MUTTIAH v. BAUR

042-NLR-NLR-V-09-MUTTIAH-v.-BAUR.pdf


( 190 )
1906. Present: The Hon. Mr. A. G. Lascelles, Acting Chief Justice,April 10.Mr. Justice Middleton, and Mr. Justice Wood Benton.
In the matter of the property of the Minor Florence Muttiah.
MUTTIAH v. BATJR.
D. G., Ghilaw, 159.
Minor resident outside the jurisdiction of the Court—Power of Court toappointcurator—OrdinanceNo. 11 of1868—CourtsOrdinance
(No. 1 of 1889), s. 71—Civil Procedure Cade (No. 2 of 1889),ss. 582, 584.
A District Court has no power to appoint a curator over theestate of a minor who is not resident within its jurisdiction, eventhough the minor may be entitled to property situate within itsjurisdiction.
In re Daisy Fernando (2 N. L. R. 249) followed.<•
T
HE material facts are stated in the following affidavit filed bythe respondent in the District Court : —
“I Alfred Baur of Colombo make oath and say as follows:
“1. Having seen an advertisement relating to the sale of theland called ‘ Rajakadaluwa ’ estate, situated at Palugahawewa in(1) (1894). IN. L. R. 100.
( 191 )
the District of Chilaw, I instructed my agent, J. C. Jayesinghe, toattend the said sale and bid for the same on my behalf.
“ 2. The said property was put up for sale on the 25th day ofFebruary, 1905, by one P. G. Schrader, acting as ‘commissioner’appointed in these proceedings to carry out the said sale at theupset price of Bs. 20,000. There was no bid at this or any highersum. The commissioner thereupon inquired of those present whatwas the highest bid they would make. Thereupon my said agentmade an offer of Bs. 10,000 for the land and subsequently raisedthe offer to Bs. 15,000, which is a just and reasonable price for thesaid premises.
“3. B. B. Muttiah, the guardian appointed in this matter, whowas present agreed to accept the offer of Bs. 15,000 conditionally,uamely, subject to the approval of the District Court of Chilaw.
“ 4. My agent paid down one-tenth of the said price and allcharges and commissions, and at the request, I am informed, ofthe commissioner and his notary he signed the conditions of sale,which were then attested by the said notary.
“ 5. The said commissioner or auctioneer on the 9th of March,1905, I am informed, reported the facts connected with the auctionto this Court, including the particulars of the said offer of Bs. 15,000and asked the Court’s order, and I am further informed that thisCourt on the 14th of March, 1905, sanctioned the acceptance of mysaid offer.
“ 6. Before paying the balance purchase money, I consultedtwo senior counsel in Colombo in regard to the title to the saidBajakadaluwa estate. They have advised me that, in their opinion,it was a matter of doubt whether this Court had the right to appointa curator of the estate of the above-named minor, who was ad-mittedly not resident within its jurisdiction, and that' the appoint-ment of curator purported to be made and proceedings had thereaftermay be pronounced a nullity in view of the doubt above referred to.And that consequently the title to the property was liable to bequestioned at some future time.
“ 7. I have been advised not to complete the purchase, but toapply to this Court for reasons above stated to have all proceedingsvacated, the sale’cancelled, and the moneys paid by me refunded.”
Mr. N. J. Martin, Proctor for the said A. Bam*, filed the aboveaffidavit, and moved for a notice on the curator to show cause why—
(1) The appointment of the curator and all proceedings shouldnot be vacated on the ground that the Court had noright to appoint B. B. Muttiah curator of a minor notresident within its jurisdiction.
1006.
April 10.
1906.
April 10.
( 192 )
The sale held on the 25th February, 1905, be not can* ■
celled.
The conditions of sale should not be deolared of no binding
effect.
The sum of Es. 1,500, being one-tenth of purchase money,
and Bs. 375 deposited in Court should not be refunded.
Why an order of payment to the said Alfred Baur of the said
sums should not be issued by the Court to him.
The District Judge (W. L. Kindersley, Esq.) made the followingorder: —
“ It is argued that the appointment of the curator is bad, the minornot living in the jurisdiction of this Court. It is objected that theCourt cannot go behind its own order; only the Supreme Courtcan alter the order, Sinnatamby v. Nallatamby (1). The presentapplication is made by the purchaser of a land sold by the curatorwith the leave of the Court. Of the purchase money, Rs. 15,000, atenth part (Rs. 1,500) has. been paid into Court. The purchasernow moves to set aside the appointment of the curator, the sale,to vacate the conditions of sale, and in short to render the whole
r
proceedings nugatory on the ground of the want of jurisdiction ofthis Court to appoint a curator. In re Daisy Fernando (2) clearlyshows that the District Court ha6 only power to appoint a curatorin cases where the minor is insane or ‘ resident within its district.’
