THE SUPREME COURT OF CEYLON,THE COURT OF VICE-ADMIRALTYIN THE ISLAND,AKS
HER MAJESTY THE QUEEN INHER PRIVY COUNCILON APPEAL FROM THE
SUPREME COURT OF THE ISLAND.UDUMA LEBBE et al v. SETADU ALI at at.D. 0., Kurunigala, 857.
Civil Procedure Code, it. 481 and 582—Appointment of next friend unders. 481—Certificate of curatorihip under t. 582—Necutity for inquiryat to value of minor't property upon application for appointment ofnext friend.
A person who hu been regularly appointed aa next friend undersection 481 of the Civil Procedure Code haa a right to sue withouta certificate of curatorahip under section 582.
Per Bbowne, J.—A certificate of curatonhip is necessary only foractions instituted (or defended) by a curator in his own name qua curator,and is not necesmry for actions instituted (or defended) by a minorby his next friend or guardian ad litem.
In regard to the proviso of section 582, when application is madefor the appointment of next friend or guardian, it is not necessary toinquire into the value of the minor’s property. Such inquiry is neces-sary only when it is sought to appoint a curator generally, or for the
limited purpose contemplated by that section.
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Per Withers, J.—If a next friend claims charge of a minor’sproperty of the value of Rs. 1,000 or over for any of the reasons statedin section 582, he cannot institute an action with reference to thatproperty, unless he first takes out a certificate of curatorship.
D. C., K^galla, 160 (2 S. C. R. 81, S C. L. R. 20), commented upon.
IS was an action in ejectment brought by the plaintiffs to
recover certain lands which they averred they inheritedfrom one Maimo Natchia, and from which they were ousted bythe defendants. The fifth and sixth plaintiffs, Ossen andMahommadu, being minors, the first plaintiff, their father, was,on his application, appointed their next friend for the purposeof this action. On the day of trial, the court ex mero motu calledupon the plaintiffs’ Proctor to show cause why the action shouldnot be dismissed, on the ground that the first plaintiff’s appoint-ment as the next friend of the minors was invalid, because nocertificate was obtained in accordance with section 582 of theCivil Procedure Code, and no inquiry was made to ascertain thevalue of the property.
After argument, the District Judge ordered that the case betaken off the trial roll to enable the first plaintiff to obtain therequisite authority to sue under section 582 of the CivilProcedure Code.
The plaintiffs appealed.
The case was argued before Lawrth, A.C.J., and Brownb, J.,and judgment being reserved, it was, at the request of theirLordships, argued again before the Full Court (consisting ofLawrib, A.C.J., and Withers and Brownb, JJ.) on the 8thMarch, 1895.
Wendt, for the appellants.
Sampayo and Blazi, for the respondents.
12th March, 1895. Brownb, J.—
In this action fifth and sixth plaintiffs are minors, and beforethe action was instituted the first plaintiff, their father, was (byMr. Dunuwille, Acting District Judge) appointed their nextfriend in order to institute this action of ejectment and fordamages against the defendants. It is to be noted, however, thatthe application was not accompanied by a copy of the plaintproposed to be filed, as this Court (2 C. L. B. 82 and 168, and1 S. C. B. 802) has directed should be always done.
The appointment was, however, made, and has not been objectedto on that ground.
Cur. adv. vult.
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At the trial, however, the Court of its own instance (Mr. Mason,District Judge, presiding) ordered the action to be taken off thefile, on the ground that the plaintiff’s appointment as next friendwas invalid, because (1) no certificate was obtained in accordancewith section 582 of the Civil Procedure Code, and (2) noinquiry was made to ascertain the valne of the property ; leavewas reserved to the plaintiff to rectify his procedure in theserespects.
Plaintiff, however, in appeal contends that these requirementswere unnecessary. The learned District Judge's order shows heheld these necessary, because the defendants had questionedplaintiffs’ assertion that the lands of the estate, whereof plaintiffsare heirs, were worth under Rs. 1,000, asserting they were ofRs. 8,500 value, and because in case No. 160 of the District Courtof Kfealla (2,S'. G. R. 81, 3 C. L. R. 26) this Court had suggestedthat, even if a next friend had been appointed under section 481,it would seem as if section 582 would prevent him from suinguntil he had also obtained a certificate of cnratorship.
It is necessary, therefore, now to rule upon what was then onlya suggestion ; and in my humble opinion this necessity, that anappointment of a next friend should be supplemented by acertificate of curatorship, does not exist.
In the first place, chapter XXXV. of the Code nowhere sorequires it; and it is to be remembered that the two procedures ofa minor suing by his next friend, and of a curator obtaining hiscertificate for all purposes whatever, and, if need be, thereafterbringing an action, are entirely distinct in their nature. Theminor may often, as here, be only a necessary party to an actionbrought by others, the result whereof may or may not give orensure him a right to some property. It may be that that propertyand all else belonging to him may be so inconsiderable in value,and so safely guarded for him by his relatives, that not onlywould certificate of curatorship be unnecessary, but it would bea positive hardship to require it to be taken to his loss in thecost thereof. When, however, his interests require he shouldhave a permanent curator who shall have right to litigate whennecessary, but who very possibly may never have to litigate atall, but only to receive and apply the income of the estate, suchcurator must of course be clothed with the authority of acertificate.
