043-SLLR-SLLR-1998-V-3-HAROLD-FERNANDO-v.-FONSEKA-AND-OTHERS.pdf
CA
Harold Fernando v. Fonseka and Others
301
HAROLD FERNANDO
v.FONSEKA AND OTHERS
COURT OF APPEALDE SILVA, J„
WEERASURIYA, J.
A. NO. 354/97
C. COLOMBO NO. 29793/TSEPTEMBER 16TH, 1998
Civil Procedure Code – Amending Act No. 2 of 1997 – S. 30, S. 31, S. 32 -Letters of Administration granted – Is it possible to intervene – delay – Is thecourt Functus Officio –
The 3rd respondent-appellant-petitioner sought to set aside the Order allowingan application to add 5th – 13th Intervenient respondents respondents as parties,this was after the petitioner was granted letters.
Held:
The grant of Probate/Letters of Administration is a distinct preliminary stepin the testamentary proceedings independent of claims to the estate bythe heirs – the question of entertaining claims to the estate on the groundthat the claimant is an heir could form the basis of an inquiry at asubsequent stage of the proceedings.
The principle is well-established that till the estate is declared closed upona judicial settlement of accounts, it is open to a party to prefer a claimto the estate on the basis that such party is an heir of the deceased.
Delay cannot defeat the claim of the Intervenient respondents to intervenein the action.
APPLICATION in Revision from the Order of the District Judge of Colombo.Cases referred to:
Odiris Appuhamy v. Caroline Nona – 66 NLR 241..
Piyaratne Unnanse v. Wahareke Sonuttare Unnanse – 51 NLR 313.
Sirimavo Bandaranaike v. Times of Ceylon Ltd. – 1995 1 SLR 22.
Biyanwila v. Amarasekera – 67 NLR 488.
Fernando v. Fernando – 18 NLR 24.
In the case of Kathirikamasegara Mudaliyar – 5 NLR 29.
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Kantaiyar v. Ramoe – 8 NLR 207.
Nonohamy v. Punchihamy – 31 NLR 220.
Chula de Silva PC with Priyanlha Fernando and P. Weerakkody for 3rdrespondent-appellant-petitioner.
S. Kanagasingham for 4th intervenient respondent-respondent.
Sunil F. A. Cooray with Chithrananda Liyanage for 6th, 7th, 10th, 12th, 13thintervenient respondent-respondents.
Cur. adv. vult.
November 17, 1998.
WEERASURIYA, J.
By this application, the 3rd respondent-appellant-petitioner (hereinafterreferred to as the petitioner) is seeking to set aside the order of theAdditional District Judge of Colombo, dated 24.03.1997, allowingan application to add 5th-13th intervenient respondent-respondents(hereinafter referred to as intervenient respondents) as parties intestamentary proceedings bearing No. 29793/T in the District Courtof Colombo.
The facts pertaining to this application as set out by the petitionerare briefly as follows:
Meemanage Wilfred Fernando died issueless on 19. 03. 1984,leaving his wife Saputantrige Nandawathie (hereinafter referred to asoriginal petitioner) who by petition dated 19. 10. 1984, institutedtestamentary action bearing No. 29793/T in the District Court ofColombo, seeking Letters of Administration to administer the propertiesof the deceased in terms of section 530 (1) of the Civil ProcedureCode (Act No. 20 of 1977) and an Order Nisi was entered on 22.10. 1984 with a direction to serve it on the respondents named inthe petition. Further, the court made order in terms of section 532of the Civil Procedure Code (Act No. 20 of 1977) to advertise theOrder Nisi in a local newspaper and in the Government Gazette. The3rd intervenient respondent objected to the Order Nisi being madeabsolute by his statement of objections dated 21. 11. 1984. However,in the amended statement of objections dated 28. 02. 1985 he soughtto add some of the intervenient respondents as parties on the basisthat they have rights to the estate, abandoning his objection to thegrant of Letters of Administration to original petitioner. Nevertheless,
CA Harold Fernando v. Fonseka and Others (Weerasuriya, J.)303
learned District Judge disallowed the application of the originalpetitioner to obtain Letters of Administration and instead grantedLetters of Administration to the Public Trustee. The original petitionersought leave to appeal against that order in application bearing No.62/88 and the Court of Appeal by its order dated 03. 07. 1990, setaside the order of the District Judge appointing Public Trustee asthe administrator and directed an inquiry de novo. Thereafter, learnedDistrict Judge after fresh inquiry, granted Letters of Administration tothe original petitioner who died on or about 09. 06. 1995; whereuponafter due inquiry, District Judge by his order dated 19. 06. 1995,granted Letters of Administration to the petitioner. Thereafter, thepetitioner sought to obtain possession of the premises bearingNo. 21, Dickman’s Lane, Colombo 5, for the purpose of preparationof inventory of the movables in the said property with a view toconclude the said testamentary proceedings. However, the 5th-13thintervenient respondents by their application dated 24. 01. 1996sought to intervene in the said testamentary proceedings and thepetitioner and the 2nd respondent-respondent objected to the saidapplication of the 5th-13th intervenient respondents. The learnedDistrict Judge after the conclusion of the inquiry, by his order dated24. 03. 1997, allowed the application of the intervenient respondentsto be added as parties. It is from the aforesaid order that thisapplication for revision has been filed.
