BASNAYAKE, C, J•—Podifuxmy v. Jan Singho
1958 Present: Basnayake, C.J., and PuIIe, J.PODIIIAMY, Appellant, and JAN SINGHO, Respondent
S.G. 398—D.O. Gampaha, 147/G d> G
Minor—Sale of immovable property belonging to him—Sanction of Court—Courtcannot compel able—Civil Procedure Code, as. 331, 332,
When a Court gives permission to the guardian of a minor to sell immovableproperty belonging to the minor, it cannot make an order to the effect that ifthe guardian fails to execute the transfer of the property the Secretary of theCourt should execute it. The fact that the guardian, having completednegotiations to sett the minor’s property, obtains the authority of the Courtgives the Court no authority to compel the guardian to sett, any more thanit has authority to compel the purchaser to buy.
xAPPEAL from an order of the District Court, Gampaha.
C. D. S. Siritmrdene, for 3rd Respondent-Appellant.
N. E. Weerosooria, Q.C., with Carl Jayasinghe, and S. D. Jayamvderafor Purchaser-Respondent.
Gw. adv. mdt.
December 12,-1958. Basnayake, C.J.—
This is an appeal by the mother of two minor children who is alsotheir guardian ad litem in the proceedings in which this appeal is preferred.The appellant and her husband, the petitioner-respondent, gifted totheir two minor children by deed No. 39883 of 26th March 1954 a landknown as Ambagahalanda in extent 17 acres 2 roods and 24 perches.This gift was subject to the life interest of the donors and a mortgage infavour of Olive Sylvia de Alwis Seneviratne of Thalgasmote, Veyangoda.The life interest of the donors was first leased and later sold by deedNo. 4868 of 30th July 1955.
On 21st December 1955 the father of the minor applied to the DistrictCourt for authority to sell the land by private treaty and pay ofF theprincipal and interest due on the mortgage and deposit the balance ofthe proceeds of sale in Court. The minor children were named asrespondents and their mother was appointed guardian ad litem and theirfather curator. The Court granted permission to sell the land forRs. 30,000/- to one U. P. Jan Singho (hereinafter referred to as thepurchaser), who was willing to buy the land for Rs. 30,005/- and takeupon himself all burdens and liabilities in respect of the land upon pay-ment to him of a sum of Rs. 15,000/- for the payment of certain liabilitiesin respect of the land specified by him.
BASNAYAKE, C. J.—Podihamy v. Jan Singho
On 16th March 1956 the learned District Judge made the followingorder:—
“ Issue deposit order in favour of U. P. Jan Singho to deposit incourt the sum of Rs. 15,005/- for the credit of the minors the 2nd & 3rd
respondents, by 27/3. Petitioner to execute a transfer of the landdescribed in the schedule to the petition subject to all mortgages,leases & encumbrances of whatsoever nature & kind on or before 20/4.If petitioner does not do so after moneys are deposited then theSecretary of this Court is authorised to sign the transfer.”
On 19th March 1956 the sum of Rs. 15,005/- was deposited in theKachcheri and on 20th March 1956 the receipt was produced in Court-
On 2nd May 1956 the purchaser moved the Court for an order on theSecretary of the District Court to execute the deed of transfer, and theSecretary was directed to do so and a transfer was accordingly executed.
On 6th April 1957 the mother of the minors applied through herproctor to have the order directing the Secretary to execute the deedof transfer set aside. The learned Judge after hearing counsel on behalfof the parties refused the application. This appeal is from that order-
Now in the instant case the minors were the owners of the land inquestion by virtue of the gift they had received from their parents. Asale of immovable property of which they are owners either by them orby their guardian without the authority of the District Court does notbind them (Mustapha Lebbe v. Martinus*, Girigorishamy v. Lebbe Marikar27(three Judges)).
The question that arises for decision in this case is whether a guardianwho seeks the authority of the Court to sell immovable property belongingto a minor is bound to sell once the authority is granted. I am of opinionthat a guardian like any other vendor of immovable property cannot becompelled to sell a minor’s immovable property merely because he hasnegotiated a sale of it. The fact that the guardian having completednegotiations to sell a minor’s immovable property obtains the authorityof the Court, gives the Court no authority to compel him to sell any morethan it has authority to compel the purchaser to buy.
The Court was wrong in making the order to the effect that if theguardian'of the minors, their father, failed to execute the transfer theSecretary should execute it. There is no provision of the Civil ProcedureCode which authorises a Judge to make such an order. The only sectionof the Code which authorises a Court or an officer appointed in thatbehalf to execute a conveyance is section 332. That section does notapply to an application by a guardian for authority to sell immovableproperty belonging to a minor. It applies only to a case where a decreecommanding a person to grant, convey, or otherwise pass from himselfany right to, or interest in, any property as provided in section 217(D)of the Code has been entered and the judgment-debtor neglects orrefuses to comply with such decree (s. 331).
1 (1903) 6 N. L. B. 36t.
1 (1928) 30 N. L. B. 209.
.Usoof v, The National Bank of India, Ltd.
Tn the instant ease the learned Judge does not purport to act undersections 331 and 332 nor has there been even an attempt to adopt theprocedure prescribed in those sections. The former section providesthat if the decree is for the execution of a conveyance and the judgment-debtor neglects or refuses to comply with the decree, the decree-holdermay prepare the draft of a conveyance and apply to the Court bypetition to have the draft served on the judgment-debtor. And interms of the latter section the Court is required thereupon to cause thedraft and a copy of the petition to be served on the judgment-debtorthrough the Fiscal together with a notice in writing stating that hisobjections, if any, thereto should be made within the time fixed by theCourt in that behalf and will be Considered and determined on a dateto be named in the notice. The decree-holder is also required to tendera duplicate of the draft to the Court for execution, supplying a stampof the proper amount if a stamp is required by law.” It is only on proofof such service that the Court or such officer as it appoints in that behalfis empowered on the appointed day, if no objections are made, to proceedto execute the duplicate so tendered.
It is not necessary to discuss the cases cited by learned Counsel for theparties to this appeal as the law applicable has been examined withreference to the Roman Dutch Law writers and the previous decisionsof this Court in the two cases cited above.
The appeal of the appellant is allowed with costs both here and below,and the order of the learned District Judge authorising the Secretaryof the District Court to execute a conveyance on behalf of the minorsis set aside.
Ptjlle, J.—I agree.
PODIHAMY, Appellant, and JAN SINGHO, Respondent