Pe.iris v. Ellepola
1974 Present : Alles, A.C.J., Perera, J., and Vythialingam, J.
P. R. S. PEIRIS, Petitioner, and M. A. ELLEPOLA (AdditionalPublic Trustee) and another, Respondents
S. C. 293/74—Application for a Mandate in the nature of a Writof Certiorari under the provisions of the Administration ofJustice Law, No. 44 of 1973
Administration of estates—Administration of Justice Law, No. 44 of 1973—Section 308—Applicability to testamentary proceedings whichcommenced prior to the Act—Section 308 (5)—Action taken byPublic Trustee thereunder—Requirement of prior evidence frompersons interested in the estate.
The Public Trustee has power to act under section 308 of theAdministration of Justice Law, No. 44 of 1973, even in respect ofestates concerning which testamentary proceedings commencedprior to the date when the Law came into operation.
When a person claims letters of administration to the estate of adeceased person, the Public Trustee has no jurisdiction to takeaction under section 308 (5) of the Administration of Justice Lawin the absence of evidence by affidavit or otherv/ise from personsinterested in the estate that the estate is likely to suffer as a resultof a valuable asset in it being left in the possession of the applicantfor letters of administration.
Application for a Writ of Certiorari.
R.Manikkavasagar, for the petitioner.
S.W. B. Wadugodapitiya, Senior State Counsel, for the 1strespondent.
2nd respondent absent and unrepresented.
Cur. adv. vult.
ALLES, A.C.J. J'ciria v. klllepola,
June 28, 1974. Alles, A.C.J.—
The petitioner in this application claims to have married thedeceased G. H. Karunatilleke by habit and repute and statesthat they were living as husband and wife for 14 years, and thatthere is one child by the marriage, aged 12 years. The deceaseddied intestate, and his estate consisted inter alia of a Ford Angliamotor car bearing the registration No. 4 Sri 1505, and a house andproperty bearing assessment No. 22, Arethusa Lane, Wellawattein extent 29.9 perches.
The 2nd respondent who is said to be a brother of the deceasedfiled Testamentary Case No. 26946/T in the District Court ofColombo seeking to administer the estate of the deceased. On orabout November, 1973, the petitioner too filed Testamentaryaction No. 27224/T in the District Court of Colombo claimingletters of administration to the estate of the deceased. Inaccordance with the provisions of the Administration of JusticeLaw, No. 44 of 1973, both these cases, i.e., 26946/T and 27224/Twere transferred to the Probate Office, Colombo.
On 26th March, 1974, Attorney-at-Law Mr. Manikkavasagarappeared on behalf of the petitioner and stated to the AdditionalPublic Trustee that his client was desirous of retaining possessionof the motor car until the court determines the rights of parties.The Additional Public Trustee, who is the 1st respondent to thisapplication, made order that the petitioner should deposit cashsecurity in a sum of Rs. 20,000 of which a sum of Rs. 10,000 wasto be deposited to the credit of the proceedings in the said caseon or before the 16th of April, 1974. If this sum was depositedon the due date, she was granted time till 31st May, 1974, todeposit the balance sum of Rs. 10,000. She was also required tosubmit to Probate Office every month a Report from MessrsRichard Pieris & Co., Ltd., to the effect that the car had beenfully serviced and maintained. The Additional Public Trusteemade further order, that if she failed to deposit the two sumsof Rs. 10,000 on or before the given dates, he would take stepsto take possession of the vehicle.
This application in the nature of a Writ of Certiorari is inrespect of order made by the 1st respondent. It was urged bycounsel for the petitioner that since testamentary proceedingsin this case had commenced before the Administration of JusticeLaw came into operation, the provisions of the Administrationof Justice Law had no application to Testamentary Proceedingsthat were taken prior to the appointed date. State Counselhowever submitted that the order of the 1st respondent was aproper order which could have been made under section 308 (5)of the Administration of Justice Law. It seems to us on aconsideration of the provisions of section 308 that the law
AI.LES, A.C.J.—Peiris v. EUepola
intended that in certain circumstances the administration ofestates should be undertaken by the Public Trustee. Thesecircumstances-are set out in section 308 (1), (2), (3) and (5) ofthe Act, and it is apparent that the intention of the legislature wasto protect the estates of deceased persons for the benefit of theheirs or next of kin or other persons lawfully entitled to theproperty of the deceased. The Public Trustee is entitled to actunder this section even in respect of estates in which Testamen-tary Proceedings have been taken prior to the date when theAdministration of Justice Law came into operation.
Learned counsel for the State seeks to support the order ofthe 1st respondent under section 308 (5) of the Law that it wasin pursuance of such powers that he directed the petitioner tofurnish security and submit certain monthly reports to him inregard to the car. There are, however, two conditions that mustbe satisfied before the Public Trustee is entitled to take stepsunder this section. Firstly, the property of the deceased mustamount to or exceed Rs. 20,000 in value, and secondly, the PublicTrustee must be satisfied “ that the estate is likely to be interferedor intermeddled with and that the assets of the estate are likelyto be in jeopardy of being lost to the heirs or to other personslawfully entitled to or having any interest in the estate ”. Inthis case although there can be no doubt that the assets of thedeceased were over Rs. 20,000 in value, having regard to thepresent day value of motor vehicles, and property within theMunicipal limits of Colombo, it does not appear to us that thePublic Trustee was justified in taking action under section 308 (5)in the absence of evidence by affidavit or otherwise from personsinterested in the estate that the estate was likely to suffer as aresult of this vehicle being left in the possession of the petitioner.Therefore, in the circumstances of this case, although we holdthat the Public Trustee has power to act under section 308 (5) inan appropriate case even though testamentary proceedings hadbeen commenced before the Administration of Justice Law cameinto operation, nevertheless one of the conditions precedent tothe exercise of that power not having been established, we holdthat the Public Trustee acted without jurisdiction in makingthe order of 26th March, 1974.
We make order, therefore, quashing the order of the PublicTrustee dated 26th March, 1974. There will be no costs of thisapplication.
Perera, J.—I agree.
VvthialingaMj J.—I agree.
A 09508 (74/09)
P. R. S. PEIRIS, Petitioner, and M. A. ELLEPOLA (Additional Public Trustee) and