WELLAPPU v. MUDALIHAMI.

WELLAPPU v. MUDALIHAMI.

D. C., Chilaw, 2,275.

Donation by father to minor son-Conduct of father as regards acceptance of deed of gift-Evidence of acceptance-Power of father to accept on behalf of his minor son a deed of gift made by himself.

A gift by a father to his minor son is not void, but there must be something which the law can recognize as an acceptance on his behalf.

Where a father, after making the deed of gift, remained in possession of the property, managed it, and, while the donor was still a minor, revoked the deed of gift, such conduct cannot be regarded as acceptance of the deed, even if a father can be at once donor and acceptor of the gift.

The rule of law which requires acceptance by a competent person is based on the principle that a donation is a contract to which there must be two parties. A father making a donation cannot accept it on his child's behalf.

IT was alleged by the first plaintiff that in 1885 his father, the defendant, executed a deed of gift granting him certain lands mentioned in the plaint when he was a boy of about twelve years of age ; that the plaintiff received and gave back the deed to the defendant for safe-keeping; that about 1893 he married and

entered into possession of the lands; and that in November, 1899, he leased them to the second plaintiff, whom the defendant ousted. The first plaintiff therefore prayed for a declaration of title in his favour and for ejectment of the defendant.

The defendant admitted the deed of gift, but pleaded that he executed it when he was very ill and expected to die; and that he did not deliver the deed or surrender his possession of the land to the donees. In evidence he produced a document dated 1893, by which he intended to revoke the deed of gift.

The District Judge, Mr. J. G. Fraser, held that, as the first plaintiff was a minor for several years after the deed of gift was executed, the question of possession was of no importance; and that the only real issue was whether the deed of gift was valid or not for want of acceptance. As the donor was still alive and no ground for revocation appeared to have arisen, and the donee was willing and eager to accept the donation, as might be seen from the fact of his bringing this action, the District Judge held that the donation was good, and that the defendant was bound to deliver possession to the plaintiff.

The defendant appealed. The case was argued on 16th March. 1903.

Sampayo, K.C., appeared for appellant.

H. Jayawardena, for respondent.

Cur. adv. vult.

March 25, 1903. Layard, C. J.-

In this action the plaintiffs sued the defendant appellant for a declaration of title to certain lands described in the plaint and to have the defendant ejected therefrom.

The plaintiffs based their title on a deed of gift executed by the appellant in favour of the first plaintiff. The defendant contended that there was no acceptance of the gift, and that therefore no title to the land passed to the first plaintiff. The deed, it appears, was never registered, and never left the defendant's possession; further, it was executed during the minority of the donee, and no acceptance on his behalf was made by any one.

The Judge appears to have considered that acceptance and possession were of no importance, and gave judgment for the respondents on the ground that " the donee is still alive, and that the donee is willing and eager to accept the donation, as is shown by his bringing this action ".

In this case the defendant is the father of the first plaintiff, and no question has been raised in this appeal as to the right of the father to donate to his son. I think rightly, because the decisions

of our Courts show how the Roman-Dutch Law has been interpreted in this respect. It is clear that a gift by a father to his son being a minor is not by our law necessarily void. By Roman Law it was, as the son had no independent legal existence, and with certain except

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