FERNANDO v. SOYSA

018-NLR-NLR-V-02-FERNANDO-v.-SOYSA.pdf


( 40 )
1896.
May 15 andJune 5.
FERNANDO v. SOYSA.
D. C., Colombo, 6,796.
cr
Amendment of plaint—Order for amendment—Amendment of issues—Issues, on what material to he framed—Answer of defendant—Executor’s assent to legacy—Insufficiency of assets in executor'shands—Legatee's action for legacy—Technical objections topleadings—Civil Procedure Code, ss. 93, 146, and 720.
Per Bonseb, C.J.—
When a plaint is once accepted by a Court it cannot be
returned for amendment:It is, when so accepted, a part of the
record, and can only be dealt with by the Court.
An order for amendment of a pleading is bad in form if itdoes not clearly specify the amendments to be made.
In the chapter in the Civil Procedure Code dealing with thetrial of actions and settlement of issues there is provision as toamendment of issues and framing of additional issues,, but noneas to amendment-of pleadings. That is dealt with in section T»3,by which power is given to the Court to amend pleadings ; andwhen necessity arises to amend a plaint for the purpose of properlystating the plaintiff’s case, the Judge should make the amendmentsthere and then, and not direct the plaintiff to do so.
A legatee may maintain an action for the legacy against theexecutor of the will under which the legacy is claimed withoutalleging or proving the latter’s assent to the bequest, nor needhe allege or prove sufficiency of assets in the hands of the executorto meet the bequest. Whether the assets are sufficient or not, isa fact' peculiarly within the knowledge of the executor, and hemay plead insufficiency of assets in answer to the legatee’s claim.
( 41 )
Under the Roman-Dutch law a legatee may assert by action 1806.his claim to the legacy. Neither section 720 (6) of the Civil May 16 andProcedure Code nor the provisions of the Code for judicial settle- ■ June 5.men*, of executors’ accounts have the effect of taking away thelegatee’s right to such action.
1H hi facts of the case appear in the judgment of Bonseb, C.J.
Wendt, for plaintiff appellant.Damhorst, for defendant respondent.
Cur. adv. vuU.
5th June, 1896. Bonseb, C.J.—
In my opinion, the order appealed against is wrong both inform and substance.
The plaintiffs are husband and wife, the son-in-law and daughterof the late C. H. de Soysa, who died on the 29th September, 1890,and the defendant is his widow, and the only one of the executorswho has proved.
C. H. de Soysa on the day of his death made a will jointly withthe defendant, whicli contained thl following clause :—“ We have“ given our daughter Fanny [i.e.,:the female plaintiff] on her marriage“ with Doctor Solomon Fernando [i.e., the male plaintiff] property“ of great value, but if the value thereof be under Rs. 200,000“it is our desire that the deficiency should be made up in real“ and personal properly, and she should hold such property upon“ the same terms and conditions as the properly already gifted“ to her.”
It appears that on the plaintiff’s marriage, which took place inNovember, 1887, an estate known as the Andiambalam estate wasconveyed to them, and the conveyance contained a recital that thevalue was Rs. 150,000. The plaintiffs allege that at the date ofthe will and the death of the testator its value was considerablyless than that sum, and that after giving credit for some payments,amounting to Rs. 9,000, made by the defendant after the testator’sdeath, there was a deficiency of Rs. 146,000, which they ask theCourt to compel the executrix to make good in accordance withthe directions of the will.
The plaint was accepted by the District Judge, and cannot be.returned for amendment. It is now part of the record, and canonly be dealt with by the Court. The defendant filed an answer,in which she took various objections, some technical and some of
( 42 )
1896. substance. Issues were framed, and the action came on for trial,
^ June 5”^ w^en> bearing argument, but without taking any evidence,
the District Judge decided that the plaint was insufficient, and
Bonsub, C. J. ma(je the order now appealed against. The grounds of the insuffi-ciency of the plaint were three in number:—
First, that it contained no allegation that the defendant hadassented to this bequest.
Second, that it contained no allegation that the assets weresufficient to answer the bequest.
