the word “ tenement ” to describe an allotmentof 5| lachams on which thero were in fact no buildings. If then it was thecaso of the plaintiff that this allotment bore one of the AssessmentNumbers excluded in the description of the subject of the Leases, theburden lay on him to prove that tho allotment boro an excluded Number.But the plaintiff made no attempt to provo this.
Having regard to the Deed of Donation, to the three Leases, and to theadmissions of tho plaintiff that “ the 4th defendant and his poople hadused this land for 15 years ”, the question whether the three donees hadin fact possessed tho entire land as co-owners docs not depend on theperception of tho evidence, or on the credibility of oral evidonce adducedin this caso by tho 4th defendant. That being so, I have no hesitation inreaching the conclusion that the three donees had possessed this particularallotment, as also tho other four allotments, in common, for a period often years or longer, and that the title by prescription thus acquired by the2nd defendant to a 1 /3 share of this particular allotment passed to tho 4thdefendant on tho conveyance P17. But even on tho basis of tho conclusionwhich has just been, stated, there yet remains for consideration an issue ofestoppel, tho decision of which depends on certain transactions to whichreference has now to be made.
It has already been shown that, at tho least during tho period 1933 to1955, the Deod of Gift 4D3 had been accepted by the three donees osbeing valid, and that accordingly tho three donees were in possession asco-owners of all the five contiguous allotments including tho allotmentof 5£ lachams which is the subject of this action. But it appcam, that in1957, the 2nd defendant (who is the grandson of tho donor Suppiah)becamo aware that his family had a possible claim to be the owner of theentirety of two of these allotments. Tho 2nd defendant accordinglyinstituted two actions (tho amended plaints are marked 5D1 and 5D2)claiming title to the ontirety of .two of the allotments on the basis that thotitle to those allotments passed to his family on the death of his grand-father Suppiah. In those actions, tho 2nd defendant specifically deniedSuppiah's right to execute tho Deed of Donation 4D3, and the validity ofthe acceptance of that Deed. The two sons of Suppiah (the 1st and 3rddefendants in tho instant case) filed answer asserting the validity of thoDeed of Donation, but at the same time the present 3rd defendant, ovenirrelevantly, stated in his answer that he himself was exclusively entitledunder the Deed P3 of 1924 to the allotment of 5f lachams which is thosubjoct of dispute in tho instant caso. The 2nd defendant’s actionsultimately failed, for in January 1959 decrees (5D3 and 5D6) were entereddeclaring the three donees under the Donation 4D3 to be entitled each toa 1/3 share of the allotments which the 2nd dofendant had claimedexclusively for members of his family.
19-Volume LXXV
H. N. G. FERNANDO, C.J.—Chelliah v. Sivasamboo
It will bo seen that the 3rd defendant Nagalingam’s answers filed in theformer actions instituted by the 2nd defendant, both approbated andreprobated the Deed of Donation 4D3 of 1933 cxeeuted by his fatherSuppiah. While claiming that the Deed of Donation was valid in so faras it dealt with the allotments claimed exclusively b}r tho 2nd defendant inthose actions, Nagalingam had nevertheless claimed that ho had titleexclusively to the allotment of 5§ lm3 despito the Donation of thatallotment in equal shares to himself and to tho other two named donees.In fact those actions were pending when Nagalingam executed (inAugust and October 1958) the conveyances P5 and P6 on the basisthat he was sole owner of that allotment.
Indeed tho 2nd defendant himself, during the pendency of those actions,acquiesced in Nagalingam’s claim ; for on 29th March 1958 Nagalingamexecuted a mortgage of the allotment of 5 lachams in favour of the 2nddefendant. In this mortgage (P10) Nagalingam claimed title to this allot-ment on the deed P3 of 1924, and there was no mention of Suppiah’sDeed of Donation 4D3 of 1933. Thereafter, in quick successionNagalingam executed further mortgages of this allotment to other personsby Pll of 30th March 1958, by P12 of 3rd-May 1958, and by P13 also of3rd May 1958. The 2nd defendant, by P14 of 8th May 1958, assigned hismortgage PlO to the wife of the Notary who attested tho series of DeedsP10 to P14.
Relying on the acceptance by the 2nd defendant of the mortgage by the3rd defendant of the entirety of this allotment by the bond PlO of March1958, the plaintiff raised at the trial the issue No. 11, whether the 4thdefendant (as the successor in title of the 2nd defendant) is estoppedfrom denying the plaintiff’s title. This issue was answered by the learnedtrial Judge in the affirmative. I have now to refer to several matterswhich are pertinent to the consideration of that issue.
