099-NLR-NLR-V-64-MUDIYANSE-Appellant-and-PEMAWATHIE-et-al.-Respondents.pdf
542WEERASOORIYA, S.P.J.—Mudiyanse v. Pemawathie
1962 Pr&sent: Weerasooriya, S.P.J., and H. N. G. Fernando, J.MUDIYANSE, Appellant, and PEMAWATHIE et al., Respondents
S.C. 172—D. C. Badulla, 13,28S
'Minors—Sole of their immovable property by curator —Sanction of Court obtained—Minors not represented by guardian ad litem—Invalidity of the sale—Civil Procedure Code, ss. 6, S, 476, 470, 4S0.
A land belonging to certain minors was sold on 22nd January, 1952, by theminors’ step-father who was appointed by Court as curator. Sanction of Courtfor the sale was obtained in the ouratorship proceedings, upon the allegationthat tho property was hold by the minors in trust. There was no appointment,however, of a guardian ad litom, and tho minors were at no stage mado parties.Nor did tho Court give any consideration to the question whofchor the sale wasto tho advantogo of tho minors. In the present action instituted in 1956tho minors, by their mother as next friend, sued for a declaration of titlo to theland.
Held, that, even though no order discharging the order for the sale of tho landwas previously sought under section 480 of the Civil Procedure Code, tho Courthad jurisdiction, in tho present action, to declare null and void tho sale.
Appear from a judgment of the District Court, Badulla. The factsappear from the judgment of Fernando, J.
Nimal Senanayake, for 3rd defendant-appellant.
8. Sltarvananda, with Bala Nadarajah, for plaintifFs-respondents.
Cur. adv. vvlt.
December 21, 1962. Weerasooriya, S.P.J.—
I have seen the judgment prepared by my brother in this case, and Iagree that for the reasons stated by him the evidence fails to establishcollusion between the 1st and 2nd defendants in obtaining the order ofCourt for the sale of the property of the minors in D. C. Badulla CaseNo. G. 1770.
I also agree that the aforesaid order was void and of no effect in thatit was made in proceedings to which the minors (the plaintiffs in thepresent case) were not parties. Section 476 of the Civil ProcedureCode requires that every action by a minor shall be instituted in hisname by an adult person, designated as next friend, while section 479provides that w'here the defendant to an action is a minor he shall berepresented by a guardian to be appointed by the Court. Where anaction in which a minor is plaintiff or defendant proceeds without section476 or section 479 being complied with, it may be possible to treat thenon-compliance as an irregularity, as was done in Muttu Hcnika v.
WEERASOORXYA, S.P.J-—Mztdiyanae v. PetrtawcUhie
543
Mutlu Menika1 and Ruposinghe v. Fernando2. Those two cases and themore recent case oiHamid v. Marikaret al. 3 are, therefore, distinguishablefrom the present case, where the order sought to be declared null and voidwas obtained in proceedings to which the minors concerned were atno stage parties. The difficulty that sometimes arises in defining theprecise line ’which separates an irregularity from a defect which makesthe order a nullity is discussed by Lord Greene, M.R., in Craig v.Kanseen4, and he held that an order which can properly be described as anullity is something which the person affected by it is entitled ex debitojustiiiae to have set aside. That the order made in D. C. Badulla CaseNo. G. 1770 falls into such a category does not, I think, admit of anydoubt. The application in that case constituted an action as definedin section 6 of the Civil Procedure Code. Section 8 enacts that saveand except actions in which it is specially provided that proceedings maybe taken by way of summary procedure, every action shall commenceand proceed by way of regular procedure as prescribed under the Code.The prayer in the plaint was for a certificate of curatorship to be issuedto the petitioner (the father of the minors and the 1st defendant in thepresent action) authorising him to sell the land to the 2nd defendantin settlement of a money decree said to have been entered against the 1stdefendant and in favour of the 2nd defendant. The basis of the prayerwas that the property sought to be sold had been conveyed to the minorsby the 1st defendant on deed No. 120 dated the 10th July, 1945, and thatthe conveyance was in trust. The deed itself has been produced in thepresent action marked P2 and on the face of it is an outright transferfor valuable consideration. The substantial relief claimed was, therefore,a declaration that the minors held the land in trust for the 1st defendantfor, on such a declaration being granted, the order authorising the saleof the property as prayed for would have followed as a matter of course.Hence the order for the sale of the property was tantamount to a findingby Court that the property was held by the minors in trust. Thatsuch an order should have been made without any notice to the minors,and on the bare assertion of the 1st defendant that the property washeld by them in trust, shows a high degree of remissness on the part ofthe Judge who dealt with the application. I can see nothing in the CivilProcedure Code which countenances the institution of proceedingsotherwise than by way of regular procedure where the relief claimedis for a declaration that property is held by minors in'trust for a thirdparty. Even had the application been made by way of summaryprocedure it would have been necessary to name the minors asrespondents to it. In my opinion, the proceedings in D. C. BadullaCase No. G. 1770 were void ab initio, and I do not think that section 480of the Civil Procedure Code takes away the jurisdiction of .the DistrictCourt in the present action to declare void the order made in that casefor the sale of the property.
