v.WIJERATNE AND OTHERS
COURT OF APPEAL.
CA 33/97 WITHCALA 326/96.
DC GAMPAHA 1923/T.
SEPTEMBER. 03rd. 1999.
Testamentary Proceedings – Last Will – Recall of Probate – Fraud alleged -Civil Procedure Code S.5J6, S.524, S.536, S.537, S.839 – Inherent powerof Court ■ Order Nisi – Order absolute.
The Application to recall the Probate filed by the Intervenient Petitionerwas dismissed on the ground that, the Application was not maintainableon the ground that S.536 Civil Procedure Code provides for a recall ofProbate only where an order absolute had been issued in the firstinstance, and in the instant case an Order Nisi had been issued in thefirst instance.
In the instant case, the Petitioner Respondent has violated theprovisions of S.516 by not depositing the will within a reasonable timeafter the testators death; the will was deposited in Court over one yearafter the decree nisi was entered, the heirs of the deceased have not beenmade Respondents as required by S.524 C.P.C.. Criminal proceedingsagainst the Petitioner Respondent has been initiated and the E.Q.D. hasreported that the signature in the Last Will of which Probate was grantedis not the signature of the deceased. Further parties have agreed in opencourt that an inquiry should be held U> ascertain whether the lastwill isthe act and deed of the deceased.
Further the Petitioner Respondent had made his Application under
S.516( 1) and S.524( 1) Civil Procedure Code to prove the will and to havethe Probate thereof issued to him. The District Court had issued a DecreeNisi for the grant of Letters of Administration on the basis that thedeceased has died “without making a will.'
Although according to S.536 Civil Procedure Code an application torecall Probate could be made only when an order absolute in the firstInstance has been made, in an appropriate case, depending on thecircumstances, a Court has jurisdiction to act under S.839 Civil
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Procedure Code and make an order as may be necessary for the ends ofjustice or to prevent abuse of the process of Court.
APPLICATION in Revision from the order of the District Court ofGampaha.
Cases referred to :
In Re Thissera 13 NLR 261
Edoris os Perera 17 NLR 212
Mrs. BiyanwUa us Mas Amerasekera 67 NLR 488
Birch vs Birch (1902) Probate 130
Thissera vs Goonetilake 15 NLR 379
Kathiraman Thamby vs Lebbe Thamby Hadjiar 75 NLR 228
Faiz Musthapa P.C. with W. Dayaratne for Substituted 2nd Defendant -Petitioner Respondent – Petitioner.
D.M.G. Dissanayake for Petitioner – Respondent – Respondent.
Cur. adv. vult.
October 6, 2000.
JAYAWICKRAMA, J.The Intervenient Petitioner filed a Leave to AppealApplication and a Revision Application to set aside the ordermade by the learned District Judge dated 06. 12. 1996dismissing an application made by the Intervenient Petitionerto recall the Probate issued in this action. Subsequently, theIntervenient Petitioner has died and the second IntervenientPetitioner was substituted in his place. These applicationswere made on the basis of fraud in obtaining the Probate.
The original Intervenient Petitioner, ColonneAppuhamilageDon Peiris was the father of the deceased Piyaseeli PushpalathaPussella who died on 16.06. 1988. The Petitioner-RespondentPunchi Nilame Pussella is the husband of the deceased. ThePetitioner-Respondent, Pussella filed the testamentary caseT 1923 to prove the last will dated 13. 06. 1998 marked X(a) (ep).It is to be noted that this last will bears No. 142 is hand-written
Pieris v. Wi/eratne and Others (Jayawickrama. J.)
and purported to have been executed three days prior to thedeath of the alleged testatrix. By this will, the deceasedpurported to leave all the property to her husband, theRespondent, who was estranged from her at that time.
