1964Present: Basnayake, C.J., and G. P. A. Silva, 3.
P. RATNAYAKE (nee Perera), Appellant, and CASPERSZ and another,
S. C. 164/61—D. C. Colombo, 16766/NT
Executors and administrators—Petition by legatee to compel executor to make paymentof legacy—Procedure at inquiry—Bight of petitioner to call unlisted witnesses—Money to which a minor is entitled as legatee—Duty of executor to pay it intoCourt—Invalidity of direct payment to the minor—Civil Procedure Code,ss. 121 (2), 175, 553, 554, 720, 721.
The petitioner-appellant was a minor who had been left a legacy of Rs. 5,000,which was to be paid to her on her attaining the age of 18 years. After sheattained that age, and while she was still a minor, she presented a petition to theDistrict Court and asked under section 720 (6) of the Civil Procedure Code thatthe respondent-executors be directed to pay the petitioner the legacy to which shewas entitled. The executors filed an affidavit that the petitioner had already beenpaid the sum of Rs. 5,000 by cheque and that a receipt was obtained from her.The matter was then fixed for inquiry. The petitioner impugned as forgeriesthe endorsement on the back of the cheque as well as the signature on the receipt.At the end of her evidence her Counsel made an application to the Court forleave to call certain persons who, in the Court’s own opinion expressed in thejudgment delivered subsequently, were very material witnesses. The Courtrefused the application stating that “ these are all steps that should have beentaken before coming into Court and not after the executors have given evidenceand after his own client had already given evidence ”,
Held, (i) that, in disallowing the petitioner’s application to call the materialwitnesses, the Court acted contrary to law. The procedure laid down in section721 of the Civil Procedure Code is of a special nature and is not the “ regular ”procedure, and the provisions of sections 121(2) and 175 are not thereforeapplicable to proceedings thereunder.
(ii) that an executor’s liability is prescribed by the Civil Procedure Code,section 353 of which requires that when an executor has in his hands any moneyto which a minor is entitled as legatee, he should pay that money into Court.Accordingly, even assuming that the cheque in the present case was handedto the petitioner, who was a minor, there was no legal discharge of the debt.The petitioner was therefore entitled to the decree she asked for on the groundthat there was no legal payment.
A.PPEAL from a judgment of the District Court, Colombo.
C. Ranganathan, for Petitioner-Appellant.
B. Wihramanaydke, Q.C., with R. L. N. de Zoysa, for Respondents.Respondents.lxvh—23
2—» 9676—1,855 (10/65)
January 22, 1964. Sashayakk, C.J.—
The petitioner who is a legatee under the last will of one PhillipRodrigo Babapulle (hereinafter referred to as the deceased) has filedthis petition under section 720 of the Civil Procedure Code. Thedeceased died on 2nd May 1955 leaving a last will dated 14th January1955 in which he left a number of legacies to his children and otherheirs. The petitioner is a daughter of an adpoted daughter of thedeceased. The relevant portion of the last will reads :—
“ I direct my Executors to sell by private treaty or public auctionall that house and garden called c Raysland ’ bearing AssessmentNo. 47, Training School Road aforesaid in which I now reside, andapply the proceeds of the sale thereof together with all moniesrecovered from mortgage debtors and others owing monies to me,and monies lying to my credit in any Bank or Banks, after the paymentof funeral and testamentary expenses and Estate Duty, for the paymentof the following legacies :—” (here follows a list of seventeen legacies).
We are concerned with the eighth of the legacies. The relevant paragraphof the will reads :
“ To the seven (7) children of my said adopted daughter namely :—Anton, Stephanie, Dottie, Philomena, Patrick, Louis and Bernadettea sum of Rupees Thirty-five thousand to be divided equally andRupees Five thousand (Rs. 5,000) to be paid to each on his or herattaining the age of eighteen (18) years ; in the event of any one ormore of the said children dying before the age of eighteen (18) theshare or shares of the child or children so dying shall be divided equallyamong the surviving children and paid to each survivor along withhis or her share of Rupees Five thousand (Rs. 5,000) aforesaid.”
