GUNADASA

Vs.

SIRIYALATHA AND OTHERS

SUPREME COURT
THURAIRAJA, J.
GOONERATNE, J.
SAMAYAWARDHENA, J.
SC/APPEAL/166/2018
SC/SPL/LA/224/2018
CA/37/95 (F)
DC BADULLA 423/L
OCTOBER 27, 2021

Rei vindicatio action-Donation-Acceptance of deed of gift

The two plaintiffs, relying on a deed of gift, filed action in the District Court seeking a declaration of title to the land in suit, ejectment of the defendant therefrom and damages. The defendant filed answer seeking dismissal of the action, claiming that the deed is invalid. After trial the District Court dismissed the plaintiffs' action on the basis that the first donee who is the first plaintiff had not accepted the donation by placing his signature on the deed and the acceptance of the donation by the second donee who is the second plaintiff on behalf of himself and the first donee who is his brother is not valid. On appeal, the Court of Appeal affirmed the judgment of the District Court. The plaintiffs appealed to the Supreme Court.

Held:

1. If it is the contention of a defendant that the deed is invalid because it was not accepted by the donee, the defendant must plead it specifically in her answer and raise it as a specific issue. Merely making a general statement in the answer that the deed is invalid and asking one or two questions about the acceptance of the deed in the cross-examination of the plaintiff is not sufficient.

2. The general principle is that a donation is a contract and acceptance of it by the donee is essential to clothe the deed of gift with validity. There is a natural presumption that every deed of gift is accepted. The law does not specify a particular form for acceptance of a deed of gift. The question of acceptance of

a donation is a question of fact which needs to be answered on the unique facts and circumstances of each individual case and not by simply looking at the deed of gift to ascertain whether the donee himself has signed it.

3. The conduct of the donor and donee at the time of and after the donation is a relevant factor. The donee entering into possession of the property leads to the inevitable inference that the donation was accepted despite the lack of acceptance on the face of the deed. In this case, the second donee accepted the gift on behalf of himself and his brother, the first donee. Thereafter, the mother surrendered possession of the land together with the house thereon to the two donees and lived with one of her children until her death. There is valid acceptance of the deed of gift by both donees.

Cases referred to:

1. Wickremesinghe v. Wijetunga (1913) 16 NLR 413
2. Bindua v. Untty (1910) 13 NLR 259 at 260-261
3. Abeyawardene v. West (1957) 58 NLR 313
4. Chelliah v. Sivasamboo (1971) 75 NLR 193

APPEAL from the Judgment of the Court of Appeal.

Dr. Jayatissa De Costa, P.C.,with Chanuka Ekanayakaforthe 1st Plaintiff-Appellant-Appellant.

Venuke Cooray for the Substituted Defendant-Respondent-Respondent.

cur. adv. vult.

November 30, 2021

SAMAYAWARDHENA, J.

The two plaintiffs filed this action in the District Court of Badulla seeking a declaration of title to the land described in the schedule to the plaint, ejectment of the defendant therefrom and damages. The defendant filed answer seeking the dismissal of the action.

The mother of the two plaintiffs and the defendant was the owner of this land. She gifted it to the two plaintiffs in 1968 by the deed of gift marked P1 at the trial. This deed was not marked subject to proof. It is on this deed that the two plaintiffs claim title to the land.

As crystalised in the issues, the defendant contested the plaintiffs' action on three grounds: (a) the deed is invalid; (b) the defendant has alienated the land to her sons but they are not parties to the case; and (c) the land has not been properly identified. Grounds (b) and (c) were not pursued.

A deed of gift can be challenged on various grounds: due