010-NLR-NLR-V-75-D.-R.-FERNANDO-Appellant-and-K.-A.-MAGLIN-HAMINE-Respondent.pdf
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Fernando v. Maglin nomine
1971 Present: G. P. A. Silva, S.P.J., and Samerawlckrame, J.R. FERNANDO, Appellant, and K. A. MAGLIN HAMINE,RespondentS. C. 417/68 (F)—D. C. Colombo. 399/R.E.Civil Procedure Code—Sections 338, 341, 394 (2), 398, 647—Husband and wife livingin Separation-Death of husband—Appointment of the wife as legal representativeof the deceased husband—Validity —Expression “ next of kin ”—It includes awidow who is an intestate heir—Rent Restriction Act.
G. P. A- SILVA, S.P.J.—Fernando e. Maglin Hamine
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Where husband and wife have been living in separation because of crueltyon the part of the husband, and the wife has been in receipt of maintenancefor herself as ordered in a maintenance case, the wife is nevertheless entitledto assert her rights to the assets of the husband upon the husband’s death.Accordingly, on the death of the husband, the wife may be substituted aslegal representative in execution proceedings against the husband in respectof a decree entered for his ejectment from rent-controlled premises.
The expression *' next of kin ” in section 394 (2) of the Civil Procedure Codeincludes a widow who is an intestate heir under the Matrimonial Bights andInhsritance Ordinance No. 16 of 1876.
Appeal from a judgment of the District Court, Colombo.
Q.P. J. Kurukukuuriya, with Mrs. N. Dambawinna, for the petitioner-appellant.
R. P. Qoonetitteke, for the plaintiff-respondent.
Our. adv. vuU.
May 19, 1971. 6. P. A. Silva, S.P.J.—
On the 5th of July, 1965, the plaintiff-respondent in this case sued oneD. W. M. Fernando (since deceased) for arrears of rent and ejectmentfrom premises No. 203, Galle Road, Wellawatte, in which the defendantcarried on a business in groceries and sundries which was duly registeredin his name under the Business Names Ordinance in April, 1961. Thepremises in question came within the purview of the Rent Control Actand, the rent having fallen into arrears for over a month after it becamedue, the plaintiff on or about 30th March, 1964, gave notice to the defend-ant to quit and deliver vacant possession of the said premises at theend of 30th June, 1964. The defendant however continued in unlawfuloccupation of the premises, and, at the time action was instituted, thearrears of rent amounted to Rs. 3,043*10. Although the defendantin his answer took up the position that he obtained the premises on rentfrom one Gamage Jane Perera (whose executrix the plaintiff was) andthat he was unaware as to the person who was entitled to receive therents after her death, at the trial on 28th June, 1966, he consented tojudgment in a sum of Rs. 6,087*40, ejectment and further damagesat Rs. 138*35 per month from 1st June, 1966. The amount due howeverwas to be paid in instalments and it was agreed that, if the defendantmade the instalment payments without any default up to 30th June, 1968,satisfaction of decree would be entered and the defendant would beallowed to continue in occupation of the premises in suit on a freshcontract of tenancy as from 1st July, 1968. It is important here tonote that the defendant stated to court 'that he had no subtenantsand undertook not to sub-let the premises and agreed that if he subletthe premises or any part thereof, writ was to issue after notice andinquiry.
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G. P. A. SILVA, S.P.J.—Fernando v. Maglin Hamine
On 4th July, 1967, the plaintiff filed papers under section 398 of theCivil Procedure Code, stating that the defendant in the case died on31st May, 1967, and applied for substitution of P. Sumanawathie, thedeceased defendant’s wife, as the legal representative in order to enablehim to take out writ and to take the other necessary legal steps in thecase. Considering the stage that this case had reached it seems to methat the application to court should have been made under section 341of the Civil Procedure Code. She was however substituted and on anapplication being made by the plaintiff a writ of ejectment was issuedagainst her on 2nd December, 1967.
