025-NLR-NLR-V-54-A-.-NAGALINGAM-Appellant-and-A.-THANABALASINGHAM-et-al-Respondents.pdf
Nagalingam v. Thanabcdasingham
121
[Tit the Privy Council]
1952Present: Lord Porter, Lord Tucker, Lord Cohen,The Right Hon. T. Rinfret (Chief justice of Canada)and Sir Lionel LeachA. NAGALINGAM, Appellant, and A. THANABALASINGHAM et al.RespondentsPrivy Council Appeal No. 24 of 1951S. C. 335—D. G. Kandy, 2,308
Donation—Minor—Acceptance—Revocation—Fideicommissum—Single and separatefideicommissa—Death of a fideicommissary—Devolution of share—Jusaccrescendi.
A gift of immovable property by a father to his minor son and acceptedby a maternal uncle on the minor’s behalf without appointment by lawfulauthority is invalid for want of lawful acceptance, the uncle not being anatural guardian.
Where, some time after the execution of a deed of gift, the donors pur-ported to execute a deed of revocation unilaterally and, on the same daythe donee accepted from the donors a new deed of gift of the properties coveredby the earlier gift, subject to new conditions—
Held, that the donee must be regarded as being a party to the revocationof the earlier deed of gift.
Where the direction in a fideicommissary deed of gift was that on the deathof the fiduciarius the gifted property should devolve on three brothers “ inequal shares ”, and one of the fideicommissarii predeceased the fiduciariu#—
' Held, that the gift was not one of a disposition of one share of the wholeto each of the three brothers, but a gift of the whole to the three brothersjointly with benefit of survivorship. It followed, therefore, that the interestof the deceased brother, assuming that he had a vested interest when he died,did not devolve upon his heirs, but on his surviving brothers. Tillekeratnev. Abeyesekere (1897) 2 N. L. R. 313, followed.
.^^.PPEAL by special leave from a judgment of the SupremeCourt. The judgment of the Supreme Court is reported in {1948)50 N. L. R. 97.Stephen Chapman, for the plaintiff appellant.James Gomyn, for the 2nd, 3rd and 4th respondents.Cur. adv. vult,
6liv.
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SIR LIONEL LEACH.—Nagalingam v. ThanabaZaaingham
October 6, 1952. [Delivered by Sib Lionel Leach]—•
The appellant appeals by special leave from a judgment of the SupremeCourt of Ceylon, dated the 13th October, 1948; which allowed an appealby the second, third and fourth respondents from a decree of the DistrictCourt of Jaffna, dated the 7th March, 1947, and dismissed a cross-appealwhich he had preferred.
The action out of which the appeals to the Supreme Court arose wasinstituted by the appellant for a declaration that certain land situate atPolikandy is the common property of himself and the first respondentand for an order for partition. The first respondent is a brother of theappellant. At the commencement of the proceedings he was the onlydefendant and he accepted the averments contained in the plaint. TheBecond, third and fourth respondents are the sons of a deceased brothernamed Kanthavanam (or Kandavanam). They applied to be madeparties and were joined as the second, third and fourth defendantsrespectively. It will be convenient to refer to them as the contestingrespondents. They denied the validity of the claim advanced by theappellant and contended that the title to the land was in them. It had,they said, belonged to their father and had devolved on them on hisdeath.
The District Judge held that the appellant and the first respondentwere each entitled to a four-ninth share in the property and the con-testing respondents jointly to the remaining one-ninth, although theyhad not made any such claim in the alternative. He left the partiesto bear their own costs. The Supreme Court held that the contestingrespondents were entitled to the land to the complete exclusion of theappellant and the first respondent, and consequently allowed their appealwith costs. The appellant asks for the restoration of the findings ofthe District Judge, except as regards the one-ninth share allotted to thecontesting respondents. He maintains that he is entitled in full tothe reliefs claimed in his plaint and to his costs throughout.
