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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
MAN UHL NATIVE! et al. v. ADRIAN HAMY et id.
Sinne Lebbe Mabtekab, Added Defendant, Appellant.
D. C., Kalutara, 3,742.
Minor—Alienation of immovable property without leave of Court—Invalidity—Prescription.
Alienation of immovable property by a minor without the leaveof Court is void according to the Roman-Dutch Law.
Andris Appu v. G. Abanchi Appu1 mid Mustapha Lebbe v.Martinus* followed.
HTS was a partition suit in which the plaintiffs and the defend-ants sought to partition a land called Mahakumbura. The
added defendant intervened and claimed a share by right of inherit-ance. The plaintiffs alleged in reply that the added defendant,together with his mother and brother, by deed No. 2,066, datedJuly 2, 1864, gifted his share by way of dowry to his sister Alima.Umma Natchia, from whom the plaintiffs claimed. The addeddefendant alleged that at the date of the execution of the deed hewas a minor, and that it was therefore void.
The District Judge (P. E. Peiris, Esq.) held that the addeddefendant was at the date of the execution of the deed a minor,but that the deed was valid, as it had been entered into with theauthority of his mother, the natural guardian, and the addeddefendant Lad not taken any steps for forty-five years to rescind it.He accordingly disallowed the added defendant’s claim.
A. St. V. Jayeioardene, for the added defendant, appellant.
H.'A. Jayewardene, for the plaintiffs, respondents.
Cur. adv. vuti-.
August 24, 1909. Hutchinson C.J.—
The defendant A. L. M. Sinne Lebbe Marikkar appeals against ajudgment dated April 6,1909, by which it was declared that he wasbound by a deed which was alleged to have been executed by himon July 2, 1864, when he was a minor.
The action is one for partition of a small piece of land. Theappellant intervened in the action and claimed a share. The
■ (1902) 3 Brotme 12.* (1903) 6 N. L. R. 364.
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1909. plaintiffs filed a reply in his claim, alleging that He and his motherAugust 24. and his brother had by the deed of 1864 given their shares to hisHutohinbon 3*at6r> wk° sold it to the plaintiffs.
O.J. On March 29 last the record says: “Issues to be decided are:Was the fourth defendant, ‘ the appellant,’ a minor at the time of theexecution of R. S. 1, i.e., the deed of 1864; if so; ^s the deed void asagainst him ? ” The Court in settling these issues seems to assumethat the deed in fact was executed by the appellant. There is norecorded admission or evidence that he executed it, and he deniedit. on oatb. As the deed was forty-five years old and was producedby the plaintiffs, section 90 of the Evidence Ordinance would applyto it; although the signature omit which is said to bethe appellant’sis illegible, the attestation by the notary is in proper form. TheJudge in his judgment evidently disbelieves the appellant’s denial,and makes no reference to it; the petition of appeal does not suggestthat he did not execute the deed, and I think it is sufficiently provedthat he executed it.
It would have been better if the issues which were raised in thepleadings had been tried together instead of piecemeal; for theevidence on one of them might be very important for the decision ofthe others. Both the plaintiffs and the appellant set up a title byprescription; but the Judge has not begun to try that issue, whichwill, perhaps, be the decisive one. If the deed of 1864 was, as theJudge held, voidable by the appellant, the fact that it was neveracted upon, or that it was always acted upon—that the granteesunder it have had possession under it, or that the appellant has hadpossession notwithstanding the deed—would be decisive of the issuewhether he was bound by it.
