151-NLR-NLR-V-39-KANAPATHIPILLAI-.-KASINATHER-et-al.pdf
544
Kanapathipillai v. Kasinather.
1937
Present: Moseley J. and Fernando A.J.
KANAPATHIPILLAI v. KASINATHER et dl.
120—D. C. Jaffna, 10,106.
Donation—Invalid for want of acceptance—Right of third party to challenge itsvalidity.-
Where a gift is void for want of a valid acceptance the right to challengeits validity is not restricted to the donor..
545
MOSELEY J.—KanapaIhipillai v. Kasinather.
PPEAL from a judgment of the District Judge of Jaffna.
N. Nadarajah (with him G. E. Chitty), for first and second defendants,appellants.
H. V. Per era, K.C. (with him Tillainathan and T.. K. Curtis), forplaintiff, respondent.
Cur. adv. vult.
November 11, 1937. Moseley J.—
The first and second defendants in case No. 8,607 of the District CourtJaffna, sued the third and fourth defendants on a mortgage bond givenby the latter to secure a dowry for the second defendant, their daughter.Answer was due on November 15, 1935, but an extension of time wasapplied for and obtained until December 16. Within the four dayspreceding December 16, the third and fourth defendants by a series ofdeeds, namely, P 2, D 2, D 3, and D 4, dated December 12, and D 5 andD 6, dated December 15, disposed of all their properties by way of dona-tion in favour of their children. The third and fourth defendants failedto file answer on December 16, as ordered, and judgment went by default.
The mortgaged property was sold on May 30 and there remained dueunder the decree a sum of some Rs. 1,600. Simultaneously with theseizure of the mortgaged property another piece of land, part of whichhad been conveyed by the deed P 2 to the present plaintiff, was seized.The latter is a minor and he then, by his next friend, brought this suitunder section 247 of the Civil Procedure Code and asked that a certainarea of the land seized should be declared to belong to him and that itshould be released from seizure. The answer of the first and seconddefendants (the judgment creditors in D. C- Jaffna, No. 8,607) was to theeffect that the deed P 2 was null, and void, having been executed withoutconsideration and with the intention of defrauding them. They accord-ingly claimed that the deed should be set aside. They further attackedthe deed on the ground that it had not been accepted by the plaintiff or,in view of his minority, by anyone on his behalf and is therefore invalid.The parties went to trial on a number of issues to two of which I shallpresently refer, and the learned District Judge found generally in favourof the plaintiff for whom he gave judgment. Against that judgment' thefirst and second defendants have appealed.
The issues to which I have just referred are as follows : —
“ 8. Is the donation deed in favour of the- plaintiff No. 12,869,dated December 12, 1935, invalid for want of acceptance ?
9. Is it open to any person other than the donor to raise the issuethat the deed is invalid for want of acceptance ? ”
The learned District Judge answered issue No. 9 in the negative.. Ananswer to issue No. 8 was therefore unnecessary. The point, althoughnot specifically mentioned in the petition of appeal, was argued at lengthbefore us. It goes, moreover, tp the root of the matter, since, if we are ofopinion that the deed is invalid for want of acceptance and that the issuecan be raised, as in this case it has been, by a person other than the donor,that is the end of'the plaintiff’s case.
546MOSELEY J.—Kanapathipillai v. Kasinather.
In Voet (bk. XXXIX., tit. 5, s. 11) the following proposition is enun-ciated : —“ No gifts are valid unless they are accepted by the person towhom they are made, and moreover have his approval, for on the unwillingbenefits are not conferred …. so much so that without accept-ance they are invalid …. thus a donation …. is notperfected before there is acceptance ”. Voet makes one exception in thecase of a donation made by ante-nuptial contract to a bride or bridegroom.
A donation, according to Walter Pereira (Laws of Ceylonf 2nd ed., p. 606),by father to son in potestate and accepted by the son, if he has attainedpuberty, or, if below infancy, by some public person on his behalf, isvalid.
The most recent local decision on the point is to be found in Fernando,et al. v. Alwis et al.1, where the question of acceptance on behalf of minorswas argued at great length and a vast number of authorities were reviewed.In that case there was what appeared to be an express acceptance by twoadults on behalf of the minor donees. It was held that the acceptanceby one of the adults was not on behalf of the minors, and that the otheradult was not a person entitled to accept on their behalf. The gift to theminors was held to be invalid for want of a valid acceptance.
It is not disputed that in the present case there is no express acceptanceon behalf of the minor plaintiff. His Counsel contended that it is notnecessary that acceptance should be expressed in the deed and he reliedupon the case of Senanayake et al. v. Dissanayake et al.', in whichHutchinson C.J. said:“ The deed does not state that the gift was
accepted ; but that is not essential. It is an inevitable inference from thefacts …. that (the donee) was in possession with the consent ofthe grantor …. ”
We were also referred to the case of the Government Agent, SouthernProvince v. Karolis et al. *, but in that case the circumstance relied uponwas possession on behalf of minor donees by their parents who were notthe donors. The case is therefore not in point.
It is undoubtedly a fact that circumstances may exist from which aninevitable inference of acceptance must be drawn. In the present case,however, the circumstances of possession lead to nothing since the minordonees continued to live with the parent donor as before the gift.
Counsel for the plaintiff (respondent) further argued that acceptancecould be inferred from the fact that the plaintiff had brought this actionto establish his right to the property, and that he had done so within areasonable time from the execution of the deed. I think that there mightbe some force in the argument in the case where a donee took such actionwithout, as in the present case, having the situation forced upon him.
I am unable to find any circumstance from which acceptance by theplaintiff can possibly be inferred, and I hold therefore on the authorityof Fernando et al. v. Alwis et al. (supra) that the deed is invalid for want ofacceptance.
The next point for consideration is whether it is open to any personother than the donor to challenge the validity of the deed on the ground
1 31 N.L.R. 201.■» 12N.L.R. 1.
* 2 N. L. R. 72.
MAARTENSZ J.—Wickremanayake v. The Times of Ceylon, Limited. 547
of non-acceptance. Counsel for the plaintiff cited the case of Nonai et aJLv. Appuhamy et al. where de Sampayo J. held that “ the effect of non-acceptance of a gift by a donee is to entitle the donor to revoke the giftand make any other disposition of the property It was sought byCounsel to interpret these words as meaning that the only effect of non-acceptance is to entitle the donor to revoke. This seems to me to bestraining the meaning of the words, and to adopt that view is impossiblein the light of the decision in Fernando et el. v. Alwis et al. (supra), the effectof which.is that non-acceptance renders a gift invalid and not merelyvoidable at the will of the donor. Since a gift, for want of acceptance,is invalid, it seems to me that the right to challenge the validity is notconfined to the donor.
In my view, therefore, issues No. 8 and No. 9 should be answered in theaffirmative. That being so, the plaintiff must fail and it is unnecessaryto consider the other aspects of the case.
I would therefore allow the appeal and set aside the judgment of theDistrict Court. I declare the deed No. 12,869, dated December 12, 1935,(P 2) to be null and void. The appellants will have their costs here andin the Court below.
Fernando A.J.—I agree.
Appeal allowed.