005-SLLR-SLLR-2002-V-1-WICKRAMSINGHE-v.-CORRINE-DE-ZOYSA.pdf
CA
Wickramasinghe v. Corrine de Zoysa
33
WICKRAMSINGHE
v.CORRINE DE ZOYSA
COURT OF APPEALWEERASURIYA, J„ ANDDISSANAYAKE, J.
CA NO. 200/83 (F)
DC COLOMBO NO. 3422/ZLSEPTEMBER 12, OCTOBER 3 ANDDECEMBER 4, 2000
Declaration that deed void – Reduction of extent donated – Alienation of immovableproperty by minor – Does it require sanction of court – Roman Dutch Law andEnglish Law principles.
The plaintiff-appellant instituted action seeking a declaration, that a certain deed/plan is void and a declaration that she is entitled to an undivided 1/3 share. Thedefendant-respondent whilst denying the averments, prayed for the dismissal ofthe action. The District Court held with the defendant-respondent.
On appeal –
It was contended that deed No. 2078 terminating co-ownership is prejudicial tothe plaintiff-appellant (a minor), in that it has resulted in a reduction of the interestsshe got on her title deed, and that the said deed is ipso jure void since alienationof immovable property by a minor requires sanction of Court.
Held:
Despite that deed No. 2078 had the effect of reducing the rights whichthe plaintiff-appellant was entitled to, it cannot be gainsaid that deed No.2078 has caused the plaintiff-appellant the owner of a divided and distinctunit, viz premises No. 14/2.
The Roman Dutch Law relating to ratification is in force in Sri Lanka. TheRoman Dutch Law permits ratification after majority, of an invalid contractof a minor and differs from the English Law, which denies to a minor theright to ratify certain classes of contract.
34
Sri Lanka Law Reports
[2002] 1 Sri L.R.
In our law a contract upon ratification by a minor after attaining majoritybecomes as binding upon him as if it had been executed after his majorityand it is effective from the time the contract was made.
Ratification may be express or implied from some act by the minormanifesting an intention to ratify.
The facts clearly establish that there was implied ratification of the deed, by theplaintiff-appellant after attaining majority.
APPEAL from the judgment of the District Court of Colombo.
Cases referred to:
Siriwardenav.Banda- 12 CL Rep. 99 at 101.
GunasekaraHamine v.Don Baron – (1902) 5 NLR272.
Manuel Naide v. Adrian Henry – (1909) 12 NLR 259.
Fernando v. Fernando – (1916) 10 NLR 193.
Silva v. Mohamadu – (1916) 10 NLR 426.
Siman Naide v. Asilin Nona – (1945) 46 NLR 337.
Worts Appuhamy v. Noris Singho – (1966) 61 NLR 215.
Karunadasav.Podiappuhamy – (1988) 1989 – (1)-173.
Raman Chettyv. Silva- 15 NLR 286.
P. A. D. Samarasekera, PC with R. Y. D. Jayasekera for plaintiff-appellant.
L C. Senevlratne, PC with U. H. K. Wickramasinghe and S. Sumanasekara forsubstituted 1A defendant-respondent.
Varuna Basnayake, PC with Yamuna Kuruppu for the substituted 2nd and 3rddefendant-respondents (in place of the deceased 1st defendant-respondent).
Cur. adv. vult.
April 6, 2001.
WEERASURIYA, J.
The plaintiff-appellant by her plaint dated 11. 04.1980, instituted action 1against the defendant-respondents, seeking inter alia:
CA
Wickramasinghe v. Corrine cfe Zoysa (Weerasuriya, J.)
35
a declaration that deed bearing No. 2078 dated 13. 03.1975and plan bearing No. 6450 dated 01. 06. 1974 be declaredvoid; and
a declaration that she is entitled to undivided 1/3 share ofthe property described in the 2nd schedule to the plaint.
The 1st defendant-respondent in her answer whilst denying theaverments in the plaint prayed for dismissal of the action. This caseproceeded to trial on 16 issues and at the conclusion of the case, 10learned District Judge by his judgment dated 13. 06. 1983, dismissedthe action with costs. It is from the aforesaid judgment that this appealhas been lodged.
