054-NLR-NLR-V-06-PERERA-v.-DAVID-APPU.pdf
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1903.
February 27and
March 26.
PERERA v. DAVID APPU.
D. G., Kurunegala, 1,947.
Purchase of land—Conveyance to minors by the seller at the request of theirfather—Delivery of the deed to the father—Lease of the land by the fatherto a third party—Subsequent sale to plaintiff of part of the land by oneof the vendees after arriving at majority—Validity of the minor’s title asagainst their father’s right to lease.
At the request of A, the father of B and C, minors, D conveyed aland to B and C and delivered the deed to A. He leased the land to£ for a number of years. B. arriving at majority, sold his share of theland to S’. In an action brought By F against E for ejectment,—
Held, that as A, the father of B, had no authority from B or theCourt to buy the land, the deed in his favour conveyed no title to himbut operated as a conveyance to A himself, and that therefore A’s lease,to E was good.
T
HIS was an action for declaration of title in favour of theplaintiff for an undivided one-sixth share of an allotment of
land which he alleged belonged to one David Perera by virtue ofa deed of sale dated 26th February, 1886, and which the said Pererasold to the plaintiff on the 8th October, 1900.
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The defendants pleaded that the land was purchased by .one"Sanchi Appuhami in the name of his two sous David Perera andHendrik Appu, who were minors at the time of the execution ofthe conveyance in their favour; that for the maintenance of thesaid minor sons, Sanchi Appuhami leased to the second defendantand one Mohotti Appuhami the said land by deeds dated 2ndOctober, 1893, for a term of years; that the said Mohotti Appuhamiassigned all his interest in the lease to the first defendant by deeddated 23rd March, 1897; and that the sale of the land to theplaintiff was subject to the lease above mentioned.
The District Judge found as follows: —
“ At the request of Sanchi Appuhami, Sonuttara Unnanseexecuted a deed of sale in favour of Sanchi’s minor sons DavidPerera and Abraham Perera (Hendrick Appu). The vendordelivered the deed to Sanochi, who thus became the dominus ofthe land, because he had no mandate from his sons to nominatethem as his purchasers (2 N. L. R. 360). On 2nd October, 1903,Sanchi executed a deed of lease for ten years in favour of seconddefendant and Mohotti Appu. On 23rd March, 1897, Mohottiassigned his interest in the lease to the first defendant, David Appu.On 8th October, 1900, Sanchi’s son David Perera executed a deedof sale for one-sixth of the garden in favour of plaintiff. Plaintiffcomplains that defendants had prevented him from entering intopossession of the one-sixth.
“ I find that under lease and assignment the defendants areentitled to the possession of the land in question, and I decreethat plaintiff’s action be dismissed with costs.
The plaintiff appealed. The case was heard in appeal on 27thFebruary, 1903.
Sampayo, K.C., for the appellant.
Cur. adv. vult.
25th March, 1903. Moncreiff, J.—
I think the District Judge was right in this case. By deed ofthe 26th February, 1886, Sanchi Appuhami bought a portion ofland in the names of his two minor sons, David Perera andHendrick Perera. On the 8th October, 1900, the minor DavidPerera being then of age sold an undivided one-sixth of the landto the plaintiff.
On the 2nd October, 1893, during the minority of his sons,Sanchi Appuhami granted a twelve years’ lease of the land to twopersons. The second defendant is one of those lessees; the firstdefendant is the assignee of the other lessee, and they maintain
1903.
February 27and
March $5.
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1903.
February 27and
March, 25.
Monoreiff,
J.
that David Perera sold the land to the plaintiff subject to theirlease of 1893.
The isues were (1) whether Sanohi Appuhami had any right togrant the lease of 1893; (2) whether the land was transferredsubject to the lease; (3) to what damages the plaintiff wasentitled.
I am not aware whether this Court has recognized leases of pre-mises belonging to minor children when made by parents—therebeing no guardian—for the purpose of preventing the waste and lossof the property. An opinion was expressed in Perera v. Perera(3 Browne, 150) that all leases by curators without the sanction ofthe Court are void. But that is not the case before us.
The land was bought in the names of the minors in 1886. SanchiAppuhami is dead, and we do not know from what fund he paidthe price. David Perera says that his grandmother paid the money.He was a child at the time and could hardly know, but I shouldimagine that the price was paid from money to which the minorswere entitled. It is not suggested that the purchase was a dona-tion. Even a guardian could not invest the minor’s money in thepurchase of land without the leave of the Court; much less,surely, could a mere parent do so, and lease the land for so longa term as twelve years—an act which so far as I know was notnecessary.
A lease for years by notarial deed is an alienation protanto. tAccording to Vanderlinden (3rd edition, 1897, p.' 36)“ the moneys collected (by the guardian) must be invested inGovernment securities paying interest; all other investments, ason mortgages, guarantees, and the like—however safe they mayappear—require the previous sanction of the Court.” Such aninvestment as this may not be necessarily void; but it wouldseem that Sanchi Appuhami was the purchaser of the property.He had, of course, no authority from the minors; he had notthe powers of a guardian; he had not the sanction of the Court.And there is no injustice in the principle by which he whowithout any authority buys in the name of another and takesdelivery is held to be the real purchaser. According to Voet(XVIII. tit. 1, 8): Emere possunt quilibet non prohibiti; quisquepro se, nemo pro alio, nisi procurator sit. Alioquin neque sibineque ei, pro quo sine mandato emit actionem acquirit; sed domi-nus fiet is, cui ex his duobus rem venditor tradiderit.
This was accepted as good law by Withers, J., in Rangahamy v.Bastian Vederala (2 N. L. R. 360); and I see no reason to questionit. The person who transacts the purchase, with a total absence ofauthority to bind the pretended purchaser, and accepts the transfer,
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becomes himself the purchaser. In this case, therefore, the minorDavid Perera had no title by the deed of 1886. The land wasbought by his father Sanchi Appuhami, and the persons to whomit was leased were the lessees of Sanchi Appuhami.
I think the appeal should be dismissed with costs.
1908.
February 27and
March 25.
Monorstpf,
J.
Layard, C.J.—
I agree in thinking the appeal should be dismissed. On theauthority of Voet {XVHI. tit. 1, 8), which was followed byWithers, J., in Ranghami v. Bastian Vederala (2 N. L. R., p. 360),the purchase of Sanchi on behalf of the minors, because he had ,nomandate from them to nominate them as purchasers, operates asa transfer to Sanchi, and the plaintiff has no title to the undividedone-sixth of the land which remains subject to the lease.
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