Nagalingam, A. V. Thanabalasingham, A.

[IN THE PRIVY COUNCIL]

1952 Present  :  Lord Porter, Lord Tucker, Lord Cohen,
The Right Hon. T. Rinfret (Chief Justice of Canada) and Sir Lionel Leach

A. NAGALINGAM, Appellant, and A. THANABALASINGHAM et al.
Respondents

PRIVY COUNCIL APPEAL NO. 24 OF 1951

S. C. 335-D. C. Kandy, 2,308

Donation-Minor-Acceptance-Revocation-Fideicommissum-Single and separate fideicommissa-Death of a fideicommissary-Devolution of share-Jus accrescendi.

A gift of immovable property by a father to his minor son and accepted by a maternal uncle on the minor's behalf without appointment by lawful authority is invalid for want of lawful acceptance, the uncle not being a natural guardian.

Where, some time after the execution of a deed of gift, the donors purported to execute a deed of revocation unilaterally and, on the same day, the donee accepted from the donors a new deed of gift of the properties covered by the earlier gift, subject to new conditions-

Held, that the donee must be regarded as being a party to the revocation of the earlier deed of gift.

Where the direction in a fideicommissary deed of gift was that on the death of the fiduciarius the gifted property should devolve on three brothers " in equal shares ", and one of the fideicommissarii predeceased the fiduciarius-

Held, that the gift was not one of a disposition of one share of the whole to each of the three brothers, but a gift of the whole to the three brothers jointly with benefit of survivorship. It followed, therefore, that the interest of the deceased brother, assuming that he had a vested interest when he died, did not devolve upon his heirs, but on his surviving brothers. Tillekeratne v. Abeyesekere (1897) 2 N. L. R. 313, followed.

APPEAL by special leave from a judgment of the Supreme Court. The judgment of the Supreme Court is reported in (1948) 50 N. L. R. 97.

Stephen Chapman, for the plaintiff appellant.

James Comyn, for the 2nd, 3rd and 4th respondents.

Cur. adv. vult.

122

October 6, 1952. [Delivered by SIR LIONEL LEACH]-

The appellant appeals by special leave from a judgment of the Supreme Court of Ceylon, dated the 13th October, 1948, which allowed an appeal by the second, third and fourth respondents from a decree of the District Court of Jaffna, dated the 7th March, 1947, and dismissed a cross-appeal which he had preferred.

The action out of which the appeals to the Supreme Court arose was instituted by the appellant for a declaration that certain land situate at Polikandy is the common property of himself and the first respondent and for an order for partition. The first respondent is a brother of the appellant. At the commencement of the proceedings he was the only defendant and he accepted the averments contained in the plaint. The second, third and fourth respondents are the sons of a deceased brother named Kanthavanam (or Kandavanam). They applied to be made parties and were joined as the second, third and fourth defendants respectively. It will be convenient to refer to them as the contesting respondents. They denied the validity of the claim advanced by the appellant and contended that the title to the land was in them. It had, they said, belonged to their father and had devolved on them on his death.

The District Judge held that the appellant and the first respondent were each entitled to a four-ninth share in the property and the contesting respondents jointly to the remaining one-ninth, although they had not made any such claim in the alternative. He left the parties to bear their own costs. The Supreme Court held that the contesting respondents were entitled to the land to the complete exclusion of the appellant and the first respondent, and consequently allowed their appeal with costs. The appellant asks for the restoration of the findings of the District Judge, except as regards the one-ninth share allotted to the contesting respondents. He maintains that

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