Segu Madar V. Howumma Et Al.,

1928 Present: Garvin and Drieberg J J.

SEGU MADAR v. HOWUMMA et al.

40-D. C. (Inty.) Kurunegala, 2,707.

    Muslim widow-Minor-Compromise by guardian ad litem-Testamentary case-No leave of Court-Civil Procedure Code, s. 502.

 Where the guardian ad litem of a Muslim widow, who was under age entered into a compromise on her behalf without the special
leave of Court,-

Held, that the compromise was not binding on her,, although she had given her assent to it.

APPEAL from an order of the District Judge of Kurunegala. The facts appear from the judgment.

May 23, 1928. DRIEBERG J.-

This is an appeal by the appellant from an order made on an application for the judicial settlement of the estate of Thanga Udayar, deceased. The parties are wrongly described in the petition for judicial settlement which was by the respondent to this appeal. I shall therefore refer to the parties by the position they hold in the application for administration by the present appellant. In that the appellant was the petitioner, the present respondent was the first respondent, and her father was the second respondent.

The appellant, who is the father of the deceased, applied for administration on September 22, 1924, alleging that the first respondent, the widow of the deceased, was a minor under twenty-one years of age and that her father, the second respondent, was a proper person to be appointed guardian ad litem over her. The second respondent is not an heir of the deceased.

The appellant stated that the fourth respondent was a minor and that the third respondent was a proper person to be appointed guardian ad litem over her. The third respondent is a sister and the fourth respondent is a brother of the intestate.

On the same day the Court issued to the respondents a citation 1928. requiring them to produce to Court all title deeds and securities of the deceased on October 28. On the same day it issued a decree  nisi declaring the appellant entitled to letters unless cause was  shown to the contrary on or before October 28, and in this notice it appointed the second respondent guardian ad litem over the first respondent and the third respondent guardian ad litem over the fourth respondent. There is nothing to show that the first and second respondents or the third and fourth respondents were before the Court when this order was made, and the procedure is irregular. Section 493 of the Code requires an application for such an appointment to be by summary procedure. On October 28, 1924, Messrs. Gomis & Jayasundere filed proxy of the first respondent who claimed to be entitled to grant of administration and the inquiry was fixed for November 11 following. On October 28 all the respondents were present, but the attention of the Court was not drawn to the fact that the second respondent had previously been appointed guardian ad litem and no proxy was filed by the second respondent.

On November 11, 1924, a written consent to a settlement was submitted. It provided for the appellant being appointed administrator, the first respondent was to take for her share a certain house and a field and was to renounce her claim to a stare in the other lands, and the description of one land in the schedule was to be amended. It was also agreed that certain persons not named in the petition for administration should be added as respondents and heirs of the intestate. These were four children of Umma, deceased, a sister of the intestate, but this does not seem to have been done, and I can find no further reference to them in the proceedings. The settlement was submitted, signed by the appellant and his proctor, by the second respondent as guardian ad litem of the first respondent, and by Messrs. Gomis & Jayasundere as proctors for the first and second respondents. There is a note that on December 22 the first respondent signed the consent motion and that it was explained to her by th

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