072-NLR-NLR-V-12-DISSANAIKE-v.-ELWES.pdf
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Present: The Hon. Sir Joseph T. Hutoliinson, Chief Justice,and Mr. Justice Middleton.
DISSANAIKE v. EL WES.D. <?., Kandy, 18,928.
Kandyan Law—Sale of immovable property by minor—Voidable—Deathof minor—Action by executor to recover property sold—Validity ofsale—Repudiation by minor—Repudiation by executor.
A sale of immovable property by a Kandyan minor is not void,but only voidable.
Where a Kandyan married minor sold immovable property inDecember, 1895, with the knowledge and consent of her husband,and died in January, 1905, without in any way repudiating thetransaction, and after her death her exeoutor sought to vindicatethe land sold,—
Held, that he was not entitled to do so, as the sale being voidableand not void, and the minor not having repudiated it, the executorcould not, after the minor’s death, repudiate it.
T
HE plaintiff, as executor of the last will and testament of hiswife Ukku Menika alias Bandara Menika, deceased, sought
to vindicate two contiguous allotments of land, which were inthe possession»of the defendant. The plaint further averred thatBandara Menika was bom on April 10,1877, and died on January 29,1905, and that she was a minor when the defendant took possessionof the said lands. The defendant admitted that Bandara Menikawas the owner of the said allotments of land, and alleged that sheby deed of transfer dated December 7, 1895, sold and conveyed thesame to him for Bs. 4,000 with the knowledge and consent of herhusband, the plaintiff, who signed as an attesting witness to the deed.In the alternative the defendant claimed a refund of the purchasemoney, and also compensation for improvements effected by him.
The Additional District Judge (A. C. 6. Wijekoon, Esq.) heldthat the deed of transfer executed by Bandara Menika in favour ofthe defendant was void, and that the plaintiff was entitled to adeclaration of title to the lands. As regards the claim for refundof the purchase money, he held that the defendant’s claim wasprescribed on the authority of Marthdis Ajrpu v. Jayewardene et al.1The District Judge awarded the defendant Bs. 1,247;10 as com-pensation for improvements, and declared that he was entitled toretain possession of the lands until the amount was paid.
1900.
September It.
1 (190S) 11 N. L. R. 272.
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1909.
September 11.
The defendant appealed.
A. Jayeivardene {A. B. Cooray with him), for the defendant,appellant.
Elliott (Samaraimckreme and B. L. Pereira with him), for theplaintiff, respondent.
Cur. adv. milt.
September 1-1, 1909. Hutchinson C.J.—
The first question in this case is whether by Kandyan Law a saleof his or her property by a minor is void or is only voidable. Jf wehold that the sale is only voidable, the other questions which bo.vebeen discussed need not be considered.
The fact that the minor is a married woman at the date of thesale does not affect the question. For, although a Low-countrySinhalese woman under twenty-one years of age attains majorityby marriage (by virtue of the Roman-Dutch Law, which, in thecase of Low-country Sinhalese, is preserved by section 2 of OrdinanceNo. 7 of 1865), it has been decided that this rule does not apply to -Kandyans, so that a Kandyan woman who marries under the age oftwenty-one is still a minor until she attains that age.
If Sawer and Armour are to be taken as authorities, a sale of hisland by a minor was not wholly void by Kandyan Law, but theseller could “ break the bargain ” on repayment of the purchasemoney which he had received. No decision of the Courts clearlynegativing that rule has been quoted to us. Transfers by a minoron sale or as a gift have, after some conflict of opinion, been held tobe wholly void in cases to which the Roman-Dutch Law applied;but there seems to be no case reported in which the Kandyan Lawon the subject has been clearly laid down. In the absence of anysuch authority, and until the Legislature deals with the matter,
I think that we ought to take the rule of Kandyan Law to be asstated by Sawer.
