046-NLR-NLR-V-62-S.-D.-GUNASEKERA-and-others-Appellants-and-K.-M.-ALBERT-Respondent.pdf
Gimasefcera v. Albert
209<
Present : Weerasooriya, J., and K. D. de Silva, J.S. D. GUNASEKERA and others, Appellants, andK. M. ALBERT, Respondent
S. C. 131—D. C. Galle, -5y711 (L
JMinor—Lease of immovable property belonging to him—Requirement of sanctionof Court—Right of guardian to execute lease.
The guardian of a minor, even when he is the father of the minor, is notentitled to execute a lease of the minor’s immovable property for a termexceeding one month without the prior sanction of the Court.
A party who obtains a deed of lease of a minor’s immovablo property for-a term exceeding one month from a person who happens to be the minor’snatural guardian is not entitlod to say that the deed was executed by the lessor-in his representative capacity unless it is so stated in the deed itself.
APPEAL from a judgment of the District Court, Galle.
II. A. Chandrasena, for the plaintiffs-appellants.
W. Jayewardene, Q.C., with E. A. G. de Silva, for the defendant-
Tespondent.
Cur. adv. vult..
August 6, 1959. K. D. de Silva, J.—
The 2nd and 3rd plaintiffs who are minors instituted this action onSeptember 22, 1955 by their next friend the 1st plaintiff against thedefendant for a declaration of title to the land called KeenakandaWaturawa in extent 7 acres and 38 perches and to recover possessionof the said land together with damages in the sum of Rs. 9,365 up toMay 1955 and thereafter at the rate of Rs. 300 per month until restorationof possession. Admittedly the 2nd plaintiff is entitled to 3/8th and the3rd plaintiff to 5/8th shares of the land on the deeds P 3 to P 10 producedin the case. The learned District Judge, however, held that at the timeof the institution of the action they were entitled to only three fourths..That is obviously due to an error and it was so conceded by Mr. H. W.Jayewardene Q.C. who appeared for the defendant respondent at thehearing of this appeal.
The plaintiffs alleged that in or about August, 1955 the defendantforcibly and unlawfully entered the land and started taking the produceof tea standing on it and continued to remain in unlawful possession ofthe land denying and disputing the plaintiffs’ title to it. The defendant-filed answer on December 5, 1955 averring that Alfred Dias Gunasekara-who is the husband of the 1st plaintiff and the father of the 2nd and
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~K~ D. DE SILVA, J.—GhvnaseJcera v. Albert
3rd. plaintiffs gave a lease of a half share of this land to him on deedD 1 of January 9, 1953, representing to him that he was entitled tothat share. The defendant denied that he was in possession of theentire land. He further stated that the 2nd and 3rd plaintiffs were onlynominal owners whereas Alfred Dias, his lessor, was the real ownerof the interests leased on D 1. He also alleged in his answer that thisaction was instituted at the instance of Alfred Dias. He further statedthat in terms of the lease D 1 he had improved the land and manuredthe tea plantation which cost him a sum of Rs. 2,500. In any event heclaimed to be entitled to remain in possession of the interests leasedon D 1 until the sum of Rs. 2,500 was paid to him. The case proceededto trial on 12 issues. The learned District Judge held that a father hadthe right to look after the estates of the minor children according to theRoman-Dutch Law and that “ there was nothing wrong in Gunasekerain leasing the land of his children. The possession of the defendant islawful ”. Accordingly he dismissed the plaintiffs’ action with costs.The appeal is from that judgment.
