Setun Bibee V. Abusally Marikar

1953 Present: Nagalingam A.C.J.

SETUN BIBEE et al., Appellants, and ABUSALLY MARIKAR,
Respondent

S. C. 129-C. R. Kegalle, 13,669
 

Partition action-Minority of defendants'-Summons served on them personally- Minors not legally represented--Effect on proceedings-Civil Procedure Code, s. 480.

Some of the defendants in a partition action were minors. No appointment of a guardian ad litem had been made in respect of them, and service of summons was made on them personally. After final decree was entered they moved under section 480 of the Civil Procedure Code to have the decree set aside.

Held, that the final decree could be set aside for the reasons (1) that as the defendants were minors, the service of summons on them personally was ineffective, and (2) that section 480 of the Civil Procedure Code, which declares that an order made in an action in which a minor is a party without such minor being represented by a guardian ad litem may be discharged on application made for the purpose, is not inapplicable to actions filed under the Partition Ordinance.

APPEAL from a judgment of the Court of Requests, Kegalle.

 A. L. M. Hashim, for the defendants appellants.

S. J. V. Chelvanayakam, Q .C., with K. S. Rajah, for the-plaintiffs respondents.

Cur. adv. vult.

October 2, 1953. NAGALINGAM A.C.J.-

This is an appeal from an order refusing to set aside a final decree entered under the Partition Ordinance. The application to set aside the decree was made to Court on the ground that the 2nd to the 5th defendants-appellants were minors at the date of the institution of the action and that no appointment of a guardian ad litem had been made in respect of them and that the final decree too was entered without any representation of the minors having been made. None of the minors appeared in Court during the course of the proceedings, nor did even the sole major defendant appear. As to why the major defendant did not appear there is no explanation, but in the result the case was adjudicated upon ex parte on the testimony of the plaintiff in the absence of any of the defendants.

There is no evidence to show whether the plaintiff stood in any relationship to the defendants or not, but whatever that may be the alleged service of summons on the minor defendants cannot be regarded as a true report. Two of the defendants, namely the 4th and the 5th, were stated in 1950 to be fifteen and fourteen years of age respectively. The action was filed in 1940, so that at the date the summons was reported to have been served on these two defendants they were to say the least five and four years old. The 2nd and 3rd defendants must have been, older, but it is obvious that no effective service of summons could have been effected on them too.

The learned Commissioner held, relying upon the cases of Randeni v. Allis Appu 1[(1900) 1 Br. 284.] and Fernando v. Fernando 2[ (1905) 9 N. L. R. 241.], that even though some of the defendants may have been minors the final decree entered under the Partition Ordinance was binding on them, and that their remedy lay under the other provisions of the Partition Ordinance. This view, however prevailed at a time when the final decree under the Partition Ordinance was regarded as sacrosanct and inviolable ; but that view has since been departed from.

In the case of Jayawardene v. Weerasekera 3[(1917) 4 C. W. R. 406.] de Sampayo J. held that where the proceedings had not been conducted in conformity with the essential provisions prescribed by the Partition Ordinance, a decree-entered thereunder acquired no immunity against its being declared null and void. In the case of Caldera v. Santiago Pillai 4[(1920) 22 N. L. R. 155.] a final decree

entered was set aside on the ground that service of summons on the defendant had not been duly effected. To the same effect is the more recent case of Pablis v. Euginahamy1[(1948) 50 N. L. R. 346.].

Once the

Click Here to Read the rest of this document