069-NLR-NLR-V-17-ADORIS-et-al.-v.-PERERA.pdf
1914.
(' ai» )[Full Bench.]
Present: Laecelles C.J., Pereira J., and De Sainpayo A.J.ADORIS et al v. PEREBA.
25—D. C. Colombo, 35,474.
Order nisi declaring mill proved made absolute—Recall of probate—Fraud—Separate action.
When an issue of probate has followed upon an order nisi (andnot upon an order absolute in the first instance), the summaryprocedure for the recall of probate provided in section 537 does notapply, and all parties are concluded by the issue of probate. Butwhere there is fraud in connection with the obtaining of probateeven upon an order nisit an independent action might be broughtto set aside the probate.
T
HE defendant in this case produced in testamentary pro-ceedings No. 3,546, D. C. Colombo, a joint last will purporting
to have been executed by the defendant and his wife, whereby thesurvivor became entitled to the property belonging to either of them.Probate of the last will was granted to the defendant.
Plaintiffs brought this action for the recall of the probate grantedto defendant in respect of the will of defendant's wife (Ran Etana.)Plaintiffs averred in the plaint-—*
* (5) Plaintiffs were not aware of the production of the> last willor of the probate granted in respect thereof.
“ (6) The said Ran Etana had no children, and the plaintiffsare some of the heirs in the event of her having diedintestate.
“ (7) The plaintiffs say that the last will produced and provedin the said action No. 3,546 was not the act and deed ofRan Etana, and probate should noif "have been grantedin respect thereof.”
The learned Additional District Judge (L. Maartensz, Esq.) over-ruled an objection of the defendant that the plaintiffs cannotmaintain this action in view of the provisions of section 537 of theCivil Procedure Code or apart from the section.
The defendant appealed.
E. W. Jayewardene, for defendant, appellant.—Section 537 of theCivil Procedure Code lays down the procedure for the recall orrevocation of probate. Sections 536 and 537 should not be read
( 213 )
together. Section 537 is .not limited to the ground* of recallspecified in section 536, but it was intended to permit appli-cations for. recall of probate on any legal ground. Tissera tr.GooneUUeke.1 A separate action for the recall of probate does notlie in Ceylon. The procedure laid down in the Civil Procedure Codeis a very convenient way of dealing with questions as to the recallor revocation of probate.
Wadsworth, for plaintiffs, respondents.—Sections 536 and 537mu6t be read together. Section 536 gives power to the DistrictCourt to recall or revoke probate or grant of administration incertain cases only, and section 537 only lays down the procedureto be followed when such power is to be exercised. Tissera v.Gunatilleka Hamine.2 The only course open to a person contestinga will admitted to probate is to bring a regular action. Whenprobate has been obtained by fraud, for instance, an action lies to’set aside the judgment in the testamentary action and to have theprobate recalled. Birch v. Birch.3 [Lacelles C.J.-—But here youdo not allege fraud.] Not directly, but the averment in the plaintthat the will was not the act and deed of the deceased amountsto an allegation of fraud. The fraud lies in the averring of a false*statement in the application for probate. Even otherwise, theplaintiff may be allowed an opportunity to specially aver fraud onthe part of the defendant in obtaining probate.
Jayewardene, in reply.
Cur. adv. vult.
March 18, 1914. Lascelles C.J.—
The plaintiffs, who were not parties to the testamentary action*,sue for the recall of the probate of the will of Ban Etana grantedto her husband, the defendant. The ground of action assigned in?the plaint is that the will produced in Court “ was not the act and'deed of Vithanage Ban Etana/’
The first issue framed was as follows:—
“ Can plaintiffs maintain this action in view of the provisions-of section 537 of the Civil Procedure Code, or apart fromthat section, for recall of probate V9
By agreement the question of law involved in this issue was triedfirst, and the learned District Judge, considering himself bound bythe decision of this Court in Tissera v. Gunatilleka Hamine,9 answeredthe question in the affirmative.
On appeal the matter was reserved for consideration by the Full’Court, in view of conflicting decisions. The conflicting decisionsare Tissera v. Gunatilleka Hamine 2 and Tissera v. GooneUUeke/
1 (1912) IS N. L. R. 379.* (1910)13 N. L. R. 261.» (1602) Probate 130.
