Wickremesinghe V. Wijetunge

1913 Present: Pereira J. and Ennis J.

WICKREMESINGHE v. WIJETUNGE et al.

206-D. C. Kandy, 21,829.

Donation-Delivery of deed-Acceptance
.
Delivery of a deed is not essential for the validity of a donation under our law.

A donation may be accepted at any time during the lifetime of the donor, and Where its fulfilment is postponed until after the donor's death, it may even be accepted after the donor's death.

Acceptance may be presumed from either the physical acceptance of a deed of donation delivered by the donee, or by the sale of the land donated by the donee.

PEREIRA J.-In my opinion the acceptance of a donation of land must be notarially attested as much as the making of such a donation, and the acceptance must be by the donee himself, or some person competent in law to represent the donee for the purpose of entering into contracts But it has been held in a long series of decisions that the acceptance of a gift by the donee may be effected in any one of the many ways laid down in the works on the Roman-Dutch law. The decisions, I think, have led to some confusion and uncertainty in the law, but I think that it would be inexpedient to question their correctness at this time of day, and that they should as far as practicable be followed.

APPEAL from a judgment of the District Judge of Kandy (F. R. Dias, Esq.).

This was an action by a father against his daughter and son-in-law for declaration of title to a land which he had by deed " gifted "

to the daughter. The plaintiff alleged that the donation was not completed by delivery and acceptance, and that the land donated was in his possession till the ouster complained of. The District Judge held that the deed of gift was duly accepted and dismissed the action.

The plaintiff appealed.

F. M. de Saram, for the appellant.-The donation was not completed by delivery of the deed; and the deed was not accepted. There should have been acceptance at the time of execution. [Pereira J.-Should not the acceptance be on the face of the deed ?] Yes. It is a contract affecting land. Counsel cited Silva v. Silva;1 Voet 39, 5, 2; Voet 39, 5, 19; Wellappu v. Mudalihami.2

J. W. de Silva, for the respondent.-For the validity of a donation it is not necessary that there should be acceptance at the time of execution of the deed. Acceptance need not be on the face of the deed. The donee has sold the land; that is sufficient acceptance. There is evidence of delivery of the deed. Counsel cited 2 Nathan, sec. 1087; Voet 39, 5, 13; Affefudeen v. Periyatamby;3 Tissera v. Tissera;4 Tillekeratne v. Tennekoon;5 Government Agent, Southern Province, v. Karolis.6

F. M. de Saram, in reply.

Cur. adv. vult.

August 27, 1913. PEREIRA J.-

The main issue in this case is the second, namely, whether the execution of the document dated March 13, 1869, purporting to be a donation by the plaintiff to the first defendant, was completed by delivery, and whether the donation was accepted by the donee. As regards delivery of the deed, I am not prepared to say that it is essential under our law. As explained by Morice in his work on English and Roman-Dutch law (2nd ed., p. 83), while a deed in its English meaning acquires validity by being sealed and delivered to the party benefited by it, the deed of Roman-Dutch law, generally called a notarial deed, required no delivery for its validity. So that the only question involved in this case practically is whether the donation referred to above was duly accepted by the donee. I may at the very outset say that, in my own opinion, the acceptance of a donation of land must be notarially attested as much as the making of such a donation, and the acceptance must be by the donee himself or some person competent in law to represent the donee for the purpose of entering into contracts. In Wellappu v. Mudalihami,2 Layard C.J., citing Voet 39, 5, 12, 13, observed:

Foot notes:

1 (1908) 11 N. L. R. 161.    

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