114-NLR-NLR-V-23-BANDARA-v.-ELAPATHA-et-al.pdf
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Present: Do Sampayo and Schneider JJ.BANDAR A i7. ELAPATHA et at.
C.—Batnapura, 652 (Testamentary).
Restitutio in integrum—Applicationfor probate—-Settlement—Compro-mise—Minor—Special leave of Court—Civil Procedure Code*e. 500.
In a testamentary case where probate was applied for parties,including the guardian ad litem of a minor, came to a settlement,and the Court sanctioned the settlement and ordered probate toissue, subject to the modifications detailed in the terms of settle*meat. No special leave was given to the guardian of the minor toenter into the compromise.
Held* that the compromise was not binding on the minor.
Samaratvickreme, in support.
June 28,1922. De Sampayo J.—
This is an application for restitutio in integrum in respect of anorder entered by the District Judge on December 3,1915, in testa-mentary action No. 652 of the District Court of Batnapura. Thedeceased whose estate was administered in that case left a will, whichwas produced in Court, and for which probate was applied for.There were several parties interested in the estate, amdfig othersthe present applicant, who was named first respondent, and who at
fpHB facts appear from the judgment
1922.
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1922.
Db BamfayoJ.
JBandarav.
Elapatha
that time was a minor. The parties, including the guardian adlitem o£ the minor, submitted to Court certain terms of settlement.These terms appear to be a radical departure from the terms of thewill, andaffect the minor very seriously. The willdevised to him ahalf of a large portion of the-estate, but in the compromise he wasto get one-fifth share only. The will also contained conditionscreating a fidei commissum, but all these provisions of the willwould appear to have'been ignored, and the terms submitted toCourt were sanctioned. The terms were signed by all the parties,including the guardian ad litemand the motion was: “ We jointlymove that the Court do sanction the above terms of agreement.9’
The Court thereupon without any further inquiry purported toorder probate to issue, “ subject to the modifications detailed in theterms of settlement.” It will be noticed that while the Courtsanctioned the terms of settlement, it did not apply itself to thequestion of giving special leave to the guardian of the minor toenter into this compromise. The section of the Code applicable tothe matter in section 500, which enacts that no next friend orguardian for the aotion shall, without the leave of the Court, enterinto any agreement or compromise on behalf of a minor with refer-ence to the action in which he acts as next friend or guardian, andthat any such agreement or compromise entered into without theleave of the Court shall be voidable against all parties other thanthe minor. It appears to me clear that the leave of Court referredto in this section is a special leave to be applied for by the guardian,and different from the general sanction applied for by all the partiesfor the approval of the Court to the terms of the settlement. Inthis connection I may refer to the judgment of this Court in Silinduv. Abwra?- In my opinion the provisions of section 500 of the CivilProcedure Code were not observed in this case, and that the orderreferred to ought not to have been made so far as the minor isconcerned. The minor hasnowgrownup,and mahesthisapplicationfor the purpose of the order being set aside. I think he is entitledto the relief applied for. I would, therefore, direct that the orderof the District Judge of December 3, 1915, be set aside, and theestate be administered, so far as the minor is concerned,in terms ofthe will, subject to thcf consideration of any objection to the willitself or any other ground relevant to the application for probate.
Schneider J.—I agree.
Allowed.
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'{1907) JON. L.B. 193.