016-NLR-NLR-V-67-M.-A.-C.-MALEEHA-NONA-Petitoner-and-M.-C.-M.-MAHUMOOD-and-21-others-Responden.pdf
Present: H. N. G. Fernando, J., and L, B. de Silva, J.M. A. C. MALEEHA NONA, Petitioner, and M. C. M. MAHUMOOD
and 21 others, Respondents
<$. C. 108/1960—Application for Restitutio in Integrum and/or Revision
in D. G. Colombo, 1934/L
Action against minors—Appointment of guardian ad litem—Admission, by guardian,of plaintiff's claim—Difference between such admission and an adjustment ofthe action—Voidability of decree—Civil Procedure Code, ss. 72, 408, 500.
Section 500 of the Civil Proced'ire Code which debars a guardian of a minorfrom compounding an action without the leave of the Court refers to such anadjustment of an action as is mentioned in section 408 and is not applicableto an admission made by the guardian in terms of section 72.
In a rei vindicatio action instituted in 1940 some of the defendants, whowere minors, were represented by a guardian ad litem, who, when called uponto answer the plaint, hied a minute of consent consenting to judgment asprayed for without costs. Decree was accordingly entered in 1941 againstthe defendants.
Held, that the guardian’s minute of consent was an admission of the plaintiff’sclaim within the moaning of section 72 of the Civil Procedure Code and notan adjustment within the meaning of section 408. Accordingly, the decreeentered in the action could not be set aside in an application for restitutio inintegrum subsequently made by one of the minors on the ground that therewas a compromise of the action and that in terms of section 500 of the CivilProcedure Code it was unlawful as being one made by the guardian withoutthe leave of the Court.
Application for restitutio in integrum and/or revision in respeotof a decree entered by the District Court, Colombo.
E. B. Vannitamby, with H. S. Ismail, for petitioner.
H. W. Jayeivardene, Q.G., with M. T. Sivardeen and D. S. Wijewardene,for 1st to 22nd respondents.
Gur. adv. vult.
November 10, 1961. H. N. G. Fernando, J.—
This is an application for restitutio in integrum to set aside a decreeentered in 1941 declaring the plaintiff and the 10th defendant in thataction to be entitled to an undivided two-thirds share of the land to whichthat action related. The present petitioner who seeks this relief wasadmittedly a minor aged only three years at the time when the decreewas entered.
It would appear that the petitioner’s father one Abdul Cader purchasedthe property in question in February 1925 in his own name. AbdulCader died in May 1938 and his brother Abdul Razak was duly appointedto be the administrator of his estate. In the petition for administration<D. C. Colombo Testy. 8542) the widow Kadija Umma and five minorchildren as well as the mother of the intestate were made respondents,the minors being represented by their guardian ad litem one U. L. M.Mohamed, their mother’s sister. In the schedule of assets of the intestate,the estate was credited only with a one-third share, and not the entiretyof this property, it being mentioned in the schedule that the other two-thirds belonged to the deceased’s brother although the title deedsare in the name of the deceased. The same was the case in the inventoryfiled by the administrator in 1940, and in the final account filed in April1941 the income only of a one-third share of the rents of the property wasbrought into account. The guardian ad litem specifically declared tothe Court that this final account was correct.
As already stated the deed of 1925 by which the deceased AbdulCader purchased the property was in his own name, but the presentrespondents have produced a document marked R2 purporting to havebeen signed in November 1937 by Abdul Cader in which he declaresthat the property had been purchased at an auction sale with moneyprovided in equal shares by himself and his two brothers and that heholds two-thirds of the property in trust for the brothers . The res-pondents further state that the money for the purchase came from theprofits of a business which was being carried on in partnership by thethree brothers. It is averred that on the faith of this document theguardian-ad-litem of the minor children of the deceased signed a decla-ration that two-thirds share of the property belonged to the deceased’stwo brothers and consented to the administrator executing the necessarydeed for the purpose of conveying to the brothers title to the two-thirdsshare*. This declaration which was authenticated by a Proctor was filedin the Testamentary case in June 1940, but the parties were apparentlyadvised subsequently that such a transfer may not be effective, andpresumably for this reason the action No. 1934 was instituted in Septem-ber 1940, in which the plaintiff who was one of the brothers of the deceasedsought a declaration of title to a two-thirds share of the property infavour of himself and his other brother, the 10th defendant. In thataction also the minors were represented by their maternal uncle the 6thdefendant. He by a minute of consent dated 26.2.41 consented tojudgment as prayed for without costs. The main ground of the presentapplication for restitutio is that this was a compromise of the action andthat in terms of section 500 of the Civil Procedure Code it was unlawfulas being one made by the guardian without the leave of the court. I amunable to agree with this contention.
Section 500 in my opinion refers to such an adjustment of an actionas is mentioned in section 408 of the Code, which provides inter aliathat “ if an action be adjusted fully or in part by any lawful agreement orcompromise …. such agreement or compromise shall be notifiedto the court …. and the court shall pass a decree in accordancetherewith ”, but section 408 does not itself contemplate an admissionby a defendant of the plaintiff’s claim against him. Such an admissionis provided for not in section 408 but in section 72 of the Code wherebyif a defendant when called upon to answer the plaint admits the claimof the plaintiff, the court must give judgment against the defendantaccording to the admission so made. The Journal Entries in actionNo. 1934 show only that there was first an appointment of a guardian adlitem of the minors and thereafter service of summons. Date was fixedfor Answer but Answer was not filed, instead there was filed a minute ofconsent to which I have already referred and the Proctor for the plaintiffmoved for decree to be entered as prayed for without costs. Clearlythere was here a simple admission of the plaintiff’s claim of the naturecontemplated in section 72 and subject to any special restriction as to theapplicability of section 72 for the reason that the defendants wereminors, the District Judge was bound to enter the decree.
Counsel for the petitioner has not drawn our attention to any decisionindicating that a guardian ad litem of minor defendants requires the leaveof the court before he may admit a claim in terms of section 72. The oDlyargument against the applicability of that section is the highly technicalone that because the plaintiff and the guardian had agreed that costsbe waived there was no pure admission of the plaintiff’s claim and insteadan adjustment within the meaning of section 408. The consent of theplaintiff to waive costs is not in my opinion an adjustment of that nature.
In any event I am satisfied in view of the facts as briefly stated abovethat no prejudice was caused to the minors by their guardian’s admissionof the claim. The fact that their mother, their grandmother and theirguardian the maternal uncle acquiesced in the administrator’s declarationthat the deceased Abdul Cader owned only a one-third share in his ownright and the further fact that the document R2 in which the deceasedhad acknowledged himself to be the trustee on behalf of his brothersfor the two-thirds shares has not been challenged in these proceedingsshow that the plaintiff’s claim in action No. 1934 could not have beensuccessfully resisted.
The application is refused with costs fixed at Its. 250.
L. B. de Silva, J.—I agree.
Application refused.