Third, that it did not state whether the payment claimed wasto be made out of the estate of the testator or out of the jointestate of the two spouses dealt with by the will.
The material parts of the order are as follows :—“ It is ordered“ and decreed that the plaint be amended as directed, and that the“ further hearing of this action be postponed for one month from“ the date of this order to enable the plaintiffs to amend their“ plaint, and that the plaintiffs do pay to the defendant the cost of“ the hearing on the said date as taxed by the officer of this Court;
“ and it is further ordered and decreed that if the plaintifEs shall“ not within the said period of one month amend, their action be“ dismissed.”
Now, in my opinion, this order is bad in form, inasmuch as itdoes not specify what amend Aents are to be'made. They are tobe “ as directed.” By those words I understand the learned.District Judge to refer to his judgment; but it should not be leftto the parties to spell out the meaning of the order from a judg-ment of many pages in length. Moreover, such a form of orderis admirably calculated to afford a defendant opportunities fordelay. When the- plaint has been amended I foresee a long dis-cussion over the question whether the amendments comply withthe order, followed by a further appeal to this Court, with theresult that the decision of the simple question raised in this action •might be indefinitely delayed.
But I go further, and say that no order ought to have been madeon the plaintiffs to amend, even if the plaint were insufficient.
The Civil Procedure Code of 1889 is a copy of the Indian CivilProcedure Code, slightly altered. Now, the English and theIndian systems of pleading proceed on entirely different principles.In England, the parties are left to frame their pleadings in thebest manner they can, and the Judge tries the issues raised on thepleadings. If a pleading is objected to by the other side as in-,sufficient, the Judge decides on the sufficiency or insufficiency ofthe pleading, and if he decides that the pleading is insufficientgives the party leave to amend. He does not as a rule dictate the
( 43 ;
amendments. As Bowen, L.J., once observed, “ the rule that the“ Court js not to dictate to parties how they should frame their“ case, is one that is always to be preserved sacred.”
Under the Indian system the only obligatory pleading is theplaint. No answer is required, but the defendant may, if hepleases, file a written statement of his case.
The Court does not try the case on the pleadings, but uses theplaint and,j;he defendant’s written statement (if any) as materialfrom which to ascertain what are the issues to be tried. They aresupplemented by the examination of the parties, the statementsof the pleaders, and the documents produced on either side. Fromthese materials it is the duty of the Court to frame specific issueswhich it then proceeds to try.
Our Code closely follows the Indian in the matter of pleadings.The principal difference between them is that our Code requiresthe defendant to file an answer. But, like the Indian Code, itdoes not allow the Court to try the case on the pleadings, butrequires specific issues to be framed.
These issues if the parties are agreed may be stated by theparties, but if the parties cannot agree must be framed by the Court(section 146). It is curious that section 146 follows the corres-ponding section of the Indian Code so closely that it does notinclude the answer kmongst the materials to be used in framingthe issues, and thus the answer would appear to have no raisond’etre.
Provision is made under section 149 for the amendment of theissues, but nothing is said in the chapter dealing with the trial andsettlement of issues about any amendment of the pleadings.Section 93, however, provides for the amendment by the Court inits discretion after notice to the parties of all pleadings and processesin the action ; and every such amendment is to be initialledby the Judge. There is no corresponding section in the IndianCode. But I can find nothing in our Code correspondingto those provisions of the English Buies of Court which allow theparties, in some cases without the leave and in other cases withthe leave of the Judge, to amend their pleadings. That omissionis significant.
A further difference between the two systems may be noted.Here and in India the pleadings are filed in Court, whereas inEngland they are merely delivered by the one party to the other.If the amendments are necessary for the purpose of properlystating the plaintiff’s case, the Judge should, in my opinion, havemade them there and then. What he has practically done is toreturn the plaint to the plaintiffs for amendment, which he had
1896.
May 16 andJune 6.
Bonsbb, O.J.
