CANoris Singho v. Jokinu Fernando (Wijetunga. J.)361
COURf OF APPEAL
WIJETUNGA. J. AND ANANDACOOMARASWAMY. J.C.A. NO. 21-7/80'(F)'
D C. MATARANO. 7405/PSEPTEMBER 8 AND 9. 1988
Partition — Identity of land — Discrepancy in extent — Donation —Acceptance of donation.-
Inconsistency in extent will not affect the question of identity if the portion ofland conveyed is clearly described and can be precisely ascertained.
It is not essential that acceptance of a donation on a deed of gift shouldappear on the face of the instrument. Such acceptance may be inferred fromcircumstances. Where there is no acceptance on the face of the deed andthere was no evidence of delivery of the deed nor of possession of theproperty acceptance cannot be inferred. ;
In a partition suit the Court must satisfy itself that the plaintiff has made out;his title-. ■-■
Sri Lanka Law Reports
P 989/ I Sri L R
Cases referred to:
GabrielPerera v. Agnes Perera 43 CLW 82
Senanayake v. Dissanayake 12 NLR 1
Bindu v. Unity 1 3 NLR 259
Nagaratnam v. Kandiah 44 NLR 35D
Fernando v. Alwis 37 NLR 201
Rajah v. Nadarajah 44 NLR 470
' Peirisv. Perera 1 NLR 362
' 8.— Mather v. Tamotharam PiUai 6 NLR 246APPEAL from judgment of the District Judge of Matara.A. A. de Silva for Plaintiff-Appellant
J.C.T. Kotelawala for 1 1th DefendanpRespondent.
' Cur. adv. vult
March 1 7. 1 989WIJETUNGA; J.
■ The. plaintiff filed this action for the partition,of a land calledDunu.madalagahawatte Pitakoratuwa depicted as Lots 'q' ’<§>' 'c'in Plan No. 1392 A of 10.11.7.3 made'by N. G. E. .Dias,Licenced Surveyor marked 'X'. The 1st to 10th defendantswere shown by the-plaintiff as co-owners of the land. The 1-1 thand ■ 1 3th. defendants contested the identity of the subjectmatter, of the action as well as the claim of the plaintiff and hispredecessors in title to the land in question.. It is their .positionthat the land surveyed in.plan X is a portion of a land calledDunumadalagahawatte belonging to them, which is depictedas lots 1—9 in plan'No. 1014 of 26.5.77: made by M.A.S.Premaratne. Licenced. Surveyor and produced marked 'V. Bysuperimposition of plan X on. plan 'Y the subject.rfiatter ofthe action-, according t’O-the plaintiff, is shown as’lots 5 and 6in plan 'Y'. The T1 th and 1 3th defendants, however, claim titleto* this .land .inciusiye of lots 5 and 6 in pl.an 'Y and seek thedismissal of the plaintiff’s action. The learned District Judge
CAYapa v. Dissanayake Sedara (Wi/etunga. J.j
upheld thesaid.defendants' contention that the subject matteris part of the defendants' land and dismissed the plaintiff'saction with costs. It is from this judgment that the plaintiff hasappealed.
It is the contention of learned counsel for the appellant thatthe learned trial judge has not duly considered the evidence inthis case and the chain of title which goes back to 1899. Hefurther submits that the inconsistency io.the extent of the land,which is shown in the deeds as l acre. but which according toplan X is 1A. 1.R. 2P. does not affect the plaintiff's case andshould have been disregarded by the District Judge. He relieson Gabrial Pereray. Agnes Perera. IV) for this proposition.
What was held in that case was that where,in a deed, theportion of. land conveyed is clearly described and can beprecisely ascertained.', a mere inconsistency as to the extentthereof, should be treated as a mere falsa demonstratip notaffecting that which is already sufficiently conveyed1. But. thatdecision can be distinguished from the facts of the-.present'case..•
He further submits that the learned trial judge, was in error inregard to the deed P1 when he came to the conclusion thatthere was no acceptance of the deed of gift and no proof ofpossession. He relies on a number of authorities which dealwith the aspect of non-acceptance of the gift, to which I wouldrefer later.
