043-NLR-NLR-V-22-CROOS-v.-VINCENT.pdf
( 1B1 )
Present: .Shaw J. and De Sampayo J.1920.
CROOS v> VINCENT.,
57—D. C. Negombo, 1,849.
Application by mother to be appointed guardian and curator—Shouldrespondent be named ?—Mother guardian without authority fromCourt—Is she entitled to be curator at the same time ?
A mother is by law the natural guardian of her infant- children,and is entitled to look after, them and to have the custody of th'emas against all other people after the .death of-the father. It isunnecessary for a mother to' apply to the Court for authority tobe guardian.
The only thing necessary in her case is to obtain the management -of,the property of the infant children, and she is entitled to applyfor this.
fJlHE facts appear from the judgment.
Groos-Ddbrera, for petitioner, appellant.—The practice has beennot to make any party respondent to applications of this kind. TheCode does not make it imperative that there should is a respond-. ent to an application by way of summary procedure. There is honecessity to make a party respondent when the petitioner apprehendsno opposition. There are cases where the Court has allowed appli-cations by way of summary procedure without insisting on a partyrespondent being named. Mohammado Umma v. Mohideen,2 Themother-is the most competent person to be appointed guardianof her children. She cannot be deprived of this right because shoapplies to be appointee! curatrix of their property. The limitationin section 587 of the Code applies only to cases where any fit. personis appointed under- the previous section. It is submitted'that' section 587 does not govern the whole chapter. Section 585grants the Court authority to appoint a near relative both curatorand guardian*- This section imposes no limitation.
1 (1914) 17 N. L. B. 490.• (1892)2 C. I,. B. m.
( 152 )
1920.
Orooa v.Vincent
[Shaw J.—Is not the mother the natural guardian of thechildren ?] Unddr the Boman-Dutch law it is the father who isthe guardian. After his death the mother may have a preferentialright to be appointed guardian. Perera v. Appuhamy.1 She has tobe appointed guardian by Court. Lebbe v. Christie.2 The motheris not the natural guardian of her minor children.
[Db Sampayo J.—In both thesecases the word “guardian” is usedas including a curator, and the question involved was the guardian’sright to deal with property.]
July 28,1920. Shaw J.—
This is. an ex parte appeal from an order of the District Judgerefusing to appoint the appellant as curator and guardian of herinfant children. The appellant is a widow. The Judge has refused. the application : first, because there was no respondent named inthe petition; and secondly, as to the application to be appointedguardian on the ground that the mother being the heir of thechildren is not the proper person to safeguard the interest of thechildren in the property. With regard to the first point, it appearsto be a general practice to name a respondent to the petition.Whether this is in fact necessary under the law I prefer not toexpress a definite opinion, but it is a practice which is an useful one,because it is well that there should be some other relative beforethe Court who might bring to the notice of the Court any objectionto the application. The counsel appearing for the appellanthas, however, withdrawn his objection to the Judge’s order onthis ground, because he is willing to name some person as arespondent to the petition. With regard to the application to beappointed as guardian, it appears to me to be unnecessary. Themother is by law the natural guardian of her infant children, andis entitled to look after them and to have the custody of them asagainst all other people after the death of the father. It is there-fore unnecessary for the appellant to obtain the authority of theCourt for that which she already is. The only thing necessary inher case is to obtain the management of the property of the infantchildren, and she is entitled to apply for this, and the Judge hasnbt shut her out from applying for this if she names a party to thepetition. The case will, therefore, go back to the District Courtfor the petition to be put in order, and for Ahe Judge to considerthe application.
De Sampayo J.—I agree.
Sent back.
» {1896) 1 N. L. B. HQ.* (1916) 18 N. l>. R. 393.