025-NLR-NLR-V-50-ASSANAR-Appellant-and-HAMID-Respondent.pdf
102
Grit ATT AT1N J.—Assanar v. Hamid',
1948
Present: Dias and Gratiaen JJ.ASS ANAR, Appellant, and HAMID, Respondent
S. C. 474—D. C. Batticaloa 287
Muslim law—Contract by minor—Age of discretion—Validity of contract—Burden of proof—Age of Majority Ordinance—Chapter 53—Applicationto Muslims—Sections 2-and 3.
A Muslim minor on attaining the age of puberty can enter into bindingcontracts and manage or dispose of his property unless it is found thathe still lacks sufficient understanding for the purpose. The burden ofshowing this is on the minor. This rule of the Muslim law is notaffected by the Age of Majority Ordinance, Chapter 53.
Muttiah Chetty v Dvngiri {1907) 10 N. L. JR. 371 followed.
Narayanan v. Saree TJnvma {1920) 21 N. L. R. 439 dissented from.
Appeal from a judgment of the District Judge, Batticaloa.
A. Hayley, K.C., with Peri Sunder am, for the defendant, appellant.
E. B. Wikramanayake, K.C., with 6. Thomas, for the plaintiff,respondent.
Cur. adv. mill.
November 25, 1948. Gratiaen J.—
The plaintiff is a Muslim. He was born on January 1, 1924. Whenhe was twelve years old his father, by a deed PI of October 13, 1936,gifted to him the land which is the subject-matter of this action. Thedonation was accepted on his behalf by his mother Pathumma. Threeyears later the father died. In February; 1942, the plaintiff’s elderbrother Abdul Salam applied to the defendant for a loan of Rs. 1,000to meet certain expenses in connection with a testamentary action inwhich he was protecting the plaintiff’s interests. On February 15,1942, the loan was granted on the security of a mortgage over the propertywhich had been gifted to the plaintiff by the deed PI. The mortgagebond (marked P2) was executed in favour of the defendant by theplaintiff and also by his mother and his brother. The plaintiff was at therelevant date a little over 18 years old. A month later, in February,1942, the plaintiff married and left his mother’s home to live with hisbride. OnNovember 14,1942, a few weeks before his nineteenth birthday,the plaintiff sold the property outright to the defendant for an agreedconsideration of Rs. 3,000 which from a commercial point of view isnot alleged to have been inadequate. Pathumma and Abdul Salamjoined as grantors in this conveyance (P3) as well. The considerationconsisted of a cash payment of Rs. 2,000 and the cancellation of thedebt created by the execution of bond P2. The parties are not agreed asto which of the brothers actually received the cash from the hands of thenotary who attested the deed. The notary is now dead. The defendantasserts that the money was paid to the plaintiff himself. The plaintiff
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on the other hand protested that it igas paid to his brother Abdul Salambut in his presence. There is no substantial disagreement between theparties on any other material question of fact.
Since November 14,1942, the defendant having paid what was admit-tedly a fair price for the property in dispute, remained in possession asabsolute owner. In January, 1945, the plaintiff celebrated his twenty-firstbirthday, and appears thereafter to have found the time to examine themany mysteries of the law of minority in this country. TTia first experi-ment in litigation was directed against his own mother to whom hehad conveyed certain property in May, 1943, when though only 19£ yearsof age, he was not only a married man but a proud father. He claimedthat he was entitled to relief from the commercial transactions into whichhe had voluntarily and even profitably entered during his somewhatprecocious youth. He demanded a reconveyance of the property whichhe had conveyed to his mother, but that action was in due course with-drawn, no doubt in a rare moment of filial piety. But the plaintiffby now felt that the law, such as he understood it, should again be invokedto his aid. Hence his present action against the defendant claimingthat the mortgage bond P2 and the deed of conveyance P3 he set asideon the ground that he was a minor at the dates of their execution. Thecontention is that he was entitled to repudiate the transactions, and thatthe defendant must lose not only the property and his money but mustalso be mulcted in damages. TTis contention was upheld by the learnedBistriet Judge, and judgment was entered in favour of the plaintiff.Prom this judgment the defendant has appealed to this Court.
