LAW AND CITIZEN

A gift! For me!

Dr. C. Ananda Grero

Legally speaking donations could be divided into two main categories: (i) Donation Mortis Causa and (ii) Donation Inter Vivos. The first kind of donation is made in contemplation of death (of the donor) and it takes effect if the donor dies. If he lives it reverts to him. On the other hand the second kind of donation takes effect immediately on due acceptance by the donee.

There are a few essentials to effect a valid donation. 

(a) There should be absence of valuable consideration. The gratuitous nature is the essence of a donation. It is given through generosity or benevolence.

(b) There should be two parties to this contract (i.e., the donor and the donee). Therefore the capacity contract is essential. For example an insane person or a minor is not entitled to make a donation because insanity and minority are regarded as conditions that prevent the capacity to make a contract. 

(c) The donation must be accepted by the donee or by some other person who is qualified to accept on behalf of the donee. 

(d) The thing donated must be capable of being donated. 

(e) The donation must be executed in proper form. In other words, the requirements of the law must be satisfied. 

The acceptance of a donation is very necessary. According to Voet (the famous jurist), the acceptance of a donation should be done by the donee (or by another person qualified to accept on behalf of the donee) during the lifetime of the donor, as otherwise the will of the donor and that of the donee would not be united. If the will of both is not united then there is no contract. The exception to this rule is, that the acceptance is postponed till the death of the donor. In that event the donee is not prevented from accepting the donation after the death of the donor

If a donation is not accepted the effect of non-acceptance is, that the donor is entitled to revoke or annul the donation and make other disposition of the properties so donated. For example if B has not accepted a land gifted to him by the donor A, then A is entitled to transfer or gift it to any other person of his choice. A donation by its nature is irrevocable or unable to be revoked. However, this general rule is subject to some exceptions. The donor is entitled to revoke a gift in the following instances:

(i) Where the donee attempts to harm the life of the donor or strikes him or attempts to ruin his estate.

(ii) When the donor of a donation of great value has a child (or children) after the donation.

(iii) Where there is malicious slander or other injuries to the donor by the donee.

(iv) The neglect of the donor in his utmost needs by the donee if he (latter) has means to maintain the former. 

(v) When the donee has damaged the honour of the donor, or has used personal violence towards him or has wasted the donor's property. 

Citizen Perera donated a land of value to his nephew Douglas, by a deed of gift and the donation was accepted. At the time of this donation, Perera had a mistress and subsequent to the donation of the land, a child was born to the mistress. After the birth of the child, citizen Perera married his mistress Matilda. He then instituted an action in the District Court of the area where he resided to set aside the deed of gift given to his nephew after four years of the birth of the said child. In his plaint it was stated that since there is a child born after the donation, he had to maintain the child and therefore he wished to get back the land which he had donated. Douglas, the defendant, in the case filed answer and prayed that the plaintiff's action be dismissed. After trial the District Judge gave judgment in favour of citizen Perera. Douglas appealed against this judgment to the Court of Appeal. A similar matter came up before the Supreme Court before two judges namely, Justice Gratiaen and Justice Gunasekera. It is reported in 54 New Law Reports at page 197. Justice Gratiaen in his judgment considered the law relating to revocation of a donation and facts of this case and pointed out that a donation is invalidated on account of the subsequent birth of children and for the purpose of cancellation of the donation (i.e. the deed of gift) the donor (like Perera) must sue for it. It was further held that as the action of plaintiff (like Perera) had been filed four years after the birth of the child it was held that the action is prescribed and therefore the judgment of the District Judge was set aside and plaintiff's action was dismissed with costs. Justice Gunasekera agreed with the judgment. Thus, citizen Perera cannot succeed in his action. Had he filed his action before the lapse of three years after the birth of the child, he could have succeeded in his action. ( Names are fictitious)

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