047-NLR-NLR-V-13-WIJESOORIA-v.-IBRAHIMSA.pdf
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Present; The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
WIJESOORIA v. IBRAHIMSA.
D. C., Kandy, 19,291.
Minor—Contraetr—Sale of immovableproperty—Nosanction ofCourt
obtained.
Although a minor cannot, as a general role, bind himself bycontract without the authority of his tutor, yet, when ho has falselyrepresented himself to be of full age, and has deceived the othercontracting party by such representation, he will be held bound.
A sale of immovable property without the sanction of Court bya minor who represented himself to be of full age, was held notto be void under the circumstances of this case.
T
HK facts of this case are fully set out in the judgment ofHutchinson C.J.
A. St. V. Jayewardene, for the plaintiff, appellant.—Plaintiff wasa minor at the date of the conveyance; the conveyance was executedwithout the sanction of Court, it is therefore void (Andris Appu v.Abanchi Appu,1 Perera i>. Per era,2 Manuel Naide v. Adrian Hamy2).There is no estoppel in this case, as the defendants were inducedto purchase, not on any representation made by the plaintiff, butowing to the affidavit sworn by plaintiff's mother. Even if theplaintiff made a representation, no estoppel could arise, as theplaintiff was a minor at the time. An estoppel cannot be applied toalter the law of the land- Section 115 of the Evidence Ordinancedoes not apply to minors (Cababe on Estoppel 123, Dutt v. Ohose*Cannon v. Farmer 5).
Bawa, for the defendants, respondents.—Plaintiff should not beallowed to take advantage of his own fraud. Section 115 of theEvidence Ordinance applies; and plaintiff is now estopped fromsaying that he was not of full age at the date of the execution ofthe deed.
Jayewardene, in reply.
[There was also an argument as to whether the law applicable tothis case was the Kandyan Law or-the Ronfan-Dutch Law.]
Cur. adv. vult.
2 (1909) 12 N. L. R. '259.
* 26 Cal. 381.
2 3 Ex. 698.
1 (1902) 3 Br. 12.
1 (1902) 3 Br. 150.
May 16,1910
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May 10,1910 j{ay 16, 1910. Hutchinson C.J.—
Wijesooriya
*. Ibrahimsa 1'liis is an appeal by the plaintiff against the dismissal of hisaction. His claim in the action was for a declaration of his title toa piece of land which was conveyed to him in 1889, .and of which hecomplains that the defendants have been unlawfully in possessionfor the last five or six years.
The defendants admitted that the land was conveyed to theplaintiff in 1889, but said that the plaintiff by d.eed dated April 4,1901, sold and transferred it to Dona Catherina Hamine, throughwhom the added defendants claim. The original defendant was theagent of the added defendants to collect the rents from the property.
The plaintiff alleged that he was a minor at the date of hisexecution of the deed of 1901; the defendants denied this, butasserted that if he was a minor he is estopped from denying thevalidity of the deed by his conduct.
The issue whether the plaintiff wa6 a minor on April 4, 1901, wasdecided in the affirmative; he was then in his twenty-first year, anddid not attain majority until March 21, 1902.
The Judge finds that at the time of the execution of the deed theplaintiff was over twenty years of age, and that he understood, English, and was well able to comprehend the effect of the deed.It is clear that the purchaser, a woman called Hamine, had somedoubt as to his age, because an affidavit was sworn by his motheron the. same day and attached to $he deed affirming that theplaintiff was born in or about December, 1879, and so was then offull nge. The plaintiff represented himself to the purchaser as beingtwenty-one years of age, and he received the consideration moneyhimself. After he attained majority he took no steps for more thanseven years to avoid the transfer, and did nothing while the purchaserand the subsequent purchasers built on the land and improved it.He now asks the Court to declare that his deed was a nullity; hewants to take back the land and to keep the purchase money whichhe received.
Both parties and the District Court assumed that the Roman-Dutch Law and not the Kandyan Law applies; and by that law atransfer .of his land by a minor is void unless it is sanctioned by theCourt. But I also find it stated in Maas dorp 1., 247, that although- the tutor’s authority is necessary in pll oases in which there is a-question of binding a minor, yet there is an exception ” where theminor has falsely represented himself to be of full age, and hasdeceived the other contracting party by such representation ”; andin the Gensura Forensis 1., 283, it is stated, “ nor is this decree ”(restitutio in integrum) “ granted to those who have committed-fraud, as, for instance, if they have lied in saying they are of age.”That is, perhaps, a fair rule in a country and age in which it is notalways easy to prove a person’s exact age. It appears to be still thelaw in Ceylon; and where a man applies to the Court to enable him
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to obtain the benefit of a fraud which be has committed, I think May 16,1910that the Court may in accordance with that law refuse to help him. HutchinsonI would dismiss the appeal with costs.C.J.
Wijtsooriav. Ibrahimsa
Middleton J.—
This was an apppeal from a judgment dismissing the plaintiff’saction to set aside a deed of transfer of property made by the-plaintiff during his minority, and to recover damages and obtain anorder of ejectment. The District Judge dismissed the plaintiff’saction, on the ground that he was estopped from denying thevalidity of the deed he executed.
The plaintiff appealed, but the learned counsel for the respondent didnot support the judgment on the ground on which it was based, andI think it is clear the authorities are against him (Cababe on Estoppel123, Dutt v. Ghose1), on the principle that the doctrine of estoppelcannot be applied to alter the law of the land. See also Cannon v.Farmer,1 where it was held that a married woman’s incapacityto contract by reason of her coverture was not removed by herrepresentation. It is not an estoppel.
According to Maas dorp, vol. /., 247, founded on Voet 27, 9, 13,under the Koman-Dutch Law, though a minor cannot, as a generalrule, bind himself by contract without the authority of his tutor, yet,when he has falsely represented himself to be of full age, and hasdeoeived the other contracting party by such representation, he willbe held bound. But in the case of the alienation of immovableproperty by minors, as has been held in Ceylon (3 Browne 12,6 N. L. R. 367, and 12 N. L. R. 291), besides the guardian’sauthority, that of the Court is also required (Voet 26, 8, 5; Maasdorp,vol. I., 247). Here the authority of the Court was not obtained.In the present case the District Judge has found that at the time ofthe execution of the deed the plaintiff was over twenty years of age;that he understood English, and was well able to comprehend theeffect of the document he signed; that his father and mother werepresent at the execution of the deed and signified their consent; thathis mother filed an affidavit to the effect that the plaintiff had thenattuned his majority, and he represented himself to the vendee asbeing over twenty-one years of age; that he received the considerationhimself for the purchase and benefited by idle transfer to the extentof the transfer.
There is no reason to doubt the correctness of these findings, andthey clearly establish that the plaintiff is a fraudulent individual,who is entitled to no consideration at the hands of any Court ofJustice.
It has been established by various decisions of the Court ofChancery in England that an infant cannot take advantage of his•28 Cal. 381.* 3 Ex. 698.
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May 16,1910 own fraud (Pollock on Torts 55), and I do not thinkjmch personsMronxjBToir should expect the assistance of the Courts here to extract themJ. from a position in which their own improbity has placed them.
Wijesooria I do n°t think that a fraudulent minor, who has acted as thee. Arahimea plaintiff has, should be permitted to set up and rely on a rule whichhas been laid down for the prevention of frauds on minors, for thepurpose of his own aggrandisement. I hold, therefore, that theappeal of the plaintiffs should be dismissed with costs, and thejudgment of the Court below affirmed.
Appeal dismissed.