Hr. Hayley and Mr. Wiekremanayake are agreed that the mainquestion of law which adses for consideration in this case, namely, thecontractual capacity of a Ceylon Muslim who has not yet attained theage of twenty-one, must be considered in accordance with the principlesof the Muslim Law, subject of course to any statutory modification orvariation of those principles. I am satisfied that this view is the correctone, particularly as in this case both parties to the contract are CeylonMuslims. It had apparently been argued in 1937 during the appealin S. C. Nc. 221D. C. Colombo No. 24,309 that Muslims may in certaincases he governed by the Roman Hutch Haw as far as their contractualcapacity is concerned, and the question had been referred to a BivisionalBench (vide Shorter v. Mohamad 1) but the case was ultimately settledbefore the ruling of the Bivisional Bench could be obtained'. Inany event I note from the observations of Poyser J. at page 114 ofthe report that the application of the Roman Hutch Law instead of theMuslim Law was claimed only for cases where one of the parties is aMuslim. As the position here is admittedly different, that questionneed not be decided in the present case, although I myself should havethought that the contractual capacity of each party to a transactionshould normally be ascertained with reference to the personal law bywhich he himself was governed.
What then is the Muslim Law with regard to the contractual capacityof a male person under 21 years of age, and to what extent, if any, hasthat law been modified or varied by local statutes ? The recognized1 (1937) 39 N. L. R. 113 at 115.
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GRATIAEN J.—A.asanar v. Hamid
authorities and text books on the Muslim Law are in substantial agree-ment on the first of these questions. Sir Ronald Wilson quoting theHedaya states in his Digest of Anglo-Mohammedan Law {6th edition,page ZOO) that, subject to one qualification, “ puberty and majority arein the Mussel!man Law, one and the same ”, The qualification referredto is that " a youth who has attained puberty might still, under that law,be * inhibited ’ from dealing with his property if the Kazi consideredhim to be lacking in discretion In such cases, apparently, the periodof ** inhibition ” would continue until the minor had either developedthe necessary ** discretion ” or reached a prescribed age, whichever wasearlier. The attainment of puberty was proved by the manifestationof the appropriate physical signs, and in default of such evidence a minorwas considered adult on the completion of his fifteenth year. (Hamilton’sHedaya {Volume 3) page 483.) The law is similarly set out in Tyabji’sMuhammedan Law {3rd edition) page 269, and its origin is apparentlytraced to certain verses in the Koran which exhort guardians to protectminors “ until they attain the age of marriage ; then, if ye perceive thatthey are able to manage their affairs well, deliver unto them theirsubstance Ameer Ali’s Muhammedan Law {5th edition) Volume 2page 535 tells us that “ there are cases in which a boy may have arrivedat puberty and may yet not be sufficiently ‘ discreet ’ (possessed ofunderstanding) to assume the direction of his property. In such casesthe Muhammedan Law separates the two ages of majority and, whilstaccording to the minor personal emancipation, takes care to retain theadministration of his property. If the minor should not be * discreet *'at the age of puberty he is presumed to be so on the completion of theeighteenth year ”. It is in this sense that the Islamic Law recognisesthe possible separation of “two distinct periods of majority ”, namely r“ bulughyet ” (the age of puberty) and “ rushd ” (the age of discretion).These two periods are presumed, however, to commence simultaneouslyin the absence of evidence to ike contrary. With great respect, certainobiter dicta of de Sampayo J. in 18 N. L. JR. at page 485 to theeffect that “ the latter kind of majority cannot be attained before 15 yearsof age ” are not borne out by the text books I have quoted.