Firstly, there is the decision of this Court in tho case of Ukku v. Rankiri1(11N.L.R. 212), that the English Law of Estoppel by Deed does not applyin Ceylon. Tho plaintiff cannot therefore claim that tho Deed PlO itselfestablishes that tho 2nd defendant had no title to a 1/3 share of thisallotment of land.
Secondly, oven if tho English Law is to be applied, this is not an actionon the Deed itself, for tho plaintiff is not here seeking to enforce anyobligation of tho 2nd defendant or of his privy the 4th defendant whicharises under the Mortgage PlO. Phipson (Evidence, 10th Edition, para2034).
Thus thero can arise in this case only an Estoppel by representation.Applying the rules which are stated in Phipson (idem para 2050), thematters to bo determined are (a) whether the acceptance by the 2nddefendant of the mortgage ( P10 ) of the entirety of this allotment •
• (1908) n N. L. R. 212.
H. N. G. FERNANDO, C.J:—ChcUiah v. Sivasamboo
constituted a “ precise and unambiguous representation ” that the 2nddefendant was not entitled to a 1/3 share of the allotment, and (6)whether the plaintiff relied upon that representation when he purchasedthe allotment from the 3rd defendant.
To consider firstly the second of these matters, the plaintiff nowhere inhis evidence stated that the mortgage P10 induced him to believe that the2nd defendant had no titlo to a share of this allotment, or that hepurchased the allotment on the faith of a belief so induced.
The plaintiff first acquired an interest in this allotment bj7 the Deed P5of October 195S. That was almost exactly one year after the 2nddefendant had instituted two actions which challenged the validity of theDeed of Donation 4D3. Despite earlier denials, the plaintiff ultimatelyadmitted in cross-examination that “at the time the deed in my favourwas executed I was aware of such a case”. He was thus aware, when heacquired that interest, that actions were pending as to the devolution oftitlo to two of the allotments formeily owned by Nagalingam Suppiah,the father of the 3rd defendant Nagalingam. In such a situation, it ishighly improbablo that an intending purchaser of another such allotmentwould have relied on the inference arising from the Mortgago PIO as anassurance that the, mortgagor had title to th* entirety of the allotment.Indeed, as already stated, tho plaintiff did not in his evidence claim thathe had relied on tho Mortgage as providing such an assurance.
Counsol for the plaintiff urged that a search of the Land Register wouldhave revealed the existence of the Mortgage PIO and the fact that the2nd defendant had theroby acknowledged the 3rd defendant’s title to thisallotment. But equally, a search would have revealed the Leases of1951 and 1955, in which the 3rd defendant had acknow ledged the title ofthe 2nd defendant to a 1/3 share in the piece of land comprising all thefive allotments, and the recitals in the leases would have revealed also(in the Leases of 1955) that all the allotments had been dealt with in theDeed of Donation of 1933.
The Notary who attested Nagalingam’s conveyance P6 in favour of theplaintiff in October 1958 had in July that year filed Nagalingam’s answersin Actions Nos. 475 and 476, and he had in 1955 attested the leasee 4D9and 4D10 in which the lessors (including Nagalingam) had acted on thetitle accruing to them on the Deed of Donation. In viow of the Notary’sfamiliarity with matters affecting these five allotments, it is quiteunrealistic to think that the Notary himself would have had any faith inthe acknowledgment in PIO that the 2nd defendant had no title to one ofthem.
Applying tho rule as stated in Lewis v. Lewis'1 (1904, 2 Ch. D. 656),[1hold that the plaintiff in this case failed to discharge the onus of provingthat he changed his position in consequence of representations made bythe 2nd defendant in the actions he had filed or impliedly made by himin accepting the mortgage of this, allotment.
* (1904) 2 Ch. D. 6B8.
A LUES, J.—Chelliah v. Sivasamboo
The mortgage bond P10, wliich is claimed to have constituted arepresentation that Nagalingam was sole owner of this allotment, did notrequire to be signed, and was not in fact signed by the 2nd defendant.Hence it was at best only an implied acknowledgment by tho 2nd defendantof the 3rd defendant’s ownership of the land. Such an acknowledgmentin my opinion falls far short of being a “ precise and unambiguousrepresentation”. Had the, bond been put in suit in a hypothecary action,what would havo boon sold in execution of the decree is not tho landitself, but only the right title and interest of the 3rd defendant ; andif some persons other than the 3rd defendant had title jointly with him,no interest other than that of the 3rd defendant would pass to a purchaser.Moreover it is not uncommon for persons holding only a share in land topurport to mortgage the entire land. In these circumstances I hold thatthe two of the rules referred to by Phipson were not satisfied in thiscase, and that the plea of estoppel raised by the plaintiff must fail.