In the course of the proceedings in the District Court certain otherintervenients were allowed to appear in support of a claim that a smallportion of the property belonged to them, but the District Judge decidedthat they had no interest in the land, and they pressed the matter nofurther. The subject matter of the appeal is, therefore, the full parcelof land described in the schedule to the plaint.
The property was acquired in 1882 by Koolyar Arumugam, the fatherof the appellant and the first respondent. By his wife Walliammai, -Koolyar Arumugam had four sons, the other two sons being Poopalasing-ham, who died without issue on the 3rd August, 1917, and Kanthavanam,the father of the contesting respondents, who died on the 15th July,1931. Koolyar Arumugam died in 1920 and his wife in 1929.
The main question in the appeal involves the consideration of threedeeds to which Koolyar Arumugam and Walliammai were parties. Thefirst of these deeds is dated the 1st April, 1896, under which they pur-ported to convey to Kanthavanam by way of gift the land m suit and
SIR LIONEL LEACH.—Nagalingam v. Thanabalasingham
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other parcels, subject to the reservation of certain of the produce tothemselves during their lifetime. In the District Court this deed wasmarked as Exhibit P4. At the time of the execution of Exhibit P4Kanthavanam was a minor. According to bis death certificate he wouldbe 11 years of age, but according to his marriage certificate he wouldbe 18 years old. The Supreme Court accepted his age to be about 18years, and there has been no criticism of this finding. In Ceylon theage of majority is 21 years.
Under Roman Dutch law, the law of Ceylon, a gift to be valid requiresa valid acceptance. Being a minor Kandav an am did not sign ExhibitP4. It was signed by his maternal uncle Kanthar -Sinnathamby, who,according to a statement in the deed, did so in acceptance of the donationfor and on behalf of his nephew. The appellant contends that thisdid not constitute a valid acceptance and consequently no title to theproperty passed to Kanthavanam. In the alternative he says that itwas revoked by the two later deeds. On the other hand the second,third and fourth respondents maintain that Exhibit P4 constituteda valid deed of gift, which has not been affected by any subsequentaction on the part of the donors.
The second deed is dated the 6th July, 1908, and has been markedas Exhibit P5. By this deed Koolyar Arumugam and Walliammaipurported to revoke Exhibit P4 and their reasons for doing are givenin the following recitals :—
“ Whereas we have executed a donation deed in favour of ourson Arumugam Kanthavanam of Polikandy, bearing No. 5825 datedthe 1st day of April, 1896, and attested by Eramalingar Arumugam,Notary, for the undermentioned nine properties, and whereas thesaid Kanthavanam was then a minor and whereas bis uncle KantharSinnathamby of Polikandy had only accepted the said deed for andon his behalf and whereas we are possessing and using the saidproperties according to the said deed and whereas the said Kantha-vanam had without our consent married one, among others, whois not of our caste, and whereas the wife of the said Kanthavanamand her people are our bitter enemies and ungrateful to us andwhereas we think that the said Kanthavanam would during our life-time ruin the said properties and whereas the said properties shouldbe donated to the said Kanthavanam himself subject to fidei com-misswm and whereas the said Kanthavanam has full mind and perfectdesire to accept such kind of donation.”
Exhibit P5 was not signed by Kanthavanam.
Having executed Exhibit P5, Koolyar Arumugam and Walliammai .proceeded on the same day to execute in favour of Kanthavanam a newdeed of gift of the properties covered by Exhibit P4, subject to reservationsof life interests to themselves and a fidei commissum for the benefit ofthe appellant, the first respondent and Poopalasingham. The originalof this deed, which was registered, is said to have been lost, but a certifiedcopy was put in evidence and marked Exhibit P6. It is alleged by the
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SIR LIONEL LEACH.—Nagalvngam v. Thanabalcisinghcim
appellant that the original Exhibit P6 was signed by Kanthavanam.Immediately preceding the witness clause is this statement:— “ I thesaid Kanthavanam the donee hereof do peacefully accept this donationsubject to the aforesaid findings It is also said that the deed wasexecuted in duplicate. The alleged duplicate copy, purporting to bearthe signature of Kanthavanam, was also put in evidence, being markedExhibit P6A. Although the execution of Exhibits P5 and P6 byKoolyar Arumugam and Walliammai is not now in question, the con-testing respondents deny that Kanthavanam signed Exhibit P6 andsay that the alleged signature on Exhibit P6A is a forgery.
