042-NLR-NLR-V-72-L.-C.-N.-FERNANDO-Appellant-and-L.-A.-G.-FERNANDO-and-another-Respondents.pdf
174
WEE RAMA XTRY, J.— Fernando v. Fernando
1968Present: Samerawickrame, J., and Weeramantry, J.
C. N. FERNANDO, Appellant, and L. A. G. FERNANDO and another,
Respondents
S. G. 151 [68 (F)~D. G. Negombo, 2392jG
Jurisdiction—Sale of immovable property of minor—Properly situate outside jurisdictionof Court of minor's residence—Appropriate Court to which the curator shouldapply for sanction to sell—Courts Ordinance, a. 69—Civil Procedure Code, ss. 6,9 («) (b), 584.
An application for porraission to soil land belonging to a minor should bhmado to tho District Court within whoso jurisdiction tho minor rosidns, althougntho land in question may bo situate within the territorial limits of tho jurisdictionof anothor District Court. In such a caso it is not necessary to obtain thoconsent of tho Court where the proporty is situate.
.ApPEAL from a judgment of tho District Court, Negombo.
»S J. P. Fernando, with N. T. S. Kularatne, for tho potitioner-appellant.
Ana tula de Silva, Grown Counsol, as amicus curiae, for tho respondents.
Cur. ado. vult.
August II, 19GS. YVekkamaktry, J.—
Tho potitionor-appollant filed an application in the District Court ofNegombo praying that ho bo appointed curator of the property of thefirst respondent, a minor resident within lilt* jurisdiction of that court.The guardian ad litem of tiic minor for the purpose of this application wasthe scond respondent.
YVKKRAMAXTRY, J.—Fernando v, Fernando
175
In the same application the petitioner-appellant, sought permission tosell an item of immovable properly belonging to tho. minor situated in thePuttalam district. The learned District Judge dismissed that part oftho application which related to tho salo of tho land, holding that hehad no jurisdiction to order such a salo inasmuch as tho land was situatooutside tho territorial limits of his jurisdiction.
This appeal therefore raises tho interesting question whether an applica-tion for permission to sell land belonging to a minor should bo mado totho District Court within whoso jurisdiction tho minor resides or to thocourt within whose jurisdiction the land is situate.
Section 69 of the Courts Ordinance provides that evory District Courtshall have the care and custody of tho persons and ostatos of all idiotsand porsons of unsound mind and others of insane and non-sane mindresidont within its district, with full power to appoint guardians andcurators of-all such persons and thoir estates. Tho section goes on toprovido that in the like manner and with the same powors, tho care ofthe persons of minors and wards and the charge of their property withinits district shall be subject to the jurisdiction of the District Court.
Although the words “ within its district ” appear immediately afterthe word “ property ” in this provision it has been held on more than oneoccasion by this court that tho former expression qualifies the words“minors” and “wards” rather than tho word “ property ”! Thisinterpretation would seem to follow from the fact that the words ‘‘alsoand in like manner ” suggest that tho jurisdiction of District Courts asregards minors and wards should bo of tho same nature as the jurisdictionin respect of idiots and insane persons conferred on thorn by the oarlierpart of the section. This view also received approval in KeppitipolaKumarihamy v. Rambukpolha,2 It seems scttlod then that the jurisdic-tion of a District Court to appoint guardians and curators of minors andtheir estates depends on the residence of the minor within the territoriallimits of the jurisdiction of such court.
It is true that a somewhat different view has more recently beenexpressed by this court in Cassaly v. Bvhari3. Gratiaen J. thereobserved in regard to section 69 (1) of the Courts Ordinance that it givesstatutory recognition to the powers and responsibilities of a court as thetraditional upper guardian of minors under the Roman-Dutch law .andthat this provision entrusted every District Court with the care andmanagement of a minor’s estate situate within its jurisdiction.
Gratiaen J. was in that case considering the question of a sale of aminor's property by his curator without the proper sanction of the courtand was not giving bis attention specifically to the question whether the *
*In the matter oj May Fernando a minor (1S96) 2 N. L. R. 249 ; Mulhinh v
Baur (1906) 9 N. L. R. 190, F.B.
(1928) 30 N. L. R. 273.
1 (195$) 58 N. L. R. 78.
17G
WEERAMAXTRY, J.—Fernando v. Fernando
court of residence had jurisdiction in preference to the court whereproperty was situate. The dictum to which I have referred must nottherefore be taken to be one to the effect that the court where propertyis situate has jurisdiction in preference to the court- of residence, butrather as one emphasising that the powers of District Courts over minorsthough conferred by statute hark back to the traditional notion of upperguardianship so well known to and recognised by the Roman-Dutchlaw.
