SCHaleema Umma v. Abdul Rahuman293
SUPREME COURTG. P. S. DE SILVA, CJ.,
WIJETUNGA J. ANDWEERASEKERA, J,
S.C. APPEAL NO. 133/97
A. NO. 484/92 (F)
C. KANDY NO. 3056/TFEBRUARY 17 AND 26, 1999
Testamentary action – Last Will – Issue of probate after decree nisi -Jurisdiction of the District Court to recall probate – Sections 536 and 537 of theCivil Procedure Code.
The respondent filed an application dated 1.7.83 in the District Court seekinginter alia, that the last will marked “A" be declared the last will of the deceased,that he be declared executor thereof and probate be granted to him. No respondentwas named in the petition and no reference was made to the intestateheirs of the deceased. The petitioner averred that he had no reason to supposethat his application will be opposed by anyone. On 18.8.83, the Court in theexercise of its discretion made order nisi in the first instance requiring any personto show cause why probate should not be issued. On the order of theCourt, the decree nisi was published in the “Davasa” newspaper. The order wasmade absolute on 16.11.84 and probate was issued to the respondent.
Cosequent upon an application by the appellant, the District Court by its orderdated 17.2.87 recalled probate on the basis that the order nisi had been publishedin a Sinhala newspaper which could not be read and understood by the appellant.Thereafter, the Court held an inquiry and by its judgment dated 31.01.92 held,inter alia, that the last will was not executed with the knowledge and consentof the deceased and was not her act and deed.
1. The finding that the appellant did not understand Sinhala was not supportedby any material of probative value.
294Sri Lanka Law Reports 2 Sri LR.
Sections 536 and 537 of the Civil Procedure Code must be read together.Consequently, when the issue of probate has followed upon an order nisi,the provisions of section 537 do not apply and ail parties are concludedby the issue of probate. Therefore, the District Court acted without juris-diction in recalling probate and proceeding to hold an inquiry which concludedwith its judgment dated 31.01.92.
Cases referred to:
Katiramanthamby v. Lebbethamby Hadjiyar – (1973) 75 NLR 228.
Adoris v. Perera – (1915) 17 NLR 212, 215.
APPEAL from the judgment of the Court of Appeal.
Nehru Gunatilleke, PC with N. Mahendra and Miss D. Pathirana for respondent-petitioner-appellant.
Faisz Musthapha, PC with Hemasiri Withanachchi and Sanjeewa Jayawardenafor petitioner-appellant-respondent.
Cur. adv. vult.
May 10, 1999.
P. S. DE SILVA, CJ.
Haji Asia Umma died on 11.11.81. The petitioner-appellant-respondent(the respondent) filed an application (petition and affidavit dated 1.7.83)in the District Court of Kandy, seeking inter alia, that the Last Willmarked "A" be declared the Last Will of the deceased, that he bedeclared executor thereof and probate be granted to him. No respond-ent was named in the petition and no reference was made to theintestate heirs of the deceased. It was averred in the petition thathe was the adopted son of the deceased. Apart from the affidavitof the respondent, there were the affidavits of the notary who attestedthe Last Will and the affidavits of the 2 attesting witnesses. It wasfurther averred in the petition that he had no reason to suppose thathis application will be opposed by anyone (section 525 of the Civilprocedure Code).
Haleema Umma v. Abdul Rahuman
(G. P. S. de Silva, CJ.)
On 18th, August, 1983, the. Court made order nisi in the firstinstance requiring any person to show cause why probate should notbe issued. As stated earlier, no respondent was named in the petition;nevertheless the Court in the exercise of its discretion issued an ordernisi and not an order absolute in the first instance. On 3rd November,1983, the Court made order directing the publication of the order nisi.The order nisi was published in the "Davasa" newspaper. Mr. NehruGoontillake for the appellant stressed that the order nisi was publishedin the "Davasa" which is a newspaper published fn Sinhala. The ordernisi was made absolute on 16th November, 1984 and probate wasissued to the respondent in this appeal.
The respondent-petitioner-appellant (the appellant) who is asister of the deceased Haji Asia Umma by her petition and affidavitdated 27.2.85 (filed on 5.3.85) challenged the validity of the LastWill and prayed that the Last Will be rejected and that an inquirybe held for this purpose. It is to be noted that this application wasmade after the issue of probate upon an order nisi. Moreover, therewas nothing in the petition and affidavit to suggest that the appellantcould not read and understand Sinhala, the relevance of whichwill be seen later.
