042-NLR-NLR-V-19-FERNANDO-et-al.-v.-FERNANDO.pdf
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Present: Ennis J. and Schneider A.J.
FERNANDO ei al. v. FERNANDO.
307—D. O. Negombo, 11,126.
Lease by aminor—Is lease voidorvoidable—Action for declarationthat
lease teas null and void and mesne profits—Claim by defendant for
refund of rent—Prescription.
Land 'was leased by a minor to raise money for her marriage.The lessee knew the girl was a minor, bnt acted in good faith forher benefit. The minor brought an action for a declaration thatthe lease was nullandvoid, andfor mesneprofits for a period of
three years immediately precedingthe – action. The defendant
prayed, inter alia, for the return of the lease money, with interest,if the lease be declared null and-void.
Held, that as the lease wasinvalid in the circumstances,the
plaintiff was entitled to mesne profits, and the defendant to thereturn of the lease money.
V Inasmuch as the lease was voidable at the option of the minor,the defendant’s cause of action arose only when the plaintiff beganto disturb him inhispossession,and theclaim for restitution of
lease money is not prescribed."
Emus J.—Thereisno doubt that the Boman-Dutch jurists
expressed the .opinion thata deedbya minorwas " nulland
void," but they donotappear tohave hadin mind the distinction
made by later-day 'juristsbetweena" void "contract anda
" voidable " one …….. It would seem, therefore, that an aliena-tion by aminor is voidable attheoption of the minor, and it isonly
when theminor exercises theoption that the law takes effect,and
the transaction is said to be. " ipso jure void."
Sohnkdbb A.J.—A minor’s contract is neither void nor voidablein the sensein which those wordsareunderstood in the English
law According to the Boman-Dutch law a minor’s contract
is such thatit does notbind theminor unlesshe ratified iton
attaining majority, while it bindB the other party to it.
rjlHE facts are set out in the judgment of Schneider A.J. .
Samarawickreme and De Alims, for defendant, appellant.
A. 8t. V. Jayewardene and Zoysa, for plaintiffs, respondents.
Cur. adv. vult.
September 7, 1916. EktKis J.—
This was an action for a declaration that a lease made by the-first plaintiff was null and void; for a declaration of title to theland leased; for ejectment; and for mesne profits. The defendant
19181
1916.
EJnnis J.
. Fernando t>.. Fernando
( W )
admitted that the plaintifE was a minor at the time she executed,the lease, but denied that the lease was null and void.. In thealternative the defendant claimed the return of the .consideration,Rs. 1,000, paid for the lease. On the defendant’s alternative claimthe plaintifE raised the issue of prescription. The learned DistrictJudge declared the plaintifE entitled to the land, but refused theplaintifE's prayer for mesne profits and the. defendant’s prayer forthe return of the lease money. He, however, gave no costs to theplaintifE.
The defendant appeals from the order refusing the prayer for thereturn of the consideration, and the plaintifE has filed objections tothe rejection of her claim for mesne profits and the order as to costs.
It has been decided in a series of cases (e.g., Andris Appu v.Abanchi Appu,1 Perera v. Per era,2 Raiwatte v. Hevawitama*Gunasekera Hamini v. Don Baron * and Sinno Appu v. Podi Nona *)tfiat a conveyance by a .minor without the sanction of a Court is,by Roman-Dutch law, said to be null and. void. The questions fordetermination on the appeal are whether, the, lease being null andvoid, mesne profits can be recovered; whether restitution of theconsideration can be ordered, and if so, from what date prescriptionbegins to run?
It was argued for the appellant that the logical result of declaringa lease null and void was to leave the ownership untouched; thatthe transaction could not be ratified; that the mesne profits mustbelong to the owner; and that any money paid for the lease mustbe held to be money paid- without consideration, and recoverable bythe lessee at any time after payment (i.e., a cause of action wouldaccrue from the date of payment, and hence prescription would runfrom that date). A passage in the judgment of Wendt J. inGunasekera Hamini V- Don Baron 4—“ For these reasons I come tothe conclusion that the plaintifE’s donation was a nullity and couldnot be ratified by her own or her husband’s acquiescence ’’—was citedin support of the contention as to the effect of declaring the act anullity, and the case of Cowper v. Godmond e was cited in support ofthe contention that prescription runs from the date of payment.There is no doubt that the Roman-Dutch jurists expressed the.opinion that a deed by a minor was “ null and void,” but they donot appear to have had in mind the distinction made by later-dayjurists between a “ void ” contract and a voidable ” one. Forinstance, Sand6 (Restraints upon the Alienation of Things, Webber’sTranslation 42), after declaring that an alienation by a minorwithout good cause and an order of the Court is “ ipso jurevoid,” goes-on to say (articles 82 to 84) that in an action for vindica-tion the .minor could recover mesne profits if the purchaser knew at
3 Br. 12.4(1002)6 N. L. ft. 273, 280.
8 Br. 60.«(1912)18 N. L. ft. 241.
f 3 Bal. 26.e(1888)9 Bing. 748.
