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question upon which sue case has been decided is whether theaction was maintainable without Ounasekera having been appointednext Mend oi the minor in question. Now, I agree with thestatement of Lawrie, A.C.J., in one of the cases to which I shallpresently refer, to the effect that it is not easy to reconcile someof the provisions of chapter 35 with those of chapter 40. of ourCivil Procedure Code, and the difficulty is probably due to the factthat, while chapter 35 was adapted from chapter 31 of the IndianCode, our chapter 40 represents enactments contained in two>separate Acts of the Indian Legislature not included in their Code,viz., Acts No. 40 of 1858 and No. 20 of 1864. In the case ofJalaldeen v. Meerapulle (3 C. L. B. 26), which was an action by anext Mend, Lawrie, A.C.J., expressed a somewhat doubtingopinion that an action could not be brought in respect of a minor'slands by a next Mend appointed under section 481, unless hegot also a certificate under section 582.
In Fernando v. Weerasinghe (3 C. L. R. 67), which was an actionby a curatrix in the name of the minor upon a lease granted bythe curatrix, Lawrie, J., held (Withers, J., concurring) that a-curatorduly appointed by the Court could not institute actions in the'minor’s name without the express sanction of the ‘Court obtainedoh an application to be made next Mend. In Uduma Lebbe v.Seyadu Ali (1 N. L. R. 1) the action was brought by the minors,by their father as next Mend duly appointed by the- Court, andwas an action of ejectment. The District Court held that it wasnecessary for the father to obtain an order under section 582 ofthe Code. The appeal was specially argued before the Full Court,and Browne, A.J., was of opinion that the certificate of curatorshipwas only necessary to support actions brought by the curator qua:curator in his own name, and was not required for actionsinstituted (or defended) “by a minor, by his next Mend ’’ (orguardian ad litem). . Withers, J., considered that section 582 hadreference only to cases in which there was a claim to have chargeof the minor’s estate, and that, as plaintiff's father made no suchclaim, the action was in order, although, had he put forward sucha claim, it would still have been free from objection owing to thetwo provisos to section 582, inasmuch as the minors’ shares ofthe property sued for were worth considerably under Rs. 1,000.Lawrie, A.C.J. observed that it was hard to- ignore or to explainaway the plain words of section 582: “ No person shall be entitledto institute or defend any action connected with the estate of aminor of which he claims charge until he shall have obtainedsuch certificate.” He asked, “ Is the solution to be found in thewords of which he claims charge? ” and departing from the view
July 201
Wewdt, Jv
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1802.July SO..
Wendt, J.
he had expressed in Jalaldeen v. Meerapulle, he agreed to theconstruction of chapter 85, which enabled a next friend appointedunder section 481 to sue without getting a certificate under section582. Now, the present is not an action upon a contract of theourator’s own, upon which he might have sued in his own name,as was pointed out in Fernando v. Weerasinghe. It is not a mereact of management, such as the letters of curatorship comtemplate,but a proceeding to recover by right of the minor land said tobelong to the minor, but of which the minor never was inpossession. It is in substance an action “ by the minor ” (in thewords of section 476) or “on behalf of the minor ’’ (section 478).In either case an appointment as next friend is necessary.
I think we ought to give effect to the comprehensive words ofsection 476, and hold that the curator should in the present case,before suing, have obtained the sanction of the Court. Thisconstruction is to be welcomed in view of the fact that it will givethe Court the opportunity of exercising a very desirable super-vision over actions brought by or on behalf of minors.
The present objection, however, ought to have been taken inthe form of an application to take the plaint off the file (section478). Instead of doing that the defendant filed an answer, andput the plaintiff to the expense of getting ready for trial on themerits. While, therefore, I think the dismissal of the action shouldstand, I think we ought to direct that the order should have noother effect than if the plaint had been taken off the file.
Under the circumstances there will be no costs in – theDistrict Court, but the respondent will have the -costs of theappeal.
Middleton, J.—
In this case one G. A. Gunasekera sues, as curator of the estateof a minor, G. D. Abeyesinghe.
The action claimed that the minor be declared entitled to afraction of certain land, and be put in quiet possession thereof, andfor damages.
The District Judge, on an objection taken by defendant’sadvocate that the curator cannot institute an action on behalf ofthe minor without an appointment as next friend or guardianad litem, held that the plaintiff could not proceed with theaction.
From the plaint it is clear that this is an action by a minor, andby sections 476 and 481 of the Civil Procedure Code every action bya minor shall be instituted in the minor’s name by an adult persondesignated his next friend and appointed by the Court after it is
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satisfied as to his fitness and the absence of any adverse intereston his part to the minor.
By section 478 if an action is begun by or on behalf of a minorwithout a next friend, the defendant may apply to the Court tohave the plaint taken off the file.
By section 480 every order made in an actionbefore the
Court by which a minor is in any way concerned or affected
without such minor being represented by a next friendmay
be discharged on application made on summary procedure.
Section 582 enacts that no person shall be entitled to institute ordefend any action connected with the estate of a minor of whichhe claims the charge, unless he shall have obtained a certificate ofcuratorship.
Now, it is a priciple of construction that the Legislature mustbe supposed to be consistent with itself, and if it has expressed itsmind clearly in one place it ought to be presumed that it is still ofthe same opinion in another place, unless it clearly appears.that it has changed it (Maxwell on The Interpretation of the>Statutes).
On the ground that the Civil Procedure Code is an olla podridaderived from many diverse sources, • the learned counsel for theappellant invites us to violate this principle of construction, andto say that chapter 40 of the Code is not governed by chapter 35,and consequently that the action is brought in proper form, thecurator taking the place of a guardian ad litem. It is possible toconstrue chapter 40 consistently with chapter 25 by holding thatthe curator, if he brings an action for the minor, must obtain theauthority of the Court to his doing so as his next friend, and I amof opinion that this is what the Legislature intended, as ithas been held by this Court in the case reported in 2 Browne,p. 107.
I am fortified in this opinion by finding what I believe to bethe basis on which the regulations in chapter 35 were founded inVanderlinden, p. 106, where he says, as a principle of the Roman-Dutch Law, that a guardian cannot sue on behalf of a minorwithout the previous authority of the Judge, except at the risk ofpaying the costs himself.
It was intended in my opinion, under the Roman-Dutch Lawthat the Judge should control the initiation of litigation on behalfof a minor for good and sufficient reasons, and this theory, I think,underlies the sections quoted by me from chapter 35. Section 480,
I think, also shows that it was not intended that any person should,bring an action for the minor, unless sustained by the directauthority of the Court as next friend.
July 20.
1902.July 20.
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For these reasons 1 am of opinion that the action by the minoris not well brought in the name of the curator, and that thedecision of the District Court must be upheld. I would, however,treat this order as one under section 478, and allow the plaint to
. be restored, to the file upon the curator’s applying to, and obtaining
the leave of, the Court to sue as next friend of the minor. I agreewith my brother Wendt as to the costs.