It would not appear, therefore, that this Court has at any stage departedspecifically from the view expressed in its earlier decisions to which Ihave already referred, and these decisions having as they do the supportof a full Bench of this Court must be taken to state authoritatively thelaw on this subject.
In the Roman-Dutch law likewise there would appear to have been aprinciple that for an order of court to be made relating to the propertyof a ward, the ward should have.his domicile within the district of theJudge or Magistrate making sucli order, a rule which obtained eventhough the things of which the alienation was in question were situatein places not subject to the power of such Magistrate *.
As Voet observes 1 2 this principle is similar to that by virtue of whichthe praetor permitted the property of a ward to be sold not only in Italybut even in the provinces, provided the guardianship was being conductedat Rome and the guardian had undertaken at Rome the administrationof the property in the provinces 3.
There is indeed a statement in the Digest 4 to the effect that if apatrimony over which a tutor is appointed is situate in very differentparts, a tutor might apply to have other tutors appointed to act in thoseparts. This passage docs not however derogate from the general principlethat the tutor appointed has control over all property wherever situate,for, as is observed in the Institutes 5 and in the Digest,0 a tutor who isappointed is considered appointed for the whole patrimony.
Applying this principle then, the appointment of a curator over theproperty of a minor would ordinarily give that curator control over allthe property of the minor even though some items of property be situateoutside the territorial limits of the court making the appointment.
The South African Courts have in reliance on this Roman Dutchprinciple held that it would be proper to apply in the first instance to theCourt of the minor's domicile even though in certain cases it might benecessary to obtain a further order from the Court where the property
1I'ocl 27.9.6
2I'ocl 27.0.5
3D. 27.9.6.12
* 27.1.21.23 1.26.173 27.1.21.2
WEERAMAXTRY, J.—Fernando v. Fernando
177
was situate1. They.have also observed that there can be no doubtthat as a general rule the most convenient place for investigating whetherthe alienation is in the interests of the minor or not is the Court of theminor’s domicile 2.
In Ceylon we do not have a multiplicity of divisions and jurisdictionssuch as may make it necessary in certain eases in South Africa to obtainthe consent of the Court where the property is situate3. I do not thinktherefore that under our procedure it becomes necessary as a matter oflaw to obtain the dual consent which may sometimes be rendered necessaryin South Africa.
It may also be observed that it is not possible to derive guidance onthis matter from cither English or Indian procedure. In the formercase, guardians are appointed by the Chancer}'Division of the High Courtin the exercise of its traditional function of superintendence of the care andcustody of infants, and any analogy with the territorial jurisdiction ofDistrict Courts becomes inappropriate ; and in the latter case the matteris dependent on the special provisions of the Guardians and Wards Act,No. 8 of 1890, section 9 (2) of which expressly provides that an applicationmay be made either in the court where the minor resides or in the courtwhere the property is situate. Likewise, little guidance can be obtainedfrom decisions on the New York Code of Civil Procedure, from whichmany of our provisions of Civil Procedure are taken, for the reason thatin that jurisdiction as well, application for appointment of a guardian ofthe property may be made to the Supreme Court 4.
Wo must noxt consider the effect on tho prosonfc application, of section584 of tho Civil Proceduro Code, which provides that if the property issituate in more than ono district, an application for appointment of aperson to tako chargo of the property and person of a minor should bemade to tho District Court of tho district in which tho minor at tho timoof application residos.
It is not clear what precisely was tho nocossity for the enactment ofsuch a soction having regard to soction 69 of the Courts Ordinanco whichhad already provided that the Court of tho minor’s residence should bovested with such jurisdiction. A soction expressly giving such jurisdic-tion to the Court of residence whon proj>crty is situato in more than onojurisdiction seems to bo superfluous in the light of soction GO (1) of theCourts Ordinance, but I do not think that tho mc-ro cxistcnco of thisprovision is sufficient of itself to justify a departuro from the view thattho intention of section 69 (1) of tho Courts Ordinanco was to vest juris-diction in the Court of residence. Compelling reasons deriving both from
1 Ex parte XJys 1029 T. P. D. 443 at 444: ex parte Ford 1940 W. L, D. 153 at
157. See also ex jxirte Estate Hiddingh 1935 O. P. D. 92 at 95.
Ex parte Uys, 1920 T. P. D. 443.
Ex parte Ford, 1940 W. L. D- 155. See also eiparte Snyman, 1930 C. P. D. 107
and ex parte Jhaveri, 1933 N. P. D. 104.
Section 2349 of the New York Code of Civil Procedure, 187fi.
