049-NLR-NLR-V-69-K.-V.-KIRIGORIS-and-2-others-Appellants-and-S.-J.-A.-EDDINHAMY-Respondent.pdf
223
T. S. FERNANDO, J.—Kirigoris v. Eddinhamy
Present: T. S. Fernando, J. and Allas, 1.
K. V. KIRIGORIS and 2 others, Appellants, andS. J. A. EDDINHAMY, Respondent
S. C. 374 oj 1964—D. C. TangaUe, 9211L.
Donation—Oijt by father to ton (a major) and latter's sister and step-sister mho wereminora—Acceptance by eon—Validity.
A deed of donation was executed by a person in favour of A, B and C. Awas the donor’s son, and B and C were A’s sister and step-sister respectively.A had reached the age of majority, but B and C were minors. The gift wasaccepted by A on his own behalf and on behalf of the minors B and C.
Held, that the acceptance on behalf of the minors was valid for the reasonthat the donor had allowed such acceptance.
.A.PPEAL from a judgment of the District Court, Tangalle.
O.T. Samerawickreme, Q.C., with N. R. M. Daluwatte and W. S.
Weerasooria, for the plaintiffs-appellants.
A. 0. de Silva, lor the defendant-respondent.
Our. adv. vult.
October 27, 1965. T. S. Fernando, J.—
The main dispute at the trial of this action which was filed by theplaintiffs seeking a declaration of title to two lots A and B in plan No. 1874of 23rd November 1962 and ejectment of the defendant therefrom waswhether P4, deed of donation No. 19825 of the 8th June 1946, had beenvalidly accepted. P4 was executed by the father of the three plaintiffsabout 2 years before he married the defendant who is the step-mother ofthe plaintiffs. It would appear from the evidence that the 1st plaintiff,Kirigoris, had just reached the age of majority at the time of the executionof P4, but that the 2nd and 3rd plaintiffs, his sister and step-sisterrespectively, were minors. Their father, reserving to himself a lifeinterest, gifted the two lots subject, however, to a fidei-commissum. P4contained an acceptance clause in the following terms :—
“ And I the first named (1st plaintiff) the said donee do hereby thank-fully accept the foregoing gift subject to the life-interest of the donorhereof and to the restriction aforementioned on my behalf and onbehalf of the second and third named donees (2nd and 3rd plaintiffs)who are minors. ”
224
T. S. FERNANDO, J.—Kirigoria v. Eddinhamy
At the trial the first plaintiff, in giving evidence, stated that he wasabout 21 years of age at the time of the execution of P4. His father diedin 1954. A witness to the deed who was 65 years old at the time of thetrial (in 1963) thought at one stage of his evidence that the 1st plaintiffwas about 15 years old but later thought he might have been older. It isnoteworthy that in the acceptance clause the 2nd and 3rd plaintiffs arereferred to expressly as minors ; the implication therefore is that the 1stplaintiff was not a minor. The trial judge did not himself reach anyfinding as to the age of the 1st plaintiff at the time of the execution ofP4. He dealt with the issue before him as if the 1st plaintiff hadreached majority at the relevant time. The issue in regard to validacceptance of P4 was not raised until after the 1st plaintiff had concludedhis evidence in chief. Deed P4 had been expressly pleaded in the plaint.We did not find ourselves able to accept the argument of defendant’scounsel before us that we should now find that it was not proved thatthe 1st plaintiff had reached the age of majority in 1946.
In regard to the main dispute, whether P4 had been validly accepted,the learned trial judge purported to follow a judgment of this court in thecase of Packirmuhaiyadeen v. Asiaumma1, in the course of which thepresent Chief Justice had stated “ it is clear that the major brother wasneither the natural nor the legal guardian of his minor brother ”. Thetrial judge was apparently unaware of the fact that the Chief Justicehimself, in the later case of Nagaratnam v. John 2, expressly stated that hisearlier judgment could “ no longer be considered correct ” for a reasonto be found in the Privy Council decision in Abeyewardene v. West3 thatthe donor had allowed the acceptance to be made by the grandfather onbehalf of his (the donor’s) minor child. To use the Chief Justice’s ownwords—(see page 116)—“ However, it is now clear from Abeyewardene v.West that in the case of a donation made by parents, acceptance of thedonation by the brother-in-law and the brothers of the minor donee isgood, for the reason that the donors have allowed such acceptance to bemade on behalf of the minor child. ”
We are convinced that, had the judgment in Abeyewardene v. West(supra) or that in Nagaratnam v. John (supra) been brought to the noticeof the trial judge, his decision of this case would have been different. Theother relevant issues have all been answered at the trial against thedefendant. I would, therefore, set aside the judgment and decreeappealed against and direct that judgment be entered as prayed for bythe plaintiffs with costs here and below.
Alles, J.—I agree.Appeal allowed.
1 (1956) 57 N.L.B. at 460.1 (1958) 60 N. L. R. at 115.
3 (1957) 58 N. L. R. at 319.