1916  Present: Ennis J. and De Sampayo J.

SILVA v. MOHAMADU.

405-D. C. Kegalla, 4,161.

Sale by minor is voidable and not void-Ratification-Emancipation of minor by trade after death of parents.

A minor may emancipate himself by trade even after the death of his parents.

A sale of land by a minor is not void, but only voidable at his instance.

An action by a person to have a deed of sale executed by him during his minority set aside should be brought within three years of his attaining the age of majority.

A sale of land by a person after attaining majority, without having got a previous deed executed by him during his minority in favour of another set aside, passes no title to the purchaser.

THE facts are set out in the judgment.

E. W. Jayawardene (with him Samarawickreme and Cooray), for appellant.

Bawa, K.C. (with him A. St. V. Jayawardene), for respondents.

Cur. adv. vult.

December 15, 1916. ENNIS J.-

In this action the plaintiff sued to be declared entitled to certain shares in certain lands, for the ejectment of the defendant, and for quiet possession.

The facts are as follows:-The lands originally belonged to Don  Carolis and bis wife, Elo de Alwis, who died in 1890 and 1898, respectively, leaving two sons, Peris and Warlianu. Peris died in 1906; Warlianu became the sole owner. Warlianu was born on January 1, 1887, and was, therefore, in his twentieth year, and still a minor when he became sole owner of the shares. On his brother's death Warlianu appears to have taken over his brother's share in a business, and continued to trade in partnership with one Pedru. He appears to have conducted the business in Pedru's boutique, publicly and openly selling the goods and giving credit to customers. People dealing there considered him a partner, and imagined him to be of full age. He obtained business credit with the defendant, and on November 26, 1906, he conveyed by document No. 5,322 D (3) to the defendant the shares in the land now claimed by the plaintiff, for the sum of Rs. 2,000; Rs. 700 of this was paid in cash before the notary, the balance represented the previous indebtedness of Warlianu incurred in the course of the trade. On the same date Warlianu bought land from Pedru and paid Rs. 1,000 in cash for it. Warlianu clearly benefited to the full extent of the consideration, Rs. 2,000 given by the defendant for the land conveyed on D 3. The defendant remained in possession and developed the land. On June 11, 1015, Warlianu conveyed (P 5) the same land to the plaintiff Sardiel Silva. With regard to this transaction, Warlianu in his evidence says, " plaintiff elected to buy this land from me though he knew I had sold it to the defendant. " The learned Judge dismissed the plaintiff's action, holding that Warlianu, although a minor, was emancipated at the time he executed the document D 3. The plaintiff now appeals.

The point for determination on this appeal is, whether the document D 3 is invalid by reason of Warlianu's minority at the time of its execution? It has been urged that Warlianu could not be held to be emancipated at the time, because emancipation is an act proceeding from the parents, and they were both then dead.

It was conceded that had they, or either of them, been alive at the time an emancipation might have been presumed from the circumstances that Warlianu was separated from his parents and living separately and independent of them. In my opinion the fact that the parents were dead makes no difference. I am unable to see why a youth who has run away from parental authority and lived independently should be in a better position than one who has had the misfortune to lose his parents and been compelled by circumstances to live independently. The presumption in the first case is in the nature of a fiction, and I see no reason why the fiction should not be extended a little further in the second, and the presumption be made as