085-NLR-NLR-V-67-D.-JINADASA-Appellant-and-M.-DINGIRI-AMMA-Respondent.pdf
Present :H, N. G. Fernando, A.C.J.D. JINADASA, Appellant, and M. DINGIRI AMMA, RespondentS. C. 1469164— M. G. KegaUe, 19975
Maintenance—Order in favour of child—Transfer of property in lieu of sum due asarrears and future maintenance—Validity.
Where an order has been made for the maintenance of a child, the mother maysubsequently accept either a sum of money or property in lieu of liability of thefather to maintain the child.
Appeal from an order of the Magistrate’s Court, Kegalle.
M. M. Kumar a kulas i n gh a m, for the Respondent-Appellant.
(No appearance for the Applicant-Respondent.)
August 25, 1965. H. N. G. Fernando, A.C.J.—
In this case upon the application of the mother of a child an orderhas been made for the payment of Rs. 15 per month for the maintenanceof the child.
After some payments had been made, the respondent, who is nowthe appellant, fell into arrears and the mother of the child moved for adistress warrant to recover the arrears. At that stage an applicationwas made to the Court to produce a deed alleged to have been executedin lieu of the sum due as arrears and future maintenance. This deedhas apparently been executed with the consent of the mother of thechild. Thereafter it was alleged that the appellant was still in possessionof the land transferred by the deed, but the appellant averred thathe had in fact given possession. The question whether possession hadbeen given was fixed for inquiry. By the time of the ultimate datefor inquiry another Magistrate has assumed office, and he has takenthe view that the interests of a minor cannot be compromised by theexecution of a deed. He therefore recorded evidence concerning thearrears and made order for the issue of a distress warrant.
It seems to me that the Magistrate has misunderstood the matter.The application in the first instance although made for maintenanceof a child has in fact been made by the mother who is the child’s naturalguardian ; such guardian is quite entitled to accept either a sum of moneyor property in lieu of liability of the father to maintain the child.
I set aside the order appealed from and send the case back for inquiryinto the question whether possession of the land has in fact been givento the mother of the child. If the deed was found to be in order andpossession had been given no distress proceedings need be taken.
Order set aside.