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PONNAMMA v. ARUMOGAM.
On A-ppeal from the Supreme Court of Ceylon.
Action for partition—Death of intestate before' the passing of the Civil Procedure
Procedure Code, 8. 647—Ordinance No. 12 of 1904, ss. 2, 3.
In a suit brought in 1898 for partition, or alternatively for a sale ofcertain parts of an intestate estate, it appeared that the intestate haddied, in 1884; that no letters of administration had been taken out; thatthe widow and son had made a division of the immovable estate betweenthemselves end the other heirs, and executed certain notarial deeds -ofgift for the purpose of effecting such division, and various dealings with* their respective shares had been made by the grantees,—
Held, that the suit, which was one for the recovery of property withinthe meaning of section 547 of the Civil Procedure Code, was notmaintainable without administration to the intestate’s estate.
Fernando v. Fernando (4 N. L. R. 201) and Guneratne, v. Hamine(7 N. L. R. 299) approved.'
No partition could be effected by the Court without a completeadministration of the whole of the intestate's estate, which wouldinclude an account of the payment of his debts, and of the dealingsof the grantees, with their respective shares, so as to adjust theirrespective rights.
It is not the practice of the Privy Council to entertain any otherappeal than one strictly so called, in which the question is whether theOlder of the Court from which the appeal is brought was right on thematerials which that Court had before it.
Silva v. Stoaris (1 Balasingham's Rep. 61) referred to.
PPEAL by special leave in formd ‘ pauperis (see [190%)A. C. 561) from a decree of the Supreme Court of Ceylon
(January 4, 1900) setting aside a decree of partition of the DistrictCourt of Badulla (October 16, 1899) and dismissing the plaintiff’saction with costs.
The facts sufficiently appear in the judgment.
R. W. Lee, F. if. M. Corbet, and A. St. V. Jayewardene appearedfor the appellant.
The respondents did not appear.
The judgment of their lordships was delivered by Lord Davey.In the year 1884 one Sinnatambi, a native of Ceylon, beingpossessed of property of considerable value, consisting chiefly oflands and houses, died intestate. His heirs, according to the lawof Ceylon, were, his widow, the sixth respondent, who wasentitled to one-half share, a.spn and five daughters, of whom theappeMant is one, and a grandchild, daughter of a deceased daughter,who were entitled to the other half share in equal shares.
•Present: Lord Davey, Lord Robertson, Sir Arthur Wilson.' and Sir JohnBonser.
March 2, 3*May 17
March 2, 3,May 17.
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No letters of administration were taken out, or have sincebeen taken otit to the intestate's estate. But the widow and sontook upon themselves to make a division, in pursuance, it is said,of the intestate’s verbal directions, of the immovable propertybetween themselves and the other heirs, and executed certainnotarial deeds of gift for the purpose of effecting such division.The appellant apparently had possession of the lands allotted toher and dealt with part thereof by letting it out for the culti-vation of kurakkan. One; of the daughters, the respondentMariyayi, sold the property allotted to her and received thepurchase money. The son paid debts of the intestate and mort-gaged certain shops retained by him for the purpose, and alsomade a gift of lands of his own to provide a portion for thegrandchild. And there seem to have been other dealings by theparties with the lands allotted to them, the particulars of whichare not very clearly stated. What became of the movable propertydoes not appear. Probably it was of small amount. There is no&sufficient on the record to show whether the division, thoughirregularly made, was or was not a fair one.
On the 4th May, 1898, the appellant and her husband commencedthe present action for partition, or alternatively a sale of certainparts of the intestate’s immovable property (not including thelands which had been sold by Mariyayi). In their plaint* theyalleged that since the death of their father the family had beenpossessing and holding the said lands undividedly and in common.The principal defence by those defendants who opposed theplaintiffs was that they had acquired a title to the lands allottedto them by prescription.
The Judge of the District Court held that no single heir had proveda prescriptive title against any of the other heirs in respect of anyof the lands which formed the subject of the action. And by hisdecree dated the 16th October, 1899, it was ordered that the lands insuit be partitioned, allotting to the parties their respective shares.
