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GUNARATNE v. PERERA HAMINE.
D. G., Kurunegala, 1,828.
Administration—Civil Procedure Code, s. 547—Title to land through deceasedintestate—Duty of court to direct administration to be taken before suitproceeds further.
Whenever it appears, in the course of a case which a Court is trying,.that administration to the estate of a deceased person, through whom theparties claim title, is necessary, it is the duty of the Court to see that theprovisions of section 547 are complied with before the litigation proceedsany further.
The inconvenience and difficulty of insisting upon the administrationof old estates are obviated by the enactment of the Prescription Ordi-nance, which enables – a. person who has had over ten years’ possession toprotect himself by means of the provisions of section 3.
CTION for declaration of title to certain land and for eject-ment of the first defendant therefrom*
It was alleged that the plaintiff obtained judgment against thesecond defendant upon a deed of sale signed by him in favour of
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1003. the plaintiff, and that when the plaintiff took out a writ of possession
July 6, the first defendant, who was the wife of the second defendant,wrongfully refused to give possession to the plaintiff.
The defendants pleaded that the properties belonged originallyto the second defendant’s grandmother, and that she gifted them in1670 to the parents of the second defendant and the second defend-ant himself; that the second defendant became entitled to the landsby right of inheritance from his parents; .that the second defend-ant did not execute a deed of sale in favour of the plaintiff ; thatthe plaintiff obtained a decree in his favour in suit No. 1,556 byfraud and duress; and that long before the alleged deed of sale tothe plaintiff the second defendant had, by deed of gift dated 22ndSeptember, 1886, conveyed all his interest in the said land to thefirst defendant; and that Funchi Menika, the mother of the seconddefendant, died about the year 1880 leaving an. estate above thevalue of Es. 1,000, to which no administration had been takenout, and therefore the plaintiff was not entitled to maintain thepresent action.
The District Judge, Mr. G. A. Baumgartner, held that .the actionwas maintainable because it was admitted by both sides that the'full title to the lands was vested in Dingiri Banda (the seconddefendant), and it did not matter whether it all came .to him byinheritance from his mother, or whether only one-third of it camein that way and the other two-thirds from his grandmother andfather respectively. He said:
“ Counsel for the defence dangled before the Court as a temptingsubject for inquiry the question whether the action could bemaintained without administration to the estate of Dingiri Banda’smother, and he cited the remarks of Chief Justice Bonser at 4N. L. B. 208, to the effect that, if the attention of the District Judgeis drawn to the fact of no administration having been taken out, itwould be his duty to see that administration was taken. But thatreferred to the estate from which conflicting claims diverged.The plaintiff claimed by inheritance from her mother, who wasmarried in community. The defendant made conflicting claimson the properly of the same community. It wa6 plainly necessaryfor plaintiff to show, that title had legally passed to her throughher mother, .that is to say, that her mother’s estate had been legallyadministered.
“ Jn another case cited at 5 N. L. B. 16, Chief Justice Bonserused the words: ‘ If a person desires to prove title to property,and finds it necessary .to deduce a title to that property eitherfrom or through a former owner who has died intestate, he mustprove one of two things, ’ &c.
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“ In my opinion the words ‘ finds it necessary ’ imply that thetitle to be deduced is one that is contested by the oilier side.
“ There is no necessity t° establish anything anterior .to .the pointat which title is admitted. There can be no necessity, as betweenthe parties, to go behind that. If the Court saw reason to supposeths estate of Dingiri Banda’s mother was a large one which oughtto have been administered, it is no doubt its right and duty to seethat administration is taken, but any proceedings taken with thatobject would be outside the scope of the present action.”
The defendants appealed. The case came on for argument on6th July, 1903.
H. A. Jayawardene (with Wadsworth), for appellant.
Dornhorst, K. C. (with if. J. C. Pereira). for respondents.
6th July, 1903. Layabd, C.J.—
It is common ground in this case that the title to the lands inquestion' vested in Dingiri Banda, and both parties claim underDingiri Banda.
