001-SLLR-SLLR-2004-V-3-FERNANDO-v.-FERNANDO-AND-OTHERS.pdf
CA
Fernando v Fernando and others
fWiiavaratne. J.)
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FERNANDOv
FERNANDO AND OTHERSCOURT OF APPEALWIJAYARATNE, J. ANDSRIPAVAN, J.
CALA 106/01 (LG)
DC PANADURA 1512/LAUGUST 23, 2004
Minority – Minor – Transferring property to mother to enable mother to obtaina ioan-Minor living with parents – Bank seeking to parate execute property -Minor challenging the Bank’s right to sell – Is the transfer deed void? -Contract void prima facie? – Fraud on the part of parents?
The petitioner, minor daughter of the respondent transferred her land to herparents, to enable them to mortgage the land to raise a loan from the Bank; asthere was default, the Bank sought to parate execute the property.
The petitioner (now a major) sought a declaration that, her deed to her parentsand the mortgage bond be rendered void on the basis of minority of thepetitioner at the time the property was transferred to her parents and soughtinjunctive relief preventing the Bank from alienating the property.
The District Judge refused the injunctive relief, drawing a presumption that asthe plaintiff-petitioner is living at the same address as her parents, thepetitioner is attempting a fraud to prevent the sale of the property.
Held:
In view, of the very fact of the minority of the transferor the allegedtransfer Is a contract void prima facie.
The mere fact of her living with her parents and being silent for oneand half years after attaining the age of majority is not capable ofestablishing any act of manifestation of her intention to ratify atransaction but a practice only in the culture of the society she livesin.
Whether the plaintiff-petitioner ratified such transfer even impliedlyis a matter that should have been proved in relation to some act onher part manifesting her intention to ratify same.
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Per Wijayaratne, J.
“Even if it is considered, without any proof of fact that the 1st and2nd defendant-respondents who are the parents of the petitionerattempted a fraud on the Bank, in the absence of any proof of theplaintiff-petitioner joining in the same, there is no legal justifiable■ basis upon which the plaintiff-petitioner be denied her legal rightsto vindicate her title and impugn the purported transfer in favour ofher mother”.
APPLICATION for leave to appeal from an order of the District Court ofPanadura, with leave being granted.
Cases referred to:
Kumarawardane Rajapaksa v PodiAppuhamy – 1989 1 Sri LR 173
Wickremasinghe v Corine de Soysa – 2002 1 Sri LR 37Kumara Hettige for plaintiff-petitioner.
A. H. H. Perera for 2nd defendant-respondent.
Rohan Sahabandu with Sunethra Lakshmiweva for 3rd and 4th respondents.
Cur.adv.vult.
September 27, 2004
WIJAYARATNE, J.The plaintiff-petitioner filed plaint in the District Court ofPanadura against the 1st to 4th defendant-respondents seeking adeclaration that deed No. 3952 dated 24.07.1993 attested byK.A.B.O. Perera, Notary Public, be declared void on the basis ofthe minority of the plaintiff, the transferor therein and seekingrestutio in intergrum and for a further declaration that MortgageBond No. 474 dated 15.2.1994 be declared void and for the grantof an interim injunction and an enjoining order pending the grant ofan interim injunction restraining the 3rd and 4th defendants from
auctioning, selling, mortgaging or leasing the property described inthe schedule II of the plaint, which the plaintiff-petitioner claimedtitle to.
The learned District Judge who refused to issue an enjoiningorder on the ground that there is no urgency, however issued notice
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Fernando v Fernando and others
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of injunction on the 3rd & 4th defendant-respondents who hadshown objection to the grant and issue of interim injunction asprayed for. The learned District Judge having considered theapplication for the issue of interim injunction and the' objectionsshown to it and the submissions made on behalf of respectiveparties, refused the interim relief sought by plaintiff-petitioner. In hisorder refusing the relief the learned District Judge has confessedthat he is proceeding to refuse the application on his havingconcluded without considering any of the facts, that the plaintiff-petitioner who lives at the same address as the 1st and 2nddefendants who are her parents, is attempting a fraud to preventthe sale of the property and that the petitioner is acting in collusionwith her parents. He also states that the party seeking injunctiverelief from Court should come to Court with clean hands.
