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GUNASEKERA v. ABUBAKKER
NLR6V148
GUNASEKERA v. ABUBAKER.
D. C, Galle, 6,267.
Curator-Civil Procedure Code, ss. 476 and 582-Action by minor.
An action by a minor is not well brought if brought in the name of the curator.
Before suing, the curator should obtain the authority of the Court to institute an action as the next friend of the minor and in the name of the minor.
THIS was an action for a declaration of title to certain shares of
certain lands bought by two plaintiffs, the first of whom was described in the title of the suit as " George Abeyewardena Gunasekera of Galupiyadde, curator of the estate of the minor George Dias Abeyesinghe of Colombo." The prayer was that the said George Dias Abeyesinghe be declared entitled to 47/72 parts, &c, and the second plaintiff to 25/72 parts, &c.
The issues raised on the pleadings and agreed to were: (1) Cars the first plaintiff maintain this action? and (2) Is the defendant in the wrongful and forcible possession of the house and soil claimed?
The District Judge (Mr. J. D. Mason) held that the first plaintiff could not proceed with the action.
The plaintiffs appealed. The case came on for argument on 28th April, 1902, and it was ordered to be listed before three Judges.
Dornhorst (with Sampayo), for appellants.
Bawa for respondent.
Cur. adv. vult.
20th July, 1902. MoncrEiff, A.C.J.-
The question is whether the plaintiff, suing as curator of a minor, can maintain this action. It is urged that, in view of section 476 of the Civil Procedure Code, he can only do so when the action is instituted in the minor's name, and he has been appointed and is designated in the plaint the next friend of the minor. I have had the advantage of learning the views of my brothers, and I agree that the objection is fatal. If section 582 of the Code had stood alone, I should have thought otherwise, but I find it impossible to disregard the positive provisions of sections 476-480. I agree to the order proposed by my brothers.
Wendt, J.-
The present action was brought by two plaintiffs. The first of them was 'described as George Abeyewardena Gunasekera, curator of the estate of the minor George Dias Abeyesinghe, and the
question upon which the case has been decided is whether the action was maintainable without Gunasekera having been appointed next friend of the minor in question. Now, I agree with the statement of Lawrie, A.C.J., in one of the cases to which I shall presently refer, to the effect that it is not easy to reconcile some of the provisions of chapter 35 with those of chapter 40 of our Civil Procedure Code, and the difficulty is probably due to the fact that, while chapter 35 was adapted from chapter 31 of the Indian Code, our chapter 40 represents enactments contained in two separate Acts of the Indian Legislature not included in their Code, viz., Acts No. 40 of 1858 and No. 20 of 1864. In the case of Jalaldeen v. Meerapulle (3 C. L. R. 26), which was an action by a next friend, Lawrie, A.C.J., expressed a somewhat doubting opinion that an action could not be brought in respect of a minor's lands by a next friend appointed under section 481, unless he got also a certificate under section 582.
In Fernando v. Weerasinghe (3 C. L. R. 67), which was an action by a curatrix in the name of the minor upon a lease granted by the curatrix, Lawrie, J., held (Withers, J., concurring) that a curator duly appointed by the Court could not institute actions in the minor's name without the express sanction of the Court obtained on an application to be made next friend. In Uduma Lebbe v: Seyadu Ali (1 N. L. R. 1) the action was brought by the minors, by their father as next friend duly appointed by the Court, and was an action of ejectment. The District Court held that it was necessary for the father to obtain an order under section 582 of the Code. The appeal was specially argued before the Full Court, and Browne, A.J., was of opinion that the certificate of curatorship was only ne
