10th December 2000

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Give the disabled their place in society

The International Day of the Disabled was observed last Sunday, December 3, with Sri Lanka focusing on its estimated 1.7 million disabled throughout the island. Alarmingly, children under 14 years make up around half the total number of disabled in the country. This means that 750,000 children under 14 are disabled in some way and need attention to ensure their needs and rights are being met.

But these numbers may be just the tip of the iceberg. Some areas are worse off than others. According to data from the Mahaweli areas, around one in four people has disabilities of some kind. Data reveals that out of a total population of 175,325 in Udawalawe, 25.3% are disabled. Lack of comprehensive data from the conflict affected north and east and so-called Òborder areasÓ makes it difficult to even estimate the numbers of disabled adults and children. 

Five years ago, the Min- istry of Social Services launched a national Community-Based Rehabilitation (CBR) programme in eight of Sri LankaÕs nine provinces. The programme is implemented through 125 of its 307 Divisional Secretariats. The national CBR programme identifies children and adults with disabilities and provides training for community-based volunteers and other groups in community-based rehabilitation. Nutrition programmes, medical clinics, provision of wheel chairs, hearing aids, crutches etc. are provided.

In 1998, the ministry spent US $ 1.2 million on this programme. Part of the Rs. 24,879 million (US $ 318 mn.) health money was on drugs and equipment, and providing resources for research and development.

But the first CBR programmes for the disabled went as far back as 1975 in System ÔGÕ of the Mahaweli in the Polonnaruwa District.

The programme was conducted with the help of the Health, Social Services and Education Departments, etc. Though the System ÔGÕ project was about 150 km. away from Colombo, doctors and physiotherapists voluntarily came from Colombo and conducted clinics, counselling and follow-up activities regularly.

A pilot project in which over 400 children with various disabilities were supported very closely was launched. They attended regular clinics and were provided with hearing aids and various other equipment. Parents were given training to give physiotherapy and necessary exercises to their disabled children. Teachers were trained with the help of the special education unit of the Ministry of Education on the Braille system and how to provide integrated teaching for disabled children without drawing undue attention to them in a class of ÒableÓ children. 

Other Mahaweli areas began to implement similar programmes and more attention was paid to improving social standards for these children by arranging participatory opportunities and social activities. A CBR programme in Walawe included a school for 24 disabled children with two trained teachers to run it.

In 1992, the international NGO, Save the Children (UK), joined the Walawe CBR Programme. Save the Children provided much needed training for 25 health volunteers on CBR and gifted 35 bicycles for their field visits. The NGO has been supporting this programme for the last eight years and hopes to put it forward as a good working model of community based rehabilitation of disabled children. 

Other organizations such as Shia Foundation, WomenÕs Development Centre and Navajeevana have played an important role in making the programme a success.

But like many programmes at the time, the Save the Children programme for disabled children focused on providing services and welfare rather than on inclusion of the disabled in the mainstream of society. 

The SC programme has changed over the years to reflect new knowledge that the disabled need to be included in society and that rehabilitation should take into account both their needs and their rights.

With this new approach, save the children Fund started its work with Mahaweli Authority in Embilipitiya, Ratnapura District in early 1997.

ÒThe programme aims to improve the living standard of disabled children of Embilipitiya by the end of 2000 and to improve the socio-economic condition of their parents,Ó explains Mr. Nadaratne, Senior Programme Officer of Save the Children. 

He adds that Save the Children plans to document the learning from the programme to help policy formulation and lobbying for new approaches to rehabilitating the disabled.

ÒThe programme has been in operation for almost three years and has had a significant impact, Mr. Nadaratne says. ÒIt is special in that it addresses the needs of disabled and ÒableÓ children together and therefore both groups have benefited.Ó

The Social Services Ministry is forging ahead with investment and support for CBR programmes around the country. Mrs. V.Jegarasasingham, Addl. Secretary for the Ministry of Social Services agrees that the CBR programmes need to be improved on.

ÒThere needs to be better follow-up after training community-based volunteers to make sure that the benefits of the programme reach the disabled children and adults,Ó she explains. 

ÒThe State cannot bear sole responsibility for addressing the needs of the disabled,Ó she points out, calling for more community participation.. 

Law and Citizen 

Gift and take

Dr. C. Ananda Grero

If one looks at a ÒDeed of GiftÓ, it is clearly seen that it speaks of the love and affection the donor has towards the donee (one who gets the gift). 

The former grants or gifts what is mentioned in the said deed. Both movable and immovable are given as gifts. Particularly when the gift is immovable, like land, it must be given (donated) by way of a deed of gift attested by a Notary Public. Legally speaking, a donation is an agreement whereby anyone, through benevolence or generosity gives or grants to another who accepts it. 

It is very important that what is given as a gift or a donation must be accepted. Without a proper acceptance or in the absence of acceptance there is no valid donation. Making a gift and acceptance, or giving and taking should be clearly seen. Unless the donee accepts the gift, it does not become a valid donation and in fact, due to non-acceptance the donation fails to take effect. There is no difficulty when a donation is given by a major to another major who accepted it. Very often in the deed of gift itself, it appears that the donee thankfully accepted the donation. This indicates that what was given or donated was duly accepted. 

But when the donee is a minor, he on his own is not competent to accept it. However it could be accepted by a person who is legally entitled to accept it on his behalf.

