038-NLR-NLR-V-54-MOHAIDEEN-Appellant-and-MARICAIR-et-al-Respondents.pdf
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Mohaideen v. Maricair
1952
Present: Gratiaen J. and Pulle J.MOBLADDEEN, Appellant, and MARICAIR et alRespondents
3. C. 107 Inly.—D.C. Batticaloa, 597
Donation—-Gift by father to his minor child—Acceptance.
Under Roman-Dutch law, a father, when he makes a donation to hisminor child, can authorise Some other person by “ a special mandate ” to acceptthe gift on the child’s behalf.
..1 {1929) 31 N. L. K. 241.
GrRATXAEN J.—Mohaideen v. Maricair
17 6
^ PPBATi from a judgment of the District Court, Batticaloa.
H. V. Perera, Q.G., with G. T. Olegasegarem, for the petitioner appellant.N. E. Weerasooria, Q.C., with J&f. A. JSf. Hussain, for the respondents.
Gut. adv. vtdt.
July 18, 1952. Gratiaen J.—
By a notarial conveyance jSTo. 11082 dated 7th March, 1944, the 1strespondent purported to donate certain lands to his minor daughterPathumma reserving to himself a life-interest' in the properties.Pathumma married the petitioner shortly afterwards, and on her death heapplied for letters of administration in respect of her estate claiming,inter alia, that the immovable property in question formed part of herestate subject to the life-interest reserved therein. The 1st respondentobjected to the inclusion of the property on the ground that the gift wasinoperative as it had not been validly accepted by or on behalf ofPathumma during her lifetime. The learned Judge upheld thisobjection, and the present appeal is from his decision on this issue.
Although the parties to the transaction under consideration are Muslims,it is common ground that the validity or otherwise of the gift must in thecircumstances of this case be decided in accordance with the principles ofthe Roman-Dutch Law.
The 1st respondent has given evidence explaining the procedureadopted by him in having the gift accepted on the face of the deed by anuncle of Pathumma named Ibralewai on her behalf. “ I tookIbralewai ”, he said, ” to the notary’s office, to sign the deed as a witness.Later the notary wanted a guardian to accept the donation on behalf ofmy daughter …. and I asked him to make Ibralewai the guardianand to draw up the deed ”. Ibralewai accordingly, at the expressrequest and with the full concurrence of the 1st respondent who was thedonor as well as the natural guardian of the donee, formally accepted thegift in the following terms :—
“ As the said …. Pathumma is at present a minor, I Packir-thamby Ibralewai, her uncle, do hereby thankfully accept this donationsubject to the life-interest mentioned above for and on her behalf. ”
It is abundantly clear from the admitted facts that the 1st respondentgenuinely desired to gift the property to his minor daughter and hadtaken such steps as were considered necessary, on the advice of a notarypublic, to divest himself of the title in her favour under a conveyancewhich was expressed to be absolute and irrevocable. Can he now beheard to attack the validity of the transaction on the ground that theperson whom he had himself selected to accept the gift on her behalf wasdisqualified from so doing because he was not in truth her naturalguardian ?.
The Roman-Dutch Law relating to donations by a father in favour ofhis minor children takes a more liberal view than the early Roman Law
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GR ATT ABN J.— Mohaideen v. Maricair
which, had refused to recognise a son or daughter who was still in familiaas having any existence independently of the paterfamilias. Thehistorical development of the subject in South Africa has been fullydiscussed by de Viliers C. J. in Slabber's Trustee v. Neezer's Executor1where, after consideration of the relevant authorities, he concludes asfollows :—
“ In regard to donations proper as distinguished from remuneratorydonations, the conclusions to be deduced from the latest authorities arethese. They require registration in the Deeds Office if they exceedthe sum of £500 in value, and they are invalid and revocable to theextent of such excess, unless so registered. A donation by a father tohis minor child is completed by such registration whatever the amountmay be. An unregistered donation by a father to his minor child is notdeemed to be complete without clear proof of acceptance by the child,or by the father on behalf of the child. Acceptance by the child aloneis sufficient if he has reached the age of puberty ; but if he is under thatage, the gift must be accepted by the Court, the Master or the father inhis behalf. Whether the minor be under or above the age of puberty,the complete acceptance by the father would be sufficient; but suchacceptance would be incomplete as such without some act done by thefather to prove his intention to divest himself of the property, such asdelivery to a third person, transfer in the Deeds Office, or, in the caseof a cession of action, notice to the debtor of such cession to the child. ”
It seems to me that these principles are perfectly capable of sensibleadaptation to suit modem conditions in this country, add that the realtest in each case is whether the father has “ proved his intention to divesthimself of the property ” in favour of his child “ with some kind ofsolemnity indicating to all concerned the exact nature of the transaction. ”De Kock v. Van de Wall2. The Roman-Dutch Law does not regard itas incongruous that the donor, qua parent of the donee, should formallyaccept his own gift on the child’s behalf. A fortiori, he could authorisesome other person by “ a special mandate ” to accept the gift. Voet—5—IB. In the present case, he was instrumental in procuring thenecessary acceptance by Pathumma’s uncle “ in such an open and publicmanner as to make it binding on the father and irrevocable by him. ”Maasdorp's Institutes3. The property was formally conveyed and thedeed was duly registered in accordance with the law affecting title to landin Ceylon ; and he unambiguously manifested his intention to completethe gift which in consequence became irrevocable as far as he wasconcerned. Vide also footnote (a) at page 17 of Krause’s translation ofVoet on Donations. The case is not complicated by other considerationswhich may possibly arise if a transaction of this kind is attacked by acreditor of the donor.
In Francisco v. Costa4 Clarence J. upheld the validity of a gift byparents to their minor child where, upon execution of the conveyance,they “ allowed the child’s grandmother to accept on her behalf”. This
1 {1895) 12 S. C. 163.3 (5th Ed.) 3, 69.
3 (1899) 16 S. C. 463.1 (1889) 8 S. O. C. 189.
JHendis v. The Queen
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ruling was followed with approval by Middleton J. in Letoishamy v. deSilvax. It is true that in both these cases the property was in factsubsequently possessed on the minor’s behalf, but I am not convincedthat this further step is always essential to clothe a parent’s gift to hischild with validity. Such a requirement would certainly be highlyartificial where a parent has reserved to himself the enjoyment of theproperty during his life-time.
In my opinion the 1st respondent is precluded from challenging thevalidity of the donation. I would accordingly allow the appeal andenter a declaration that the property conveyed to Pathumma by deedNo. 11082 dated 7th March, 1944, attested by N. S. Pasiah, NotaryPublic, forms part of her estate. The petitioner is entitled to his costsof appeal and of the contest in the court below.
Pulle J.—I agree.
Appeal allowed.