On 5th December, 1967, the petitioner-appellant, a brother of thedeceased defendant, moved the court to stay execution of decree on theground that the decree could not be enforced by virtue of section 4 of theRent Restriction (Amendment) Act No. 12 of 1966 and stated that hewas a dependant of the defendant and had been managing and carryingon the business of the defendant during the latter’s lifetime and hadcontinued to do so after his death, that he had adiated the inheritanceand that he was therefore entitled to the tenancy of the premises byvirtue of section 18 of the Rent Restriction Act. He also averred that thesubstituted" defendant-respondent, the widow of the defendant, haddeserted the defendant taking with her their only child about five yearsprior to the death of the defendant and that she was receiving mainte-nance by virtue of an order of court in case No. 31946, Magistrate’sCourt, Colombo. Ho therefore contended that she did not adiate theinheritance and that the substitution as defendant onjthe death of herhusband was bad in law. The learned District Judge having inquiredinto this petition dismissed it holding that the substitution of the widowwas legally correct, that the petitioner, although a brother of the defend-ant, was not a member of his household and was therefore disentitledto the tenancy on the death of his brother and further that the deceaseddefendant’s tenancy had been terminated by a valid notice to quit andalso by the entering of a decree and his being allowed to remain in thepremises was a personal right which could not be passed on to another.The present appeal is from this order. I
I shall first deal with the question of the correctness of the substitutionof the widow in place of the deceased defendant. It is common ground,that the widow was, for some years during the lifetime of the husband,living in separation with this child and that she was in receipt of main-tenance for herself and her child from somewhere in 1963, that is, forabout four years at the time of his death. It is important to note thatthe ground of separation was cruelty on the part of the deceased defendantand the proceedings in the maintenance case show that at the inquirythe defendant only stated that he intended to file a divorce case andconsented to pay maintenance without prejudice to his rights in thedivorce action. There is no evidence however that such a divorce casewas filed by the defendant. The evidence at the inquiry into the presentapplication which the learned District Judge presumably accepted waa
G. P. A. SILVA, S.P. J.—Fernando v. Maglin Hamine
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to the effect that the widow went to the premises in question on thedeath of the husband to take over the assets but that she was not allowedto do so by the petitioner and that she had made a complaint to the.Police to that effect. In these circumstances, if she was prevented bythe appellant from asserting her rights, I cannot say that the learnedDistrict Judge misdirected himself in holding that the substitution ofthe widow as the legal representative on the death of her husband inexecution proceedings was correct in law. The mere fact of the wifehaving lived in separation from the husband did not'disentitle her andthe child from succeeding to any of his rights just as she and the childbom to her by the deceased would, upon his death, have been entitledto any properties left by him. This position is further strengthened bythe fact that she was living away from him on the ground of allegedcruelty, that she was receiving maintenance on an order of court made-after due inquiry and that she had attempted to assert her rights to hisassets upon his death.
The learned counsel for the appellant contended that the widow, notbeing a blood relation of the husband, does not fall within the category-of “ next of kin ” referred to in section 394 (2) of the Civil Procedure Code.Although the term “ next of kin ” would ordinarily refer to. the nearestblood relations of a deceased person, substitution for 'whom is underconsideration by the court, I do not think that the term would generally-exclude the spouse of a deceased person. In a system of law such as-ours where the spouse of a deceased person has a prior claim to succeedto the latter’s intestate property, according to the Matrimonial Bightsand Inheritance Ordinance, the surviving spouse should in my view beregarded as “ next of kin ” if not in preference to, at least on equalterms with the nearest blood relations.
There is another reason which persuades me to take a view unfavourableto the appellant. The'petitioner-appellant’s evidence that he was carry-ing on business in the said premises with the deceased brother did notimpress the learned District Judge nor, I must say, does it impress me.Apart from his mere statement that he so carried on business, he admittedthat he was not a partner; the Certificate of Registration of the businesscontained only the name of the original defendant; the appellant wasliving at Ratmalana while the deceased lived in the premises in question ;the appellant was not a man of means and had no other employmentand was paid about Rs. 5/- a day for assisting the deceased in the business.Perhaps more important than all this is the fact that when the deceasedconsented to judgment in this case he stated that he h&d no sub-tenantsand undertook not to sublet the premises but was silent as to whetherhe had a brother carrying on business with him, when he had an oppor-tunity to inform the court of this fact if indeed that was the position.This evidence, in my view, did not help to dislodge the rights that thewidow had on the death of her husband nor to establish any right to thetenancy of the premises on his part, even if such a right could haveaccrued to anybody at all, having regard to the stage that the tenancy
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8AMERAWICKRAME, J.—Fernando v. Maglin H amine
case had reached at the time that the defendant died. It is also signi-ficant that, although the defendant died on 31st May, 1967, the appellant,if the right contended for in faot accrued to him, did not take any stepsin court to have himself substituted until December, 1967, particularlywhen he should have known that instalment payments were due to bepaid every month in default of which writ could have issued in terms ofthe decree. Considered from this angle too, therefore, the substitutionof the widow as the legal representative of the original defendant wasproperly done for the purpose of execution proceedings.