In the result the appeal has to be allowed and the decree of the DistrictCourt is set aside. Decree will now be entered declaring the plaintiff,the 1st defendant, and the 4th defendant, to bo each entitled to a 1/3share of the land described in the schedule to the plaint. The plaintiffwill pay to the 4th defendant the costs of action and the costs of appeal.
Alices, J.—
A material question which arises for consideration in this appeal is thovalidity of the deed of donation 4D3 of 17th September, 1933, wherebythe donor Nagalingam Suppiah gifted the land called Parayady Mullaikaddaiyady and Pannikodduvalavu, comprising of 5 lots, to his 2 sons,the 1 st and 3rd defendants and his grandson and 3rd defendant, whowere minors at-the time of the execution. The donation was acceptedby their stepmother Rasaratnam on their behalf. The learned trialJudge, after a consideration of certain decisions of this Court, to whichreference will presently be made, has held that there has been no validacceptance of the Deed 4D3.
By 4D3 Nagalingam Suppiah created a Trust of the land described inthe schedule to the deed which consisted of 5 lots in extent 22J lachams.This extent included the 5£ lachams which form the subject matter ofthis suit. The three donees were appointed trustees to look after, maintainand manage the said Trust and the purposes and conditions of the Trust socreated were set out in the deed. The trustees were required to performcertain religious rites to one of the deities ; the expenses of the Poojaswere to be met out of the income of the trust property ; so also were theexpenses for the maintenance of the trust property and the payment ofrates and taxes ; the donees were entitled to live on the property, enjoythe producs and take the income in equal shares and such income was tpbe deposited with the firm of Suppiah and Sons before the income wasdivided among the trustees ; Rasaratnam, the acceptor was appointedguardian of the minors and entitled to draw all household expenses andan extra sum of Rs. 10 monthly; in the event of any dispute between the
ALLES, J.—CheWah v. Sivasamboo
acceptor and the minors a Board of Supervisors appointed under theTrust was required to settle such differences and disputes and a Boardof Supervisors of named persons were appointed under the deed. TheBoard was to function until the 1st defendant attained his twenty-fifthyear.
There was on the face of the deed an acceptance of the gift byRasaratnam, who signified her assent by placing her mark on the deed.Nagalingam Suppiah died in 1933 and Rasaratnam and the minor doneespresumably continued to be in possession of the property in terms of thedeed of donation. After the donees attained majority they entered intodeeds of lease in respect of the properties covered by 4D3. By 4D12 of1951 the 1st, 2nd and 3rd defendants leased to the 4th defendant for aperiod of 10 years a divided extent of the entire land, 55£ feet by 32 feet,for a sum of Rs. 3,000 and permitted the 4th defendant to erect buildingson the allotment in question. By 4D9 of 1955 the 2nd and 3rd defendantsleased the. entirety of the property' exclusive of the shrine room andliving rooms to the 4th defendant for a period of 10 years on payment ofa sum of Rs. 100 monthly as lease rent. Soon afterwards by 4D10 of17th November 1955, the 1st defendant entered into a similar lease withthe 4th defendant. In 4D9 and 4D10 the defendants recited that theywere acting in their capacity as trustees under the deed of donation4D3.
The ground on which the learned Judge held that there was no validacceptance of the deed of donation was, on the basis that Rasaratnamwas neither the legal nor the natural guardian of the minor donees andtherefore could not accept on their behalf. In support, the learnedtrial judge relied on the decisions of the Supreme Court in Bindua v.Unity1, Fernando v. Alwis2 and the judgment of the Privy Council inNagalingam v. Thanabalasingham3 which was followed by Sansoni J. inPackirumuhaiyadeen v. Asiaumma *. The learned Judge has, however,failed to consider. certain other decisions of the Supreme Court and inparticular, the decision of the Privy Council in Abeyawardene v. West8which appear to permit the acceptance of a donation by a person, otherthan a natural guardian recognised under the Roman Dutch law. Sincethis question of an acceptance of a donation on behalf of a minor doneearises not infrequently for consideration in our Courts, I propose to analysethe decisions of our Courts on this controversial topic. I shall first dealwith the decisions of the Supreme Court up to 1952 when the Privy Councildelivered its judgment in Nagalingam v. Thanabalasingham and thereafterconsider the impact of the two Privy Council judgments on the law ofCeylon as it stands today.
» (1910) 13 N. L. R. 259.« (1952) 54 N. L. R. 121.
• (1935) 37 N. L. R. 201.4 (1956) 57 N. L. R. 449.
* (1957) 58 N. L. R. 313.