In the light of the authorities to which I have referred the resultingposition appears to be that according to the Muhammedan Law by whichthe plaintiff is governed:—
(а)a minor, on the happening of a certain event, i.e., the attainment of
puberty, is personally emancipated from the patria potestas andthereupon acquires inter alia the capacity to marry unfetteredby the power of his father or guardian to contract a marriageon his behalf;
(б)this personal emancipation is acquired on proof of the attain-
ment of puberty or on reaching the age of 15, whichever isearlier ;
(c) a minor, on the attainment of puberty, also becomes emancipatedin the further sense that he can enter into binding contractsand manage or dispose of his property , unless it is found thathe still lacks sufficient “ discretion ” or “ understanding “for the purpose ;
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105
if contractual capacity and the power to manage and disposeof his property are not acquired on the attainment of pubertyowing to the proved absence of the necessary “ discretion ”their acquisition is postponed until the necessary “ discretion ”is developed or until the age of 18 is reaohed, whichever ieearlier.
The underlying principle appears to be that irrespective of age, thei mancipation of a Muslim minor is in normal cases contemplated by theMuslim Law as having been acquired on the happening of an event(such as the attainment of puberty accompanied contemporaneously,as a rule by the attainment of sufficient capacity to manage one’s ownaffairs). The Muslim Law only regards a minor as attaining majority-on reaching a certain age if the qualifying event has not alreadyoccurred.
It is now necessary to apply this principle of the Muhammedan Lawto the facts of the present case. The cancellation of the bond P2, whichwas executed a month before the plaintiff’s marriage at the age of 18,does not arise for consideration because it has already been dischargedby mutual agreement as part consideration for the sale of the property.The real question refers to the plaintiff’s capacity to sell his propertyin terms of P3 to the defendant when he was a few weeks short of 19 yearsof age. At the relevant date the plaintiff had obviously attained pubertyand had in fact been married for over 8 months. There is no evidenceto suggest and it is not pretended that on the attainment of puberty hewas not in fact possessed of the requisite degree of “ discretion ” or under-standing to entitle him to manage his own affairs. Indeed, the indicationsseem to be all the other way, and unless some local statute gives theplaintiff the protection which he claims but hardly seems to deserve,it must follow that he is bound by the terms of the contract which henow seeks to repudiate.
It has been contended on behalf of the plaintiff that the rule of theMuhammedan Law which emancipates a minor on his attaining therequisite capacity to manage his own affairs has been swept away by theprovisions of the Age of Majority Ordinance of 1865 (Chapter 53).Section 2 declares that all persons, including Muslims, shall, notwith-standing any law or custom to the contrary, be deemed to have attainedthe legal age of majority when they have attained the age of twenty-one years, and not “ except as is hereinafter provided ” at an earlierperiod. The plaintiff’s contention would undoubtedly be entitled toprevail unless the Muhammedan Law of emancipation or any part of itis saved by a later provision of the Ordinance.. The question turnstherefore on the meaning of section 3 which reads as follows :—
“ Nothing herein contained shall extend or be construed to preventany person under the age of twenty-one years from attaining bismajority at an earlier period by operation of law.”
The question is whether a Muslim minor can, in accordance with thepersonal law by which he is governed, be emancipated on the happening
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CrRATIAEN J.—-jLssanar u. Hamid
of some event before be reaches the age of twenty-one years, and therebyattain his majority “ by operation of law ” within the meaning of section 3.
