Jagoda v. Tudawe
TUDAWECOURT OF APPEALWIJAYARATNE, J. ANDSRIPAVAN, J.
CANO. 1501/2000D.C.GALLE 3588OCTOBER 6, 2004
Civil Procedure Code, sections 14A(1)(a) and 394(2) – Accident – owner ofvehicle dies – claim for damages-Who is a legal representative? – who couldbe appointed as representing deceased owner?-Adiation necessary?
The petitioner alleged that as a result of an accident he suffered injury andconsequent loss and damage. The petitioner stated that a cause of action hasaccrued to sue the owner of the vehicle, one T, along with his driver. T diedbefore action was instituted.
The petitioner sought the appointment of the sole heir of the deceased as thelegal representative of T in his place for the institution of the said action – sec-tion 14A (1)(a). The District Court rejected the application.
(1) In terms of the definition of the Legal representative under section394(2), apart from the Executor or Administrator, in the case of anestate below the value of Rs.500,000/- only the next of kin who haveadiated the inheritance becomes a legal representative of thedeceased. The petitioner must state that the respondent adiated theinheritance. The existence of estate(a) below administrable value and(b) adiation by next of kin are two main ingredients of “LegalRepresentative” in the definition of the term.
APPLICATION in revision from the order of the District Court of Galle.
Rohan Sahabandu for petitioner.
A.K.Pemadasa, P.C., with C.E. de Silva for respondent.
Sri Lanka Law Reports
 2 Sri L.R
November 10, 2004WlJAYARATNE, J.
The petitioner made application to District Court of Galle under 01and in terms of section 14A (1)(a) of the Civil Procedure Code tohave the respondent to the application appointed in place of thedeceased for the institution of the proposed action. The applicationwas made against the sole respondent on the basis that he suf-fered injury from a motor traffic accident caused by the collision ofthe vehicle belonging to B.Y, Tudawe, deceased and driven by hischauffeur named in the application. The petitioner alleged that as aresult of such accident he suffered injury and consequent loss anddamage which he estimated at Rs. 1,530,000/-. The petitioner stat- ioed that a cause of action has accrued to him to sue DeshabanduB.Y. Tudawa as the owner of the vehicle along with the driver forthe recovery of the aforesaid damages, in an action known asacquilian action. However, the said B.Y. Tudawe died before actionwas filed, leaving only heir the respondent and to the knowledge ofthe petitioner there was no testamentary proceedings instituted. Hesought the appointment of the respondent the sole heir ofdeceased as the legal representative of B.Y. Tudawe in his placefor the institution of such action.
The respondent objecting to the appointment stated that any 20cause of action accrued to the petitioner against B.Y. Tudawe didnot survive his death, the respondent is not liable in any delictualliability of the deceased and therefore the petitioner is not entitledto have her appointed for the purpose of institution of such action.The respondent at no stage disputed or deemed the fact of herbeing the sole heir of the deceased B.Y. Tudawe nor did she statethat he did not leave any estate.
The Court after inquiry refused the application of the petitionerto appoint the respondent in place of the deceased for the institu-tion of the action on the basis that the applicant in an application 30under section 14Aof the Civil Procedure Code should establish thatthe deceased left an estate and the respondent proposed to beappointed is the legal representative as defined in section 394(2) ofthe Civil Procedure Code. To establish that the respondent is thelegal representative, the petitioner ought to have stated that therespondent ‘adiatted’ the inheritance.
Jagoda v. Tudawe
The petitioner being aggrieved by the said order of refusal of hisapplication made an application to this Court invoking its revision-ary jurisdiction seeking to set aside the said order of the learnedDistrict Judge dated 29.11.2000 and a direction to the DistrictJudge to appoint the respondent in place of the deceased or in thealternative to appoint the respondent in place of the deceased “asthe legal representative” of the aforesaid deceased DeshabanduTudawe". The respondent objected to the application for revision ongrounds that any cause of action against B.Y.Tudawe did not sur-vive his death, the respondent is not liable for any delicts of thedeceased and no cause of action accrued to petitioner to sue thedefendant and further alleged that the petitioner could not havemaintained this application without his right to leave to appeal beingexercised.
When the matter was taken up for hearing the Counsel repre-senting parties moved that the matter involved is a pure question oflaw and the same be disposed of by way of written submissions.Upon consideration of pleadings, documents and submissions, Ifind that the petitioner has not established that the respondent whois said to be the sole heir of the deceased has adiatted the inheri-tance. In terms of the definition of the “legal representative” undersection 394(2) of the Civil Procedure Code, apart from an executoror administrator in the case of an estate below the value ofRs.500,000/- only the next of kin who has adiatted the inheritancebecomes a legal representative of the deceased. The application ofthe petitioner to appoint the respondent in place of the deceased ison the basis of her being the legal representative of the deceasedand not in the capacity of an heir of the deceased. On a mere read-ing of section 394(2) it is very clear that a next of kin, who had adi-atted the inheritance, should adiate an estate below administerablevalue. The existence of estate below administerable value and adi-ation by next of kin are two main ingredients of “legal representa-tive” the definition of the term.
The petitioner who seeks the appointment of the respondent inplace of the deceased “as the legal representative of the deceased"should first establish that the respondent is the legal representativeof the deceased according to law. As the learned District Judge hascorrectly concluded the petitioner has failed to establish that the
Sri Lanka Law Reports
 2 Sri L.R
respondent is. the legal representative of the deceased; in otherword that the deceased left an estate below administerable valueand the respondent as next of kin who adiatted the same. In theabsence of such fact being established the petitioner is not entitledto have the respondent appointed in terms of section 14A, in placeof the deceased.
As the application of the petitioner in this application and theapplication before the Court below, are for the appointment of therespondent in place of the deceased as “legal representative of thedeceased” and not in her capacity as an heir, the liability of an heirin delict of the deceased specially in an acquilian action, does notarise for determination. The ground of objection that the delictualliability of the deceased did not pass on to the respondent is notexamined as the application of the petitioner fails on the groundsurged by the petitioner himself.
In the result the application of the petitioner for revision is dis-missed and in all the circumstances of the case I make no order asto costs.
SRIPAVAN, J. – I agree.