ALLES, J.—Chelliah v. Sivasamboo
A donation being a contract, acceptance on behalf of a minor by a-competent person is essential to clothe the deed with validity. Thus inWellappu v. Mudalihami 1 where a father, after making the deed of giftto his minor son remained in possession of the property, managed it, and,while the donee was still a minor, revoked the deed of gift, the Court heldthat the revocation was good because there was no acceptance of thegift on behalf of the minor. Sometimes however acceptance can bepresumed, even if the parents of the minor continued to be in possession ofthe property. This situation arose in the case of Government Agent S.P.v. Carolis 2 where the grandparents gifted property to the grandchildrenwbo were minors. The gifted property came into the possession of theparents and there was a presumption that they entered into possession onbehalf of the minors.
The rule of the Roman Dutch law, that acceptance on behalf of a minormust be by a natural guardian, i.e., either the parents or the grandparentsis however not an inflexible rule and decisions of our Courts haverecognised that persons other than natural guardians can validly accepta gift on behalf of minors in certain circumstances. Since minors arealways favoured under the law and entitled to accept an unequivocal benefitsuch as a donation, there appears to be no reason in principle why thestrict rule of the Roman Dutch law as to the class of persons who canaccept on behalf of the minor should be restricted, particularly if theacceptor is a person in whom the donor has confidence.
In Francisco v. Costa3 the donation by the parents to their minor sonwas accepted by the grandmother who was also a donee under the deed.The grandmother and the minor son entered and continued to be inpossession of the donated property. Although the grandmother was anatural guardian, it was submitted, that the acceptance of the gift onbehalf of the minor was insufficient, as she was not a duly constitutedguardian under the law, not having been authorised by a competentcourt to accept the donation on behalf of the minor. Dias J. in holdingthat the acceptance was valid and that the grandmother was “notincompetent ” stated “ that on the acceptation of gifts on behalf of minorsthe Dutch law is very wide and goes so far as to lay down that gifts tochildren not yet bom may be accepted by those in whose charge theyought to be when bom (2 Burge 43 ; Voet 39-5-12), by some publicperson (Van der Keesel Th. 585 p. 172), and by a notary who attests thedeed (2 Burge p. 145).”- Clarence J. held that "since the parents, whenthey executed this conveyance, allowed the grandmother to accept onbehalf of the infant and take possession of the property, he can seenothing wanting to clothe the gift with reality ”.
The same view was adopted by Middleton J., with whom Lawrie A.C.J.agreed, in Lewishamy v. Cornells de Silva*. Following the decision inFrancisco v. Costa the Court held that where the father, the donor,
{1903) 6 N. L. R. 233.(1896) 2 N. L. R. 72.
(1889) 8 S. O. O. 180.
(1906) 3 Bal. Rep. 43.
ALI.ES, J.—Chelliah v. Sivasamboo
permitted, the elder brothers to accept for their minor brothers such anacceptance was valid. In Tissera v. Tissera1 there was an acceptanceon the face of the deed by a complete stranger and a person of a differentcaste to that of the donor. The acceptor signed at the request of thedonor as neither the mother, grandfather nor father of the minor doneeswere alive at the time of the execution of the deed. The acceptor incross-examination admitted that the maternal grandmother was aliveat the time of the execution and could have accepted on behalf of thedonees as their natural guardian. The Court (Hutchinson C. J. and.Grenier J.) held that acceptance was a matter of evidence. Subsequentto the execution of the deed one of the donees mortgaged his share andthere was a recital.in the bond that he acquired the property by virtueof the deed of gift. . The Court held, that if there was no acceptance onbehalf of the donees or by the donees themselves, there would not havebeen this recital. Acceptance was presumed from the conduct of thedonees and from othercircumstances which indicated that the donees didnot refuse the gift but accepted it. It must be assumed, that had thisevidence not been available, the Court would have held that the acceptanceby the stranger, even at the instance of the donor, would not have beensufficient. In the same year the same two Judges in Senanayake v.Dissanayakc2 held that it was not essential that the acceptance of thedeed of gift should appear on the face of it but that such acceptance maybe inferred from the circumstances. The gift was “made over” by thedonor to his mistress Ukku Menilta and her two minor children. UkkuMenika and the donees possessed the property and thereafter the doneesdealt with the property. The Court held that “it was the naturalconclusion from the evidence that Ukku Menika with the consent of thegrantor accepted the gift for herself and her children If this be a correctview of the law, I see no reason, in principle, why in the present case,Rasaratnam the stepmother, cannot be presumed to have validlyaccepted the gift on behalf of the minor donees. The case of Tisserav. Tissera was considered in Muttupillai v. Velupillais. In thiscase although the acceptor ( the donor’s brother-in-law ) was selectedby the donor, he did not possess on behalf of the donee because in law hewas not entitled to act on behalf of the donee and his possession was notthe possession of the donee. Unlike in the case of Tissera v. Tisserathe donee did not deal with the property after attaining majority anddid not thereby ratify the acceptance of the gift by the acceptor.
