046-NLR-NLR-V-01-MANA-PERERA,-Petitioner,-and-PERERA-APPUHAMY-et-al.,-Respondents.pdf
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1896.Avovtt 2.
MANA PERERA, Petitioner, and PERERA APPUHAMYet at., Respondents.
In the Matter of Abraham and Elias dk Mel, Minors.
D. 0., Kalutara, 51.
Civil Procedure Code, chapter XL.—Application for guardianship—Sale ofminor's property by guardian—Powers of guardians.
The Civil Procedure Code does not limit the powera conferred onguardians by the Roman-Dutch law.
A guardian may sell immovable property with the sanction of theCourt.
Such sale should be by public auction with a reserve price put uponthe property by Court, which should also give directions as to themanner of sale and of the investment of the proceeds thereof.
A mother, married in community and surviving her husband, has apreferential right to be appointed as a guardian of her children, butsome other person should be named by the Court to act with her, so asto safeguard the interests of the children.
rpHE facts of the case appear in the judgment of the ChiefJustice.
Domhorst, for appellant, cited D. C., Colombo, 392 (Vander-etroaten'8 Reports, p. 102), in the course of the argument.
1895.
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2nd August, 1895. Bonser, C.J.—
This is an appeal from an order of Mr. de Livera, District Bomseb, CJ.Judge of Kalutara, refusing to appoint the petitioner curatrixover the property of her infant children. It appears that thepetitioner and her late husband were married in communityof property, and, therefore, the children and the appellant arejointly entitled to the estate. The estate, which is of very smallvalue, consists in part of an undivided four-fifths share in someland situated at considerable distance from the home of the widowand the children, and it is therefore well-nigh impossible forthe widow to look after the interest of herself and the childrenin the land. In these circumstances, she was of opinion that itwould be better for all parties if the share were sold. Henceshe applied to be appointed curatrix in order that she might sellthe shares to certain persons whom she named, and whom sheproposed that the sale should be effected by private contract.
The District Judge refused the application on the ground thatthere is no provision in the Civil Procedure Code empoweringa curator ad litem to sell property belonging to minors. But itis to be observed that the appellant did not apply to be appointedcurator ad litem. She applied under chapter XL. of the CivilProcedure Code to be appointed guardian. Now, I do not under-stand that the Code an'ywhere limits, or is intended to limit, thepowers of guardians.
It provides for their appointment and for the way in whichthey may be called upon to render accounts, and so on; therefore,when we wish to see what powers guardians have, we must haverecourse to the law existing before the Code. I find it laid downin Thompson's Institutes, vol. II., p. 60, that a guardian may sellimmovable property, but not without the leave of the Court. Itis also Btated by him (p. 53) that the surviving mother is to bepreferred to anybody else as a guardian, but that she ought tohave a colleague appointed with her. The reason for appointing acolleague is, I imagine, because it is the duty of the guardian tomake an inventory of the children’s property, or to demand it fromthe surviving parent. Therefore, in the present case, I think themother should be appointed guardian together with some otherperson whom the District Judge may approve of ; and that at thesame time the District Judge should, if he is satisfied that the saleof the property will be of benefit to the children, make an orderthat the property be sold, and give directions as to the manner ofsale and the investments of the proceeds, either by depositing inthe Loan Board, or, if he thinks it will be more beneficial to theminors, allowing it to remain with the guardian on her giving
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good security in the shape of immovable property for its. repay-Withbbs, J. naent. The sale should not be a sale by private contract, butshould be a Bale by public auction, and the Court should fix areserve price so as to prevent the property from being sold forless than its value.
Withers, J.—
I fully concur in the order of the Chief Justice, and have onlyto add that, by section 64 of the Courts Ordinance, District Courtshave jurisdiction over estates of minors. That being so, it issurely a proper exercise of jurisdiction to sanction the dispositionof a minor’s property when it is clearly to his benefit. See, forinstance, the case reported in Vanderstraaten, 1870, p. 102 (D. O., 1Colombo, 392), where the uncle of four minors was appointedguardian over them for the purpose of alienating their share inan estate which they owned with others, a purchaser having comeforward who was prepared to give a fair price for the property.