The scope of the Ordinance had been considered by a DivisionalBench.of this Court in Muttiah Chetty v Dingiri1. “The intention”, saidChief Justice Hutchinson, “ appears to have been to abolish any locallaw or custom which fixes any other age than twenty-one as the age ofmajority, but without prejudice to any rule by which a person mayon the happening of any event attain majority by operation of law irres-pective of his age In accordance with this very clear ruling, it follows-and it had never been disputed that a minor who is governed by theHoman Dutch Law can, notwithstanding the provisions of the Ordi-nance, become emancipated before he is twenty-one on the happeningof any event which is regarded by that system of law as determining thepatria potestas. It must surely follow that a Mnalfm minor can alsoclaim emancipation “ by operation of law ” and irrespective of his agein accordance with any rule of the Muslim which is applicable in bis case.He cannot of course claim the benefit of a method of emancipation whichis peculiar only to the Roman Dutch Law. I would accordingly holdthat the plaintiff having attained the requisite discretion entitling himto manage his own affairs prior to the execution of the conveyance P3-in favour of the defendant became emancipated in accordance withthe principles of Muhammedan Law, and that there is nothing in theprovisions of the Age of Majority Ordinance (Chapter 53) which is in-consistent with this view. The Ordinance would, of course, applyin cases where a Muslim minor has not developed the capacity to managehis affairs before he is 21 years of age. I am aware that my view is atvariance with the opinion expressed in Naraynen v. Saree Umma2but, with very great respect I think that the unqualified view expressedin that case that “ no Muhammedan in Ceylon who is under the age of21 has the legal capacity to transact business or to enter into contractsin Ceylon ” is not justified. If that were indeed the law, the law shouldbe speedily amended, but I think that the correct view is to the contrary.The rule of general application laid down by the Divisional Bench inMuttiah Chetty v. Dingiri (supra) regarding the scope of the Age of~Majority Ordinance (Chapter 53) does not appear to have been referredto in Naraynen v. Saree Umma, and I find that the decision inNaraynen v. Saree Umma was one of the questions whichhad been referred to a Bench of three judges in the abortive appealin S. C. No. 22/D. C. Colombo No. 24,309 (vide Poyser J. in 39 N. L. R.at page 115). In this state of things I feel that I must adopt the ratiodecidendi in Muttiah Chetty v. Dingiri -with which I respectfullyagree and by which I am bound. In Marikar v. Marikar 3, thisCourt held that, notwithstanding the provisions of the Ordinance, aMuslim minor on the attainment of puberty was emancipated to theextent, at any rate, that he became entitled to choose his own wife-“ provided that the pubes had also reached the age of discretion ”. Onprinciple I find it difficult to understand why a person who is regardedin law as possessing sufficient " discretion ” to select his bride should-
1 (1907) 10 N. L. R. 371.
* (1920) 21 N. L. R. 439.
(1915) 18 N. L. R. 481.
Gunawardene v. Veloo
107
necessarily be considered too immature to be compelled to honour hiscommercial contracts. It is important to note that in both cases theattainment of puberty is generally regarded by the Muslim Law asconferring the requisite qualification upon the minor concerned.
The Muslim Law of emancipation appears to attribute to the personswhom it governs maturity in matters relating to commerce at a com-paratively early stage, and this special confidence is no doubt very welldeserved and greatly prized. It would certainly be unsatisfactory ifa young trader, subject to the Muhammedan Law, were to be placedin a position to repudiate his contracts more lightly than other youngpersons who have become emancipated by trade in accordance with theprinciples of the Roman Dutch Law by which the latter happen to begoverned. Each system of law seems to me to arrive, from a practicalstandpoint, at an analogous conclusion though not perhaps by the sameprocess of reasoning. I consider it fortunate that this is so. The lawof minority should not be made unduly attractive to young gentlemen ofany race who are engaged in commerce or trade.
In my opinion the correct view is that a Muslim cannot repudiate anycontract entered into by him after attaining puberty but before he hasreached the age of 21 years unless he can satisfy the Court that at therelevant date he did not possess the requisite understanding to qualifyhim to be entrusted with the management of his own affairs. In thepresent case the plaintiff has entirely failed to establish this, and hisaction cannot therefore be maintained.
I would set aside the judgment of the learned District Judge andmake order dismissing the plaintiff’s action with costs in this Court andin the Cotut below.
Dias J.-—I agree.
Appeal allowed.