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MUTTU MENIKA v. MUTTU MENIKA
NLR18V510
1915. Present
: Shaw J. and De Sampayo J.
MUTTU MENIKA v. MUTTU MENIKA.
275-D. C. Kurunegala, 5,285.
Minor-Unrepresented by guardian in action-Is judgment null and void?
A judgment against a minor who is unrepresented by a guardian is at most an
irregularity, and the judgment will stand as a valid adjudication against the
minor until reversed, and will not be open to a collateral attack.
A person seeking to get rid of a judgment on the ground of his minority at the
date of the judgment is to proceed under section 480 of the Civil Procedure
Code, or to apply for restitutio in integrum Until the judgment is set aside it
can be pleaded as res judicata against the " minor "
THE
facts are set out in the judgment.
G. Koch, for first defendant, appellant.
E. T. de Silva, for plaintiffs,
respondents.
Cur. adv. vult.
511
September 8, 1915. DE SAMPAYO J.-
This is in form a partition action in respect of six lands, but it is in reality
an action to establish title to certain shares. The lands belonged to one
Sohandirala, husband of Kiri Menika. The plaintiffs' case is that Sohandirala
left two children namely, (1) Satanhamy, through whom they claim, and (2) Punchi
Etana, the mother of the first defendant-appellant, whereas the first defendant
says that Satanhamy was the son, not of Sohandirala, but of his wife Kiri Menika by a
former husband. Satanhamy left five children, namely, the first plaintiff in
this action, Punchi Menika (mother, now deceased, of the second plaintiff), and
three others. In 1910 all these children of Satanhamy brought the action No.
3,589 of the District Court of Kurunegala against the same defendants as in this
case, for the purpose of partitioning the same lands. In that action the Supreme
Court in appeal held in favour of the defendants with regard to the question of
Satanhamy's parentage, and also with regard to the claim by prescription which
the plaintiffs had step up, and dismissed the plaintiffs' action. The plaintiffs
in the present action set up the same title as in the previous action and seek
to avoid the plea of res judicata by alleging that the first plaintiff and
Punchi Menika (mother of second plaintiff) were minors at the date of the action
No. 3,589, and that the decree therein is absolutely void as against them. The
District Judge has come to the same conclusion as the Supreme Court in the
former action as regards the percentage of Satanhamy,
but has decided in favour of the plaintiffs on the question of res judicata, and
also on the issue of prescription as to three out of the
six lands, and has decreed partition accordingly. 'The first defendant has
appealed.
It appears that at the date of the action No. 3,589 the first plaintiff and
Punchi Menika were of the age of 17 and 19 years respectively, and the
circumstances indicate that at that time Punchi Menika was married. They
appeared with the other plaintiffs by proctor, and no question was raised as to
their minority. The procedure for actions by and against minors is provided in
chapter XXXV. of the Civil Procedure Code, and under section 502 a minor for the
purposes of that chapter is to be deemed to have attained majority not only on
attaining the age 21 years, but also on marriage or on obtaining letters of venia aetatis.
Considering that the plaintiffs are seeking to avoid a decree
already entered against them, I should say that the burden was on them to
negative all the facts mentioned in that section as constituting the attainment
of majority. Further, the plaintiffs themselves having sued as though they were
majors, I do not think that they ought to be heard to allege the contrary, so as
to affect the defendants, on whom no responsibility lay to have a next friend
appointed for i the plaintiffs, though, no doubt, if the defendants were aware
of the fact, they might have raised an objection under section 478.
Moreover, the decree once entered
