KOTTEGODA AND ANOTHER
G. P. S. DE SILVA. C.J.,
S.C. APPEAL NO. 83/95C.A. APPEAL NO. 761/86(F)
D C. MT. LAVINIA NO. 993/TFEBRUARY 19 AND 22,1996.
Civil Procedure Code – Last Will – Right to probate or grant of administration -Conflict of claims – Section 523 of the Civil Procedure Code.
The widow and the devisee under the last will of the deceased applied to theDistrict Court for Letters of Administration with the will and codicil annexed. Theexecutor named in the will intervened and objected to the application.
The pleadings in the case disclosed a “conflict of claims" between the widowand the executor within the meaning of Section 523 of the Civil ProcedureCode, in view of which the claim of the executor has to be preferred to that ofthe widow. The expression “conflict of claims" cannot be confined to asituation where there are opposing applications.
The right of the executor to be granted probate is paramount.
Case referred to:
Kumarajeewa v. Susan Fernando 52 N.L.R. 393, 394APPEAL from the judgment of the Court of Appeal
N.S. A. Goonatillake, PC. with M. Mahendran for appellant.
J.IN. Subasinghe, PC. with J. A. J. Udawatte for 1st and 2nd respondents.
Cur. adv. vult.
P. S. DE SILVA, C J..
The 1st respondent is the widow of H. A. Kottegoda who died on15th November 1981, leaving a last will together with a codicil. Theexecutors named in the last will were the appellant and the 2ndrespondent.
The 1st respondent (widow and devisee under the last will) madean application on 8.1.84 to the District Court seeking Letters ofadministration with the last will and codicil annexed. The appellant,though nominated as a co-executor in the last will, was not maderespondent to the application. The respondents to the applicationwere the two children of the deceased, one of whom was a co-executor. It is the case of the appellant that he became aware of theapplication made by the 1st respondent only upon the publication ofthe order nisi. As the 3rd intervenient-petitioner, he filed his objectionsto the application. In his objections dated 25.6.84 he averred that hewas at all times willing to “administer the estate and obtain probate"but he was unable to do so by reason of the conduct of the 1strespondent (widow) and the 2nd respondent (co-executor). Hecategorically opposed the grant of Letters of Administration with thewill and codicil annexed to the 1st respondent and pleaded that sheis not in law entitled to it.
After inquiry, the District Court by its order dated 10.2.86 upheldthe objections filed by the appellant and dismissed the application ofthe 1st respondent for Letters of Administration with the will andcodicil annexed.
Against this order of the District Court, the 1st respondent filed anapplication "for leave to appeal1’ and also an appeal. Both matterswere taken up for hearing together before the Court of Appeal. TheCourt of Appeal allowed the appeal and set aside the order of theDistrict Court. Hence the appeal to this Court by the co-executor-appellant.
Special leave to appeal was granted by this court only on thefollowing question:- “Is the Court of Appeal in error in holding thatthere is no conflict of claims within the meaning of section 523 of theCivil Procedure Code.” The material part of section 523 reads thus:“In case of a conflict of claims to have the will proved and probate orgrant administration issued, the claim of an executor or his attorneyshall be preferred to that of all others …”
The principal submission of Mr. Subasinghe for the 1st and 2ndrespondents is that the expression "conflict of claims" in section 523contemplates two or more opposing applications. Counselcontended that in the present case there are no such opposingapplications and therefore the provisions of section 523 are notapplicable. Mr. Subasinghe urged that the words “conflict of claims"means “a clash of applications or incompatible applications” (to useCounsel’s own words). At the time of the inquiry or even at the timethe court made the order there was only one application. Neither theappellant nor, the 2nd respondent had applied for the issue ofprobate.
With these submissions I am afraid I cannot agree. The expression“conflict of claims” cannot be confined to a situation where there areopposing applications; that would be to construe these words in anarrow and unduly restrictive sense. The purely literal constructionsought to be placed on the words “conflict of claims" does notcommend itself to me.
As submitted by Mr. Nehru Goonetilake, counsel for the appellant,the pleadings in the case clearly disclose a “conflict of claims". Theappellant as one of the executors named in the last will claimed theright to have probate issued to him while the 1st respondent as thewidow claimed a right to the issue of Letters of Administration withthe will and codicil annexed. This in itself necessarily gives rise to a“conflict of claims" within the meaning of section 523.
Moreover, the evidence led at the inquiry before the District Courtestablishes the fact that the appellant had accepted the office ofexecutor. Thus in the letter P2 dated 20.10.93, addressed to theattorney-at-law for the 2nd respondent, the appellant states, inter alia,“having been nominated by the deceased I consent to function as anexecutor. Please be good enough to send, me copies of papersprepared by you for the administration of the estate of the deceased,so that I may ascertain whether all his assets have been included orwhether any property which did not belong to him has been included.Also I would like to verify the value given for the various properties".In theses circumstances, when the 1st respondent applied for Lettersof Administration with the will and codicil annexed it is reasonable toconclude that there was a “conflict of claims”. It is also relevant tonote that the position of the appellant was that he was unable to
make an application to court to have the will proved because allrelevant documents were with the 1st respondent.
On a consideration of the matters set out above, it seems to methat the Court of Appeal was in error when it held that there was noconflict of claims" and therefore section 523 of the Civil ProcedureCode was not applicable.
Mr. Subasinghe next submitted that the evidence established thatthe appellant had shown no interest in taking steps to have the willproved. To use Counsel’s own words "the appellant had lapsed intosilence and inaction." Mr. Subasinghe contended that the conduct ofthe appellant gave rise to an “estopper in the sense that he is“estopped from claiming the right to be an executor." Assuming thatthe appellant had remained "inactive" (a position which was stronglycontested by Mr. Goonetilake) yet, in my view, the plea of "estoppel"cannot be maintained. It was neither pleaded nor put in issue at theinquiry before the District Court; it was not a matter which was raisedeven before the Court of Appeal, it certainly cannot be raised for thefirst time before this Court.
There remains to consider the submission of Mr. Goonetilake thatthe right of an executor to be granted probate is "paramount". Insupport of his submission Counsel relevantly cited the followingpassage from a judgment of Nagalingam J., in Kumarajeewa v.Susan Fernando n).
“A testator’s right to dispose of his property in any way that hemay think proper or to appoint any man with any history to theoffice of a executor cannot be questioned by a court. The onlycase that I think of where an executor may be passed over bycourt in favour of another person is where the executorappointed becomes non compos mentis and incapable oftaking upon himself the very office of executor. An utterlyunworthy man is one who in the opinion of the majority of peopleor of mankind in general is regarded as such. But so far as thefamily of that utterly unworthy man may be concerned, he maybe the best person to protect the rights and their interest, sothat if a testator chooses to appoint one who by ordinarystandards is unworthy of trust, such an appointment would notnecessarily invoke the disapprobation of court to the extent ofdenying to him the right conferred on him by the testator, who isthe sole and the exclusive authority to appoint an executor tocarry out his testament, I would emphatically say that the courthas no right to ignore or supersede the appointment made by atestator That would be to substitute for the testator’s mind themind of the Court – a course totally indefensible."
The evidence on record does not reveal any grounds upon whichthe appellant's right as executor to be granted probate could bedisplaced.
For these reasons I hold that the Court of Appeal was in error whenit reversed the order of the District Court. The appeal is allowed, thejudgment of the Court of Appeal is set aside and the order of theDistrict Court is restored. In all the circumstances I make no order asto costs of appeal.
KULATUNGA, J.-1 agree.HAMANATHAN, J. -1 agree.Appeal allowed.
SIRIMANNE v. KOTTEGODA AND ANOTHER