( 44 )
1898. no power to do. This would be in effect to introduce demurrersMay 16 and which have no place in our procedure. But' the ameadmentsJuneSi were not ne(5essary> for reasons which I will now proceed to state…
The first amendment apparently directed was the insertion of anallegation that the defendant had assented to this bequest. It wassaid that being a general pecuniary legacy no action would liefor its recovery until the executrix had assented to it. I asked. for some authority for this' proposition, but in vain. No suchauthority was forthcoming. But Mr. Dornhorst argued thatan action would not have lain in an English Court of CommonLaw for a legacy unless the executor’s assent was alleged andproved, and that this action being a common law action the samerule would be applied.
For my own part I confess that I do not understand what ismeant by calling this a common law action.
In this Island there are not two separate systems of law andequity, nor have we separate courts or two separate sides or divisionsof the same court for their administration. The Roman-Dutch law gives effect to equitable considerations wherever it isnecessary to do justice between the parties.
But in my opinion no English Court of Common Law couldhave entertained such an action as the present to enforce abequest to a married woman, And that a bequest involving a settle-ment as this bequest does. It could only have been maintainedin a Court of Equity.
The ground on which English Courts of Equity exercised theirjurisdiction in the case of legacies was that although the executorwas the. legal owner of the property bequeathed by the will, yetthat it was impressed with a trust in his hands for the benefit ofthe legatee, and the Court compelled him to execute that trust(see Story’s Equity Jur., section 593). The grounds on which thecourts of this Island exercise this jurisdiction is slightly differentowing to the fact that the division of ownership of property intolegal ownership and beneficial ownership, and the correspondingrelation of trustee and cestui que trust, are unknown to theRoman-Dutch law, which is administered in our Courts, but it isin substance pretty much the same. The executor is the ownerof the property, but his ownership is coupled with an obligationto carry out the directions of his testator. That obligation willbe enforced by the Court, which will not allow the executor tokeep the property and repudiate the conditions on which heacquired it. As Mr. Burge expresses it, “ he ” (i.e., the executor inRoman-Dutch law) “ was considered to have come under a quasi
( 45 )
“ contract with those for whose benefit he was appointed. . His“ office resembled, in the obligation which he thus incurred, that“ of procurator, and he was compellable to discharge its duties ’*(vol. IV., p. 736).
1806.
May 15 andJune 6.
Bossssa, C.J.
It is obvious that the assent of the executor to the legacy isimmaterial when the question is that of compelling an executorto do his duty. The rule as to assent by an executor may bestated thus. Wherever it is necessary to prove that a legatee isthe owner *of any property forming part of the testator’s estate,the executor’s assent to the bequest must be proved. For anillustration of this rule see Ondatjee v. Juanis, 8 S. C. G.
The present action is not an action rei vindicatio, and raises noquestion of ownership. It is a personal action against the execu-trix on the question of quasi contract above referred to. It is clearthat according to English law these plaintiffs could sue for theirlegacy without alleging or proving the executor’s assent to thebequest, and I know of no authority which renders that neoessaryhere which is unnecessary in England.
I therefore hold that the order was wrong in directing the firstamendment.
Then as to the second amendment ordered, which was foundedon the proposition that it was necessary to allege and prove asufficiency of assets. No authority, was produced for this propo-sition. It would be unreasonable to require a legatee to allegeand prove a fact peculiarly within the knowledge of the defend-ant. A deficiency of assets might be a good answer to the legatee’sclaim, but it should be alleged and proved by the executoras a reason for his inability to obey his testator’s mandate.I hold that it is unnecessary for a legatee suing for his legacyto allege and prove that the defendant has assets sufficientto meet the legacy.
As regards the third amendment, Mr. Dornhorst admitted inthe course of the argument that the estate of the testator wasquite sufficient to meet the utmost claim of the plaintiffs, andtherefore it is quite immaterial whether the claim is against theseparate estate of the testator or the joint estate. But as I readthe plaint there is no ambiguity in it, and it only claims to havethe deficiency made good out of the testator’s estate.
