111-NLR-NLR-V-57-V.-V.-M.-PACKIRMUHAIYADEEN-et-al-Appellant-and-A.-M.-ASIAUMMA-et-al-Respond.pdf
for the plaintiffs -Cur. adv. unit.
1956Present: de Silva, J., and Sansoni, J.V. V. M. PACKIRMCH AIYAIJKEX c.t al., Appellants,and A. M. ASIAUMMA <.t at., Respondents
S. G. 2S5—D. C. Batticaloa, 71o(L
Donation—minor as donee—Acceptance by douce's elder brother—Validity.
Where » donation executed by a father in favour of his minor son was'ncccpted by the donee’s elder brother on behalf of (lie minor donee—
Held, that there was no valid acceptance on behalf of the minor donee.
JFideicommissum—No acceptance by Jideicoininissaries— Validity.’
Where a fideicommissary deed of gift makes a settlement in favour of a family 'as a class, acceptance by tlio immediate donee enures to the benefit of all thefideieommissaries. But if the fideicommissaries r.ro particular members of a •family {e.g., the brothers of the donee), their failure to accept the donation on •their own behalf renders the deed invalid so far as they arc concerned.
A
Xj-PPEAL from a judgment of the District Court, Batticaloa.
H. V. Perera, Q.G., with E. R. S. R. Coomarasivamy and E. B. Vanni- -iumby, for the defendants appellants..
.. “I further declare that should the said M. Mohamadu Abdul Samaduthe grantee of this die issueless without executing any deed in respect. of the said properties or any part or portion thereof the said propertiesshould devolve on ray children M. Mohamadu Abdul Majced, 31. Moha-inadu Abdul Hamecdu and 31. Mohamadu Abdul Salam and theirrespective children in equal shares and that should any of them dieissueless they should devolve on the survivors of them and the children"..'Following these clauses there is a clause in the following terms,
“ And as the said M. Mohamadu Abdul Samadu the grantee of thisdeed is a minor, I, Muhaiadcen Abdulkarccm Marikar Uclayar Moha-madu Abdul Majecdu of Kattankudyiruppu, his brother, do herebyaccept this gladly on his behalf and set my signature hereto ”.
Abdul Majecdu who purported to acecjit the donation was presumably amajor. There was no proof of acceptance by any of the three fidei-commissaries, and it will be noted that the acceptance by one of them,Abdul Majecdu, was not on his own behalf but on behalf of the minor- donee.
The donor and the donee both died in 1930. This action was broughtby the only child of the fideicommissary Abdul Majecdu claiming to beentitled to 1 /3 share of the lands in question. In order to succeed he had■to prove both acceptance by the fiduciary and by the fideicommissaries.;I take it to be settled law that acceptance by both these parties isnecessary to render the gift Valid so far as the ficleicommissaries arc con-cerned. Sec Soysa r. Mohideen1, Fernando v. Altui-sCarol is v. Alta's 3.
The only opinions to the contrary are to be found in Asiathnmma■ v.Alimanchy 4 and Dharmalingam Chelly v. Yoosoof5, but I do not think• those opinions can now be considered sound.
The two questions that now arise for decision arc,.
Whether there was a valid acceptance on behalf of the fiduciary
donee.
Whether the failure of the ficleicommissaries to accept the dona-
tion on their own behalf renders the deed invalid, so far asthey are concerned.
To deal with the first question, it is clear that the major brother was.neither the natural nor the legal guardian of his minor brother. Therehave been cases where acceptance by a major brother oil behalf of hisminor brother lias been held to be sufficient. .See Leu i.shamy v. de Silva 6,where Middleton, J. follow ed Francisca v. Costa T, a case in which acc-cp–tnnee by the grandmother of a donee was considered sufficient. But thereason given in those two eases was that the father, who was the donor,•permitted acceptance by those persons. I do not think that such areason would be upheld today. Subsequent cases such as Babaihamy v.Marcinahamy 8 and Bindua v. Unity 9 have upheld the acceptance by such-persons who are neither legal nor natural guardians only where posscs-,-sion of the property bj' the donees was subsequently proved. See
1 {1914) 17 A'. L. R.al 2S0.* (1937)17 C. L. Pec. 229.
1 (1930) 3T -V. L. P. at 227.« (190C) 3 Hat. 43.
3 (1944) 4-5 A*. L. H. 153.• (1SS9) S S. S. C. 190.
1 (1905) 1 A. C. It. 53.-8 (1903) 11 N. L. It. 232.
9 (1910) 13 A L. It. 259.
.Fernando v. Ahcis K – The recent decision of the Privy Council in Nava-iling am v. Thanabalasingham – makes it clear that acceptance on behalf.of a- minor-by 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.’* Sir
ionel Teach in that case said “ a maternal uncle is not a naturalrguardian ,* in the strict sense he is not even the member of the samofamily. Without appointment by lawful authority Kahthar Sinna-•fchamby (the uncle)-could not act for Kandavanam (the minor donee).-and it is not suggested that any such appointment existed.
Now if there was any force in the argument that an cider brother• or a grandmother or an uncle could accept a donation on behalf of aminor merely because the father, who was the donor, permitted suc-hacceptance, the Privy Council Mould undoubtedly have held that there•vvas a valid acceptance in that case. I am therefore of opinion thatthere M as no valid acceptance on behalf of the minor donee iii the presentcase. I might add that wo are hot dealing in this case u-ith the questionwhether a father who is a donor can authorise another person by a special •mandate to accept the gift. There is no evidence in the record on which-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 Pullc, J.-in Mohaide.en v. Maricair 3….
