039-NLR-NLR-V-36-MAJEEDA-v.-PARAMANAYAGAM.pdf
196
DRIEBERG J.—Majeeda v. Paramanayagam.
1933Present: Drieberg J. and Maartensz A.J.
MAJEEDA v. PARAMANAYAGAM.
Application for restitutio in integrum.
D. C. Colombo, 50,571.
Restitutio in integrum—Muslim married woman—Minor—Mortgage bond
executed with husband—Relief from contract—Proof of damage.
Where a Muslim woman married and under the age of twenty-oneentered into a contract with the assistance of her husband,—
Held, that relief from the contract must be sought by way ofrestitution.
To obtain such relief there must be proof of damage, loss, orprejudice.
rjlHIS was an application for restitutio in integrum.
N. E. Weerasooria (with him Nadarajah), for petitioner.
Chelvanayagam, for the respondent.
Cur. adv. vult.
November 15, 1933. Drieberg J.—
The petitioner, the first defendant, is the wife of the second defendant.Judgment was entered against them on a mortgage bond executed bythem by which the petitioner hypothecated land belonging to her. Thejudgment was obtained on a warrant of attorney to confess judgmentgiven by the petitioner and her husband. The petitioner was bom onAugust 28, 1913, and still is under twenty-one years of age. The applica-tion for restitution is made on the ground that when she mortgaged herproperty and granted the warrant to confess judgment she was a minorwithout the capacity to enter into such contracts. The petitioner is aMuslim and did not attain majority by marriage (Narayanen v. ScreeUmma).
(1920) 21 S. L. R. 439.
DRIEBERG J*—Majeeda v. Paramanayagam.
m
The position is complicated by the fact that though for purposes ofcontract she is a minor, she is for the purposes of actions brought by oragainst her considered a person of full age. This is the consequence ofsection 502 of the Civil Procedure Code which enacts that for the purposesof chapter XXXV, which deals with actions by and against minors, a minoris deemed to have attained full age on attaining twenty-one years or onmarriage or on obtaining letters of venia aetatis. There is nothing toexclude the application of this provision to Muslims and it follows there-fore that no objection can be taken to her having been sued and judgmentobtained against her as if she was of full age without the appointment ofa person to be her guardian for the action and to act on her behalf in theconduct of the case.
If the petitioner had not given a power to confess judgment but hadappeared on summons and consented to judgment she could not apply forthe relief on the ground of her minority for she could have raised thatdefence in the action, the law regarding her as competent to protect herinterests in an action without the assistance of a guardian. But Mr.Weerasooria contends that as the result of giving the power to confessjudgment she had no opportunity of defending the action on the groundthat she had no capacity to contract, that though she could not questionthe regularity of the proceedings in the action she could seek relief byrestitution from the mortgage bond and the warrant to confess judgmentupon which the judgment was obtained. She says she was not aware ofthe institution of the action until the property mortgaged was advertisedfor sale.
I see no reason why relief by restitution should not be available to awoman who though married is still a minor where the circumstances ofthe case justify it.
In the case of a minor a contract made without the assistance of aguardian, natural or appointed, is ordinarily ipso jure null and void, butwhere a minor contracts with the assistance of a guardian with the dueobservance of all the other essentials of a contract, relief from the contractmust be sought by the process of restitution, and for this, among otherconditions, it is necessary for the minor to prove that he has sufferedserious loss, damage, or prejudice (Maasdorp’s Institutes of Cape Law(1907 ed.), vol. in, pp. 14 and 59, and the other party to the contractis entitled to be indemnified and placed back in his original position.
. It is not possible to regard a contract such as this by a married Muslimwoman under the age of twenty-one in the same light as a contract by aminor, subject to the common law, made withopt the assistance of &natural or appointed guardian. Her husband joined her in the contract,her minority is not an absolute one for all purposes, for the law regardsher as capable of appearing in Court without the assistance of a guardian—for the purpose of this application she is represented by a guardianad Htem, but it was open to her to have made the application without one.For the relief which she seeks by way. of restitutio in integrum she hasfailed to make out a case, Jjt fact, she-has not attempted to do so. Shedoes not say that she was not aware of the consequences or*signing thebond or the warrant to confess judgment, nor does she suggest that she
19.8
DALTON J.—Mendis v. Punehifteua,
did not obtain the full benefit of the loan. She relies solely on the bondbeing, as she contends, null and void. The respondent in his affidavitsays that part of the consideration on the bond, which was for Rs. 1,750,was used in obtaining two days later an assignment to her husband of alease on very advantageous terms, for which Rs. 850 was paid. Itsecured him, for a monthly pay of Rs. 25, property which gave a monthlyrental of Rs. 45 and also the right to be paid at the end of the term a sumof Rs. 1,100 by the original lessee and held by the lessor. The. petitioner’shusband assigned his interest in this lease to the petitioner’s father whois her guardian ad litem in these proceedings.
The application is dismissed with costs.
Maartensz A.J.—I agree.
Application dismissed.