GUNETTI v. FONSEKA

042-NLR-NLR-V-44-GUNETTI-v.-FONSEKA.pdf


JAYETTT.EKE J.—Gunetti v. Fonseka.
191
1943Present: Jayetileke J.
GUNETTI v. FONSEKA.881—M. C. BaduUa, 8,004.
Criminal Procedure—Accused kept but of Court during evidence of defencewitnesses—Fatal irregularity—Criminal Procedure Code, s. 297.
The accused is entitled to be present when evidence is led for theprosecution or the defence.
Failure to observe this rule of procedure is an illegality.
Police'Vidane Kandana, v. Amaris Appu (25 N. L. R. 400) followed.
A
PPEAL from a conviction by the Magistrate of Badulla-Haldum-mulla.
N. E. Weerasooria, K.C. (with him D. W. Fernando), for first accused,appellant.
F. N. Gratiaen (with him Kulatileke) for complainant, respondent.February 12, 1943. Jayatileke J.—
The appellant and three others were charged under section 189 of thePenal Code with having obstructed the complainant, a Fiscal’s processserver, in the execution of his duties.
The appellant was convicted and sentenced to pay a fine of Rs. 25and the 2nd and 4th accused were acquitted. Sum'mons was not servedon the 3rd accused.
At the close of the case for the prosecution, Mr. Wilmot Perera, whoappeared for all the accused, moved to call one Thomas as a witness.Mr. J. E. M. Obeyesekere, who appeared for the complainant, stated thatif the accused were to be called they should be called first. Mr. Pererareplied that he had not made up his mind whether he would call the:accused to give evidence.
The Magistrate thereupon made the following order : —“ As there is.a possibility that the accused may be called as witnesses, I . think itproper that they should not listen to the evidence of witnesses who will becalled before them and I therefore order the accused to go out of Court. ”Tne accused then left the Court and Thomas’ evidence was recordedin their absence.
Learned Counsel for the appellant contended that under section 297of the Criminal Procedure Code all evidence should be taken in thepresence of the accused and that the action of the Magistrate was illegal.He cited in support of his contention the judgment of Bertram C.J. inPolice Vidane, Kandana v. Amaris Appu1, which appears to be on allfours with the present case.
Section 297 of the Criminal Procedure Code clearly lays down thatall evidence shall be taken in the presence of the accused, or when hispersonal attendance is dispensed with, in the presence of his pleader.The words “ all evidence ” include both the evidence for the prosecution"'as well as for the defence. The language of the section is imperative andthe accused is entitled as of right to be present when evidence is taken.a a / , 71 25 N. L. R. 400.
192
JAYETILEKE J.—Gunetti v. Fonseka.
The procedure adopted by the Magistrate is not only irregular butillegal and it is unnecessary for me to consider whether the accused hasbeen prejudiced or not. In my opinion the trial that was held was nota legal one. The conviction cannot therefore stand.
1 may mention that learned Counsel for the respondent very franklyadmitted that the procedure that was adopted by the Magistrate wasquite indefensible.
The only other question is whether I should order a fresh trial. Thecase has been strenuously fought on both sides and the trial has takentwo days. The evidence of the complainant was that the .appellantsnatched a list that was in his hands, the 2nd accused pushed Bandawho accompanied him, the 3rd accused seized him by the neck and pushedHim out and the 4th accused threatened to kill him if he did not leave.
The Magistrate has acquitted the 2nd and 4th accused because Bandahas contradicted the complainant as to the part played by them. On thewhole the evidence for the' prosecution does not seem to be quitesatisfactory.
In the circumstances, I do not think I should put the appellant to theanxiety and expense of a fresh trial. I would set aside the convictionand sentence and acquitjiim.
Set aside
Suppammal and Govinda Che tty.
193
’ "1943 Present: Soertsz S.P.J., Hearne and Wijeyewardene JJ.SUPPAMMAL, Appellant, and GOVINDA CHETTY, Respondent.
109—D. C. Colombo, 7,457.
Administration—Application to amend inventory—Addition of sums of moneyclaimed by administrator—Contest between the parties—Judicial settle-ment—Scope of s. 718—Civil Procedure Code, s. 736.
Where an application was made by-an heir of an estate for a directionto the administrator to have the inventory filed by him amended so asto include certain sums of money which the administrator claimed as hisown,—
Held, that the application fell within the scope of section 718 of theCivil Procedure Code.
Where a question such as the above arises between the accountingparty (i.e., the executor or administrator) ar.d any of the other partiesto the testamentary case, that question may be determined in theproceeding for judicial settlement and not by separate action.
It would be within the discretion of the Court to direct amendmentunder section 718 or to refer a party to the procedure of section 736,viz., judicial settlement, according to the nature and scope of the particularapplication and the stage at which it is made.
de Zoysa v. de Zoysa (26 N. L. R. 472) and Pawistaina v. Veyachchey(5 Bal. N. C. 22) overruled.