I agree that the appeal should be dismissed with costs.
1 {1915) IS N. L. R. 510.3 {1951) 52 N. L. R. 269.
3 (191S) 20 N. L. R. 345.4 {1943) 1 A. E. R. 108.
544
H. N. Gr. FERNANDO, J.—Mudiyanse v. Pemawathic
H. N. G. Fernando, J.—
This action arose out of certain transactions which had taken placeabout ten years previously. In 1945, the first Defendant gifted the landwhich is the subject of this action to his three minor step-children. Thenin 1952 he made an application No. G. 1770 to the District Court of Badullain which he alleged that the conveyance of 1945 had been made to theminors in trust and prayed for a certificate of curatorship to be issued tohim authorising him to sell the property to one Ukku Banda in satisfactionof a debt alleged to be due from him to the said Ukku Banda in D. C.Badulla Case No. 8873. The District Judge allowed the application andauthorised the sale to Ukku Banda for a sum of Its. 2,500, directing in hisorder that the proceeds of sale should be deposited to the credit of theCase No. G. 1770. The land was thereafter conveyed to Ukku Banda bydeed No. 15212 of 22nd January 1952, and Ukku Banda conveyed it tohis son Mudiyanse on 22nd February 1952.
In the present action instituted in 1956, the three minors sued bytheir mother as next friend for a declaration of title to the land, joiningas parties their father (1st Defendant), Ukku Banda (2nd Defendant),Mudiyanse (3rd Defendant) and another person in whose favourMudiyanse executed a mortgage in 1955. The learned District Judge whotried this action has found that the 1st and 2nd Defendants acted in col-lusion in securing the order for sale. The ground for this finding was,principally, that the curatorship proceedings of 1952 were instituted bythe 1st Defendant with the knowledge of the 2nd, and that the proceeds ofthe sale of the land were not brought into Court in accordance with theCourt’s order. But although there was such an order, it was inconsistentwith the terms of the application to sell, which were “ to sell the land fora sum of Us. 2,000 in satisfaction of a debt due to Ukku' Banda from the1st Defendant. ” Having regard to the terms and purpose of the appli-cation, the 2nd Defendant may well have thought that the order for salejustified Iris acceptance of the transfer from the 1st Defendant in satis-faction of the alleged debt. There are other circumstances which were alsotaken into consideration by the District Judge in the present action whenhe found that there had been fraud and collusion. But if in law the orderfor sale has to be regarded as valid and effectual, I would find it difficultto conclude that the conduct of the 2nd Defendant in accepting someadvantage under such an order could have been held fraudulent or collu-sive. Even if some deceit had been practised on the Judge to induce himto make the order for sale, the evidence does not suffice to establish thatthe 2nd Defendant participated in such deceit. Although it was provedthat the 2nd and 3rd Defendants had knowledge of the application,there was no evidence to prove any knowledge, on their part, of any deceit, practised to obtain the order for sale, or of the falsity of the matters stated■in tliat application. In brief, fraud or collusion on the. part of the■ Defendants was not strictly proved.