The learned District Judge did not deem the appellant’s evidenceworthy of credit, unless corroborated, but he considered that the case. could be decided independently of his testimony. He held that ExhibitP4 was invalid, because the acceptance was merely the act of a maternaluncle, who had no lawful authority to act for the minor and thereforethe way was open to the donors to execute Exhibits P5 and P6. Hedid not, however, consider the question whether there could be lawfulacceptance in any other way, for instance by conduct. In holdingExhibit P4 to be invalid the District Judge relied on the judgment ofthe Supreme Court in Silva v. Silva1, where it was held that a gift by afather to his minor son and accepted by an uncle on the minor’s behalfwas invalid for want of lawful acceptance, the uncle not being a naturalguardian. In delivering the judgment of the Court, Grenier A.J.(Hutchinson C.J., concurring) said that according to Homan Dutchlaw only the father, the mother, the grandfather and the grandmotherstood in the relationship of natural guardians.
A witness to the signature of Exhibit P6 was one SinnathambyVallipuram, who stated in evidence that Kanthavanam signed it in hispresence and he identified Kanthavanam’s signature on the duplicatecopy Exhibit P6A. The District Judge saw no reason to disbelieve thiswitness. He was also impressed by the fact that Kanthavanam,although he must have known of the position, took no steps to challengethe revocation of Exhibit P4.
The District Judge’s decision that the appellant and the first respondentwere each entitled to a four-ninth share in the land and the contestingrespondents jointly to the remaining one-ninth was based on his opinionthat on the death of Poopalasingham his interest in the property devolvedon his heirs. To this question their Lordships will return later. Not-withstanding that the contesting respondents had made no claim tosuch a share, the District Judge considered that it was his duty toexamine the title of all the parties and decide the case according to theresult of the examination.
The appeals to the Supreme Court were heard by Canekeratne andDias, JJ. The judgment was delivered by Canekeratne J., Dias J.concurring. The learned Judges considered that the reputation of K.Kanthavanam, the notary who had acted in the execution of Exhibit P6,was an unsavoury one and they adversely criticised the evidence of
1 {1908) 11 N. L. R. 161.
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Sinnathamby Vallipuram, which the District Judge had accepted, butthey did not go to the length of reversing his finding on this question.They left it open on the ground that it was unnecessary to decide whetherthe donee had executed Exhibit P6. They considered that for purposesof acceptance minors could be divided into two classes, infants andthose who had attained puberty. One of the second class could bedeemed to be capable of thinking for himself and by taking the benefitof the contract could himself accept it. In expressing this opinion theSupreme Court differed from the judgment of Layard C. J. (sitting withMoncreiff J.) in Wellappu v. Mttdalihami1, where the learned ChiefJustice said that by the law of Ceylon persons were all either majorsor minors, over or under 21 years of age, and it knew nothing of theelaborate distinctions of Roman law, which recognised three stages ofnon-age, “ infancy ”, “ puberty ” and “ minority
The Supreme Court came to the conclusion that Exhibit P4 constituteda valid deed of gift because Kanthav an am had accepted it by goinginto possession. The Court presumed that this took place shortly afterthe gift was made or at least before the 30th November, 1899, the dateof the institution of an action relating to one of the other parcels of landcovered by Exhibit P4. In this action the plaintiffs were KoolyarArumugam and Kanthavanam. The latter, being still a minor, appearedby his father as his next friend. Having found that the gift had beenperfected in this way the Supreme Court held that Kanthavanam’atitle was unaffected by Exhibit P5, because this merely representedthe unilateral act of the donors. It was on this footing that the appealof the contesting respondents was allowed and the cross-appeal of theappellant was dismissed.
