STEVEN APPUHAMY
V.
DOTTY

COURT OF APPEAL
SRISKANDARAJAH.J.
UPALY ABEYRATHNE.J.
CA 631/99(F)
DC GAMPAHA 33489/L

Minor-Execution of Deed - Contract of minors - Prescription - 3 years - Fraud alleged - When does prescription commence to run against a minor? -Cause of action? - Unassisted contracts?

The plaintiff - respondent instituted action seeking an order to invalidate the transfer deed, denying her execution of the deed alleged that she was 17 years old at the time of attestation of the alleged deed of transfer

The defendant - appellant contended that the deed has been duly registered and the respondent's action is prescribed in law. The District Court held with the plaintiff.

HELD:

(1) Under the existing law, failure by a minor within three years of the attainment of majority to institute action for the avoidance of his contract would debar him from seeking this relief thereafter.

(2) When elements of fraud exist where such circumstances are not within the knowledge of the minor who obtained majority, then the cause of action would accrue to the minor within three years from the time he came to know about the alleged fraudulent act.

Per Upali Abeyrathne, J.

'Even assuming that there was no element of fraud involved in the aforesaid transaction if such transaction is made without an appointment of a guardian and or Is not sanctioned by a competent Court then the transaction is void and therefore the minor can recover possession of land even after three years."

APPEAL from the judgment of the District Court of Gampaha.

Cases referred to:

(1) Kirithisinghe v. Perera - 23 NLR 299
(2) Gunasekera Hamine v. Don Baron - 5 NLR 273
(3) Haturusinghe v. Ukkuamme - 45 NLR 499
(4) Gunasekara v. Albert - 62 NLR 209
(5) Kithsiri Perera v. Dayasiri Perera 1991 - 2 Sri LR 7

July 21, 2008
UPALY ABEYRATHNE, J.

This is an appeal from the judgment of the learned Additional District Judge of Gampaha dated 30.07.1999 Facts relevant to this appeal are briefly as follows.

The plaintiff-respondent (hereinafter referred to as the respondent) instituted an action in the District Court Gampaha Seeking for an order to invalidate the transfer deed bearing No.15434 dated 28.95.1957 attested by T. D. D. W. Senevirathne, Notary Public. The Respondent denying her execution of the said deed pleaded she was a 17 years old minor at the time the attestation of the alleged deed of transfer was taking place.

The Defendant Appellant (hereinafter referred to as the Appellant) took up the position that the said deed of transfer has been duly registered and the Respondent's action is prescribed in law.

The case Proceeded to trial upon 9 issues. The issue framed on prescription. was taken up for trial as a preliminary issue on Law. After the hearing of the preliminary issue the learned Additional District Judge delivered the order dated 19.03.1993 in favour of the Respondent answering the preliminary issue in the negative. The Appellant sought Leave to Appeal from the said order dated 09.03.1993 and directed the District to proceed to trial on the issues raised by the parties. After the Conclusion of the trial the learned Additional District Judge delivered the Judgment in favour of the Respondent.

The plea of prescription was raised on the basis that the Respondent failed to bring the action within 3 years of her attaining the age of majority. The Respondent took up the position that since her rights had been

fraudulently transferred to the Appellant without her knowledge, the prescription would not commence to run against her rights from the date she attained age of majority and the prescription will commence to run from the date on which she came to know about the alleged fraud. It transpires from the evidence led at the trial that the vendor of the deed No. 15434 was not known to the Notary Public who attested the deed. The Appellant did not see the Respondent signing the deed. The Appe