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1896.August 6and 11.
In the Matter of the Estate and Effects of Don CobneusWarnasuriya.
D. C., Mdtara, 1,105.
Irregular proceedings—Acquiescence of parties—Power of Court to deter-mine issues agreed upon by parties—Effect of decision of Court.thereon.
On a petition being presented to the District Court for an orderdirecting the Fiscal or some competent headman to take charge ofthe movable property of the estate of a deceased person to preventthe same being tampered with or removed, an order was issued tothe Fiscal to take charge of certain movable property said to belongto the said estate, and to hold it subject to the order of the Court,and the Fiscal took charge of such property and made his return tothat effect. Four persons appeared as the owners of the propertysequestered, and asked the Court time to state their claims, so thattheir rights might be inquired into. This was allowed. Thepetitioner was thereafter appointed administrator of the estate ofthe deceased, and the Fiscal was directed to sell the propertysequestered, and deposit the proceeds in Court to abide the resultof an inquiry. On the day fixed for the inquiry the administratorand the claimants appeared and agreed on the issue, whetherthe money in Court belonged to the estate of the deceased or to theclaimants :
Held, that the proceedings were irregular, and the petition, whenpresented, should have been promptly dismissed, but as theclaimants had waived all irregularity and co-operated with thepetitioner, and invited the Court to determine to which party themoney belonged, it was competent to the Court to do so, and its• decision would be binding on the parties.
'J'HE facts of the case appear in the judgment.
Dornhorst, for appellant.
Peiris, for respondent.
Cur. adv. vult.
11th August, 1896. Withers, J.—
On the 15th November, 1895, the applicant for letters to administerthe estate of Don Cornells Warnasuriya, Patabendi Arachchi, lateof Kotagoda, deceased, petitioned the Court for an order directingthe Fiscal or some competent headman to take charge of the movableproperty of the deceased’s estate to prevent the same being tamperedwith or removed.
In the alternative the petitioner asked for the Court’s authorityto take charge of the movable effects before granting of letters.This petition was aimed at two persons named in the petition, ofwhom it was alleged that though they had no claim, right, title,or interest in the estate of the deceased, they had entered intosome house and would not permit the petitioner to enter into it,
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and the petitioner alleged that he apprehended that those twopersons would make away with the movable property, jewellery,money, and documents belonging to the estate of.the deceased.This petition was not entitled in any matter or in any Ordinance,and should have been promptly refused.
and 11.Withers, J.
It is a novel kind of quia timet petition in a testamentary matter.Perhaps the person who launched it was moving blindly for lettersad colligenda under the 546th section of the Code ; but whatever theobject, the result attained has been delay and expense. There is nota line in the petition which would bring it within the scope of the712th and following sections of the Civil Procedure Code.
The petitioner, however, succeeded in obtaining an order from theCourt directed to the Fiscal to take charge of the movable propertyand hold it subject to the orders of the Court. Accordingly theFiscal took charge of certain movables and made his return to thateffect.
Part of the assets so sequestered consisted of live stock, and asthe Fiscal’s charges for maintaining the live stock were likely to bejheavy, the applicant applied for leave to take charge of the propertyon giving security. This request might have been allowed, but theapplicant was told to wait until he was appointed administrator:
Four persons came forward to claim the property sequestered bythe Fiscal, and instead of asking the Court to dissolve the order anddismiss the petition, they asked for time to state , their claims sothat their rights might be inquired into and determined. This wasallowed, and shortly after they applied to the Court for an order tohave what they claimed and delivered to them on their givingsufficient security to produce them before the Court whensoeverrequired.
Instead of allowing this reasonable application the Judge inti-mated that if the parties could not agree as to who should havecharge of the property it must be left with the Fiscal until the claimswere decided. At this stage of the proceedings the present DistrictJudge took up the inquiry ; not long afterwards the applicant wasappointed administrator. While the opposing parties were con-tending for the possession of the movables in dispute, the Fiscal, itseems, was directed to sell them and to deposit the proceeds in Courtto abide the result of the inquiry.
The administrator and the claimants appeared before the Courton the day fixed for the inquiry, and the parties were agreed on theissue to be tried, which was, Does this money belong to the estate to
be administered, or does it belong to the claimants ?
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August 6and 11.
No sooner was that issue settled than the District Judge intimatedthat the trial of the matter would be idle, and that his judgmentwould not bind the parties owing to the irregularity of ther* proceedings.
Thereupon the District Judge made the order appealed from.He dismissed the petitioner’s application above referred to, anddirected the money to be handed to the respondents. He dismissedthe petition because he thought it a bad one, and the proceedingshad upon it irregular from first to last. He gave the claimants themoney because they had put in an affidavit that they owned theproperty which this money represented. He dealt with the matteras if he had been proceeding under section 712, &c., of the Code.That is a proceeding by an executor or administrator to discoverproperty which ought to be included in the estate to be administered,and is aimed at the persons in whose possession or under whosecontrol the property to be discovered is. If any such person citedto attend at the time and place appointed for an inquiry into thematter of a petition under section 712 puts in an affidavit that he isthe absolute owner of the property to be discovered, or is entitled tothe possession of it by virtue of any lien or special property, theproceedings instituted by the petitioner shall be dismissed.
The District Judge finding that the present claimants had putin an affidavit of the kind, treated these proceedings as comingunder chapter 54 and dismissed the proceedings accordingly. Butthe proceedings did not originate uJnder this chapter or under anychapter known to the law. The claimants, however, waived allthis irregularity and co-operated with the petitioner, and invited theCourt to determine in these proceedings to which party the moneybelongs. The District Judge’s Court is of course competent to trythe question if the District Judge has jurisdiction to try the questionand the parties invite him to try it.
I do not see why his order should not be binding. His order willnot of course bind third parties. It will bind the claimants, and itwill bind the estate which the administrator represents.
Surely it is better to try the question once and for all now, thanto have it possibly made the subject of a separate litigation.
I propose to set the order aside and remit the record back for theDistrict Judge to try and determine the issue which the partiesagreed upon. Order accordingly.
In the Matter of the Estate and Effects of DON CORNELIS WARNASURIYA