1959 Present : Weerasooriya, J., and K. D. de Silva, J.

S. D. GUNASEKERA and others, Appellants, and K. M. ALBERT,
Respondent

S. C. 131-D. C. Galle, 5,711/L

    Minor-Lease of immovable property belonging to him-Requirement of sanction  of Court--Right of guardian to execute lease.

The guardian of a minor, even when he is the father of the minor, is not entitled to execute a lease of the minor's immovable property for a term exceeding one month without the prior sanction of the Court.

A party who obtains a deed of lease of a minor's immovable property for a term exceeding one month from a person who happens to be the minor's natural guardian is not entitled to say that the deed was executed by the lessor in his representative capacity unless it is so stated in the deed itself.

APPEAL from a judgment of the District Court, Galle.

H. A. Chandrasena, for the plaintiffs-appellants.

H. W. Jayewardene, Q.C., with E. A. G. de Silva, for the defendant-respondent.

Cur. adv. vult.

August 6,1959. K. D. DE SILVA, J.

The 2nd and 3rd plaintiffs who are minors instituted this action on September 22, 1955 by their next friend the 1st plaintiff against the defendant for a declaration of title to the land called Keenakanda. Waturawa in extent 7 acres and 38 perches and to recover possession of the said land together with damages in the sum of Rs. 9,365 up to. May 1955 and thereafter at the rate of Rs. 300 per month until restoration of possession. Admittedly the 2nd plaintiff is entitled to 3/8th and the 3rd plaintiff to 5/8th shares of the land on the deeds P 3 to P 10 produced in the case. The learned District Judge, however, held that at the time of the institution of the action they were entitled to only three fourths. That is obviously due to an error and it was so conceded by Mr. H. W. Jayewardene Q.C. who appeared for the defendant respondent at the hearing of this appeal.

The plaintiffs alleged that in or about August 1955 the defendant forcibly and unlawfully entered the land and started taking the produce of tea standing on it and continued to remain in unlawful possession of the land denying and disputing the plaintiffs' title to it. The defendant. filed answer on December 5, 1955 averring that Alfred Bias Gunasekara. who is the husband of the 1st plaintiff and the father of the 2nd and

3rd plaintiffs gave a lease of a half share of this land to him on deed D 1 of January 9, 1953, representing to him that he was entitled to that share. The defendant denied that he was in possession of the entire land. He further stated that the 2nd and 3rd plaintiffs were only nominal owners whereas Alfred Dias, his lessor, was the real owner of the interests leased on D 1. He also alleged in his answer that this action was instituted at the instance of Alfred Dias. He further stated that in terms of the lease D1 he had improved the land and manured the tea plantation which cost him a sum of Rs. 2,500. In any event he claimed to be entitled to remain in possession of the interests leased on D 1 until the sum of Rs. 2,500 was paid to him. The case proceeded to trial on 12 issues. The learned District Judge held that a father had the right to look after the estates of the minor children according to the Roman-Dutch Law and that" there was nothing wrong in Gunasekera in leasing the land of his children. The possession of the defendant is lawful". Accordingly he dismissed the plaintiffs' action with costs. The appeal is from that judgment.

Mr. Jayewardene contended that Alfred Dias being the father of the minor plaintiffs was their natural guardian and that the natural guardian was entitled to give a lease of the minors' property according to the Roman-Dutch Law. The right of a father, who is undoubtedly the natural guardian, of his minor children, to manage their property during their minority cannot be challenged. But the question is how far does that right extend.