Their Lordships see no reason for doubting the correctness of thedecision of the District Judge that the maternal uncle’s acceptance ofthe gift on behalf of the minor was not a valid acceptance accordingto the law of Ceylon. The finding is supported by authority. Inaddition to the case of Silva v. Silva, on which the District Judge relied,there are two other decisions of the Supreme Court to the same effect,namely Avichchi Chetty v. Fonseka 2 and Cornells v. Dharmatoardene3.A maternal uncle is not a natural guardian ; in the strict sense he is noteven a member of the same family. Without appointment by lawfulauthority Kanthar Sinnathamby could not act for Kanthavanam andit is not suggested that any such appointment existed. Thereforeacceptance could only spring from Kanthavanam himself, if there wasin fact acceptance.
Their Lordships do Dot consider that it is necessary to discuss thereasons given by the Supreme Court for holding that there was accept-ance of the gift by Kanthavanam, because even if its reasons are sound(and here their Lordships express no opinion) they consider that hemust be regarded as being a party to the revocation of Exhibit P4.
1 (1903) 6 N. L. It. 233..2 (1905) 3 A. C. R. 4.
3 (1907) 2 A. C. R., Supp. XIII.
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SIR 1>I(XN"BXi LEACH.—Nagalingam v. ThandbeUasingham
Exhibit P5 in itself obviously, could not achieve revocation ; Kantha-vanam was not a signatory to it. Here the donors acted alone. HutExhibit P5 must be read with Exhibit P6 and if the latter documentwas signed by Kanthavanam there can be no doubt that he consentedto Exhibit P4 being replaced by Exhibit P6..
Their Lordships are constrained to hold that Kanthavanam signedExhibit P6. The District Judge accepted the evidence of the witnesswho deposed to Kanthavanam’s signature and in spite of its criticismthe Supreme Court did not say that he was wrong. The Judge whosees and hears the witness is in a better position to assess the value ofhis evidence, as the Board has had reason to point out on numerousoccasions, but this does not, of course, fetter the discretion of an AppellateCourt in arriving at a contrary conclusion if it considers that there aregood reasons for so doing. In the present case their Lordships canfind no sufficient reason for rejecting the finding of the District Judgethat Exhibit P6 was accepted by Kanthavanam and that consequentlyit was valid in law. It follows that in their Lordships’ opinion theSupreme Court erred in holding that the position was governed byExhibit P4 alone.
There remains the question whether by reason of Exhibit P6 the con-testing respondents are entitled jointly to a one-ninth share in the land,as found by the District Judge. This finding was based on the assump-tion that Exhibit P6 is to be read as creating a separate fidei commissum'in favour of each of Kanthavanam’s three brothers and not a singlefidei commissum in their joint favour. The Supreme Court did notexpress any decided opinion, beyond indicating that it was a questionof interpretation of the particular instrument whether on the deathof a fidei commissary there was a jits accrescendi in favour of the otherfidei commissaries or whether the heirs of the deceased fidei commissaryacquired his interest.
The direction in Exhibit P6 was that on the death of Kanthavanamthe property should, subject to the life interests reserved to the donors,devolve on the other sons “ in equal shares ”. There is room for argu-ment here, but having regard to the judgment of the Board in Tillekeratnev. Abeyesekere x, their Lordships hold that the gift in Exhibit P6 is notone of a disposition of one share of the whole to each of the three brothers,but a gift of the whole to the three brothers jointly with benefit ofsurvivorship. It follows that in their Lordships’ judgment Poopala-singham’s interest, assuming that he had a vested interest when hedied, did not devolve upon his heirs, but on his surviving brothers.
The result is that their Lordships will humbly advise Her Majestyto allow the appeal and grant the reliefs claimed by the appellant inhis plaint. The appellant is entitled to his costs throughout.
Appeal allowed.
(1897) 2 N. L. R. 313.