139-NLR-NLR-V-54-A.-PANNANANDA-THERO-Appellant-and-U.-PIYARATNA-THERO-Respondent.pdf
Pannananda Thero v. Piyaratna Thera.
603
1952Present: Rose C.J. and Pulie J.A. PANNANANDA THERO, Appellant, and U. PIYARATNA .THERO, RespondentS. G. 24—D. C. Galle, 8,254 (Testy.) •
Will—Probate—Delay in making application—Effect on grant of probate.
Where an application for probate of a will was made eight years arar tnedeath of the testator—
Held, that mere lapse of time not satisfactorily explained should not bar the admission to probate of a will where such lapse of time has not affected the 'rights of any person.' ' ’ • ■ 1
1 2nd ed. p. 252.
664
PUL/L.E J.—Pannananda The.ro v. Piyaratna Thero
’ApPEAL from:a judgment of the District Court, Galle.
, H. V. Perera, Q.O., with M. H. A. Azeez and A. M. Ameen, for thepetitioner appellant.
B. Wikramanayake, Q.G., with W. D. Gunasekera, for the 1st‘respondent.
.Our adv. vult.
March 5, 1952. Pullb J.—
A last will admittedly genuine was executed by one AkmeemanaSeejawansabhidana Maha Thero on the 27th January, 1938. Thetestator had four pupils, namely, the appellant and the three respondents,of whom the 1st respondent TJnawitiya Piyaratna Thero was named asthe executor of the will. The testator died on the 20th June, 1939,and it was not till the 28th August, 1947, that proceedings were takento have the will proved. The application for probate was not madeby the executor, the 1st respondent, but by the appellant and it wasresisted by the 1st respondent on two main grounds, namely, that the.lapse of eight years since the death of the testator had made the appli-cation stale and that rights of third parties in respect of the temporalitiesbequeathed by the last will had accrued since the death of the testator.The learned Judge held in favour of the submissions made on behalf ofthe 1st respondent and refused the application. The present appealis from that order. The application for probate was not opposed by the2nd and 3rd respondents.
Jt would be convenient first to consider whether any rights hadaccrued to any one since the death of the testator which would be in-juriously affected by the grant of probate. The principal provisions ofthe will related to the incumbency of three temples, Galpotte Viharewhich was devised to the 1st respondent and Sri Sudarsanaramaya andSeelawansaramaya devised respectively to the appellant and the 2ndrespondent. A clause provided that if the 2nd respondent was unwillingto accept the incumbency it should pass to the 3rd respondent.
In regard to Galpotte Vihare there were two actions instituted by oneIndrasumana Therunnanse. The first was against the testator and theappellant and the : second- against the appellant who asserted rightsunder a deed granted by the testator on 4th May, 1938. In both actionsIndrasumana Therunnanse was successful. His rights are now firmlyestablished and Vill remain unaffected by proof of the will. Anyonelaying claim to Galpotte Vihare as the successor to the testator will beestopped by the decree pronounced against him.
The 1st respondent has exercised the office of incumbent of bothSudarsanaramaya and Seelawansaramaya since the death of the testator.Whether the will be a,dmitted to probate or not, it is conceded thatactions to recover the incumbencies by the appellant or the 2nd respon-dent would be successfully met by the pleas that they are time barred
POXL.E J.—Panri'tnanda Thero v. Piyaratna Thero
565
£&amed Counsel for the 1st respondent frankly admitted that the proofof the -will would in no way affect adversely the rights acquired by hisclient either before or after the death of the testator. On the otherhand if probate of this will, the validity of which is not disputed, is re-fused it may seriously affect the rights of the beneficiaries and frustratefor all time the intentions of the testator as to the line of succession tothe incumbencies in question. It was held in Terunnanse v. Terunnanse1and followed in Vipulananda Therunnanse v. Sedawatte Pannasara2that title to an incumbency is not acquired by prescription*. It, there-fore, follows that if the appellant is entitled under the will to theincumbency’ of Sri Sudarasanaramaya that title still remains but it isonly unenforceable by action by lapse of time against the de facto holderof the office.
As the title to the incumbency created by the will is not taken awayby any possible acquisition of title by prescription it cannot be, as thelearned District Judge has found, that the grant of probate would beuseless.
For the decision of the next question I would accept the finding thatthe appellant has failed satisfactorily to account for the delay in applyingfor probate. The cases of Caroline v. Eddie et al.3 and de Silva v. Mendis-hamy4 appear to lay down that before probate of a will is granted theapplicant must account satisfactorily for the delay in producing it.No reason is assigned as to why the practice which apparently was inforce before the enactment of the Civil Procedure Code of 1889 shouldstill govern applications for grant of probate. If in the circumstancesof any particular case the grant of probate long after the execution ofa will would serve no practical purpose or would amount to an abuseof the process of court, the inherent power of the court might be invokedto refuse a grant, but I cannot understand why mere lapse of time notsatisfactorily explained ought to bar the admission to probate of a willproperly executed and acknowledged to be genuine and where suchlapse of time has not affected the rights of any person. The decisionsin Re Last Will and Testament o/( A. Hendricks and S. Hendricks 5 andRe Estate of Usuph Lebbe and his wife Serja6 appear to lay down byimplication, if I may say so with respect, the correct principle, namely,that it is not a condition precedent to granting probate that the delayin making the application must be satisfactorily explained. Lawrie J.said in the first case that letters of probate should issue valeat quantumand added, “ Here, I think, the executor who produces the .will of hisfather and mother who died many years ago should be called on to ex-plain the delay, and if his omission to produce the wall earlier be shownto have been wilful, he may properly be punished under section 517of, the Civil Procedure Code. ” In the latter ‘case Layard C.J. em-phasized that all applications for letters of administration or for thegrant of probate since the enactment of the Civil Procedure Code mustbe considered with reference to the terms of that Code and pointed outthat there was no provision that before granting letters of administration
1 (1927) 28 N. L. R. 477.* (1898) 3 Browne’s Reports 102.
* (1941) 20 C. L. W. 119.b (1901) 4 N. L. R. 24.
3 (1930) 32 N. R. R. 331.6 (1903) 6 N. L. R. 194.
566
Abu Bakr v. The Queen
the Court must have regard to the time that has lapsed since the deatftrof the intestate. Referring to an earlier case in 14 N. L. It. 201 LayardC.J. said,
“ I think, therefore, on the authority of Moyaa Fernando v. AliceFernando, the Civil Procedure Code has settled the law with regard toissue of letters of administration, and that it would not he safe for this-Court to place too much reliance on the old decisions referred to bythe District Judge ; and as there is no suggestion that the lapse oftime has caused any change of title or affected the rights of the parties rand as it is obvious that the title of the minor respondents cannotpossibly have been in any way affected by the delay, I think the DistrictJudge was wrong and that the petitioner is entitled to be granted theprayer of his petition. ”
In my opinion the order of the District Judge appealed from shouldbe set aside on the ground that the appellant was entitled to have thewill admitted to probate. The appellant will be entitled to the costsof the appeal against the 1st respondent but each party will bear thecosts of the contest in the District Court.
Rose C.J.—I agree.
Order set aside.