178WEERAMAXTRY, J.—Fernando v. Fernando
tho contort of that soction itself and from tho underlying principles ofcommon law must necessarily' outweigh such inference to tho contrary asmay bo suggested by soction 5S4.
There aro other practical roasons which point also to the necessity fortho principle that the Court of residence should havo jurisdiction.
It will roadily bo appreciated that the Court, discharging as it doos thorolo of upper guardian, is oxpectod to porform tho samo functions asthose which an individual would havo to perform had ho been placed in aposition of supervisory authority ovor a guardian or curator. Thisfunction cannot bo split as botwoon different Courts for one Court alonomust take this responsibility and discharge this function.
In particular, whore property7 is siiuato in more jurisdictions thanone, it would be undesirablo to havo tin's supervisory function exorcisedpiocomeal by the different Courts in which such property happons to besituato. Ono Court would not then be ablo to bavo that ovorall view ofthe minor’s affairs and of tho conduct and activities of the guardian orcurator, which would bo necessary to a proper assessment of the necessityfor salu or other disposition of property. Sales or other dispositions, or,for that matter, tho very conduct of a guardian or curator, may well,whon viowod in thoir totality, put tho Court upon inquiry in cases wherean individual application to deal with property may not arouse suspicion.
It is desirablo therefore that when a Court discharges tho supervisoryresponsibility lying upon it, it should not be denied the benefit of seeingtho minor’s affairs in this widor way.
An alternative basis is also available, in law on which to rost thojurisdiction of the Court of the minor’s residence.
An application for tho appointment of a curator and tho sale of propertyhas been hold by this Court to bo an action as doflnod in section G of thoCivil Procedure Codo.1 To such an application tho minor is required bylaw to bo mado a party and he must in such application bo roprosontedby' a guardian ad litem.2 Since the application constitutes an action,tho minor respondent would bo in tho position of a do fondant .and interms of soction 9 (a) of tho Civil Procoduro Codo, the Court of tho minor’srcsidonco would be a Court having jurisdiction to hoar and determinesuch application.
It is also portinont to obsorvo, though it is not necessary to rost thisdecision upon that principlo, that tho mere fact that an applicationconcerns land does not necessarily7 make it an action in rospoct of landwithin tho moaning of soction 9 (6) of the Civil Procedure Code, for this
1 Mloliyanxe v. Pemaifathic {1062) C l X. L. />'. 5i'2 <d 543.
' Caxsnl>i v. Buharij (1056) 58 A'. L.li. IS at 8/.
WJEKR.-YJ1ANTRY, J.—Fernando r. Fernando
179
Court lias hold that an action for spocific porfornianco of an agrwmont tosoil land is not an action in respect of land within tho moaning of thatprovision.1 On tho basis of this decision ail application for permissionto sell land may well fall outsido tho ambit of actions in rospect of land,in which caso tho Court wliero tho property is situato may not in anyovont bo a Court vested with jurisdiction to entertain such application.
Having regard to all these considerations it would appear that statutelaw. common law and considerations of practical advantage all combinein indicating the Court of the minor’s residence as the appropriate Courtto which application should be made for sale of property.
The order of the learned District Judge refusing permission on theground that the Court of residence had no jurisdiction is therefore wrongin our view and we remit this case to tho learned District Judge inorder that he may consider the application for sale made to him.
We have in this case called for the record in an earlier Cuvatorshipease concerning these minors to which reference has been made in thecourse of these proceedings. This case, No. 2327 Curatorship of theDistrict Court of Negombo, has been instituted on 9th October 1962and the maternal aunt of the minors Jins been appointed therein ascuratrix over the property of the minors. Order nisi was entered on9th October 1962 and was made absolute on 7tli March 1963. Thereafter,Oil 4th September 1963 the present petitioner appears to have beensubstituted as curator, the earlier order appointing the curatrix havingbeen cancelled. Certificate of curatorship was accordingly issued onSth January 1964. Various steps have been taken on the basis of thisorder and there does not appear to be any entry in the record of thatcase showing that that order has at any time been vacated.
As long as that order stands, it would appear that there is no needfor a fresh appointment of the petitioner as curator over the same minors.We accordingly formally set aside the order appointing a curator, leavingit to the learned District Judge to consider whether the presentapplication for sale should have been made upon the basis of the earlierappointment and within the framework of the earlier case or whetherthe circumstances call for a fresh application and a fresh appointment.,after cancellation of the earlier appointment.
After determining upon the manner in which the curator should beappointed and making the appointment accordingly, the learned DistrictJudge will proceed to consider the application for permission to sell onthe footing that his Court has jurisdiction to decide this matter.
Samerawickrame, J.—I agree.
rtrder set aside.
1 Pelts v. Silva (1958) CO N. L. Tt. 289.