‘ Resident ’, can hardly apply to the property. The minor inquestion is not so resident, as admittedly the minor resides in Jaffna,and was so residing, at the time when the order appointing thecurator was made. It is clear then that this Court had no jurisdic-tion to appoint a curator, and all its orders are nugatory and invalidin thi6 case. It is, I conceive, the duty of the Court to cancel itsown order under such circumstances, and not to insist on an invalidsale being completed. Ordinance No. 12 of 1904 lays down theprocedure. I therefore allow the motion of 8th August, 1905, andvacate the order appointing the curator. I cancel the sale heldon 25th February, 1905, and declare the conditions tu be not bindingand order that the money paid be refunded.
“ I order the curator to pay applicant his costs of this motion.”
The curator appealed.
Bawa, for the appellant.
Domhorst, K.G. (Elliott with him), for the respondent (purchaser).
Cur. adv. vnlt.
(1) (1903) 7 N. L. R. 139.™’ p
( l03 )
10th April, 1906. Lascelles A.C.J.—
This is an appeal from an order of the District Court of Chilawvacating a previous order of the same Court appointing the appellantcurator of a minor’s property.
In effect we are asked to review the ruling of Bonser C.J. andLawrie J. in In re Daisy Fernando (1) ; for, although that case onlydecided that a District Court had no jurisdiction to appoint a curatorof a minor’s estate where the minor was resident out of Ceylon, itfollows from the construction of section 71 of the Courts Ordinance(No. 1 of 1889) adopted by the Court that a District Court has nojurisdiction to appoint a curator of the minor’s estate, if the minoris resident out of the district.
It was urged by the appellant that, upon a true consideration ofthe .above-mentioned seotion, a District Court had jurisdiction toappoint a curator if the minor had property in the district.
To my mind the question is purely one of construction. Thejurisdiction of the District Courts is given by statute, and it is tothis statute that we must look for guidance on questions with regardto jurisdiction.
Section 71 of the Courts Ordinance consists of two paragraphs.The first of these is a reproduction of the corresponding section ofOrdinance No. 11 of 1868. It declares that District Courts shallhave care and custody of idiots, lunatics, and others of insane ornonsane mind resident within its jurisdiction, and confers certainpowers upon the Court with regard to the appointment of guardiansand otherwise.
So far as idiots, lunatics, and insane or nonsane persons areconcerned, it is thus clear that the jurisdiction conferred by thesection is confined to oases where the person in question resideswithin the local jurisdiction of the Court.
The second paragraph of the section which defines the jurisdictionof District Courts is hew; it is not to be found in Ordinance No. 11of 1868. It is in these words:-—“ Also in .the like manner, withthe same powers, the care of the persons of minors and wards andthe charge of their property within its district shall be subject tothe jurisdiction of^the district court.”
' The words “ also and in like manner ” seem to me to indicate theintention of the Legislature that the jurisdiction of the DistrictCourts, .as regards minors and wards, should be of the same natureand subject to the same limitations, as the jurisdiction conferred onthese Courts by the earlier part of the section with respect to lunaticsand insane persons.
(1) (1896) 2 N. L. B. 249.
1906
April 10.
7J. N. A 9912 (8/50)
1906.
April 10.
Lascelles
A.C.J.
( 194 )
These words must, I think, refer to the condition that the personunder disability must be resident within the district—at least I canattribute no other meaning to them.
I also find it difficult.'to see why .•the jurisdiction of the DistrictCourts should rest on one principle with regard to lunatics andidiots, and on another with regard to minors and wards.
. I have not myself been able to see that chapter XL. of the CivilProcedure Code supplies an answer to the question under consider-ation. Section 584 seems to point to the view that the situation ofthe property and not the residence of the owner is the test of juris-diction, but I do not think that any inference which can be drawnfrom this section is sufficient to establish this construction of section71.
On the whole I think that the previous judgment of this Courtwas right.
It is admitted that the District Judge had no power to vacate hisown order. I think the proper order will be to discharge the ordetof ithe District Court of the 14th November, 1905, and to substitutefor that order an order of this Court to the like effect.
Middleton J.—
In this case a minor living in Jaffna is possessed of an estatesituate in Chilaw. The appellant, who was a brother of the minorresident in the district of Chilaw, obtained in the District Court ofChilaw, upon proper proceedings in that behalf, a certificate ofouratorship in respect of the said property, and was thereafterduly authorized by the Court to sell the property. The propertywas put up to auction and was knocked down to the respondentfor the sum of Bs. 15,000, of which he paid the sum of Bs. 1,500on account of purchase money and Bs. 375 on account of expensesof sale, and bound himself hereafter to pay the balance within sixmonths. The respondent took possession of the property and isstill in possession.
It would seem that the respondent, having been advised that itwas doubtful whether the District Court of Chilaw had jurisdictionto make the appointment of curatorship, by motion dated the 8thAugust, 1905, moved that Court to vacate its own order and allproceedings thereafter, including the sale. On the l4th Novemberthe Court allowed this motion. Against this order the appellantnow appeals, and it is stated by counsel for the respondent thatthese are friendly proceedings taken with a view to obtaining anauthoritative opinion from this Court as to whether the Courtwithin the jurisdiction of which the minor is resideut, or the Court
( i«6 )within (he district of which the property is situate has jurisdiction 1900.to appoint a curator.April 10.
