RAMAN CHETTY v. ABDUL RASAC.

RAMAN CHETTY v. ABDUL RASAC.

D. C., Galle, 6,681.

Partition suit against minors-Guardian ad litem-Certificate of curatorship-Civil Procedure Code, ss. 5, 6, and 582-Position of guardian ad litem in the suit.

    In a partition suit a motion to take the plaint off the file, because the shares alleged to belong to the plaintiff do not belong to him, is irregular.

    It is frivolous on the part of one who had allowed himself to be appointed a guardian ad litem to represent certain minors in a partition suit, and given a proxy to his proctor to appear and defend the action,. to object to the action on the ground that the minors have not been properly represented.

    The proceeding in which he was made a guardian ad litem and added as a defendant is a proceeding which comes within the definition of the word " action " in section 6 of the Civil Procedure Code.

    It is not necessary that such a guardian ad litem should obtain a certificate of curatorship under section 582 of the Code.

    The person appointed as a guardian to represent a minor in an action should not be made a defendant in the action. His name should appear in the caption of the plaint as the next friend of the minors by adding to. the names of the minor defendants the words " by their next friend, ."-

    THE plaintiff instituted this action for a partition of certain lands alleging that the first and second defendants, who were minors, were joint owners. The third defendant was the duly appointed guardian ad litem of the first and second defendants.

    Without filing answer the defendants moved the Court to take the plaint off the file because (1) the caption of the plaint showed that the plaintiff sued as" N. K. Y. R. M. Ramen Chetty of Galle," meaning thereby that the land in respect of which the action was brought belonged not only to Ramen Chetty, but also to the other members of the firm N. K. Y. R. M.; and (2) the first and second defendants being minors could not be represented by a. guardian ad litem but by a guardian or curator.

 The Court (Mr. J. D. Mason) ruled as follows: -

    "In a partition suit a minor should be represented by a curator appointed under section 582. Section 479 applies when the minor-is a defendant to an action which is defined to be a proceeding for the prosecution or redress of a wrong. A partition suit therefore is not an action.

    " The defendants' motion that the plaint be taken off the file is irregular, but the Court holds that the plaintiff cannot proceed

with the suit until a legal representative of the minor has been appointed."

    The plaintiff appealed.

    Van Langenberg, for plaintiff, appellant.

    H. A. Jayawardene, for respondent.

28th January, 1903. LAYARD, C.J.-

    Before this action was commenced the third defendant was, on the 17th day of March, 1902, duly appointed guardian ad litem of the first and second defendants. He then, after the action was instituted, gave a proxy in favour of Mr. Abeywardene as guardian ad litem of the first and second defendants. The proxy authorized Mr. Abeywardene to appear and defend this action. Mr. Abey-wardene filed proxy on the 14th August, and moved for two weeks' time to file answer. On the 29th August Mr. Abeywar-dene moved for notice on the plaintiff to show cause why the plaint should not be taken off the file, giving three reasons. The first reason was that the shares claimed by the plaintiff did not belong to him. I am entirely unable to understand how any proctor could suggest to a District Court in a partition suit that the plaint should be taken off the file because the shares alleged to belong to the plaintiff did not belong to him. The second objection taken was that the first and second defendants are not properly represented. The District Judge has upheld this second objection, and taken no notice of either the first or the third objection. The action of t

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