1914.
Adorie v,Perera
1914*
liAdOBODliES
OJ.
Adoris t>.Perera
( 214 ) _
In the former case it was held that,. where ah order nisi declaringa will proved has been made absolute, an application for the recallof probate eannot be made by summary procedure under section 537of the Civil Procedure Code, and “ that the person attacking thewill must bring an action for the purpose in the ordinary way andmust prove his case. ”
But the words which I have* cited from the judgment cannot be•understood to mean that, when probate has been granted after•order nisi, there exists a general right on the part of interestedpersons to sue to have the judgment set aside and probate recalled.A judgment granting probate of a will is a judgment m rent, and isbinding .on the world. It is true that where probate has beenobtained by fraud an action lies, as in other cases of judgments•obtained by fraud, to set aside the judgment and recall the probate,ithe right being in some respects more extensive than in the caseof ordinary judgments (Birch v. Birch l). But in the present casethere are no averments in the plaint which would support a claimte set aside the judgment in the testamentary case.
In Tiseera v. Goonetilleke 2 Wood Renton J. was disposed to takoa different view of the scope of sections 536 and 537 of the CivilProcedure Code. Section 537, the learned Judge was disposed tothink, was not limited to the grounds of appeal specified in section536, but was intended to permit applications for the recall ofprobate on any lebal ground, whether, under the Code of CivilProcedure or not. But this case merely indicates the dispositionof the mind of the learned Judge, and is not an adjudication on thepoint. In these circumstances it is necessary to give a ruling asto the scope of sections 536 and 537.
I eannot resist the conclusion that these two sections must- beread together. Ignoring the references to administration, the resultis that probate may be recalled in the testamentary action in twoeases only, namely, (1) where probate has issued on an orderabsolute in the first instance, and, as a consequence, notice of theorder has not been given to interested parties, and (2) where eventshave occurred which render administration under the probateuseless. In both these cases application for the recall of probatemust be made in the manner prescribed by section 537, that is, inpursuance of the rules of summary procedure.
These provisions, of course, in no way effect the general jurisdic-tion of the Court to entertain actions to set aside judgments thatare vitiated by fraud.
The result i6 that the .first issue must be answered in the negative.The plaintiffs cannot maintain the action, because, if the circum-stances were such that probate could be recalled under section 536(which is not the case), application should have been made for the
(1902) Probate 130.
2 (1912) U N. L. R. 379. *
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purpose by way of summary procedure in the testamentary action, iM*and, apart from sections 536 and 537, because the plaint does notaver such fraud as is necessary to impeach a judgment,0Jt
I would allow the appeal, and dismiss the action with costs here Adoris v*and in the Court below.Psrm
Pbrera J.—I entirely agree.
Db Sampayo A.J.—
In my judgment in Silva o. Cooray 1 I ventured to express anopinion that sections 536 and 537 of the Civil Procedure Code mustbe read together, and that under the procedure laid down in section537 probate could be recalled only cm the grounds mentioned insection 536. In re Tissera 2 this Court took the same view, and heldthat where probate was issued upon an order nisi, and not upon anorder absolute in the first instance, the summary procedure providedin section 537 did not apply. But I am much impressed with theopinion of Wood Benton J. in Tissera v. Ooonetillehe * that section537 is not* so limited, and that it is intended to permit applicationsfor the recall of probate on any legal ground to be made in thetestamentary case itself. I would have been prepared to assentto such an interpretation of these provisions of the Code, as thatprocedure would be more convenient than and equally affective asan independent action, but what is important is to make a definiteruling, and I agree to the holding that when the issue of probatehas followed upon an order nisi the provisions of section 537 do notapply, and that all parties are concluded by the issue of probate.There might, of course, be fraud in connection with the obtainingof probate even upon an order nisit in which case an independentaction might in analogy to the English practice be brought to setaside the probate. There is, however, no fraud alleged in this case.The plaint only says in effect that the will produced is a forgery,and* all that this amounts to is an allegation that the Court in thetestamentary case ought not, on the material before it, to haveheld the document to have been executed by the deceased. Itherefore agree that this appeal should be allowed.,
Appeal allowedl
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1 {1904) 4 Tomb. 38.* (1910} 13 N. L. R. 261,
9 (1912) IS N. L. R. 379.