It is admitted .that no administration was ever taken out to theestate of Punchi Menika, who died intestate. The District Judgehas held that, as both parties claim through Punchi Menika, andas it is admitted that the lands vested in Dingiri Banda, there wasno necessity to take out administration to the estate of PunchiMenika. This Gourt has repeatedly held that, in view of theprovisions of section 547 of the Civil Procedure Code, no action .is maintainable for the recovery of any property belonging to orincluded in the estate and effects of any person dying testate orintestate in or out of the Island, if 6uch estate or effects amountto or exceed in value the sum of Bs. 1,000, unless grant of probatecr letters of administration have been issued to some personor persons as executor or administrator of such testator orintestate:
That section is imperative, and before a plaintiff can maintainan action for the recovery of any properly in Ceylon he mustcomply with the provisions of that section.
In this case, if the -plaintiff establishes .that Punchi Menika’sestate was under the value of Bs. 1,000, the plaintiff will bringhimself within the exception mentioned in that section, and beentitled to proceed on in the action. In the event of the plaintifffailing to establish that Punchi Menika’s estate does not exceedin value the sum of' Bs. 1,000, administration will have to betaken out to her estate before the plaintiff is allowed to proceedwith this action.
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It may be that the plaintiff has established a prescriptivetitle to the land claimed in the plaint, and in that view Isuggested to the respondent’s counsel that, if they were preparedto proceed to trial resting their claim merely on the prescriptive?title, it would not be necessary for the respondents to establisheither that' Funchi Menika’s estate did not exceed the sum ofEs. 1,000, or, in the event of their failing to do so, to apply forletters of administration of Punchi Menika’s estate.
The judgment of the District Judge must be set aside, and thecase is remitted to the District Court to be proceeded with.
The appellant is entitled to the costs of this appeal.
I am of the same opinion. No doubt, by our Common Law,administration by an official appointed by the Court was notnecessary, any more than it was necessary that every decedentshould leave a will and an executor to carry it out. But verymany years ago this Court ruled that the English Law of Executorsand Administrators had been impliedly introduced into the Colonyby the Legislature, and the Judicial Committee of the PrivyCouncil, recognized the prevalence of that law in this Island.Owing, however, to the difference of principle between the Com-mon Law and this graft of the English Law, there was for someyears, as might have been expected, a little uncertainty in applyingthe principles which this Court had enunciated, and a somewhatvague exception was made in favour of what were denominated“ email estates.” Here, again, there were diverse rulings, not alwaysreconcilable with each other, as to what value of property shouldconstitute a “small estate,” but even so the principle was recog-nized that where the estate was not small probate or letters ofadministration could not be dispensed with. Then came the CivilProcedure Code of 1889, which, in exact terms, defined a smallestate to be one which did not exceed Bs. 1,000 in value, andsection 547 in unmistakable language rendered an action notmaintainable without due administration for the recovery of anyproperty included in an intestate estate. In interpreting thatsection this Court laid, down that it formed a statutory bar whichcould not be got over by the mere acquiescence, or even by theexpress agreement, of the parties to any particular litigation.
As to the wholesomeness of the provision I think there can' beno question, but that is not an element which it is in our province)to consider. The Legislature has thought fit to require dueadministration, while it is obvious that it is to the interest of thepersons Claiming to be heirs ab intestato to divide their ancestor's
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property amongst themselves without paying the probate duty,which would of necessity. be exaoted if any executor or adminis-trator were appointed by the Court. It is plain, therefore, thatif parties were enabled by agreement to Waive the necessityfor administration, the intention of the Legislature would befrustrated.
Hence it is that whenever it appears, in the course of a casewhich a Court is trying, that administration is necessary, it becomesthe duty of that Court to see that the provisions of section 547 arecomplied with before the litigation proceeds any further.
As to the suggested inconvenience and difficulty of insistingupon due representation of old estates, there is, as my Lord haspointed out, the enactment of the Prescription Ordinance, which'enables a person who has had over ten years’ possession to proteothimself by means of the provisions of seotion 3 and so obviatethe necessity for relying upon a title by inheritance.'
GUNARATNE v. PERERA HAMINE