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GUNARATNE v. HAMINE.
D. C., Kurunegala, 1,828.
Administration—Civil Procedure Code, s. 647.
Whenever it appears in the course of a case that administration isnecessary, it becomes the duty of the Court to see that the provisionsof section 547 of the Civil Procedure Code are complied with; beforethe litigation proceeds any further.
That section is a statutory bar to the maintenance of an action for therecovery of any property belonging to the estate of any person dyingtestate or intestate which amounts to or exceeds in value the sum ofBs. 1,000, unless grant of – probate or letters of administration have beenissued to some person as executor or administrator of such testator orintestate, and cannot be got over by the implied or express .agreement ofthe parties to the action that, a^ the title to be deduced from the deceasedis not contested, his estate need not. be administered.
N this action for declaration of titlfe to certain fields and landsit was alleged by the plaintiff that one Dingiri Banda* the *
second defendant, being the owner thereof, sold ..them to theplaintiff; that the plaintiff instituted case No. 1,556 against thesaid Dingiri Banda and obtained a judgment against him, declar-ing the plaintiff entitled to'the said, lands and'fields; that upon theissue of a writ of possession the first defendant, the wife of thesecond, refused to give up possession to the plaintiff; and that23
( aoo )therefore the present action for ejectment against both defendantsJuly 6. hB(i become necessary.
Among other pleas the defendants pleaded that Punchi Meni-ka, the mother of Dingiri Banda, died intestate about the year1880 leaving an estate above the value of Rs. 1,000, to whichno administration had been taken, and that the plaintiff wasnot entitled to maintain his action without obtaining letters ofadministration.
The District Judge, Mr. G. A. Baumgartner, ruled that noadministration was necessary foi*the following reasons: —
“ It' is common ground that full title to the lands in claimvested in Dingiri Banda, whether it all came to him by inheritancefrom his mother or whether only one-third of it came to him inthat way and the other two-thirds from his grandmother andfather respectively.
“ It being once admitted by both sides that the full title vestedin Dingiri Banda, the Court is not concerned in the presentaction with the transit of the title to Dingiri Banda. The field ofinquiry must be limited to the issues that properly arise. Thedirections of the Civil Procedure Code on this point are that theCourt shall ascertain upon what material propositions of fact orlaw the parties are at variance. (Section 146). The parties hereare not at variance as to Dingiri Banda’s sole right to the lands.There is no call upon the Court to frame an issue on a pointon which the parties are not at variance.
“ Counsel for the defence dangled before the Court as a tempt-ing subject for inquiry the question, whether the action couldbe maintained without administration to the estate of DingiriBanda’s mother, and he cited the remarks of Chief JusticeBonserin 4N. L'. R. 208 to the ■ effect that ifthe attention
of the District Judge is drawn to the fact of no administrationhavingbeentaken out,it wouldbe his dutyto see that
administrationwas taken.But thatreferred to the estate from
whichconflicting claimsdiverged.The plaintiffclaimed by
inheritance from her mother, who^ was married in community.The defendant made conflicting claims on the property of thesame community. It was plainly necessary for plaintiff to showthat title had legally passed ‘to her through her mother; that- is to*say, that her mother’s estate had been legally administered.
“ In another case "reported in 5 N. L. R. 16, Chief JusticeBonser used the Vords, ‘ if a person desires to prove title toproperty- and finds it necessary J;o deduce a title to that propertyeither from or through a former owner, who has died intestate,■ he must prove one of two things,’ $c.
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; “ In my opinion the words ‘ finds it necessary ’ Imply that thetitle to be deduced is one that is contested by the other side.
“ There is no necessity to establish anything anterior to the;,point at which titleisadmitted.Therecan be no necessity, as
. between the parties,togo behindthat.If the Court saw reason
to suppose the estate of Dingiri Banda’s mother was a large one,which ought to have been administered, it is no doubt its right andduty to see that administration is taken, but any proceedings takenwith that object would be outside the scope of the present action.”
The plaintiff appealed.'
The case came on for argument before Layard, C.J., and Wendjj,J., on the 6th July, 1903.
H. A. Jayewardene(with Wadsworth), for appellant.—Apart
from any questionoftitle, theCourthas no jurisdiction to
entertain a plaint unless it is proved that the estate was small orletters of administration obtained. As soon as it became apparentthat a person was trying to recover property through an in-testate without administration, the plaint became inadmissible.D. C., Kegalla, 1,189 decided on the 4th June, 1903.
Domhorst, K.C. (with H. J. G. Pereira), for plaintiff, respon-dent.—The plaintiff’s title through Dingiri Banda being admitted,the Court below did not insist upon the administration of PunchiMenika’s estate. There is no duty cast upon the District Judge toinsist upon the administration of old estates. Having acquiredtitle from Dingiri Banda, the plaintiff relies on prescriptive titleas well as on the admission of the defendants of the validity ofhis title. [Layard, C.J.—The conveyance in favour of plaintiff isnot bad, but there is a bar to it in the Code.] It has been heldthat the words ‘ ‘ dying intestate ’ ’ in section 547 of the Code are notretrospective. [Layard, C.J.—That case has been over-ruled.] Thenhow far back will the Court go? There must be a limit surely.Here the intestate died twenty years ago. What if he had died one-hundred- years ago ? [Layard, C.J.—We shall decide that pointwhen it arises. We have gone as far as insisting upon adminis-tration whenever an estate is found to have passed withoutadministration.] The words in the Code are “ shall die ” meaningin future. That is not retrospective. Is it too late to raiseA thatpoint now ? [Layard, C.J.—>1 am afraid so.] I do not under-stand what Bonser, C.J., means by the .expression “ finds itnecessary ” in his judgment reported in 5 N.;tL. R. 16: ‘‘If aperson desires to prove title to property and .finds it necessary to
deduce his title to it he must prove,” &c. We do not find
it necessary in the present case to deduce title from Punchi
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1903.Menika. That case does not apply to the present one. [Layard,
Jtdy6.q j—Perhaps if an appeal is taken in this ease to the Privy
Council, his lordship, who is there now, will explain himself.][Wendt, J.—He disclaimed the idea of laying down anything new.
