119-NLR-NLR-V-23-MEYDEEN-v.-GHOUSE-et-al.pdf
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Present: De Sampayo and Schneider JJ.MEYDEEN v. GHOUSE et al.
430—D. C. Colombo,1,572.
Minor—Sanction given by Court to lease property to one person—Lease.by curator to another person—
Where a Court gives leave to* a curator to lease property to oneperson for a certain rent, he cannot lease it to another person. Thecurator or any person in that position must strictly observe thesanction given by the Court to deal with the minor's property,
rp.SE facts appear from the judgment..
Elliott, K.G. (with him Bartholomeusz and S. C. Fonseka), forplaintiff, appellant.
Samarawickreme, for defendant, respondent.
September 14,1921. De Sampayo J.—
The first defendant, who was a minor up to a recent date, isentitled to certain household property. Mohamado Fuathwas acurator of the minor’s estate, duly appointed by Court.. In February,1920, the curator applied to the Court to^ease the minor’s propertyto oneP. C. N. Usoof for certain rent. The Court gave the permis-sion asked for, but it appears that the curator, instead of leasingto the parson mentioned in the application to the Court, leased theproperty to the plaintiff in tins action. The first defendant, afterhe became of age, repudiated Che curator’s lease and granted anotherlease to the second defendant, who duly entered into possession.The plaintiff then brought this action alleging that the first defendantfraudulently and collusively disregarded the order of the Court,authorizing the grant of the lease to himself,, and became party totbe lease in favour of the second defendant. The plaintiff then
1981.
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1921# prayed for possession of the premises and to be declared entitled toDb ttaapAso oon^nue u*possession during the wholeperiod of the lease, or, in thej, alternative, that the defendants be ordered to pay to him the sumMeudeen ^s< 5>000 as damages. Several issues were framed at the trial,e. Mouse The first of them was: “ Did Mohamado Fuath in his capacity ofcurator, with the authority of the Court by Indenture of LeaseNo. 92 dated March 16, 1920, lease the premises in question toplaintiff.” The parties agreed to this issue, and asked the Courtfor an adjudication on that issue before the other issues were con-sidered. The learned District Judge then gave his reason forholding that the ourator had no authority of the Court to lease tothe plaintiff, .and that the authority of the Court was to lease toP. C. N. Usoof. The same question appears, to have arisen in thetestamentary case No. 1,288, D. C. Colombo, and this Court, by itsjudgment of December 21, 1920, decided that the curator did nothave the authority to grant the lease to the plaintiff. That decisioncovers the present case, and, if I may say so, there cannot be anyother view taken in the matter. Mr. Elliott, for the plaintiff,however, points out that the lease, which the District Judgesanctioned, showed that the lease was to be granted to P.C.N. Usoofand his assigns, and he contends that bring so, the fact of the leasebeing granted to someone rise makes no material difference, andshould be recognized as valid. I cannot agree with this argument.When leave is granted to lease a property to one party, the curatorcannot lease as he pleases, but, I think, the lessee may still look tothe curator, who is answerable for loss or damage to the lessee. Thecurator or any person in that position must strictly observe thesanction given by the Court to deal with the minor’s property. Itappears that in the District Court application was made to theCourt that the plaintiff may be allowed to go on with the action forthe purpose of recovering the consideration of Rs. 2,000, which issaid to have been paid on the execution of the lease by the plaintiffto the curator. The District Judge did not accede to that request,but he reserved to the plaintiff the right of bringing some otheraction, if so advised, for that purpose. I think the District Judgewas right in refusing to allow the case to continue with regard to thealleged payment of Rs. 2,000, as this is not pleaded in the case.Moreover, I should say, although it is not necessary to decide ithere, if an action is brought to recover the advanced amount, theourator should refund the money to the plaintiff. I think theplaintiff should be content with the leave to bring another action.
I would dismiss the appeal, with costs.
Scum kid eb J.—I agree.
Appeal dismissed.