The transfer on which this defendant relies was made to him byBandara Menika on December 7, 1895. The consideration whichhe paid for the land was Rs. 4,000. He took possession after hispurchase, and is still in possession. The District Judge has found,and I think we cannot reject his finding, that Bandara Menika wasborn in April, 1877; so that at the date of the transfer she was aminor of the age of eighteen. She was married at that date, andher husband was one of the witnesses who attested the execution ofthe transfer. She attained her majority in April, 1898, and died inJanuary, 1905, without having done anything to show that sherepudiated the sale. The plaintiff was her husband, and is theexecutor of her will, which has been duly proved. He brought thisaction on January 16, 1908, just before the expiration of ten years
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from the day when Bandara Menika attained her majority. If, isos.therefore, the sale was not wholly void, it cannot now be repudiated September 11.by Bandara’s executor, and the appeal should be allowed, and the Hutchinsonaction dismissed with costs in both Courts.C.J.
Middleton J.—
This was an action by the executor of a deceased Kandyanmarried minor to recover possession of two pieces of laitd. Thedefence was that the lands were sold to the defendant in December,
1895, for Rs. 4,000, with the consent of the deceased’s husband;alternatively, that the deceased was not a minor at the date of thesale, and that defendant had since thereby acquired a title byadverse possession; that if she was a minor, she was estopped byher conduct from denying the validity of the sale, and thereafter,on attaining majority by acquiescence in the sale; that the salewas for the benefit of the minor, and could not be repudiated, andthat the action in any case could not be maintained without atender of the purchase money by the plaintiff.
The defendant claimed in reconvention to recover, in case theplaintiff be declared entitled to the land, the purchase moneyRs. 4,000 and a further sum of Rs. 3,000 for compensation forimprovements to the lands.
The issues settled were as follows:—
Was Bandara Menika, plaintiff’s testatrix, born on April
10, 1877, and was she a minor when she transferred thelands to defendant on December 7, 1895 ?
If Bandara Menika was a minor, is she estopped by her
conduct after she attained her majority by acquiescingup to the date of her death in the sale, and permittingthe defendant to remain in possession without assertingtitle thereto ?
If the said Bandara Menika was a minor at the time of the
execution of the deed, the sale being for her benefit,can she or the plaintiff repudiate the said deed.?
Can plaintiff have and maintain this action without tender*
ing to the defendant the sum of Rs. 4,000 paid by himat the execution of the raid deed ?
Whether defendant has planted and improved the lands
in claim and enhanced their value to the extent ofRs. 3,000?
What damages, if any, has plaintiff sustained ?
If plaintiff be declared entitled to the land, whether defend-
ant is entitled to recover Rs. 4,obo consideration for thetransfer and Rs. 3,000 for compensation ?
Whether the claim for Rs. 4,000 consideration is pre-
scribed ? •
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1909. The District Judge gave judgment declaring the land in disputeSeptember 11. the property of the plaintiff’s testator, and decreed the ejectmentMiddleton °* defendant and quiet possession to the plaintiff, and furtherJ. awarded the sum of Rs. 1,247 ‘ 10 as compensation to the defendant.
The defendant appealed on the ground (1) that the deed wasgood according to the Kandyan Law ; (2) that he had obtained atitle by prescription; and (3) that the compensation had beenwrongly assessed, and he should have been awarded the purchasemoney in addition.
As regards the Kandyan Law, the passages from Per era's Amumr,p. 2, and Perera's Collection, p. 27, Modder, p. 1182, were allconsidered in Muttiah Chetty v. Dingiria et al.1 That case decidedthat a Kandyan 'minor married woman did not attain majority bymarriage.
I have sent for the record in Muttiah Chetty v. Dingiria et al., and I• find that the learned District Judge, who was acting as Commissionerof Bequests, and gave the judgment appealed against in that case,certainly stated as follows :—“ l am of opinion under the KandyanLaw (1) a minor is protected from the evil effects of contractsentered into by such minor during his or her minority; (2) thatsuch contracts are void in law; (3) that a Kandyan husbandjoining with his wife in any contract does not legalize such voidcontracts.”
When the case came before the Supreme Court, the only pointargued was that which was decided, and the question was neverraised whether the contract in question was void or voidable, butfollowing the judgment appealed against the judgment of theSupreme Court may have the appearance of confirming a judgmentwhich held such a oontract void.
If, however, the judgment appealed against in that case isfurther examined, I think it appears from the observations of thelearned Commissioner that he thought the Court had an equitablejurisdiction to set aside such a contract, even if it were consistentwith the existence of positive law, and that his real ruling on thequestion was that the contract was voidable and not void.
