1952 Present : Gratiaen J. and Pulle J.

MOHAIDEEN, Appellant, and MARICAIR et al., Respondents

S. C. 107 Inty.-D.C. Batticaloa, 597

Donation-Gift by father to his minor child-Acceptance.

Under Roman-Dutch law, a father, when he makes a donation to his minor child, can authorise some other person by " a special mandate " to accept the gift on the child's behalf.

APPEAL from a judgment of the District Court, Batticaloa.

H. V. Perera, Q.C., with C. T. Olegasegarem, for the petitioner appellant.

N. E. Weerasooria, Q.C., with M. A. M. Hussain, for the respondents.

Cur. adv. vult.

July 18, 1952. GRATIAEN J.-

By a notarial conveyance No. 11082 dated 7th March, 1944, the 1st respondent purported to donate certain lands to his minor daughter Pathumma reserving to himself a life-interest in the properties. Pathumma married the petitioner shortly afterwards, and on her death he applied for letters of administration in respect of her estate claiming, inter alia, that the immovable property in question formed part of her estate subject to the life-interest reserved therein. The 1st respondent objected to the inclusion of the property on the ground that the gift was inoperative as it had not been validly accepted by or on behalf of Pathumma during her lifetime. The learned Judge upheld this objection, and the present appeal is from his decision on this issue.

Although the parties to the transaction under consideration are Muslims, it is common ground that the validity or otherwise of the gift must in the circumstances of this case be decided in accordance with the principles of the Roman-Dutch Law.

The 1st respondent has given evidence explaining the procedure adopted by him in having the gift accepted on the face of the deed by an uncle of Pathumma named Ibralevvai on her behalf. " I took Ibralevvai ", he said, " to the notary's office, to sign the deed as a witness. Later the notary wanted a guardian to accept the donation on behalf of my daughter . . . . and I asked him to make Ibralevvai the guardian and to draw up the deed". Ibralevvai accordingly, at the express request and with the full concurrence of the 1st respondent who was the donor as well as the natural guardian of the donee, formally accepted the gift in the following terms :-

" As the said . . . . Pathumma is at present a minor, I Packirthamby Ibralevvai, her uncle, do hereby thankfully accept this donation subject to the life-interest mentioned above for and on her behalf"'

It is abundantly clear from the admitted facts that the 1st respondent genuinely desired to gift the property to his minor daughter and had taken such steps as were considered necessary, on the advice of a notary public, to divest himself of the" title in her favour under a conveyance which was expressed to be absolute and irrevocable. Can he now be heard to attack the validity of the transaction on the ground that the person whom he had himself selected to accept the gift on her behalf was disqualified from so doing because he was not in truth her natural guardian ?

The Roman-Dutch Law relating to donations by a father in favour of his minor children takes a more liberal view than the early Roman Law

which had refused to recognise a son or daughter who was still in familia as having any existence independently of the paterfamilias. The historical development of the subject in South Africa has been fully discussed by de Viliers C.J. in Slabber's Trustee v. Neezer's Executor 1[(1895) 12 S. C. 163.] where, after consideration of the relevant authorities, he concludes as follows :-

" In regard to donations proper as distinguished from remuneratory donations, the conclusions to be deduced from the latest authorities are these. They require registration in the Deeds Office if they exceed the sum of £500 in value, and they are invalid and revocable to the extent of such excess, unless so registered. A donation by a father