The Roman Dutch Law, which is the common law of Sri Lanka, permits a donor to name in the deed of gift itself a person by name to accept, the gift on behalf of a donee, who is a minor at the time of making such donation. Then the person so named is capable of accepting the gift on behalf of the minor, donee. A certain land belonged to citizen Simon Ganegoda, whose wife was citizen Matilda. He, by a deed of gift, donated this land to his three children namely Somawathie, Swarna and Palitha. By another deed he gifted another land to his wife Matilda and this was accepted by her.

At the time the first deed of gift was executed, Swarna and Palitha were present and they accepted the gift by placing their signatures on the deed. Each of them got one fourth of the share of the land and the balance half share of the land was gifted to Somawathie, the eldest daughter. 

She was not present at the time the deed of gift was executed, but her mother Matilda signed the deed and accepted on behalf of Somawathie. All these were undivided shares and the land was owned by the three of them. 

The donor citizen Simon Ganegoda after some time executed another deed of gift whereby he rectified the earlier deed of gift dated 15.10.1960. The subsequent deed was executed in the year 1961. According to the deed of gift executed in 1961, it was stated that as the first donee Somawathie did not request and authorize her mother Matilda to accept the gift on her behalf, the earlier deed of gift was treated as void (not valid) and of no effect. 

Therefore the donor Simon Ganegoda, executed a subsequent deed of gift dated 10.10.1961. According to this deed, the land was given in equal shares to Swarna and Palitha, daughter and son of the donor. The donorÕs wife Matilda too signed this deed. As a result Somawathie, the eldest daughter did not get any share of the land, which was the subject matter of the deed of gift. Somawathie did not know about the subsequent deed of gift and she only came to know when her brotherÕs (PalithaÕs) three children tried to sell the half share of the land to some one. Palitha had gifted his share in equal shares to his three children. Both Simon Ganegoda and his wife Matilda had died after the subsequent deed of gift. Somawathie, after hearing that half share of her land was going to be sold, instituted a partition case in the District Court of Panadura where the land is situated. 

She relied on the former deed of gift executed on 15.10.1960 and claimed the undivided half of the land. The balance half share was shown to her sister Swarna and her brother Palitha. She made the three children of Palitha as 3rd , 4th and 5th defendants in the case as Palitha had gifted his share to them and that deed was registered in their names. Swarna was the 1st defendant and Palitha the 2nd defendant in this case. 

The contesting 3rd to 5th defendants claimed that they were entitled to half share of the land on a deed of gift given by their father Palitha who got his share (half share) by the deed of gift executed on 10.10.1961. They in their statement of claim, stated that the plaintiff Somawathie was not entitled to any right to this land as the deed she claimed had been rendered void and of no effect by the subsequent deed dated 10.10.1961. They asked that the plaintiffÕs action be dismissed. After trial the District Judge gave judgment in favour of the plaintiff and gave one half to the plaintiff (Somawathie) and one fourth (1/4 share) share each to the first defendant and second defendant. However the second defendantÕs share was made subject to the deed of gift executed in favour of the third to fifth defendants. The said defendants appealed against this judgment to the Court of Appeal. A similar matter came up before two judges of the Appeal Court, namely Justice Ranjith Dheeraratne (now a Supreme Court Judge) and Justice B.E. de Silva.

In the case of Bertie Fernando and others Vs Missie Fernando and others, reported in (1986) 1 Sri Lanka law Reports at page 211 the Court of Appeal had to decide (a) whether there was proper acceptance of the earlier deed of gift by the donee (like Somawathie), (b) who has to prove that there was acceptance by the donee, (c) whether the donor (like Simon Ganegoda) of the earlier deed of gift could revoke the deed of gift not accepted by the donee (like Somawathie) and make any other disposal of the same property. Justice Dheeraratne who wrote the judgment looked into the evidence given by the witnesses before the District Judge and came to a finding that the donee (like Somawathie) had not authorized her mother to accept the donation on her behalf, although her mother (like Matilda) had signed this deed and accepted what was donated on behalf of her daughter. In fact it was revealed that it was the donor (like Simon Ganegoda) who asked the mother (his wife) to accept it on behalf of the daughter (like Somawathie). 

In fact the daughter was not present at the time of the execution of the said deed of gift (i.e., the earlier deed of gift). He held that the burden of proving the acceptance of the deed of gift is on the party (i.e., like Somawathie) claiming rights under the said deed. He also held that once the deed of gift marked P3 (i.e., the earlier deed) failed for want of acceptance on behalf of the plaintiff like (Somawathie) then the other question was the validity of the subsequent deed of gift marked 6D1 (in that case) which was in favour of the contesting defendants (like the 3rd to 5th defendants). He held that the effect of non-acceptance of the earlier deed of gift by the donee (like Somawathie), enable the donor (like Simon Ganegoda) to revoke the gift unilaterally (one sided) and to make any other disposal of such property. Thus the earlier deed P3 failed due to non-acceptance and the plaintiff (like Somawathie) did not get any right under that deed. The Court of Appeal allowed the appeal and dismissed the plaintiffÕs (SomawathieÕs ) action with costs. Justice B.E. de Silva agreed with judgment of Justice Dheeraratne. (Names are fictitious) 

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