030-NLR-NLR-V-19-In-re-the-Estate-of-SEELAVATI-KUMARIHAMY.pdf
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In re the Estate of Skelavati Ktjmabthamy..
$5—D. C. (Inty.) Badulla, B 483.
A. St. V. Jayewardene, for petitioner, appellant.
Baton, K.C., (with him J. W. de Silva), for respondents.
1916. De Sameayo J.—
This is the matter of an application for letters of administration to theestate of Seelavati Kumarihamy, who died intestate on July 27, 1915. Theapplicant is her husband, and the respondents are her parents. On theservice of the order nisi the respondents filed an affidavit denying that theapplicant was an heir of the deceased or was entitled to administer her estate,and stating that theywere her soleheirs andhada preferential claim to
letters. The. denial of the applicant's right was founded upon an allegationthat the deceased wasmarried to theapplicantin binna. When thematter
came up for consideration the respondents were unable, in view of the pro-visions of – section 523 of the Civil Procedure Code, to resist the applicant’sclaim as widower to administer the deceased’s estate, and they restrictedtheir own claim tojoint administration withtheapplicant. TheDistrict •
Judge considered, notwithstanding anargumenttothe ' contrary onbehalf
of the ' applicant, that the question whether the deceased’s marriage was inbinna. and whether therefore the applicant was an heir .of the deceased, wasrelevant to this claim for joint administration and should be inquired into.He accordingly framedtwo issues onthis pointandheard evidence,and. in-
the result he .decided these issues against the applicant, and in effect ordered'that another (meaning no doubt one of the respondents) should be associatedwith him as co-administrator. The applicant has appealed.
C 152 )
1916.
I tKintr that the contention of behalf of the appellant that the inquiry waspremature, and that the order as to joint administration was not justified,is entitled to prevail. If the appellant’s status as lawful husband had beendenied, s-Tifl his claim to administer the estate had been challenged on thatground, that would have been the denial of a material -allegation in his petition,which would require to be determined on vtvd voce evidence. But the dis-puted right to inherit is a different' matter, and I do-not think that the inquiryin this case was irregular. I need not refer to the decisions on this subject;they will be found cited in Fernando ®. Fernando, (1914) 18 N. L. R. 94,Mr. Bawa, for the respondents, however, relied on Re Ibrahim Lebbe, (1900) 1Browne 368, but that was a case touching certain persons who? isad not beenmade respondents, but who claimed to be heirs, and the point of^)^e decisionappears to be that, as it is parties “ interested in the admimstxation of theestate'” that are entitled to oppose a grant of letters and to take part in thetestamentary proceedings, theCourtmaywellinquire into the heirship of
such persons at an early stage. That decision, therefore, has no directbearing on the present case, in which the respondents were all along designatedas heirs and were made parties to the suit.'!
As I said, the District Judge made the inquiry into the question of binna ordig a marriage, as, in his opinion, it was relevant to the matter of the respondents'claim for joint administration. If he means that in every case where the. applicant, though widow orwidower, isnotalso an heir, anotherperson
should be associated with her or him as co-administrator, there is no' legalauthority for such a proposition. In In re Ukku Banda, (1900) 4 N. L. R. 267,the .Court upheld the preferential right of a widow to grant of letters undersection 623 of the Code, but Bonser C.J., in the course of his judgment, addedthat the Code did not mean that the widow was entitled to sole administration,and that it was quite opento theCourt, ifit thought it desirablein the
interest of the- estate, to associate some other person as a joint administrator.This enunciates the right principle.Eachcasemust be governed byits own
circumstances. In this case there is no suggestion that the appellant will notadminister the estate properly if there is no co-administrator with him. Onthe other hand, there appears to be some reason for considering it undesirableto appoint either of the respondents as co-administrator with the appellant.For instance, the appellant charges the respondents with having taken andretained some articles of jewellery .'belonging to the deceased. Again, thebulk of the deceased’s estate consisted of certain immovable property donatedto her by the respondents on a deed of gift, and it appears that after her deathand during the pendency of these proceedings the respondents purportedto revoke -the deed of gift, with a view, no doubt, of claiming the property astheir own dnd as no longer belonging to the estate. These matters will in allprobability lead to some litigation, in which the interests of the estate will be ■directly opposed to those of the respondents.
At the argument of the appeal I had Borne doubt as to whether, an inquiryhaving rightly or wrongly taken place, the District Judge’s finding on thequestion of binna or diga marriage should not in any case be allowed to stand.But having looked into the recorded evidence, I think it would be of advantageto have the whole matter gone into more fully and more precisely on somesubsequent and more appropriate stage of the testamentary proceedings.
I would quash the proceedings, and direct that letters of administrationshould be issued to the appellant as applied for, leaving it open to therespondents at the proper time to raise the question of the appellant’s right toshare in the distribution of the estate. As neither party was really responsiblefor the course of the proceedings, there is no need to make any order as tocosts in the District Court, but the respondents strenuously supported thoseproceedings before us and I think the appellant should have the costs ofthis appeal.
Shaw J.1—I agree.