Present : Bertram C.J. and Schneider A.J.    1920.

ALWIS v. GUNATILLEKE.

63-D. C. Matara, 2,616.

Lunatic wife-Appointment of some person other than husband as manager of the estate and guardian of the person-Wide powers of the Courts Ordinance, s. 71-Civil Procedure Code, chapter XXXIX.-Court must have proof of lunacy before appointing manager of estate or guardian-Marriage in community of goods-Power of husband in respect of community property.

The Court is entitled, where the circumstances warrant it, to appoint some person other than the husband as the guardian of the person or as the manager of the estate of a wife who is of unsound mind.

For the purpose of appointing a manager of an estate of a lunatic or a guardian of the person, the Court should not presume lunacy from extrinsic circumstances or act on the admission of parties.

THE facts appear from the Judgment.

A. St. V: Jayawardene (with him Weeraratne), for the appellant.

Arulanandan, for the respondent.

July 28, 1920. BERTRAM C.J.-

This case comes before us under a clause in a will which has already been the subject of Judicial interpretation by this Court. The District Court was called upon by the petitioner to appoint a manager of the property of a certain lady who was assumed to be a lunatic. There are good grounds for assuming her to be a lunatic, inasmuch as the will itself recites the fact of her lunacy. She is entitled to . certain property under her father's will. The property so conferred upon her is subject to a fidei commissum. As she is married to her husband in community, the income of that property falls into the community. That has already been determined by this Court. The request is accompanied by a direction that the management of the property so bequeathed shall be in the hands of another member of the family. It is certainly very difficult to reconcile that direction as to the management of the property with the common

law principle that where there is community of property, the management of the property is vested entirely in the husband. However, this Court has, in fact, decided that this direction as to management does not take the property out of the community. In any case any difficulty on the subject has been removed by the fact that the person in whom the will intended to vest the management has ceased to exist, and that there is no direction in the will for the appointment of any successor in the management. We may take it, therefore, as already declared by this Court, that the income of the lands so bequeathed to the lunatic under the will is community property. In ordinary circumstances, the husband is entitled to the management of it, Just as in ordinary circumstances he is entitled to the care of the person of his wife. So much for the legal position under the clause in the will.

There are certain facts to be taken into consideration. The first is the fact of the wife's mental condition. It is assumed, but not proved, that she is a lunatic. As I said, there are good grounds for this assumption. But in proceedings of this kind the law requires proof, and it would be a dangerous thing to allow lunacy to be presumed from extrinsic circumstances or from the admission of parties. Further, it is assumed in the case, but not proved, that the husband has for some time past formed an irregular connection and is living with the other party to that connection, and has illegitimate offspring.

The question comes before us on appeal from an order of the District Judge. The District Judge has appointed the second respondent as guardian of the person of the lunatic. He has also appointed the petitioner as manager of the lunatic's property. The husband now appeals to this Court. In the Court below he did not challenge the appointment of the guardian of the person, but in this Court he takes exception to it as interfering with his natural rights. I do not know wheth