It was suggested by the District Judge that an action for alegacy does not lie since the introduction of the Civil ProcedureCode, and that the proper course for the plaintiffs would havebeen to proceed by petition under section 720 (6), and if that failedthen to have required a judicial settlement. I cannot agree withthis view. .
9-
( 46 )
1896.
May 15 andJune 6.
Bonbbb, C. J.
It iB admitted that there is no enactment which expressly takesaway the actions which previously existed. These, are stated by .Mr. Justice Thomson to be three in number :—r
A personal action under the will against the representative,
or heir, or any other person charged with the paymentof the legacy, or against the representative for thedelivery of the thing with such increase or decrease asit may have suffered, provided the latter nas not beencaused by the fault of the representative or heir.
An action in rem to recover the thing itself against any
person whatsoever.
An hypothecary action on the ground of the tacit or
implied mortgage which the law gives to legatees inthis respect in all the property which comes to the heirfrom the testator. (Thomson’s Institutes, vol. II., p. 245.)
The present action falls within the first class. The sections inour Code relating to a petition for payment and a judicial settle-ment are taken from the New York Civil Code. On reference tothat Code I find that an action is still, open to a legatee, and thathe is not obliged to have recourse to these remedies. It cannotbe contended that these provisions have the effect in our Codewhich they have not in the New York Code, of taking away thelegatee’s right to assert his claim by action.
I may mention in passing that the framers of our Code appearto have overlooked the fact that the. law of New York respectingimmovable property is entirely different from the law of thisIsland, and that a procedure which is appropriate for the one stateof the law is not appropriate for the other. Thus, section 720 doesnot apply to a case when^ the assets may .be amply sufficient tomeet the legacy but consist of immovable property, for the petitionis to be dismissed “ where the Court is not satisfied that there ismoney or other movable property of the estate applicable to thepayment or satisfaction of the claim ” (section 721).
Again, it would be unreasonable to put the estate to the expenseof a judicial settlement, which no one desires, merely in order toobtain a decision on the construction of a doubtful clause in awill. This would be to adopt the old procedure of the EnglishCourt of Chancery, which was found intolerable and has beensuperseded by a more summary and less expensive form. ofproceeding.
I have given my reasons at this length partly out of respect forthe learned District Judge, and partly because I consider it importantthat there should' be no uncertainty as to the practice inthese matters.
( 47 )
Our order will be that the order appealed from be discharged,and the case remitted to the. District Court for trial of the issues JuntJ-which remain to be tried, and that the defendant pay the costs of Bonshb, 0.J.the appeal and of the partial trial already had in the Court below.
I wish to say, in conclusion, that I regret that the defendant,instead of facilitating the decision of the question, which was avery proper one to raise as to the true construction of this clause,should have thought fit to interpose these technical objections.
Such a conjse involves the parties in needless expense, is calculatedto embitter their future relations, and serves no useful purpose.
Lawbie, J.—
I agree in the order proposed by my Lord the Chief Justice.
I am, however, not prepared entirely to concur with all thereasons expressed in his judgment. I venture to think that itis the duty of a Court to allow, and even to order, any amendmentswhich are necessary to raise clearly the real issue between theparties, and which shall bring out with perfect distinctness thequestions on which they are disagreed.
The mistake which the learned District Judge made in thiscase was to order amendments on points on which the partieswere not at issue.
•
It was unnecessary for the plaintiff to aver the assent of theexecutrix. She had always assented. Nor was it necessary toaver sufficiency of funds. Deficiency of assets had not been pleadedin defence. Sufficiency of funds was admitted. Nor was itnecessary to state out of which estate the plaintiff claimed pay-ment. The parties were not at issue on these points, therefore itwas immaterial whether there were or were not averments in thepleadings regarding them.
As to assent, the executrix states in the third paragraph of theanswer that she has always been ready and willing to carry outthe provisions of the will. That is a sufficient assent.
I feel some difficulty in entirely concurring with my Lord theChief Justice in his statement of the law of this Colony in thematter of assent of an executor. I reserve my judgment shouldthe point ever arise in an action against an executor by a legateewhere the executor has not assented.