073-NLR-NLR-V-10-MUTTIAH-CHETTY-v.-DINGIRIA-et-al.pdf
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1907
September 25
C. R.,’ Kandy, 3,525.
Kandyan Law — Minor female — Marriage — Majority — OrdinancesNos.
5 of 1852, 5. 5, and 7 o/ 1865, 5. 2—Ofoft Prooedwre Code, s. 600.
A Kandyan woman under the age of twenty-oae years does notbecome a major by marriage.
A
PPEAL by the plaintiff from a judgment of the Commissioner(J. H. Templer, Esq.) dismissing his action against the
first defendant.
The facts sufficiently appear in the judgments.
H. A. Jayewardene (with him Van Langenberg), for the plaintiff,appellant.
Bawa, for the first defendant, respondent.
Cut. adv. vult.
[Full Bench]
Present: The Hon. Sir Joseph T. Hutchinson, Chief JusticeMr. Justice Middleton, and’Mr. Justice Wood Renton
MUTTIAH CHETTY t?. DINGIRIA et al
September 25, 1907. Hutchinson C.J.—
The question is whether a Kandyan woman who marries underthe age of twenty-one becomes by her marriage papable of enteringinto and binding herself by a . contract, although she is still undertwenty-one. * >
The plaintiff sued the defendants, who are husband and wife, on3 note made by them. The Commissioner dismissed the action asagainst the woman on the ground that she was under twenty-one atthe time when she gave the note.
By Ordinance No. 7 of 1865 all persons are to be deemed to haveattained the legal age of majority on attaining the age of twenty-one,and no person shall be deemed to have attained majority at anearlier period, any law or custom to .the contrary notwithstanding;but nothing therein contained shall prevent any person undertwenty-one from attaining his majority at an earlier period byoperation of law. The intention of this appears to have been toabolish any local law or custom fixing any other age .than twen.ty-oneas the age of majority, but without prejudice to any rule by whicha person 2&ay, on the happening of any event, .attain majority i)y•operation of law irrespective of hi§ age—doubtless Referring princi- *pally to the rule of Roman-Dutch Law prevailing in the non-Kandyan Provinces that a woman- attains majority by operation oflaw on her marriage.,3
4
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1907. The appellant contends that the rule that marriage confersStptember 25. majority was also a rule of Kandyan Law. This contention isHutchinson however, opposed to the decision of Creasy C. J. and Lawson J.
C.J. given in 1871 and reported in Vanderstraaten* 251, which decisionwas followed by Lawrie J. and Browne J. in a case reported inModder 119. The appellant, however, asks us to over-rule thesedecisions on the ground that the Court in those cases overlooked,,or did not give effect to, .the enactment of section 5 of Ordinance No~5 oi .1852, that “ where there is no Kandyan Law, or custom having,the force of law, applicable to the decision of any matter or questionarising for adjudication within the Kandyan Provinces, for the deci-sion of which other provision is not herein specially made, theCourt shall in any such case have recourse to the law as to the likematter or question in force within the Maritime Provinces, whichis hereby declared to be the law for determination of such matter orquestion." The argument apparently is that, if there is no* KandyanLaw or custom whereby marriage confers majority, the law of theMaritime Provinces on that point must be adopted. But theKandyan Law was that a person attained majority by attaining theage of twenty-one, and that he did not attain majority by marriage,,so that it cannot be said that there was no Kandyan Law or customapplicable to the decision of the question.
In my opinion the appeal should be dismissed with costs.
Middleton J.—
«■
This was an action on a promissory note made by the defendants,husband and wife, in favour of Kannappa Chetty, ah# endorsed byhim to the plaintiff.
The husband—the second defendant—did not contest the case,but the first defendant, the wife, pleaded that she signed the note atthe request of her husband, and at the time she did. so she was aminor under the age of twenty-one.
The learned Commissioner of Bequests gave judgment against .thesecond defendant, but dismissed the case against the first defendanton .the ground that she was a minor at .the .time , of the- contract.
It was admitted that the first defendant was a Kandyan minor atthe time of the contract, and the sole question for our determinationoh this appeal of the plaintiff is whether a Kandyan woman attainsmajority by marriage.
The argument for the appellant was .that, as the Kandyan Law issilent as to the effect of marriage on majority, . the case^would begoverned by the Boman-Dutch Law under section 5 or OrdinanceNo. 5 of 1852; also that as puberty under the Kandyan Law wasthe age of majority, the fact of marriage would imply puberty, andso majority, which would thus come about by operation of law..
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In Deeresekere v, Goonesakere1 it was laid down that by the lft07.common law of Ceylon majority was conferred on a woman under Sep*em6gr25-twenty-one years of age by marriage.Mtodiaton
The age of sixteen, 'according to Sawer (page 2 of Pereta*$ Armour), J*was the age of majority for male and female Kandyans.
Ordinance No. 7 of 1865 made twenty-one years the age ofmajority for all persons in Ceylon, any law or custom to the contrarynotwithstanding, except as hereinafter provided, and the provisowas that nothing herein contained shall extend or be construed toprevent any person under the age of twenty-one years attaining hisor her majority by operation of law. This would refer no doubt tothe Roman-Dutch Law as to marriage and the grant of venia <etati»by the Governor.
In the Kandyan Law ho trace is to be found as to the effect ofmarriage on majority, as was stated by this Court in the case report-ed at page 251 of Vandefstraaten. This case was decided in 1871,and it is difficult to believe that the learned judges who decided itoverlooked section 5 of Ordinance No. 5 of 1852.
In the case of TJyandena Ukku v. Yatawila Arumedureya,a reportedin Modder 119-120, Lawrie J. and Browne A.J. in 1898 apparentlyfollowed the ruling in the case reported in Vanderstraaten.
