GUNASEKERA HAMINI v. DON BARON.

GUNASEKERA HAMINI v. DON BARON.

 D. C., Colombo, 13,125.

Donation by a minor-Want of authority of guardian-Ratification after majority.

A donation by a minor unassisted by a guardian is null and void.

On the death of the minor's father, the mother does not become the guardian except by the Court appointing her under chapter 40 of the Civil Procedure Code.

Such a donation cannot be ratified subsequently, when the minor comes of age.

ACTION rei vindicatio, to recover one-fourth share of a land which the plaintiff alleged was originally the property of one Don Lorenzo Appuhami and his wife Francina. On the death of Don Lorenzo his widow became entitled to a half of the land, and his two daughters, the first plaintiff and Juliana, to one-fourth each. The first plaintiff, who was married to the second plaintiff, complained that the defendant was in unlawful possession of the entire land since September, 1890.

The defendant pleaded that by a deed No. 7,031, dated 20th August, 1890, the first plaintiff and her sister Juliana and their mother Francina gifted the said land to him.

The plaintiffs replied that the defendant, being the nephew and only male relative of the deceased intestate, requested the first plaintiff and her mother and sister to grant him a lease of the land

in question for a term of eight years, and on their agreeing to do so, he had the deed No. 7,031 prepared, which they believed to be a lease and signed, but which they afterwards found was a gift in his favour. They pleaded fraud and misrepresentation on his part, and also that the first plaintiff was at the time of signing the deed a minor, and that the said deed was void and of no effect in law.

The Acting District Judge (Mr. N. E. Cooke) found that plaintiffs had failed to prove that the first plaintiff was induced to sign the deed by the false representation of the defendant that it was a lease, and as regards the minority of the first defendant, the District Judge held as follows: -

There is no doubt that she was a minor at the date she signed the deed. Her counsel contended that a deed by a minor is void. In support of his contention he quoted Maasdorp's Grotius. pp. 38 and 297. and Voet, bk. 4, tit. 4, secs. 13 and 14. The passage on page 38 of Grotius refers to wards and not to all minors, and as to the passage on p. 297, it has not been shown that the Municipal Law therein referred to applies to this country. I interpret the law as stated by Voet to be that restitution in integrum is allowed to a minor on proof of damage sustained by him, but that in the case of a donation by him it is not necessary that damage should be proved. Whether the Roman-Dutch Law is as I have stated, or not, the Supreme Court has decided in D. C, Kegalla, No. 128, reported in 2 C. L. R. 99, that a deed by a minor is not void but only voidable by express repudiation by him after attaining majority. The first plaintiff was married on the 29th September, 1890. She took no steps to have the deed set aside. Even this action was not instituted to have the deed set aside. It was only when the defendant pleaded it in defence to the plaintiff's action of ejectment that she has sought to have the deed set aside. It is conceded by the plaintiff's counsel that, if the deed is only voidable and not void, then the action is prescribed under sections 11 and 15 of the Prescription Ordinance. I hold that the deed is not void."

The plaintiffs appealed.

Walter Pereira, for plaintiffs, appellants.-There were two questions raised in this case: first, whether the deed of the 20th August, 1890, had been obtained on false and fraudulent representations as to its nature; and. secondly whether the deed was void, so far at least as execution thereof by the first plaintiff was concerned, by reason of her minority at the time of execution. The first was a question of fact. The District Judge bad decided it on the evidence against the

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