Learned counsel for the 1 1th defendant-respondent, on-theother hand, submits that the plaintiff has failed to establish theidentity of the land and the evidence of possession given ohbehalf of the plaintiff is totally unconvincing and that theplaintiff has riot proved his title to the-land as required of' himin a partition suit.
On the question of acceptance of the deed of gift, the.learned trial judge has held that acceptance.of the gift has notbeen signified on the face of the deed and that there is noproof of acceptance, by delivery of the de'ed or by possession.
Sri Lanka Law Reports
119891 1 Sn L R
The deed PI clearly states that the donee, who was a grandchild of the donor, was a minor at the time, but makes nomention of the acceptance of the gift on behalf of the minor.
In Senanayake v. Dissanayake. (2) it has been held that it isnot essential that the acceptance of a deed of gift shouldappear on the face of it. but that such acceptance may beinferred from circumstances and that possession by the doneeof the property donated leads to the inevitable inference thatthe deed of donation was accepted.
Again, in Bindu v. Unity (3) it has been held that acceptancemay be manifested.in any way in which assent may be given orindicated and that the question of acceptance is a question offact and each case has to be determined according to its owncircumstances.
In. Nagarainam v. Kandiah where the deed contained astatement to the effect that the donor delivered possession of,the property to the minors, it has been held that acceptance
may be presumed.
But.- none of these' authorities help the appellant in theinstant case, as the learned trial judge has found on the factsthat while acceptance of the gift has not been signified on theface of the deed, there was neither evidence of delivery of thedeed, nor that of possession of the property from whichacceptance could be inferred. Although acceptance may beinferred from the circumstances of each case, it is all the samenecessary that there should be proof.of such acceptance forthe validity of such a gift.
Furthermore, in Fernando'v. Alwis. (5) it has been held that agift to a minp'f donee was invalid for want of a valid
. So also,-in Rajah v. Nadarajah. (®)-it has been held that if theinstrument be regarded as a donation- it would be inoperativeif there has been no acceptance on behalf of the minor ordelivery of the property to him.
Yapa v. Dissanayake Sedara (Wijetunga. J.)
Thus it eannot be said that the learned trial judge was inerror when he cameto the conclusion that there was no proofof acceptance of the gift in any of the ways in which suchacceptance- may be manifested:
On the question of possession, the learned.trial judge havingconsidered the testimony of the plaintiff's witnesses; hasreached the conclusion that the evidence is unreliable andunconvincing. He has also drawn an adverse inference fromthe failure of the plaintiff to call Don Andrayas. the vendee onP. 7 and P. 12. to testify on;his behalf, which evidence wouldhave been very useful in regard to-possession. I see no reasonto differ from this view.
As regards the identity of the subject matter of this action,the learned trial judge, after due consideration.of the evidenceof the Surveyors a.nd of the other witnesses, has-come to-thefinding that the land depicted in plan 'X' is clearly a.portion of.the land of the contesting defendants, shown in-plan 'Y'.Thisfinding top is Well supported.
As early as. in Peiris v. Perera ft) Bopser C.J. expressed theview (at page 36.7) that."the first thing the Court has to do is tosatisfy itself that the plaintiff has made Out his title, for, unlesshe makes out his title, his.action cannot be maintained; and hemust prove his title.strictly, as has been frequently pointed putby this Court.”n
'.Again, in Mather v. Tamotharam Pillai, (8) it has been held(per Layard .C.J.) that a partition-suit is a'-matter, in which theCourt must satisfy itself tharthe plaintiff has made out his titleand unless he makes out his title, his. suit for partition mu.st'.bedismissed.
In the-iight- of these decisions and on a consideration of theevidence led in this case.-1 am of the-opinion that the learnedtrial judge was justified in reaching the conclusion that theplaintiff has failed to prove his title and consequently a decreefor partition cannot be entered.
Sri Lanka Law Reports
11989] 1 Sri L. R.
For the reasons aforesaid. I would dismiss this appeal withcosts.-
ANANDACOOMARASWAMY. J. — I. agree.
Appeal dismissed .