With regard to the second question that arises for decision, there is awell-known exception to the rule that fideieommissaries must accept the•gift in order to render'it effective in their favour. That exception is tobe found in Perezius ad Cod. (S.55.12) where that authority said thatin the case of the settlement of property in a fa mily the acceptance ofthe first clonce enures to the benefit of. and is considered an acceptanceby, all the beneficiaries. That exception M as first applied by this Courtin Perera v. Marikar 4 which, as Wijeycuardene, J. pointed out in. JVije-lunge v. Rossie5 is a judgment of the Fuli Court and therefore binding on•this Court. But the exception must be confined to fideieommissa in'favour of the donee and his family, wit-lnn uhich term Mould come afideicommissum in favour of the-donee’s descendants. De Sampayo,A.J. referred to this question in Soysa v. Mohidcen 6 and held thatin such a case acceptance by the immediate donee Mas a sufficient accep-tance on behalf of the descendants (where they are the beneficiaries), andacceptance by the immediate donee would also be sufficient where theproperty Mas to remain in the family. Lasecllcs, C.J. in the same caseexpressed himself in similar terms.-'
I should like to refer to some of the dicta of the judges in a recentdecision of the Appellate Division of the Supreme Court of South Africawhere .this exception Mas considered—Crookes v. Walson Centlivres,-C.J. said,-_…-J.
, – The reason given by Perezius for the exception which ho mentionsmust not bo read out of its context. He first statoi the general ruloviz. : that acceptance 'is necessary before a bonoficiary is entitled toclaim the benefit conferred on him and he then mentions a number of-exceptions. . In respect of the exception I am now dealing M'ith ho- 1 (t93S) 3fisr:t,' r. 20ii',} r- '• ' * (issij e sic- c.-i3S. •
•* U9S2) 54 A*. Iii R. 121….{1946)47 24. L. R. 371.
a U952) 54 -V. L. R. 174.. ,« {1914) 17 A. L. R. 279.
’ U95G}.1.S. A. L. R. {A. £>.) 277.’
' says that it would bo absurd for tlio making of an irrovbeablo fidei-commissum that tlio acceptance of infants and people abyet'unbonbshould bo roquirod. That -statement is-made after lie has hiado.it-clear that the first beneficiary, who was a fiduciary, in the usual accep-tation of that word (i.e. a’ fiduciary who has a beneficial interest) has-accepted. In other words, where there is a settlement in favour of a-family and tho first member of the family accepts, his acceptance onures-for the benefit of all succeeding mombors of the family. ”-.
Again, Van den Hecver, J. A. expressed the' opinion that in this-exception the family concerned is treated as “ a persona in itself, acting-through one of its members in accepting Steyn, J. A. said in regard,to the Perezius rule, “ that in the absonce of a provision to the cffoct thatthe settlod property is to remain in tlio settlor’s family, the rule doos-not apply ”, I have cited those dicta because they empluisisc theessential condition that the fidoicommissum must- be for the benefit cFthe family as a class, and not of individual members of a family.
When wo look at the deed now under consideration in the light of these-dicta, it becomes clear that tlio dc-od in no sonso creates a fideicommissum-in favour of the donee’s family or of tlio donee’s descendants. It is a-decd which, like many a doed containing a fideicommissum, creates afkloicommissum in favour of three designated individuals who happento bo mombors of the samo family as the donee. Such fideieemmissariesmust, according to the goneral rule, accept tho gift if it is to be valid intheir favour. In no senso can they claim the benefit of t-lie Perezius-oxcoption which relates only to a fideicommissum in favour of a family assuch and not particular members of a family, or in favour of tho descen-dants of tho donee and not particular descendants.
Mr. Nad ©sail for tho respondents furthor submitted, if I understood himcorrectly, that a family fideicommissum or a “ fideicommissum in favoremfamiliae ” brings within its beneficiaries a very largo group. Voet-36.1.27. says,
“A fideicommissum can also be left to the family; ancl Justinianlias laid down that in such a case undor tho term family aro includodnot only paronts and children and all relatives, but also tho son-in-lawand daughter-in-law to supply tho plac-o of those who havo died, wheretho marriage has bcc-n dissolved by tho death of son or daughter. But-Sandc points out at some length that by civil law adopted childrenalumni and freed men wero included under the term familia when there-is an’ question of some fideicommissum being left to tho family and inthat connection lie puts tho question whether women or their issuearo included in the family. In section 12 lie has collected the. autho-rities who have laid down at greater length, what is included under“family”; genus, stirps, linea, parcntela, ’ donius, cippus, and thelike. Xow'there is also a bequest to the family when the testatorforbids tho alienation of a thing out of tlio family or directs that itshould not go Out of his lino of descent or out- of his ' blood ’
He sought to argue from this that since collaterals aro also included ina family and the deed in question constitutes a fideicommissum in favourof the donee’s brothors, acceptance by the donee is enough. I do not-
BASXAYAKW, C..T.— 31r$u‘Ltt v. Xamlr.t,
agree. Voet was dealing witli a particular type of fidcicommissum unilho was explaining who would come under the term family ” in sn.di aease. That docs not mean that. every time a fidcicommissum is createdin favour of particular individuals who aro some of tlio members ofa family as so defined, acceptance by the fiduciary donee, renders accep-tance by tlio particular fideicommfcsarics unnecessary.
TJio learned trial judge held that there had been a valid acceptanceof tl*.c gift by the minor dcnco through his brothei, and that such .accep-tance rendered acceptance by the fiduciaries unnecessary. For thereasons I have given I think that both findings were wrong and that thisaction should have been dismissed.
The appeal is thcrcfoic allowed with costs in both Courts.
i>r Sii.va, .1.—T agree.
. I j/jieal al/oircil.