SILVA v. MOHAMADU

109-NLR-NLR-V-19-SILVA-v.-MOHAMADU.pdf


( 426 ;
1916.
Present: Ennis J. and De Sampayo J.
SILVA v. MOHAMADU.
405—D. C. Kegalla, 4,161.
Sale by' minor is voidable and not void—Ratification—Emancipation ofminor by trade after death of parents.
A minor may emancipate himself by trade even after the deathof his parents.
A sale 6f land by a minor is not void, bid only voidaldi* at hisinstance.x
An action by a person to have a deed of sale executed by himduring his minority set aside should be brought within three yearsof his attaining the age of majority.
A sale of land by a person after attaining majority, withouthaving got a previous deed executed by him during his minorityin favour of another set aside, passes no title to the purchaser.
rjlHE facts are set out in the judgment.
E. W. Jayawardene (with him Samarawickreme aud Cooray),for appellant.
Bawa, K.C. (with him A. St. V. Jayawardene), for respondents.
Cut. adv. vult.
December li>, 11116. Ennis J.—
In this action the plaintiff sued to be declared entitled to certainshares in certain lands, for the ejectment of the defendant, and forquiet possession.
i(1910) 2 C. L. R. 209.
(1914) 17 N. L. R. 257.
( 427 )
The facts are aB follows:—The lands originally belonged to Don 1916.Carolis and his wife, Elo de Alwis, who died in 1890 and 1898, Ennis J
respectively, leaving two sons, Peris and Warlianu. Peris died in .
1906; Warlianu became the sole owner. Warlianu was born on MekathatiuJanuary 1, 1887, and was, therefore, in his twentieth year, and still aminor when he became sole owner of the shares. On his brother’sdeath Warlianu appears to have taken over his brother’s share ina business, and continued to trade in partnership with one Pedru.
He appears to have conducted the business in Pedru's boutique,publicly and openly selling the goods and giving credit to customers.
People dealing there considered him a partnerand imagined himto be of full age. He obtained business credit with the defendant,and on November 26, 1906, he conveyed by document No. 5,822D (3) to the defendant the shares in the land now claimed by theplaintiff, for the sum of Bs. 2,000; Rs. 700 of this was paid in cashbefore the notary, the balance represented the previous indebtednessof Warlianu incurred in the course of the trade. On the same dateWarlianu bought land from Pedru and paid Bs. 1,000 in cash for it.
Warlianu clearly benefited to the full extent of the consideration.
Bs. 2,000 given by the defendant for the land conveyed on D 3.
The defendant remained in possession and developed the land. -On June 11, 1915, Warlianu conveyed (P 5) the same land to theplaintiff Sardiel Silva. With regard to this transaction, Warlianuin his evidence says, “ plaintiff elected to buy this land from methough he knew 1 had sold it to the defendant. ” The learnedJudge dismissed the plaintiff’s action, bolding that Warlianu,although a minor, was emancipated at the time he executed thedocument D 3. The plaintiff now appeals.
The point for determination on this appeal is, whether thedocument D 3 is invalid by reason of Warlianu’s minority at thetime of its execution? It has been urged that Warlianu could notbe held to be emancipated at the time, because emancipation is anact proceeding from the parents, and they were both then dead.
It was conceded that had they, or either of them, been alive atthe time an emancipation might have been presumed from thecircumstances that Warlianu was separated from his parents andliving separately and independent of .them. In my opinion the factthat the parents were dead makes no difference. I am unable tosee why a youth who has run away from parental authority .andlived independently should be in a better position than one' whohas had the misfortune to lose his parents and been compelled bycircumstances to live independently. The presumption in the firstcase is in the nature of a fiction, and I see no reason why the fictionshould not be extended a little further in the second, and thepresumption be made as if the parents were alive.
There is, however, another reason which would, in my opinion,entitle the respondent to succeed. The Roman-Dutch jurists
( 428 )
1916.
Ennis J.