From a consideration of the decisions in the early cases it would appear,that there was no hard andfast rule that a donation to a minor to be valid,must be accepted by a natural guardian or a person appointed by Court.If a competent person was allowed by the donor to accept, such an accep-tance would be held to be good, provided there are other circumstanceswhich would indicate that the acceptance was good. What thecircumstances should be, would depend on the facts of the particular-
* (1938) Weeralcoon 36.* (1008) 12 N. L. B. 1.
• (1909) 1 Current L. R. 73; 4 Bal. Rep. 110.
ALL.ES, J.—Chelliah v. Sivasamboo
case. In Oovemment Agent S.P. v. Cornelia (supra) the circumstanceswere held to be sufficient, whereas in Fernando v. Cannangara 1 thecircumstances were held to be insufficient. In the latter case there wasa gift by the father to his minor children. The deed was handed tothe nephew who gave it back to the donor to have it registered. Afterregistration the deed was handed back to the nephew but the donorcontinued to be in possession. The nephew was not the agent of the doneeand the donee was not competent to appoint one. Lawrie A.C.J. in thecourse of his judgment indicated the circumstances necessary to constitutean acceptance. Said he “ There was no acceptance on the face of the deeditsdf; there was no acceptance by a public person or by anyone authorised toad for the minors ; no possession followed; there are in fast no circumstancesfrom which acceptance can be presumed ”. There are other cases, however,in which the circumstances were held to be sufficient to constitute anacceptance. In Babaihamy v. Marcinahamy 8 the father donated halfthe property to his adopted daughter and the other half to his threeadopted sons. Salmon, one of the adopted sons, who was a major,accepted the gift for himself and the other minor donees, who were presentat the time of the donation. Subsequently Salmon and the other doneesdealt with the property. The acceptance was held to be good. Asimilar case in which acceptance was held to be valid was Bindua v. Unity,a case which has been referred to by the trial Judge. Here the majordonee accepted on behalf of himself and the minor donees. They enteredinto possession of the property and thereafter dealt with it. The caseof Babaihamy v. Marcinahamy was followed in Hendrick v. Sudritaratne *.Here the prospective husband of the minor daughter accepted on herbehalf and the deed was handed to him. Lascelles C.J. in the course ofhis judgment stated:
“There is, I think, a natural presumption in all these cases that thedeed is accepted. Every instinct of human nature i3 in favour of thatpresumption, and I think that when a valuable gift has beenoffered, and it is alleged that it has not been accepted, somereason should be shown for the alleged non-acceptance of the gift.It is in every case a question of fact whether or not there aresufficient indications of the acceptance by the donee.”
Before I consider the case of Fernando v. Alwis1 referred to by the learnedtrial Judge, there are three other decisions which have a relevantbearing on the question at issue, if only for the reason that they have beenrelied upon by the Privy Council in Nagalingam v. Thanabalasingham(54 N. L. R. 121). They are Cornelis v. Dharmawardene 6, AvichchiChetty v. Fonseka 6 and Silva v. Silva ’. 1
1 {1801) 3 N. L. R. 6.* {1935) 37 N. L. R. 201.
(1908) 11 N. L. R. 232.* (1901) 2 A. O. R. Supplement 13.
(1912) C. A. C. 80.*(1905) 3 A. C.R. 4.
’ (1908) 11 N. L. R. 101.
ALLES, J.—CheUiah v. Sivasamboo
In Cornelia v. Dharmnwardene Middleton J., in a brief judgmentBtated “ that the acceptance of a deed of gift made by a father in favourof his minor child by an uncle of the minor on behalf of the minor isnot a valid acceptance as not having been an acceptance of a legal orconvential guardian”. The report states that this judgment follows thedecisions in Fernando v. Cannangara and Wellappu v. Mudaliliami. Ihave already dealt with the cases of Fernando v. Cannangara andWellappu v. Mudalihami where the Court held that the circumstanceswere insufficient to presume acceptance.
In /Ivichchi Chetty v. Fonseka the donation was accepted by an uncle ofthe minor donees for and on their behalf, and the deed witnessed, inferalia, this acceptance. The father of the minor who was divorced from hiBwife was alive at the date of the deed of donation. The Court held thatthe uncle was not a person qualified to accept the donation on behalf of theminor donees as ho was neither the legal guardian of the minors nor theirnatural guardian, a term which could only have been applied to theirparents both of whom were alive although the marriage between themhad been dissolved.
