COURT OF APPEAL.
WIJETUNGA J. AND ANANDACOOMARASWAMY J.C.A. NO. 558/82 (F).
D C. KULIYAPITIYA NO. 6067/L.
23 OCTOBER, 1990.
Contract of sale of land by minor without court sanction – Presumptionof invalidity – Restitutio in integrum – Void ab initio and voidable -Assisted and unassisted contracts of minor – Damage, loss or prejudice -laesio enormis.
The plaintiff sued for rescission of the contract of sale of land to thedefendant on the grounds of minority at the time of the sale and laesioenormis – the land being sold for Rs. 25.000/- when it was worth Rs.100,000/-. The District Judge entered judgment for the plaintiff on bothgrounds and ordered the return of the Rs. 25,000/- to the defendant. Theplaintiff's father had joined in the sale but there was no court sanction. Thedefendant appealed to tile Court of Appeal.
In certain types of contract like sale of land even where the minor isassisted by a guardian but had no court sanction, the presumption of inva-lidity attaches to the contract and all the minor has to prove is his minorityat the time of the impugned transaction. This he bad done. He can succeedin his action for restitution. No proof of toss, damage or prejudice b neces-sary. The deed b invalid.
Strong proof of the true value of the land had been placed beforecourt. The plaintiff had in fact suffered loss, damage or injury.
Sri Lank* Law Report*
 2 Sri L R.
Cases referred to:
Silva v. Mohamadu (1916) 19 NLR 426
Phipps v. Bracegirdle (1933) 33 NLR 302
Majeeda v. Paramanayagam (1933) 36 NLR 196
Siman Naide v. Aslio Nona (1945) 46 NLR 337APPEAL from the District Court of Kuliyapitiya.
H. L. de Silva P.C. with Sunil Cooray for defendant – appellant,
A. C. Gooneratnc Q.C. with C. Ladduwahetty for plaintiff – respondent.
Cor. adr. volt.
28 March, 1991.
The Plaintiff instituted this action to have a deed oftransfer No. 8522 dated 17.5.77 attested by M. Victor, NotaryPublic (P5) declared invalid on the ground that at the date ofexecution of the said deed he, the vendor, was a minor. In thealternative, the plaintiff claimed that the land sold under thesaid deed was for a price far below its market value and hewas therefore entitled to the same relief on tne principle oflaesio enormis. The consideration on the said deed was Rs.25,000/-. The plaintiff claimed that the land in question wasworth about Rs. 100,000/-
The defendant, in his amended answer, stated inter aliathat the plaintiff had misled him by falsely representing thathe was of full age and had thereby induced him to enter intothis transaction. The plaintiff was thus estopped by his con-duct from claiming that the said deed was invalid. He furtherstated that the parties were aware of the true value of theproperty in question at the time of the said transaction and thedefendant paid the plaintiff the said value. He prayed fodismissal of the plaintiffs action.
Kithsiri Feme vs. Dayasiri Penra (Wijetuaga J.)
The case went to trial on a number of issues and thelearned trial judge entered judgement for the plaintiff in termsof paragraphs (a) and (b) of the prayer to the plaint andfurther directed that the plaintiff refund to the defendant thesum of Rs. 25,000/- obtained by him on the said deed (P5).The present appeal by the defendant is from that judgementand decree.
The learned trial judge has rejected the plaintiffs claimthat the land in question had been sold by the plaintiff farbelow its market value and has accordingly refused him reliefon the alternative cause of action. There is no cross appeal bythe plaintiff from the said finding. The only matter that needsconsideration, therefore, is whether the learned trial judge wasright in declaring the said deed invalid on the ground of theplaintiffs minority at the time of the said transaction.
The plaintiff admittedly was a minor of the age of 18 yearsand 7 months at the relevant time. The property in questionhad earlier belonged to the plaintiffs father, who had gifted ahalf share of the said land with the house standing thereon tothe plaintiff on deed No. 1703 dated 30.1.70, attested byC. Premachandra, Notary Public (P2) and the other half shareto another son on deed No. 1704 attested by the same Notaryon the same date (P3). The latter had conveyed his interests tothe plaintiff on deed No. 1996 attested by T.B.C. Edirisinghe,Notary Public dated 6.9.76 (P4). In all the three deeds thefather had joined in the transactions but had reserved his life-interest. Thereafter, on the deed in question (P5) the plaintiff,together with his father, had sold the entire property to thedefendant on 17.5.77 for a sum of Rs. 25,000/-.
