Fernando Et Al. V. Fernando Et Al.,

 1916. Present: Ennis J. and Schneider A.J.

FERNANDO et al. v. FERNANDO.

907-D. C. Negombo, 11,126.

Lease by a minor-Is lease void or voidable-Action for declaration that least was null and void and mesne profits-Claim by defendant for refund of rent-Prescription.

Land was leased by a minor to raise money for her marriage. The lessee knew the girl was a minor, but acted in good faith for her benefit. The minor brought an action for a declaration that the lease was null and void, and for mesne profits for a period of three years immediately preceding the action. The defendant prayed, inter alia, for the return of the lease money, with interest, if the lease be declared null and void.

Held, that as the lease was invalid in the circumstances, the plaintiff was entitled to mesne profits, and the defendant to the return of the lease money.

" Inasmuch as the lease was voidable at the option of the minor the defendant's cause of action arose only when the plaintiff began to disturb him in his possession, and the claim for restitution of lease money is not prescribed."

ENNIS J.-There is no doubt that the Roman-Dutch jurists expressed the opinion that a deed by a minor was " null and void," but they do not appear to have had in mind the distinction made by later-day jurists between a " void " contract and a " voidable " one. It would seem, therefore, that an alienation by a minor is voidable at the option of the minor, and it is only when the minor exercises the option that the law takes effect, and the transaction is said to be. " ipso jure void."

SCHNEIDER A.J.-A minor's contract is neither void nor voidable in the sense in which those words are understood in the English law , According to the Roman-Dutch law a minor's contract is such that it does not bind the minor unless he ratified it on attaining majority, while it binds the other party to it.

THE facts are set out in the judgment of Schneider A.J.

Samarawickreme and De Alwis, for defendant, appellant.

A. st. V. Jayewardene and Zoysa, for plaintiffs, respondents.

Cur. adv. vult.

September 7, 1916. ENNIS J.-

This was an action for a declaration that a lease made by the first plaintiff was null and void; for a declaration of title to the land leased; for ejectment; and for mesne profits. The defendant

admitted that the plaintiff was a minor at the time she executed the lease, but denied that the lease was null and void. In the alternative the defendant claimed the return of the consideration, Rs. 1,000, paid for the lease. On the defendant's alternative claim the plaintiff raised the issue of prescription. The learned District Judge declared the plaintiff entitled to the land, but refused the plaintiff's prayer for mesne profits and the defendant's prayer for the return of the lease money. He, however, gave no costs to the plaintiff.

The defendant appeals from the order refusing the prayer for the return of the consideration, and the plaintiff has filed objections to the rejection of her claim for mesne profits and the order as to costs.

It has been decided in a series of cases {e.g., Andris Appu v. Abanchi Appu,1 Perera v. Perera2 Ratwatte v. Hevawitarna3, Gunasekera Hamini v. Don Baron 4and Sinno Appu v. Podi Nona 5) that a conveyance by a minor without the sanction of a Court is, by Roman-Dutch law, said to be null and void. The questions for determination on the appeal are whether, the lease being null and void, mesne profits can be recovered; whether restitution of the consideration can be ordered, and if so, from what date prescription begins to run?

It was argued for the appellant that the logical result of declaring a lease null and void was to leave the ownership untouched; that the transaction could not be ratified; that the mesne profits must belong to the owner; and that any money paid for the lease must be held to be money paid without consideration, and recoverable

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