( 245 )
In the Matter of the Last Will and Testament of JOHN ARONFERDINANDUS.
D. C-, Colombo, C 570.
Formal order of court—Probate—Caveat—. Ex parte order—Notice of appeal
—Civil Procedure Code, »*. 535 and 526— Useless motions.
An order to be treated as such must be formally drawn up andrecorded as required by the Civil Procedure Code.
After an order absolute in the first instance under section 529 of theCivil Procedure Code granting probate of a will to an applicant hasbeen made, it is too late to enter a caveat under section 535-
If the probate has been granted wrongly, it may be recalled undersection 536.
Such an order upon a motion, notice whereof was not given to anyperson, is an ex parte order, although it was made after such person hadappeared and opposed the motion, and no notice is necessary to be givento such person of an appeal preferred by the applicant.
'When an application foT probate is once allowed, there is no necessityfor a further motion that probate do issue to the applicant.
N the 1st March, 1895, Louisa Karunaratna, who was named ina document which purported to be the last will of J. A.
Fe/dinandus, deceased, as his executrix, presented to the DistrictCourt a petition and affidavit, together with the said last will, and,in terms of section 525 of the Civil Procedure Code, moved forprobate thereof, alleging that she had no reason to suppose thather application would be opposed by any person. The DistrictJudge made an order absolute, under section 529, declaring thewill proved, and that probate do issue on her taking the oath ofoffice. Six days afterwards certain persons filed in Court a docu-ment in the nature of a caveat. The petitioner, ignoring thisopposition, took her oath of office and moved ex parte that“ probate be granted ” to her. The caveators appeared and opposedthe motion. The Court ordered that the petition and affidavit
( 246 )
1896. filed by Louisa Karanaratna be taken off the file, and that the98. gje a freah petition and affidavit naming the caveators asBovwa, C.J. respondents.
The petitioner appealed as from an ex parte order.
Rdmanathan, S.-&. (with him Pereira), appeared for her.
Layard, A.-O., appeared for the caveators and took the prelimi-nary objection that they had not received notice of appeal.
Rdmanathan, S.-Q.—No notice is necessary, as the order of theCourt below should be looked upon as ex parte notwithstandingthe appearance of the so-called caveators. Probate had been dulyallowed, and therefore the remedy by caveat was not admissible,and the so-called caveators are not respondents trnly. [BONSER,CJ.—We think the preliminary objection mast be overruled.] 4If probate had been allowed improperly, the right course is torecall it, under section 536. As the case now stands, probatebeing now granted and the oath of office taken, it is the duty ofthe secretary to issue probate as a matter of course.
26th September, 1895. Bonser, CJ.—
This is an appeal against an order of Mr. Grenier, ActingDistrict Judge of Colombo, in which he ordered that thepetition and affidavit filed, together with the schedule referred totherein, be taken off the file, and that the appellant, as executrix,do file a fresh petition and affidavit, naming the caveator and thepersons mentioned in Mr. Alwis’ appointment of date the 6thMarch, 1895, as respondents, and that proceedings be thereaftertaken by the executrix as in the case where respondents arenamed in a petition of this character. This, although it is calledan order, is not an order. No formal order has been drawn upand recorded; but we will treat it aa if a formal order has been ■made as required by the Code.
The executrix appealed against that order.
The Attorney-General, at the opening of the appeal, appearedand took a preliminary objection. He said that he had receivedno notice of the appeal, and that, therefore, the appeal should notbe heard without notice to his clients. The Attorney-Generalappeared on behalf of Elizabeth Ferdinandus and five others,who appear to have entered a caveat after the order for probatehad been made.
The appellant was executrix of the will of the deceased, and shepetitioned that probate should be granted to her, and bringing thewill into Court she filed an affidavit under section 525, namingno person as respondent to the petition. Thereupon the Court
( 247 )
binder the powers given by section 529, made the order abeolnte 1896.in the first instance. After that order had been made these five S&te*ber SO.persons filed their caveat under section 535 ; but in my opinion Wituus, J.they were too late, because the order had already been made, andthey are therefore not parties to the proceedings, and they wererightly not served with notice of the appeal, which is an ex parteone.
In consequence of this filing of a caveat the secretary of theDistrict Court declined to issue probate as ordered by the Court.
Thereupon the executrix took the curious step of moving theCourt that probate be granted to the executrix named in the will,although an order to that effect had already been made. I cannotunderstand why the Court should make an order over again ; but, there seems to be a rage in the District Court for making motions,for, even after the petition had been presented, a motion is madeby the petitioner that the prayer of the petition may be granted.
Why it was thought necessary to supplement the petition by amotion I cannot understand. We were told that it was the practicein the District Court to supplement a petition by a motion in thisway. If this be so, the sooner this practice is discontinued thebetter. When a petition has been presented it ought to comeon for hearing in regular course without any motion for thatpurpose. However, on the second motion, the caveatora wereheard, and the Acting District Judge made the order, which isnow appealed against. I must say that I do not understand thegrounds on which that order was made.
The procedure laid down by the Code seems to be quite clear. Ifthe'probate has been wrongly granted it may be recalled under "section 536. Section 537 points out how an application to recallprobate is to be made. It is to be made by petition. The caveatorsinstead of entering a useless caveat, should have applied under' section 537 to recall the probate. That they can do now, but, inmy opinion, the order was wrong. The procedure invented by thelearned Acting District Judge is not in accordance with the Code.
There is no justification for it. The appeal must therefore beallowed.
I quite concur. If the District Judge had satisfied himself thatthe petitioner had abused the process of his Court by thesuppression of Borne material fact in the affidavit supporting herpetition for grant of probate, I think it would have been quitecompetent to him to have discharged the order nisi.
( 248 )
1895. Bat that is not the reason given by the learned District Jud^£September 88. for his decision that the petition and affidavit should be takenWithers, J. the file. He seems to have thought that theconrse he decidedto take was the only way to deal with a state of circumstances •for which the Code, in his opinion, had failed to provide. In thisI think he was mistaken, for the Code plainly indicates by whattime a caveat for the purposes of section 535 must be filed.
A caveator must come in before the final hearing of the petitionand the order thereon.
The caveators intervened too late to be in any sense parties tothe matter of the petition. If they have a right to ask for therevocation of the grant, they must do so in the way providedby the Code.
In the Matter of the Last Will and Testament of JOHN ARON FERDINANDUS