On the evidence led in this case, the learned trial judge hasheld that it cannot be concluded that the plaintiff had, at thetime of executing the said deed, fraudulently represented him-self to be of full age and had thus deceived or misled thedefendant; consequently the principle ‘fraud supplies the wantof age* does not apply to this case. Dealing with the defend-
Sri lull Law Reporta
[1991) 2 Sri L. R.
ant’s claim that the plaintiff was an emancipated minor at thetime of the .said transaction, he has further held that the evi-dence does not permit such a conclusion being reached.
The basis on which the learned trial judge has reached theconclusion that the deed (PS) is invalid is that, though theplaintiff who was a minor was assisted in this transaction byhis guardian (the father), the latter had not obtained theauthority of the Court to so transfer the property in . questionand as such the transaction falls into the category of an unas-sisted contract by a minor. He states that as a minor on com-ing of age is entitled to apply to Court for restitution bydeclaring such transaction to be invalid, the plaintiff wasentitled to the relief claimed.
It was the contention of learned President’s Counsel for thedefendent-appellant that this transaction was not void ab initiobut was only voidable. Thus, the plaintiff, though entitled tothe remedy of restitio in integrum within three years of attain-ing majority, had to satisfy the Court that damage, loss orinjury had been caused to him by reason of the transaction.The proposition that a sale of land by a minor is not void, butonly voidable at his instance and that an action to have a deedof sale executed by him during his minority set aside should bebrought within three years of his attaining the age of majqrityfinds support in Silva v, Mobamadu, (1). But learned counselsubmitted that in the instant case the plaintiff has failed toprove damage, loss or injury to him and consequently the trialjudge was in error when he declared (he deed (PS) invalid andof no force or avail in law.
He further submitted that restitution contemplates seriousloss and damage. In Voet’s Commentary on the Pandects(Gane’s translation) Vol. I, Book IV at page 586, it is statedthat restitution is not granted for trivial cause. “Nevertheless itis not to be vouchsafed at random to anyone claiming it andsetting up a cause; but only after cognisance has been taken of
Kitbsiri Percra vs. Dayasiri Percra (Wyetuoga J.)
the question whether the cause is really genuine, just and suffi-ciently serious. In the first place indeed it ought never to bebestowed if only slight damage has occurred.”
In Phipps v. Bracegirdle (2), it has been held that restitu-tion is not allowed unless the applicant can show that he hassuffered actual damage.
It is stated by Drieberg J. in the course of that judgement,quoting Maasdorp’s Institues of Cape Law (1907 ed.) Vol. Ill,pages 58 and 67, that the form of relief known as restitutio inintegrum was primarily one intended for relief from contractson the ground of minority, error, fraud, and duress. Theobject of the action was to recover any property lost throughthe contract, or compensation in damages, or damages gener-ally, but actual damage had to be proved.”
Again in Majeeda v. Paramanayagam (3), where a Muslimwoman, though married was under the age of twenty-oneyears, entered into a contract with the assistance of her hus-band, it was held that relief from the contract must he soughtby way of restitution and to obtain such relief there must beproof of damage, loss, or prejudice. Drieberg J. states at page197 that ‘‘where a minor contracts with the assistance of aguardian with the due observance of all the other essentials ofa contract, relief from the contract must be sought by the pro-cess of restitution, and for this, among other conditions it isnecessary for the minor to prove that he has suffered seriousloss, damage, or prejudice.”
It was stated by Soertsz C.J. in Siman Naide v. Aslin Nona
, that it must be regarded as settled law ever since Silva v.Mohamadu (supra) that a sale of immovable property by aminor without the sanction of a competent Court is voidable,not void and that a minor may relieve himself by restitutio inintegrum or 'some equivalent legal proceeding’. He describedit as a hybrid proceeding partaking both of the character ofrestitutio in integrum and of rei vindicatio.
Sri Lanka Law Reports
11991] 2 Sri L. R.
He further stated that where a minor himself has alienatedimmovable property, his remedy ought to be by way of restitu-tio for he has purported to divest himself of his title and heought not to be allowed to be the judge in his own case as tothe validity or invalidity of his alienation and to sue rei vindi-catione by assuming that the dominium is still in him.