Being aggrieved by the order of refusal of injunctive relief, theplaintiff-petitioner filed this- application, seeking to set aside theorder of the learned District Judge and direct the learned DistrictJudge to issue an interim injunction. When the inquiry into theapplication was taken up the Counsel representing the respectiveparties agreed that the substantive matter with regard to thequestion of law to be decided in appeal be disposed of by way ofwritten submission. Accordingly I proceed to consider the writtensubmission tendered and make order on the application.
It is an admitted fact that the plaintiff-petitioner was only 13 •years of age at the time she is purported to have signed theimpugned deed of transfer No. 3952 in favour of her mother the 2nddefendant-respondent. The fact of her minority at .the time is alsoproved by the production of her Birth Certificate No. 5643 markedP5. In view of the very fact of the minority of the transferor thealleged transfer on deed No. 3952 impugned in the action thetransfer purported to have taken place is a contract void primafacie. Vide Kumaradasa Rajapakse v. Podi Appuhamyi') andWickremasinghe v Corine de SoyzaX2)
Whether the transfer was ratified by the minor on attaining ageof majority , is a matter the learned District Judge should haveconsidered on evidence in the light of the objections of the 3rd and4th defendant-respondents. The ratification permitted under
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Roman Dutch Law may be express or implied manifest from someact by the minor, the plaintiff-petitioner, manifesting an intention toratify. Vide Wickremasinghe v Corine de Soyza {supra). Thelearned District Judge did not, as confessed by him in his orderconsider any of the facts. However he drew a presumption oh the. fact of the plaintiff-petitioner living at the same address as herparents the 1st and 2nd defendant-respondents, that the plaintiff isattempting a fraud to prevent the sale of the property. When theplaintiff-petitioner in her plaint prayed for the declaration that theMortgage Bond no. 474 be declared void by reason of themortgagor acquiring the rights she mortgaged on a transfer whichis void, it is clear that the plaintiff-petitioner instituted proceedingswith the sole intention of preventing the sale by way of parateexecution at the hands of the 3rd and 4th defendant-respondents.However the fact that the petitioner, who attained the age ofmajority just one and half years prior to institution of action residingwith her parents at the same address is no reason or justificationfor such a presumption, specially in considering the culture and thetraditions in this country where a young female, irrespective of herage would live with and sometimes depend on her parents until sheis given in marriage.
The learned Counsel for the 3rd and 4th defendant-respondentsargue, that the plaintiff-petitioner living with her parents hadmisrepresented as a major and at the age of 13 years she was in aposition to understand the nature, of her transactions. He in factrefers to the notaries attestation that the transferor is not known tothe notary who has executed more than 3900 deeds, anexceptionally experienced notary by mere reason of such largenumber of attestations, who has certified that a sum of Rs.100,000/= being paid in cash in his presence. In my view this is thebeginning of the so-called fraud perpetrated on the plaintiff-petitioner. If the notary, who is also an attorney-at-Law, with suchwide experience could not observe the very tender years of theplaintiff-petitioner at 13 years of age, the only possible conclusionis that either the notary was not stating the truth or that one whosigned the deed in. the name of the plaintiff-petitioner could havebeen someone impersonating her. However this is a matter ofevidence and there is no justification in law to draw anypresumption as to the execution without the same being proved byevidence. Equally suspicious is the role of the 3rd and 4th
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Fernando v Fernando and others
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respondents, who acting through' their employees accepted aproperty valued at Rs. 150,000/- just six months before the samewas offered as security for a loan of over Rs. One point Two Million,never probing into the question of the transferor being a minor atthe time of acquiring the same as manifest on the deed in herfavour. If the learned District Judge considered the obvious facts ondocuments, which he confesses not to have considered, he wouldnot have presumed things without consideration of relevant facts.
