1961Present: Basnayake, C.J., and Sansoni, J.NAGAPPAN, Appellant, and SATCHITHANANDA and others,
C. 96160—D. C. Colombo, 17493IT.
Administration of estates—Administrator's claim to recover property alleged to belongto estate— Denial of his right by opposing party—Maintainability of claim—Proceedings to discover property withheld—Procedure—Incapacity of Court toappoint an administrator pendente lite—Civil Procedure Code, ss. 712, 713,714—Estate Duty Ordinance, s. 52.
A person, claiming to be entitled to the grant of administration of a deceasedperson’s estate, applied to Court for an order that the appellant should handover to him property alleged to belong to the estate. The appellant disputedthe right of the deceased to the property and asserted that he was part ownerand entitled to the possession thereof.
Held, (i) that the English law which empowers the Court to appoint anadministrator pendente lite has no force in Ceylon. The administrator cannotbe given authority by Court to exercise the duties of his office until he receivesthe letters of administration after due payment of estate duty in terms ofsection 52 of the Estate Duty Ordinance.
that in a proceeding under Section 712 of the Civil Procedure Code, theform of the prescribed citation should be strictly followed.
that Sections 712, 713 and 714 of the Civil Procedure Code do not enablean executor or administrator to recover property in cases in which theadministrator’s right to recover that property is disputed. Those Sectionsprescribe a procedure by which an executor or administrator may obtainpossession of property which ought to be delivered to him and in regard towhich there is no denial of his right. In a case in which there is a denial of hisright, a regular action is the proper remedy.
Appeal from a judgment of the District Court, Colombo.
H. V. Per era, Q.C., with M. Tiruchelvam, Q.C., and K. Sivagurunathan,for Appellant.
N.Kumarasingham, with Bala Nadarajah, for 1st Respondent.
B. WikramanayaJce, Q.C., with S. Sharvananda, for 2nd Respondent.No appearance for 3rd Respondent.
Cur. adv. vuit.
3—a 10074—1,865 (11/06)
July 12, 1961. Basnayake, C.J.—
This is an appeal from a decision of the District Judge over-ruling theobjections of the appellant to the application of KumarasamySatt hithananda (hereinafter referred to as the applicant) for an orderthat he should hand over to him the following :—
" (a) The entire assets of the estate left by the deceased on his deathtogether with all additions and accretions.
(6) All books of accounts, ledgers, day books, rough books, cash books,journals, cheque books, cheque counterfoils, Bank statement ofaccounts, receipts, vouchers, and other papers.
Income Tax returns and files.
A full list of all the immovable properties ; a certified list of all
liabilities of the business as at date of handing over.
All movables together with an Inventory of all the movables in the
business carried on by the deceased and now carried on by the2nd respondent including cash in hand at the time of handingover.
(/) Annual balance sheets of the business from 16th September 1956 todate of handing over of possession within fourteen days ofhanding over, …”
In his application the applicant prayed :—
(а)that the appellant be ordered to hand over to him all mattersreferred to above, and
(б)that he be ordered to give him all information about the businessand all papers and sign all the necessary documents.
Among the objections taken by appellant to the application are thefollowing :—
“ (a) There is no provision in law for the application that has beenmade by the petitioner.
(6) Even if the law permits this application, it is not competent for thepetitioner to make this application before he is clothed withletters.
(c) The prayers ‘A’ and ‘B’ are vague and indefinite and incapable ofbeing carried out. ”
The learned District Judge held that the applicant was entitled to takecharge and possession of the estate of the deceased on the Court makingan order declaring him entitled to the grant of letters of administration,that he need not wait to exercise his powers until the letters of adminis-tration are issued to him, and that he was entitled to an order as prayedfor in his petition.
It is not necessary for the purpose of this appeal to go into the matterswhich are in dispute between the widow of the deceased and the appellant,who is his adopted son.
The main question we have to decide is whether the applicant is entitledto exercise the powers of an administrator before letters of administrationare issued to him, by virtue of the following order :—
“I appoint Mr. Kumarasamy Satchithanand i as administratorpendente lite. He will make the necessary arrangements with theCommissioner of Estate Duty with regard to the payment of estateduty. When the Provisional Certificate has been issued. Letters maybe issued to him. He will be entitled to take charge of the estateforthwith.”