T
HIS was a case referred to a Bench of three Judges. The factsappear from the argument.
H. V. Perera, K.C. (with him S. J. V. Chelvanayagam and N. Kumara-singham) for the petitioner, appellant, in Appeal No. 109 and petitioner,respondent, in Appeal No. 3.—These two appeals relate to certain assetswhich the petitioner, who is the widow of the deceased, alleges are theassets of the estate. She moved under section 718 of the Civil ProcedureCode to have the inventory filed by the administrator amended. Theadministrator opposed her application, stating that part of the assets inquestion were his own and the other part did not belong to the deceased.The District Judge made order refusing the widow’s application, on theground that the inventory could not be amended at the stage at whichit was sought to be amended. The widow subsequently sought to havethe inventory amended at the stage of judicial settlement, under section 736of the Code. The administrator objected, stating that the widow’sonly remedy was by way of a separate action. The District Judge gavejudgment in the widow’s favour ordering that the assets in questionshould be accounted for in the judicial settlement. Appeal No. 109 waspreferred by the widow from the earlier order refusing her application,and appeal No. 3 is by the administrator with regard to the later order.
Appeal No. 109 is primarily a question of the interpretation of section 718of the Civil Procedure Code. Section 538 of the Code contemplatesthe inclusion in the inventory of the whole of the property and effects ofthe deceased person. The inventory cannot be confined only to propertybelieved by the executor to belong to the estate f the ultimate test is theobjective existence of the assets. Section 718 applies to a stage anterior
194
Suppammal and Govinda Chatty.
to that of judicial settlement. It refers not only to an inventory butalso to accounts. There is a distinction between claims by an executoror administrator and claims by third parties under section 712; in theformer no separate action is necessary and the claims may be inquiredinto under section 718.
Conflicting views have been taken regarding the procedure foramendment of an inventory. See Silva v. Cooray Pawistaina v. Veyach-chey‘ and de Zoysa v. de Zoysa The view taken of section 718 inPawistaina v. Veyachchey (supra) is not correct. The words of the sectiondo not impose the limitation placed upon it by that decision. In de Zoysa v.de Zoysa (supra) no reference is made to sub-section 2 of section 736.The petitioner in the present case can have recourse either to section 718or section 736 in order to have the inventory amended.
N. Nadarajah, K.C. • (with him T. K. Curtis), for the administrator,respondent in appeal No. 109 and appellant in appeal No 3.—Theview taken in Pawistaina v. Veyachchey (supra) is correct. Not judicialbut supervisory orders are made by the Court under many sections ofChapter 54 of the Civil Procedure Code. Section 718 was intended tocontrol the acts of the executor or administrator who in fact acts as anofficer of Court. That section is only concerned with certain patentomissions and does not provide for any judicial inquiry. Where aninquiry is provided for, the words of the section would clearly indicateit; see, for example, sections 712,.720, 736 and -244. The effect of section 712is considered in re Kalideen Marikar Hadjiar •The Imperial Bankof India, Ltd. v. Pereraet alIn re Don Cornells Dias Clara Fernando v.Rosa Fernando7 and Gunawardene v. J ay aw ar dene de Silva v. Jaya-koddy’, deal with section 720. The word “thereupon” should be read asmeaning on the material of the affidavit. The Court cannot go beyondthe affidavit and proceed to hold an investigation. One cannot importinto the words “if the Court is satisfied” a provision for an inquiry.
As regards Appeal No. 3, the scope of section 736 is considered inMohamado Jan v. Ussen Bebe ", Holsinger v. Nicholas " and de Zoysa v:de Zoysa.“ Questions of a complicated nature should be determinedby a separate regular action, and not under section 736. In the presentcase, for example, the question whether the deceased had disposed ofcertain properties before his death is important and requires a carefulexamination.
H. V. Perera, K.C., in reply.—One cannbt overlook the provisions ofsection 736 (2) as one would have to if the second order of the DistrictJudge is to be deemed wrong.
The word “ thereupon ” in section 718 (2) means on the filing of theaffidavit and not on the1 material of the affidavit. Where cause is shownan inquiry can be held. Section 718 has to be examined more closelythan it has hitherto been.
’ (1903) 9 H. L. R. 65.
Cur. adv. vult.
1 (1904) 4 Tamb 3S.
•'(1913) 5 Bal. N. C. 22.
* (1924) 26 N. L. R. 472 al 477.‘ (1928) 25 N. L. R. 73.
(1928) 30 N. L. R. 59.
(1896) 2 N. L. R. 252.
J&VO) if a». i/. 21. Ot>. .
• (1938) 40 N. L. R. 137.9 (1941) 42 N. L. R. 226.» (1909) 1 Cur. L. R. 53.
