040-SLLR-SLLR-2003-V-2-PALIPANE-v.-PALIPANE-AND-OTHERS.pdf
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PALIPANE
V
PALIPANE AND OTHERS
COURT OF APPEALDISSANAYAKE, J. ANDSOMAWANSA, J.
■2.A. 365/94 (F)
D.C. MATALE 3881/LAFEBRUARY 12, 2001 ANDJUNE 14, ANDJULY 10,2002
Land Acquisition Act, section 10(1) – Steps to acquire -Dispute as to title -Reference to court – Transfer by minor – Does it convey title ? -Void or void-able ? – Restitution in integrum
The plaintiff-respondent (Acquiring Officer) had taken steps to acquire a cer-tain land, and as there was a dispute regarding the title to the said land the.dis-pute was refered to court for determination.
The position of the 5th defendant-appellant was that at the time of the execu-tion of certain deeds, he was a minor and the failure to obtain permission fromcourt for the due execution of the two deeds make the said deeds ab initio voidin law.
The trial court rejected this contention.
Held :
Sale of immovable property by a minor without the sanction of a compe-tent court is voidable and not void and the minor may relieve himself fromthe consequences of the contract by way of a regular action.
In the instant case since the sale was by the 5th defendant-appellant-minor-himself it was necessary for him to seek the assistanceof court to set aside the deed of transfer executed by him while he was aminor by means of restitutio-in-integrum or some equivalent legal pro-ceedings, which he had failed to do upto date.
Hence the deeds did convey title.
Per Somawansa, J.
"Roman Dutch Law is in accord with the general principle that a personcannot be a judge in his own cause, and that when he wishes to get ridof the effect of his own act he must seek the assistance of the court”.
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APPEAL from the Judgment of the District Court of Matale.
Cases referred to:
Siriwardena v Banda – 2 CLR 99
Selohamyv Rapiet- 1 SLR 99
Gunasekera Hamine v Don Baron – 2 Br 402
Andiris Appu v Abanchi Appu – 3 Br 12..
Manuel Naide v Adrian Hamy – 12 NLR 259
Wijesooriya v Ibrahims – 13 NLR 195
Fernando v Fernando-19 NLR 193
Breytenback v Frankel (1913)-SLR App Div. 390
Siman Naide v Asilin Nona – 46 NLR 337
Silva v Mohamadu – 19 NLR 426
W. Dayaratne for defendant-appellant
Nizzam Kariapper for 7th and 8th defendant-respondents
Cur adv vult
August 30, 2002SOMAWANSA, J.
The plaintiff-respondent who is the Land Officer and Acquiring 1Officer of the Matale District had taken steps to acquire the landdescribed in the schedule to the plaint for a public purpose and asthere was a dispute regarding the title to the said land he referredthe dispute to Court for determination under section 10 (1) of theLand Acquisition Act. It is common ground that the land that hasbeen acquired is a portion of a larger land called “Bandarawatte”in extent of 16 A. 1R. 33P. out of which 10 Acres belongs to the 1 st ,to 4th and 6th defendants-respondents and the 5th defendant-appellant and the balance of 6A. 1R. 33R belongs to the 3rd, 4th 10defendants-respondents and the 5th defendant-appellant. Theposition of the 7th and 8th defendants-respondents is that the 1stto 4th and 6th defendants-respondents and the 5th defendant-appellant who were co-owners of the said 10 Acres by deed No.
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926 dated 9.12.1981 transferred the said 10 Acres to the 7th and8th defendants-respondents while the 3rd defendant – respondentby deed No. 287 dated 16.02.1979 and the 4th defendant-respon-dent and the 5th defendant-appellant by deed No. 923 dated2.12.1981 transferred the entirety of the said 6 Acres, 1 Rood and33 Perches to the 7th and 8th defendants-respondents and thus bythe said 3 deeds of transfer they became entitled to the entirety ofthe said “Bandarawatta” in extent of 16 Acres 1 Rood and 33Perches out of which 5 Acres and 2 Perches has been acquired bythe plaintiff-respondent in his capacity as the Acquiring Officer.
It is also common ground that at the time the said two deedNos. 923 and 926 were executed the 4th defendant- respondentand 5th defendant-appellant were minors. The position taken by the5th defendant-appellant is that as at the time of the execution ofthese two deeds he was a minor and the failure to obtain permis-sion from Court for the due execution of the said two deeds makesthe said two deeds void in so far as to the rights of the 5th defen-dant- appellant as dealt with in the said two deeds.
When the case was taken up for trial on 16.07.1993 it appearsthat according to journal entry No. 24 the learned District Judge hasrecorded one issue, which is as follows:
Whether the deed No. 923 dated 2.12.81 and deed No. 926dated 9.12.1981 convey title of the 5th defendant (appellant)to the 7th and 8th defendants, (respondents)
Thereafter the parties were directed to file written submissions.The learned District Judge having considered the written submis-sions and the documents produced by his order dated 28.06.1994held in favour of the 7th and 8th defendants. It is from the said orderthat the 5th defendant-appellant has preferred this appeal.
At the hearing of this appeal the main contention of the counselfor the 5th defendant-appellant was that as at the time of executionof the said two deeds the 5th defendant-appellant being a minorpermission of Court should have been obtained before execution ofthe said deeds, it was also contended that the 5th defendant-appellant did not derive any benefit from this conveyance. Henceas far as the rights of the 5th defendant-appellant is concerned thesaid deeds are ab initio void in law. On an examination of the writ-
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ten submissions of the 5th defendant-appellant filed in the originalCourt it appears that he was contesting the validity of agreementNo. 290 dated 19.02.1979 which incidentally is an agreement totransfer the land in extent of 10 Acres to which the 4th defendants-respondent and 5th defendant – appellant were not parties. The factthat the 4th defendant-respondent and 5th defendant-appellant arenot parties to the said agreement is admitted in his written submis-sions and is not disputed by the 7th and 8th defendants-respon-dents.