On 14th March 1959 the petitioner filed a motion and moved theCourt to impound the receipt filed by the executors along with the finalaccount. The receipt purported to come from her. She asked thatit be kept in safe custody as she alleged it was a forgery, and the receiptwas accordingly placed in the safe of the Court. On 30th March 1960the petitioner presented a petition to the District Court and asked underthe second limb of section 720 of the Civil Procedure Code that therespondent-executors be directed to pay the petitioner the legacy shewas entitled to. On presentation of this petition, the District Courtissued a citation to the following effect:—
“ Take notice that you are hereby required to show cause, if any’on the 23rd day of June 1960, at 10.45 o’clock in the forenoon, whythe prayer of the petition of the petitioner (A copy of the petitionxb attached hereto) should not be allowed.”
Thereupon the respondents to the petition filed an affidavit in whichthey stated that a sum of Rs. 5,000 was paid to the petitioner on 12thSeptember 1958 by cheque No. A/2-813119 drawn by the executorsin favour of Miss C. A. Philomena Perera and that the payment wasmade in terms of clause eight of the Last Will of the deceased and thata receipt was obtained from her (R35) and that it was filed inthe testamentary proceedings. They asserted that the petitioner hadbeen paid and settled in full, and resisted her claim. Section 721 whichprescribes the procedure to be followed on an application under section720 reads—
“ On the presentation of such petition the court shall issue acitation accordingly, and upon the return thereof shall make suchdecree in the premises as justice requires. But in any case wherethe executor or administrator files an affidavit setting forth factswhich show that it is doubtful whether the petitioner’s claim is validand legal, and denying its validity or legality absolutely, or uponinformation and belief, or where the court is not satisfied that thereis money or other movable property of the estate applicable to thepayment or satisfaction of the petitioner’s claim, and which maybe so applied without injuriously affecting the rights of others entitledto priority or equality of payment or satisfaction, the decree shalldismiss the petition, but such dismissal shall not prejudice the rightof the petitioner to an action or accounting.”
In the instant case instead of following the procedure prescribedin the section quoted above the learned District Judge made the followingorder:—
“ Objections on 10.11.60 ”
and thereafter fixed the matter for inquiry on 26.1.61. The twoexecutors gave evidence and stated that the petitioner came to themalong with her parents, and a cheque bearing number A/2-813119 (R3)for Rs. 5,000 was written out, signed and delivered to her by them anda receipt was obtained from her. That cheque is a production in thiscase and it bears on it the words “ C. A. Philomena Perera ” and“ Rupees five thousand ” and the signatures of the executors also .appearon it. The cheque appears to have been paid by the bank to whoeverpresented it and wrote on the back of it the name of the payee. Thereceipt (R4) which is produced in these proceedings reads as follows :—
“ Received from the executors of the estate of the late Mr. P. R.Babapulle, cheque No. A/2-813119 dated 12th September 1958drawn on the Bank of Ceylon by the said executors in my favourfor the sum of rupees five thousand (Rs. 5,000) in full payment ofthe Rupees five thousand (Rs. 5,000) due to me under the last willof the said deceased.”
It is signed below as “ C. A. Philomena Perera * Hie petitionerimpugns the signature on the back of the cheque as well as the signatureon the receipt.
In a letter dated 13th August 1958, a month before the chequewas made out, addressed to the executors of the estate of the deceasedthrough their Proctors she had informed the executors as follows :—
“ I, Catherine Agnes Philomena Perera, have been left with Rs‘5,000 (Rupees Five thousand only) in cash by the will of my lategrandfather, Mr. Felix Babapulle. My second eldest sister PaulinPerera was also left with Rs. 5,000 (Rupees Five thousand) in cashby my late grandfather’s will.
Both these sums are in the possession of the court. On the 1st ofApril 1958 my minor sister’s money was removed from the possessionof the court by my father and squandered after her consent had beenobtained under the false pretence of utilising her money for her future.
Now my parents have threatened me to give my consent, so thatthey may withdraw my share too from the court when I attain eighteenyears of age in August this year, and use the money for their ownpurposes.
