024-NLR-NLR-V-50-NAGALINGAM-Appellant-and-THANABALASINGHAM-Respondent.pdf
CANEKRRATNE J.—Nagalingam v. Thanabdlasingham
97
1948Present: Canekeratne and Dias JJ.
NAGALINGAM, Appellant, and THANABAXAS INGHAM,
Respondent
S. C. 1-2—D. C. Point Pedro, 2,198
Donation—Possession by donee—Acceptance—Revocation—Jus accrescendi—Application to deeds of gift—Intention of donor.
There is a valid acceptance of a gift when the subject of a donationcomes into the possession of the donee. A unilateral act of the donorcannot thereafter revoke the gift.
The principle of jus accrescendi applies to dispositions inter vivos.But it must be gathered from the document that the donor positivelycontemplated the predecease of a donee and intended that the specificshare of that person should, in that event, go to his co-donees.
Appear from a judgment of the District Judge, Point Pedro.
S. J. V. Chelvanayakam, K.C., "with C. Chellappah, for plaintiff,appellant in No. 1 and respondent in No. 2.
B. Wikramanayake, K.C., with H. W. Tambiah, for second, third,and fourth defendants, respondents in No. 1 and appellants in No. 2.
Cur. adv. vuU.
October 13, 1948. Canekeratne J.—
These are appeals from a judgment in an action for partitioning aland “ called Mungkodai and Mavattai ” which comprises lots 1 and 2in the plan marked Z. By deed No. 5,825 (marked P4), dated April 1,1896, one Koolaiyar Arumugam and his wife, Walliammai, gifted,inter alia, this land to their eldest son, Arumugam Kandavanam,whom I shall refer to hereafter as Kandavanam. He married oneEledchumy, who was related to him, probably according to customaryrites about 1903 : the marriage was registered on April 9, 1904 (2D20).Their eldest child, the second defendant, was born on Oetober 14, 1904,two other children of the marriage are the third and fourth defendants.The plaintiff claimed a half share of the land and allotted the otherhalf to his brother, the first defendant: they are the surviving sons ofthe donors. Their ease was that the donors by deed P5, revoked thegift in favour of Kandavanam and by deed P6 gifted, inter alia, this landto Kandavanam subject to certain conditions. Both P5 and P6 wereexecuted on the same day, July 6,1908, and attested by the same notary,one K. Kanthavanam, two of the attesting witnesses in both were thesame, the third attesting witness to P5 was one Kanthar Saravanamuttu,to P6 one Kanthar Vallipuram. The second to fourth defendants attackthe genuineness of P5 and P6. The learned Judge came to the conclusionthat P5 and P6 were executed by the parties named therein and that
5—L.
1J. W. A 84755—1,044 (12/48)
98
CANEKERATNE J.—NagaMngam v. ThanabalasingTiam
the second to fourth defendants as some of the heirs of A. Poopalasingham,another son of the donors, became entitled to one-ninth share. Theplaintiff appeals from this judgment and contends that the whole propertypassed to him and the first defendant and that the order depriving himof costs of contest is wrong (S. C. No. 1). The second to fourth defendantsin their appeal (S. C. No. 2) contend that the finding that P5 and P6are genuine documents is wrong.
K.Kanthavanam’s reputation as a notary was an unsavoury one :the deeds were executed at Kudathanai, a place about 7 miles, accordingto the plaintiff’s witnesses, 10 miles according to the second defendant,from the residence of K. Arumugain. The plaintiff is a man who isundoubtedly fond of crooked ways and so bent on doing wrong that itis not surprising that the Judge did not accept his evidence. His witnessVallipuram is one who had taken part in three or four transactions thatdo not redound to his credit. The original of P6 handed to the donorswas not forthcoming at the trial, the Judge was not impressed with theexplanation offered by the plaintiff for its non-production. The im-pression left on reading the judgment is that the learned Judge wouldnot have accepted the evidence of Vallipuram about the execution ofP6 but for the presence of what appeared to him to be circumstancestending to show knowledge on the part of Kandavanam of P6. Hadthe case been heard by a Judge having a longer experience of men andmatters in this part of the country it is a question whether he wouldhave arrived at the same conclusion as the Judge who heard the case.It is unnecessary for the purposes of this appeal to decide the pointwhether the plaintiff has proved that P6 was executed by KL. Arumugam.