SHva v.Mohamadu
enunciate, as a general rule, that contracts by minors are “ ipso jurevoid.” They then proceed to specialize, and say when suchcontracts are “void ab inito ” and when they can be ratified. Tuthe case of Fernando v. Fernando,1 I expressed the opinion thatthe distinction between “ void ’* and “ voidable ’’ made by latter-day jurists was not clear in the Roman-Dutch text books. Thatopinion is strengthened by a case now cited, Breytenback v. Frankeland another.s In the argument in that case Lord de Villiers C.J.suggested that there was no word for “ voidable ” in those times.
The Roman-Dutch law prohibited contracts by minors, to ensurethe protection of minors. But it did not make the prohibitionabsolute in every case. The defect of status could be cured in thecase of contracts affecting movable property by the consent- of theguardian, and in the case of contracts affecting land by the consentof the Court. After the minor attained majority the defect couldbe cured by his ratification, express or implied, and after five yearsa ratification was implied whenever the contracts were for thebenefit of the minor (Sande on Restraints 43', 44). Emancipationalso did away with many of the disabilities of a minor in the way ofcontract. Whenever minor obtained a benefit from the contractthere was no complete prohibition, and whether or not he obtaineda benefit was a question of fact. In two cases only, viz., donationand suretyship, it was held that absence of any benefit, by a juniorwas manifest, and the contract was declared to be void ab inito,the prohibition in such cases being regarded as absolute. In thecase of a loan there was some doubt, which had the effect of throwingthe onus of proof on the minor to show .that he had received nobenefit. In every case, except gift or suretyship, the contract wasin fact “ voidable ’’ and not “ void, ’’ but as there was no word forvoidable,’’ the idea was expressed by using the' word “ void ”with illustrations showing that the contract could be made void ata future time at the option of the minor.
The continued use of the word “ void ” to express both ideas hasgiven rise to much confusion. Where the contract was void abinitio the proper Roman-Dutch action was the action “ rei vindi-cation’ as the dominium had not passed, but where the contractwas voidable only, the Roman-Dutch action was “ restitutio inintegrum.” In Ceylon there is no distinction between the twoactions, the prayer generally combining both, by asking that thedeed be set aside or declared null and void, and by asking for adeclaration of title and recovery of possession.
With regard to the application of Roman-Dutch law in Ceylon,Walter Pereira in his Laws of Ceylon {2nd edition, pp, 184-196)discusses the Ceylon cases on the question whether or not a minor’scontract is absolutely void; he has come to the conclusion that thebalance of authority in Ceylon is that contracts by minors are1 (1916) 19 N. L. R. 193.2 South African L. R., 1913, App. Div. 390.
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ineffectual unless ratified by some positive act; but this disregardsthe fact that in Roman-Dutch law we find it expressly stated(Sonde 44) that ratification may be presumed after a lapse of fiveyears. In the case of Bamen Chetty v. Silva,1 the Roman-Dutch lawof ratification by minors is in force in Ceylon, and, inasmuch as underthe Roman-Dutch law a ratification could be implied, this seems tome to afford an effectual solution of the question as to when aminor's contract is voidable and not void. I have not set outreferences to the Roman-Dutch authorities, as they are all to befound in the judgment of Lord de Villiers in the South African caseI have cited.
In the present case I am of opinion that the learned District•Judge was right in holding that Warlianu, by reason of emancipation,could enter into a valid contract; and if not, that the contract inthis case has been ratified by implication, over five years (see thecase of Silindu v. Duraya 2) having elapsed without any steps havingbeen taken to set aside the contract.
I would dismiss the appeal, with costs.
,I>e Sampayo J.—
The question of tacit emancipation is not an easy one. Underthe Roman-Dutch law, when the parents are alive a minor child isunder their natural guardianship, which extends not only to themaintenance and education of the minor, but also to the administra-tion of his property. In such a case the emancipation which arisesfrom the fact of the minor taking up his abode elsewhere andcarrying on an independent trade or business is no doubt referableto the express or tacit consent of the parents. To argue, asMr. Jayawardene for the appellant did, that this emancipation isthe act of the parents, and therefore, when the parents are dead isimpossible, appears to me to go a little too far. Natural guardian-ship is dissolved by the death of the parents (Voet 1, 7, 9), and theminor passes into the guardianship, if any, of some one appointedby Court. If no such guardian is appointed by Court, it is difficultto see any logical ground for thinking that a minor may not emanci-pate himself under the same circumstance and by the same meansas when the parents are alive. When a minor, by the death of hisparents, is thrown upon bis own resources, there appears to me tobe greater reason for giving him liberty to enter into contracts andadminister his property, subject to the same conditions as in the caseof tacit emancipation during the lifetime of his parents. I cannotfind any express authority against this conclusion, and if reason isto be taken as a guide, I think contractual capacity should beattributed to a minor in that position. If this is right, then thefacts of this case are sufficient to support Warlianu’s deed of 1906in favour of the defendant.
