039-SLLR-SLLR-2006-V-1-HEWAGE-vs.-PUBLIC-TRUSTEE.pdf
CA
Hewage vs. Public Trustee (Wimalachandra, J.)
313
HEWAGEvs
PUBLIC TRUSTEECOURT OF APPEALSOMAWANSA.J. (P/CA)ANDWIMALACHANDRA, J.
CALA 398/2004DC COLOMBO 35481/TMAY 5,2005
Civil Procedure Code — Testamentary proceedings — Probate issued —Application to have fixed deposits excluded from inventory — Applicationrejected — Is it a final order or an interlocutory order. ?
The District Court issued probate of the will to the Public Trustee. Interve-nient petitioner filed an application objecting to the inclusion of certain fixeddeposits of the deceased in the inventory, on the ground that the said fixeddeposits were deposited by the deceased in The Finance Company and theintervenient petitioner was designated as the nominee. The District Judgerejected the application as such disputed claim can only be tried in a separateaction.
314
Sri Lanka Law Reports
(2006) J Sri L. R
The petitioner sought leave to appeal from the said order.
The respondent raised a preliminary objection that the impugned order is afinal order and hence the said order should have been canvassed by way offinal appeal revision ; and not by way of leave to appeal.
APPLICATION for leave to appeal on the preliminary objection whether leaveto appeal lies or not.
HELD:
When the District Judge made order that the intervenient's remedy is tofile a separate action and vindicate his rights, the dispute between theintervenient and the Public Trustee remains until it is finally decided.
Hence the order will not finally dispose of the matter in dispute. Thesaid order is not a judgment with the meaning of section 754(5).
Cases referred to:
Ranjith vs. Kusumawathie and others (1998) 3 Sri LR 232 at 236
White vs. Brunton (1984) 2 All ER 606
Shubrook vs. Tufnel (1882) (QBD 621 : (1881-8) All ER 180
Salaman vs. Warner and others (1891) 1 QB 734
Kuwera de Zoysa with D. de Alwis for the intervenient petitioner.
M. U. M. Ali Sabry with Sanjeewa Dasanayake for executor-petitioner-respon-dent.
Cur.adv.vult.
October 11,2005
K. WIMALACHANDRA, J.
This is an application for leave to appeal from the order of the AdditionalDistrict Judge of Colombo dated 08.10.2004. Briefly the facts relevant tothis application are as follows:
CA
Hewage vs. Public Trustee (Wimalachandra, J.)
315
The petitioner-respondent (hereinafter referred to as the “Public Trustee”)instituted these proceedings in the District Court of Colombo praying forthe Probate of a Last Will which he claimed to have been executed by lateJayasena Weerasekera. This Last Will left the entirety of the deceased’sestate to five charitable institutions in the Island. As there were no objec-tions, the District Court issued the probate of the will to the Public Trustee.In the meantime, the intervenient-petitioner filed an application objectingto the inclusion of certain immovable properties, in that certain fixed de-posits of the deceased be excluded from the inventory on the ground thatthe said “fixed deposits” were deposited by the deceased in “The FinanceCompany” and the intervenient-respondent-petitioner (petitioner) was des-ignated as the nominee in all the said fixed deposits. Accordingly hemade an application to Court to have the said fixed deposits’ excludedfrom the inventory. On this application, the learned Judge made orderdated 08.10.2004 rejecting the petitioner’s application to have the saidfixed deposits’ in the inventory excluded therefrom on the ground thatwhen the executor or administrator is not prepared to admit the claim ofan intervenient to a property in the inventory, such disputed claim can onlybe made by way of a separate action. Thereafter the petitioner filed thisapplication for leave to appeal from the said order of the learned Judge.
When the matter was taken up for inquiry, a preliminary objection wasraised by the Public Trustee, that the impugned order is a ‘Final Order’ inthe nature of fully and finally adjudicating the rights of the parties in re-spect of this dispute and hence the said order should have been can-vassed either by way of final appeal and/or by application in revision andnot by way of an application for leave to appeal, which is meant to chal-lenge interlocutory orders.
When the matter was taken up, both counsel agreed to tender writtensubmissions on the said preliminary objection. Accordingly, written sub-missions were tendered by both parties.
