060-NLR-NLR-V-46-DHAMMANANDA-THERO-Appellant-and-PEMANANDA-THERO-Respondent.pdf
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Dhammananda Thero and Pemananda Thero.
1948
Present: Keuneman and Rose JJ.
DHAMMANANDA THERO, Appellant, and PEMANANDA. THERO, Respondent.
12—D. C. (Inty.) Colombo, 10,590.
Last Will—Appointment by incumbent of successor—Testamentary instrumentaffecting property—Civil Procedure Code, s. 518.
An instrument in writing by which the incumbent of a Templeappoints his successor is a will provided it is drawn up in proper form.
Bnch an instrument is one by which property is affected within, themeaning of section S18 of the Civil Procedure Code.
The fact that the construction of a will may give rise to difficulty is nota good ground for refusing to grant probate.
(1942) 43 N. L. R. 394.
Vtl
BOSE J.—Dhammatumda Then and Pemananda Then.
PPEAL from an order of the District Judge of Colombo.
H. V. Perera, K.C. (with him Dodwell Gunawardana), for petitioner,appellant.
A. Rajapakse, K.C. (with him Kingsley Herat and T. B. Dissanaike),for objector, respondent.
Cur. adv. vult.
March 22, 1945. Rose J.—
In this matter the appellant asks for probate of a will. It appearsthat the testator, a Buddhist priest, was the incumbent of a certaintemple and that there was consequently vested in him a power to appointhis successor from among his pupils. He purported to exercise thispower by the instrument of which probate is requested. No point hasbeen raised as to the form of the instrument, which in that respect wouldseem to comply with the requirements of the law as to a will.
The appellant was appointed executor of the will and it is thereforecontended on his behalf that on that ground alone the will is entitled tobe admitted to proof, provided that “ property is in any way affected ”within the meaning of section 518 of the Civil Procedure Code. I wouldadd that it is common ground that an incumbent .may amongst othermethods be appointed by will—indeed, as was pointed out in PiyatissaTerunnanse y. Somanapala Terunnanse1, while the more solemn the formof nomination the easier will be the proof, there is no particular formrequired—and that the right to such an incumbency is a legal right andnot purely an ecclesiastical matter, as was held in Devarakkita v.Dharmaratne3.
Section 518 reads as follows:—" (1) When any person shall dieleaving a will under or by virtue of which any property in Ceylon is inany way affected, any person appointed executor therein may apply- tothe District Court …. to have the will proved and to haveprobate thereto issued to him .”
Counsel for the respondent contends, in the first place, that there is adistinction between the conception of a will in England and according tothe Roman-Dutch Law and that according to the latter, which he suggestsis operative in Ceylon, the instrument in question is not a will at all,in that it does not purport to dispose of any property; and secondly, inthe alternative, that by the mere appointment of an incumbent noproperty in Ceylon is “ affected ” within the meaning of the section.
For the first proposition he relies on a definition contained on page 1 ofSteyn on The Law of Wills in. South Africa where it is said that “ awill or testament is the declaration in proper form by the person makingit, the testator, with regard to the disposal of his property after hisdeath also on a somewhat similar definition contained in Maasdorp’sInstitutes of South African Law at page 146 where it is stated that“ a will is a declaration made by any person during his life-time as towhat he wishes should become of his property after his death Thisdefinition appears to be based on a passage in Voet. Counsel further
1 40 N.L. R. 262.
* 21 N. L. R. 266.
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BOSS J.—Dhammananda There and Pemanmda There.
suggests that the terms of the Wills Ordinance (Cap. 49 of the Legislativeenactments of Ceylon) are consistent with his submission in that theyrelate exclusively to wills which dispose of properly.
Bveh assuming that Counsel is correct in his contention that theRoman-Dutch conception of a will is the one to be considered, it seemsto me that it would be incorrect to assume that the definitionscontained in Steyn and Maasdorp are intended to be exhaustive.' Thesame observation would seem to apply to the Wills Ordinance, and Iconsider that the better view is that a wider meaning should he given tothe term “ Will ” and that a will should be regarded as including anytestamentary document drawn up in proper form.
As to the respondent's second proposition, I would point out that thephrase “ in any way affected ” is not a term of art and, that being so,the legislature have made use of a very wide • expression. It seems tome that according to the ordinary usage of language it cannot reasonablybe held that property is not affected by the appointment of a personto administer it, as it is unlikely that any two persons would administerproperty exactly in the same manner.
Counsel for the respondent referred to an old case, Re ElizabethTomlinson 1 to show that even in England the mere appointment ofan executor is insufficient to entitle a will to probate. That case, how-ever, refers to the will of a married woman, who at that date was subjectto certain disabilities, and in so far as wills in general are concerned itwould seem' to be against his contention. The learned President in thecourse of his judgment said as follows:—“ Where the will is of a manor a femme-sole the appointment of an executor has been held sufficientto entitle the will to proof; but where it is the case of a married womanexecuting a power by will different considerations arise …. Inthe case of a femme-sole making her will the rule applicable to wills ingeneral would, of course, be put in force, namely, that the appointmentof an executor prime facie entitles the will to be admitted to proof ”.
I would add that the fact that the construction of this will may wellgive rise to difficulty is not in my opinion a good ground for refusing togrant probate.
For these reasons the appeal must be allowed, the judgment of theDistrict Court set aside and the Order Nisi dated September 9, 1943, madeabsolute. The appellant will have the costs of the proceedings here andbelow.
Ketonema.n J.—I agree.
Appeal allowed.
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i (1881) 6 P. D. 209.