( 489 )
Present: De Sampayo J. and Loos A-J.
NARAYANEN v. SAREE UMMA et at.
368—D. C. Kandy, 86,890.
Marriage of Muhammadan—Majority—Capacity to enter into a contract.
A Muhammadan in Ceylon does not attain majority by marriage.
A Mnhammadan under twenty-one years of age cannot validlyincur liability by contract.
' £ '±ijj facts appear from the judgment.
Bartholomews, for second defendant, appellant.A. St. V. Jayawardene, for plaintiff, respondent.
Cur adv. vvlt.
March 30, 1920. De Sampayo J.—
The plaintiff sued the two defendants, who are Muhammadans,on a mortgage bond dated September 9, 1915. The second defend-ant disputed the plaintiff’s claim on the ground that he was aminor at the date of the bond. It was proved that he was boro onMay 26, 1897, and was therefore under the age of twenty-one yearsat the date of the bond. But it appeared that he got married inMay, 1915, and the District Judge held that the rule as to majoritybeing attained by marriage applied to Muhammadans, and gavejudgment against the second defendant. I think the decision of theDistrict Judge is erroneous.
Section 1 of the Ordinance No. 7 of 1865 fixes the age of majority attwenty-one years, and declares that, except as in section 2 exceptedno person shall be deemed to have attained his majority at an earlier
( 440 )
period, any law. or custom to the contrary notwithstanding. Thisnecessarily excludes and renders inoperative any rule of theMuhammadan law as regards the age of majority. The exceptionprovided by section 2 of the Ordinance is as follows: “ Nothingherein contained shall extend or be construed to prevent any person,under the age of twenty-one years from attaining his majority at anearlier period by operation of law. ” Tacit emancipation inducedby leaving the parental roof and openly carrying on any trade orbusiness and the contracting of a marriage are well-known instances,under the Boman-Dutch law, of attainment of majority by operationof law. But as the Boman-Dutch law does not apply to Muham-madans, and as these modes of attaining majority are unknown tothe Muhammadan law, there is no law by operation of which thesecond defendant can be said to have attained his majority bymarriage, and the exception provided in the Ordinance is, therefore,inapplicable to him. It is urged on behalf of the plaintiff, however,that the special laws governing Muhammadans in Ceylon are onlyconcerned with such matters as inheritance and matrimonial affairs,and that where there is a casus omissus, the Boman-Dutch lawshould be applied even to Muhammadans. I cannot assent to thisproposition. The local Muhammadans Code of 1806, it is true,provides only for such matters as those mentioned, but the Muham-madan law as such is applicable to the Muhammadans of Ceylon.By a long course Of judicial practice, which cannot be questioned,the original sources of Muhammadan law and the recognizedcommentaries thereon have always, been referred to as authoritieson any points not provided for in the Muhammadan Code of 1806,which, though called a Code, is not, and does not profess to be, acomplete embodiment of the laws applicable to Muhammadans.Even as regards inheritance, the principles of the Muhammadan lawmay be invoked in' any case not especially dealt with in the Code.Sarifa TJmma v. Mohamedo Lebbe; 1 Pereira v. Khan.2 That beingso, there is no casus omissus such as contended for. For theMuhammadan law does, in fact, provide for the attainment ofmajority so far as it intends to do so, and to apply the rule of theBoman-Dutch law as to the attainment of majority by marriagewould, in effect, be, not to supply any omission in the Muham-madan law, but to add to it. As was pointed out in Marikar v.Marikar,3 there are two kinds of “ majority ” under Muhammadanlaw, namely, one as regards capacity to marry without the inter-vention of a guardian, and the other as regards a general capacityto do other acts as a major. We are only concerned now with“ majority ” in the latter sense. There appears to be no definitelimit of age for this purpose under the Muhammadan law, but aperson is a major when he attains “ discretion, ” which is generally
1 18.0. O. 80.
3 (1915) 18 N. L. JR. 481.
3 2 Bed. 188.
( 441 )
understood to be the age of fifteen years, and he is then free fromthe control of parents or guardians and has the capacity to managehis property and to transact business. Basing himself on this,Mr. A. St. V. Jay award ene sought to avoid the whole difficulty byarguing that the question of majority was not of much consequence,and that as, under the Muhammadan law, a person from and afterthe age of discretion or the age of fifteen years was able to bindhimself by contract, he could do so still, whether he be regarded asa major or not, and he cited Thydbji’s Muhammadan Law 46. Thispassage in Thyabji is a speculative discussion as to the effect ofthe Indian Majority Act and the Contract Act, and not a definitestatement of a rule of law, and it is preceded by the statement of asignificant principle, that “ in the absence of an express or impliedrule of Muhammadan law or custom, the Courts will either followthe analogy of the law in similar instances, or act in accordance withjustice, equity, and good conscience, ” and he proceeds to say that“ justice, equity, and good conscience are generally interpreted tomean rules of English law, if found applicable to Indian societyand circumstances. ’’ Now, the general rule which incapacitates aminor from entering into an obligation accords with justice, and iseminently suitable to the circumstances of all the people in Ceylon.This, I think, furnishes one reason for not accepting Mr. Jayawar-dene’s argument, and there is another. The capacity to transactbusiness and to enter into contracts depends upon the attainmentof “ majority ” in the sense of the Muhammadan law. But theperiod of majority has been fixed by the Ordinance at twenty-oneyears of age even as regards Muhammadans, and consequently nosuch business can be transacted now by a Muhammadan under theage of twenty-one years. I think the plain object of the Ordinance,when it so fixed the age of majority, is to continue the legal disabilityof a person up to that age. The preamble recites that “it isexpedient that -the same period of majority should be fixed for allpersons whatever. ’’ There is no question that under the generallaw a person under the age of majority, that is to say, under twenty-one years of age as fixed by the Ordinance, cannot vaiidly incurliability by contract, and it is inconceivable that Muhammadansalone were intended by the Ordinance to be excepted from thatprinciple!1, in which case there would *be no .object whatever iniraising the' age of majority to twenty-one years in the case of
Tn my opinion the second defendant’s plea of minority shouldhave prevailed. I would set aside the judgment under appeal,and dismiss the plaintiff’s action against the second defendant, withcosts in both Courts.
Loos A.J.—I agree.
NARAYANEN v. SAREE UMMA et al