The principle laid down by Drieberg J. in Majeeda v.Paramanayagam (supra) that “it is necessary for the minor toprove that he has suffered serious loss, damage or preju-dice….’’ was also considered by Soertsz A.C.J. and he went onto hold that “where it has not been shown that the minor hasbeen benefited as the recipient of some singulare emolumen-tum, he must be taken to have suffered the kind of loss ordamage sufficient to enable him to obtain relief.’’
Weeramantry in his Law of Contracts, Volume I, dealswith the action for restitution and states thus at page 444 inregard to the burden of proof; “There is an important differ-ence between the burden of proof in actions relating to unas-sisted and assisted contracts. In the case of the former, there isa presumption of invalidity, while in the case of the latterthere is on the other hand a presumption of validity. Theresulting difference in regard to the burden of proof is chat allthat need be proved in regard to the first group of contracts isthe fact of minority, while in regard to the second group,proof is required not merely of minority but also of prejudice.While, therefore, in the first group of cases the burden of pro-viding benefit to the minor is on the party relyiug on the con-tract, the second group of cases throws on the party impugn-ing the contract the burden of establishing a detriment tohimself.’’
He states at page 438 that “assisted contracts of a minormay be either those entered into by <a minor with the assist-ance of a guardian or those entered into by the guardian forand on behalf of the minor. In regard to certain types of con-tracts, even the assistance of the guardian is insufficient to
Kithsiri Perera vs. Dayaairi Perera (Wyettwga J.)
enable a valid contract to be formed. The consent of court isrequired in addition to the assistance of the guardian. Con-tracts by minors for the alienation or burdening of theirimmovable property are the principal types of such contract.”
He further states at page 445 that “contracts in relation toimmovable property…. do not attract different rules in regardto the burden of proof. All that need be remembered is that,in regard to such contracts, the presumption of validity ariseswhen the contract has been sanctioned by court and that in theabsence of such sanction there is a presumption of invalid-ity Consequently, in the absence of such approval, the
minor need only prove his minority and where there is sucbapproval, he must prove prejudice as well. This principle mustnot be applied indiscriminately to all contracts of minors relat-ing to land but only to those sanctioned by Court and in thisrespect our courts have sometimes fallen into error.” Thelearned author cites Siman Naide v. Aslin Nona and Majeed v.Paramanayagam (supra) as examples.
In the instant case, as was mentioned earlier, the plaintiffwho was then a minor had alienated immovable property.Though assisted by his guardian (the father), the transactionwas without the sanction of Court. Applying the aforesaidprinciples enunciated by Professor Weeramantry, the presump-tion of invalidity, therefore, attaches to the said contract andthe burden on the plaintiff was only to prove his minority atthe time of the impugned transaction. He has discharged thatburden.
In any event, the subject matter of this transaction, as isevidenced by the reports submitted to Court by J. AlpheusPerera, Auctioneer, Valuer and Court Commissioner, marked(P6) and (P7), and as deposed to by him in his evidence inCourt, is a productive coconut land situated at Apaladeniya bythe main Kuliyapitiya-Hettipola road, 1 acre 1 rood and 33perches in extent, with a residential house consisting of threebed-rooms, an office-room, a hall, verandah, dining room and
Sri Lanka Law Reports
 2 Sri L. R.
kitchen, constructed of brick and cement. The roof is of valu-able timber, partly covered by tiles and partly by asbestossheets. There is also a latrine and a well. The property hadbeen transferred on the deed (P5) for a sum of Rs. 25,000/- on17.5.77.
What the plaintiff is said to have purchased out of the pro-ceeds of the said sale on deed No. 1427 dated 24.5.77 attestedby G. Sooriyaarachchi, Notary Public (V5) is a coconut land 5acres in extent, situated in Bowatta in Kiniyama Korale. Evenon that assumption, the purchase price thereof being only Rs.15,000/-, the plaintiff had obviously not received the fullbenefits of the sale of the premises in question on (P5), as theproceeds of the sale, viz. Rs. 25,000/- had not been applied infull towards this purchase. The plaintiff had thus suffered loss,damage or injury by reason of the said transaction.
For the reasons aforesaid, I am of the view that the learnedtrial judge was right in declaring the said deed (P5) invalid.
I would accordingly dismiss this appeal with costs.ANANDACOOMARASWAMY, J. – I agree.
KITHSIRI PERRA vs. DAYASIRI PERERA