The application of the appellant was fixed for inquiry. At theinquiry an objection was taken on behalf of the respondent that theapplication cannot be maintained for the reason that in terms ofsection 536 of the Civil Procedure Code the District Court had thepower to review its own order granting probate only where probatehad been issued "on an order absolute in the first instance", (section536 of the Civil Procedure Code). By its order dated 17th February,1987, the District Court overruled the objection, and recalled probateon the basis that the order nisi had been published in a Sinhalanewspaper which could not be read and understood by theappellant. It is true that the respondent did not seek to challenge thecorrectness or validity of the aforesaid order dated 17th February,1987, but the objection taken was on a jurisdictional ground and couldhave been taken in the final appeal.
Sri Lanka Law Reports
11999} 2 Sri LR.
Consequent upon the order of 17-2.87, the parties proceeded toinquiry, issues were raised and evidence was led. By its judgmentdated 31st January, 1992, the District Court held inter alia, that theLast Will was not executed with the knowledge and consent of HajiAsia Umma and was not her act and deed. The Last Will wasaccordingly rejected. Thereupon, the respondent preferred an appealto the Court of Appeal. The Court of Appeal held that “the DistrictJudge had no jurisdiction to vary his own order and the order dated17.2.87 has been made without jurisdiction. Section 536 of the CivilProcedure Code provides for the District Court to recall probateonly in the case where an order absolute in the first instance hasbeen made. Vide 17 NLR 212, 13 NLR 261, 67 NLR 488. As seen,in the instant case order absolute was not entered in the first instance.As such the learned District Judge has exceeded his authority inrecalling probate and holding an inquiry. . .“. Accordingly, the Courtof Appeal set aside the judgment of the District Court dated 31.1.92.It is of significance to note that the judgment was set aside on ajurisdictional ground. The present appeal is against this judgment ofthe Court of Appeal.
Mr. Nehru Goonetillake, counsel for the appellant, strenuouslycontended, by way of oral and written submissions, (1) that no appealwas preferred against the order of the District Court dated 17.2.87and accordingly that order was binding on the parties; (2) the DistrictCourt by the aforesaid order of 17.2.87 recalled probate on the goodand valid ground that the order nisi was published in a Sinhalanewspaper (Davasa) whereas the intestate heirs were Tamil-speakingpersons who could neither read nor write Sinhala; (3) parties havenot been concluded by the issue of probate where there has beenno valid publication of the order nisi in terms of the imperativeprovisions of section 532 of the Civil Procedure Code. Katiramanthamby
With these submissions, I am afraid, I cannot agree. Thefinding reached by the District Court in its order of 17.2.87 thatthe appeallant cannot read and understand Sinhala was not basedon evidence, either oral or by way of an affidavit. All that happenedwas that the appellant, who was a Muslim lady living in a “Kandyan
Haleema Umma v. Abdul Rahuman
(G. P. S. de Silva, CJ.)
area", was questioned by the Qpurt and she informed the Court thatshe does not understand Sinhala. It seems to me that this statementcannot form the basis for the finding that the appellant did notunderstand Sinhala and therefore there was no valid publication ofthe order nisi as required by the provisions of section 532. The“untested" information elicited by the Court is of little or no evidentiaryvalue. A Court cannot reasonably act upon such information to reacha finding on the crucial issue, namely that there has been a failureto comply with the mandatory provisions of section 532 of the CivilProcedure Code, inasmuch as the publication of the order nisi wasin a language not understood by the appellant. In short, the findingthat the appellant did not understand Sinhala is unsupported by anymaterial of probative value.
Besides, there is the jurisdictional issue upon which the Courtof Appeal set aside the judgment of the District Court. The Courtof Appeal itself has referred to the relevant cases as seen fromthe passage in the judgment cited above. It is unnecessary to burdenthis judgment with a discussion of the cases. It is settled lawthat sections 536 and 537 of the Civil Procedure Code must be readtogether and that "when the issue of probate has followed uponan order nisi the provisions of section 537 do not apply and that allparties are concluded by the issue of probate" – per De Sampayo,AJ. in Adoris v. Perera®.
It is clear, therefore, that the District Court acted without jurisdictionin recalling probate and proceeding to hold an inquiry which concludedwith the judgment under appeal (judgment dated 31.1.92). The judg-ment of the Court of Appeal is accordingly affirmed and the appealis dismissed but, in all the circumstances, without costs.
WIJETUNGA, J. – I agree.WEERASEKARA, J. – I agree.