He said emphatically that it was the old law.] That was notcorrect. I have been in practice for more than twenty-five yearsand I have never known the law .to be so. I am surprised thatyour lordship did not tell him he was wrong. [Wendt J. youcan still tell him that in the Privy Council.] Tikiri Banda v.Ratwate (3 C. L. R. 70) was decided in March, 1894. It was heldthere that on heir-at-law could alienate the property of hisintestate pending the administration of the estate. Such a con-veyance is good. This was after the Code. A similar decisionwas given in Tikiri Menika v. Tikiri Menika (9 8. G. G. 63).See also Sivalingam v. Kumarihami, ibid. 181. [Layard, C.J.—These cases have been already considered in the previous judg‘ment.]
6th July, 1903. Layard, C.J.—
It is common ground in this case that the title to the lands inquestion vested in Dingiri Banda, and both parties claim underDingiri Banda.
It is admitted that no administration was ever taken out to theestate of Punchi Menika, who died intestate. The District Judgehas held that, as both parties claim through Punchi Menika, andas it is admitted that the lands vested in Dingiri Banda, therewas' no necessity to take out administration to the estate ofPunchi Menika. This Court has repeatedly held that in view ofthe provisions of section 547 of the Civil Procedure Code noaction is maintainable for the recovery of any property belongingto or included in the estate and effects of any person dyingtestate or intestate in or out of the Island, if such estate oreffects amount to or exceed in value the sum of Rs. 1,000, unless .grant of probate or letters of administration have been issued tosome person or persons as executor or administrator of suchtestator or intestate.
Tha,t section is imperative* and before a plaintiff can maintainan action for the recjverv of any property iD Ceylon he mustcomply with th£ provisions of that section.
In this case, if ‘'the plaintiff establishes that Punchi Menika’sestate was under the value of Rs. 1,001), the plaintiff will bringhimself within the exception mentioned in that section and *beentitled to proceed on in this action. In the evant of the plaintiff
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failing to establish that Punchi Menika’s estate does not exceed 1909.'in value the sum of Bs. 1,000, administration will have to betaken out to her estate before the plaintiff is allowed to proceed lavakd, C.J.with this action.
It .may be that the plaintiff has established a prescriptive title tothe land claimed on the plaint, and in view of that I suggested tothe respondent’s counsel that, if they were prepared to proceedto trial resting their claim merely on the prescriptive title, itwould not be necessary for the respondent to establish either thatPunchi Menika’s estate did not exceed the sum of Bs. 1,000 or, inthe event of his failing to do so, to apply for letters of adminis-tration of Punchi Menika’s estate.
The judgment of the District Judge must be set aside, and thecase is remitted to the District Court to be proceeded with.
The appellant is entitled to the costs of this appeal.
I am of the same opinion. No doubt, by our Common Lawr.administration by an official appointed by the Court was notnecessary, any more than it was necessary that every decedentshould leave a will and an executor to carry it out. But very manyyears ago this Court ruled that the English Law of Executors and'Administrators had been impliedly introduced into the Colony bythe Legislature, and the Judicial Committee of the Privy Council'recognized the prevalence of that law in this Island. Owing,however, to the difference of principle between the Common Lawand this graft of the English Law, there was for some years, asmight have been expected, a little uncertainty in applying the-principles which this Court had enunciated, and a somewhat vagueexception was made in favour of what were denominated “ smallestates ”.
Here, again, there were diverse rulings, not always reconcilable'with each other, as to what value of property should constitute a.
“ small estate ”, but even so the principle was recognized that wherethe estate was not small probate or letters of administrationcould not be dispensed with. Then came the Civil ProcedureCode of 1889, which, in exact terms,, defined a small estate to beone which did not exceed Bs. 1,000 in value, and section 547, iiyunmistakable language, rendered an action not maintainable,,without due administration, for the recovery of any propertyincluded in an intestate estate. In interpreting that section thisCourt laid down that it formed a statutory bar which could not be-got, over by the mere acquiescence, or even by the express agree-ment, of the parties to any particular litigation.
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As to the wholesomeness of the provision, I think there can beno question, but that is not an element which it is in our provinceto consider. The Legislature has thought fit to require dueadministration, while it is obvious that it is to the interest of thepersons claiming to be heirs ab intestato to divide their ancestor’sproperty amongst themselves without paying the probate duty,which would of necessity be exacted if any executor or adminis-trator were appointed by the Court. It is plain that, if parties wereenabled by agreement to waive the necessity for administration,the intention of the Legislature would be frustrated.
Hence it is that, whenever it appears in the course of a casewhichCourt is trying that administration is necessary, it becomestte duty of that Court to see that the provisions of section 547 arecomplied with before the litigation proceeds any further.
As to the suggested inconvenience and difficulty of insisting upondue representation of old estates, there is, as my lord has pointedout, the enactment of the Prescription Ordinance, which enables aperson who has had over ten years’ possession to protect himself bymeans of the provisions of section 3, and so obviate the necessityfor relying upon a title by inheritance.
GUNARATNE v. HAMINE