1928 Present: Garvin J. and Jayewardene A.J.

AHAMADU LEBBE v. AMINA UMMA.

3-D. C, Kandy, 33,864.

Minor-Conveyance of immovable property-False representation by minor-Act void or voidable-Restitution.

Where a minor by falsely representing himself to be of full age deceived a person and induced hint to purchase his immovable property,-

Held, that the conveyance was valid.

Whether an act be void or voidable,  minor who seeks relief from it must apply to the Court for restitution.

Restitution is not granted to a minor who falsely represented himself to be a major.

APPEAL from a .judgment of the District Judge of Kandy. The facts appear from the judgment.

A. E. Keuneman, for defendant, appellant.

H. V, Perera, for plaintiff, respondent.

June 7, 1928. JAYEWARDENE A.J.-

By deed No. 17,351 dated December 29, 1924, the plaintiff conveyed to the defendant a half share of a land called Jamanarangaha-mullahena. The plaintiff was at the execution of the deed, and still is, a minor. He brings this action, assisted by his next friend, to have the deed declared of no avail in law and to be declared the owner of the half share sold by him. The defendant pleaded that at the time of the execution of the conveyance, the plaintiff represented and held himself out to be a person of full age and thereby induced the defendant to purchase the property.

The learned District Judge was satisfied that the plaintiff had held himself out as of full age, and had also urged in proof of that fact that he had already executed 'three mortgages and a lease, all of them in favour of his present next friend, who is his brother. The learned Judge declared the deed null and void, but condemned the plaintiff to pay to the defendant the sum of Rs. 643 which was paid to the plaintiff on the transfer. The defendant appeals. It has been clearly established that the plaintiff fraudulently represented himself to be of full age, and hereby deceived the defendant and induced him to purchase the property, in the belief that the plaintiff was a major.

In the Roman law no relief was granted to a minor who fraudulently represented himself to be a major. " Si is, qui minorem nunc se esse adserverat, fallaci majoris aetatis mendatio te deceperit; cum

juxta statuta juris errantibus non etiam fallentibus minoribus publica jura subveniant, in integrant restituti non debet," (Codex, lib, II, tit, 43, s. 2.)

Perezius, Professor of Law at the University of Louvain, in his commentary on the Codex, remarks-

" Sequitur alia causa, ob quam denegatur restitutio in integrum nec minore succuritur ; nempe si minor dolo malo se majorem dixerit, ut induceret alium ad contrahendum,"

and again-

" Nam ante hanc 25 annorum aetatem, virilem animi vigorem minor compleri non solet, inquit, Ulpain de Minore-licet malitia interdum aetatem suppleat." (Perezius-Praelectiones in God., tit. 43 and 45.)

The view of the Roman law thus was that the remedy of restitutio in integrum should not be granted to a minor who was fraudulent, fraud supply the want of age.

The same principle was adopted in the Roman-Dutch law. Van Leeuwen states that the " decree of reinstation is not granted to those who committed fraud, as for instance, if they have lied in saying they were of age." (Van Leeuwen's Cens. For., pt. I., bk. IV. ch. 43.)

According to Voet, restitution is denied if the minor is held, in the interpretation of the law, to be a major at the time of entering into the contract-when, for instance, he has obtained venia aetatis, or is regarded as having attained majority by marrying, or if he has fraudulently represented himself as a major to the person with whom he has contracted, if the other acted bona fide and under a genuine mistake; or finally, if at the time of the contract he was held generally to be a major, not through a foolish mistake or ignorance of law-having acted publicly and fulfilling duties as a major