029-NLR-NLR-V-19-APPUHAMY-v.-MANIKA.pdf
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Present : Wood Benton C.J. and De Sampayo J.APPUHAMY v. MENIKA.
58—D. C. Kurunegala, 1,371.
Conflict of claims for grant of letters of administration—Binna husband—
“ Widower, ”—Civil Procedure Code, s. 523.
A binna husband is, on -his wife’s death-, entitled to the preference,in case of a conflict of claims, for grant of administration to his-wife’s estate.
rjlHE facts appear from the judgment.
E. T. de Silva, for the appellant.—The terms of section 523 ofthe Civil Procedure Code are imperative, and gives the husband theright to administer the wife's estate. Claims to a share of theestate by inheritance do not arise at this stage. See 25—D. C.Badulla, 483.
J. S. Jayewardene, for the respondent.—Section 523 contemplateswidowers who would be heirs under the rules of intestate succession(later). Counsel cited Ram. 1860-62, p. 5. Under the old “ rulesand orders ” which contained the identical provision, binnawidowers were not granted letters of administration to their wife’s-estate.
E. 7*. de Silva, in reply, cited Ram. 1877, p. 26. Husband isbest able to protect the interests of children. The plain meaning .should be given to section 523.
1916.
15-
Cur. adv. vult.
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1916. May 22, 1016. Wood Benton C.J.—
Appuhamy This appeal arises out of a conflict of applications for letters of
v' Menika administration to the estate of a woman, TJkku Amina, who hasdied intestate. The one application is by a- full sister, DingiriArnma, and the other, on the finding of the learned District Judge,is by the husband, to whom she was married in binna. The DistrictJudge has held that under Kandyan law the binna husband has nointerest in his deceased wife’s estate, and that, therefore, the properparty to administer it is the full sister Dingiri Amma. The questionwe have to consider, therefore is whether a binna husband, on thedeath of his wife,- is a “ widower ” within the meaning of section 523of the Civil Procedure Code. At the close of the first argumentbefore us, my brother De Sampayo and I delivered judgment at once,answering this question in the affirmative. Subsequently, however,and before the decree passed the seal of this Court, Mr. J. S.Jayewardene, the respondent’s counsel, called our attention to thecase of D. C. Kandy, No. 338 1 in which it was held by SterlingA.C.J. and Morgan J. that a binna husband has no right or interestin his wife’s estate after her death, and that he is not entitled to beher. administrator. We thought it desirable, therefore, to put thecase down for further argument as to the effect of that decision.We have now had the advantage of hearing counsel on both sidesupon this question.
In my opinion the conclusion at which we originally arrived iscorrect. The case of D. C. Kandy, No. 338,1 no doubt supportsMr. Jayewardene’s contention, and there is another authority, atleast, to the same effect in In re the Estate of Muttu Pulle, 2 althougheven under the old law the authorities were not unanimous.3 Butthe rules and regulations under which these cases were decided, 4while they no doubt indicate that a preference was intended to beassigned to the widow or widowrer of an estate in claims foradministration, do' not express that preference in the peremptorylanguage of section 5’23 of the Civil Procedure Code. Under thatsection the claim of a widow or widower is to be preferred to allothers, language to which it is impossible not to attach great signi-ficance when we compare it with the terms of section 519. In thelatter section express provision is made for the selection of a properperson as a grantee of letters of administration with the will annexed.The point of which ■we have now to dispose arose recently in 25—D. C.(Inty.) Badulla, B 483. yhen the matter caine up for argument,it was admitted, on behalf of the respondent, that, in view of the• provisions of section 523 of the Civil Procedure Code, the appellant’sclaim wTas ■widower to administer the estate of his deceased wifemarried in binna could not be resisted, and the claim was restricted
1 Ram. 1860-62, p. 5.* 3 Lot. 193.
33 Lor. 159; 1877 Ram. 26.
4Section IV.
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to one of joint administration with him. In disposing of the oase1916.-
on the appeal, my brother De Sampayo called attention to the factwood
that the District Judge had made an inquiry into the question of Renton CJ.binna or diga marriage, as if it were relevant to the respondent’s Appuhamyiclaim, and pointed out that there was no legal authority for such v. Menika<a proposition. In my opinion, for the purpose of section 528 of theCivil Procedure Code, a binna husband is on his wife’s death awidower, and his claim is entitled to the preference conferred bythat section. There is, I think, nothing unreasonable in thisconstruction of the law. Even although a binna husband may haveno pecuniary interest in his wife’s estate, he has interests of anotherkind. He is still her husband and the father of her children, andit is quite right that; he should have an opportunity of seeing thathis wife’s estate is properly dealt with, and that the position of thechildren in regard to it is adequately safeguarded.
1 would set aside the order of the District Judge directing grantof administration to the deceased’s estate to her sister DingiriXmma, and would direct administration to be granted to herhusband. The appellant is entitled to the costs of the appeal.
.De Sampayo J.—I agree.
Set aside.