135-NLR-NLR-V-18-MUTTU-MENIKA-v.-MUTTU-MENIKA.pdf
( 510 )
. 1915.
Present: Shaw J. and De Sampayo J.
' MUTTU MENIKA.t). MUTTU MENJKA.
275-^-D~ G. Kurunegala» &t285.
Minor—Unrepresented by guardian in action—Is judgment null and eoidl
A judgment against a minor who is unrepresented by a guardian is at mostan irregularity, and the judgment will stand as a valid adju:dication against the minor until reversed, and will not be dpento a collateral attack. *
A person seeking to get rid of a judgment on the ground of–idsminority at the date of the judgment "is to proceed under section480 of the Civil Procedure Code, or to apply to. restUuUo in integrum.Until the judgment is set aside it can be pleaded as res . judicataagainst the ’* minor ”
rjlHE facts are set out in the judgment.
Koch, for first defendant, appellant. .
E. T. de Silva, for plaintiffs, respondents.
Gut. adv. vult.
( Ml )
I September 3, 1913. Bb J^hpavo J.—*
■ This is in iosm a partition action in respect of six lands, but it iahi reality an action to es^ablialS title to certain shares. The Janjsbelonged to one Sohandirala, husband of Kiri Monika, The plaintiffs'case is that Sohandmda left two children, namely, (1) Satanhtuny,through whom they claim, and (2) Punchi Etana, the mdkher ofthe first defendant-appellant, whereas the first defendant says thatSatanhamy was the son, not of Seh&ndirala, but of his wife KiriMenika by a former husband. Satanhamy left five children, namely,tile first plaintiff in this action, Punohi Menika (mother, nowdeceased, of the second plaintiff), and three others. In 1910 all thesechildren of Satanhamy brought the action No. 8,389- of the DistrictCourt of Kurunegala against the same defendants as in this case,for tiie purpose of partitioning the same lands. In that action theSupreme Court in appeal held in favour of the defendants with regardto the question of Satanhamy’s parentage, and also with regard to. theftlfttm by prescription which the plaintiffs had step up, and dismissedthe plaintiffs’ action. The plaintiffs in the present action set up thesame title as in the previous action and seek to avoid the plea of resjudicata by alleging that the first plaintiff andi Punchi Menika (motherof second plaintiff) were minors at the date of the action No. 3.589,and that the decree therein is absolutely void as against them. TheDistrict Judge has come to the same conclusion as the SupremeCourt in the former action as regards the percentage of Satanhamy.but* has decided in favour of the plaintiffs on the question of resjudicata, and also on the issue of prescription as to three out of thesix lands, and has decreed partition accordingly. "The first defendanthas appealed.
It appears that at the date of the action No. 3,589 'the firstplaintiff and Punchi Menika were of the age of 17 and 19 yearsrespectively, and the circumstances indicate .that at that timePunchi Menika was married. They appeared with the otherplaintiffs by proctor, and no question was raised as to their minority.The procedure for actions by and against minors is provided inchapter XXXV. of the Civil Procedure Code, and under section 502a minor for the purposes of that chapter is to be deemed to haveattained majority, not only on attaining Ihe age 21 years, butalso. on marriage or ou obtaining letters of vema aetatis. Con-sidering that the plaintiffs are seeking to avoid a decree alreadyentered against them, I should say that the burden was* on them tonegative all tiie facts mentioned in that section as constituting theattainment of majority. Turther, the. plaintiffs themselves havingsued as though they were majors, I do not think that they oughtto be heard to allege the contrary, so as to affect the defendants,on ©whom no responsibility lay to have a next friend appointed fortiie plaintiffs, though, no doubt, if the defendants were aware ofthe met, they might have raised an objection under section 478.
1915.
• MuUuMemkxMuuu
Afetoifcff,
19166 '
De.Samfayo
J.
—— %MuttuJodentka v.
u MuttuMenila
( 612 )
.Moreo^r, *the decree once Entered oarihot, I think, be regarded
£s wholly void,
luad to
1«6>166,
so as to entitle {he plaintiffs to ignore it altogether
bring a fresh action. Hubujn Chand’g Res Judicata
cites a number of authorities to show that a judgment
agtfnst a minor grho is unrepresented by a guardian is at most an
* irregularity, and that the judgment will stand as a valid adjudicationagainst the minor until reversed, jand will not be open to a collateralattack. This, I think, enunciates a right principle, and our CivilProcedure Code appears to me to proceed on that bams. For whileit provides t&at in actions by or against a minor he shall be representedby a next Mend or guardian ad litem, aa the Case may be,* it alsoprovides, by qection 480, for an application being made for thedischarge of an order in the action 44 in or by which a minor is inany way concerned or affected." In my opinion the proper coursefor the plaintiffs in this instance was to have applied under thatsection of by way of restitutio in integrum, but the* decree, as mattersstand, is binding upon the plaintiffs and is res judicata against them.Reference was made in the course of the argument to WalterPereira's Laws of Ceylon 211, in which it is stated that *! wherea minor, being erroneously thought to be a major, is allowed toappear in Court – without a curator, a judgment against him isnull and void, while one in his favour is operative." This passageis founded on Voei■ o, 1, 11. That title deals with matters ofprocedure; but I dp not think that the Roman-Dutch procedureon a point like the present is quite relevant. In any case it is farfrom clear that the Roman-Dutch law regarded a judgment againsta minor as ipso jure void, without any steps being taken to declare'it so. The expression used in Voet is nuttius momenti, but I do notthick that it necessarily means that' the judgment is for all purposesvoid, and that no application for restitutio in integrum is necessaryto set it aside.
Apart from these legal questions, the plaintiffs in this action can'only succeed on proof of prescriptive title. .1 mayat once say. thatthere is no evidence whatever, of 8&tanhamy’s possession, and much*less of adverse possession on his part* It appears that hie was the?tole rrale in the family of Kiri Monika, and lived'with other membersof the family in the mulgcdara, and all that is said about possessionis that Batjmhamv looked after the estate, and that; the presentplaintiffs are in possession of some twenty coconut trees and a housewhich was separated off for the benefit of the widow, Kiri Menika,who died two years ago. This evidence is wholly insufficient toestablish prescriptive title.
I would set aside the judgment appealed from and dismiss' theplaintiffs9 action, with costs in both Courts.
Shavt J.—I agree.-■
8et ostdS;
. — ‘
a. c. corns, govbbxmkxt