Mr. Jayewardene contended that Alfred Dias being the father of theminor plaintiffs was their natural guardian and that the natural guardianwas entitled to give a lease of the minors* property according to theRoman-Dutch Law. The right of a father, who is undoubtedly thenatural guardian, of his minor children, to manage their property duringtheir minority cannot be challenged. But the question L how fardoes that right extend. Is he entitled to execute leases ot the minors’immovable property lor a number of years without t.he prior sanctionof the Court ? In my view he has no such right. In Mustapha Lebbe v.Martimts 1 it was held that a guardian is not entitled to alienate a minor’simmovable property without the authority of the Court. In that caseLayard C.J. observed “It is a clear principle of Roman-Dutch Law-that a minor’s immovable property cannot be alienated without adecree of a Court of competent jurisdiction. ” In the case of Girigoris-hamy v. Lebbe Marikar 2 decided by a Divisional Bench, a mortgageexecuted by the father of the minors and their guardian appointed bythe Last Will of their mother came up for consideration. The motherof the minors had specifically authorized her husband and the guardianshe appointed over the children to deal with a particular land shebequeathed to her minor children in case of any necessity for the expensesof the minor children. The minors’ father and the guardian mortgagedthat land after the death of the testator. It was held that the mortgagorswere not entitled to do so. That decision was based on the principleenunciated in Miistaphci Lebbe v. Martinus *. Fisher C.J. observedin that case that by the Courts Ordinance of 1889 the charge of theminors* property vested in the District Court and the procedure of■dealing with that property was set out in sections 582 and 535 of the•Civil Procedure Code. In Perera v. Perera 3 Middleton J. stated ” As
(1903)6 N. L. R. 364.2 (1928) 30 N. L. R. 209.
8 (1902) 3 Br<none’s Reports 150.
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K- 3D. DE SILVA, J.—Gunaaekera v. Albert
211
it has been held by good authority that a notarial lease in Ceylon is analienation pro tanto, X would hold that all leases granted on behalf ofa minor, and requiring to be notarially witnessed, are void, unlesssanctioned by the Court. ” In the same case Wendt J. stated that ” anylease whatever for a term exceeding one month needs the Court’s previoussanction for its validity. ” I would therefore hold that Alfred Dias wasnot entitled to execute the lease D 1. Accordingly no rights passed onit to the defendant.
There is another reason why Mr. Jayewardene’s argument mustnecessarily fail. The defendant did, neither in his answer nor in hisevidence, take up the position that Alfred Dias executed this lease inhis capacity as the natural guardian of his minor children whowere entitled to this property. In Girigorishamy v. Lebbe Marikar 1 itwas urged that the father of the minors had the power to execute themortgage bond in his capacity as the executor of his wife’s Last Will,The learned Chief Justice rejected that contention because he said thatthe recitals in the bond showed that it was not executed in his capacityas executor. I do not think a party who obtains a deed of lease of theminor’s immovable property for a term exceeding one month from aperson who happens to be the minor’s natural guardian is entitled tosay that the deed was executed by the lessor in his representative capacityunless it is so stated in the deed itself. In the deed D 1 Alfred Dias didnot purport to lease the property as the natural guardian of his minorchildren. On the contrary, according to the defendant, Alfred Diasrepresented to him that the property in fact belonged to him. Thatwas not only a false representation but also a claim which was in factadverse to the interests of his minor children. Therefore it cannot beargued that on D 1 Alfred Dias was acting as the natural guardian inthe management of the property of his minor children. The possessionof the property by the defendant on this lease must, accordingly, beheld to be unlawful; nor do I think that the defendant is entitled tocompensation for improvements—Lebbe v. Christie 2. The 2nd and 3rdplaintiffs are therefore entitled to a declaration of title to the entireland and to ejectment of the defendant from it and to recover damages.The learned District Judge held that the plaintiffs were not entitledto any damages. That was based on his finding that the possession ofthe defendant was lawful. The case must therefore go back to the Courtbelow to assess the damages. The appeal is allowed with costs in bothCourts. The learned District Judge is directed to enter decree in favourof the 2nd and 3rd plaintiffs in terms of this judgment after thedamages are assessed.
Wekrasooriya, J.—I agree.
Appeal allowed.
1 (1928) 30 N. L. R. 209.
(1915) 18 N. L. R. 353.