Silva v. Silva was also a case where the gift to the minor was acceptedin hiB favour by an uncle. According to the judgment the property nevercame into possession, either of the donee or his self-constituted guardianbut always remained with the donor. The use of the word “ selfconstituted ” guardian seems to suggest that the donor never selected theuncle as the guardian. There was no evidence that either the donee or theuncle had possession of the property and in the absence of circumstancesfrom which acceptance can be presumed, the Court following thedecisions in Avichchi Chetty v. Fonseka and Cornelis v. Dharmauiardene heldthat the uncle was not competent to accept the gift on behalf of the minor.
These three decisions, on which reliance was placed by the Pri vy Councilin Nagalingam v. Thanabalasinjham support the proposition of law thatin the case of a donation to a minor the law requires acceptance by thenatural or legal guardian of the minor. It is for this same reason that inthe later case of Francisco v. Don Sebastian 1 the Court held that theacceptance was bad.
In Fernando v. Alwis the acceptance was in the following terms :—
“ We the undersigned Johanes Fernando and Harmanis Suwaris forand on behalf of Theodoris, John Henry, Marthinus and Jamesdo thankfully accept the above gift.”
Johanes was a major and also a donee and Theodoris, John Henry,Marthinus and James were his minor brothers. Harmanis Suwariswas a stranger and was not proved to be a natural guardian of the minors.Maartensz J., while accepting the dictum in Letcishamy v. Cornelia d&
(1964) 69 N. L. It. 440.
ALLES, J.—ChtUiah v. Sivasamboo
Silva and Francisco v. Costa that a major brother could accept on behalf ofthe minor brothers held, that on a reasonable interpretation of the accep-tance clause Johanes had accepted the gift for himself and HarmanisSuwaris had accepted on behalf of the minor donees. He distinguishedthe cases of Bindua v. Unity and Babaihamy v. Marcinahamy whore,unlike in the case under consideration, the donees were in fact givenpossession of the property. He held that, unlike in Tissera v. Tissera,the acceptor did not accept the gift at the request of the donor nor wasthere evidence that the minors were present at the time of the execution ofthe deed or that they accepted the gift themselves or appointed HarmanisSuwaris to accept on their behalf. The learned Judge, though acceptingthe position that “ the law favours acceptance of a gift in the case ofminors” (Francisco v. Costa and Government Agent S.P. v. Carolis) andthat “ acceptance will be presumed when there are circumstances tojustify such a presumption ” (Lokuhamy v. JuanJ1, held that in the caseunder consideration there were no circumstances from which such apresumption could be drawn and there was no affirmative evidence ofacceptance on the minor’s part. A further argument in support of theacceptance of the gift was based on a deed of renunciation madesubsequently by the donor and a disclaimer and renouncing by the doneesof all the rights to which they were entitled under the Deed of Gift.After a consideration of the law and the decided authorities, Maartensz, J.held that the deed of renunciation cannot by itself be held to establish anacceptance by the donees. In the result the learned Judge held, thatthe gift of the premises to the donees, other than Johanes, was invalidfor want of a valid acceptance. It will therefore be appreciated that inFernando v. Alwis Maartensz, J., after a review of the earlier authorities,held that the circumstances were insufficient to establish a validacceptance on behalf of the minors. In doing so the learned Judge wasreiterating the principle laid down in the earlier cases of GovernmentAgent S.P. v. Carolis, Fernando v. Cannangara, Bindua v. Unity andHendrick v. Sudritaratne.
The decisions in Ceylon up to 1952 have held that a grandmother can-accept on behalf of the grandson (Francisco v. Costa); that an elderbrother who was a major could accept on behalf of his minor brothers(Lewishamy v. Cornells Silva, Bindua v. Unity) ; that a mistress couldaccept on behalf of her minor children (Senanayake v. Dissanayake); thatan adopted major son could accept on behalf of his adopted minor brothersand sister (Babaihamy v. Marcinahamy); that the prospective husbandof the minor daughter could accept on behalf of his prospective bride(Hendrick v. Sudritaratne) and that even a stranger could accept providedthere was evidence of conduct of the donees from which acceptance couldbe presumed (Tissera v. Tissera). In all these cases there were some or allof the following circumstances—a selection of the acceptor by the donor,the presence of the donees at the time of execution, acceptance on the
1 (1872-15) Ramanathan 215.
