Civil Procedure Code, sections 150(1), 386, 528, 529(2), 532(1) and 533 -Publication – Objection to grant of letters claiming that there is a valid marriageto deceased, seeking letters – Inquiry – Who should begin?
The petitioner – respondent instituted action seeking Letters of Administrationin respect of the intestate estate of one “A”. Upon notice published, the petitionerfiled objections denying the marriage of the petitioner respondent to thedeceased and asserted that she had a valid marriage, to the deceased – andsought Letters.
The trial judge made order stating that the petitioner who filed objectionsshould begin the case.
The petitioner does not admit the petitioner – respondent’s story.
that the petitioner – respondent was married to the deceased; thereforethe burden is on the petitioner – respondent. It is for the petitioner to rebutthis fact by leading satisfactory evidence that it was otherwise.
a person who wishes to prove anything should begin, and at such trial it iscompetent to the respondent to make use of the evidence adduced by thepetitioner to obtain order nisi to rebut the petitioner’s case.
the rules as to right to begin are also found in the Explanation to section150 of the Code.
APPLICATION in revision from an order of the District Court of Galle.
Amarasooriya and Others
AMARASOORIYAVSAMARASOORIYA AND OTHERSCOURT OF APPEALAMERATUNGA J., ANDWIMALACHANDRA, J.,
A. REV: 408/2003
C. GALLE 120/PROBATEJULY 28, AND
2nd November 2004
K. WIMALACHANDRA, J :
This is an application in revision from the order dated 29.11.2002 madeby the learned Additional District Judge of Galle.
Briefly, the facts relevant to this application as set out in the petition areas follows:
Th petitioner-respondent (hereinafter referred to as “the respondent”)instituted action in the District Court of Galle on 12.10.2001 bearingNo: 120/Probate, by way of petition and affidavit under section 528 ofthe Civil Procedure Code for letters of administration in respect of theintestate estate of the deceased Lalaka Amarasooriya. The Court orderedthe required publications to be made in terms of Section 529(2) of theCivil Procedure Code. Upon the notice being published, the 3rd■ respondent-petitioqer (hereinafter referred to as “the petitioner”) filedobjections admitting only the date of death of the deceased and denying,inter alia, the marriage of the said deceased Amarasooriya to therespondent and asserted that the respondent is not entitled to the lettersof administration to the estate of the deceased.
Moreover, the petitioner in her objections has averred that she had avalid marriage to the deceased and that the marriage was registered inNovember 1970 at Matara. Futhermore she has asserted that she had five
17SSri Lanka Law Reports(2005) J Sri L. R.
Cases referred to :
Perera vs Dias – 2 NLB 66
Aghore vs Premachand – 7 CLR 274
Gunasekara vs Lalith- (1991) Sri LR 365
Wijetunga vs Thangarajah – (1999) 1 Sri LR 53
S. F. A. Cooray for respondent – petitioner.
J. C. Weliamuna for respondent – respondent.
Cur. adv. vult.
Amarasooriya and Others
children by that marriage. The petitioner, accordingly, sought letters ofadministration to the estate of the deceased.
The learned Additional District Judge fixed the matter for inquiry. At theinquiry the petitioner made an application that the respondent should beginthe case. The learned Judge heard both parties and made order on
that the petitioner should begin the case. It is against thisorder the present application in revision has been made. In his short orderthe learned Judge held that the party filing the objections must begin thecase.
The procedure to be followed where there are objections to an applicationmade under Section 524 or 528 is found in Section 532(1) of the CivilProcedure Code.
Section 532(1) states as follows :
“If any objections are received in relation to any applicationunder section 524 or 528 in response to a notice publishedunder section 529, on or before the date specified in such noticein respect of such application the court shall proceed to hear,try and determine such application in accordance with theprocedure herein provided and may for such purpose name aday for final hearing and disposal of such application and may,in addition, make such order as it may consider necessaryunder section 541 hereof."
It appears that in terms of Section 532 of the Civil Procedure Code ifany objections are received in relation to any application under Section524 or 529 in response to a notice published under Section 529 the Courtis required to hear, try and determine such application in accordance withthe procedure herein provided.
