Katiramanthamby v. Lcbbelhamby Hadjiar
1971 Present: H. N. G. Fernando, C.J., and Weeramantry, J.U.KATIRAMANTHAMBY and another, Petitioners, andD. LEBBETHAMBY HADJIAR,. RespondentS.C. 204/68—Application for Revision in D. C. Batticaloa, 817/T
Testamentary action—LastWill—Application for probate—Ordernisi—
Requirement of advertisement in a specified and suitable newspaper—Non-compliance—Liability of order absolute to be set aside—Civil Procedure Code,as. 525, 532.
Revision—Judgment delivered in appeal preferred to Supreme Court—Subsequent
application in revision to set it aside—Power of Supreme Court to grant relief.
(i) In an application for probate of a Last Will, the failure of the DistrictJudge to select a newspaper which would satisfy the object mentioned in section632 of the Civil Procedure Code, viz., that “ notice of the order nisi shouldreach all persons interested in the administration of the deceased’s property ”,is a non-complianco with a mandatory provision of law. In such a case theorder absolute for probate is liable to be set aside by the Supreme Court uponan application in rovision mode by interested parties to intervene in thetestamentary proceedings.
H. N. G. FERNANDO, C.J.—Katiramanthamby v. Lebbelhamby Eadjiar 229
(ii) An appeal to the Supreme Court was decided against the respondentparties, although it would not have been so decided if the Court had beeninvited by the respondents to exorcise its powers of revision in their favour.Within a few weeks after the decision of the appeal, the respondents soughtrelief by way of an application in revision.
Belli, that the Supreme Court had the power, acting in revision, to set asidethe order that had been made in the appeal. ^
Application in revision, to set aside a judgment of the SupremeCourt delivered in an appeal from an order of the District Court,Batticaloa.
S. Nadesan, Q.C., with S. Sharvananda, for the interveniant objectors-petitioners.
H. W. Jayewardene, Q.C., with P. Nagendran, for the petitioner-respondent.
Cur. adv. vult.
October 14, 1971. H. N. Q. Fernando, C.J.—
The respondent to this application in revision is the executor and solebeneficiary named in the last Will of a Tamil lady who died at Batti-caloa in November 1964 leaving comparatively valuable property.The deceased left no husband or issue, but it is claimed by the presentpetitioners that they are the sons of a sister of the deceased, and thereforeher intestate heirs.
The respondent made an application for probate of the Will inNovember 1965. He named no respondents to his application, and averredin an affidavit that to the best of his knowledge and belief the deceasedbad left only himself as her sole heir. There was no averment in termsof section 525 of the Civil Procedure Code that the respondent “ has noreason to suppose that his application will be opposed by any*person ”.
The District Judge forthwith made order nisi declaring the Will to beproved and directed that a copy of the Order shall be published in theGovernment Gazette and twice in the Daily News newspaper. It appearsBowever that the ofdor nisi was in fact published not in the Daily News asordered by the Court but in the Daily Mirror. Thereafter orderabsolute was entered on 25th August 1966, but probate of the Will wasnot actually issued by the Court.
On 31st January 1967, the present petitioners filed an applicationobjecting to the grant of probate and seeking to intervene in the testa-mentary proceedings. After inquiry, the District Judge made ordervacating the order absolute and allowing the intervention of the petitionersand fixed the case for further inquiry. The respondent then appealed
230 H. N. G. FERNANDO, C.J.—Katiramanlhamby v. Lebbithamby Hadjiar
against the order of the District Judge vacating his earlier order, and theSupreme Court in March 1968 set aside the order of the District Judge onthe ground that the latter had no jurisdiction to vacate the order absolutepreviously made.
The present petitioners at that stage made this application in revisionin which they prayed that this Court set aside the order absolute andallow them an opportunity to show cause againBt the order absolutebeing entered.
It is relevant to note that the petitioners have claimed by affidavitthat the respondent is a Muslim and a complete stranger to the deceased,and that the respondent deliberately omitted in his original petition toinform the Court that these petitioners are the lawful intestate heirs ofthe deceased. According to their affidavit, the deceased, the respondent,and the petitioners themselves were all residents of Valaichenai.
The principal ground on which the petitioners have relied in support oftheir present application is that s. 532 of the Code imperatively requiredthe District Judge to select a newspaper for publication of the order nisi“ with the object that notice of the order should reach all persons interestedin the administration of the deceased’s property”. The publication ofthe order in the Daily Mirror, which is an English Newspaper, did notsuffice to reach persons in the position of the petitioners, whose interestss. 532 was intended to protect. In the course of preparing this judgment,I have noticed the further point that in fact publication had been orderedin the Daily News. There is undoubtedly substance in the allegation ofthe petitioners that they did not become aware of the order nisi untilJanuary, 1967.
Mr. Jayewardene for the respondent has argued that upon a carefulexamination and comparison of the variouiTprovisions of Chapter 38 ofthe Code, the true view is that s. 532 does not apply in a case whereprobate of a Will is granted, but applies only in the case of a grant ofadministration with or without a Will. I agree with this submission tothe extent that there appears to be some room for doubt whether s. 532does apply in th > case of a grant of probate. But it is not denied that theinveterate practice of the Courts has been to comply with the requirementsof s. 532 when an order nis i for probate has been made; and in my opinionthis practice has hardened into a rule. There is sound reason in support ofsuch a rule, since publication of an order nisi for the grant of probate isfor practical purposes even more important than in the case of a meregrant of administration. In the latter case the grant does not affect therights of intestate heirs to the property of the deceased ; whereas whenprobate is granted there is the sanction of the Court to the vesting ofproperty according to the terms of the Will. Accordingly any doubt whichmay exist as to the needfor publication of an Order Nisi granting probatemust be resolved in favour of the view that s. 532 does require suchpublication.
Fernando v. Ronald
I must therefore hold when the District Judge failed to select a news-paper which would satisfy the object mentioned in s. 532, he failed tocomply with a mandatory provision of law, and that thus the mandatoryrequirement of publication was not satisfied.
The remaining question is whether our powers in revision to set aside theorder absolute cannot now be exercised, because in the previous appeal’the Supreme Court restored the Order Absolute made in August 1966.In that appeal however, the Supreme Court only held that the DistrictJudge should not have set aside his own order and the judgment citeea passage from the case of Pavlusz v. Perera*, to the effect that“the correction of all errors of fact and law of a District Court is vestedin the Courts Ordinance in the Supreme Court While no doubt thepresent petitioners could at that stage have invited this Court to exerciseits powers of revision in their favour, the petitioners took substantiallythe samp eohrse, when within a few weeks after the decision of thatappeal, they made the present application in revision. We must I thinktake into account the fact that there appear to have been grave deficienciesin the respondent’s original application for probate, and also the fact that,prima facie, this was an unusual Will.
For these reasons ,the application of the present petitioners is allowedthe order absolute-for probate is set aside, and the petitioners will bepermitted to intervene in the testamentary proceedings. The respondentwill pay to the petitioners the costs of this application.
WebbaSiahtey, J.—I agree.
U. KATIRAMANTHAMBY and another, Petitioners, and D. LEBBETHAMBY HADJIAR, Respond