ALI.ES. J.—-ChtUiah v. Sivaaamboo
■face of the deed, delivery of the deed to the acceptor in the presence of thedonees, possession of the donated property by the donees and a dealingwith the donated property by the donees after majority—circumstancesfrom which the Court was entitled to presume that the donees hadsubsequently ratified the acceptance. The cases in which acceptance washeld not to be valid were cases in which the circumstances were insufficientand acceptance could not be presumed. (Fernando v. Cannangara,Mutlupillai v. Velupillai, Silva v. Silva and Fernando v. Alwis). Thereforethe character of the acceptor is hot conclusive on the question whetherthere was . a valid acceptance or not. Acceptance depends on the factsof each particular case, and when the acceptor was not a natural guardianor a person appointed by a competent Court, acceptance could bepresumed if there were sufficient circumstances for a Court to drawsuch an inference.
The judgment of the Supreme Court in Nagalingam v. Thanabala-singkam1 considered the decisions in Avichchi Chelty v. Fonseka, Silvav. Silva and Cornells v. Dharmawardene but Canekeratne J., followingthe decisions in Bindua v. Unity and Hendrick v. Sudritaratne held thatthere were sufficient indications that the maternal uncle had accepted thegift on behalf of the donees. The Privy Council2 set aside the judgmentof the Supreme Court on the ground that the donees had been a partyto the revocation of the earlier deed of gift. The donors had purportedto execute a deed of revocation unilaterally and on the same day, thedonees accepted from the donors a new deed of gift of the propertiescovered by the earlier gift, subject to new conditions. The question,■therefore of the acceptance of the deed of gift by the maternal unclewas only incidental. Sir Lionel Leach who delivered the advice of thePrivy Council in the course of his judgment stated :—
“ Their Lordships do not consider that it is necessary to discussthe reasons given by the Supreme Court for holding that there wasacceptance of the gift by Kanthavanam, because even if itsreasons are sound (and here their Lordships express no ojpinion)they consider that he . must be regarded as being a party to therevocation of the Exhibit P4.”
Mr. Thiagalingam however, relied heavily on the followingpassage in the judgment of the Privy Council:—
“ Their Lordships see no reason for doubting the correctness of thedecision of the District Judge that the maternal uncle’Bacceptance of the gift on behalf of the minor was not a validacceptance according to the law of Ceylon. The finding is supportedby authority.
*(1948) SO N. L. B. 98.
*(1952) 54 N. L. B. 121.
ALXES, J.—Chelliah v. Sivasamboo
In addition to the case of Silva v. Silva on which the District Judge-relied, there are two other decisions of the Supreme Court tothe same effect namely Avichchi Chetty v. Fonseka and Cornells v.Dharmaicardene. A maternal uncle is not a natural guardian, inthe strict sense he is not even a member of the eame family.Without appointment by lawful authority Kanthar Sinnathambycould not act for Kanthavanam and it is not suggested that anysuch appointment existed. Therefore acceptance could only springfrom Kanthavanam himself, if there was in fact acceptance. ”
As a statement of law, that in the case of a donation to a minor, thelaw requires acceptance by the natural or legal guardian of the minor,the passage quoted above is correct, but in an appropriate case thisstatement would be subject to the other general proposition (supported byauthority) that the circumstances of a particular case may be sufficientto establish an acceptance on behalf of a minor by a person who' isnot a natural guardian. I find from the argument of Counsel in theEnglish Reports1 that most of the earlier cases have been cited to theirLordships by Counsel for the respondents, but it is very likely, in viewof the observations of Sir Lionel Leach quoted earlier, that the PrivyCouncil did not consider it necessary to deal with the authorities cited byCounsel, some of which have already been referred to by CanekeratneJ. in the course of his judgment. I have already commented on thefacts of Cornelis v. Dharmawardene and Silva v. Silva. In regard tothe latter case it is pertinent to note the observations of Wood Renton J..in Hendrick v. Sudritaratne2. Said the learned Judge at p. 83 :
“I may further point out, that even in the case of Silva v. Silva, itwas recognised that an acceptance by a person, who was neitherthe natural nor the legal guardian of the minor, would be renderedvalid where the subject of the donation came into the possessioneither of the donee or of his self-constituted guardian.”
The case Silva v. Silva, therefore, has not the binding force for whichthe Privy Council contends.
The Privy Council decision in Nagalingam v. Thanabalasingham createddifficulties for the Supreme Court and in the case of Packirmuhaiyudeen v.Asiaumma3 Sansoni J. (as he then was) held that a major brother couldnot validly accept a gift on behalf of his minor brothers. He distinguishedthe cases of Lewishamy v. de Silva and Francisco v. Costa on the groundthat the father, who was the donor in these cases, permitted acceptance bythe acceptor, and stated that the subsequent case of Babaihamy v.Marcinahamy and Bindua v. Unity have upheld the acceptance by such
'(1953) A. 0.1 at p. 6.*(1912) O. A. O. 80.
