025-NLR-NLR-V-30-SEGU-MADAR-v.-HOWUMMA-et-al.pdf
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1928
Present: Garvin and Drieberg JJ.SEGU MADAR v. HOWUMMA et al.
40—D. C. (Inty.) Kurunegala, 2,707.
Muslim widow—Minor—Compromise by guardian ad litem—Testa-mentary case—No leave of Court—Civil Procedure Code, s. 502.Where the guardian ad litem of a Muslim widow, who was underage entered into a compromise on her behalf without the specialleave of Court,—
Held, that the compromise was not binding on her,, althoughshe had given her "assent to it.
A
PPEAL from an order of the District Judge of Kurunegala.
The facts appear from the judgment.
May 23, 1928. Drieberg J.—
This is an appeal by the appellant from an order made on anapplication for the judicial settlement of the estate of Thanga'Udayar, deceased. The parties are wrongly described in the peti-tion for judicial settlement which was by the respondent to thisappeal. I shall therefore refer to the parties by the position theyhold in the application for administration by the present appellant.In that the appellant was the petitioner, the present respondentwas the first respondent, and her father was the second respondent.
The appellant, who is the father of the deceased, applied foradministrati on on September 22, 1924, alleging that the firstrespondent, the widow of the deceased, was a minor under twenty-one years of age and that her father, the second respondent, wasa proper person to be appointed guardian ad litem over her. Thesecond respondent is not an heir of the deceased.
The appellant stated that the fourth respondent was a minorand that the third respondent was a proper person to be appointedguardian ad litem over her. The third respondent is a sister andthe fourth respondent is a brother of the intestate.
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On the same day the Court issued to the respondents a citation 1928.requiring them to produce to Court all title deeds and securitiesj
of the deceased on October 28. On the same day it issued a decree
nut declaring the appellant entitled to letters unless cause was Se9u Madarshown to the contrary on or before October 28, and in this notice it Howummaappointed the second respondent guardian ad litem, over the first res-pondent and the third respondent guardian ad litem over the fourthrespondent. There is nothing to show that the first and secondrespondents or the third and fourth respondents were before theCourt when this order was made, and the procedure is irregular.
Section 493 of the Code requires an application for such an appoint-ment to be by summary procedure. On October 28, 1924, Messrs.
Gomis & Jayasundere filed proxy of the first respondent whoclaimed to be entitled to grant of administration and the inquirywas fixed for November 11 following. On October 28 all therespondents were present, but the attention of the Court was notdrawn to the fact that the second respondent had previously beenappointed guardian ad litem and no proxy was filed by the secondrespondent.
On November 11, 1924, a written consent to a settlement wassubmitted. It provided for the appellant being appointed ad-ministrator, the first respondent was to take for her share a certainhouse and a field and was to renounce her claim to a share in theother lands, and the description of one land in the schedule wasto be amended. It was also agreed that certain persons not namedin the petition for administration should be added as respondentsand heirs of the intestate. These were four children of AssanathUmma, deceased, a sister of the intestate, but this does not seemto have been done, and I can find no further reference to them inthe proceedings. The settlement was submitted, signed by theappellant and his proctor, by the second respondent as guardianad litem of the first respondent, and by Messrs. Gomis & Jaya-sundere as proctors for theffirst and second respondents. Thereis a note that on December 22 the first respondent signed the consentmotion and that it was explained to her by the Interpreter Mudaliyar.
On February 26, 1925, it was signed by the third and fourthrespondents.
On July 8, 1927, the first respondent applied for a judicialsettlement. She alleged that she was a minor at the time of theadministration case and that her guardian ad litem, the secondrespondent, had since died. She also said that she had receivedno portion of the income of the estate and gave a lirt of seven landswhich she said the appellant had not included fc. the inventory.
In a supplementary affidavit she stated that she had signed thesettlement and that she was not bound by it as it had beeh enteredinto without the special authority of the Court.
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1928.
Drieberg J.
Segu Madarv.
Howumma
Now, the first respondent being a Muslim did not acquire majorityby marriage, but by section 502 of the Civil Procedure Code she isa major for the purposes of Chapter XXXV., and therefore she couldsue or be sued without representation by a next friend or a guardianad litem. It was contended for the appellant that, she being aperson of full age and capacity for the purposes of the proceedingsin Court, the consent which she gave in person to the settlementwas binding on her arid that it was not open to her to question theregularity of the compromise made on her behalf by her guardianad litem. The learned District Judge held that the settlementwas not binding on her and allowed the application for a judicialsettlement. The appellant appeals from this order.
The compromise regarded as one made by a grr.rdian ad litem ■on behalf of a minor is clearly irregular.
Our Code does not provide, as the Indian Code now does, Order32, rule 7 (1), that the leave of the Court should be expressly recordedin the proceedings. This addition to the Indian Code, however,merely gave effect to the practice previously existing, and herespecial leave to enter into a settlement or compromise on behalfof the minor, distinct from the general sanction applied for by allthe parties, has always been insisted on (Silindu v. Akura,1 Bandarav, Elapata:1). There is nothing in the record to indicate that theCourt exercised any discretion as to the propriety of the compromiseor that any material was put before it on which it could have formedan opinion whether it was for the benefit of the first respondent.The Court is not by the appointment of a guardian ad litem relievedcompletely from the duty of watching the interests of minor partiesto actions. The appellant in his application for administrationstated that the value of the estate was Rs. 7000. The amendedinventory after the revision by the revenue authorities, whichwas filed eight months after the settlement, showed the valueof the estate on which duty was payable as Rs. 20,011-25. Thisshows the danger of allowing such a compromise as this beforethe real value of the estate is known.
It is significant that no effect was given to the compromise byexecuting a conveyance to the first respondent until June 27, 1927,ten days before the first respondent applied for a judicial settlement.
If the respondent was a minor for all purposes the settlementcannot bind her for the reasons I have stated. Is she then to bebound by it because by the provisions of section 502 of the CivilProcedure Code she was competent to appear in the action withouta guardian ad litem and because she signed the settlement ? It isclear to my mind that she is not bound by it. She was not actingas a person of full capacity, nor could the responsibility for the
1 (1907) 10 N. L. R. 193'.* (1922) 1 Times of Ceylon Reports 32.
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. settlement attach to her when she was under the tutelage of the i92S.guardian ad litem with whom the Court dealt as her representativej
who could bind her by his action.
Tn my opinion the order of the learned District Judge is right. Se9UI wish to draw his attention to the application for j udioial settlement. EowummaIt does not state the parties to it but names as respondents “ SinnaUdayarlage Eowumma and others.” This is indefinite anduncertain. The Court will also direct attention to the childrenof Assanath Umma, the deceased sister of the intestate, who, it isagreed, are heirs of the intestate but who, so far as I can see, werenot brought into the proceedings though on November 11, 1926,the journal entry has a note “ estate closed.”
The appeal is dismissed,' with costs.
Garvin J.—I agree.
Appeal dismissed.
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