Therefore, I wish to transfer my money from the Court’s possessionto a savings Bank Account as I am 18 years of age now. This trans-ferring of the money to a Savings Bank Account should be done with-out the knowledge of my parents and the correspondence that maytranspire during the transaction should be addressed to me personallyto the address given above.
I enclose a certified copy of my birth certificate and my Post OfficeSavings Bank Book.”
This letter is signed “ Philomena C. Perera ”. It was after the receiptof this letter and after the order for the filing of final account that thealleged payment of money has taken place. The executors deniedany knowledge of the receipt of the letter, and their Proctor has notexplained why he did not forward it or communicate its contents tothe executors. In the course of the inquiry the petitioner gave evidenceand stated that at the relevant time she was not living with her parentsand that she was living with her friends whom she referred to as“ Yapas ” and she stated that on the day she left her parents’ houseshe made an entry at the police station. At the end of the evidenceof the petitioner, her counsel made an application to the Court forleave—
(а)to produce a certified copy of an entry alleged to have been made
by her at the police station when she left her parents’ house,
(б)to call expert evidenoe as to the handwriting, and(c) to call Mr. and Mrs. Yapa.
In refusing the application the learned District Judge said—
" I intimate to Mr. Somasunderam that these are all steps thatshould have been taken before coming into Court and not after theExecutors have given evidence and after his own client had alreadygiven evidence.”
Without the assistance of the vital evidence which the petitionerdesired to place before the Court, the learned District Judge gavejudgment for the executors. In doing so, he has stated—
“ . . . Philomena’s evidence however is that at the time Mr.Ratnayake made this application to the District Court of Kandyshe had left her parents’ house and had gone to reside with somefriends of hers known as the Yapas in Kandy. She states thaton the 12th of September 1958 she could not have come along withher parents either tc the house of Mr. Caspersz or to the house ofMr. Britto Muthunayagam to withdraw this sum of Rs. 5,000.If that is so the simplest thing would have been to summonthe Yapas to give evidence on her behalf. The Yapas are aliveand available to give evidence. I fail to understand why they have notbeen summoned to give evidence in the first instance itself in thiscase. It is also in evidence that Philomena made an entry at thePolice Station when she went to reside with the Yapas. Again Ifail to understand why this entry made at the Police Station hasnot been produced. This would have shown clearly the date onwhich Philomena left the house of her parents.”
It is difficult to reconcile the learned District Judge’s action in refusingto permit the calling of the Yapas, the production of a certified copyof the entry made by the petitioner at the police station, and the callingof an expert on handwriting, with his action in commenting in hisjudgment on the absence of the very evidence he had disallowed. Inour opinion the learned District Judge not only placed himself at agreat disadvantage when he disallowed the petitioner’s application toplace that evidence before the Court, but he also acted contrary to law.
The procedure laid down in section 721 of the Civil Procedure Codeis of a special nature and is not the “ regular ” procedure, and theprovisions of sections 121(2) and 175 are not therefore applicable toproceedings thereunder. The learned Judge’s disbelief of the petitionertherefore is based on a situation which he himself created by disallowingcounsel’s application to call those witnesses. His judgment on factsis therefore vitiated by this inherent defect. There is another importantaspect of this case which has not received sufficient consideration atthe trial. The petitioner was at all material times a minor. Whenthe deceased died, she was about 14 years of age. She reached the ageof 18 years on 8th August 1958 and even at the time she filed this petitionshe was a minor. Section 553 of the Civil Procedure Code provides—“ Every executor and administrator shall file in the District Cotut,on or before the expiration of twelve months from the date uponwhich probate or grant of administration issued to him, a true account
2*—R 9676 l ( ji !
of his executorship or Administration, as the case may be, verifiedon oath or affirmation, with all receipts and vouchers attached, andmay at the same time pay into court any money which may havecome to his hands in the course of his administration to which anyminor or minors may be entitled.”