At the hearing of this appeal, learned President's Counsel appear-ing for the plaintiff-appellant submitted that the learned District Judgehas misdirected himself in holding that the plaintiff-appellant, 1stdefendant-respondent and 2nd defendant-respondent derive their titlefrom deed No. 2078 dated 05. 01. 1975 attested by J. B.Puvimanasinghe, marked P4 and therefore they are lawful owners ofpremises bearing Nos. 14/1, 14/2 14/3 and 14/4, respectively. 20
The above contention of learned President's Counsel for theplaintiff-appellant was based on the following grounds :
that the execution of the deed No. 2078 (P4) has resultedin a reduction of the extent of property donated toplaintiff-appellant by deed No. 1876 (P3); and
that the said deed (P4) is ipso jure void since alienation ofimmovable property by a minor requires sanction of Court.
The Commissioner of National Housing has been made a partyin this case as the entire property has been mortgaged in his favour.Therefore, he would be unaffected in which ever manner this case 30is decided.
36
Sri Lanka Law Reports
[2002] 1 Sri L.R.
It is common ground that the late Sir Cyril de Soyza was the ownerof the property described in the 1st schedule to the plaint and thatflats bearing assessment Nos. 14/1, 14/2, 14/3 and 14/4 standingthereon were constructed by him and deed bearing No. 1660 dated09. 11. 1971 and deed bearing No. 1876 dated 19. 12. 1972 (P2and P3, respectively) have been executed by him. By deed bearingNo. 1660 (P2) Sir Cyril de Soyza donated inter alia premises bearingNos. 14/1 and 14/3 to the 1st defendant-respondent, premises bearingNo. 14/2 to the plaintiff-appellant and premises bearing No. 14/4 to «the 2nd defendant-respondent. Thereafter, Sir Cyril de Soyza by deedbearing No. 1876 dated 19. 02. 1972, donated the same property tothe plaintiff-appellant, 1st defendant-respondent and 2nd defendant-respondent in equal undivided shares.
By deed of declaration bearing No. 2078 dated 05. 01. 1975 (P4),parties terminated co-ownership of the flats and apportioned premisesbearing Nos. 14/1 and 14/3 to the 1st defendant-respondent, premisesbearing No. 14/2 to the plaintiff-appellant and premises bearingNo. 14/4 to the 2nd defendant-respondent as divided and distinctunits. The donor Sir Cyril de Soyza has subscribed as a witness soto the aforesaid deed marked P4.
It is to be observed that at the time of the execution of deedmarked P4 the plaintiff-appellant remained a minor being only 18 yearsand 2 months of age as evident from the birth certificate marked P1.
Learned President's Counsel for the plaintiff-appellant submittedthat dealings by minors with their immovable property are treatedas a class apart from generality of minor's contracts and suchtransactions should receive the approval of Court. In support of thiscontention he referred to the following passage from TheLaw of Contracts by Prof. Weeramantry (page 439):6o
"Dealings by minors with their immovable property are treated
as a class apart from the generality of minor's contract. Chief
CA
Wickramasinghe v. Corrine de Zoysa (Weerasuriya, J.)
37
among the special rules they attract is the requirement that thetransaction should receive the approval of Court."
The substance of the argument of learned President's Counsel forplaintiff-appellant is that the execution of deed bearing No. 2078 isprejudicial to the plaintiff-appellant in that it has resulted in a reductionof the interests she got on deed No. 1876 (P3). This proposition wasbased on the ground that the premises No. 14/2 which she got ondeed No. 2078 (P4) is less than undivided 1/3 share of the property 70described in the 2nd schedule to the plaint, namely an undivided1/3 share of the four flats.
In examining the question whether the change that was soughtto be effected by deed No. 2078 (P4) was to the detriment or to thedisadvantage of the plaintiff-appellant, it is vital to bear in mind thatthe donor had intended of gifting the flats in divided ownership toall the donees as evident from deed No. 1660 (P2). Undoubtedly,it was not possible for the donor, in law, to donate condominiumproperty at the time when deed No. 1660 (P2) came to be executedin divided shares. The Apartment Ownership Law came into effect soon 20. 03. 1973. This explains why the donor resorted to bymeans of deed No. 1876 (P3) to donate the same premises tothe plaintiff-appellant, 1 st and 2nd defendant-respondents in undividedshares, (vide page 3 – 2nd paragraph of P3). The deed No. 2078(P4) and condominium plan (P5) terminated undivided ownership ofthe flats bearing Nos. 14/1, 14/2, 14/3 and 14/4 and apportionedpremises bearing Nos. 14/1 and 14/3 to the 1st defendant-respondent,
14/2 to the plaintiff-appellant and 14/4 to the 2nd defendant-respondentin terms of the Apartment Ownership Law.
