085-NLR-NLR-V-22-ALWIS-v.-GUNATILLEKE.pdf
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Present: Bertram C.J. and jsichneider A.J.
ALWIS v. GUNATJ'ILLEEE.
63—D. C. Matarl, 2,616.
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Lunatic vrife—Appointment of some persoji other than husband as managerof the estate and guardian of the person—Wide powers of the CourtsOrdinance, s. 71—Civil Procedure Code, chapter XXXIX.—Courtmust have proof of lunacy before appointing manager of estate orguardian—Marriage in community of goods—Power of husband inrespect of community property.
The Court is entitled, where the circumstances warrant it, toappoint, some person other than the husband as the guardianof the person or as the manager of the estate of a wife who is ofunsound mind.
For the purpose of appointing a manager of an estate of a lunaticor a guardian of the person, the Court should not presume lunacyfrom extrinsic circumstances or act on the admission of parties.
r j ^HE facts appear from the Judgment.
A. Si. V: Jayawardene (with him Weeraralne), for the appellant.
Arulanandan, for the respondent.
July 28,1920. Bertram C.J.—
This case comes before us under a clause in a will which has alreadybeen the subject of judicial interpretation by this Court. The Dis-trict Court was called upon by the petitioner to appoint a managerof the property of a certain lady who was assumed to-be a lunatic.There are good grounds for assuming her to be a lunatic, inasmuohas the will itself recites the fact of her lunacy. She is entitled to. certain property under her father’s will. The property so conferredupon her is subject to a fidei commissum. As she is married to herhusband in community, the income of that property falls into thecommunity. That has already been determined, by this Court,The bequest is accompanied by a direction that the managementof the property so bequeathed shall be in the hands of anothermember of .the family. It is certainly very difficult to reconcilethat direction as to the management of the property with the common
1920.
. ( 304 )
1920.
Bbbtram
C.J.
Alwia p*Ounotilleke
law principle that where there is community of property, themanagement of the property is vested entirely in the husband.However, this Court has, in fact, decided that this direction as tomanagement does not take the property out of the community.In any case any difficulty on the subject has been removed by thefact that the person in whom the will intended to vest the manage-ment has ceased to exist, and that there is no direction in the willfor the appointment of any successor in the management. We maytake it, therefore, os already declared by this Court, that the incomeof the lands so bequeathed to the lunatic under the will is communityproperty. In ordinary circumstances, the "husband is entitled tothe management of it, Just as in ordinary circumstances he is entitledto the care of the person of his wife. So much for the legal positionunder the clause in the will.
There are certain loots to be taken into consideration. The firstis the fact of the wife’s mental condition. It is assumed, but notproved, that she. is a lunatic. As I said, there are good groundsfor this assumption. But in proceedings of this kind the lawrequires proof, and it would be a dangerous thing to allow lunacyto be presumed from extrinsic circumstances or from the admissionof parties. Further, it is assumed in the case, but not proved,that the husband has for some time past formed an irregular connec-tion and is living with the other party to that connection, and hasillegitimate offspring.
The question comes before us on appeal from an order of theDistrict Judge. The District Judge has appointed the secondrespondent as guardian of the person of the lunatic. He has alsoappointed the petitioner as manager of the lunatic’s property.The husband now appeals to this Court. In the Court below hedid not challenge the appointment of the guardian of the person,but in this Court he takes exception to it as interfering with hisnatural rights. I do not know whether, under the circumstances, itis necessary to discuss that question. But, as it is clearly connectedwith the other question, namely, the right of the Court to appointa person other than the husband as manager, I will say a few wordson the subject.
The District Court has very wide powers both under the CivilProcedure Code and under the Cotu^ Ordinance. Under chapterXXXIX. of the Civil Procedure Code* when once it is found thata person is a lunatic, it has power under section 567 to appoint amanager of the lunatic’s estate, and also to appoint a guardian ofthe person. By section 571 it is expressly proyided that no managershall have power to sell or mortgage the estate or any part thereofor to grant a lease of any immovable property for any period exceedingfive years without an order of the District Court previously obtained.The succeeding sections give the Court general powers for the controlof the manager. Similarly, seotion 71 of the Courts Ordinance
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is expressed in wide terms. It declares that “ every Court shallhave the care and custody of the persons and estates of all idiotsand lunatics and others of insane and non-sane mind residentwithin its district, with full power to appoint guardians and curatorsof all such persons and their estates, and to make order for themaintenance of such persons and the proper management of their
1920.