'(1956) 57 N. L. R. 149.
ALLES, J.—Chclliah v. Sivasamboo211
persons, who are neither legal nor natural guardians, only where possessionof the property by the donees was subsequently proved. He then statedat p. 451:
“ The recent decision of the Privy Council in Nagalingam v. Thana-bcdasingham makes it clear that acceptance on behalf of a minorby such a person as an uncle is not a valid acceptance even where
the donor was the father and the donee was his minor son
Now if there was any force in the argument that an elder brotherora grandmother or an uncle could accept a donation on behalf of aminor merely 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 thatthere was no valid acceptance on behalf of the minor donee inthe present case
In 1951 the case of West v. Abeyawardena 1 came up for hearing beforethe Supreme Court. The main question cent red round the issue whether thedeed of gift in question created a fideicommissum in favour of a family butincidentally the question of the acceptance of the deed of gift arose forconsideration. The deed was accepted on behalf of two minors by theirtwo major brothers and their brother-in-law. The Supreme Court heldthat the question whether the brother-in-law could accept on behalf ofthe minors was only of academic interest since the' donees by their sub-sequent conduct ratified the acceptance of the gift by their brother-in-law.When the case came up for hearing before the Privy Council Lord Keithof Avonholm, who delivered the advice of the Privy Council said atp.319*:
“Both-Jane and Cecilia were minors in 1883 and acceptance wasmade on their behalf by Cooray and their brothers Alfred andJames. Cooray, as appears from the evidence in the case, wasJane’s brother-in-law, married to her sister Isabella. The deed wasexecuted before a notary who attested that he knew all the parties.Their Lordships see no reason to think that this was not a validacceptance on behalf of Cecilia and Jane. Their natural guardian,their father and their mother, could not accept for them, because theywere the donors. In similar circumstances acceptance on behalf of aminor donee by his grandmother (who was the other donee) was heldgood in Francisco v. Costa and others as was also acceptance by abrother on behalf of his minor brother in Lewishamy v. de Silva. Oneof the grounds of judgment in these cases was that the donors hadallowed such acceptance to be made on behalf of their minor children.”
1 (1951) 63 N. L. B. 217.
(1957) 68 N. L. B. 313 at 319.
814ALLES, J.—Chelliah t>. Sivasamboo
Their Lord-ships therefore have approved of the principles of acceptancereferred to in the earlier decisions of the Supreme Court to which,reference has already been made.
In view of the decision of the Privy Council in Abeyawardene v. West,Sansoni J. had occasion to reconsider his decision in Packirmvhayvdeen v.Asiaumma (supra) in the subsequent case of Nagaratnam v. John 1where he dealt with what he called the “ vexed question as to whatconstitutes proper acceptance of a donation to a minor”. He statedthat his decision in the former case “can no longer be considered to becorrect ” since it was clear from the decision of the Privy Council inAbeyawardene 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 ”.
Since the decision of the Privy Council in Abeyawardene v. West theSupreme Court has consistently accepted the principle that an acceptanceon behalf of a minor is valid if the donor had allowed such acceptance—Kirigoris v. Eddinhamy * and Francisco v. Don Sebastian 3.
In the present case it is quite clear that Nagalingam Suppiah allowedhis second wife Rasaratnam to accept 4D3 on behalf of the 1st to the 3rddefendants; that there was an acceptance on the face of the deed ;that according to the terms of the deed Rasaratnam and the donees wereentitled to be in possession Of the property and enjoy the income andproduce and that when the donees attained majority they ratified theacceptance on their behalf by dealing with the property reciting 4D3 astheir source of title. If the learned trial Judge considered all thesecircumstances and had his attention been drawn to the Privy Councildecision in Abeyawardene v. West and the decision of SansonL J. inNagaratnam v. John, he would probably have -come to the conclusionthat there was a valid.acceptance of the gift by Rasaratnam.
I am of the view therefore that the deed 4D3 was validly acceptedon behalf of the 1st to the 3rd defendants and that it conveyedgood title….
I have read the judgment of My Lord the Chief Justice who hasconsidered the other questions raised at the argument of the appeal.- Iam in agreement with-his conclusion that the three donees had possessedthe particular allotment and also the other, four, allotments for aperiod of over ten years and have thereby ■ acquired a title byprescription. I also agree that the plaintiff’s plea of estoppel is notentitled to succeed. In the result the appeal is therefore allowed andI conour with the order proposed by the Chief Justice.
Appeal allowed.
1(1968) 60 N.'l.'r. 113.•{1965) 69 N. L. R. 223.
: •(1664) 69 N. L. R. 440.