The learned counsel for the “Public Trustee” contended that the im-pugned order made by the learned Judge rejecting the petitioner’s applica-tion to exclude the said ’fixed deposits" from the inventory is an orderwhich has the effect of a final judgment which can be canvassed only by
316
Sri Lanka Law Reports
(2206) 1 Sri L R.
way of a final appeal or by a revision application.
Section 754(5) of the Civil Procedure Code reads as follows:
“Notwithstanding anything to the contrary in thisOrdinance, for the purpose of this Chapter –
“Judgment” means any judgment or order having theeffect of a final judgment made by any civil Court; and
“Order” means the final expression of any decision inany action proceeding or matter, which is not a judg-ment.”
After examining several legal decisions in Sri Lanka and the U. K. onthe question whether an order in a civil proceeding is a judgment or anorder having the effect of a final judgment, Dheeraratne, J. in the case ofRanjith vs. Kusumawalhie and others01 made the following observation :
“There have been two virtually alternating tests adoptedby different judges from time to time in the U. K. to deter-mine what final orders and interlocutory order were. InWhite vs. Bruntoii2) Sir John Donaldson MR labeled thetwo tests as the order approach and the application ap-proach. The order approach was adopted in Shubrookvs TufneP} where Jessel, MR and Lindley, LJ held that anorder is final if it finally determines the matter in litiga-tion. Thus the issue of final and interlocutory, dependedon the nature of the order made.
The application approach was adopted in Salaman vs.Warner and others in which the Court of Appeal consist-ing of Lord Esher, MR Fry and Lopes LJJ held that thefinal order is one made on such application or proceed-ing that, for whichever side the order was given, it will, ifit stands, finally determine the matter in litigation. Thus
CA
Hewage vs. Public Trustee (Wimalachandra, J.)
317
the issue of final or interlocutory depended on thenature of the application or proceedings giving rise tothe order and not the order itself.”
Then at 239 Dheeraratne, J. cited with approval the following passageof Lord Esher in Salaman’scase (supra).
“The question must depend on what would be the resultof the decision of the Divisional Court, assuming it to begiving in favour of either of the parties. If their decision,whichever way it is given, will if it stands, finally disposeof the matter in dispute, I think for the purposes of theserules it is final. On the other hand, if their decision, ifgiven in one way will finally dispose of the matter indispute, but if given in the other, will allow the action togo on, then I think it is not final, but interlocutory.”
I have quoted extensively from the decision in Ranjith vs. Kusumawathieand others (supra) as I find that the decision in that case will help toanswer the question before us.
In the circumstances I am of the view that the order must determine therights of the parties conclusively, completely and finally to be consideredas a final order which falls into the category of “judgment” in terms ofSection 754(5) of the Civil Procedure Code. Essentially, the distinctionbetween “final” and “interlocutory” lies in the nature of the decision, in that,whether it finally disposes of the matter in dispute. An order is not a finalorder if such an order does not finally dispose of any dispute or claim inthe suit itself.
In the instant case, the learned Judge held that the question as to thetitle to the “fixed deposits” in the inventory cannot be decided in the testa-mentary action and the Court does not have jurisdiction in the testamen-tary proceedings to determine disputes as to the title in respect of such
318
Sri Lanka Law Reports
(2006) 1 Sri L. R.
property between the administrator and an intervenient. The learned Judgefurther held that the intervenient’s remedy is to file a separate action. If thedeceased’s title to a property included in the inventory is disputed, thequestion arises whether that question could be decided in the same pro-ceedings or whether it is necessary to file a separate action. When thelearned Judge made the order that the intervenient’s remedy is to file aseparate action and vindicate his rights, in my view the dispute betweenthe intervenient and the Public Trustee remains until it is finally decided.Hence it can be clearly seen that the order of the learned Judge will notfinally dispose of the matter in dispute. Accordingly the order made by thelearned Judge is not a judgment within the meaning of Section 754(5) ofthe Civil Procedure Code.
For these reasons the preliminary objection raised by the Public Trusteeis overruled but in all the circumstances we make no order as to costs.
SOMAWANSA, J. (P/CA) — I agree.
Preliminary objection overruled.