1945 Present: Soertsz A.C.J. and Keuneman S.P.J.

SIMAN NAIDE, Appellant, and ASLIN NONA, Respondent.

330-D. C. Kegalla, 2,844.

Minor-Sale of land by minor-Sanction of Court not obtained-Right of the minor to have sale cancelled by way of regular action-Onus of proof- Vendee's right to be indemnified.

A sale of immovable property by a minor without the sanction of a competent court is voidable, not void, and the minor may relieve himself from the consequences of the contract by way of regular action.

Where it has not been shown that the minor has derived substantial benefit he must be taken to have suffered the kind of loss or damage sufficient to enable him to obtain relief; the minor must, however, indemnify the defendant and put him back where he stood before he-entered into the contract.

A Kandyan woman, who is under twenty-one years of age, does not obtain majority by marriage.

THE plaintiff, a married Kandyan woman, purported to transfer by deed to the defendant the land in dispute in this case. At the date of the transfer she was under twenty-one years of age. Her father and her husband were present at the sale, but the sanction of the Court had not been obtained. The land was sold for Rs. 500, which was a fair price in the market then prevailing. In this action the plaintiff sued to have the sale set aside on the ground that she was a minor at the time of the sale and that she was not benefited by the contract. At the date of the institution of the action, the land was worth Rs. 1,500.

H. V. Perera, K.C. (with him S. B. Wijayatilake), for the defendant, appellant.-A sale of land by a minor without the sanction of court is voidable and not void-Silva v. Mohamadu 1; James v. Solomon et al 2. The minor's remedy, however, is by way of restitutio in integrum, and serious and substantial damage to the minor, as a result of the contract, must be proved-Majeeda v. Paramanayagam 3; Voet 4.1.10 and 11; Voet 4.4.12, 13 and 16; 3 Maasdorp's Institutes, 678 (4th ed.). The position of a contract, on behalf of a minor, by the guardian is fully considered in Breytenbach v. Frankel 4. The minor in the present case has not proved serious loss. On the contrary she received full consideration on the contract.

L. A. Rajapakse, K.C. (with him C. R. Guneratne), for the plaintiff, respondent.-Where relief is sought for from the Supreme Court by way of restitutio in integrum a minor may have to establish serious loss. Majeeda v. Paramanayagam (supra) was such a case. But restitutio is necessary only in the case of a contract entered into by Court or by a guardian appointed by Court-3 Maasdorp's Institutes (1907 ed.) pp. 58, 59. The present case, however, is an ordinary action and once the plaintiff established her minority at the time of the contract and her readiness now to return the purchase price the burden shifted to the defendant

1 (1916) 19 N. L. R. 426.               3  (1933) 36 N. L. R. 196.
2 (1925) 3 Times 124.                   4  S. A. L. R . (1913) A. D. 390.

to raise any of the exceptional defences permitted by law. Ex facie a minor has no contractual capacity-Wessels on Contracts, p. 236, ss. 695, 696; 1 Maasdorp's Institutes (5th ed.) 280. A minor's contract in respect of immovable property without the sanction of court is void, and not merely voidable-Manuel Naide et al. v. Adirian Hamy et al.1; Saibo v. Perera 2; Wessels on Contracts, ss. 787 (1) (b), 790, 780, 781 where reference is made to the leading case of Nel v. Divine Hall Co 3. The burden of proving that an obligation has been incurred by a minor for his benefit lies upon the person who seeks to enforce it-Voet 4.4.13. It was not obligatory on the plaintiff to prove loss-Muttiah Chetty v. Dingiria et al 4; Dassanaike v. Elwes 5.

S. R. Wijayatilake in reply.-Manuel Naide et al. v. Adirian Hamy et al. (supra) was considered in Silva v. Mohamadu (supra). The burden was on the plai