Despite a reference in the valuation report (P6) that deed No. 2078 90(P4) had the effect of reducing the rights which the plaintiff-appellantwas entitled to in the property, it cannot be gainsaid that deedNo. 2078 (P4) has caused the plaintiff-appellant the owner of a dividedand distinct unit, namely premises No. 14/2. Viewed in that context,
38
Sri Lanka Law Reports
[2002] 1 Sri L.R.
it is unfortunate, that the valuation report has been led in evidencewithout calling the valuation officer who could have explained theposition vis-a-vis the divided possession of a single flat. The totalabsence of evidence, to controvert the position of the plaintiff-appellanthas been emphasized as forming "an additional matter before Court"to accept the evidence fed by the plaintiff-appellant; nevertheless it 100is open to the Court on evaluation of all the material placed beforeit, to come to a conclusion that it cannot accept such a proposition.
Learned District Judge has justifiably rejected the claim that deedNo. 2078 (P4) is prejudicial to the interests of the appellant.
The next question to be considered relates to minor's capacity tocontract. Till the year 1916 judicial opinion has fluctuated in Sri Lankaon the effect and nature of a minor's contract. In 1892 BurncideCJ in Siriwardena v. Bandaf^ at 101 expressed the view that theminor's conveyance was not, ipso facto, void but only voidable.Thereafter, opinion swung round to the view that such contract was novoid and not voidable. (Vide Gunasekera Hamine v. Don Barori2) andManuel Naide v. Adrian Henryk). Thereafter, in Fernando v. Fernandaand Silva v. Mohamadd5) it was laid down that dealings by a minorwith his property is not ipso jure void but voidable at his instance.
Thereafter, in Siman Naide v. Asilin NonsF it was held that a saleof land without the sanction of a competent Court is voidable andnot void.
In Noris Appuhamy v. Noris Singhdn it was held that a deed oftransfer of immovable property executed by a minor is voidable and 120not void.
In Karunadasa Ftajapaksa v. Podiappuham/S) it was held thatalienation of a property by a minor is prima facie void but it can beratified either expressly or impliedly by the minor on attaining majority.
CA
Wickramasinghe v. Corrine de Zoysa (Weerasuriya, J.)
39
On a survey of these cases, it would emerge that the longcontroversy relating to the question whether a minor's unassistedcontract relating to immovable property was void or voidable has nowbeen set at rest.
Professor T. Nadarajah in his article entitled: The Contracts ofMinors in the Modem Roman Dutch Law (1953) University of CeylonReview Vol. XI page 65) stated as follows:13<
"Where a contract entered into by a minor with or without theassistance of a guardian or by a guardian on behalf of him hasbeen executed by the alienation of immovable property of the minorwithout the sanction of Court, the alienation is prima facie void,as against the minor, and the guardian before majority or the minorduring or after a minority is entitled to vindicate the property. But,the alienation is not strictly devoid of legal effect inasmuch as itis not open to the alienee to assert that the alienation was invalid,as the alienation is capable of being made binding on the minorby being ratified either expressly or impliedly by him on his attaining 140majority, and as the alienation will be held to be valid even asagainst the minor where the alienee has been misled, "by the minorexpressly or impliedly representing himself to be of full age".
It was held in Raman Chatty v. Silvaf9) that the Roman Dutch Lawrelating to ratification is in force in Sri Lanka. The Roman Dutch Lawpermits the ratification after majority, of an invalid contract of a minorand differs from English Law which denies to a minor the right toratify certain classes of contract. Thus, in our law, a contract uponratification by a minor after attaining majority becomes as binding uponhim as if it had been executed after his majority and it is effective isofrom the time the contract was made.