H. N. G. FERNANDO, J.—Mudiyanse v. Pemawathtef»4i»
In the present action, the trial Judge declined to answer an issuewhether the sanction for sale given by the Court in the curatorship casewas void on the ground " that the application was made in a manner notprovided by law and without the appointment of a guardian ad litem. ”His reason for this course was that he did not wish to take the responsi-bility of holding that the order authorising the sale was void. But sincethe transfer of the minor’s property was made on the purported authorityof the order in the curatorship proceedings, it became the duty of the trialJudge to examine the validity of the order.,
The following matters have become clear from the record of the pro-ceedings in the curatorship case, and from the evidence of the Secretaryof the District Court and of the mother of the minors :—
The mother was unaware of the application for the order to sell ;
No respondent was named in the application ;
The Court did not appoint a guardian ad litem to represent the
minors.
The principle that an alienation of a minor’s property without the sanctionof the Court is void has been recognised in a series of decisions of tliisCourt. I readily adopt the observations of Gratiaen, J., as to the powersand responsibilities of the Court :—
“ The powers and responsibilities of a Court as the traditional ‘ upperguardian of minors * under the Roman Dutch Law have receivedstatutory recognition in section 69 (1) of our Courts Ordinance wherebyevery District Court is entrusted with the care and management of aminor’s estate situated within its jurisdiction. Chapter 40 of the Codeprovides for the appointment of curators to take charge of such propertyunder the general supervision of the Court. No express provision ismade for granting authority to a curator to sell a minor’s property, but■ it has always been assumed (and rightly) that such authority may begiven (subject to well-established limitations) in appropriate cases.Cayley, J., in Re Rider, ex parte Corbet (1876 3 S. C. C. 46) has clarifiedthe rules which should guide a Judge in exercising his jurisdiction insuch cases. When an application is made by a curator for sanction tosell or encumber property belonging to a minor, ‘ there should be adecree …. the minor being represented by a guardian-ad-litcmfor the purpose. The facts should then be specially adjudicated upon,and a formal order entered. There must in fact be, as laid down inVoet 27 : 9 : 6, a causae cognitio, a probalio, and a decretum. ’ The Court,before sanctioning a sale of property which is already vested in theminor, must be satisfied on proper material that the proposedtransaction is ‘ manifestly to his advantage ’. ”(Cassahy v. Buhary,
5S N. L. R. at 80).
540
H. N. G. FERNANDO, J.—Mudiyanse v- Pcmawathic
In the present case, the Court did not give any consideration to thequestion whether the sale was to the advantage of the minors. Moi’eserious from the legal point of view was the failure to appoint a guardianad litem, for the consequence was that the minors, against whom theapplicant sought the order for sale, were not' before the Court at all.In the result the Court made an ex parte order, which Chapter 40 of theCode did not empower it to make. The situation is no different from thatin which a decree is entered without summons having been served on aDefendant, so that the order for sale is void, just as much as such a decreewould be (50 N. L. R. 289).
Relying on certain decisions, counsel for the purchaser has argued thatthe order for sale was only voidable, and could not be disregarded untilit is discharged by order made under section 480 of the Code. I do notagree that in empowering the Court to discharge an order made inproceedings affecting a minor, section 480 has the implication that theorder must be regarded as valid until so discharged. Section 479, whichrequires the appointment of a guardian to be made, is on its facemandatory, and its mandatory character is not affected by the provisionsof section 480. An opinion, which may appear contrary to mine, wasexpressed by de Sampayo, J., in two cases {Multumenike v. MvXlu-menike 1 and Bupasinghe v. Fernando a). The first of these was a casein which the plaintiffs sought to avoid the effect of a decree against themwhich had been entered during their minority ; but the same plaintiffshad been plaintiffs in the former action. That is at least a ground uponwhich the case may be distinguished from the one before us, for thequestion whether the provisions of section 479 are mandatory did notthere arise. In the second of these cases, the competition was betweenthe purchaser at a sale in execution against a person who was a minor,and a purcliaser from that person (presumably after he attained majority).What was held here was that the sale in execution could not be the subjectof a collateral attack, so long as it had not been discharged by an orderunder section 480. With much respect it seems to me that the eminentJudge should in the second case have noticed that its facts were not thesame as those of the former. In any event this decision too is distin-guishable from the present case where the previous conveyance is beingattacked, not collaterally but by an action brought on behalf of theminors. The recent decision in 63 New Law Reports page 560 is not in. point. It dealt with an action which had been brought by a .minorwithout a next friend, and held only that the action would not be “ takenoff the file ” under section 478, if the minor plaintiff had attained majorityduring the course of the action. The Chief Justice makes it quite clearin his judgment that his observations therein apply only to the particularsituation under consideration, namely an action brought by. a minorwhich was not in accord with section 476 of the Code. The judgmentdoes not even indirectly refer to the provisions of sections 479 and' 480.