The learned Counsel for the Substituted 2ndIntervenient-Petitioner-Respondent-Petitioner submitted that theapplication by the husband is in breach of Section 524 of theCivil Procedure Code in that the heirs of the deceased, namely,the original Intervenient-Petitioner, the father and the motherwere not made parties and contains no averment as requiredby Section 525 that the applicant for probate has no reason tosuppose that this application would be opposed by the heirs.That application for probate itself was made on 29. 07. 1988.Prior to the institution of these proceedings i.e. T 1923, thefather of the deceased had instituted the testamentary actionbearing No. T 1920 making the mother of the deceased and thehusband who is the present Respondent, as Respondents tothat application. That application was made on the basis thatthe deceased has died intestate and the father who was theapplicant sought Letters of Administration. An Order Nisi wasissued and the husband, it is alleged evaded service of theOrder Nisi and himself instituted testamentary proceedingsbearing No. T 1923 seeking Probate which is the subject matterof this application.
In T 1923 instituted by the husband seeking Probate of thelast will bearing No: 142 and Letters of Administration,the Court issued an Order Nisi. The learned Counselcontended that this order had been published in the “Janatha”newspaper of 08. 02. 1989. This paper has a limitedcirculation and published weekly apparently on Wednesdayevenings. Thereafter, the Order Nisi had been made Absolute.But this publication is in relation to T 1920. According tojournal entry (6) proof of publication was tendered on 07. 11.1988. but the above publication is dated 08. 02. 1989.
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At this stage it is to be noted that the Decree Nisihad been published not only on 08. 02. 1989 (PLA) but also on09. 02. 1989 (PIB), in the same newspaper and bothpublications refers to T 1920 filed by the Intervenient-Petitioner and not to T 1923 filed by the Petitioner-Respondent.
On 29. 01.1990 the original Intervenient-Petitioner madean application for the recall of Probate. In that application heaverred fraud and that the alleged last will was not the act anddeed of the deceased.
The learned Counsel for the Substituted-Intervenient-Petitioner submitted that the application itself did not invokeSection 535 of the Civil Procedure Code which provides forapplications for recall of probate by way of summary procedureas set out in section 537. He contended that the applicationwas by ordinary procedure and that therefore the judgmentscited by the learned Trial Judge are inapplicable anddistinguishable on this account.
The learned counsel for the Substituted-Intervenient-Petitioner further submitted that the C.l.D. had institutedcriminal proceedings in the Magistrate’s Court against theRespondent on an allegation of forgery where the will inquestion had been forwarded by the Magistrate's Court to theEQD. In his report, the EQD (vide para 4 page 6 of his reportmarked as “Y”) reported that the signature on the Last Will wasnot that of the deceased.
The learned Counsel for the Substituted-lntervenient-Petitioner contended that the application came up for inquiryin the regular way and not by way of summary procedure. On05. 03. 1993, the parties expressly agreed that the inquiryshould be held into the question as to whether the LastWill was the act and deed of the deceased. Journal entiy dated05. 03. 1993 is as follows : "easSi 83© S£3C5 esd^®
83. (s@ epOdchsS e@© zngGS<psfS® eszsjca
Pieris u. Wijeratne and Others (Jayawickrama, J.)
ScaScscased ^caoOsl^? 25>jZ3f<^? caster e3@Szrf0scajsf S®8t3 ogz$
380 G^eobcaOscasl etoejsS).
Thereafter the inquiry commenced and evidence wasled to decide that issue and further inquiry was postponed for21.07. 1993. Subsequently the learned District Judge beforewhom the inquiry began went on transfer and the inquiry wasfixed de novo before his successor. On the date of inquiry theCounsel for the Petitioner-Respondent went back on theagreement entered into in open Court on 05. 05. 1993 andraised a preliminary objection that the application was notmaintainable on the ground that Section 536 provides forrecall of Probate only where an order Absolute had been issuedin the first instance, and in the instant case, an Order Nisi hadbeen issued in the first instance.