(1918) 20 N. L. R. 417.>* (1924) 26 N. L. R. 472.
195
SOERTSZ J.—Suppammal and GovxndaChetty.
February 19, 1943. Soertsz S.P.J.—
The difficulty that arises on these two appeals is due to conflictingviews that have been taken of the meaning and scope of sections 718 and736 of the Civil Procedure Code. But, before proceeding to considerthose views, and to attempt an interpretation of the sections in question,a brief statement of the facts that led to these appeals is necessary.
The first appeal is from an order dated the 5th June, 1942, refusing anapplication made by the widow, one of the two heirs of the deceasedwhose estate is being administered, for a direction to the administratorto amend the inventory by including in it certain assets, which, shemaintains, from part of the deceased’s estate, but which the administratorsays, belong, to him, in part, having come to him from the deceased ;and in regard to the other part, that it never belonged to the deceased.
This application was made, after the Final Account had been filed bythe administrator, and- when that account was about to come up forjudicial settlement.
On her application being refused, the widow preferred an appeal, andalmost simultaneously moved the Court to permit her to raise the questionwhether the assets she claimed belonged to the estate or not, in thecourse. of the judicial settlement.
Objection was taken, on behalf of the administrator, to this applicationas well, on the ground that a judicial settlement should be limited to theaccounts in respect of the assets already in the inventory, and that aclaim that property not included in it belongs to the estate should besubmitted for decision in a separate action.
The Judge in the Court below rejected this contention and made order• dated the 20th of November, 1942, that the judicial settlement shouldproceed in the manner desired by the widow. The second appeal isfrom that order.
If the administrator’s contentions are entitled to prevail the resultwould be that an heir cannot obtain such relief as the widow in this caseseeks either under section 718 or under section 736, but must haverecourse to a separate action. Such a view appears to be inconsistent with'the words of both section 718 and section 736.
To deal first with section 736, it provides that:—:
“ where a contest arises between the accounting party and any of theother parties respecting any property alleged to belong to the estate,but to which the accounting party lays claim, or respecting a debtalleged to be due by the accounting party to the testator or intestate,or by the testator of intestate to the accounting party, the contestmust be tried and determined in the same special proceeding andin the same manner- as any issue arising on a civil trial.”.
These words are clear and peremptory. They require that, if at. thestage of a judicial settlement, a question such as arose here, arises, betweenan accounting party, that is to say, between an executor or administrator,and any of the other parties, that is to say, other parties to the testa-mentary suit, such as the widow in this case,- that question must bedetermined “ in the same special proceeding that is to say m theproceeding for the judicial settlement..
196SOERTSZ J.—Suppammal and Govinda Chetty.
But it is contended that this view is opposed to that taken byBertram C.J. in the case of de Zoysa v. de Zoysa {supra). In that casethat learned Chief Justice made this observation : (p 47) : —
“ another claim made by the appellant which cannot, in my opinion,be entertained, is the claim that certain properties of the testator havenot been included in the inventory. If the correctness of the inventoryis to be challenged, it should be challenged under section 718. A judicialsettlement is a proceeding of a limited nature. Its scope is indicatedby the provisions of section 739. A judicial settlement proceeds upon' the footing that the inventory is a full and true inventory of the estate ”.
If the words I have underlined correctly state the law, each of theorders now under appeal is wrong. The first order is wrong inasmuchas it holds that an inventory cannot be amended under section 718 wherethere is a “ serious contest ”, whereas Bertram C.J. holds that, in such anevent, section 718 is the appropriate section. And the second order iswrong inasmuch as it permits such a contest to be investigated undersection 736, contrary to the view taken by Bertram C.J.
It must have been in this dilemma, that the widow, with wise precaution,appealed from the first order, and at the same time sought the aid ofsection 736. Her Counsel now contends that she. is justified by bothsection 718 and section 736.
The language of section 736 does not, in my opinion, justify the inter-pretation put upon it by Bertram C.J. The words “ where a contest arises…. respecting any property alleged to belong to the estate, but to
which the accounting party lays claim” appear to me to contemplatejust such a case as has arisen here. A property which the administrator,the accounting party, claims, is alleged by the widow, another party to thetestamentary suit, to belong to the estate, and thus there has arisen acontest, which, in the words of the section, “ must be tried and determined ”in the course of the judicial settlement.
With great respect, I-would, therefore, say that de Zoysa v. de Zoysa(supra) was wrongly decided on this point, and that the second order of theDistrict Judge was correct.
