BASNAYAK K, C. J.—Abeyaratne t>. Wijemdhne
Present: Basnayake, C.J., and Sinnetamby, J.ABEYARATNE, Appellant, and WIJEMANNE and others, Respondents
S. G. 114—D. C. Colombo, 17328/T
Administration of estates—Application for letters of administration on footing thatdeceased died intestate—-Discovery of will after death of applicant—Resultingposition—Civil Procedure Code, ss. 636, 549.
An application for letters of administration oomes to an end with the deathof the applicant prior to the issue of letters. Accordingly, where the lastwill of the deceased person is discovered after the death of the applicant forletters, application for probate of the will may be made without taking anyBteps to vacate an order absolute entered in the previous administrationproceedings.
.AlPPEAL from an order of the District Court, Colombo. *
H. V. Perera, Q.C., with H. W. Jayewardene, Q.C., G. T. Samara-loickreme and D. R. P. GoonetiUeJce, for Petitioner-Appellant.
No appearance for Respondents-Respondents.
Cur. adv. vult.
June 10, 1959. Basnayake, C.J.—
Sarah Catherine Abeyaratne is the widow of the late Charles AlbertAbeyaratne who died on 7th December 1953 within the jurisdiction ofthe District Court of Colombo. His son Carl Albert Abeyaratne appliedfor the grant of letters of administration to him in testamentary proceed-ings No. 16128/T of the District Court of Colombo on the ground thathis father had died intestate. On his application the action was trans-ferred under section 68 of the Courts Ordinance to the District Courtof Chilaw as the bulk of the deceased’s immovable property was withinthe jurisdiction of that Court.
On 26th October 1954 the following order nisi was made by the DistrictJudge of Chilaw in that action bearing the number 2551/T :—
“ This matter coming on for disposal before W. W. MutturajahEsquire, District Judge of Chilaw, on the 26th day of October 1954in the presence of Mr. F. Thambiyah, Proctor, on the part of the' petitioner abovenamed and the affidavit of the said petitioner dated9th July 1954 having been read.
“It is ordered that the petitioner be and he is hereby declaredentitled as the son of the deceased abovenamed to have letters ofadministration to the estate issued to him accordingly unless the
2*J. N. B. 19724 (10/61)
BASXAYA KE, C.J.—Abeyaratne v. Wijemanne
respondents abovenamed or any other persons or person interested
shall on or before the 30th November 1954 shew sufficient cause to
the satisfaction of this court to the contrary.”
The time for showing cause against the order was extended severaltimes and on 7th June 1955 no cause having been shown the order nisiwas made absolute.
Carl Albert Abeyaratne died on 11th August 1956 before the actualissue of the letters of administration to him, and after his death hismother the widow of the deceased Charles Albert Abeyaratne foundamong her son’s papers the will of Charles Albert Abeyaratne, the subjectof these proceedings. On 8th October 1956 she petitioned the DistrictCourt of Colombo—
(а)for an order declaring the Last Will and Testament No. 2172
dated 28th November 1939 duly attested by F. Thambiyah,Proctor, Notary Public, duly proved,
(б)for a declaration declaring her executrix,
that probate of the said Last Will and Testament be issued toher.
Objections were taken to her application by the 4th to 9th respondents.At the hearing of the objections the following issues were formulated :—
Was the Last Will No. 2172 duly executed by the deceased ?
Has this Court jurisdiction to hear and determine the petition
of the petitioner ?
Is the petitioner barred by the order made in D. C. Chilaw 2551 /T
from making the present application ?
Was the Last Will revoked by the deceased and the petitioner ?
(a) Were the petitioner, the 1st, 2nd and 3rd respondents and
the late Carl Abeyaratne at all times aware of the executionof the will, and
the endorsement made on the will by the deceased and thepetitioner ?
Did the petitioner, the 1st, 2nd and 3rd respondents and the late
Carl Abeyaratne agree that the estate of the deceased shouldbe administered on the basis of an intestacy ?
If issues 2 and/or 3 and/or 4 and/or 5 and 6 are answered in favour
of the respondents can the petitioner maintain this presentapplication ?
On the motion of counsel issues 2 and 3 were tried as preliminaryissues and the learned District Judge made order that the Court had
BASNAYAKE, C J.—Abeyaratne v. Wijernayine
jurisdiction to hear and determine the petition of the petitioner, butthat the petitioner was barred by the order made in D. C. Chilaw caseNo. 2551/T from making the present application. The present appealis against that order.
It is not disputed that, although order absolute had been entered in
C. Chilaw case No. 2551/T, letters of ad ministration had not issuedto the deceased petitioner. The Civil Procedure Code does not providespecifically for a case such as the present one, nor is there any provisionthat bars an application such as that made in the instant case. Evenwhen a sole administrator to whom letters of administration have actuallyissued dies leaving a part of the deceased’s property unadministered afresh grant of administration is necessary in respect of the propertyleft unadministered (section 549 Civil Procedure Code). An applicationfor letters of administration comes to an end with the death of theapplicant; similarly an order granting letters of administration ceasesto have effect on the death of the person to whom under the Court’sorder letters should issue. The learned District Judge’s decision thatbefore the petitioner in this case applies for probate of the will in questionshe should take steps to have the order absolute entered in the Chilawcase vacated cannot be sustained. That order is a valid order andI do not see how it can be set aside. It is not alleged that it was obtainedby fraud. The learned District Judge is therefore wrong in holdingthat before the petitioner in this case applies for probate she shouldtake steps to have the order absolute entered in the Chilaw case vacated.Such an application does not lie under the Civil Procedure Code. Withthe death of the applicant those proceedings came to an end and theorder granting letters of administration to the deceased son has nolonger any force.
The present case is not a case which comes under section 536 whichprovides for the recall of the probate or grant of administration andthe revocation thereof. A probate or letters of administration canbe recalled only where probate or letters have been actually granted orissued and are in force and the executor or administrator is still aliveand can answer the order of the Court. In the instant case lettershave not issued and the applicant for letters of administration is deadand no question of recall of letters and the revocation thereof arises.
We therefore allow the appeal and set aside the order of the learnedDistrict Judge and declare that the appellant is entitled to seek to provethe will in these proceedings and that there is no requirement in lawthat she should have the order in the Chilaw case vacated.
The appellant is entitled to her costs both here and below.
Sdstnetamby, J.—I agree.
ABEYARATNE, Appellant, and WIJEMANNE and others, Respondents