021-NLR-NLR-V-58-A.-R.-M.-CASSALY-Appellant-and-A.-R.-M.-BUHARY-et-al.-Respondents.pdf
2956Present : Gratlaen, J., and Gunasekera, J.
It. M. CASSALY, Appellant; and A. R. M. BUM ARY el ah,
Respondents
■ S. C. 76—D. C., Galle, 5,000 L
Minor—Power of curator to sell minor’s property—Fidcicomm issum—Unborn potentialfideicommissarics—Right of an existing fideicomtnissary to sell his spes—CourtsOrdinance {Cap. 6), s. GO (1)—Civil Procedure Code, ss. 5S2 ct scq.
Sale of a minor’s property by his curator without the proper sanction of tjioCourt is ipso jure void. If the minor subsequently seeks to vindicate title tothat property, the burden is on the alieneo to show that tho Court’s sanctionfor tho sale was validly obtained.
A person donated certain property to his son. A, subject to a fideicommissumin favour of such children of A as would be alive at tho time of A’s death. Beforothe class of potential fidcicommissarics was yet capable of ascertainment andwhen A had three sons, one of whom was a minor, application was made toCourt by a person to be appointed curator of the estate of tho minor underChapter 40 of the Civil Procedure Code “ for the purpose of selling the rightsof the said jninor’s one-third shnro ” of the property:The application was
allowed after a perfunctory inquiry, and in April 1915 the curator purportedto convoy to X. ,s all tho right, title, interest, claim and demand whatsoever ” oftho minor in the property. The fiduciary. A, did not die until 23 years later,in 1900.
Held, that tho burden of proving that tho Court had interposed its consent tothe purported sale of the minor’s interests in the property was not discharged.In tho first placo, the minor was not at that time vested with tho undividedone-third share which alone had been authorised to be sold. Secondly, nuthorit yto sell a minor’s property cannot validly bo granted without reference toa specified consideration. Finally, tho person appointed as curator had notobtained the sanction of the Court to dispose of the-mere spes which was altthat tho minor did enjoy in 1925 ; tho authority to sell the future contingentinterest of a ward of tho Court cannot validly bo granted unless “ the benefitto tho immediate and known beneficinrics is overwhelming as compared withany possible detriment to the unknown ultimate beneficiaries ”. For thesereasons tho sale to X was of no force or avail against tho minor.
1 {1952) 54 X. L. R- ISJ.
ApPjEAL from a judgment of the District Court, Galle.
//. V. Perera, Q.C., with Felix R. Dia-s, for the plaintiff-appellant.
jr. E. lVeerasooria, Q.C., with Sir Ukicalte Jayasundere, Q.C., and
K.Rodrigo, for the 3rd and 4th defcndants-respondents.
C. Ra-nganathan, with P. Nagulesuaram, for the 1st defendant-respondent.
[No appearance for the 2nd defendant-respondent.
Citr. adv. valt.
March 28, 1956. Gratia ex, J.—
This action was instituted under the Partition Ordinance in respectof a property situated in Galle on the basis that-the plaintiff and the 1stdefendant owned it in equal shares. The 3rd and 4th defendants, whoare minors, intervened in the action through their guardian-ad-litem(the 5th defendant) and objected that tho property belonged exclusivelyto them. Another intervenient (the 2nd defendant) asserted a right tobe compensated for certain improvements effected on the property, butliis claim was rejected and no longer arises for consideration.
The property in dispute had admittedly belonged to Sevan Slcma Lebbe,who by a deed of donation P1 of 29th April 1S97 gifted it to ins son AbdulEahiman (the father of the plaintiff and the 1st defendant) subject toa fideicommissum in favour of such children of the donee as would bealive at the time of his death. Abdul Raliiman, (hereafter called “ thefiduciary”) died on 11th November 1950 leaving only two childrensurviving him, namely, the plaintiff' and the 1st defendant. Another son(Juwadu alias Thahir) had predeceased the fiduciary on 4th October 1949.
The plaintiff and the 1st defendant claimed that an undivided i- sharein the property vested absolutely in them when the fiduciary interest oftheir father came to an end in 1950. The contention raised on behalf ofthe 3rd and 4th defendants, on the other hand, was that the title hadalready passed to their father L. P. D. Prcmaratnc by right of purchase(under the conveyance 3D5 of 1st April 1925), his vendors being thefiduciary, the 1st defendant (acting on his own behalf and as curator of theestate of the plaintiff who was then a minor) and Juwadu alias Thahir.Li. P. D. Premaratne gifted the entirety of his interests to the 3rd and 4thdefendants in 1947, and they now claim exclusive ownership by virtue ofthis title.
