In re Beresfard Bell.
E948Present: Basnayake J.In re BERESFQRD BELLApplication for sole Testamentary Jurisdiction in respectof the Estate of S. Beresford Bell
Courts Ordinance s. 68—Sole testamentary jurisdiction—Last Will proved in England—Proper procedure—Re-sealing—British Courts Probates Re-sealing Ordinance,section 3—Administration oj Ceylon estate.
B domiciled in England died leaving a last will which was duly proved inthe High Court of Justice at Lewes. On an application by the petitioner forsole testamentary jurisdiction on the District Court of Colombo in respect ofB’s estate in Ceylon—
Held, that the proper procedure for the petitioner was to take steps undersection 3 of the British Courts Probates (Re-sealing) Ordinance.
Quaere, whether the Supreme Court has power to grant an order undersection 68 of the Courts Ordinance in a case which falls within the ambit oftbo British Courts Probates (Re-sealing) Ordinance.
BABKAYAJCR J.—In re Benrford BeU.
application for sole testamentary jurisdiction.
E. Keuneman (Jnr.), for the petitioner.
Cur. adv. wit.
January 5, 1948. Basnaya&X J.—
One Shurl&nd Beresford Bell (hereinafter referred to as the testator) aperson domiciled in England died on September 16, 1946, at TJckfield inEngland. He left a last will dated May 18, 1943, whereby he appointedas Executors his sister Minnie De Montenache Caruth, his son CecilGeorge Bell (hereinafter referred to as the petitioner) and his daughterDaphne Edith Bell.
The Testator’s will was duly proved in the District Probate Registryof His Majesty’s High Court of Justice at Lewes on February 12, 1947,by Minnie De Montenache Caruth and Daphne Edith Bell, two of theExecutors.
The estate in Ceylon of the Testator at the date of his death consistsof a stun of Rs. 955.02 in the Mercantile Bank of Colombo and sharesin tea and yubber companies valued by the petitioner at Rs. 30,187.50.
The present application by the petitioner is for an order under section68 of the Courts Ordinance directing and appointing the District Courtof Colombo to have and exercise sole and exclusive Testamentary Juris-diction in respect of the property and effects in Ceylon of the Testator.There is nothing before me to show that the other executors consentto the present application but the petitioner states that he does notanticipate any opposition to it and claims a grant of probate of theTestator’s will as one of executors named therein “ power being reservedto Minnie De Montenache Caruth and Daphne Edith Bell the otherexecutors to prove ”.
The petitioner does not state why he desires to go through the procedureof proving the Testator’s will all over again in our Courts when he canproceed under the provisions of the British Courts Probates (Re-sealing)Ordinance, nor has learned counsel for the petitioner been able toenlighten me on the point.
Section 3 of the British Courts Probates (Re-sealing) Ordinance whichprovides for the re-sealing in Ceylon of probates and letters of adminis-tration granted outside Ceylon reads—
“ Where a court of probate in any part of His Majesty’s dominionsor a British court in a foreign country has, either before or after thedate on which this Ordinance comes into operation, granted probateor letters of administration in respect of the estate of a deceased person,the probate or letters if so granted may, on being produced to, and a copythereof deposited with a competent court, be sealed with the seal of thatcourt, and thereupon shall be of like force and effect, and have the sameoperation in Ceylon as if granted by that Court ”.
The competent court for the purpose of the Re-sealing Ordinance isthe District Court of Colombo or the District Court having jurisdictionover the place where—
the Ceylon estate or any part of the Ceylon estate of the deceased
person is situate, or
SantiapiUai v. SittampaUm.
the executor or administrator, or the attorney of the executoror administrator, of that part of the estate of the deceasedperson which is being administered outside Ceylon is resident(Section 2).
In view of the provisions of law I have cited above, it is unnecessaryfor the petitioner to obtain an order of this Court under section 68 of theCourts Ordinance directing and appointing the District Court of Colomboto have and exercise sole Testamentary jurisdiction in respect of theproperty of the Testator within the Island. The Legislature has clarifiedthe position by the amendment of section 68 of the Courts Ordinanceby the addition of the following proviso (section 6 of Ordinance No. 40of 1938)—
“ Provided that no such order of the Supreme Court shall be necessaryto confer jurisdiction upon a District Court for the purposes of the BritishCourts Probates (Re-sealing) Ordinance or to enable a District Courtto have and exercise jurisdiction as a ‘ competent Court ’ under thatOrdinance
I am doubtful whether this Court has power to grant an order undersection 68 of the Courts Ordinance in a case which falls within the ambitof the British Courts Probates (Re-Sealing) Ordinance. As the matterhas not been argued before me and as it is not necessary to decide it forthe purposes of this case, I reserve it for decision when a suitable casearises. For the present it is sufficient to state that where a person entitled,as in this case, to proceed under the British Courts Probates (Re-sealing)Ordinance desires to obtain probate under the procedure prescribed inChapter XXXVIII of the Civil Procedure Code and for that purposemoves for an order designating a court for the purposes of section 518of the Civil Procedure Code the applicant must explain to the satisfactionof this Court why he does not adopt the special procedure prescribed bythe enactment I have cited above. There is no such explanation in thiscase. I therefore refuse the application.