Mangalika vs. Sugandi Fernando and Others (Wijayaratne, J.)
SUGANDI FERNANDO AND OTHERSCOURT OF APPEAL.
WIJAYARATNE, J AND
DC MARAWILA 219/P.
FEBRUARY 10, 2005.
Civil Procedure Code, sections 524, 534, 534(2) and 754(2) – Testamentary
proceedings – Intervenient petitioner producing last will – Application dismissed
– Last will a forgery – Letters granted – Order or judgment?
On a preliminary objection taken whether the order is an interlocutory order or
The application of the intervenient petitioner is one under section 524and Court made order dismissing the application in terms ofsection 534.
The order has the effect of a final judgment in as much as it deals withthe question of proof of last will and the entitlement of the intervenientpetitioner to have the probate granted.
The order finally disposed the matter of last will and the application ofthe intervenient petitioner for probate thereof. It is a judgment. Appeallies.
APPLICATION for leave to appeal from judgment of the District Court of Marawila.
Mahinda Ralapanawa for intervenient-petitioner.S. F. A. Cooray for petitioner-respondent.
Sri Lanka Law Reports
(2005) 3 Sri L R.
August 01, 2005.
The petitioner-respondent instituted testamentary proceedings toadminister the intestate estate of deceased Warnakulasooriya GeorgeHenry Moraes Fernando in the District Court of Marawila. The intervenient-petitioner intervened in those proceedings producing Last Will purportedto have been left by the deceased and claiming probate to himself on thesaid Last Will which is marked P1 or X. The learned District Judge afterinquiry into such application and the objections shown, dismissed theclaim of the intervenient-petitioner holding that the purported Last Willsubmitted was a forgery. Aggrieved by such order the Intervenient-petitionermade this application for leave to appeal. The petitioner-respondent objectedto leave being granted on the ground that the intervenient-petitioner has noright to make a leave to appeal application in terms of section 754(2) of theCivil Procedure Code because the order appealed from rejecting to admitthe purported Last Will is a final judgment having the effect of a final judgmentmade by the Court.
The application of the intervenient-petitioner is one made in terms ofsection 524 of the Civil Procedure Code and Court made order dismissingthe application in terms of section 534 and granted letters of administrationto the petitioner-respondent. This order has the effect of a final judgment inas much as it deals with the question of proof of Last Will and the entitlementof the intervenient-petitioner to have the probate granted. In terms of section534(2) of the Civil Procedure Code, since the letters of administration hasbeen granted to the petitioner-respondent, the intervenient-petitioner is notentitled to renew his application. Accordingly this order finally disposed ofthe matter of Last will and the application of the intervenient-petitioner forprobate thereof as between the parties. Therefore the proper procedure wouldbe to prefer an appeal and not make an application for leave to appeal.
I uphold the preliminary objection raised on behalf of the petitioner-respondent and dismiss the application of the intervenient-petitioner forleave to appeal with costs fixed at Rs. 5,000/-
SRISKAND AR A J AH, J. — I agree.
Preliminary objection upheld.Application dismissed.
MANGALIKA vs. SUGANDI FERNANDO AND OTHERS