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Preterit : Lasoelleg C. J. and Wood Benton J.
TISSERA et al. v. GOONETILLEKE et al.
95—D. C. Kalutara, 722.
Last id*21—Forgery—Recall of probate—Is a grata of letters of administra-tion necessary toenable heir to sueforhis share f—Procedure for
having will declared a forgery after the estate had been administeredunder the probate.
The first respondent took out probate of a last will and dulyadministered and closed the estate.
The appellant gotthe will declaredtobe aforgery in an independ-
ent action and then applied for letters of' administration.
' The District Judge dismissed the application on the groundsthat if the administration under the probate were set aside thepractical result would be that the estate would have to bear theexpenses of administration twice over, and that the appellantcould, if necessary, recover his share of the estate by regularlyconstituted actions.
Held—(1) That the grant of letters would not involve the estatein double stamp duty.
(2) That the appellant was entitled to sue for bis share of theestate without obtaining letters.
Woop Benton J.—If the point has been res integra I should havebeen disposed to think that section 537 is not limited to the groundsof recall specified insection 536, butthat itwas intended to permit
applications for therecall of probateor therevocation of letters of
administration on any legal ground, whether arising under the Codeof Civil Procedure or not, to be made in the testamentary case inthe manner which it prescribes.
^pHE facts appear from the judgment.
Seneviratne, (with him Hector Jayewardene), for the petitionersappellants.
Batoa, K.C., for the respondents.
Cur. adv. vult.
August 1, 1912. Wood Renton J.—
The appellants are the daughter and the son-in-law of one SimonTissera. The first, second, and third respondents are his wife andchildren. Simon Tissera died on October 19, 1900, The firstrespondent produced what purported to be his.will, and took outprobate in testamentary case No. 258 of the District Court ofKalutara. Under that probate she duly administered and closedthe estate. The first appellant, who had been disinherited by the
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will, came forward in the testamentary case in 1910 and claimedto have the grant of probate recalled on the ground that the willWas a forgery. The Supreme Court held in appeal (13 N. L. R. 361)that an application of this kind could not be made in the testa-mentary case; that section 537 of the Civil Procedure Code, whichprovides that applications for the recall of probate shall be madeby petition in accordance with the rules for summary procedure,applies only to the grounds of recall indicated in section 536; andthat the appellant’s only remedy was to bring an independentaction to have the will set aside. The appellant took this course.The will was declared a forgery, and she and her husband, thesecond appellant, apply now for letters of administration. Althoughthe record of the proceedings in the action to set aside the will isnot before us, the learned District Judge states that the decreedeclaring the will to be a forgery cancelled the probate. Hehas, however, dismissed the appellant’s application on the groundsthat the administration under the probate still holds good; that if itwere set aside, the practical result would be that the estate wouldhave to bear the expenses of administration twice over; and thatthe first appellant could, if necessary, recover her share of herfather’s estate by regularly constituted actions.
If the point had been res integra I should have been disposed tothink that section 537 of the Civil Procedure Code is not limited tothe grounds of recall specified in section 536, but that it was intendedto permit applications for the recall of probate or the revocation ofletters of administration on any legal ground, whether arising underthe Code of Civil Procedure or not, to be made in the testamentarycase in the manner which it prescribes. The provisions of the Codeas toapplications ofsummary procedure aresufficientlywide to
secureas thorough aninvestigation of applications for therecall of
probate or the revocation of letters of administration on the groundof forgery as could be obtained by an independent action, and theformer remedy is obviously much more convenient than the latter.If it should ever become necessary to raise the question, I reserveto myself the right to consider whether the interpretation of section537 of the Civil Procedure Code which I have ’just suggested is hotthe correct one. The decision of the Supreme Court in the earlierstagesof the presentcase, is however, not inissue now.On the
whole,I think that the learned District Judgehas come to a right
conclusion as regards the appellants’ application. He is not, I think,correct in holding that the grant of letters of administration to theappellants would involve the estate in double stamp duty. Thatobjection is obviated by the provisions of section 71 of OrdinanceNo. 22 of 1909. The appellants have in no way traversed theallegation of the respondents and the statement of the DistrictJudge that the first respondent has administered the estate underthe probate and closed her accounts. They have not shown that
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any useful purpose would be served by our setting aside all theproceedings under the probate, and, indeed, their counsel stated thatthe main objeot of their application was to obtain letters of adminis-tration to prevent themselves from being met with the objectionthat they could not sue to recover any property belonging to theintestate in view of the provisions of section 547 of the Civil ProcedureCode. In my opinion no such objection could be taken. In thepresent case “ probate ’’ has been “ issued ” within the meaning ofthat section, the appellant’s status as being entitled to share in herfather’s estate has been declared, and there is nothing to prevent herfrom suing to recover whatever share is due to her in the ordinaryway. I would dismiss the appeal with costs.
Lasceli.es C.J.—I entirely agree.
TISSERA et al. v. GOONETILLEKE et al