Gnnawardene v. Jayawardene.
1938Present : Maartensz and Moseley JJ.
GUNAWARDENE v. JAYAWARDENE.
14—D. C. Matara, 3,890.
Administration—Application by creditor to add debt to inventory—No power in Court—Civil Procedure Code, s: 718.
Section 718 of the Civil Procedure Code does not confer on the DistrictCourt power to order a debt to be added to the list of liabilities or to the.inventory of the intestate filed by the administrator.
PPEAL from an order of the District Judge of Matara.
H. V. Perera, K.C. (with him N. E. 'Weerasooria), for fifth respondent,appellant.
N. Nadarajah, for petitioner, respondent.
Cur adv. vult.
138MAARTENSZ J.—Gunawardene v. Jayawardene.
April 12, 1938. Maabtensz J.—
Carolis Henry Gunawardene (hereafter referred to as the administrator)applied for and was granted letters of administration to administer theestate of his father, D. C. Samarasinghe Gunawardene, deceased.
The other heirs of the deceased were the administrator’s sisters, thefirst to the fifth respondents to the petition for letters of administration.The administrator in his petition and affidavit averred that the deceasedleft property within the jurisdiction of the Court of the nature and valueshown in the schedule annexed to the petition.
This schedule sets out not only the assets but also the debts due by theestate.
The Order Nisi declaring the administrator’s status was made absoluteon November 1, 1935, and he filed his oath of office and bond for the dueadministration of the estate on December 3, 1935.
On December 9, 1935, W. P. P. W. Jayawardene, through Mr. Buultjenshis proctor, filed an affidavit in which he affirmed that a sum of Rs. 920was due to him from the deceased and that “ it is necessary that the saiddebt be included in the list of liabilities of the …. estate ”.
On January 22, 1936, Mr. Buultjens filed a minute of consent from theadministrator and three of the other heirs, the first, third, and fourthrespondents to the inclusion of the debt and moved for notices on thesecond and fifth respondents. They objected to the inclusion of the debt.
At the inquiry held on May 4, 1937, only the fifth respondent’s appear-ance is recorded.
The District Judge held that the debt was due and directed the,administrator to include in the inventory the sum of Rs. 920 with legalinterest from November 1, 1934, as a debt due by the deceased to thepetitioner Weligama Palliyeguruge Peter Wijesekere Jayawardene andordered the fifth respondent to pay the petitioner (Jayawardene) thecosts of inquiry.
The fifth respondent appeals from this order. I do not think it can besupported. Jayawardene’s affidavit is described by the District Judgeas an application under section 718 of the Civil Procedure Code and Ipresume he found jurisdiction to make the order he did in the samesection.
Now the object of section 718 is to compel an executor or administratorto file the inventory and account, The affidavit of Jayawardene washowever filed for the purpose of having the list of liabilities of the estateamended by the addition of a debt of Rs. 920 and not for the purpose ofproving (I quote from section 718) that the “ administrator has failed tofile in Court the inventory and valuation, and account (or a sufficientinventory and valuation, or sufficient accounts) required by law withinthe time prescribed therefor ”. The affidavit was therefore not anapplication under section 718 ; nor does section 718 confer, on a DistrictCourt jurisdiction to order a debt to be added to the list of liabilities orto the inventory.
Section 538 provides for the filing of “ an inventory of the deceased-person’s property and effects" which has to be verified by an affidavit in.the form 92 given in the schedule to the Code. It is clear from the words
MAARTENSZ J.—Silva v. Cumaratunga.
which I have italicized and the form of affidavit that, whatever thepractice may be, a . list of liabilities of a deceased has no place in aninventory of his estate.
The application to amend the list of liabilities in the schedule ofproperties filed with the administrator’s petition for letters of administra-tion cannot therefore be treated as an application under section 718and the section did not confer jurisdiction on the District Judge to holdan inquiry and make the order appealed from. It is accordingly set aside.
The petitioner-respondent (Weligama Palliyeguruge Peter WijesekereJayawardene) will pay the appellant’s costs.
Moseley J.—I agree.
GUNAWARDENE v. JAYAWARDENE