137-NLR-NLR-V-45-HATURUSINGHE-Appellant-and-UKKU-AMMA-Respondent.pdf
JAYETXIjE ICE J.—Haturusinghe and Ukku Amma
4'd9
19$4Present : Jayetlleke J.HATURUSINGHE, Appellant, and UKKU AMMA, Respondent.
100—C. R. Kandy, 33,473.
Minor—Deed of gift by a Kandyan minor—Void and not voidable—Minor notbound toapplyfor restitution—Recovery of property by action—
Bei vindicatio.
A deed of gift by a minor is void and the minor, where he has lostpossession of theproperty gifted, can recover it by an action
rei vindicatio.
The minor in snch a case is not bound to apply for restitution withinthree years of his attaining majority.
A Kandyan woman, who is a minor, does not attain majority bymarriage.
Muttiah Chetty y. Dingiria (10 N. L. R. 371), followed.
A PPEAL from a judgment of the Commissioner of Requests, Kandy-
H. V. Perera, K.C. (with him H. W. Thambiah), for plaintiff, appellant.E. A. G. de Silva, for defendant, respondent.
Gur. adv. vult.
October 19, 1944. Jayetileke J.—
This is an action for a declaration of title to an undivided three-fourthshare of a field called Meegahapitiyacumbura. It is common groundthat upon deed No. 1765 dated September 29, 1911, Kalingu and KiriBanda became entitled to the field in equal shares. By deed No. 4514dated January 22, 1915 (P'l), Kalingu gifted her half-share to Kiri Bandaand Ukkuwa. At the date of execution of P 1 Kalingu was 18 years ofage. She died on January 23, 1915, leaving as her sole heir the plaintiff.The birth certificate P 2 shows that the plaintiff was born on January1, 1915. The plaintiff claimed the share to which Kalingu was entitledon the footing that P 1 is void and conveyed no title.
The defendant, who had purchased the interests of Ukkuwa, filedanswer alleging that according to the Kandyan law a gift by a minor isvalid and that even if it is not, jbhe plaintiff’s action is prescribed as he
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failed to institute it within three years of his attaining majority. He didnot dispute the plaintiff’s title to an undivided one-fourth share which hepurchased from Kiri Banda.
At the trial the following issues were framed: —
Was Kalingu a minor when she executed deed No. 4514 of January
22, 1915.
If so, was the said deed void or voidable?
Is the plaintiff’s cause of action, if any, prescribed?
The learned Commissioner decided issues (2) and (3) against theplaintiff and dismissed his action -with costs.
1 shall first deal with the question whether P 1 is void or voidable.No direct authority was cited to me, nor am I aware of any, in whichthis question was considered under the Kandyan law. But Counsel forthe respondent invited my attention to a passage from Sawer at page 27which reads : —
“ Should a youth sell his lands, his cattle or his goods before the endof his 16th year, he can break the bargain and resume possession ofhis lands, cattle or goods, on refunding the value which he may havereceived for the same. ”
The Kandyan law fixed the age of majority at 16 years which was theage of puberty and manhood. But section 1 of Ordinance No. 7 of 1865fixed the age of majority at 21 years and declared that, except as insection 2 excepted, no person shall be deemed to have attained hismajority at an earlier period any law or custom to the contrary not-withstanding. This provision necessarily rendered inoperative the ruleof the Kandyan law as regards the age of majority.
The exception provided by section 2 reads : —-
“ Nothing herein contained shall extend or be construed to preventany person under the age of 21 years from attaining his majority at anearlier period by operation of law.
Under the Homan-Butch law a person attains majority by marriage.The question whether a Kandyan woman similarly becomes a major onmarriage was raised in a case reported in Yanderstraatan’s Reports at page251, in which it was held that whereas there was no trace in the Kandyanlaw of any rule by which marriage before the age of 16 conferredmajority, and as Ordinance No. 7 of 1865 had substituted 21 years of ageas the legal age, a- woman over 16 years of age but under 21 years did■not become a major on her marriage.
A divisional Bench took the same, view in Muttiah Ghetty v. Dingiria1.According to these decisions Kalingu was a minor in spite of her marriageat the time of the execution of P 1.
The passage from Sawer quoted above refers to a sale by a minorand is apparently based on the principle that the alienation cannot besaid tc be definitely prejudicial to the minor inasmuch as he receivedvalue for it. Sawer has not dealt with a case where the alienation isdefinitely prejudicial to the minor. On this point the Kandyan law issilent. Where there is no Kandyan law or custom having the force of
1 10 N. L. R. 371.
3 A VIS TILE 103 J.—• Tf aturusinghe and Ulcku Amma501
law applicable to the decision of any matter or question arising foradjudication within the Kandyan Provinces we must have recourse to theRoman-Dutch law (Cap. 66, section 7).