In these circumstances, it is unnecessary to deal with the questionsof law that may have arisen had the appellant been one who came withinthe purview of section 18 of the Rent Restriction Act.
The appeal is accordingly dismissed with costs.
Samekawiokbame, J.—
I agree with the judgment of G. P. A. Silva, S.P.J., but I desire to dealwith a point raised by learned counsel for the appellant. He submittedthat a widow is not a blood relation of the husband and therefore does notfall within the class of next of kin in Section 394 (2) of the Civil ProcedureCode. There is no doubt that the proper and primary meaning of“ next of kin ” is the nearest in proximity of blood living at the deathof the person whose next of kin are' spoken of—vide Elmsley v. Young,12 My. & K. 781, and Withy v. Mangles,3 10 L.J. Ch. 391. The term mayhowever be also used in a sense which would include a spouse. As farback as 1807, Lord Eldon in Qarrick v. Canden3, 14 Ves. 372 at 382,said, “ it is competent to and required from the Court to look throughthe whole will; and to see, whether from the whole an intention ismanifested to include the wife amongst those who are to be taken morestrictly as next of kin : a description prima facie excluding her ”.
In Bailey v. Wright,* 18 Ves. 236 at 238, it was said by the Masterof the Rolls, “ The question before'the Court is not, whether the husbandoan in any case or for any purpose be, as he has sometimes been called,the next of kin of his wife ; but whether, according to the true constructionof this settlement, it was intended that the husband should take underthat denomination. In the cases, where the husband has been spokenof as next of kin of his wife, the only thing in question was his right toadminister; and that right has frequently been called his right as nextof kin”.
In In re Oilligan3 (1950) Probate page 32 it was held that “ next ofkin ” in the Wills Aot, 1837 (7 Will. 4, and I Viot. o. 26} s. 18 was intendedto include a widow.
» 2 My. <b K. 781.* 10 L. J. Oh. 891.
■ (1960) Probate 32.
14 Yea. 372 at 382.
18 Vee. 238 at 288,
SAMERAWICKRAME, J.—Fernando o. Maglin Hamine
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In the Roman Dutch Law the term " next of kin ” appears to havebeen sometimes regarded aa synonymous with heirs db intestate. Thereason for this may have been that the closest blood relations or nextof kin succeeded on an intestacy. Van Leeuwen in Roman Dutch Law(Kotze’s trans) Volume I page 385 says, “ It is a common opinion thatby the expression nearest relations is meant not the very nearest to theexclusion of others, but all those who together succeed by law ab intestato,because the words, those of the family, of the house, of the blood, and thelike, are considered to mean the nearest relations ; and under the termsnearest relations without distinction are reckoned those who are suchby succession ab intestato and not those nearest in degree ”. Grotius:Introduction to Dutch Jurisprudence, 2-18-22, is—: “ Friends or rela-tives or heirs by blood mentioned by last will are understood to be meantin the same succession as they would inherit according to the law of theland, unless there was any manifest token of a contrary intention
In 1878, before the Civil Procedure Code was enacted, by the Matri-monial Rights and Inheritance Ordinance a widow became an intestateheir in respect of half share of her husband’s estate. In Samaradivakara v.De Saram1, 14 N. L. R. 321, the Privy Council considered a fideicommis-sary provision under which property devolved on the “ lawful heiin”of the devisees. It was held that the widow would take. Lord DeVilliers said, “ The question still remains whether the first plaintiff, asthe surviving spouse of Edwin, is entitled to any share in the propertiesbequeathed to him. Under the Roman-Dutch law she would nothave been one of his heirs ab intestato, but the 26th section of theCeylon Ordinance No. 15 of 1876 enacts that ‘ when any person shall dieintestate as to any of his or her property leaving a spouse surviving,the surviving spouse shall inherit one-half of the property of such person ’.It is clear from the 25th and subsequent sections that the object of thatportion of the Ordinance was to regulate the course of intestate succession,and to fix the share to which the heirs db intestato should be respectivelyentitled ”.