At the hearing of this application, learned President's Counsel forthe petitioner submitted the following matters:
that the learned District Judge had no jurisdiction to makethe impugned order as he was functus officio;
that steps required to be taken in a court of law have tobe done within a prescribed time limit and not as and whenit suits the parties;
that the learned District Judge had misdirected himself byholding –
that the intervenient respondents were heirs of thedeceased;
that the court had previously ordered that noticebe issued on parties disclosed by 4th intervenientrespondent.
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that in any event, the intervenient respondents were notentitled to any relief due to undue delay and laches.
The contention of learned President's Counsel for the petitionerthat District Court was functus officio was based on the followinggrounds:
that where in terms of section 531 of the Civil ProcedureCode an Order Nisi had been made by District Court havingsatisfied that there was prima facie proof of materialallegations in the petition and in the absence of sufficientcause to rebut such proof after Order Absolute had beenentered, District Court has no jurisdiction to set aside suchorder;
that Order Absolute in testamentary proceedings is a decreein rem which cannot be varied in the same action.
He cited the following cases: Odiris Appuhamy v. Caroline Nonaf'KPiyaratana Unnanse v. Wahareke Sonuttara Unnanset2) and SirimavoBandaranaike v. Times of Ceylon Ltd.0) in support of his contention.These cases recognise the principle that once a court makes an ordersuch court becomes functus officio, unless power is conferred on suchcourt to amend its own decree.
In terms of section 530 (1) of the Civil Procedure Code (ActNo. 20 of 1977) when any person dies without making a will, everyapplication for grant of Letters of Administration of his property shallbe made on a petition by way of summary procedure in numberedparagraphs containing following particulars as prescribed by section524 namely:
the relevant facts of the absence of a will;
the death of the deceased;
the heirs of the deceased to the best of the petitioner'sknowledge;
the character in which the petitioner claims and facts whichjustify such application.
This application has to be supported by sufficient evidence to affordorima facie proof of the material allegations in the petition in whichnames of the next of kin of the deceased should be stated asrespondents.
CAHarold Fernando v. Fonseka and Others (Weerasuriya, J.)305
In terms of section 530 (1), the petitioner is further required totender the following documents with the petition. :
The declaration of property referred to in section 30 of theEstate Duty Ordinance in triplicate for transmission by courtto the Commissioner-General of Inland Revenue.
Draft Order Nisi.
The requisite stamps for the Order Nisi- and service thereof.
Draft notice of Order Nisi in the form No. 84A in the 1st
schedule; and
Proof of payment of the estimated charges to cover the costof advertising the notice of Order Nisi in a local newspaper.
Upon an application for grant of letters of Administration being madein terms of section 530 (1) of the Civil Procedure Code (Act No. 20of 1977) if the court is of the opinion that the material allegationsin the petition are proved it shall make an Order Nisi declaring thepetitioner's status accordingly and making the grant prayed for. Suchorder shall be served on the respondents and on such persons asthe court shall think fit to direct. It is to be noted that the words “tothe best of petitioner's knowledge" which follow the words “the heirsof the deceased" are sufficient to show that the petitioner is not obligedto state with accuracy and certainty the heirs of the deceased. It maybe possible to conceive of instances where the petitioner has nopersonal knowledge as to the heirs and that the circumstances makeit difficult for the petitioner to ascertain with certainty the heirs to benamed. However, there is a requirement that the petitioner has toname the next of kin of the deceased as respondents. The petitionermay also tender with the petition the consent in writing of suchrespondents as consenting to the application. Further, there is norequirement postulated that notice must be given to the other respond-ents whose consent has not been obtained. Nevertheless, it cannotbe disputed that the court has discretionary power to direct that theOrder Nisi should be served on a particular person other than thosepersons whose consent has been annexed.
Learned President's Counsel for petitioner cited the case of Biyanwilav. Amarasekeraw in support of his contention that parties must takesteps in testamentary actions before District Court within a prescribedtime and not as and when it suits them.
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In Biyanwila v. Amarasekera (supra – at 495) Manicavasagar, J.stated as follows :
“An Order Nisi is an order which court may make on a petitionby way of summary procedure; as the words indicate it is an orderwhich will take effect unless cause is shown against it".
He further stated –
. . any person who is interested in the administration of theproperty of the deceased, though not notified specially, has theright and is entitled to be heard in opposition to the order (section533); …"
It is to be noted that in this case the question of at what stagea claim of a person on the basis of being an heir could be entertainedby court, did not come up for consideration.