The first question is whether P4 is a valid gift. A donor makes agift with the intention that the thing would become the property of thedonee : the offer must be accepted by bim to whom it is made, for theconcurrence of the donor and donee must take place in order to renderthe donation perfect, the obligatory effect of the gift depends upon itsacceptance. The donor may deliver the thing, e.g., a ring or give thedonee the means of immediately appropriating it, e.g., delivery of thedeed, or place him in actual possession of the property. Acceptancemay generally take place immediately or at some future time. Thecontinuance of the consent to give at the time of the acceptance isnecessary, for a donor is perfectly free to change his bare intention, hecan thus withdraw or revoke the proffered gift1. Acceptance may be bya third person for the donee or by the donee, he may act himself or byor through another : the latter may he authorised by him to acceptit or his acceptance may be ratified by the donee. Acceptance can heregarded as complete if made by any person having authority for thatpurpose from the donee, or even although the acceptance should takeplace without the knowledge of the latter, if he subsequently ratifiedit’2. Minors may for the purpose of acceptance be divided—-notwith-standing the. dictum of bayard C.J. at p. 235 of 6 N. L. R.—into twoclasses, those who are of tender years, e.g., who may be termed childrenand those who havesufficient intelligence—or, as Van der Keesselremarks, those who are infants and those who have attained puberty1 Van Leeuwen, Cens. For. 1-4-12-16.■ Voet 39-5-13.
CAN -HiKTElRA'l'NJii T.—2faga.linga.rfi v. I’hanabatasingham
99
(Th. 485). One who may be said to be a child is taken to lack all mentalcapacity or power to form a decision and so can enter into no transactionwhatsoever, his guardian, whether natural or appointed, acts for himwithout consulting him, and with complete authority1. Suoh a childcan hardly accept a gift. One of the second class is deemed capableof thinking for himself, has intellectus, but since he is yet inexperiencedand likely to act rashly, the necessary auctoritas of his guardian mustgenerally be interposed to make the transaction absolutely binding.Such a minor, however, can take the benefit of a contract and thus hecan himself accept a gift 2. In three cases Avichchi Chetty v. FonseTca *,de Silva v. d-e Silva 4 and Comelis v. Dharmawardene 5, acceptance of agift by an uncle was considered insufficient. In the first of these casesa natural guardian, of the donees, who was not a donor, was said to bealive and the donees were persons falling within the former class (e.g.,children of the ages of four and one), nothing can be gathered as regardsthe age of the donees in the second and third cases. There can hardlybe any doubt that Arumugam and his wife intended to transfer certainlands to their three sons, Kandavanam, the plaintiff, and Poopalasingham.To effect this purpose they went to the office of a notary, they got threedeeds of gift prepared by Notary Eramalingar Arumugam and executedthe deeds on the same day, one P4 in favour of Kandavanam, the othertwo in favour of the other two sons. All three were accepted by thematernal uncle of the donees. The plaintiff and Poopalasinghamentered into possession of the lands given to them by these deeds andone is still presumably possessing them. There is a natural presumptionthat the gift was accepted. Every instinct of human nature is in favourof that presumption ®. It is in every ease a question of fact whetheror not there are sufficient indications of the acceptance of a gift 7.
It was not disputed at the argument that Kandavanam entered intopossession of some of the lands referred to in P4, the parties were notagreed as to the time. An action for partitioning the land known asKuddatarai (No. 5 in P4) was brought on November 30, 1899, by K.Arumugam as first plaintiff and Kandavanam as second plaintiff.Para. 3 of the plaint states that by deed No. 5,825, dated April 1, 1896,Arumugam conveyed to the second plaintiff an undivided one-thirdshare in the land reserving to himself a right of life interest over thesame. By the decree dated July 1, 1901, lot 2 in plan dated April 23,1901, was allotted to Kandavanam subject to the life interest of the firstplaintiff. By P4, the donors reserved a life interest in the landsnumbered 3, 4, 5, 6, 7, 8 and 9 therein, and a life interest in half theland numbered one therein, Kandavanam was entitled to takethe rents and profits of the land numbered two therein(Kochchantthai) and of a half share of the land numbered onetherein (Mungkodai and Mavattai). If the father remained in
1 Voet 26-8-4.
Eabaihamy v. Marcinahamy {1908) 11 N. L. R. 232.
3 A.C. R. 4.
3 A.C. R. 179 ; 11 N. L. R. 161 .
2 A. C.R. Supp. XIII.
8 Hendrick v. Sudritaratne {1912) 3 C. A. C. 80.
1 Binduav. Unity {1910) 13 N. L.R. 259 : and Hendrick v. Sudritaratne {1912)
3 C. A. C. 80.
100
CAM JS KBBATNE S.—JSTagalingam v. I'hrxnabalasingham,
'possession of the land after P4, his possession of a half sharewas for and on .behalf of his son Kandavanam : one must concludethat he was not in wrongful possession of that share1. Thereis no evidence led in the case to show that Arumugam did not performhis duty as a father and guardian of the son. What he did at the endof November, 1899, is a clear index to his mind. By this time he recog-nised the validity of the gift to Kandavanam, who had attained majority,in respect of some lands at any rate. His position in the action wasthat land No. 5 (in P4) had become the property of the donee by P4 :if the title to a land in respect of which he had the right of possessionwas recognised by him to have passed to the donee, much more wouldthe title to lands wherein the right of possession was not in him or notin him entirely have passed to the donee. Acceptance of a gift by anunauthorised person may afterwards be ratified by the donee 2. Kanda-vanam was about 18 years of age at the time of the execution of the deed(see 21)20). If he was present on this occasion he could have authorisedhis uncle to accept the gift, if he was absent it would be competent tohim later to adopt what the uncle had done. The gift became validby the time the action of 1899 was brought, or the gift of the propertiesreferred to in items one and two, at any rate, of P4 was rendered validwhen the donee got possession thereof which might be presumed to beshortly after the gift or at least before November 30, 1899. There is avalid acceptance when the subject of a donation comes into the possessionof the donee 3. It is clear that P5 which is called a deed of revocationwas the unilateral act of the donors, it was not executed by Kandavanamand it cannot affect the title that Kandavanam had acquired to the landsyears before. It is only in 1907 when Arumugam’s feelings againstthe family to which his daughter-in-law belonged before her marriagehad become embittered that he thought of finding an excuse for“ revoking ” the gift: most of the reasons he gives seem obviouslyinconsistent with the facts.