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the time that the property belonged to a minor, or acted mala fide,but not if the buyer was of good faith. He also says that minorswho vindicate their -property which has been alienated without anorder of Court ought to refund to the purchaser the purchase pricewith interest. Further, that the minor on becoming a major mayconfirm the alienation by -ratification. It would seem, therefore,that an alienation by a minor is voidable at the option of theminor, and it ' is only when the minor exercises the option, thatthe law -takes effect, and the transaction is B&id to be ipso jurevoid."
Strictly speaking, a contract which is ** null and void "is. acontradiction in terms; if it is regarded as not existing, dearly thereis nothing to ratify. In this connection I quote the followingpassage from Pollock on Contracts, which applies with equal forcewhen considering the use of the term, by Roman-Dutch jurists,“ It is commonly said that an agreement made by an infant, if suchthat it cannot be for his . benefit; is not merely voidable, butabsolutely void; though In general his contracts are only voidableat his option. This distinction, it is submitted, is in itself unreason-able, .and is supported by little or no real authority, while thereis considerable authority against it. The unreasonablenesss of itseems hardly to need any demonstration. The object of the law,which is a protection of the infant, is amply secured by not allowingthe contract to be enforced against him during his. infancy, andleaving it in his option to affirm or repudiate it at his full age.Moreover, the distinction is arbitrary and doubtful, for it muskalways be difficult to say whether a particular contract cannotpossibly be beneficial t-o the party. As for the authorities, the word' void * is . no doubt frequently used; but, then, it is likewise to befound in cases, where it is quite settled that the contract is in truthonfy voidable. And, as applied to. other subject-matters, it has beenheld to .mean only voidable in formal instruments and even in Actsof Parliament* The fact is (as was justly remarked in the argumentof a modem case we shall presently cite) that there is ‘ a constantconfusion, in the books, and sometimes even in recent books, betweenvoid and voidable. ’ So that the language of text writers, of Judges,and • even. of the Legislature, is no safe guide. apart from actualdecision. But when .we look at the decisions, they appear toestablish in cases now in question only, that the contract be*enforced against the infant or some other collateral point equallyconsistent with its being only voidable …… The general law is
that the contract of an infant may be avoided or not at his ownoption."
After citing cases, Pollock goes on to say:It appears to be-
agreed that the sale, purchase, or exchange of land by an infant isboth as to. the contract- and the conveyance only voidable at his-option."
Emosjr.
Fernando v
Fernando
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1916. In the case of Molynextx v. Natal Land and Colonization Co.,1y.-Kruma .t the Privy Council, on an appeal from a decision of the Supreme
Court of Natal in the case of a transaction by an insane person, held
that the Roman-Dutch authorities say that it is absolutely void,but added that “ Roman-Dutch law, while denying the capacity ofan insane person to bind himself by contract, recognized the equityof allowing a person who has in good faith expended money onbehalf of a lunatic to have his expenses recouped/’
In the case of a minor, it would appear that Roman-Dutchlaw goes further, and enunciates that principle that a minor oncoming of age may ratify the contract, and that the other partyto the contract is bound by it. This is equivalent to saying thatthe contract, in equity, if not in law, is voidable. In the case ofGunasekera Hamini v. Don Baron1 2 3 the point for determinationwas one of title, not of ratification or restitution, and the .case is,therefore, no authority for the proposition that a minor cannotratify his act on coming of age. The Roman-Dutch authorities allspeak to the contrary.
On the question of the refund of the purchase price, Nathan 8says that a person who surrenders without action property ^ acquiredfrom a minor may, nevertheless, recover the purchase price by anaction condictio sine causa (i.e., as money paid without considera-tion). In the present case the land was leased to raise the money.for the marriage of the minor; the money was paid to her, and shehas had the benefit; the property came to her from her father, andy/as property out of which dowry and marriage expenses would, inthe ordinary course of events, properly be taken; and the learnedJudge has found that the lessee knew the girl was a minor, butacted in good faith for her benefit. In the circumstances, on the.authority of Sand£, the plaintifi. would be entitled to mesne profits,and the defendant to return of the lease money and interest, butas the lease money and interest approximately represent the profits,there is no reason for an account of the mesne profits, I would set•off the one against the other. Inasmuch as the lease was voidableat the option of the minor, the defendant’s cause of action aroseonly when the plaintifi began to disturb him in his possession (seeSilva v. Silva * and Senaratna v. Jane Nona,6 in which the case ofDowper v. Qodmond * is discussed), and the claim for restitutionis not prescribed. The lessee, in my opinion, is entitled to a refundof any money paid in excess of the rent for the period of his•occupation.