The fact that Kalingu did not receive any consideration on P 1 ismanifest on the face of it. In Qunesekere Hamine v. Don Baron1, it washeld that under the Roman-Dutch law a donation by a minor is ipso jurevoid. This case was cited with approval in Silva v. Mohamadu 2.
It follows from these decisions that P 1 is void and of no effect, and thatthe dominnim remained in Kalingu.
The remaining question is whether the action is barred by any provisionin the*Prescription Ordinance (Cap. 55).
The answer to this question turns on whether or not it is necessaryfor a minor to bring an action after he attains majority to get the voidalienation out of the way, and whether the proper action is the actionrei vindicatio, or the action for restitutio in integrum.
The plaintiff has instituted this action, which is a vindicatory action,seven years after he attained majority.
Voet says that an action by a minor is not necessary where he is ipsojure protected but as a matter of precaution the action is brought forgreater security. (4. 1. sec. 13.)
The section reads : —
“ Nor is recourse to be had to restitution, whenever a person isipso jure protected; for instance, if without the authority of a tutor,a contract has been made with his ward, and the latter has therebybeen made the richer. For, restitution in respect of a prejudicedmatter would be sought for in vain, if the law on the subject itselfprotects the person and preserves his rights intact. Nor do I doubthut that, nowadays, if an extra judicial transaction is ipso jure null.and void, a person is safe against it without restitution, as Grroenewegenestablishes by many authorities, reasons, and decided cases. But.since extra caution does no harm,' and the more experienced practi-tioner usually takes the safer course and as those to whom the authorityis given are readier to grant restitution nowadays, than was the case inRoman times, it has become usual in the Courts of different places,to apply for restitution even against contracts manifestly of no effectin law, for the sake of greater security than from any necessity to doso. ”
In Breytenback v. Frankel3, Lord de Villiers referring to this sectionan Voet said: —
“ According to Voet such an action should not be brought whenthe minor is ipso jure safe (tutus), and as an illustration of such safetyhe mentions the case of a contract made with a minor without theauthority of the guardian, by which the minor has not been benefited.Voet does not, however, say who is to judge whether the minor hasbeen so benefited or not. He adds that as excessive caution can dono harm, and skilled practitioners are apt to take the safer course,
1 2 Browne. 402.a 19 N. L. It. 426.
(1913) S. A. L. R. App. Div. 390.
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JAYETILEKE J.—Haturusinghe and Vkku Amtna.
and as the Dutch Courts were more inclined to grant the aid ofrestitution than those of Rome, a general practice has been introducedfor the sake of safety than from necessity to ask for restitution fromthe Courts against contracts labouring under manifest nullity. It isvery difficult to gather from the authorities whether an action shouldbe deemed necessary under the circumstances with which the Courthas now to deal, but it is reasonably clear that it would have beendeemed advisable. No decision of any South African Court has beencited in which the exact point has been decided, but we know that thetendency of those Courts has always been to uphold the general principlethat a solemnly registered or duly executed instrument shall standuntil set aside by a competent court and not to allow any person to bea Judge in his own cause. ”
In the course of the argument Lord de Villiers has made an observationthat the universal practice in Holland must be taken to be the law,but there is nothing in his judgment to indicate that that was hisconsidered opinion.
Vander Keesel, one of the latest writers on the Roman-Dutch law,says in his theses, which were published about the time when Ceylonpassed into British hands, that though it is usual for the sake of greatersecurity to apply for restitutio in integrum in transactions which areipso jure void, it is not a matter of necessity. (Theses 877 Lorensz Trans,page 324.) This statement shows that an inveterate practice did notexist in Holland.
The last sentence in the quotation given above from the judgment ofLord de Villiers seems to be based on the law relating to the registrationof immovable property that is in force in South Africa. Throughout theUnion the registration of transfers of immovable property is compulsory.For the- purpose of ascertaining who is the owner of a particular pieceof land it is the registration that must be looked at. The registration isregarded as conclusive as between any non-registered claimant to landand third parties. This is made clear by the judgment of Solomon J.
He said: —
“ And as long as the-property remained registered in the name of athird party it is impossible for the minor to transfer the dominium.In practice therefore it makes little difference whether the alienationby a guardian of the immovable property of a minor is held to be voidor voidable, for in either case, if the minor repudiates it, he must bringan action to set aside the registration. But there is this important-difference, that in the one case the action is a vindicatory one and ra-the other a restitutio in integrum.
In the absence of a similar provision in our Registration Ordinanceit seems to me on principle, and apart from authority, that a- personwho executes a deed of transfer which is ipso jure void is under noobligation to institute an action to get rid of the effect- of his act becausethe transfer is a nullity and the dominium remains in him. But there isclear authority both in the Roman-Dutch law and in the English law onthe point.
