092-NLR-NLR-V-66-G.-L.-KARUNAWATHIE-Appellant-and-A.-K.-WILISINDAHAMY-and-others-Repsondents.pdf
SANSONT, J.—Karunawathie v. Wilieindahamy
389
Present: Sansonl, J., and L. B. de Silva, J.
G. L. KARUNAWATHIE, AppeUant, and A. K. WILTSTNDAHAMY
and others, Respondents
8. C. 6211962—D. C. (Inty.) Galle, 6,3601L
Administration of estates—Actio rei vindicatio brought by widow of a deceased person—Letters of administration obtained by her during pendency of action—Maintain-ability of action.
Plaintiff instituted a rei vindicatio action describing herself in the captionof the plaint as administratrix de son tort of the estate of her deceased husband.In the body of the plaint she described herself as the widow of the deceased.The defendants pleaded that plaintiff could not maintain the action since shehad not obtained letters of administration. Subsequently, however, plaintiffobtained letters of administration and she then moved that the caption of theplaint be amended by deleting the words “ de son tort
Held, that, in the circumstances, plaintiff was entitled to have herself addedin her representative capacity as an added plaintiff, but not to be substituted.
.A.PPEAL from an order of the District Court, Galle.
G. Ranganathan, with M. T. M. Sivardeen, for the 1st DefendantAppellant.
G. P. J. Kurukulasooriya, for the Plaintiff-Respondent.
M.T. M. Sivardeen, for the 2-11th Defendants-Respondents.
March 15, 1963. Sansont, J.—
The plaintiff came into Court in this case asking for a declaration oftitle to a land and for ejectment of the defendants and damages, describingherself in the plaint as administratrix de son tort of the estate of herdeceased husband. In paragraph 6 of the plaint she averred that her!•—B. 1026 (64/11)
390
SANSONI, J.—Karanawathie j. Wilisindahamy
husband’s estate is being administered by her, she being liis widow, incertain testamentary proceedings. The defendants filed answer denyingthat the plaintiff could maintain the action in her capacity as adminis-tratrix de son tort. They also denied that she could maintain the actionsince she had not obtained letters of administration even at the time theanswer was filed. Subsequently, however, letters of administration seemto have been issued to the plaintiff and she then moved that the captionof the plaint be amended by deleting the words “ de son tort ”. Theresult of this motion being allowed would have been that the plaintiffwould have been allowed to commence and continue the action as adminis-tratrix. The motion was objected to by the defendants. After inquiry,the learned District Judge allowed the caption to be amended by deletingthe words “ de son tort ”. The defendants have appealed.
Mr. Rang an a than submitted that this was an action brought by theplaintiff in a representative capacity and that since she did not have lettersof administration when she filed the action, the action was bad and shouldbe dismissed. We have, however, to consider the effect of the decisionin Alagakawandi v. Muttumal2, which was a very similar case.There, too, the widow of one Pena Selembram Kangany sued adefendant, claiming possession of certain property and describing herselfin the caption of the plaint as the administratrix of the estate ofthe deceased, but this Court held that, in spite of that, she, having des-cribed herself in the body of the plaint as the widow of the deceased,should be allowed to maintain the action as widow. Similarly here wefind that the plaintiff described herself in the body of the plaint as thewidow of the deceased, Francis Jayawickrema Goonewardene, who shesaid was. the owner of the property. In these circumstances, followingthe decision I have referred to, we think that there is some doubt aboutthe position maintained by Mr. Ranganathan. We think that it ispossibly a case where the plaintiff sued as widow in spite of the descrip-tion given in the caption of the plaint, and as widow she was entitled' toask for a declaration of title and ejectment in respect of the widow’sshare. The action cannot therefore be said to have been bad at itsinception. Now that letters of administration have issued to her, wethink that she is entitled to have herself added in that representativecapacity as an added plaintiff, but not to be substituted. The captionof the plaint will stand as originally worded. As to what the positionwill be after this addition has taken place, either with regard to the pro-perty that is being claimed, or what claims she can make in her personaland in her representative capacity respectively, we express no opinionhere. It will be open to the defendants to raise all objections they maybe advised to raise once the addition has taken place.
We order that the costs of the inquiry and the costs of this appeal beborne by the respective parties.
L. B. be Silva, J.—I agree.
Order varied.
1 (1920) 22 N. L. R. 111.