These are the three possibilities: (1) a minor may himselfsue by his next friend; (2) his duly appointed curator may sue forhim; and (3) a relative of a minor whose estate is under Rs. 1,000,desiring to see the child’s rights protected in some action which
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he may deem necessary to be instituted, may get a special quasicnratorship authority from the court limited to that one actiononly. This last is the object of the proviso to section 582. Certificateof curatorship is necessary only for actions instituted or defendedby a curator in his own name qua curator, and is not necessaryfor actions instituted (or defended) “by a minor by his next“ friend ” (or guardian ad litem).
As regards the ground that no inquiry has been made as to thevalue of property, there seems to be some confusion. It wouldnot have been necessary at all to inquire as to the value of aminor’s property when application was made that a next friend orguardian should be appointed to aid him in litigation. Suchinquiry need be made only when it is sought to appoint a curatorgenerally or for the limited purpose contemplated by section 582(proviso). But in this action the objection taken by defendantconcerning value of property is that plaintiffs, as a body, couldnot sue without having administered their mother’s estate, andthis no doubt the Judge will yet have to determine according ashe shall find what is the value of her estate.
The appointment of the next friend being otherwise unques-tioned, this order must be set aside, but without costs, and theaction remitted for trial.
The order complained of is one directing that the case be takenoff the trial roll to enable the first plaintiff to obtain the requisiteauthority to sue under the 582nd section of the Civil ProcedureCode.
The action is to recover lands alleged to be in the unlawfulpossession of the defendants. It is brought by the husband ofone Pitcha Uma, deceased, to whose estate in the premises he andtheir children have (it is alleged) succeeded on intestacy.
The father sues for his own interest, and he claims to sue as thenext friend of two of his children, the fifth and sixth plaintiffs.He himself js the first plaintiff, and his order of appointment asnext friend is to be found at page 44.
The defendants appeared to the summons issued on the accep-tance of the plaint and answered.
The trial was fixed for the 4th September. On that day the Dis-trict Judge, of his own motion, called on the plaintiffs’ Proctor toshow cause why th6 plaintiffs’ action should not be dismissed, onthe ground that first plaintiff’s appointment as next friend isinvalid by reason of no certificate having been obtained under the
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provisions of section 582 of the Civil Procedure Code, and becauseno inquiry was made to ascertain the value of the property.
The value of the minors’ property sought to be recovered mustnot be confounded with the whole inheritance.
The value of the inheritance is a question put in issue on thepleadings.
The property sought to be recovered in this action is assessedin the plaint at Rs. 400 only. That is not traversed in the answer.Two of the five children only are minors.
Their share of the premises, assessing it to be two-fifths ofthree-fourths of Rs. 400, is considerably under Rs. 1,000.
The appointment of the next friend was made with consent ofthe defendants, who raised no objection on the ground of thevalue of the minors’ interest in the premises exceeding Rs. 1,000.
Hence, under section 582, the father was not disqualified to actas next friend even if he claimed to have charge of the fifth andsixth plaintiffs’ share of the premises. But he has made no suchclaims, and because he comes forward to recover shares in landwithheld from them, their adult brethren and himself, I fail to seewhy he should be considered to“ claim charge of their shares. Nonconstat, that he will not place the children in charge of theirshares when recovered, or give them up to any one they nominate.
They consented to their father being appointed their nextfriend. Anyhow it seems to me that the utmost the Judge coulddo was to have the names of the fifth and sixth plaintiffs struck outas improperly joined, 'nd to let the trial continue. But in myopinion the plaintiff should be allowed to carry on the action asconstituted, and I would set aside the order and remit the casefor trial.
Reading sections 481 and 493 together, I understand the Code tosay that any person being of sound mind and full age, so long ashis interest is not adverse to that of the minor, and he is not adefendant in the action, may, if he is otherwise a fit person, beappointed next friend of a minor.
If he claims charge of a minor’s property of the value ofRs. 1,000 under a deed or will, or by reason of nearness of kin andotherwise, he cannot institute an action with reference to thatproperty unless he first takes out a certificate of curatorship.
In the K^galla case reported in the 3rd volume of the Ceylon Lau.Reports, p. 26,1 expressed the opinion that a next friend regularlyappointed under section 481 must get a certificate of curatorshipbefore he could bring an action in the name of the minora.
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I feel it difficult to reconcile some of the provisions of the 35thchapter with those of the 40th chapter of the Code. It is hard toignore or to explain away the plain words of section 582, “ no“person shall be entitled to institute or defend any action connected“ with the estate of a minor of which he claims charge until he“shall have obtained such certificate.”
Is the solution to be found in the words “ of which he claims“charge” ?
A next friend may have no pretension to have charge of theminor’s property ; perhaps if he does not a certificate is notnecessary.
It is clear that in some circumstances a next friend may sue inthe minor’s name without getting a certificate; for instance, undersection 590 the next friend may sue the curator.
I therefore concede that it is a reasonable construction of the35th chapter, that a man regularly appointed under section 481 isclothed with authority to sue without getting a certificate, andalso a man appointed under section 479 may defend without thesame certificate.
I agree with my brother Withers, and in the result arrived atby my brother Browne, but not with all his comments on theOrdinance.