In the instant case the final account had not been filed till27th November 1958 although according to the Code they should havebeen filed before 29th November 1956. The question that arises fordecision is whether the executor’s obligation to pay the petitioner th.9sum of Rs. 5,000 was legally discharged by their payment by a chequefor Rs. 5,000 to her, a minor. The circumstances surrounding thispayment as stated above are not satisfactory and one important featurethat the executors have not explained satisfactorily is why they paidby cheque despite the letter she wrote to them through their Proctorsrequesting them not to pay the money to her father and expressing herwish to get this sum of money deposited in the Post Office Savings Bank.It would appear from R12 that the petitioner had the impression thatthe money was in the custody of the Court and that her father wasmaking arrangements to withdraw it from there and utilize it for hisown purposes. The apprehension expressed in her letter gains supportfrom the fact that the executors state that both the father and themother were present when they handed the cheque to her. The receiptthat was produced as having been furnished by the petitioner acknow-ledges the receipt of a cheque bearing number A/2-813119 dated 12thSeptember 1958 for Rs. 5,000. Even assuming that she went withher parents to the executors and received the cheque referred to in thereceipt, she was at the time under the influence of the parents whom•he alleged were making arrangements to withdraw her money andutilize it for their own purposes. The question is, even assuming thatthe cheque was handed to the petitioner, whether there has been a legaldischarge of the debt, and if not, whether the petitioner is entitled to,the remedy she seeks.
Voet states the Roman-Dutch Law on this point thus (Voet’sCommentary 1, Book IV, Title 4, section 22)—
“ . . . But if payment has been made to a minor of what was eitherowned naturally to him or both naturally and civilly together, andif indeed the guardian’s authority and a decision of a judge supportit, the acceptance of payment by the minor will so far avail the debtortowards a complete discharge that no remedy or restitution againstit need be feared.
But if on the other hand guardian’s consent and order of judgeare wanting, then ipso jure and short of any relief from the praetora release does not befall the debtor further than in so far as the minorappears to be the richer from euch payment. (Inst. 2, 8, 2 : HugoGrotius, Introduction, 3, 30, on. 33, 34).
But if the magistrate’s order were neglected and only the authorityof tutor or curator were attached, then payment made after thatfashion did indeed ipso jure release a ward’s debtor, yet the fullestsecurity did not accrue thereby to the debtor, but after a hearingof the cause on proof of damage the relief due to age was vouchsafedagainst the payment. An exception was when rents and annualreturns not going beyond a limit of two years and an amount of onehundred gold pieces had been so paid. And to that exception manyadd also a second in the case of the restoration of a fideioommissionwhich was due to the minor; for they think that it was provided inthe law cited below that that may be done without an order of court.
Meantime the truer view is that in modern law that ordinance ofJustinian, by which the intervention of a judicial decision was requiredfor the safe making of a payment to minors has almost lapsed intodisuse. The result is that nowadays a complete release befalls award’s debtor, if only he has paid the actual guardian of a minorcreditor. An exception is when payment of a debt of very heavyamount is in question. In that case they require an order of theOrphan Chamber, lest he who paid should be forced to pay over againin a case where the ward at the end of the guardianship cannot onaccount of the guardian’s poverty recover what was paid.”
Whatever may be the common law liability of a debtor other than anexecutor who pays a debt due to a minor direct to the minor, an executor’sliability is prescribed by the Civil Procedure Code and he is bound toobserve what is required by the Code. Section 553 requires that any moneyto which any minor or minors may be entitled which may have comeinto the hands of an executor should be paid into Court and unless thatis done within a year after probate or administration granted undersection 554 an executor becomes liable to pay interest on ihe moneyout of his own funds unless he can show good and sufficient cause fordetaining such money. This aspect of the law has not been consideredat the inquiry.
In our opinion the petitioner is entitled to the decree she asks for onthe ground that there has been no legal payment. We therefore allow theappeal and direct that decree be entered as prayed for directing theexecutors to pay the petitioner a sum of Rs. 5,000. As the petitionerhas not claimed interest on the money as provided in section 554 andas the matter was not put in issue between the parties in the lower Cour twe ma ke no order as to interest.
The appellant is entitled to costs both here and the Court below.
G. P. A. Silva, J.—I agree.
P. RATNAYAKE (nee Perera), Appellant, and CASPERSZ and another, Respondents