The vital dispute between the parties relates to the legal effect of theconveyance 3D5. The learned trial Judge, in dismissing the plaintiff’saction, held that this document operated as a valid transfer to L. P. D.JPremaratne of absolute dominium in the property. Accordingly, hedecided that the plaintiff’ had no rights of co-ownership entitling him toclaim a decree under the Partition Ordinance.
It is first necessary to set out the circumstances in which the conveyance3D5 was executed in April 1925. The plaintiff was at that time IS yearsold and, as the fiduciary was still alive, he enjoyed no more than a merespes or expectation that a vested right would accrue to him in theevent of his surviving the fiduciary. So too with regard to the 1stdefendant and his other brother both of whom' had attained majoritybefore April 1925. The extent of the share, if any, which would ulti-mately vest in each of the three brothers upon the death of the fiduciarywas not capable of precise ascertainment. Indeed, it was not evencertain that the class of potential beneficiaries under 3D5 had j et beenclosed in 1925. Nevertheless, the fiduciary, the 1st defendant, andJuwadu alias Thahir “ arranged to sell ” the entire property, includingthe plaintiff’s interests, for a composite consideration of Rs. 3,500. The1st defendant thereupon made an application 3D1 dated 25th March1925 to the District Court of Galle to be appointed curator of the estateof the plaintiff under Chapter 40 of the Civil Procedure Code for thepurpose of selling the rights of the said minor's (i. e., the plaintiff's) J- share ”of the property. The application was allowed after what appears to havebeen a very perfunctory inquiry, and in due course a certificate of curator-ship was issued to the 1st defendant for the special puipose previouslyreferred to. This was the authority upon which the 1st defendant ascurator purported, for an unspecified part of the total consideration, toconvey in 1925 “ all the right, title, interest, claim and demand whatso-ever "of the plaintiff in a property in which no vested interest actually-accrued to him until 25 years later. .
The argument for the plaintiff is that 3D5 of 1925 was void and whollyinoperative as a convej-ancc to L. P. D. Premaratne of his future contin-gent interest in the property. It being conceded in argument on behalfof the 3rd, 4th and oth defendants that the plaintiff was a minor at therelevant date, the submission is that- the 1st defendant, as curator of hisestate, had at'best obtained the authority of the Court to sell only anundivided -i- share which, according to the application 3D1 and thecertificate of curatorship was incorrectly assumed to have already vestedin him (subject only to a life-interest in his father). In other words, theapplication was based on an allegation of fact which had no relation toreality ; and the Court, in authorising the proposed sale, had acted uponan entirely wrong assumption. Alternatively, it was argued, the 1stdefendant had no express authority from the Court to sell the futurecontingent interest which was all that the plaintiff himself (had he beencapable of entering into a contract on his own behalf) could have disposedof.
The powers and responsibilities of a Court as the traditional “ upperguardian of minors ” under the Roman Dutch Law have receivedstatutory recognition in section 69 (1) of our Courts Ordinance wherebyevery District Court is entrusted with the care and management ofa minor’s estate situated within its jurisdiction. Chapter 40 of the Codeprovides for the appointment of curators to take charge of such property.under the general supervision of the Court. No express provision ismade for granting authority to a curator to sell a minor’s propert y, but ithas always been assumed (and rightly so) that such authority may be
given (subject to well-established limitations) in appropriate cases.Cayley, J■ in Re Hider, ex parle Corbet1 has clarified the rules which shouldguide a Judge in exercising his jurisdiction in such cases. When anapplication is made by a curator for sanction to sell or encumber propertybelonging to a minor, “ there should be a decree …. the minorbeing represented by a guardian-ad-litcm for the purpose. The factsshould then be especially adjudicated upon, and a formal order entered.There must in fact be, as laid down in Voet 27 : 9 : 6, a causae cogjiitio, ajrrobatio, and adccrelum.” The Court, before sanctioning a sale of propertywhich is already vested in the minor, must be satisfied on proper materialthat the proposed transaction is “ manifestly to his advantage ”.
In Ceylon, even a lease for a term of years (being regarded as a pro.tanto alienation) is void if granted without the sanction of the Court—Perera v. Perera -—and the rule applies even though the guardian hadbeen expressly authorised by the donor to sell the property for the minor’sbenefit. Mustafa Lebbe v. Martimis 3. A minor, on attaining majority,is therefore entitled to vindicate his title (which the curator had purportedto alienate) by mere proof that the property had been conveyed sine■decreto i.e. without the sanction of the Court. Breylenbach v. Prankel J.The reason is that such a sale is ipso jure void, and dominium has notpassed from the minor. Sande 1:1: 79. Accordingly, the burden is onthe alienee to show that the Court’s sanction was validl}' obtained.Voet 27:9:11..