In any event it is not up to the learned Counsel for the 3rd arid 4th 100respondents to enunciate law and say that at the age of 13, theplaintiff-petitioner was in a position to understand the nature of thetransaction, when the law says that a minor does not have thecapacity to understand the nature and effect of contracts.
The learned District Judge has concluded that the transferee who .is the mother of the plaintiff-petitioner was fully aware of the minorityof age of the transferor and he has held that fact against the plaintiff-petitioner simply because she lived with the parents since theexecution of the deed to the time of institution of action. As referred .to earlier in this order the mere fact of a minor child living with the 11 oparent even after attaining age of majority is not possible of anattribution of fraudulent intention unless there is some materialevidence establishing her acting in concert with her parents todefraud the bank. More over the learned District Judge hasinterpreted the 1st and 2nd defendants-respondents failure orinability.to repay the loan as an attempt to defraud the bank. He hassimply overlooked the fact of the 1st and 2nd defendant-respondentshaving repaid over Rs. One point Two million to the 3rd respondentbank as admitted in their statement of objection (paras 10 and 11).■Inability to meet one’s liability in no way can be interpreted as an 120attempt or intention to defraud. The learned District Judge appearsnot to have had any clear view about what is fraud, and drawn apresumption without any basis either of law or of any fact.
He also has considered the fact that the plaintiff-petitioner has notsought to impugn the deed of partition. It appears that the learnedDistrict Judge has not paid any attention to the legal aspect of thematter and it is up to the plaintiff-petitioner only, to ratify or not to ratifya contract and in all the circumstances she may not choose toimpugn what is advantageous or beneficial to her as she lawfullymight.130
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Even if it is considered, without any proof of fact, that the 1st and2nd defendant-respondents who are parents of the plaintiff-petitioner, attempted a fraud on the 3rd defendant-respondentbank, in the absence of any proof of the plaintiff-petitioner joining inthe same, there is no legal or justifiable basis upon which theplaintiff-petitioner be denied of her legal rights to vindicate her titleand impugn the purported transfer, in favour of her mother.Whether the plaintiff-petitioner ratified such transfer, even impliedlyis a matter that should have been proved in relation to some act onher part manifesting her intention to ratify the same vide 140Wickremasinghe v Corine de Soyza (supra). The mere fact of herliving with her parents and being silent for one and half years afterattaining the age of majority is not capable of establishing any actof manifestation of her intention to ratify a transaction but a practiceonly in the culture of the society she lives in.
The learned District Judge has no basis justifiable in law or onfacts, when he stated that the plaintiff-petitioner has not come toCourt with clean hands. There is not a single fact established tojustify a conclusion that that her hands are dirty with acts of fraud.
In the circumstances of the matter under review, the learned District 150Judge should have appreciated the fact that a sale "by the 3rdrespondent in parate execution would have tremendouslyprejudiced the rights of the plaintiff-petitioner to vindicate her rights.
The mischief that is intended to avoid is the disposition by way ofsale on the basis of an alleged transfer impugned in theproceedings before the learned District Judge, which should havebeen enjoined pending determination of the rights of the parties.
The Learned District Judge has refused the same without anyfactual or legal basis but on mere presumption drawn and notsupported by any evidence.160
' In these circumstances, and in view of the facts glaring in theface of injustice of the refusal, of interim relief, I allow the appealand set aside and quash the order refusing the application dated
and grant the interim injunction as prayed for in prayer(d) or (qi) in the plaint. The plaintiff-petitioner is entitled to taxedcosts as against the 3rd and 4th defendant-respondents.
CA
Manatunga v. Amarasinghe
(Somawansa, J.)
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It is also directed that the trial of the action before the DistrictCourt be heard and concluded by a judge other than the learnedDistrict Judge who made the impugned order.
The Registrar of this Court is directed to communicate this orderto the District Judge of Panadura.
SRIPAVAN, J. I agree.
Appeal allowed
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