Ratification may be express or implied from some act by the minormanifesting an intention to ratify. For example where a person with
40
Sri Lanka Law Reports
[2002] 1 Sri L.R.
full knowledge of his legal rights continues after majority to use ashis own the subject-matter of a purchase made by him during minorityhe must be taken to have ratified the contract. In such a case theerstwhile minor will not be permitted to approbate and reprobate.Similarly, an attempt by the minor upon attaining majority to enforcehis rights under the contract would be construed as a ratificationof the contract, (vide The Law of Contracts Vol. I by Professor 160Weeramantry 1967 edition – page 417).
The following passage from Wille's Principles of South African Law(8th edition – page 76) is also relevant on this , issue:
"A minor's unassisted contract may be repudiated by the guardianbefore the minor becomes of age or by the minor himself onattaining majority, if the minor has already performed in terms ofthe unassisted contract, he may recover what he has performedwith the rei vindicatio (in the case of property other than moneydelivered) or with a condictio (in the case of money paid). If theguardian has not repudiated the contract, the minor on attaining 170majority, has an election to ratify or to repudiate the contract. Ifthe minor ratifies the contract, it becomes as binding upon himas if it had been executed after his majority, and is effective fromthe time when it was originally entered into. Ratification may beexpress, or may be implied from some unequivocal act by themanifesting of an intention to ratify the contract. For example, wherea minor who had purchased a motor cycle during his minority,continued to use it as his own after he reached full age, he washeld liable for the purchase price."
Therefore, what remains to be considered is whether there was isoratification (express or implied) by the minor of her unassisted contractafter attaining majority.
CA
Wickramasinghe v. Corrine de Zoysa (Weerasuriya, J.)
41
Despite the assertion of the plaintiff-appellant that she has got lessthan 1/3 undivided share of the property set out in the secondschedule to the plaint, it cannot be suppressed that instead of undividedrights in all the flats she has been bestowed a divided and distinctentity bearing No. 14/2.
The deed bearing No. 2078 contains plaintiff-appellant's signatureas the second signature and below that her father's signature appearsin the capacity as the power of attorney holder for the 2nd defendant- 19®respondent.
On a close examination of the plaintiff-appellant’s evidence, it isjustifiable to conclude that the plaintiff-appellant knew at the time shesigned deed No. 2078 (P4) or in any event shortly afterwards whatshe has signed.
Thus, it is safe to conclude that the plaintiff's father was awareof the existence of deed No. 2078 (P4) and its contents.
The manner in which the plaintiff-appellant came to know of theexistence of deed bearing No. 2078 (P4) appears to be artificial inthat her father and the Attorney-at-Law Kingsly Fernando had oppor- 200tunity of coming to know of that deed having been to Sambamoorthyand Company, chartered accountants, to peruse accounts regardingthe estate of Sir Cyril de Soyza.
The plaintiff-appellant has enjoyed the benefits under P4 byexclusive possession of premises No. 14/2 and obtained rent fromthe tenant commencing before the death of the donor. After hermarriage upon a notice to quit which plaintiff-appellant herselfhad drafted, a request had been made to the tenant to vacate thepremises. Thereafter, she occupied the premises as her matrimonialhome. The fact that her husband sought to purchase premises bearing 210No. 14/1 is also relevant on the issue whether plaintiff-appellant
42
Sri Lanka Law Reports
[2002] 1 Sri L.R.
had known of the fact of the ownership of that flat by the 1stdefendant-respondent. It is significant to note that the plaintiff-appellantdid not take steps to repudiate the transaction after attaining majorityand waited for a period of 2 1/2 years, to file the present action.
It would be pertinent to state that the plaintiff-appellant has comeout with the present allegation for the first time after the demise ofthe donor (Sir Cyril de Soyza) only after the admitted ill fellings hadset in between the parties due to the plaintiff-appellant's husbandhaving to vacate premises No. 14/1 and hand-over possessionsubsequent to the refusal of the 1st defendant-respondent, to thesale of the premises bearing No. 14/1.
The facts adverted to above would clearly establish that there wasimplied ratification of the deed (P4) by the plaintiff-appellant afterattaining majority.
For the foregoing reasons, I proceed to dismiss this appeal withcosts.
DISSANAYAKE, J. – I agree.
Appeal dismissed.