Counsel for the plaintiff appellant contended on the authority princi-pally of Garry v. Carry 4, that the rule of jus accrescendi applied in thiscase and that on the death of Poopalasingham, the other two doneesin P6 became entitled to the entire property. It is desirable to say a fewwords on this question, as it was contended with confidence that thiscase applied, although it is not necessary for the decision of this case.There a property had been conveyed to one Menatchi by a deed of giftand she held it as a fiduciary subject to the condition that “upon thedeath ” of M. the gift in favour of Henry, Patrick, Emmaline and Thomasshould take effect, these were the children of the donor and Menatchi.Henry predeceased the mother. Thomas and the mother institutedan action against Patrick and Emmaline. The action which was onefor partition would undoubtedly have failed unless she succeeded inconvincing the Court that Henry was entitled to a fourth share in theland at the time of his death and she acquired it by inheritance or that
x Government Agent, (S'. JP. v. Karolis (1896) 2 N. L. It. at p. 73.
3 Maas dorp, Institutes (1st Ed.) 93 ; Voet 39-5- 13.
11 N. L. R. 232 (supra).
Senanayake v. Disanayalce, (1908) 12 N. L. R. 1.
(1917) 4 C.WJR. 50).
CANEKERATNE J.—NagaMngam v. ThanabaZasingham
rol
her son’s interest lapsed and her fiduciary interest became full dominiumin respect of a fourth share. She failed to convince the Court of thesoundness of either proposition and it was decided that the propertycannot be said to “ belong in common ” to Menatchi and her childrenwithin section 2 of the Ordinance (No. 10 of 1863). But in repelling thesecond contention of the plaintiffs it was observed that the principleof jus acorescendi applied to property given by a deed of gift too. TheCourt could have arrived at the decision dismissing the actionwithout any resort to this principle. A fiduciary, as a general rule,becomes the absolute owner of the property left subject to a fidei com-rnissum. This is a rule which applies really to a fidei commissum createdby a testamentary document, for in such a case there is a presumptionthat the testator intended the fidei commissary legatee to have no trans-missible interest unless he survives the fiduciary, and if there is no suchperson, the fiduciary would hold the property free of the burden of thefidei commissum imposed by the testator: there is no person to whomhe can deliver the property. This applies where there is no person ofthe class of fidei commissary alive, for as Voet says, if none of those towhom restitution had to be made survive, the fiduciary is taken to berelieved from the burden of the fidei commissum (7—1—13). In the caseof a fidei commissum created by a deed it is difficult to realise a fiduciaryholding the property free of the fidei commissum, for the contingentinterest of the fidei commissary was, as a rule, transmitted to his heirs.For some time till about 1916 the principle of jus accrescendi appearsto have been applied in Ceylon to all dispositions whether created intervivos or by last will. But in 1917, it was argued that the principleapplied only in the case of testamentary dispositions (Carry v. Carry l) ;the same view was again propounded unsuccessfully in 1918 in Usoof v.Rahimath z. Finally the question was again raised in Carlinahamy v.Juanis 3, where a Divisional Bench reviewed the authorities and modifiedvery considerably the previous view, thus : In the case of a gift the la^ywill not presume merely from the conjunction of two or more personsin the same liberality, that in the event of one of these predeceasingthe vesting of the liberality, his share was intended to accrue to theothers. Such a result can only arise from operative words which either ex*pressly or by implication have this effect. One must be able to gather suchan intention from the language used by the donor, or really by the drafts*man employed by him. If one can gather from it that the donor posi-tively contemplated the- predecease of a donee and intended that thespecific share of that person should in that event go to his co-donees,there would be no difficulty : one is then really construing the languageused in the document.
The appeal of the second, third and fouth defendants is allowed witheosts in both Courts : the appeal of the plaintiff is dismissed.
Dias J.-—I agree.
1 (1917) 4 C. W. B. SO.1*J. X. A 84755 (12/48)
Appeal of second to fourth defendants allowed.
Appeal of plaintiff dismissed.
* (1918) 20 N. L. It. 225.
* (1924) 26 N. L. B. 129.