Written submissions were tendered by the parties on thispreliminary objection and the learned District Judge madeorder on 06. 12. 1996 upholding the preliminary objection anddismissing the application made by the Original-Intervenient-Petitioner. It is to be noted that in the interim period theOriginal-lntervenient-Petitioner died and his son Wijeratne,the brother of the deceased had been substituted.
The learned District Judge upholding the preliminaryobjection relied upon the cases In Re. This sera1'1, Edoris vsPerera!21, Mrs. Biyanwila vs Mrs. Amercisekera!31.
Section 536 of the Civil Procedure Code is as follows :
“In any case where probate ofadeceased person’s will hasissued on an order absolute in the first instance, or a grant ofadministration ofa deceased persons property has been made,it shall be competent to the District Court to recall the saidprobate or grant of administration, and to revoke the grantthereof, upon being satisfied that the will ought not to have beenheld proved, or that the grant of probate or of administrationought not to have been made; and it shall also be competent to
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the District Court to recall the probate or grant of administrationat any time upon being satisfied that events have occurredwhich render the administration thereunder impracticable oruseless."
In Ekloris vs. Pererafsupra) it was held "when an issue ofProbate has followed upon an Order Nisi (and not upon anOrder Absolute in the first instance), the summary procedurefor the recall of Probate provided in Section 537 does not apply,and all parties are concluded by the issue of probate. Butwhere there is fraud in connection with the obtaining of theprobate even upon an Order Nisi, an independent actionmight be brought to set aside the probate." Although it was soheld Lascellas C.J. observed that “but the words which I havecited from the judgment cannot be understood to mean that,when probate has been granted after order Nisi, there exists ageneral right on the part of interested persons to sue to havethe judgment set aside and probate recalled. A judgmentgranting probate of a will is a judgment in rem and is bindingon the world. It is true that where probate has been obtainedby fraud an action lies, as in other cases of judgmentsobtained' by fraud, to set aside the judgment and recallprobate, the right being in some respect more extensive thanin the case of ordinary judgments. (Birch vs Birch)Ml.
De Sampayo A.J. observed in the same case that “in. ReThisseralsupraf this Court took the same view, and held thatwhere probate was issued upon an Order Nisi, and not uponan Order Absolute in the first instance, the summaryprocedure provided in Section 537 did not apply, But I ammuch impressed that the opinion of Wood Renton J., inThissera us. Goonetilleke1^, that Section 537 is not so limited,and that it is intended to permit application for the recall ofprobate on any legal ground to be made in the testamentarycase itself.
“There might, of course, be fraud in connection with
the obtaining of probate even upon an Order Nisi, in which
Pteris v. Wijeratne and Others (Jayawickrama, J.)
case an independent action might in analogy to the Englishpractice be brought to set aside the probate. There is, however,no fraud alleged in this case."
In Thisseravs. GooneLileke Hamine(supra) it was held that“the direction in Section 537 that all applications for recall ofprobate shall be in a particular way' applies only to theapplications which are authorised by Section 536”. In thatcase a will which was duly proved nine years earlier by theoaths of all attesting witnesses and of the executor, and whichhas ever since been acted upon, theCourtheld that it could notbe right to order that the will shall be declared to be a forgeryupon the mere allegation of one person.
In Mrs. N. Biyanwila us. Mrs. A. Amerasekera(supra) thehead note states that "It was conceded that the power of aDistrict Court to recall or revoke a probate which has alreadybeen granted is limited, by virtue of Section 536 of the CivilProcedure Code, to cases where an Order Absolute has beenentered in the first instance. In that case Sri Skandarajah, J.in his dissenting judgment observed that “as no respondentwas mentioned in the petition it was open to the Court, in theexercise of its discretion as provided for by Section 529, toenter an Order Absolute in the first instance as prayed for oran Order Nisi. In that case, the application was for an OrderAbsolute in the first instance, but, the learned Judge enteredan Order Nisi. On that basis Sri Skandarajah, J. allowed theappeal on the basis that the Order was an Order Absolute inthe first Instance. But the other two judges in their majorityjudgment dismissed the appeal holding that the order was adecree Nisi. In that case Sirimanne, J. in his majority decisionmade the following observation:- “Provisions of this Section(524 of the Civil Procedure Code) are directory, and that afailure to strictly comply with those provisions, does notrender the proceedings void ab initio. They are, however,voidable, and in an appropriate case, a party may ask theCourt for relief under Section 839 of the Civil Procedure Code.