No case has been cited to us in which it has been held that theRoman-Dutch Law applied to the case of a Kandyan minor wife.
I do not think, therefore, that after the lapse of upwards of thirty-five years we ought to disturb what has apparently been considered'to be the law on this point. #
I am not prepared to follow the learned Commissioner of Requestsin his reasoning <as regards the equitable jurisdiction of the Court ofRequests, nor *the argument of tbe learned counsel for the appellantiii reference to section 502 of the Civil Procedure Code, for the reasonsgiven by my brother Wood Renton in his judgment, which I havehad the advantage of perusing.
1 think, therefore, that the appeal should be1 dismissed with costs.
Wood Renton J.—
The appellant sued the respondent, a Kandyan married woman,and her husband, as endorsee, of a promissory note made* by them infavour of one Kannappa Chetty. The husband did not contest theclaim, and the only question before us on this appeal is; as to theliability $>f the respondent, who was married, and under the age oftwenty-one, at the date when the note was signed.* §
The learned Commissioner of Requests has hefd (1) 'that the caseis governed by Kandyan and not by Roman-Dutch Law; and,'*that under Kandyan Law, the contract of a minor wife is void and'
i (ISOS) 1 A. C. J*. 135.2 S. 0. Min.. June 22, 1898.
1907.
jSeptemberZll.
WoodRonton j.
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incapable of being legalized by her husband?s adoption or ratifica-tion of it; (2) that, even assuming that the Kandyan Law weresilent on the point, the Roman-Dutch Law (section 5 of OrdinanceNo. 5 of. 1852 to the contrary notwithstanding) ought not to beapplied, since it would deprive the Court of Requests of its“ equitable jurisdiction ” to protect the property of miners.' I amnot prepared to follow the learned Commissioner on the latterpoint. It may well be—and I think it would be—the case that,where money is recovered on behalf of a minor through the agency,and with the assistance, of a Court of Requests, that Court wouldbe entitled to see that the money so recovered was properly appliedfor the minor's benefit. But I am not aware that Courts ofRequests possess any “equitable jurisdiction M over the propertyof minors; and they certainly possess no jurisdiction of that kindwhich would empower them to decline to apply a positive rule ofStatute Law.
The questions whether the case is governed by Kandyan* orRoman-Dutch Law, and, if by the former, what the rule laid downby that law is, are more difficult. It is clear, of course, that ifRoman-Dutch Law governs the case, marriage confers emancipation:Deereaekere v. Goonesakere;1 and also—to put' aside at the outseta . preliminary argument suggested by Mr. Hector Jayewardene onbehalf of the appellant—that section 502 of the Civil Procedure Codethrows no light on the problem we have now to solve. Section 502merely provides that marriage, inter alia, confers majority “ forthe purposes ’’ of the chapter of which <it forms part, and whichdeals with actions <by and against minors and persons under otherdisqualifications.f
The only enactments really relevant are Ordinance No. 5 of 1852,section 5, which introduces the Roman-Dutch Law as the law to beapplied to the decision of any case arising for adjudication withinthe Kandyan Provinces where the Kandyan Law is silent, andOrdinance No. 7 of 1865, which makes twenty-one the legal age ofmajority throughout the Colony (section 1), with a saving clause(section 2) in favour of the attainment of majority by operation oflaw.
It is* admitted by Mr. Jayewardene that there are two directdecisions against him on the question at issue in this case. In D. C.,Kandy, 53,972,® Creasy C.J. and Lawson J. set aside a bondexecuted by a minor married woman during nonage on the groundsthat (1) prior to Ordinance No. 7 of 1865 the age of majority byKandyan Law had been sixteen, but there was “ no tra^e of anyKandyan Law* by which marriage before sixteen was held to conferMajority by operation of law, ” and (2) therefore, as section 2 ofOrdinance No. 7 of 1865 could not<apply, section 1 must be taken to i
i (1903) A. C. R. 135.* (1871) Vandehtraaten 251.<
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have substituted twenty-one for sixteen as the legal 'age of majority 1907.throughout the Kandyan Provinces. In Uyandena Vkku v. Yota- September 25.wild Arumedureya,1 which strangely enough is only reported in woodMadder (119-120), Lawrie J.. and Browne J. set aside a deed of lease Benton J,by a minor wife on the same grounds.
Mr. Jayewardene invited us, however, to review these decisions.
He contended that in both cases the Court had lost sight of the pro-visions of section 5 of Ordinance No. 5 of 1852 as to the applicationof Roman-Dutch Law where Kandyan Law was silent, and further,,that if Kandyan Law was not to be regarded as silent on the point,,it recognized the contractual capacity of the wife in such a case asthe present.
I do not think that either branch of this argument can prevail.
Although, in the first of the two cases last cited, the Court speaks of“ no trace ” having been found of any Kandyan Law recognizingmarriage as an emancipation from minority, the actual decisionclearly must be taken to be that marriage did not confer majority.
This is expressly affirmed in the second of the cases I refer to. Thequestion, therefore, is not one on which Kandyan Law is silent, andthe provisions of section 5 of Ordinance No. 5 of 1852 do not apply.
In support of his argument that, even if Kandyan Law governsthis case, the respondent would be liable, Mr. Jayewardene referredus to various passages in Modder (118-119) in which the contractualand testamentary capacity of minors is affirmed. None of thesepassages, however, relate to a minor wife, and I do not think thatthey are either sufficiently .strong or sufficiently analogous to warrantus in setting aside two formal decisions of the Supreme Court, oneof which was pronounced so far back as 1871, while the other wasparticipated ih by Mr. Justice Lawrie, an expert Kandyan lawyer.
On the grounds't" have mentioned I would dismiss this appeal withcosts.
Appeal dismissed.-
♦
, 1S. C. Min. June 29, 1898-..