1 (1913) 15 N. L. B. 386.,* A. C. R. 150.
1916.
Exrans J.
Silva v.Mohamadn
(4?0)
4916.
De SamfayoJ.
Silva v,Afohamadv
It is more satisfactory, however, to consider the matter apartfrom any question of emancipation. Warlianu did not take anylegal steps, when he come of age, to have his deed of sale set asideor declared void. He did not repudiate it in any way, but in 1915,seven years after he attained majority, he purported to sell theproperty again to the plaintiff. It is contended on behalf of theplaintiff that it was not necessary for Warlianu to take any suchlegal proceedings, inasmuch as his sale during minority was abso-lutely void and not merely voidable. The local decisions on theeffect of a minor’s conveyance are conflicting. In Siriwardene v.Banda 1 it was held by Burnside C.J. and Withers J. that a minor’sdeed was not void, but only voidable by express repudiation afterattaining majority, and that a second deed conveying the sameinterest did not amount to such repudiation. An opinion to the sameeffect was expressed by a Full Bench, consisting of Burnside C.J.and Clarence and Dias JJ., in Selohamy v. Rapiel.2 These decisionswere commented on, and the Roman-Dutch authorities as to thevalidity of contracts made by minors were considered in GoonesekeraHamine v. Von Baron,3 and it was there held by' Bonser C.T.and Wendt J. that at all events a donation by a minor, under theRoman-Dutch law was null and void, inasmuch as a donation wasby no means to the minor’s benefit. The question of a sale of landby a minor came up for consideration in Andris Appu v. AbanchiAppu,* and the judgment of Middleton J., concurred in by MoncreiffA.C.J., was that a sale by' a minor was not only voidable, butabsolutely void. In that case, hovrever, the previous decisions ofthe Supreme Court do not appear to have been cited or considered.The opinion of Middleton J, was founded solely on Van Leeuwen'xComm. 1, 16, 9,s where it is stated that immovable property of aminor “ cannot be sold otherwise than with the consent of theCourt:” The passage in Van Lceuwen, however, has reference onlytothe authority' ofguardianstodealw'ith the property of their
. wards, so that it does notappeartobea relevant authority onthe
precise point now under consideration. Moreover, the very questionis what exactly is meant by ” cannot be sold,” and w'hat is theconsequence of a sale by a minor notwithstanding such disability.The same view as in Andris Appu v. Abanchi Appu 4 was taken byHutchinson C.J. and Middleton J. in Manuel Naide v. Adrian HamyABut where a minor had represented himself to be of full age, a saleby' him, though without the sanction of Court, was held not to bevoid by the same learned Judges in Wijesooriya v. Ibrahinsa.7 Asimilar point arose in Sinno Appu v. Podi Nona,* and was decided inthe same way by Lascelles C.J. The next reported case is that of
(1892) 2 C. L. R.99.5 Route's Trans., vol.I., p.135.
(1889) 1 S. C. R.73.6 (1909) 12 N. L. R.259.
(1902) 2 Bt. 402.* (1910) 13 N. L. R. 195.
* (1902) 3 Bt. 12.* (1912) 15 N. L. R. 241.
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Saibo v. Perera,1 where Shaw J. and myself followed the cases t 1916.which held that a minor's deed was void and not voidable only.gAarPiYQ
Lastly comes Fernando v. Fernando * in which my brothers Ennis J.and Schneider decided that a minor's deed was not absolutelysitva v.
void, and might be ratified by the minor when he attained Mohamadumajority.
