Present : Mr. Justice Wood Renton and
Mr. Justice Grenier.

BINDUA v. UNITY et al.

D. C, Negombo, 7,639.

Donation-Acceptance-Question of fact-Acceptance by brother of minor donee-Action on a mortgage bond against children of mortgagor- No estate left behind by mortgagor-Is plaintiff entitled to get a money decree 1

Acceptance may be manifested in any way in which assent may be given or indicated. The question of acceptance is a question of fact, and each case has to be determined according to its own circumstances.

Where a donation by a father to his children was accepted by his major son on his own behalf and on behalf of his minor children, and where the donor surrendered the property to the donees after the execution of the deed of gift, and where the major son possessed the land thenceforward and his minor brother and sisters took the produce themselves on becoming majors, and where the children dealt with the land as owners while the donor was still alive,--

Held, that there was sufficient acceptance of the deed of gift.

In an action on a mortgage bond by a mortgagee against the children of the deceased mortgagor, the Supreme Court refused to enter even a money decree for what it was worth against the mortgagor's estate, where it appeared from the evidence that the mortgagor left no estate which can be made available for the purpose of satisfying such a decree, and where the defendants were not the administrators of the mortgagor's estate, and where they had done nothing to identify themselves with any property belonging to him.

THE facts appear in the judgment.

H. A. Jayewardene (with him Rosairo), for the plaintiff, appellant.- The acceptance of the gift by the major brother, on behalf of his minor brothers, is not valid. Only a natural guardian or legal guardian can accept on behalf of a minor. See Fernando v. Cannangara; l Wellappu v. Mudalihami; 2 Avichi Chetty v. Fonseka; 3 Coone-wardene v. Bastian Appu;4 Silva v. Silva; 5 169, C. R. Ratnapura, 9078 (October 11, 1907); Muttupillai v. Valupilli.* The only case in which it was held that a person who was neither a natural nor a legal guardian can accept a gift on behalf of a minor is Lewishamy v. Silva.7 Counsel also referred to Sinnapillai v. Tilliampalam.8

Foot Notes:

1 (1897) 3 N. L. R. 6.
2 (1903) 6 N. L. R. 233.
3 (1905) 3 A. C. R. 4
4 (1905) 5 Tarn. 75.
5 (1908) 11 N. L. R. 161.
6 (1909) 4 Bal. 110.
7 (1906) 3 Bal. 43.
8 (1878) 2 S. C. C. 5.

Bawa (with him A. St. V. Jayewardene), for the defendants, respondents.-Acceptance need not be on the face of the deed; a deed of gift may be accepted at any time before the death of the donor, or even after the death of the donor (see Tissera v. Tissera [1 (1908) 2 S. C. D. 36. ]).  Minors may accept a gift when they come of age (Voet 39,5,13). Lewishamy v. Silva [2 (1906) 3 Bed. 43,] is an authority in favour of the respondent.

Jayewardene, in reply.

Cur. adv. vult.

July 5, 1910. WOOD RENTON J.-

I see no reason to differ from the conclusion at which the learned District Judge has arrived. It does not follow from the fact that Sinda fraudulently concealed his donation of November 8, 1897, in favour of his children from Mr. Carron at the date of his mortgage to that gentleman in June, 1904, that the deed of 1897 itself was fraudulent; and the circumstances mentioned by the District Judge as to the recital in the deed of gift of the prior mortgage of 1891 in favour of the plaintiff-appellant and the due registration of the deed justify him in coming, as he did, to the conclusion that it was a genuine transfer. After careful consideration I am of opinion that there is sufficient evidence of acceptance of the deed to validate it. It is quite clear that by the Roman-Dutch Law acceptance may be manifested in any way in which assent may be given or indicated. In the present case there is evidence showing that Sinda not only permitted his e