This decree was reversed on appeal in the Supreme Court, and bythe decree of that Court dated the 4th January, 1900 (nowunder appeal) the action was dismissed with costs. The reasonsof the learned Judges are not very clearly stated, but they appearto have thought that the division was a fair one and that thecwidow and son had honestly administered the estate in accordancewith the intestate's instructions and that time had confirmedtheir acts. “It would be wrong, " said Mr. Justice Withers, “ inevery sense of the word to disturb the division of the propertyas effected by them, to say nothing of the dispositions andencumbrances which have supervened."
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Their lordships agree with the judgment of the Supreme Court,though not quite for the same reasons. The first objection to the
action is the absence of any administrator on the record. This is
not merely a technical or a fiscal objection, but one of substance.
The Charter of Justice of 1833 has been construed in the CeylonCourts as having introduced into the Island the English Law ofExecutors and Administrators with this variation, that it was madeapplicable to the immovable property as well as the movable pro*perty of a deceased person. Buies were drawn up in the SupremeCourt in 1833 for carrying into effect the provisions of the Charterof that year. But the procedure being a graft upon the Roman-Dutch Law and being new to the people, an exception was allowedto be made in favour of small estates. By the Civil ProcedureCode of 1889 that practice received legislative sanction. By section.
545 it was made obligatory on the Court to appoint, an administratorwhere the estate exceeds Rs. 1,000 in value, and by section 547 it wasenacted that no- action should be maintainable for the recovery ofany property included in the estate of a deceased person where suchestate exceeds in value Rs. 1,000, -unless grant of probate or lettersof administration should have been first issued to some personas. executor or administrator of the deceased. It has been said bylearned Judges in the Supreme Court of Ceylon that before theenactment of the Civil Procedure Code the same rule prevailed,and that the only effect of section 547 was to determine what wasa small estate. See the Judgment of Bon$er, C.J., in Fernando o.Fernando/ 4 Geyl. N. L. B.,201, at page 206, quoting Clarence,
A.C.J., in an earlier case, and that of Layard, C.J., and Wendt, J., inOnnaratne v. Hamine, 7 Geyl. N. L. R. 299. In the latter caseWendt, J., said: "It is. plain that if parties were enabled byagreement to waive the necessity for administration, the intentionof the Legislature would be frustrated. Hence it is that, when-ever it appears in -the course of a case which a Court is tryingthat administration is necessary, it becomes the duty of thatCourt to see that the provisions of section 547 are complied withbefore the litigation proceeds any further. "
Even if their lordships thought that the ccAistruction given tothe Charter of Justice and the Code of Civil Procedure by theColonial Court was doubtful, they would hesitate to over-rule asettled and uniform course of decision on a question of this kind.
But they are of opinion that the learned Judges have taken a*correct view, and their decisions ought to be- followed. Thisappeal must therefore be decided on that footing, and not accord-ing to' ifce undiluted principles or rules of the Roman-DutchLaw.
ft–—J. X. B6920 (4/51)
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jt was, however, contended that section 547 was not applicableto the present case on two grounds. The first ground was that,
* by Ordinance No. 12 of 1904, section 2, a proviso was added to
section 647 to the effect that no action for the recovery of, orinvolving proof of title to any property, movable or immovable,included in the estate of any person who died intestate beforethe commencement of the Ordinance of 1889 should be defeatedby reason only that letters of administration to the estate of suchperson have not been issued. Secondly, it was said that thisaction is not for the recovery of any property within the meaningof section 547.
To the first argument it is sufficient answer to point out that the
judgment of the Supreme Court was given more than four yearsbefore the new Ordinance was passed, and their lordships haveonly to say whether that judgment was right when it was given.It is unnecessary, therefore, to discuss the question whether anyintention is sufficiently shown to take this case out of the well*known rule on the construction of statutes, that the rights of theparties must be decided according to the law as it existed whenthe action was commenced.
On the second point their lordships are of opinion that thisaction, though in form an action for partition only, is for therecovery of property. The appellant is seeking to recover hershare as one of her father’s heirs in the property which has beenirregularly alienated in favour of the other heirs, and is in theirpossession, or has been dealt with by them as owners thereof.