The expression “ administrator pendente lite ” is unknown to our CivilProcedure Code, which makes no provision for the appointment of anadministrator pending the decision of a dispute as to the person who isentitled to the grant of letters of administration. Administrator pendentelite is an office known to the English legal system and is now expresslyprovided for by statute. The statement of the English Law on thissubject in Williams on Executors and Administrators—13th Ed. (Vol. 1,p. 226) is as follows :—
“ S. 381. Former Law
In case of a controversy in the Spiritual Court concerning the right ofadministration to an intestate, it seems to have been always admitted,that it was competent to the Ordinary to appoint an administratorpendente lite. Though it was at one time considered that a grant of thisspecies of administration was void where the controversy before theOrdinary respected a will, it has long been settled that the court hadpower to grant administration pendente lite whether the dispute relatedto an executorship or to the right to administration.
The Court of Probate, as constituted under the Court of Probate Act,1857, was empowered by section 70 of that Act to grant administration‘ pending any suit touching the validity of the will of any deceasedperson, or for obtaining, recalling or revoking any probate or any grantof administration.’ Section 70 applied only to personal estate, butsection 71 gave the Court of Probate power to appoint a receiver ofreal est te, though only pending a suit “ tou hing the validity of anywill ” of any deceased person by which his real estate might beaffected.
Though Sections 70 and 71 are repealed as to death since 1925, theycontinue to apply in cases of death before 1926. If the deceased diedbetween 1897 and 1926 the grant to the administrator pendente lite,as a rule, and unless the order otherwise directs, includes the real andpersonal estate. Generally it will not be so made unless the heir-in-lawhas been served with notice and is made a party to the application ; butmch notice may be dispensed with in special circumstances.
382. Modern Law
With respect to deaths occurring after 1925, Sections 70 and 71 arereplaced by Section 163 (1) of the Judicature Act, 1925 which providesthat :
‘ Where any legal proceedings touching the validity of the will ofa deceased person, or for obtaining, recalling or revoking any grantare pendir g, the High Court may grant admi)listration of the estateof the deceased to an administrator, who shall have all the rightsand powers of a general administrator, other than the right ofdistribute g the residue of the estate, and every such administratorshall be subject to the .mmediate control of the court and act underits direction/
In the case of deaths after 1925, an order for the appointment of anadministrator 'pendente life provides for the administration of the realand personal estate, unless the judge otherwise directs.”
The English Statutes referred to above which empower the Court toappoint an administrator pendente lite have no force in Ceylon. But aslearned counsel for the appellant did not canvass the power of the DistrictCourt to make such an appointment it is not necessary to decide thatquestion in the instant case. An examination of the relevant provisionsof Chapter LIV reveals that they do not enable an executor or adminis-trator to recover property in cases in which the administrator’s right torecover that property is disputed. Section 712 reads :
“ (1) An executor or administrator may present to the court fromwhich grant of probate or administration issued to him a petitionentitled as of the action in which such grant issued, setting forth uponknowledge, or information and belief, any facts tending to show thatmoney or other movable property which ought to be delivered to thepetitioner, or which ought to be included in his inventory and valua-tion, is in the possession, under the control, or within the knowledge orinformation of a person who withholds the same from him, or whorefuses to impart any knowledge or information he may haveconcerning the same, or to disclose any other fact which will in any wayaid the petitioner in making discovery of such property, so that itcannot be inventoried and valued ; and praying an inquiry respectingit, and that the person complained of may be cited to attend theinquiry and to be examined accordingly.
“ (2) The petition may be accompanied by affidavits or otherevidence tendir g to support the allegations thereof.