The term “ next of kin ” may, in a particular context, be used to includea widow who is an intestate heir. The relevant part of s. 394 (2) provides,inter alia, for legal representatives to represent a plaintiff or defendantto an action who has died leaving an estate which is less than Rs. 2,500in value and is exempted from administration. A widow wLc is anintestate heir in respect of a half share under Act 15 of 1876 appearseminently to be a suitable person along with the other heirs to bo legalrepresentatives in place of such a dead party. Prima facie, therefore,“ next of kin ” in the provision should be given a meaning which wouldinclude her.
There is another approach which supports this interpretation. In theRoman-Dutch law there were no executors or administrators and theheir represented an intestate in every way. He could file action to enforce
* {1911) 14 N. L. R. 321.
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SAMER A WICKR AME, J.—Fernando v. Maglin Haminr
a right of his intestate. After the introduction of executors and adminis-trators the administration of the estate of a deceased was vested in themand it was only an executor or administrator who could institute anaction in respect of a right of the intestate. The position has been setout in the judgment of Clarence, J. in Loku Appu v. Banda.1 7 S.C.C.page 3, thus :—“ The administrator appointed by a court of justiceto represent the estate of a deceased person has, it hardly needs to besaid, no place in Roman-Dutch Law. He is an importation from England.By the Charter of 1801 the Supreme Court was empowered to grantprobates and letters of administration. By the Charter of 1833 thesame power was committed to the district court, in whom, under theOrdinance No. 11 of 1868, it still resides. It has been held by this Courtthat the general effect of this is to abrogate the old Roman-Dutch Lawas to representation of deceased persons, and to substitute the EnglishLaw concerning executors and administrators, with this difference,that the administrator here, unlike the administrator in England, takeseverything, including what in England could be called real property.See Staples v. De Saram, Creasy’s Rep. 34 and 28,256 D.C. Galle,Vanderstraaten, 273 ”.
The decision in the case of Loku Appu v. Banda (supra) which wasthat of a Full Court was that where intestate estates are small it is notnecessary to take out administration and that in such cases the heirs olthe • intestate had been recognised by a long series of judicial decisionof the Courts as being the representatives of the intestate estate and werethe proper persons to sue and be sued. Numerous actions have beenfiled by and against heirs of an intestate where the estate was small inrespect of certain claims such as recovery of land or debts.
Whether it was by way of recognition of the existing position of theheirs of intestate estates that'are small or otherwise the provisions of theCivil Procedure Code have recognised that administration is not necessaryin the case of estates under Rs. 1,000/- in value before 1930 and underRs. 2,500/- after that year—vide s. 547 of the Civil Procedure Code.Again, where a party to an action dies leaving an intestate estate ofsuch small value ss. 338 and 394 (2) permit persons other than executorsor administrators to be substituted in his place, namely, next of kinwho have adiated the inheritance.
By reason of a long cursus before the enactment of the Civil ProcedureCode and by reason of the fact that s. 547 does not require administrationin respect of estates of small value heirs to such intestate estates haveand do institute actions to enforce certain rights of the deceased. Thewidow as an intestate heir under the provisions of Ordinance 15 of 1876,would join in instituting such action along with other intestate heirs.Accordingly where a party to an action dies leaving an estate of smallvalue and it becomes necessary to substitute the “ next of kin who haveadiated the inheritance ”, in place of the intestate, there does not seem
1 (1885) 7 S. a. a. 3.
Hirdaramani v. Ra.tnava.lt
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to be any reason why the widow along with the other intestate heirsshould not be joined as legal representatives of the deceased as theywould be entitled to file an action in respect of a right of the deceasedintestate.
I am therefore of the view that “ next of kin ” in Section 394 (2) of theCivil Procedure Code includes a widow who is an intestate heir underOrdinance No. 15 of 1876.
Appeal dismissed.