Applying these principles to the facts of the present case, I am contentto say that the burden of proving that the Court had interposed its consentto the purported sale of the plaintiff’s interests in the property by 3D5has not been discharged. In the first place, the plaintifF was not at thattime vested with the undivided £ share which alone had been authorisedto be sold. In the second, authority to sell a minor’s property cannotvalidly be granted without reference to a specified consideration, andneither the 1st defendant’s application, nor the certificate of curatorship,nor the conversance 3D5 makes any mention of the price which was to bepaid (or was in fact paid) to the plaintiff’s estate out of the total consi-deration agreed upon. For these reasons alone, 3D5 is of no force or.avail against the plaintifF. The exceptio rei vendiiae el traditae cannotapply to a transaction of this kind. Finally, the 1st defendant as curatorhad not obtained the sanction of the Court to dispose of the mere s-peswhich was alt that the plaintifF did enjoj' in 1925.
This last objection goes beyond a mere technicality. It would be wrongto assume that the District Judge who issued the certificate of curatorshipwould have authorised the sale of the minor's future contingent interestin the property if it had been brought to his notice that the class ofpotential fideicommissaries in whom the title would ultimately vest uponthe fiduciary’s death was not capable of ascertainment in 1925. Underthe general law, a stricter test must be satisfied if there are unbornpotential beneficiaries to whom the property (or some interest in it) couldin a certain contingency pass in due course. In that event, authority to
1 (1S7C) 3 S.C. C. 46.3 (1903) 6 if. L. B. 364.
= (1902) 3 Brotcn 150.* (1939) A. D. 309 at 340.
sell the future contingent interest of a ward of the Court cannot validlybe granted unless " the benefit to the immediate and known beneficiaries-is overwhelming as-compared with any possible detriment to the unknownultimate beneficiaries. ” Ex parte Visagie 1. Only an alienation ohcausam ?iecessariam would be justified. Ex parte Koen Exgmrle Skano 3.It is unnecessary to decide whether a Court’s statutory jurisdiction tosanction the sale of the entire property under the provision of the Entailand Settlement Ordinance is similarly restricted where the class ofultimate beneficiaries Tinder a jideicommissum has not yet been closed.Suffice it to say that this jurisdiction, with all its attendant safeguards,was not in fact invoked in the present case.
Eor the reasons which I have given, I would hold that the plaintiffbecame entitled to an undivided i share of the property upon thefiduciary’s death in 1950. He is therefore entitled to claim a decree forpartition or sale upon that basis.
There remains the question of title to the outstanding i- share. Itseems to me that the claim of the 3rd and 4th defendants is to this extentunassailable. It is true that, at the time of the conveyance 3D5, the?1st defendant had no vested interest in the property. But in his case thedoctrine of exceptio rei venditac et traditae clearly operated to the benefitof the 3rd and 4th defendants as soon as he subsequently acquired titleto an undivided share in 1950. The ruling of the Privy Council inGunatileke v. Fernando 4 is precisely in point, and I am unable to accept-Mr. Banganathan’s argument that the exceptio can fairly be limited to-the J share which was originally assumed to be vested in his client in1925. The conveyance caught up “ all the right, title, interest, claimand demand whatsoever ” of the 1st defendant in the property, and thesewords are clearly wide enough to include the larger interest which he:ultimately acquired.
I would set aside the judgment under appeal and send the record backwith a direction that a decree be entered (either for a partition or sale of'the property) on the basis that the plaintiff is entitled to an undin'dedi share and that the balance i share belongs to the 3rd and 4th defendants-equally. The 3rd, 4th and 5th defendants must pay the plaintiff’s costsof this appeal and of the contest in the Court below. The 1st defendantmust, however, pay the 3rd, 4th and 5th defendants’ costs of the-contest in the Court below. The other costs in the lower Court will be-,borne pro rata between the plaintiff and the 3rd, 4th and 5th defendants.,and the order for costs against the 2nd defendant will, of course, stand.
Gu.vaseeaii.4, J.—I agree.
Judgment set aside.
i (1940) C. P. D. 42.
* (1930) O. P. L>. 134.
(1949) 3 S. A. L. It. 929.(1921) 22 N. L. It. 3S3 at 393.