In regard to the appeal from the first order on which too the partiesdesire a decision, the contention on behalf of the appellant is that thejudgment in the case of Pawistaina v. Veyachchey (supra), upon whichthat order was based, does not correctly interpret section 718. In thatcase, Lascelles C.J. and Wood-Renton J. were of opinion that: —
“the language of section 718 is not appropriate to a case wherethere is any serious contention between the executor on the one handand any other party on the other,”
the words “ any other party ” meaning, in the context “ any other personwho is a party to the testamentary sui't”. For this view the reasonsgiven were: — (a) that in an earlier case Silva v. Cooray (supra) Wendt andde Sampayo JJ. expressed a similar opinion: (b) that there is no provisionin the section for the holding of an inquiry or for the fixing of issues aswould be expected if the scope of the section extended to cases wherethere is a serious dispute as to the ownership of the property”: (c) that
197
SOERTSZ J.—Suppammal and Govinda Chetty.
the procedure to be adopted is a very summary one and applies to cases“where the executor has wilfully and intentionally kept out of theinventory goods which he ought to have included ”, and not to caseswhere there is a serious dispute as to the ownership of the property.
In regard to (a) the case of Silva v.Cooray (supra) is distinguishable, for aspointed out by de Sampayo J. that was a case in which an heir required'an administrator “ to amend the inventory by adding to it the boutique,goods and timber which the administrator claimed as his own: thevalue of certain jewellery, and prescious stones which the administratorsaid were never found in the estate ; and the value of the stock-in-tradeof a boutique which was alleged to have been sold by him, but which hesaid had been sold by the deceased in his lifetime; by rendering anaccount of certain plumbago which is said to be in the hands of a thirdparty from whom, according to the administrator, nothing is due ; and •by reducing the amount of a debt shown in the inventory as due to a chetty'8'by the estate De Sampayo J. went on to say :— .
“There were other matters also gone into which I need not detailhere. I have stated these particulars in order to indicate the natureof the inquiry that took place . . . . but it seems to me thatthis section (718) does not justify the Court entering at this stage uponan inquiry into such contentious matters as above …. In myview, the proper procedure for this purpose is by way of judicial settle-ment of the administrator’s account under the provisions of Chapter 55 ”.(Section 736 occurs in that Chapter).
The application in that case involved parties'other than those who wereparties to the testamentary proceedings.
I would respectfully associate myself with that view and say thathaving regard to the large and varied scope of the heir’s application inthat case, and involving, as it did, third parties, section 736 was themore appropriate section under which to proceed so far at least as theadministrator and the other parties to the testamentary proceedingswere concerned, and so far as third parties were involved, separateactions would have been the proper-course, unless section 712 served thepurpose.
The observations made by de Sampayo and Wendt JJ., regardingsection 718, must be understood as made on the facts of that case. Buthere we are dealing with a very different matter, a straightforwardapplication by an heir to have the inventory amended by including thereinsix sums of money which she alleges form part of the deceased’s estatebut which the administrator says, in respect of three sums, that theyare his because the intestate had endorsed the promissory notes relatingto them to him, and in respect of the three others that they never formedpart of the estate. I cannot interpret the judgments in Silva v. Cooray(supra) as laying down that, in a case like the present one too, section 736is the appropriate section. Such a case as this appears to me toube withinthe scope of section 718 more appropriately than it would be undersection 736.
In short, the amendment of an inventory may be ordered either undersection 718 or under section 736, and it would be in the discretion of the
198
The King v. Gocmewardene.
Court to direct amendment under section 718 or to refer a party to theprocedure of section 736 according to the nature and scope of the partic-ular application and the stage at which it is made. I am thereforeunable to agree with the view taken in Pawistaina v. Veyachchey (supra) thatsection 718 is not applicable to a case in which the administrator“ seriously ” claims the property as his own or “ seriously ” says that theproperty does not belong to the estate. Indeed, I do not quite under-stand what exactly the words “ serious dispute ” were intended to mean.They appear to have been used by way of contrast with what was saidearlier, namely, that section 718 applies to “ cases where the executorhas wilfully and intentionally kept out of the inventory goods which heought to have included”. I should have thought that it is such a wilfuland intentional omission that would occasion a serious dispute. Itseems to me that the application by the' widow, in this case was wellwithin section 718.
Another reason given for the ruling in Pawistaina v. Veyachchey (supra)was that there is “ no provision in section 718 for the holding of an inquiryor the fixing of issues It is true that there is not as explicit a directionas to an inquiry in the case of section 718 as there is in that of section 736,but a sufficient inquiry is indicated in section 718 (2) and 718 (3).
For these reasons, I am of opinion that Pawistaina v. Veyachchey (supra)does not correctly interpret section 718 in so far as it says that that sectiondoes not apply to a case in which an administrator as executor seriouslyclaims, as his own, property which a creditor or any person interestedin the estate alleges is property of the estate.
In the circumstances of this case, I would direct that an inquirybe held under section 736 in the manner proposed by the District Judge.I would allow the widow one set of costs against the administrator,
v
Hearne Ji—I agree.
Wijeyewardene J.—I agree.
Appeal allowed.