The decisions of our Courts on the effect of a minor’s con-veyance are conflicting and varying. In Siriwardena v BandaW itwas held by Burnside, CJ and Withers, J that a minor’s deed wasnot void but only voidable by express repudation after attainingmajority and that a second deed conveying the same interest didnot amount to such repudation. An opinion to the same effect was
expressed by a Full Bench in Selohamy v RapieU2) These deci-sions were commented on and the Roman Dutch authorities as tothe validity of contracts made by minors were considered in
Goonesekera Hamine v Don Baron (3) and it was held by Bonser,CJ 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 sale of land bya minor came up for consideration in Andiris Appu v AbanchiAppi/4) and it was held that a sale by a minor was not only voidablebut absolutely void. It appears that this judgment was founded sole-ly on Van Leeuwen’s Commentries 1,16, 9 Kotze’s Translation Vol.1 page 135 where it is stated that immovable property of a minorcannot be sold otherwise than with the consent of Court. This pas-sage in Van Leeuwen however has reference only to the authorityof guardians to deal with the property of their wards and hence hasno relevance to the precise point under consideration in the instantcase. The same view was taken in Manuel Naide v Adrian Ham/5).But the very same Judges in Manuel Naide’s case held inWijesooriya v Ibrahimsfi) that where a minor represented himself tobe of full age and a sale by him though without the sanction ofCourt was not void. In Fernando v Fernando(7) Ennis, J andSchneider, J decided that a minor's deed was not absolutely voidand might be ratified by the minor when he attained majority. In that
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case Ennis, J also expressed the opinion that the distinction 90between void and voidable made by the latter day jurists was notclear in .the Roman Dutch text books.
The Roman Dutch jurists enunciated as a general rule that con-tracts by minors are ipso jure void so as to ensure the protection ofminors but did not make the prohibition absolute in every case forthey then proceeded to specialise and say when such contracts arevoid ab initio and when they can be ratified. The defect of statuscould be cured in the case of contracts affecting movable propertyby the consent of the guardian and in the case of contracts effect-ing land by the consent of the Court. After the minor attained major- 100ity the defect could be cured by his ratification express or implied.Whenever a minor obtained a benefit from the contract there wasno complete prohibition and whether or not he obtained a benefitwas a question of fact. In the case of donation and suretyship it wasconsidered that absence of any benefit by a minor was manifestand the contract was considered to be void ab initio or prohibitionbeing absolute. In the case of a loan there was some doubt throw-ing the onus of proof on the minor to show that he received no ben-efit. Thus it appears that in every case except gift or suretyship thecontract was in fact voidable and not void but as there was no word nofor voidable the idea was expressed by using the word void withillustration showing that the contract could be made void at a futuretime at the option of the minor.
In the South African case of Breytenbackv Fran/ceA8) (inciden-tally this was a case decided by a Bench of five Judges where allthe Roman Dutch authorities were cited and considered), the caserelated to a lease of a minor's property granted by the father andnatural guardian of the minor without obtaining the consent of theCourt, but the law as to the effect of a deed by a minor himself wasfully considered. It was observed in that case that a minor might rat- 12oify his own act or that of his guardian and it necessarily followedthat the act itself could not be wholly and absolutely void as if it hadnever been done. The result of the case was to show that a deal-ing by a minor with his property was not ipso jure void but only void-able at his instance. In that case Lord de Villers, J held that in allcases whether the act was void or voidable it was necessary for theminor to relieve himself by obtaining restitutiorin-integrum. Thus it
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appears that the Roman Dutch Law is in accord with the generalprinciple that a person cannot be a Judge in his own cause, andthat when he wishes to get rid of the effect of his own act he must 130seek the assistance of the Court.
In the case of Siman Naide v Aslin NonaSoertsz, J took asimilar view and it was held in that case that a sale of immovableproperty by a minor without the sanction of a competent Court isvoidable and not void and the minor may relieve himself from theconsequences of the contract by way. of a regular action. In thatcase on page 339 Soertsz, J observed –
"It. must also be regarded as settled law ever since Silva vMohamadt/W which followed the well known South Africancase of Breytenback v Frankel (supra) that a sale of immovable uoproperty by a minor without the sanction of a competent Court isvoidable and not void and that a minor may relieve himself orherself by restitutio-in- integrum or some equivalent legal pro-ceeding."
In the instant case since the sale to the 7th and 8th defendants-respondents was by the 5th defendant-appellant himself it was nec-essary for him to seek the assistance of Court to set aside thedeed of transfer executed by him while he was a minor by meansof restitutio-in-integrum or some equivalent legal proceedingswhich the 5th defendant-appellant has failed to do up to date, isoHence the only conclusion that one could arrive at is that the saidtwo deeds 922 dated 2.12.81 and 926 dated 9.12.81 did convey thetitle of the 5th defendant-appellant in respect of the land dealt withby the said two deeds to the 7th and 8th defendarits-respondents.
In the light.of the above reasoning, I am inclined to take the viewthat the learned District Judge has come to a correct finding whenhe answered the issues in the affirmative and holding that the saidtwo deeds did convey title of the 5th defendant to the 7th and 8thdefendants. In the circumstances I see no reason to disturb thejudgment of the learned District Judge. Accordingly the appeal of 160the 5th defendant-appellant is dismissed with costs.
DISSANAYAKE, J. – I agree.
Appeal dismissed.