005-NLR-NLR-V-05-FERNANDO-v.-DOCHCHI.pdf
( 15 )
FERNANDO v. DOCHCHI.
D. 0. Neyombo, 3,162.
Intestate estate—Right of widow to convey—Worth of estate—Civil ProcedureCode, s. 547—Onus probandi.
Bonsbr, C.J.—If a person desires to prove title to property deduced—through a former owner who has dird intestate, he must prove one oftwo things: either that administration had been taken out to the intes-tate and that the administrator has conveyed the intestate’s estate tohim or to his predecessor in title, or that the intestate's estate was ofless value than Bs. 1,000, so that administration was unnecessary.
1901.
February 28and
March 1.
T
HIS was au action for declaration of title in plaintiff’s favourand for ejectment, on the footing that the land claimed had
been adjudged to be the property of one Telenis in suit No. 6,858of the District Court of Negombo, and that plaintiff had purchasedit from Telenis’s widow. The second defendant pleaded that thedecree in case No. 6,858 did not bind her; that Telenis’s widowhad no right to sell the land; and that it belonged to her and thefirst defendant, her husband, since deceased, by prescriptive pos-session. On the -trial day it was contended for defendant thatTelenis’s widow had no right to sell the land without, first obtain-ing letters of administration, as the estate was worth more thanRs. 1,000. Upon the District Judge ruling that section 547 of theCivil Procedure Code did not apply to the case, and that the actionwas maintainable, counsel for plaintiff suggested that the first issue
1901.
February 28and
March 1.
16 j
for triul was whether the second defendant was the lawful wifeof the first defendant, deceased. The District Judge upheldthis contention and called upon the second defendant to begin.
As she failed. to adduce evidence, he entered judgment forplaintiff.
The second defendant appealed.
Wendt, for appellant.
Moryan, for respondent.
1st March, 1901. Bonser, C.J.—
It seems to me that this trial has miscarried. All partiesseen, to have been more or Jess at cross purposes. The DistrictJudge held wrongly that section 547 of the Civil Procedure Codedid not apply to this case. This is a case in which the transfereeof the widow of a man who d;ed intestate seeks to recovercertain land which he alleges formed part of the intestate s estate,and which therefore the widow had a right to convey to him.Now. the question whether the widow had a right to convey to himwill depend on whether the estate was worth less.in value than athousand rupees; and that is for the person who seeks to makeout title to prove affirmatively. If the estate of the deceased wasworth more than a thousand rupees, he can only have title by aconveyance from the administrator of the estate. I repeat what Isaid in a recent case, No. 11,584, D. C., Kandy, which came up inappeal on the 13th of this month: “ It seems to me that if a person“ desires to prove title to property and finds it necessary to deduce" a title to that property either from or through a former owner“ who has (lied intestate, he. must prove one of two things: either“ that administration has been taken out t.o the intestate and that“ the adminstrator has conveyed the intestate’s estate to him or to“ his predecessor in title, or that the intestate’s estate was of less" value than Us. 1,000, so that the administration was unnecessary.
The order we will make in this case is that the case be sentback for a- new trial on the following issues:(1) as• to the
value of the estate of the intestate Telenis Fernando: if theplaintiff proves that the eKt.ate was less in value than a thousandrupees, so that it was unnecessary to take out administration andtherefore the heir could convey, there will be a further issue;(2) whether, under the circumstances the widow of TelenisFernando was entitled to sell for the purpose of raising money forthe prosecution of the supposed murderers of her deceasedhusband; (3) whether this defendant, was estopped by thejudgment in case No. 6.858 of vhe District Court of Nogombo;
( 17 )
(4) whether the two defendants were husband and wife; and (5)gg
whether the defendants can make good their statutory plea undersection 3 of Ordinance No. 22 of 1871 of possession for more thanten years.
Browne, A.J., agreed.
and
March 1.
Bonser,
C.J.
♦