In this state of local decisions I think it is open for us, now thatthe whole question is raised again, to consider it anew. Happilythe task of searching for and discussing the original Roman-Hutchauthorities is rendered unnecessary by the South African case ofBreytenback v. Frankel,3 which was cited by Mr. A. St. V. Jayawardenefor the respondent. This was a case decided by a Bench of fiveJudges, including the learned jurists Lord de Villiers and Maarsdorp
J. All the authorities were cited and considered, and the chiefjudgments were delivered by Lord de Villiers and Solomon J. Thecase related to a long lease of a minor’s property granted by thefather and natural guardian of the minor without obtaining theconsent of the Court, but the law as to the effect of a deed by theminor himself was fully considered. It was pointed out in thecourse of the argument that in the lauguage of the Roman-Dutchwriters there were no words exactly equivalent to the Englishwords “void” and “ voidable,” and in reference to the'argumentthat what was prohibited was void. Lord de Villiers said that that'was not always so, and instanced the case of the marriage of minorswithout the consent of parents or guardians. It was admitted bycounsel for the appellant in that case, and it is undoubtedly the law.that a minor might ratify his own act or that of his guardian, andit necessarily followed that the act itself could not be wholly andabsolutely void as if it had never been done. The result of thewhole case was to show that a dealing by a minor^ with his propertywas not ipso jure void, but only voidable at his instance. There areno doubt some transactions by minors which are void ab initio.such as donations, but Lord de Villiers held that in all cases, whetherthe act was void or voidable, it was necessary for the minor torelieve himself by obtaining restitutio in integrum; while Solomon J.drew a distinction, and considered that restitutio was relevant in thecase of alienation by the minor himself, but that where the alienationwas by the guardian without the authority of Court, inasmuch as thetitle was still in the minor, the proper remedy^was a vindicatoryaction by the minor or a cessionary from him. It appears that,even in the case of void contracts, the universal practice in Hollandwas to apply for restitutio, and, as Lord de Villiers observed in thecourse of the argument, what was the universal practice in Hollandmust be taken to be law with us. Thus it appears that the Roman-Dutch law is quite in accord with the general principle that a person
1 (1915) 4 Bal. Notes of Cases 67.3 (1917) 19 N. L. R. 193.
(1913) S. L. R. App. Div. 390.

(432)
1916. cannot be judge in bis own cause, and that where he wishes to getI>* Sajupayothe effect of bis own act be must seek the assistance of the
J Court.
aiftttTy In this case, since the sale to the defendant was by WarlianuMohomadv himself, it was necessary for him, before he sold to the plaintiff, tohove got the deed in favour of the defendant out of the way bymeans of restitutio in integrum or some equivalent legal proceeding,and he should have claimed that remedy within a certain limitedtime after he came of age. Under the Roman-Dutch law theperiod of limitation appears to be four years. (Voet 4, I, tf>,Van dcr Keessel Thes. 900.) But with us the period is regulated bythe Ordinance No. 22 of 3871, and it was held in Silindu v. Dureya 1that the application for restitution should, under section 11 of thatOrdinance, be made within three years of the attainment of majority.Warlianu made no such application at any time. Connected withthis is the allied question of ratification, which may be eitherexpress or tacit. According to Sande on Restraints 1, 6, IS (Webber’s_ trans, 44). a void alienation may be tacitly confirmed, if the minorhas raised no protest within five years after coming of age:
“ For then an alienation void per s& will be confirmed by an impliedratification as it were, whether the alienation has been made bythe minor himself or by his tutor of curator.” See also RamenChetty v. Silva,2 as to the application to Ceylon of the Roman-Dutchdoctrine of ratification. I do not know whether the period offive years is still necessary, but, assuming it to be so. I needonly point out that Warlianu made no protest whatever at anytime, but only sold the land a second time to the plaintiff, ignoringthe first sale to the defendant, some seven years after he attainedmajority.
In my opinion the judgment of the District Judge in favour ofthe defendant is right, and I agree that- this appeal should bedismissed, with costs.
Appeal dismissed.
> {1907) 1 A. G. R. loO.
f 1012) 15 N. L. It. 286.