The Supreme Court judgments all seem to me to decide merelythe abstract question whether a Kandyan minor attained majorityby.marriage? In my opinion, therefore, it cannot be said theSupreme Court decided in that case that the contract was void, butrather that it was voidable, only as being prejudicial to the minor.If, however, that case decided that the contract in question wasvoid, its fullest force would be to rule that a promissory ndte enteredinto by a Kandyan minor in conjunction with her husband wasvoid against the wife on the ground of minority. This wouldmerely be the application of the principle of section 1 of the Infants' Relief Act of 1874 to Kandyan minors in respect to the repayment1 {1907) 10 N. L. B. 371.
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of money lent, and would not affect consequentially"or necessarilythe voidability of transfers of land, whioh is governed by speoialtraditions embodied by Sawer and others.
In Sirivardene et id. v. Lokit Banda,1 Burnside C.J- held that adeed of conveyance of land by a Kandyan infant was. voidable andnot void. Under Roman-Dutch Law the conveyance by a marriedwoman under the age of twenty-one of the Maritime Provinces ofher immovable property with the consent of her husband wouldbe a perfectly good conveyance as the Roman-Dutch Law confersmajority by marriage. 1
The case in Vanderstraaten, p. 251, was of the same kind as inMuttiah Ghetty v. Dingiria et al., of liability on a bond. In V.Ukba v. Yatavila Arumedureya2 the liability was on a lease, andI should gather that in each of those oases the Court thoughtthat to hold the minor to the obligation would be detrimental orprejudicial to her.
We find, however, in Muttiah v. De Silva8 Bonser C.J. holdingthat a joint and several promissory note granted by % father andminor son must be held good as against the son, because it mustbe presumed to have been made with the consent of the father.This was under the Roman-Dutch Law. Also, under the Roman-Dutch Law, a sale by a minor of immovable property has beenheld void (3 Brovme 12 and 150). (See also 3 S. G. C. 46 and6 N. L. R. 367, and the authorities quoted there.)
I do not think, therefore, we are concluded by the decision of theFull Court in Muttiah Chetty v. Dingiria et al., and I am strongly ofopinion that we should hold, if possible, that the contracts ofminors are, as a general rule, not absolutely void under KandyanLaw, but voidable.
According to D’Oyley’s Notes, p. 26, Per era’s Collection, Saver’sDigest, ah Kandyan deeds of transfer of land were revocable atpleasure during the life of the alienator on repayment of thepurchase money and value of the improvements, but the heirs ofthe alienator were excluded from this liberty after his death.
Again, Perera’s Collection, p. 29, Saver's Digest, p. 28, a youthunder sixteen could break a bargain and resume possession of landhe had sold on refunding the value which he had received.
Again, Perera’s Collection, p. 29, Saver’s Digest, p. 29, the heirsof a minor had the right to interfere and prevent his selling hisproperty when it came to their knowledge, and if he did so withouttheir knowledge and died in non-age, they apparently had a remedyto set it aside. The same rules apply to females. Armour repeatsthe same doctrines from Saver, p. 2.
I gather from the texts, therefore, that a minor’s sale of immov-ables was not absolutely void but voidable, and was allowed to be
1 (1892) 1 S. C. R. 218.a Madder 119.
1 (1806) 1 N- L. R. 358.
1909.
September 11.
UmsiamK
J.
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1909. avoided only on repayment of the purchase money and probablySeptember 11. and equitably of the value of improvements. I do not think,Middleton therefore, we should be conflicting in any way with the ruling inJ. Mvltiah GheUy v. Dingiria el al. by holding here that the minor hadentered into a voidable contract. But here the minor sold theland with the consent of her husband, who now seeks to' set asidethe sale without even tendering the purchase money. The husband,however, is probably not the only heir, but even if the other heirsobject, the minor did not die in non-age, but after she attainedmajority and without repudiation of the sale, and no detriment ordisadvantage to the minor is proved. I would hold, therefore, thatthis is a sale which ought not to be avoided, and would dismiss theplaintiff’s action and allow this appeal with costs.
Appeal (Mowed.