I would vary the decree accordingly, but would make noorder for costs on the appeal, as each side has been partiallysuccessful.
1 (1905) A. C. 656.
* (1902) 6 N. L. it. 273, 280.
3 Vol. I., art. 208.
i * (1913) 16 N. I/. B. 303.• (1923) 16 N. I-. ft. 339.
« (1839) 9 Bing. 748.
i
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Schneider A.J.—
By an indenture executed by her and the defendant the firstplaintiff purported to lease to the defendant an allotment of landfor a term of ten years and five months from the date of the indenturein consideration of a rental of Rs. 1,000. It is stated in the inden-ture that this rental is at the rate of Rs. 100 a year, as the possessionduring the period of five months immediately following, the date ofexecution was to be free of rent. It was stipulated that Rs. 200was to be paid at the execution of the indenture as the rent for thefirst two years, and that the balance Rs. 800 was to be paid byinstalments of Rs. 200 at the beginning of each period of two years.The defendant paid the sum of Rs. 200 in terms of the indenture,and the whole of the balance sum of Rs. 800 on June 20, 1912.For vthis latter payment the first plaintiff granted him a receipt tothe effect that, although that money was not then payable accordingto the terms of the indenture, she had received the same “ on accountof a necessity of mine.”
The defendant obtained possession in terms of the indenture.The first plaintiff was born on October 20, 1897. She was thereforea minor at the date of the execution of the indenture. She marriedthe second plaintiff on August 13, 1912. In their plaint, which isdated March 22, 1916, and which I shall deem as the date of theinstitution of this action, the plaintiffs prayed that—
The indenture be declared null and void.
The defendant be ejected, and the first plaintiff restored to
possession.
The defendant be decreed to pay plaintiffs Rs. 450 as the
mesne profits for the period of three years immediatelypreceding the action, together with a further, sum atRs. ■ 12.50 a month from the date of the plaint tillrestoration to possession.
In his answer the-defendant, inter alia, prayed that if the indenturebe declared void, that the first plaintiff be ordered to pay hnn thesum of Rs. 1,000, with interest at 9 per cent, per annum from“ date of decree.4’
At the commencement of the trial plaintiffs ’ counsel moved, and wasallowed to withdraw, the prayer that the indenture be declared void.
rhe parties proceeded to trial on a number of issues. Uponthese- issues the learned District Judge held (1) that the first plaintiffhad been benefited by the lease, because the consideration for thelease was spent for the expenses of her marriage and on account ofher dowry, and that the.Rs. 1,000 had been paid to her by thedefendant; (2) that the defendant was entitled to recover this sum,but that “ his claim was prescribed,” he does not say why it wasprescribed; (3) that the first plaintiff was not entitled to recovermesne profits, because “ she allowed the defendant to possess after18-
me.
Femandov.
Fernando
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1916.
SchneiderA. JT.
Fernando v.Fernando
she attained majority about three and a half years ago, and isestopped by her conduct frdm recovering; (4) that the first plaintiffwas entitled to have the defendant ejected and to be restored topossession; and (5) that the plaintiffs were not entitled to theircosts of the action. In the course of the judgment he holds thatthe defendant was well aware of the minority of the first plaintiffat the date of the execution of the indenture.
The defendant appealed against only that part of rtbe judgmentwhich dismissed his claim for the restitution of the Rs. 1,000 andinterest, and the plaintiffs took objection to that portion of thedecree which dismissed their claim for mesne profits and for costs.The appeal was argued upon the footing that the findings of thelearned District Judge in regard to the facts were correct. Theappeal, therefore, was confined tp the question of the defendant'sright to recover the Rs. 1,000 paid by him and the plaintiffs’ rightto recover mesne profits and to order for costs.