In the case of Fernando v. Fernando® the widow applied for Lettersof Administration to her deceased husband's estate making certainminors, respondents to her application stating that they were thechildren of the deceased and where on the returnable date of theOrder Nisi appellants appeared and alleged that the minors were notthe children of the deceased but were the illegitimate children of thewidow, and moved for an inquiry as to who were the heirs of thedeceased, but did not really oppose the grant of Letters of Admin-istration, it was held that such an inquiry was not relevant at thatstage of the case.
In the case of Kathirikamasegara Mudaliyar<61 an executrix namedin a will applied for probate under section 524 of the Civil ProcedureCode and where an Order Nisi was duly entered and the respondentsin showing cause did not object to the will being declared proved,but objected to the validity of certain bequests in the will, in that theywere in favour of certain illegitimate children of the testator born tohim in adultery, it was held that at that stage of the proceedings itwas not open to the respondents to raise this contention but that theapplicant was entitled to probate.
In Kantaiyar v. Ramod7) where it was pointed out that Velupillai,the alleged heir was not a son of the deceased, it was held that theissue as to whether V or R is the heir should be tried subsequentlywhen the administrator enters upon the distribution of the estate.
CAHarold Fernando v. Fonseka and Others (Weerasuriya, J.)307
Upon a careful survey of these cases, two matters emerge distinctlynamely :
that grant of probate or letters of administration, as the casemay be, is a distinct preliminary step in testamentaryproceedings, independent of claims to the estate by the heirs;and
the question of entertaining claims to the estate on theground that the claimant is an heir could form the basis ofan inquiry at a subsequent stage of the proceedings.
It is to be observed that an Order Nisi entered in a testamentaryproceeding in terms of section 530 (1) (Act No. 20 of 1977) is atentative order declaring the petitioner's status and making the grantas prayed for in the petition, which will take effect unless cause isshown against it. As regards the requirement to name the heirs ofthe deceased, one is inclined to think that this exercise is not a finaland a true ascertainment of the heirs of the deceased but a declarationby the petitioner to the best of his knowledge which may or may notbe correct in regard to the accuracy and the true character of thepersons so disclosed. The requirement that the court must be satisfiedon the material furnished before it, that there is prima facie proof ofthe material allegations does not have the effect of conferring on thepersons disclosed as heirs an exclusive status upon the Order Nisibeing made absolute.
In the case of Nonohamy v. Punchiham/e) it was held that wherea final account has been filed in administration proceedings and theestate declared closed the court has no power to reopen proceedingsin order to entertain a claim to a share of the estate on the groundthat the claimant is an heir. Thus, the principle seem to be well-established that till the estate is declared closed upon a judicialsettlement of accounts, it is open to a party to prefer a claim to theestate on the basis that such party is an heir of the deceased.
The learned District Judge in his order had made a finding thatthe intervenient respondents were the children of Wilfred Fernandoby his second marriage. The learned District Judge had erred on thismatter as it was revealed that the intervenient respondents were thechildren of John Fernando by his second marriage. It is to be recalledthat John Fernando was the father of Wilfred Fernando. The 4th
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intervenient respondent in his application dated 18. 10. 1984 tointervene in the proceedings had disclosed that some of the intervenientrespondents were the children by the second marriage of John Fernando.It would appear that on this assertion which had not been controverted,they seem to have a right to the estate of Wilfred Fernando. LearnedDistrict Judge was also in error when he stated that court had orderednotice on the parties disclosed by the intervenient 4th respondent andthat direction was not complied with. Learned District Judge was ofthe view that they had a justifiable claim to the estate of the deceasedhaving considered the material furnished by them in their application.
There remains the other question to be considered namely, whetheror not there was undue delay on the part of 5th-13th intervenientrespondents to make an application to intervene in the testamentaryaction. The 4th intervenient respondent had made an application tointervene as a party in the testamentary proceedings by his applicationdated 18. 10. 1984. In that application, he opposed granting Lettersof Administration to the (deceased) original petitioner namely,Saputantrige Nandawathie. Thereafter, he amended his applicationand moved that some of the intervenient respondents be added asparties as they were the children by the second marriage of JohnFernando. In this amended application he did not object to Nandawathiebeing granted Letters of Administration of the estate. No steps appearto have been taken to name those intervenient respondents as partiesto the action. However, an application dated 24. 10. 1996 had beenmade when the petitioner had taken steps to bring in the parties bya process of a citation, who claim to be in possession of propertydescribed as No. 21, Dickman's Lane, Colombo. The question nowbefore us is whether after lapse of 11 years a party could be allowedto intervene in these testamentary proceedings. A judicial settlementof accounts of the administrator form the basis of termination ofproceedings in testamentary cases. In the circumstances, delay cannotdefeat the claim of the intervenient respondents to intervene in theaction.
For the aforementioned reasons, I refuse the application of thepetitioner with costs.
DE SILVA, J. – I agree.
Application dismissed.