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It was held in Kathiraman Thamby vs. Lebbe ThcimbyHadjiaj<6) that “in an application for probate of Last Will, thefailure of the District J udge to select a newspaper which wou Idsatisfy the object mentioned in Section 532 of the CivilProcedure Code, Viz., that "Notice of the Order Nisi shouldreach all persons interested in the administration of thedeceased’s property", is a non-compliance with a mandatoryprovision of law. In such a case the Order Absolute for probateis liable to be set aside by the Supreme Court upon anapplication in revision made by interested parties to intervenein the testamentary proceedings."
When one takes into consideration the above statementsof law it is clear that although according to Section 536 of theCivil Procedure Code an application to recall the probate couldbe made only where an order absolute in the first instancehas been made in an appropriate case, depending on thecircumstances, a court has jurisdiction to act under Section839 of the Civil Procedure Code and make an order as may benecessary for the ends of justice or to prevent abuse of theprocess of the Court.
In the instant case, the Petitioner-Respondent hasviolated the provisions of Section 516 by not depositing the willas soon as reasonable after the testator’s death. According toJournal Entry marked X(c) a motion was filed to deposit theoriginal will in the Court safe and the will was deposited on27. 09. 1989, over one year after the decree Nisi was enteredin the testamentary case. Further on a perusal of the caserecord it is clear that he has not made respondents to hisapplication the heirs of the deceased to the best of thePetitioner’s knowledge, as required by Section 524 of the CivilProcedure Code.
It is to be noted that criminal prosecution against thePetitioner-Respondent, has been initiated and the EQD hasreported that the signature in the last will of which probate wasgranted, is not the signature of the deceased. Further, as
Pierts v. Wijeratne and Others (Jayawtckrama, J.)
stated above parties have agreed in open Court that an inquiryshould be held into the question as to whether the last will isthe act and deed of the deceased. Although the Petitioner-Respondent by his petition dated 29. 07. 1988 made hisapplication under Section 516(1) and 524(1) of the CivilProcedure Code to prove the Will and to have the probatethereof issued to him, the learned District Judge by his orderdated 29. 07. 1988 had issued a decree Nisi for the grant ofletters of letters of administration on the basis that thedeceased has died “Without malcing a will'. His order is asfollows : (Journal Entry 1).
In view of the above order the substituted IntervenientPetitioner could invoke the provisions of section 536 to recallthe grant of administration of the deceased persons propertyto the Petitioner-Respondent.
Taking into consideration the facts revealed in this case,I am of the opinion that this is an appropriate case where theCourt should use its inherent power under Section 839 of theCivil Procedure Code in the interest ofjustice. One should notallow a party to make use of procedural errors to commit afraud. In the instant case, there are sufficient material for theDistrict Court to consider the validity of the last will. As agreedby the parties on 05. 03. 1993 the learned District Judgeshould have decided on this matter without going into thepreliminary technical objection which may allow a party tocommit a fraud.
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In view of the above reasons I set aside the order of thelearned District Judge dated 06. 12. 1996 and direct thathe should proceed to decide whether the last will is an actand deed of the deceased, as agreed upon by the parties on05. 03. 1993.
Hence the application for leave to Appeal and the RevisionApplication of the Substituted Second Intervenient-Petitioner-Respondent-Petitioner are allowed with taxed costs payable bythe Petitioner-Respondent to the 2nd Intervenient-Petitioner-Respondent-Petitioner.