“ (3) If the court is satisfied upon the materials so presented thatthere are reasonable grounds for inquiry, it shall issue a citationaccordii gly, which may be made returnable forthwith, or at such futuretime as the court shah direct. ”
No grant of administration has issued to the petitioner, and the order isnot the issue of a grant of administration. The administrator has r.opower to exercise the duties of his office until he receives the letters ofadministration. The order which reads “ He will be entitled to takecharge of the estate forthwith ” is not one the learned Judge has power tomake. But in the instant case even if the applicant had actually receivedthe lett ers of administrat ion the appellant would still resist his applicationbecause his position is that the property in question is not property whichought to be delivered to the administrator. A further objection is raisedon the ground that summons and not a citation has issued on theappellant. The form of citation to be used in a proceeding undersection 712 is set out in the Schedule to the Code and is as follows :—
Whereas one A. B. (executor of the last will of, deceased,
or administrator of the estate and effects of, deceased)has presented a petition to this court praying that you may be cited toattend an inquiry whether (set out shortly the substance of the application)and whereas the said A. B. has satisfied this court that ihere arereasonable grounds for such inquiry: You are hereby cited and
required personally to be and appear before this court on the
day oi,19, ato’clock of the forenoon, then
and there to answer (set out what the subject of the inquiry is).
(Signed, t&c.) District Judge.”
Clearly a summons is not a citation and where the law prescribes aprocedure to be observed in seeking a special remedy that procedure andno other should be followed. The complaint of the appellant’s counsel thatthe wroi ig procedure has been followed is justified, the more so becausesections 713 and 714 contain special provisions in regard to a citationissued under Section 712. Those sections read :
“713.(1) There shall be annexed to, or endorsed on, the citation
an order signed by the Judge, requiring the person cited to attendpersonally at the time and place therein specified.
“ (2) The citation and order must be personally served, and theservice shall be ineffectual unless it is accompanied with payment ortender of the sum required by law to be paid or tendered to a witnesssubpoenaed to attend a trial in a civil court.
“ (3) Failure to attend as required by the citation and order may bepunished as a contempt of court.
2*R 10074 (11/65)
‘ 714.(1) Upon the attendance of a person in obedience to such
citation and order, he shall be examined fully and at large, on oath oraffirmation, respecting any money or other property of the testator orintestate, or of which the testator or intestate was in possession at thetime of or within two years preceding his death.
“ (2) A refusal to be sworn or to answer any question allowed by thecourt is punishable in the same manner as a like refusal by a witness ina civil case.
“(3) In case the person cited puts in an affidavit that he is the ownerof any of the said property, or is entitled to the possession thereof byvirtue of any lien thereon or special property therein, the proceedingsas to such property so claimed shall be dismissed.”
If the application had been properly made under the provisions ofChapter UV the Court would have had to dismiss the proceedings asrequired by section 714 (3), because the appellant disputes the right of thedeceased to the property claimed and asserts that he is part owner and isentitled to the possession thereof. A?i administrator cannot maintain anaction qua administrator without first obtaining letters of administrationas section 547 prohibits it. Chapter LIV provides a procedure by whichan executor or administrator may obtain possession of property whichought to be delivered to him and in regard to which there is no denial ofhis right. The provisions of that Chapter cannot be invoked in a case inwhich there is a denial of his rigid . In such a case a regular action is theproper remedy.
Learned counsel for the respondent stated that the application was notmade under the provisions of Chapter LIV but that the applicant soughtto invoke the inherent powers of the Cotut in order that it may make anorder necessary for the ends of justice. It is not necessary for the ends ofjustice that a person should be ordered to hand over to an administratorpendente life property which he claims and the administrator’s right towhich he denies.
As we have observed above the applicant has not obtained the grant ofletters of administration and until the estate duty is paid he is not entitledto obtain letters for the reason that the Estate Duty Ordinance, section 52,prohibits the grant of probate or letters of administration until a certi-ficate from the Commissioner of Estate Duty as provided for by thatsection is produced. In this case it is not claimed that such a certificatehas been produced.
The applicant is therefore a person to whom the Court has no power inlaw to grant letters of administration until he complies with the require-ments of the Estate Duty Ordinance.
We allow the appeal and set aside the order of 14th November, 1960.The appellant is entitled to the costs both here and below.
Sansoni, .1.—I arrree.
A ppeal allowed.
NAGAPPAN, Appellant, and SATCHITHANANDA and others, Respondents