The procedure to be followed is laid down in Section 533 of the CivilProcedure Code. It states that if on the day appointed under Section 532(1)for final hearing, the person filing objections satisfies the Court that thereare grounds for objecting to the application, worthy of being tried on oralevidence, then the Court must frame issues which may arise between theparties, and direct them to be tried on a day to be then fixed under Section386.
Accordingly, it is clear that after framing the issues the inquiry shouldbe held in terms of Section 386 of the Civil Procedure Code. According toSection 386 the issues shall be tried in conformity with, as nearly as maybe, in a manner consistent with the rules prescribed for taking of evidenceat the trial of a regular action.
In the case of Perera Vs Dias01, Bonsor, C. J. at page 67 explainedSection 533 as follows :
‘The language of section 533 is somewhat ambiguous; it refersto Section 386 as to the procedure to be adopted. Grammatically,the words, for the purpose under section 386, refers to the word‘appointed’, but that cannot be the meaning. They must refer tothe word ‘fixed’. What it means is that you are to go to section386 to see how the issues should be tried..
Now section 386 provides that 'issues’, when they are framed,are to be tried in conformity with, as nearly as may be, the ruleshereinbefore prescribed for the taking of evidence at the trial of aregular action, and it appears to me that, that means that theprocedure is to.be the ordinary procedure in a regular action, that
• is to say, that the person who wishes to prove anything shouldbegin.”
In Perera Vs Dias, (supra) Bonsor, C. J. held that the procedure in thetrial of issues framed under Section 533 is the ordinary procedure in aregular action. That is to say, the person who wishes to prove anythingshould begin, and at such trial it is competent to the respondent to makeuse of the evidence adduced by the petitioner to obtain order nisi to rebutthe petitioner’s case, (emphasis added)
The rules as to right to begin are also found in Explanation 1 in Section150. It states as follows :
“Explanation I – The plaintiff has the right to begin unless wherethe defendant admits the facts alleged by the plaintiff, and contendsthat either in points of law or on some additional facts alleged bythe defendant the plaintiff is not entitled to any part of the reliefwhich he seeks, in which case the defendant has the right tobegin.”
180Sri Lanka Law Reports(2005) t Sri L. R.
A similar provision is found in Or. 18 R. 1 of the Indian Civil ProcedureCode. Sarkar’s Law of Civil Procedure 8th edition at page 837 states that;
“Plaintiff had the right to begin unless defendants admitted all the‘material allegations’ in the plaint (AghoreV. Premachandara,)
Cross on Evidence 6th edition at page 241 states ;
“the plaintiff has the right to begin unless the defendant has theburden of proof on every issue, and in this context ‘burden of proofmay be taken to mean evidential burden”
The question as to the party who should begin the case is linked to thequestion on whom the burden of proof lies in a suit. According to theExplanation (1) of section 150 of the Civil Procedure Code the plaintiff willhave to begin the case unless the defendant admits the plaintiff’s storyand contends on some point of law or additional facts to be alleged byhim, that the plaintiff is not entitled to any part of the relief, he claims, thedefendant has the right to begin (vide Gunasekera Vs. Latiff! )
For example in a vindicatory action when the legal title to the premisesis admitted the burden of proof is on the defendant to show that he is inlawful occupation. Then the defendant would have to begin the case (see-Wijetunga Vs Thangarajah. )
In the instant case, the petitioner does not admit the respondent’sstory, that the respondent was married to the deceased LalakaAmarasooriya. In this situation it seems to me that the respondent shouldstart the case as the burden is on the respondent to prove that the deceased,Lalaka Amarasooriya was married to the respondent. Thereafter it is forthe petitioner to rebut this fact by leading satisfactory evidence that it wasotherwise.>
In view of the foregoing reasons, the contention of the learned counselfor the respondent that the burden lay with the petitioner to begin the casecannot be maintained and is untenable. Accordingly, the order made bythe learned Additional District Judge on 29.11.2002 is set aside. Theapplication in revision is allowed. In all the circumstances of this case Imade no order as to costs.
AMARATUNGA, J. -1 agree.
CAAmarasooriya vs[ 81
Amarasooriya and Others
AMARASOORIYA vs. AMARASOORIYA AND OTHERS