Bbbtbam
C.J.
Alwis v.QunaHUeke
Now, I do not think that the power of the Court as regards eitherthe person or the estate of the lunatic ought to be unnecessarilylimited. It is quite true that in common law the husband hasextensive rights as regards both. The Court wilLtake these rightsinto account just as in cases of habeas corpus relating to custody ofchildren it will take into account the natural rights of parents.But it is always entitled, where the circumstances warrant it, toappoint some person, other than the husband, as guardian of theperson or as manager of the estate of a lunatic wife. In this case, ifthe circumstances, which are assumed, are proved, the Court willbe within its rights in displacing the husband from the guardian-ship of the person of his wife. So also in regard to the property.Under ordinary circumstances the husband, where there is a marriage .in community, has a full right, not only to manage the community,property, but to dispose of it. The Court, nevertheless, has powerto interfere, if necessary, with the husband’s common law powerof management and disposal.
The only question which arises in this case is a practical question.The community properly is not the property of the wife alone.It is. the property of the wife and the husband. It is impossibleto appoint a separate manager of the wife’s interest in the com-munity property for the simple reason that it is held in common.The husband is in every respect the most convenient , person toappoint for the purpose of managing Ms wife’s interest in theproperty, more particularly in view of the fact that by virtue oihis appointment the Court is in a position to keep Mm under control.
I think, therefore, that the District Judge was not well advisedin appointing the petitioner as manager of the estate of the lunatic,and he has undoubtedly gone beyond his powers in the directionswMch he has given, because he purports to direct the manager todispose of the whole of the incqgte of the ftdei commissum property.This is clearly wrong, because the husband is entitled as well as thewife to the enjoyment of tMs income. I think, therefore, that itis desirable that the District Judge should re-consider the orderwMch he has made, and that the oase should go back to Mm, partlyin order that he may take formal evidence of the lunacy of the allegedlunatic, and partly that he may give an opportunity to the husband,if the husband so desires, to contradict the facts, wMch are assumedin the oase, as to the illegitimate connection to wMch I h'ave pre-viously referred, and, in the tMrd place, with a view to his making25
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1920.
Bertram
C.J.
Alwia v.GumtiHeke
another order as to the management of the estate. I think themost appropriate person to appoint would be the husband, providedthat the order is accompanied by proper safeguards. For thispurpose it becomes material to consider the position of a wifemarried in community.
Mr. Jayawardene has strongly insisted that, although the propertyis held in community, the husband is entitled absolutely to theenjoyment of the whole of it for his own purposes, and that thewife has no rights at all except to such charitable consideration asher husband may extend to her. I do not take that to be theview of the law. The husband no doubt has most extensive rights,but these rights are conferred upon him as managing partner.In that respect his authority is no doubt absolute. But it is anauthority for the purpose of the partnership, The Court will notchallenge any act which he has done by virtue of his powers, butif he abuses the powers, it will restrain him from further abuseeither by sepamtio bonortm or by an interdict. This clearly indicatesthat the law recognizes the wife and . the husband as both beingpartners in the community property, and this is indeed impliedby the very term in which the relationship is described. In viewof these considerations, I think it will be entirely within the powerof the District Judge to direct the husband, as manager of theestate, which in this case consists of the revenue of the fidei coinmis-svm property, that such proportion of that revenue not exceeding halfof the whole, as he may think necessary, should be paid to the guardianof the person of the lunatic for the purpose of her maintenance.
I think, too, that it is clear from the general terms of section 71of the Courts Ordinance, and from the sections of the Civil ProcedureCode to which I have referred, that, if the District Judge is appre-hensive that the husband might misuse his powers by leasing therevenue of the fidei commissvm property, he has full powers to restrainhim. A formal order does not appear to be necessary in view ofthe terms of section 571 of the Civil Procedure Code. But thatsection is not exhaustive, and if the District Judge is of opinionthat further directions are necessary, I think that section 71 ofthe Courts Ordinance will give him all necessary authority for.thepurpose. In my opinion, therefore, the case should go back tothe District Judge for the purpose I have mentioned.
The husband in this case has to a certain extent succeeded, inthat he has displaced the petitioner from the management to whichhe has been appointed by the District Judge. On the other hand,we are making an order which he has contested in the argument,and I think that, in the circumstances of the case, the fairestdecisionwould be that there should be no order as to thecosts of this appeal.
Schneider A.J.—I agree.
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