BABAIHAMY v. MARCINAHAMY et al.

 

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

and Mr. Justice Wendt.

 

BABAIHAMY v. MARCINAHAMY et al.

 

D.  C.,  Galle, 8,009.

 

    Donation to minor- Acceptance  by  minor-Validity-Fidei  commissum- Right   of survivorship.

 

It is competent for a minor to accept a donation in his favour, inasmuch  as  he  is  benefited  thereby.

 

Where one of several donees, who were all present at the execution of the deed of gift, accepted the donation on behalf of himself and some minor donees and entered into possession of the property),-

 

Held, that such possession must be considered as possession on his own behalf and on behalf of the minors, and constituted a valid acceptance   of   the    donation.

 

Where a deed of gift creates a single fidei commissum with institution of the donees' descendants, so long as a descendant of any of ' the donees exists he is entitled to the possession of the entire property.

 

Tillekeratne   v.   Abeyesekara1   followed.

 

APPEAL by the plaintiff from a judgment of the   District Judge of Galle (K. W. B. MacLeod, Esq.).    The facts and arguments fully appear in the judgment of Wendt J.

 

Bawa (with him A. Drieberg), for the plaintiff, appellant.

 

A. St. V. Jayewardene, for the defendants, respondents.

 

Cur. adv. vult.

 

July 27, 1908.    WENDT J.-

 

The parties are agreed that Tombuage Jando was the original owner of the property in dispute, and that by the deed No. 1,071 of June 5, 1860 (not 1863, as erroneously stated in the translation), he gifted one-half of the soil and the whole of the house to his adopted daughter Nonkohami, and the other half of the soil to his other adopted children, her brothers, named Salman, Davit, and Baron. The deed created a fidei commissum. It does not appear that the donees were any relations in blood of the donor. In 1889 Davit and Baron conveyed to Salman two-thirds of the property, the vendors' title being alleged to be by " inheritance from parents;" and in 1896 Salman sold and conveyed the whole property to Karlentinahami, reciting as his title the deed of 1889 and " inheritance from parents." Neither deed makes mention of the donation of 1860. The " parents " never had any title. In 1899 Karlentinahami conveyed to the plaintiff, who, in November, 1905, brought the present action. The

1 66 L. J. P. C. 55; 2 N. L. R. 313.

 

first  defendant is  the  only  child  of  Nonkohami,   who died thirty   years ago,  and the second defendant is the husband of the first. The added parties are the children and heirs of Salman, who died nine or ten months before the trial.    Baron died soon after his deed of 1889, and Davit eight or ten years ago, both of them intestate and without issue, so that Salman and the first defendant were their next of kin.

 

The learned District Judge finds that neither plaintiff nor his vendor Karlentinahami ever had possession, and there is no reason for disagreeing with that finding.

 

The plaintiff, as I understand, puts his case in this way: The donation was invalid for want of acceptance (the acceptance clause having been signed by Salman alone), and Salman alone had possession-at any rate since 1889-and he thereby acquired prescriptive title. As regards this prescriptive title the District Judge has found that it was not established, and I think that finding right.    There remains the question as to acceptance.

 

The deed of donation recited that the donor was old and infirm, and proceeded, in consideration of his love and affection to the four donees,  whom he had adopted as his own children,  to gift certain lands to them with a fidei commissum in favour of their descendants. The deed then proceeded:  " Thus this deed is caused to be written, signed,   sealed,   and  granted   to  the   said  four  individuals   (naming them) to be retained with any one of them, on this 5th da

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