109-NLR-NLR-V-16-WICKREMESINGHE-v.-WIJETUNGE-et-al.pdf
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Present; Pereira J. and Ennis J.WICKREMESINGHE v. WIJETUNGE et ah206—D. G. Kandy, 21,829.Donation—Delivery of deed—Acceptance.
Delivery of a deed is not essential for the validity of a donationunder our law.
A donation may be accepted at any time during the lifetimeof the donor, and where its fulfilment is postponed until after thedonor’s death, it may even he accepted after the donor’s death.
Acceptance may be presumed from either the physical accept-ance of a deed of donation delivered by the donee, or by the saleof the land donated by the donee.
Pereira J.—In my opinion the acceptance of a donation of landmust be notarially attested as much as the making of such adonation, and the acceptance must be by the donee himself, or someperson competent in law to represent the donee for the purpose of
entering into contracts But it has been held in a long
series of decisions0that the acceptance of a gift by the
donee may be effected in any one of the many ways laid down inthe works on the Roman-Dutch law. The decisions, I think, haveled to some confusion and uncertainty in the law, but I think thatit would be inexpedient to question their correctness at this time ofday, and that they should as far as practicable be followed.
A
PPEAL from a judgment of the District Judge of Kandy(F. R. Dias, Esq.).
This was an action by a father against his daughter and son-in-lawfor declaration of title to a land which he had by deed “ gifted ”
1018.
1013.
Wtckreme-
iinghe v.Wijetunge
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to the daughter. The plaintiff alleged that the donation was notcompleted by delivery and acceptance, and that the land donatedw,as in his possession till the ouster complained of. The DistrictJudge held that the deed of gift was duly accepted and dismissedthe action.
The plaintiff appealed.
M. de Saram, for the appellant.—The donation was notcompleted by delivery of the deed; and the deed was not accepted.There should have been .acceptance at the time of execution.[Pereira J.—Should not the acceptance be on the face of the deed ?]Yes. It is a contract affecting land. Counsel cited Silva v. Silva;1
Voet 39, 5, 2; Voet 39, 5, 19; Wellappu v. Mudalihami,2
»
J. W. de Silva, for the respondent.—For the validity of a donationit is not necessary that there should be acceptance at the time ofexecution of the deed. Acceptance need not be on the face of thedeed. The donee has sold the land; that is sufficient acceptance.There is evidence of delivery of the deed. Counsel cited 2 Nathan,sec. 1087; Voet 39, 5, 13; Affefudeen v. Periyatamby;3 Tissera v.Tissera;4 Tillekeratne v. Tennekoon;5 Government Agent, Southern
Province, v. Karolis.6
F. ilf. de Saram, in reply.
Cur. adv. vult.
August* 27, 1913. Pereira J.—
The main issue in this case is the second, namely, whether theexecution of the document dated March 13, 1869, purporting to bea donation by the plaintiff to the first defendant, was completedby delivery, and whether the donation was accepted by the donee.As regards delivery of the deed, I am not prepared to say that it isessential under our law. As explained by Morice in his work onEnglish and Roman-Dutch law (2nd ed., p. 83), while a deed in itsEnglish meaning acquires validity by being sealed and deliveredto the party benefited by it, the deed of Roman-Dutch law, generallycalled a notarial deed, required no delivery for its validity. Sothat the only question involved in this case practically is whetherthe donation referred to above was duly accepted by the donee.I may at the very outset say that, in my own opinion, the acceptanceof a donation of land must be notarially attested as much themaking of such a donation, and the acceptance must be by thedonee himself or some person competent in law to represent thedonee for the purpose of entering into contracts. In Wellappu v.Mudalihami,2 Layard C.J., citing Voet 39, 5, 12, 13, observed:
(1908) 11 N. L. R. 161.
(1903) 6 N. L. R. 233, 236.
(1909) 12 N. L. R. 313.
2 S. C. D. 36.
Ram. (1843-45) 155.
6 (1896) 2 N. L. R. 72.
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“ The rule of law which requires acceptance by a competent personof a gift is based on the principle that a donation is a contract, andthere must be two parties to every contract.” Maasdorp, in hisInstitutes of Cape Law (Vol. III., pp. 89, 92), says: ” A donationis an agreement whereby a person without being under any obliga-tion to do so gives something to another without receiving or
stipulating anything in returnAcceptance by the donee or
by some one duly authorized on his behalf is an essential ingredientin the constitution of a valid donation, the consent of both partiesbeing required in donation as in all other contracts.” If, then,donation is a contract entered into by two parties, it is essential thatthe execution of the contract by the parties should be effected inthe manner required by the law for the time being. Whateverform acceptance of a donation by the donee might have takenunder the Roman-Dutch law, our Ordinance No. 7 of 1840 provides(section 2) that a contract for the transfer of land shall be in writing,and signed by the party (or parties) making the same in the presenceoi a licensed notary and two or more witnesses; and so it is clearthat a donation of land to be .valid under our law must beexecuted by both the parties to the contract ip. the manner indicatedabove. But it has been held in a long series of decisions that inthe case of .a donation of land, while the donor’s part of the contractshould be executed as required by Ordinance No. 7 of 1840, theexecution of the donee’s part of the contract may follow the Roman-Dutch law; in other words, that the acceptance of a gift by thedonee may be effected in any one of the many1 ways laid down inthe works on the Roman-Dutch law.
The decisions, I think, have led to some confusion and uncertaintyin the law, but I think that it would be inexpedient to questiontheir correctness at this time of day, and that they should as far aspracticable be followed.
Counsel for the appellant has cited the case of Silva v. Silva1 insupport of his contention that, even under the Roman-Dutch law,in the case of a donation to a minor, there should be a presentacceptance of the gift by a natural or legal guardian of the minor,and not an acceptance at some future indefinite time by the minorhimself after he has attained majority. The substantive decisionin the case is that an uncle of a minor is not a competent party toact for him in accepting a donation, and the dictum relied on bythe appellant’s counsel is no more than mere obiter, and I confessI have failed to find any authority in support of it. In the casecited above of Wellappu v. Mudalihami,2 Layard C.J., observed:” To perfect a deed of gift in favour of a minor there must be anacceptance by some one capable of accepting on behalf of theminor or by the minor upon attaining the age of majority.” Andit is, I think, clear from what appears in Voet 39, 5, 13; Grotius 3f1 c1908) 11 N. L. B. 161.3 (19QS) 6 N. L. R. 233, 236.
1918.
PERBTBA J.
Wickreme-singhs e.Wijetunge
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1913.
Pbbbxba J.
Wickreme’singhe v.Wijetunge
2, 12; and Maasdorp’s Institutes, vol 1IL, p. 99, that under theBoman-Dutch law a donation may be accepted at any time duringthe lifetime of the donor, and where its fulfilment is postponeduntil after the donor's death, it may even be accepted after thedonor's death.
In the present case the evidence shows that there were at leasttwo distinct acts of acceptance by the first defendant of the donationin question. It appears that on the wedding day of the first defend-ant the plaintiff delivered over to her the deed of donation, andthen she accepted the same. Although, as I have observed, thedelivery of the deed was not essential to complete the transaction,it has significance here as a token of acceptance of the gift. More-over, the first defendant sold a half of three of the lands gifted toher husband before the commencement of the present action.That also was clearly an act of acceptance of the donation. Forthese reasons. I see no grounds for interfering with the judgment-appealed from, and I would affirm it with costs.
Ennis J.—?
I agree. I am, however, not prepared, without further con-sideration, to assent to the opinion that section 2 of OrdinanceNo. 7 of 1840 requires both parties to sign a deed of gift.
Affirmed.
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