• ,V,
In regard to the claim to recover the Us. 1,000 two points arise:
(1) Gan the defendant claim a refund of this sum or any part -of it?And (2) Is his claim prescribed? In my opinion the defendant'appellant is entitled to succeed on both these points. The lawapplicable is the Boman-Dutch and any other local law. TheRoman-Dutch law authorities are to my mind clear that where aminor seeks to recover possession by a vindicatory action, such asthis, upon the ground that the contract under' which the possessionwas transferred from him was ineffectual, he must restore the pricein whole or in part which he had received. or: had been applied to .his use or his benefit. (Sande: Restraints upon Alienation ofThings, ch. 1, para. 83; Nathan: Common Law of South Africa,vol. 1., s. 334; Voet, 27, 9,, 10; Grotius: Introduction to DutchJurisprudence, 1, 8, 5; Pereira: Laws of Ceylon (1913), 185.)
"S *
It was argued by the respondents’ counsel that the passage involume I. of Nathan indicated that the minor was under no obliga-tion to restore the price paid to him or applied to his use if thepossession was mala fide, because the exceptio doli mali was availableonly to a bona fide possessor. In this contention I think he is wrong.
In the passage, in question, Nathan proceeds to indicate that theextent of the liability for the mesne profits on the part- of -thepossessor will depend on his bona or mala fides; that, in fact, in thiscase the general rule would apply as to the liability of a possessorto account for the mesne profits. But he clearly indicates that theexception will be available, not according to xthe character of thepossession, but on the ground that the minor seeking to vindicatehad received the price, or it had been applied to his use in whole orin part. Dolus is a word of many meanings. It is used to coverthe want of valuable consideration (sine causa) (Hunter’s RomanLaw, Rights in personam). The meaning of the passage applied tothis case is that the defendant could have pleaded the exceptio doli
i9i&
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mali, in that the plaintiff had received the money paid for the posses*
sion of the property, and that it was against good conscience for her schhktohbto retain the money and at the same time to seek to reoover the A.J.possession which was the quid pro quo for that money. Nathan Fernando v,adds at the end of the passage in question, that where the possessor Fernandohdd restored possession without pleading the exception, he mayreoover the money received by, or applied to the use of, the minor bya condictio sine causa, that is, by an action to recover money paidsine causa, in that the causa had failed pro tanto or totally by therecovery of the possession of the property.
I come next to the question whether the claim, for the recoveryof the sum paid or any part of it is prescribed. It was argued thattime began to run as from the date of payment, because a minor'scontract is void, and the money was therefore recoverable by thedefendant the moment it was paid, and that the time wouldbegin to run as from the date when steps were taken to have thecontract avoided only if the contract were voidable. I cannotagree with this contention. Time begins to run from “ the timewhen the cause of action shall have arisen or accrued," in' thewords of the Ordinance No. 22 of 1871. We are therefore concernedprimarily with what is the “ cause of action " in regard to thedefendant’s claim? Although the Civil Procedure Code, 1890,was enacted long after the Ordinance No. 22 of 1871, I think wemust interpret the words " cause of action ’’ in Ordinance No. 22of 1871 in the light of the Civil Procedure Code. " Cause of action,"therefore, for purposes of time limitation, is the " wrong for the^prevention or redress of which an action may be brought. " Whatis the " wrong " or the grievance of which the defendant can com-plain? It is not that he paid Rs. 1,000 upon a contract which isineffectual. He got all he bargained for.' So long as he remainedor was allowed to remain in possession he had no cause of complaint.
It is the institution of this action which constitutes his grievance.
His grievance or the “ wrong "-is that the first plaintiff is takingaway from him the benefits of the possession of certain property, forwhich benefits he had paid at the rate of Rs. 100 per annum. Hiscause of action, therefore, arises with the interference with hispossession, and his right to ask. for the return of the whole or partof the sum he has paid does not arise till the first plaintiff makesher claim to vindicate the property. This view is consonant withthe principle laid down and followed in the cases of Cowper v.
Godmond,1 SUva v. Silva,2 and Senaratna v. Jane Nona.3 In the"last of these cases, Wood Renton J., who had taken part in thedecision of Marthelis Appu v. Jayewardene * expressed some doubtas to the accuracy of the law laid down in 1908. .It was contendedthat the principle in Marthelis Appu v. Jayewardene * applied to this
i (1888) 9 Bing. 748.
3 (1913) 16 N. L. R. 303.
3(1913) 16 N. L. R. 389.* (1908) 11 N. L, R. 272.
( 200 )
1916.
SCHCTHTDBR
A.J.