These considerations are sufficient to dispose of this appeal, buttheir lordships think that the appeal fails on a broader ground.They are of opinion that the intestate’s estate was not in a condi-tion for partition. It is not the fact, as alleged in the plaint, thatsince the death of the intestate- his heirs have been holding andpossessing the lands in question undividedly and in common.Before any partition could take place the plaintiffs would requireto recreate the inheritance. The irregularly alienated portions ofit would have to he brought back into the corpus, and the rightsof the parties inter se adjusted. In other words, the estate of theintestate would have to be administered before the beneficial rightsand interests of the heirs could be ascertained. A perusal of thef decree made by the Judge of the District Court is sufficient to showthat justice could not be effectuated by it. All that the Commis-sioner could do under the decree would be to divide the < landsmentioned in it between the plaintiffs and several defendants incertain shares. It does not even purport to be a. complete divisionof the estate. The lands proposed'to be partitioned do not include
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the-land sold by Mariyayi, and no account is taken of the purohasemoney received by her, or of the debts of the intestate said to havebeen paid by the son, or the lands conveyed by him to' the grand-child, or of the mesne profits, or of the movable property. And'to make it worse counsel for the appellant proposed to omit fromthe partition the item (a), which is held on lease only. It isimppssible in fact to say, on the materials before their lordships,whether the appellant is entitled to the share which she claims inthe lands sought to be partitioned. The plaint ,asks alternativelyfor a sale. But, on the theory that the estate remains undivided,no sale could be made except through an administrator.
’Since the hearing of this appeal their lordships have permittedthe. counsel for the appellant to lay before them a report of thecase of Silva v. Swam, recently decided by the Supreme Courtof Ceylon. As the respondents were not represented on the hear-ing this might be done without setting the appeal down again forfurther hearing. The consideration of that case has not led theirlordships to alter the opinion they had formed after the hearing.It was there decided that section 2 of Ordinance No. 12 of 1904applied to pending actions, and that an action in which finaljudgment had been given, from which judgment there was apending appeal, was for this purpose a pending action, and theSupreme Court had power to give the plaintiffs appealing thebenefit of the Ordinance which had been passed in the intervalbetween the judgment in the Court of first instance and the hear-ing of the appeal.
It is not necessary to consider whether the case was rightlydecided, as their lordships do not think that either the case itselfor the cases referred tp by the learned Judges in their judgmenthave any application to this appeal to the King in Council. Thecase of Salt v. Cooper (16 Ch. D. 544) seems merely to have decidedthat a cause in which judgment has been given, provided thatjudgment has not been satisfied, is still pending within the mean-ing of the rule relating to execution of judgments, which seemsa little obvious. Quilter v. Mapleson (9 Q.B.D. 672) was decidedon a rule which prescribes that ” all appeals tb the Court of appealshall be by way of re-hearing.” And Jessel, M.R., pointed out (atpage 676) that on an appeal strictly so called such a judgment canonly be given as ought to have been given at the original hearing,but on a re-hearing such a judgment may be given as ought to begiven if the case came at that time before the Court of firstinstance. In like manner the Supreme Court in Silva v. Swaritrelied on the terms defining their appellate jurisdiction whichthey thought, rightly or wrongly, went beyond the correction of
March 2,May 17.
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Marth 2, 3,May 17.
errors made, by the Courts below. Without limiting the extent ofHis Majesty’s prerogative their lordships can safely say that it isnot the practice of this Board to entertain any appeal other thanone strictly so called, in which the question is whether the orderof the Court from which the appeal is brought was right on thematerials which that Court had before it. The Board may, how-ever, think that the Court below had* not sufficient materials forits judgment, or improperly omitted to receive or to requirefurther evidence, or to try Borne issue, in which case it may remitthe case for further hearing.
Their lordships must, however, remind the learned counsel ofwhat they have already said, that in this case the objection of wantof administration is one of substance, and that the appellant’s oasedoes not fail by reason only that letters of administration to theintestate’s estate have not been granted.
For these reasons their lordships will humbly advise HisMajesty that the appeal ought to be dismissed. As the appellantis appealing in jormd pauperis and the respondents do notappear, there will be no costs of the appeal.
PONNAMMA v. ARUMOGAM