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Present: Dalton J. and Jayewardene A.J.
CORNELIS APPUHAMY v. APPUHAMY et al.
190—D. C. (Inty.) Kalutara.
Administration—Deed of separation between husband and wife—Husband's right to administer wife's estate—Civil Procedure Coders. 623.
A husband is entitled to have issued to him letters of adminis-tration to his deceased wife's estate, even though they had been livingapart, in terms of a deed of separation entered into betweenthem.
PPEAL from an order of the District Judge of Kalutara.
This was a testamentary action in which the appellant
applied for letters of administration to the estate of his deceasedwife. The parties had been married in 1911 but in 1913 they enteredinto a deed of separation. The learned District Judge held thatin view of the terms of th6 deed the petitioner had no interestin his wife's estate and that he had no right to administer it.
H. V. Perera, for appellant.—Under section 523 of the CivilProcedure Code the surviving spouse has a preferential right toadminister. It is not necessary when a surviving spouse makes anapplication under this section to go into the question whetherthe petitioner was the deceased’s heir or not. The agreement ofseparation entered into between husband and wife does not divestthe husband of his rights of inheritance. The agreement does notdissolve the marriage, and it ceases to have any effect when oneof the spouses dies. In AppuJiamy v. Menika1 a claim by a,5mnahusband who is not an heir to his wife to administer his deceasedwife's estate was upheld.
Soertsz (with him D. E. Wijeywardene), for respondents. Thepreferential right to administer given under section 523 may berenounced and that has been done by clause 4 of the deed of separa-tion. Even if there is no renunciation, still the Court may use itsown discretion and issue letters of administration to some otherperson than the husband.
March 17, 1926. Dalton J.—
This is a testamentary action in which the appellant applied forletters of administration to the-estate of his deceased wife namedDona Emalishamy. The parties had been married in 1911, but
* (1916) 19 N. L. R. 149.
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in January, 1913, for certain reasons set out in the deed they entered 1326,
into a deed of separation. That deed is in evidence (Rl), and it Dalton jr.
-was a notarial agreement. The learned District Judge, on the „r
application coming before him, came to the conclusion that in Appuhamy*.
view of the terms of the deed Rl, the property of the intestatemust devolve as if she had died unmarried, and in the circumstancesthe petitioner had no interest in her estate, and as there was nochild of the issue of the marriage to inherit it he had no claim toadminister the estate. The petition was dismissed with costs.
From that dismissal lie appeals to this Court, and two groundshave been urged in support of the appeal: first of all, that therights of inheritance of the petitioner, the husband, are not lostunder the agreement and, secondly, that under the provisions ofsection 523 of the Civil Procedure Code the claim of the widower,in any case of a conflict of claims to grant of letters of administration,shall be preferred to all others. Dealing with the second groundof appeal, there is no doubt as to the clear and explicit terms ofsection 523. That section has been commented on in the case oEAppuhamy v. Menika (supra). As Wood Renton C.J. points out theclaim of the widow or widower should be preferred to all others,and it is set out in this section in peremptory language, language,he adds, to which it is impossible not to attach great significance.
That case also is in authority for the proposition that although thehusband may have no beneficial interest in his wife’s estate afterher death, yet he may be still entitled to be her administrator.’
That decision centred round the question of Kandyan law withregard to the rights of a biuna husband, but the principle thereapplied would appear to be applicable in this case for our disposal.
It has been argued, however, for the respondent that here in deedRl the husband has explicit}' renounced his rights to administerhis wife’s estate. That argument has been strenuously urged onbehalf of the respondent by Counsel, but I am entirely unable toagree with him that there is either under section 4 or section 5 ofthe deed any renunciation by the husband of his right to administerthe estate of his wife on her death. The language, in my opinion,is not capable of such an interpretation being put upon the section,and I would hold that there is, in fact, no renunciation of thisright in the deed. With reference to the further question withregard to the alleged rights of inheritance of the husband, it seemsto me it was not necessary for the learned Judge to decide thatpoint in the matter that came before him on this petition as far asit related to the claim of the husband'', the appellant, for letters ofadministration. It was in no way relevant to appellant’s claim.
He has however dealt with it, and it is necessary for this Courtin the circumstances to make an order in respect of .that conclusion.
'The order of the Court, in mv opinion, should follow the order made
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in a case where the circumstances were similar. It is reported asa footnote to the case of Appuhamy v. Menika (supra), to which Ihave already referred, at page 151.
The order, therefore, that I will make in this appeal is an orderquashing the proceedings before the learned trial Judge anddirecting that letters of administration be issued to the appellantas applied for, leaving it open to the respondents at the propertime to raise the question of the appellant's right to share in thedistribution of the estate. In view of the learned Judge's suggestionthat there * might be waste on the part of the appellant should. letters of administration be granted to him it would be the dutyof the Court on issuing a grant of letters to see that adequatesecurity is given by him.
There will be no order as to costs in the lower Court, but theappellant will be entitled to the costs of the appeal.
Jayewabdene J.—I agree.
CORNELIS APPUHAMY v. APPUHAMY et al