1937   Present: Poyser and Soertsz J.J.

SHORTER & CO. v. MOHAMED.

166-D. C. Colombo, 2,197.

Muslim minor-Mortgage bond executed with consent of father-Validity of bond-Fraudulent misrepresentation regarding age-Contract valid under Roman-Dutch law.

Under the Muslim law a mortgage bond executed by a minor with the consent of his father is valid. Under the Roman-Dutch law a minor who falsely represented himself to be of full age is bound by his contract.

APPEAL from a judgment of the District Judge of Colombo.

Rajapakse (with him Wickremanayake), for first added defendant, appellant.

H. V. Perera (with him J. R. Jayawardene), for plaintiff, respondent.

D. S. L. P. Abeysekere (with him Olegasagaram), for second defendant, respondent

Cur. adv. vult.

April 23, 1937. POYSER J.-

The plaintiffs, a firm carrying on business in England, sued the defendant, a Muslim, on the mortgage bond A and have been given judgment for the sum of Rs. 9,918.73. This mortgage bond was executed to secure the payment of goods supplied by the plaintiffs to the defendant, and it was admitted in the lower Court that goods of the nett value of Rs. 9,918.73 had been supplied. It was also admitted in the lower Court that the defendant did not attain the age of 21 till May 14, 1935, and was consequently a minor when the bond in question was executed.

The defence was that the said mortgage bond was void and of no effect against the defendant as he was a minor when he executed it.

The District Judge has found that the following are the circumstances under which the bond was executed. The plaintiffs, had prior to its execution, business dealings with the defendant, but such dealings had ceased owing to the defendant's indebtedness to the plaintiffs. The defendant and his father were anxious to continue business and the bond in question was drawn up by Mr. Vethecan, a Notary and Proctor of long standing, on the instructions of the defendant's father. The defendant and -his father came to the Notary's office for the execution of the bond and the Notary, noticing that the defendant had a youthful appearance, asked if he was twenty-one, and the defendant replied that he was, and his father said nothing.

The bond was then executed by the defendant and forwarded to the plaintiffs and business relations were then resumed between them.

In view of these findings the District Judge has found in answer to issue 2, that the defendant did fraudulently represent he was a major and was debarred from setting up the plea of minority. I do not think there is the slightest doubt that the Judge was correct in finding that the bond was fraudulently executed. Apart from the evidence of the Notary, other evidence and all the circumstances of the case indicate that the defendant and his father were anxious to renew business relations with the plaintiffs and the bond was executed by the defendant under the expectation that it would be held to be void if sued upon, on account of the defendant being a minor.

In view of these findings of fact, which are amply supported by the evidence, the question that arises on this appeal is whether the bond is in law enforceable. Mr. Rajapakse argued that Muslim law must be applied to decide this point as the defendant is a Muslim. Mr. Perera did not agree and argued that Muslim law is not applicable when only one of the parties is a Muslim and the Roman-Dutch law must consequently be applied.

It was at one stage suggested by Counsel that this appeal should stand over until the determination of S. C. 22/D. C. Colombo, 24,309. In that case the following four questions of law were referred to a Bench of three Judges, viz., (1) Whether Muslims are governed by the Roman-Dutch 'law, so far as their contractual capacity is concerned. (2) If not, whether they are governed by their own law or by Ordinance No. 7 of 1865 ? (3) The effect of the case of Narayanan v. Saree Umm