Present:  Bertram  A.C.J, and Shaw J.

FERNANDO v. FERNANDO.

92-D.C. Colombo, 48,190.

    Resulting trust-Property bought by mother in the name of her son- Election by son under mother's will-Costs of action-Administratrix.

When property is bought in the name of one person with money of another, there is a presumption of a resulting trust in favour of the person who provides the money. This presumption does not arise where property is bought by a father or another person in loco parents in the name of the child. In such a case a strong presumption arises that it was intended to be a gift to the child. Such a presumption (of gift) does not necessarily arise in the case of a mother, but only when she has placed herself in loco parentis within a special legal sense, i.e., when she has assumed an obligation to provide for the child. Very little evidence is wanted to establish that a mother stands in loco parent's. The presumption of gift in favour of the child can be displaced by evidence of the intention of the parties.

In order that a person who is put to his election (of his rights under a will) should be concluded by it, two things are necessary: (1) a full knowledge of the inconsistent rights and of the necessity of electing  between them; (2) an intention to elect manifested either expressly or by acts which imply choice and acquiescence.

Where property was bought by a mother in the name of her son it was held, in the circumstances of this case, that the son held it in trust for the mother, and that, even if it was in the nature of the gift to the son, he had elected under the mother's will to treat it as the mother's property.

ONE Nonno Fernando invested Rs. 20,000 on mortgage. The bond was drawn up in favour of her son Edwin by her will, executed on May 8, 1911, she disposed of the said sum in the following terms: " I have invested the sum of Rs. 20,000 in the name of my said son Edwin by Bond No. 999 dated July 6, 1907, and attested by D. C. Pedris, Notary Public. It is my will and desire that the said sum should be recovered and distributed as follows ( )." Nonno Fernando died on June 16, 1911, and
her son Edwin died on November 8, 1911.

By Nonno Fernando's will her sons Samuel and Edwin were appointed executors. It was proved that both  Samuel and Edwin had applied for probate of the will, and in the schedule to their petition for probate the sum of Rs. 20,000 was included as forming part of their mother's estate. The bond was in Edwin's possession, and on his death the administratrix of his estate included it among

the assets of Edwin. Samuel, the surviving executor under Nonno Fernando's will, instituted this action against the defendant (the administratrix of Edwin's estate), claiming the principal and the interest on the bond on the ground that Edwin was trustee of the amount for Nonno Fernando. It was contended on  be half of the defendant that Nonno Fernando  be ing mother of Edwin the investment should be deemed a gift or advancement in favour of her son. The learned District Judge gave judgment to the plaintiff. The defendant appealed.

E. W. Jayawardene (with him Nagalingam), for defendant, appellant.-Ordinarily, when a person purchases property or invests money in the name of another, the property or investment is deemed to be held on trust for the purchaser or the person who invests. but where the purchaser is the father, or is a person standing in loco parentis to the person in whose name the property is purchased, then the transaction does not amount to a trust, but is presumed to be a gift to the child. Gray v. Gray,1 Eliot v. Eliot,2, Sidmouth v. Sidmouth,3 Hepworth v. Hepworth,4- Shock v. Mcavoy,5 Rennet v. Rennet,6 be Richardson, Weston v. Richarson,7 28 Hals. 55, 17 Hals. 119, 15 Hals. 415, Commissioner of Stamps v. Byrnes.8

The principle is the same under the Roman-Dutch law. See Kadinammal v. Nathan Kangany;9 Affefudeen