Present : Ennis A.C.J, and De Sampayo J.

NONAI et al. v. APPUHAMY et al.

94-D. C. Nuwara Eliya, 401.

Gift by husband and wife-Life interest reserved-Prohibition against alienation by survivor-No acceptance by donee-Gift to another person by survivor-Prescription.

A and his wife B jointly executed deed of gift in favour of plaintiffs in 1895, reserving life interest in donors and survivor, and further prohibiting alienation by survivor.

A died in 1896. On September 4, 1902, B gifted the land to C, who accepted the same and possessed the land. On September 26, 1912, B confirmed the earlier gift of 1895 by deed. The deed of 1895 was not accepted during the lifetime of A.

Held, that C's title was good.

The acceptance by plaintiffs did not relate back to vest a right of ownership in the property in the donees, from the date of the deed.
Until acceptance the plaintiffs had no estate in remainder, reversion, or otherwise which would prevent prescription running against   them.

De    Sampayo    J.-The     effect    of     non-acceptance    of     a    gift     by    a donee   is   to   entitle   the   donor   to revoke the   gift   and    make   any   other disposition     of     the     property.     The     clause     in     the   deed     of     1895 prohibiting   alienation   by   the    survivor   did   not    stand        in   the   way   of B giving her share to C.

In the case of a gift in presenti (possession alone being postponed to the death of the donor) the acceptance cannot take place after the death of the donor.


THE facts are fully set out in  the judgment of  De Sampayo J.

Bawa, K.C.  (with him Hayley), for appellants.

A. St. V. Jayawardene (with him Samarawickreme and Zoysa), for respondents.

Cur . adv. vult.

September 2, 1919.    Ennis A.C.J.-

The property in dispute in this case originally belonged to John Appu and his wife Justinahamy by right of purchase. On December 13, 1895, they jointly executed deed No. 18,053 gifting the land to the plaintiffs and added parties. The deed recited that the donors had no children, and reserved a life interest in the donors and survivor. The plaintiffs and added parties are the nephews and nieces of John Appu and an adopted daughter. An endorsement on the deed states that the donors kept it after its execution. John Appu died on January 10, 1896, without having revoked the gift.

On September 4, 1902, Justina executed the deed D 1, No. 7,337, by which she gifted the land absolutely to her daughter by an earlier marriage, Carlinahamy, the wife of the first defendant. Carlinahamy died in 1904, and the first defendant was appointed administrator of her estate, and as such conveyed the property to the heirs, himself and the added defendants in the case.

On September 26, 1912, Justina executed the document No. 54, in which she confirmed the earlier gift of 1895, and recited that certain persons had accepted the gift during the lifetime of her husband.

Justina died in 1914, and the present action was instituted on July 4, 1916. The learned Judge found as a fact that the earlier gift of 1895 was never accepted; that Carlina did accept the gift of 1902, and she and her family have been in possession ever since, have lived on the land, and built substantial houses. There is no evidence that Carlinahamy was aware of the earlier deed of gift, and her husband, the first defendant, has given evidence that he never

heard of it. It appears further that the earlier deed of gift was not registered till 1918, and then only a copy of it, not the original, which has not been produced.   The learned Judge  dismissed the action, and the plaintiffs and added parties appeal.                                  

I see no reason to interfere with the finding of fact that there was no acceptance of the earner gift.

On appeal, it was urged, on the authority of Voet 39, 5, 13, that a gift which reserved a life interest in t