HOWARD C.J.—KaUmderlewai v. Amummah.
1947Present: Howard C.J.
KALENDERLEVVAI, Appellant, and AWUMMAH, Respondent.
S. C. 136—C. R. Kalmunai, 2,514.
Minor—Marriage of Muslim—Attainment of majority—Promissory Note—Bills of Exchange Ordinance, section 22—Age of Majority Ordinance(Cap. S3), ss. 2, 3.
A Muslim minor does not attain majority by marriage. This ruleis not affected by section 22 of the Bills of Exchange Ordinance.
PPEAL from a judgment of the Commissioner of Requests,Kalmunai.
Cyril E. S. Perera (with him M. A. M. Hussein), for the plaintiff,appellant.
No appearance for the defendant-respondent.
Cur. adv. vult.
October 8, 1947. Howard C.J.—
The plaintiff in this case appeals from a judgment of the Commissionerof Requests, Kalmunai, dismissing his action with costs. The actionwas brought on a promissory note dated January 3, 1943, in which thedefendant promised to pay a certain Meeracandu Athambandu a sum ofRs. 120 with interest at the rate of 18 per cent, per annum. The pro-missory note in question was endorsed to A. Sulaiha Ummah who inturn endorsed it to the plaintiff. In her reply to the plaint the defendantstated that at the time of the execution of the said promissory noteshe was a minor and therefore did not incur any liability. The learnedCommissioner held that the note was executed by the defendant whowas a Muslim without her father’s consent and hence was not binding onher.
Mr. C. E. S. Perera has argued that, although the defendant was underage at the time of the execution of the promissory note, she was a majoras she was married. The law with regard to capacity to contract in the
HOWARD CJT.—Kalenderlevvai v. Atnmmmah.
case of the promissory note is the Roman-Dutch Law. In Narayanen v.Saree Umma1 it was held that a Muhammadan in Ceylon does not obtainmajority by marriage and therefore a Muhammadan under twenty-oneyears of age cannot validly incur liability by contract. De Sampayo J.in his judgment referred to section 1 of Ordinance No. 7 of 1865 (nowChapter 53) which fixes the age of majority at twenty-one years anddeclares that except as in section 2 excepted, no person shall be deemedto have attained his majority at an earlier period, any law or customto the contrary notwithstanding. The exception provided by section 2of the Ordinance is as follows : —
“ Nothing herein contained shall extend or be construed to preventany person under the age of twenty-one years from attaining hismajority at an earlier period by operation of law. ”
At p. 440 the learned Judge went on to say that under Roman-DutchLaw emancipation by leaving the parental roof and openly carrying onany trade or business are well-known instances of attainment of majorityby operation of law. But as the Roman-Dutch Law does not apply toMuhammadans and as these modes of attaining majority are unknownto the Muhammadan law, there was no law by operation of which thesecond defendant could be said to have attained his majority by marriage,and the exception provided in the Ordinance is therefore inapplicable tohim. De Sampayo J. also stated that he could not assent to the propo-sition that the special laws governing Muhammadans in Ceylon are onlyconcerned with such matters as inheritance and matrimonial affairs andthat where there is a casus omissus, the Roman-Dutch Law should beapplied even to Muhammadans. He also said : —
“By a long course of judicial practice, which cannot be questioned,the original sources of Muhammadan Law and the recognized commen-taries thereon have always been referred to as authorities on any pointsnot provided for in the Muhammadan Code of 1806, which thoughcalled a Code, is not, and does not profess to be a complete embodimentof the laws applicable to Muhammadans. Even as regards inheritancethe principles of the Muhammadan Law may be invoked in any case notspecially dealt with in the Code. Sarifa Umma v. Mohamedo Lebbe 2;Pereira v. Khan2. That being so, there is no casus omissus such ascontended for. For the Muhammadan Law does, in fact, provide forthe attainment of majority so far as it intends to do so, and to applythe rule of the Roman-Dutch Law as to the attainment of majorityby marriage would, in effect, be, not to supply any omission in theMuhammadan Law, but to add to it.”
Mr. Perera concedes the authority of the judgment of De Sampayo J.in Narayanen v. Saree Umma (supra) but contends that it is no longerthe law in view of the provisions of section 22 of the Bills of ExchangeOrdinance which is worded as follows: —
“22.(1) Capacity to incur liability as a party to a bill is co-
extensive with capacity to contract.
> (1920) 21 N. L. R. 439.* (1878) 1 S. C. C. 8.1.
» (1905) 2 Bal. 188.
Arumugaperumal v. The Attorney-General.
Where such capacity is to be determined by the law of Ceylon,it shall be determined by Roman-Dutch Law as administered in Ceylonsubject to the provisions of any Ordinance affecting that law.
Provided that nothing in this section shall enable a corporationto make itself liable as drawer, acceptor, or indorser of a bill, unlessit is competent to it so to do under the law for the time being in forcerelating to corporations.
Where a bill is drawn or indorsed by a minor or corporationhaving no capacity or power to incur liability on a bill, the drawing orindorsement entitles the holder to receive payment of the bill, and toenforce it against any other party thereto. ”
The Ordinance was enacted on March 1, 1928, after the decision in thecase I have cited. I have not had the benefit of an argument on behalfof the respondent. I cannot, however, accept Mr. Perera’s contentionthat the words in sub-section (2) “ shall be determined by Roman-DutchLaw as administered in Ceylon” modifies the law previously in forcein regard to the attainment by Muhammadans of majority. The questionwas raised but not decided in Shorter & Co. v. Mohomed' Roman-DutchLaw as administered in Ceylon did not apply in regard to the attainmentof majority by Muhammadans. In fact it was held in Narayanen v.Saree Umma (supra) that Roman-Dutch Law could not be invoked to filla casus omissus in Muhammadan Law on this question.
For the reasons I have given the appeal is dismissed.
KALENDERLEVVAI, Appellant, and AVVUMMAH, Respondent