037-NLR-NLR-V-39-SHORTER-&-CO.-v.-MOHAMED.pdf
Shorter & Co. v. Mohamed.
1931
113
Present: Poyser and Soertsz J.J.
SHORTER & CO. v. MOHAMED.
166—D. C. Colombo, 2,197.
Muslim minor—Mortgage bond executed with consent of father—Validity ofbond—Fraudulent misrepresentation regarding age—Contract validunder Roman-Dutch law.
Under the Muslim law a mortgage bond executed by a minor with theconsent of his father is valid. Under the Roman-Dutch law a minorwho falsely represented himself to be of full age is bound by his contract.
114
POYSER J.—Shorter & Co. v. Mohamed.
PPEAL. from a judgment of the District Judge of Colombo.
Rajapakse (with him Wickremanayake), for first added defendant,appellant.
H. V. Perera (with him J. R. Jayawardene), for plaintiff, respondent.
D. S. L. P. Abeysekere (with him Olegasagaram), for second defendant,respondent.
Cur. adv. vv.lt.
April 23, 1937. Poyser J.—
The plaintiffs, a firm carrying on business in England, sued the defend-ant, a Muslim, on the mortgage bond A and have been given judgmentfor the sum of Rs. 9,918.73. This mortgage bond was executed to securethe payment of goods supplied by the plaintiffs to the defendant,and it was admitted in the lower Court that goods of the nett value ofRs. 9,918.73 had been supplied. It was also admitted in the lower Courtthat the defendant did not attain the age of 21 till May 14, 1935, andwas consequently a minor when the bond in question was executed.
The defence was that the said mortgage bond was void and of no effectagainst the defendant as he was a minor when he executed it.
The District Judge has found that the following are the circumstancesunder which the bond was executed. The plaintiffs, had prior to itsexecution, business dealings with the defendant, but such dealings hadceased owing to the defendant’s indebtedness to the plaintiffs. Thedefendant and his father were anxious to continue business and the bondin question was drawn up by Mr. Vethecan, a Notary and Proctor of longstanding, on the instructions of the defendant’s father. The defendantand his father came to the Notary’s office for the execution of the bondand the Notary, noticing that the defendant had a youthful appearance,asked if he was twenty-one, and the defendant replied that he was, andhis father said nothing.
The bond was then executed by the defendant and forwarded to theplaintiffs and business relations were then resumed between them.
In view of these findings the District Judge has found in answer toissue 2, that the defendant did fraudulently represent he was a majorand was debarred from setting up the plea of minority. I do not thinkthere is the slightest doubt that the Judge was correct in finding that thebond was fraudulently executed. Apart from the evidence of the Notary,other evidence and all the circumstances of the case indicate that thedefendant and his father were anxious to renew business relations withthe plaintiffs and the bond was executed by the defendant under theexpectation that it would be held to be void if sued upon, on account ofthe defendant being a minor.
In view of these findings of fact, which are amply supported by theevidence, the question that arises on this appeal is whether the bond is inlaw enforceable. Mr. Rajapakse argued that Muslim law must be appliedto decide this point as the defendant is a Muslim. Mr. Perera did notagree and argued that Muslim law is not applicable when only one of theparties is a Muslim and the Roman-Dutch law must consequently beapplied.
POYSER J.—Shorter & Co. v. Mohamed.
115
It was at one stage suggested by Counsel that this appeal should standover until the determination of S. C. 22/D. C. Colombo, 24,309. In thatcase the following four questions of law were referred to a Bench of threeJudges, viz., (1) Whether Muslims are governed by the Roman-Dutchlaw, so far as their contractual capacity is concerned. (2) If not, whetherthey are governed by their own law or by Ordinance No. 7 of 1865 ?
The effect of the case of Narayanan v. Saree Umma (4) If theRoman-Dutch law is applicable, is it open to a minor to plead minorityas a defence to an action on a contract to which he is a party without acounter-claim for a recission of the contract ?
I think, however, for the following reasons, that this case can be decidedwithout the determination of any of the questions reserved for a Benchof three Judges. Assuming firstly, that Muslim law is applicable, andthat a Muslim attains his majority at the age of twenty-one and not whenhe attains discretion, the plaintiff is still, in my opinion, entitled to recoverthe amount claimed. On this point the District Judge held, and correctlyso, in my opinion, on the authority of Amir Ali (4th ed.) vol. II., p. 278, asfollows :—“ Where, therefore, a Muslim minor enters into a contract withthe consent of his natural guardian the contract is valid. The disabilityarose because he was under the patria potestas but when the father gavehis consent then the contract was vaild.
This view is supported in Hamilton’s Hedaya, vol. III., p. 469, thematerial passage being “The acts of an infant are not lawful unlessauthorised by his guardian, nor the act of a slave unless authorised by hismaster—and the acts of a lunatic who has no lucid intervals are not at alllawful. The acts of an infant are unlawful, because of the defect in hisunderstanding; but the licence or authority of his guardian is a mark ofhis capacity whence it is that in virtue thereof an infant is accounted thesame as an adult ”.
In view of these authorities and the fact that the father not only gavehis consent to the execution of the bond but was mainly instrumental insecuring its execution, there is no doubt in my mind that if Muslim law isapplied, the plaintiffs are entitled to succeed.
Further, if Roman-Dutch law is applied the plaintiffs are also entitledto succeed and there is ample authority for this proposition. One caseonly need be cited, viz., Ahamadu Lebbe v. Amina Ummaa in which it washeld that “ where a minor by falsely representing himself to be of fullage deceived a person and induced him to purchase his immovableproperty the conveyance was valid ”.
The following passages occur in the judgment of Jayewardene A.J., atp. 450: —The view of the Roman-Dutch law thus was that the remedyof restitutio in integrum should not be granted to a minor, who wasfraudulent, fraud supplying the want of age.
“ The same principle was adopted in the Roman-Dutch law. VanLeeuwen states that the “ decree of reinstation is not granted to thosewho committed fraud, as for instance, if they have lied in saying thatthey were of age. (Van Leeuwen’s Cens. For-, pt. i., bk. IV., ch. 43}
1 (1920) 21 N. L. R. 439.
(1928) 29 N. L. R. 449.
116
Dharmalingam Chetty v. Vadi-ael Chetty.
“ According to Professor Lee, restitution is refused when a minor hasfraudulently misrepresented his age (Introduction to Roman-Dutch Lawby R. W. Lee, p. 43). He quotes two cases—Johns ton v. Reiser andVogel & Co. v. Greentley—which are not available locally. He also refersto the Ceylon case of Wijesuriya v. Ibrahims *. In that case it was heldthat a minor, who falsely represented himself to be a major and deceivedthe other contracting party, was bound, and the sale of a piece of land ofthe minor was held to be good. Hutchinson C.J. refused to allow theminor to obtain the benefit of the fraud which he had committed, andMiddleton J. held that a fraudulent minor should not expect the Courtsto extract him from a position in which his own improbity' had placedhim.”
For the above reasons I am of opinion that whether Muslim or Roman-Dutch law is applied the plaintiff is entitled to succeed and the appealmust consequently be dismissed with costs.
Soertsz J.—I agree.
Appeal dismissed.