1 (1915) IS N. L. li. 510.
3 (1918) 20 N. L. R. 345.
H. N. G. FERNANDO, J.—Mudiyansa v. Pemccivathie
547
In my opinion, the enactment of section 480, giving a Court power todischarge an order made in proceedings in which a guardian had notbeen appointed to represent a minor, did not take away the power of a■Court to declare the order void, whether by way of restitutio in integrumor in a vindicatory action. In the South African case of Breytenbach v.Frankel1, the dispute was between the lessee of a minor’s property(leased without judicial authority) and a transferee from the minor.The Court held, for reasons which are not relevant to the present case,that the transferee could not challenge the validity of the lease. But■as to the position of the minor himself, the principles set out in Sandeand Voet were approved :—
“ If the immovable property of a pupil, minor, or madman is soldwithout good grounds for alienation and without an order of Court,the alienation is ipso jure void, nor does the dominium pass from thepupil or minor. (Sande, Part I, Cb. 1. section 79.)
“ A pupil or minor whose landed property has been alienated inspite of a prohibition retains an actio in rem, that is a vindication whichhe can maintain not only against the purchaser, but also against anythird person who has possession. (Ibid, section 80.)
“ These are the cases where the immovable property of a minorcan be alienated without an order of Court, and the other ceremoniesmentioned above. With these exceptions, if an alienation is made,however unprejudicial it may be to the minor, it is void ipso jureas has been said above. (Ibid. Section 114.)
“ It seems unquestionable that restitution would not be necessaryto a minor, but that the ordinary vindicatory action could be broughtagainst the purchaser as possessor, because no one’s property can betransferred to another by someone else at his pleasure. (Voet, 4.4.16.)
“ And the distinction drawn by Voet and Sande between the twoactions is a matter of substance, and not merely of form. For wherethe vindicatory action lies, the minor is entitled to succeed on mereproof tliat his property was alienated by Iris guardian without thesanction of the Court ; whereas, as pointed out by the learned Judge-President in his judgment, if the action is one for restitutio in integrum,the onus lies on the minor to prove damage. We were referred toauthorities to the effect that it is necessary for a minor to come to theCourt for restitution in cases where his guardian has entered intocontracts on his behalf. But in my opinion, those authorities applyto contracts only, and have no reference to the case of an alienation ofimmovable property. Such an alienation is dealt with on entirelydifferent lines, and, as I have pointed out, there is a great mass ofauthority to the effect that such an alienation is of no effect, and thatthere is no necessity, therefore, for the minor to apply for restitution.”(Breytenbach v. Frankel—per Solomon, J., at page 400).
1 1913 A. D. 390.
•r>4SSANSOJNI, J.—Punchi Banda v. Nagasena
Relying on these authorities, I am satisfied that the present actionfor vindication, being brought on behalf of the minors by their nextfriend, their mother, is maintainable, even though no.order was previouslysought under section 480 of the Code. By establishing the invalidityof the Court’s order for sale of the minor’s property the Plaintiff succeededin establishing that the conveyance of 1952 did not transfer to theDefendants the title to the property, and that title remained in the minors.The action had therefore to succeed, and the appeal is dismissed withcosts.
Appeal dismissed.