JAy isX’IXiEKTR J.—Halurusinghe and Ukku Amma.
503
The view expressed by Voet is supported by Story in his Commentarieson Equity Jurisprudence, 3rd Edition at page 294.
Ife says: —
** In the first place, then, let us consider in what way the Court willdirect the delivery up, cancellation or rescission of agreements,securities, deeds or other instruments. It is obvious that the jurisdic-tion, exercised in cases of this sort, is founded upon the administrationof a protective or preventive justice. If, therefore, the instrumentwas void for matters apparent upon the face of it, there was no call toexercise the jurisdiction with the possible exception of instrumentsforming a claim upon the title to land. The party is relieved upon theprinciple, as it is technically called quia tiqnet; that is for fear thatsuch agreement, securities, deeds or other instruments may bevexatiously or injuriously used against him when the evidence to impeachthem may be lost; or that they may have thrown a cloud or suspicionover his title or interest. ”
There is also a judgment of the Privy Council on the point. InKhirajmal v. Daim 1 Lord Davey said: —
“ The question, therefore, is whether the equity of redemptionnot only purported to be, but was in fact sold under the decrees.Their Lordships agree that the sales cannot be treated as void or nowbe avoided on the grounds of any mere irregularities of procedure inobtaining the decrees or in the execution of them. But on the other handthe Court had no jurisdiction to sell the property of persons who were notparties to the proceedings or properly represented on the record.As against such persons the decrees and sales would be a nullity andmight be disregarded without any proceeding to set them aside—.
I must now turn to a consideration of two cases on which reliance wasplaced. The principal case to which reference must be made is Silva v.Mohamadu (supra). In that case, one Warlianu, who was a minor,sold certain shares of a land for a sum of Rs. 2,000 to the defendant.After he attained majority he conveyed the same share to the plaintiff.
The question for determination was whether the transfer to thedefendant was void or voidable. Ennis and de Sampayo JJ. held that thetransfer was voidable.
Counsel for the respondent placed particular reliance on the followingpassage in the judgment of de Sampayo J : —
“ It appears that, even in the case of void contracts, the universalpractice in Holland was to apply for restitutio in integrum and, asLord de Villiers observed in the course of the argument, what was theuniversal practice in Holland must be taken to be law with us. Thusit appears that the Roman-Dutch law is quite in accord with thegeneral principle that a person cannot be judge in his own cause, andthat where he wishes to get rid of the effect of his own act he must seekthe assistance of the Court. ”
The next case which was greatly relied upon was Ahamadu Lebbe v.Amina Umma 2. In that case the plaintiff, who was a minor, falselyrepresented himself to be of full age and induced the defendant to purchasei I. L. R. 32 Cal. 296.2 29 N. L. R. 449.
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his share of a land. Here, too, the deed was held to be voidable butrestitution was not granted in view of the false representations madeby the minor. In the course of the judgment delivered by JayawardeneA.J. he said: —
“ In view of these authorities (Breytenbach v. Frahkel; Silva v.Mohamadu), it must be now taken to be settled law that whetheran act is void or voidable, restitution must be sought from the Courtsand neither the minor nor his subsequent purchaser can treat theah ©nation as never having taken place at all.
I think it is to be remembered that in each of these cases what wasbeing considered was a voidable contract. There can be no ■ questionthat restitution must be sought from the Courts to avoid a Voidablecontract. That is because a voidable contract is valid until it is setaside.
With great respect, I would wish to say that the observation madeby the learned Judges in those cases that restitution must be soughtfrom the Courts in respect of an act which is void is obiter and not inaccord with the authorities I have referred to.
What then is the position of a minor who has executed a deed which isipso jure void ? Where the minor is in possession of the property nodifficulty can arise, but where he has lost possession he can recover itby an action rei vindicatio which is available to him as the dominus ofthe property.
In Silva v. Mohamadu (supra) Ennis J. said: —
“ Where the contract was void ab initio the proper Roman-Dutchaction was the action rei vindicatio as the dominium had not passed,but where the contract was voidable only, the Roman-Dutch actionwas restitutio in integrum.
This view has the support of Voet (4. 4. sec. 16).
An action rei vindicatio can be brought under section 3 of thePrescription Ordinance within ten years of the date of dispossession.The plaintiffs action has been brought within ten years of the accrual ofthe cause of action and is thus not barred by prescription.
1 would set aside the judgment of the learned Commissioner and sendthe case back for judgment to be entered in favour of the plaintiff for theshare claimed by him in his plaint. The parties will be at liberty toadduce evidence on the question of damages. The plaintiff is entitledto the costs here and in the Court below.
Appeal alloiOed.