Fernando v.Fernando
case. But that case has no application here, for the obvious reasonthat the facts here are quite different. Here the defendant obtainedall he bargained for and had no right to come to Court, becausethe contract was binding on him, although it did not bind theminor. In Marthelis Appu v. Jayewardene 1 the plaintiff did notget a conveyance in terms of the agreement upon which he had paiihthe money, and he had a right of action immediately the money waspaid either to get such a conveyance or to be repaid the money hehad paid.
Here I would pause to add a word as to the nature of a minor rscontract under the Boman-Hutch law, not because it is necessaryto do so for the decision of this case, but because the question wasdiscussed at some length at the argument of this appeal. It is truethat the words ** null and void ipso jure ” are used in speaking of theeffect of a minor’s contract. (Sande: Restraints upon Alienation,ch. 1, para. 79; Maasdorp: Institutes of Cape Law, vol. III., pp. 14and 15; Van der Linden 93; Voet, IS, 1, 11, and'27, 9, 14.) It isalso true that it has been held that a minor’s contract is void andnot voidable, e.g., in the case of Ounasekera Hamini v. Don Baron2and Manuel Naide v. Adrian Hamy. But the Roman-Dutch lawauthorities are equally clear that these same contracts, which aresaid to be null and void, may be ratified by the minor. Voet,-27, 9, 14; Maasdorp:Institutes of Cape Law, vol. 1:, p. 254;
Sande:- Restraints upon Alienation, ch. 1, para. ■ 84; Nathan:Common Law of :South Africa, vol. 1., s. 339.) As I read theRoman-Dutch law authorities, a minor’s contract is neither void norvoidable in the sense in which those words are understood in 'theEnglish law. In that law a contract is said to be void if it has nolegal effect, and binds neither party; voidable if one of them mayset it aside under certain conditions, but unless set aside is bindingupon both parties.v
According to the-Roman-Dutch law, a minor’s contract is suchthat it does not bind the minor unless he ratified it on attainingmajority, while it binds the other party to it. It is therefore invalid,so far as the minor’s – obligation is concerned, until he ratifies' it-But it is valid so far as the obligation on the part of the other partyis concerned. Thus, Maasdorp (Institutes of Cape Law, vol. III.,p. 17), speaking of the “ Essentials of Contract, ’’ states:“ The
contract of a minor entered into without the consent of his parentsor guardians will be valid to this extent, that it will bind others tohim without binding him to others.
“ (1) Such a contract, also, will not be entirely devoid of effectin other ways, because, contrary to the ordinary rules with, regardto suretyship, it will allow of a valid suretyship being entered into,and valid pledge and mortgages given, with regard to it, thoughbeing itself invalid.
i (1908) 11 N. L. Jt. 272.2 (1902) 5 N. L. R. 273, 280.
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(2) It will also become valid, if it be either expressly or tacitlyratified by the minor upon coming of age, and tacit ratification willbe presumed from the fact of a payment being made or accepted afterattaining majority in pursuance of a contract made during minority.1
Pereira (The haws of Ceylon, 1913) puts the position correctly, atpage 186, when he states that “ all contracts by minors appear to beineffectual unless ratified by means of some positive act.”
There remains the question whether the first plaintiff is entitledto claim mesne profits, and if so, from what period? If the defend-ant was a mala fide possessor, she is entitled to this claim as fromdate of commencement of possession. (Nathan, vol. I., p. 334;Voet, 27, 9, 10.) The mala or bona character of the " fides " of apossessor turns simply upon one fact, namely, did he or did he notknow of the defect in his title to possession, that is, in this easethat his lessor was a minor. (Sandd: Restraints upon Alienation.cli. 1, paras. SI and 82.) The Judge has held that the defendantknew of the first plaintiff’s minority at the time he entered intothe transaction. The first plaintiff is, therefore, entitled to claimmesne profits as from the commencement of the lease, and, thedefendant to claim repayment of the Bs. 1,000, with interest at9 per cent., from the same date. Mesne profits have been agreedupon at Be. 125 per annum. Considering that the first plaintiff hadslept over her rights for nearly three and a half years before shecame to Court, and that the- defendant is entitled to claim interest
■v
on the sum of Bs. 1,000 at the legal rate of 9 per cent, per annum,I think that the most equitable course is to decree that the claimfor mesne profits be set off against the claim for recovery ofthe rent for the time during which the defendant shall have hadpossession before the first plaintiff is restored to possession, andthat the defendant be declared entitled to recover such, sum outof the said sum of Bs. 1,000 as may remain unappropriatedas rent in terms of the lease.
I agree in the order proposed by my brother Ennis.
Varied.
1916.
SOHNEIDBBAt J.
Fernando v.
Fernando
1 Voet, 4, 4, 44.