The Judge has found that at the date of the deed the appellant wasa minor. The deed is called a ‘ ‘ deed of dowry,” and by it PattumaNatchia, the widow of S. L. Amadu Lebbe Marikar, and her two sons,the appellant and another, give as “ dowry ” certain lands to herdaughter and her intended husband, who are to be married accordingto our “ custom and religion as agreed by us.” This is not a deed of .pure gift without consideration. There is no evidence as to whetherthe intended marriage took place, or as to the possession of the landsince the date of the deed; but the deed is produced by the plaintiffs,who claim under it. Under these circumstances there ought to bereasonably clear evidence of the appellant’s age, if the deed is to beupset on the ground that he was a minor in 1864. He called aswitnesses a Police Vidane, who produced what he calls “ the house-holders’ lists,” in which the appellant’s name appears as forty-threeyears old in 1894 and fifty-eight in 1907. It doesnot appear that theobject or one of the objects of those lists is to record the ages ofhouseholders, and this evidence seems to me to be worthless. Theonly other evidence is that of the appellant, who swears that atpresent he is less than sixty, which would make him less than sixteen
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in 1864. He admits that he has been exempted from poll tax since1895, but explains that that was because he had fever and wasanaemic. On this evidence the Court found that he was a minor in1864; and as there was no evidence to contradict that of theappellant, I think we must accept the finding, although the evidencein support of it would not have satisfied me. If, then, the appellantwas a minor when the deed was executed, I concur with Middleton J.in holding that it was void.
When the District Judge said “ issues to be decided ” are so andso, he cannot have meant that those were the only issues, for it isobvious that there was at least one other which would have to bedecided. The judgment under appeal should be set aside, and theease sent back for trial. And until great unwillingness, because 1am sure the appellant has no merits, I agree that he should have hiscosts of tills appeal.
This was a partition action, and the added defendant-appellantintervened claiming a share of the land in question.. The plain-tiffs replied that by deed of gift No. 2,066 dated July 2, 1864, themother of the added defendant, his brother, and himself granted anentire ;j share of the land to the vendor to the plaintiff. This Jshare would include the -37a- share claimed by the added defendant-appellant who intervened. Both the plaintiffs and the addeddefendant-appellant alleged prescriptive possession of the land inquestion.
The issue settled was : Was fourth defendant a minor at the timeof the execution of R. S. 1 (which is the deed pleaded by theplaintiffs); if so, is the deed void as against him ?
The District Judge held that the fourth defendant was a minorat the date of the execution of R. S. 1, and on the authority ofMuttiahOhetty v. De Silva et of.1 decided that the grant made by thefourth defendant was binding on him. On the argument of theappeal, counsel for the respondents contended that the finding ofthe District Judge as to minority is not justified by the evidence,as the District Judge gave his decision, as he says, on the evidenceled, which did not, it is said, prove that the added defendant was aminor when the deed was executed. I think, however, we musthold that the Judge was justified in his decision, which must havebeen undoubtedly formed to some extent on the personal appearanceof the added defendant.
If the added defendant was not a minor at the date of the deed,he must have been at least sixty-six years of age when he gave hisevidence, and liis personal appearance must have been a strongfactor in the Judge’s decision. I do not feel, therefore, that I am
1 (1895) 1. N. L. R. 358.
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1S09. able to say that the Judge was wrong on this point. This being so-,August 24. the question is whether a minor's immovable property can be alien-Middmton ated by him or his parent or guardian without the authority of theJ. Court. In my opinion the balance of authority is to the effect thatit cannot (see 3 S. C. 0. 46 and 6 N. L. B. 367, and the authoritiesquoted there; see also 3 Browne. 12 and 150). I think therefore thedeed R. S. 1 must be held void.
In my opinion this case was not properly tried, as the learnedJudge appears to have endeavoured to decide the case piecemeal,without getting at the real facts in issue between the parties. Bothparties pleaded prescription, and no issue to that effect was settled.If the plaintiff in 1907 was fifty-eight, he would have been twenty-one years of age in 1870, and he has apparently since then sat downcomplacently without complaining of a deed which he now, in 1909,asserts is void. It may be, of course, that he has been in fact inpossession all the time, notwithstanding the deed R. S. 1.
I think the judgment should be set aside, and that the case shouldgo back for the settlement and trial of an issue as to whether theplaintiffs and their predecessor in title, Alima Umma Natchia, havehad adverse possession of the property in question so as to availthem against the title by inheritance of the fourth defendant. Thefourth defendant should, I think, have his costs of the appeal; theother costs will be costs in the cause.
Appeal allowed; case remitted.
MANUEL NAIDE et al. v. ADRIAN HAMY et al