By section 64 of the Courts Ordinance, No. 1' of 1889, general MnuowroHjurisdiction over the persons and estates of minors and wards isconferred on the District Courts.
By section 71 of the same Ordinance it is enacted that “ everydistrict court shall have the care and custody of the persons andestates of all idiots and lunatics and others of insane and nonsanemind resident within its district, with full power to appoint guardians
and curators of all such persons and their estates and
paragraph 2 goes on to say “ also in the like manner, and with thesame power, the oare of the persons of minors and wards, and thecharge of their property within its district, shall be subject to thejurisdiction of the District Court. ” The words “ in like manner,as the Chief Justice points out, would seem to indicate that thejurisdiction of the District Court in the case of Minors, as in the caseof insane persons, was to be tested by residence of the minor withinits district.
With regard to idiots and lunatics and other insane persons, it isperfectly clear that, the Ordinance intended that the Court havingjurisdiction to appoint curators of their persons or effects shouldbe the Court within which they were resident.
By section 582 of the Civil Procedure Code “ every person whoshall claim a right to have charge of property in trust for a minorunder a will or deed, or by reason of nearness of kin or otherwise,may apply to the district court for a certificate of curatorship, andno person shall be entitled to institute or defend any action connectedwith the estate of a minor of which he claims the curatorship untilhe shall have obtained such certificate.
By section 584 ‘ ‘ if the property is situate in more than one districtany such application as aforesaid shall be made to the. district courtof the district in which the minor at the time of the applicationresides. ”
From this section also it might be gathered that the Legislatureintended that the Court, within which the minor was resident, shouldas a general rule be the Court having jurisdiction to appoint curators.
The argument also of convenience would seem to apply in the caseof minors, as vtell as in the case of lunatics and persons of insanemind.
In his judgment in In re Daisy Fernando (1) it was held by BonserC.J. that a District Court has no jurisdiction to appoint a curatorof the estate of a minor who is not domiciled in this Colony or 1
17-
(1) (1896) 2 N. £. R. 249.
( 198 )
1906;
April 10.
Middleton
J.
resident within it, and in consequence of that judgment, Ordi-nance No. 12 of 1904 was passed.
From the judgment of Chief Justice Bonser it seems clear thathe was of opinion that it was not property within its district whichgave jurisdiction to the Court to appoint a curator, but the residenceof the minor therein.
I think, however, that it is difficult to gather this opinionAltogether from the terms of chapter XL. of the Civil ProcedureCode, as he would appear to have thought, section 584 being theonly section in that chapter which seems to point to that conclusion.
Looking, however, to the terms of the 2nd paragraph of section71, I am inclined to the opinion that the Court within the districtof which the minor is resident is the Court having jurisdiction toappoint a curator to his estate.
The appeal will therefore be dismissed, each side to pay theirown costs in this Court. I agree with the order proposed by myLord.
Wood Benton J.—
I agree with the rest, of the court. I am unable to accept the viewof Bonser C.J. in In re Daisy Fernando (1) that sections 582 et seq.of the Civil Procedure Code support his construction of section 71of the Courts Ordinance. On the contrary, I think that section .584is fairly open to. the adverse construction put upon it by Mr. Bawa.But it is by section 71 of the Courts Ordinance that the presentappeal must stand or fall; and, after careful consideration, it seemsto me that the object and the effect of that section must be takento be to confer on the District Courts the same limited jurisdictionas regards minors, idiots, and lunatics. I can think of no reasonwhy residence should be a condition of jurisdiction in the lattercase and not in the former; and, as a matter of mere interpretation,I cannot read the words “ in like manner ” in section 71 in a senseconsistent with Mr. Bawa’s contention. Under these circumstanceswe ought not, in my opinion, to allow section 584 of the Civil Pro-cedure Code to weaken the natural construction of section 71 ofthe Courts Ordinance, especially as section 584 n?,ay be otherwiseexplained as having been enacted merely to indicate the intention-of the Legislature that residence should be the test of jurisdictioneven if the property of a minor is locally situated in various districts.On the substantive point which it decided, the judgment of BonserC.J. in In re Daisy Fernando (1) is, I think,, sound.
(1) (1896) 2 N. L. R. 249.
( 197 )
As the point was discussed before us, I may say that, in my view,no argument against the present appeal oan be deduced from theenactment of Odinance No. 12 of 1904. That Ordinance merelygives jurisdiction to the District Court in the case of minors whoare not resident in the Island. It might well be that, in accordancewith the settled rule of law as to the territorial application ofColonial enactments the previously existing statute law was in-sufficient for the purpose. A somewhat similar view has been takenin England of the scope of section 116 (c) of The Lunacy Act,1890. [In re Watkins (1) and cp. South African Association v.Voget (2) ]. Accordingly Ordinance No. 12 of 1904 was passed tomeet the difficulty. But I do not think that that. Ordinance throwsany light on the question whether, as regards minors within the Island,residence or the situation of property is to be the test of jurisdiction.
♦
1906.
AprU 10.
WoodRenton—J.