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Present: Lascelles C.J.
SINNO APPU v. PODI NONA et al.
63— C. R. Qalle> 6J47.
Mortgage by married woman who represented herself tobe femme sole-r-
By minor who represented himself to be of full age—Estoppel.
A party cannot by representation, any more than by other means,raise against himself an estoppel so as to create a state of thingswhich he is nnder a legal disability from creating.
A mortgage executed by a married woman who represented
herself to be a famme sole, and by a minor who represented himselfto be of full age, was held to be invalid, and the mortgagorswere 'held not to be estopped from denying the validity of themortgage.
tLAINTIFF sued on a mortgage bond the defendants, who wereX the legal representatives of the mortgagors. The defendantspleaded that the bond was invalid, as it was executed by a marriedwoman (Balahami) without the consent of her husband, and by aminor (Balahami’s son, Deonis). The Commissioner of Bequestsheld that Balahami and Deonis had represented themselves to bewidow and major respectively at the time of borrowing the moneyfrom the plaintiff, and that the plaintiff was ignorant of thedeception; and he entered judgment for the plaintiff.
The defendants appealed.
Bawa, K.C., for the appellants.—Wijesooria v. lbrahimsatL onwhich the Commissioner of Bequests relies, does not apply to thefacts of this case. The circumstances of that case are very differentfrom this. There the Supreme Court distinctly held that the minorwas guilty of fraud, and that he was trying to take advantage ofhis own fraud. See judgment of Middleton J. Estoppels cannotover-ride the law of the land. A mortgage by a married woman isinvalid (see Silva v. Dissanayake * Marie Kangany v. KuppasamyKangany3).
A. St. V: Jayewardene, for the plaintiff, respondent.—In Silva v.Dissanayake 2 and Marie Kangany v Kuppasamy Kangany 3 therewas no question of fraud. But in this case Balahami and Deonisrepresented themselves to be widow and major respectively at thetime of borrowing the money. i
i (1910) 13 N. L. R, 195.*(1892) 2 C. L. R. 123.
* a906) 10 N. L. R. 79.
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IMS. Deonis could not have repudiated the mortgage bond, a? he had'Sinno Appu represented himself to be of full age. Wijesooria v. Ibrahimsa1 isAr<wa a binding authority.
Counsel also referred to Don Garolis v. James,1 and the Evidence-Ordinance, section 115.
Baton, K.C., in reply.
Cut. adv. v'ult.
May 15, 1912. Lasceli.es C.-J.—
This is ah appeal from a judgment on a mortgage bond, in whichthe defence was that one of the mortgagors, Balahami, was amarried woman, and had executed the bond without the consent ofher husband, and that the other mortgagor, Deonis, Balahami’s-son, was a minor when he executed the instrument. The learnedCommissioner has given judgment on the bond, on the groundthat there was misrepresentation on the part of the mortgagors.
– He accepts the evidence that Balahami described herself as ~awidow to the notary, and that Deonis stated that he was of full age.
In my opinion the judgment of the learned Commissioner cannot besustained. By section 9 of “ The Matrimonial Bights and Inherit-ance Ordinance, 1876, ” a married woman may dispose of herimmovable property inter vivos with consent of her husband, “ butnot otherwise and a minor is also under a common law disabilityas regards the disposal of his property.
It is a well-settled principle of law that a party cannot byrepresentation, any more than by other means, raise againsthimself an estoppel so as to create a state of things which be isunder a legal disability, from creating. On this principle it has-beenheld that a corporate body cannot be estopped from denying thatthey have entered into a contract which it was ultra vires for themto make (Canterbury Corporation v. Cooper3); that a married womanprotected by a restraint on anticipation cannot cither by deed orrepresentation estop herself from denying facts which, if true, wouldput an end to the restraint (Cannon v. Farmer*); and the sameprinciple is applicable, subject to certain exceptions and equitableconsiderations, to contracts entered into by minors. In Wijesooriav. Ibrahimsa,* on which the learned Commissioner relies, the ratiodecidendi was that the Court would refuse its assistance to -a personwho was applying to the Court to help him to obtain the-benefit ofhis own fraud. ‘
The present case is entirely different, for here the plaintiff, onthe strength of the mortgagors’ misrepresentation as to their status,is asking the Court, to clothe with legality an instrument which is
> (1910) IS N. L. R. 195.* (1909) March to August'L. T. 597.
* (1909) 1 Cur. L. R. 224.*(1849) 3 Back. Rep. 698.
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in itself of no avail in law. This, I think, cannot be done in view ofthe authorities which I have cited. I would add that though thereis evidence that Deonis made an untrue statement as to his age,the evidence of fraud, in the proper sense of the word, is almost•entirely wanting so far as he is concerned. I set aside the judgment,.and dismiss the action with costs here and in the Court below.
Sinno Appuv. Podi Nqnt*
SINNO APPU v. PODI NONA et al