SILVA v. SILVA.

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,

and Mr. Justice Grenier.

 

SILVA v. SILVA.

 

D. C., Galle, 7,997.

 

    Donation to minor-Acceptance by   uncle-Invalidity-Natural     guardian- Acceptance   at  some  future   time  by  minor  after  attaining   majority.

 

In the case of a donation to a minor the law requires a present acceptance by the natural or legal guardian of the minor, and not an acceptance at some future indefinite time by the minor himself, after   he   has   attained majority.

 

Where a deed of gift executed in favour of a minor by his father was    accepted   by    the   uncle    of   the   minor    on    behalf    of   the    minor-
 

Held, that such acceptance was invalid, the uncle not being the natural   guardian   of   the   minor.

       
     APPEAL from a judgment of the District Judge of Galle.

 

The facts sufficiently appear in the judgment of Grenier A. J.

 

Bawa, for the defendant, appellant.

 

A. St. V. Jayewardene (with him H. Jayewardene), for the plaintiff, respondent.

Cur. adv. vult.

 May 29, 1908.   GRENIER A. J.-

 

The simple question in this case is whether the deed of gift No. 595 dated May 1, 1893, which was executed in favour of the plaintiff by his father, was duly accepted or not. The District Judge held in the affirmative, and the defendant has appealed.

 

The plaintiff was a minor at the date of the gift, and it was contended for the respondent that there was acceptance of the same for him by his uncle Paulis Silva. Admittedly Paulis Silva was not the legal guardian of the minor appointed either by will or by the Court, and he cannot be regarded as his natural guardian for obvious reasons. According to the Roman Dutch Law, the mother and father stood in the relationship of natural guardians, as also the grandfather and grandmother. I do not know of any case, nor has any been cited to us, in which an uncle was regarded in the light of a legal or conventional guardian. See Avichchi Chetty v. Fonseka1 and Cornels v. Dharmawardana,2 and the cases therein cited. I adhere to my decision in the first case, Mr. Justice Wendt having been of the same opinion. Mr. Justice Middleton's views were precisely the same in the second case.

 

1 3 App. Court Reports 5.
2 3 App. Court Reports Supplement 13. 

6J. N. A 99909 (8/50)

 

 

            It was argued for the respondent that it was open to the donee to    accept  the  gift  at  any  time before  the  death  of  the  donor. The answer to this is that the law requires a present acceptance by the natural or legal guardian to give validity to a donation in the case of a minor, not an acceptance at some future indefinite time, by the minor himself, after he had attained majority. In the case before us the property which was the subject of the donation never came into  the   possession   either  of   the   donee   or  of  his   self-constituted. guardian, but always remained with the donor. The District Judge has expressly found this to be so.    He was in error, however, in holding that there was due acceptance. There could not be in law any  acceptance,   as  I  have  already  pointed  out,   by  an  uncle  as natural guardian of his minor nephew.

 

I would set aside the judgment of the Court below, and dismiss the action with costs.

 

HUTCHINSON C. J.- I am of the same opinion.

Appeal allowed.

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