004-SLLR-SLLR-1997-V3-JAYANATHA-DE-SOYSA-v.-NAOMAL-DE-SOYSA.pdf
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Jayantha de Soysa v. Naomal de Soysa (Ismail, J.)
65
JAYANTHA DE SOYSA
v.NAOMAL DE SOYSA
COURT. OF APPEALISMAIL, J.
A. 25/96.
C. COLOMBO 26985fT.
MAY 09. 1997.
Testamentary Proceedings – Objection to Final Account – Whether a certain landforms part of the Estate – Are the administrators obliged to file accounts relatingto it – Practice and Procedure to be pursued in taking accounts in aadministration suit – Sections 551, 718, 720, 736 – Civil Procedure Code.
Held:
Section 551 provide for the filing of accounts, but there is no provision whichdeals with the manner of taking account.
In the present case there were two separate matters before Court, final accountsubmitted by the joint administrators under section 551, and the issue whetherOlaboduwa Estate forms part of the estate of the deceased and consequentlywhether it should have been included in the inventory of the deceased person'sproperty filed by the joint administrators.
The District Court should first make an order according to law in regard to thefinal account and separately determine the question whether Olaboduwa Estate •forms part of the estate of the deceased.
AN APPLICATION in Revision from the Order of the District Court of Colombo.Cases referred to:
Fernando et el v. Fernando 1 SCC 52 at 54.
De Soysa v. De Soysa 26 NLR 472 at 479.
Tharmalingam v. Chandrasegaram 68 NLR 4.
Suppammal v, Govindha Chetty 44 NLR 193.
A. Parathalingam P.C. with L. 8. J. Peiris for the petitioner-petitioner,
Shammil Perera with T. Weerakkody for the joint administrators-respondents
Cur. adv. vult.
June 13, 1997.
ISMAIL, J.
The estate of the late Rt. Rev. Charles Harold Wilfred de Soysawho died on 14.6.1973 is being administered in D.C. Colombo Case
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No. 26985/T. The petitioner was appointed as an administrator of theestate in 1983 together with the joint administrators-respondentsabovenamed. He made an application on 15.2.90 seeking thepermission of Court to have himself discharged and pleaded thatdisputes had arisen between him and the other two jointadministrators regarding the non inclusion of certain properties whichought to have been included as part of the estate of the deceased.The joint administrators-respondents filed their objections dated20.8.90 and together with their joint affidavit they also submitted thefinal account of the estate for the period from 1973 to 30th May 90.
The petitioner was discharged from the role of a joint administratoron 7.3.1991.
The petitioner filed his objections to the final account on14.10.1991 in which he alleged, inter alia, that the final accountdeliberately excluded certain valuable property being part of theOlaboduwa Estate transferred to the estate of the late Rt. Rev. C. H.W. de Soysa as part of a charitable trust by the Land ReformCommission.
In the meanwhile an application was made by the Bishop ofColombo on 17.6.91 to intervene in this case.
The respondents objected to his application for intervention andafter inquiry on 25.5.92 the court made order that Olaboduwa Estateformed part of the estate of the deceased. No order was maderegarding the application for intervention made by the Bishop ofColombo.
The joint administrators-respondents filed an application bearingNo. 604/92 to the Court of Appeal seeking to revise the aforesaidorder and taking up the position that Olaboduwa Estate does notform part of the estate of the deceased and that no accounts relatingto it need be filed. Upon the agreement of the parties the Court ofAppeal in its order made on 25.8.92 permitted the respondents to filefurther papers in the District Court holding that the finding of theDistrict Judge had no effect, and directed the learned District Judge
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to inquire into the question whether Olaboduwa Estate forms part ofthe estate of the deceased and if so, whether the accounts relating toit need be filed. The District Court was to make the order on theapplication for intervention prior to the hearing and determination ofthe final account.
The District Court delivered its order on 17.3.93 dismissing theapplication of intervenient petitioner to intervene in theseproceedings,
Thereafter the 1st joint administrator-respondent filed an affidavitdated 22.10.93 stating that Olaboduwa Estate belonged to De SoysaEstates Ltd. at all times and that it never formed part of thedeceased’s estate. The 1st respondent also annexed copies of 5deeds to show that De Soysa Estates Ltd. has transferred the saidestate to the parties named therein on 31.11.1985. A resolution dated20.11.85 signed by the directors of the De Soysa Estates Ltd.authorising such sales was also annexed.
The petitioner filed a counter affidavit in April 94 annexing fourdocuments regarding Olaboduwa Estate and pleaded that in anyevent the resolution dated 20.11.85 produced by the respondentswas in respect of an estate called Kopikanda and not Olaboduwa.
Pursuant to the order of the Court of Appeal made on 25.8.92 inC.A. Application No. 604/92 one of the matters to be determined bythe District Court was whether Olaboduwa Estate forms part of theestate of the deceased and whether the joint administrators areobliged to file accounts relating to it. The final account submitted bythe joint administrators was the other matter that had to be dealt withby the court.
At the inquiry held on 12.10.95 the parties were at variance on thequestion as to who should commence the inquiry and they werepermitted to tender written submissions in this regard thereafter. Thelearned District Judge in a brief order delivered on 5.12.95 held thatthe petitioner who objects to the final account should commence theinquiry and proceed to substantiate his objections. The petitioner inthis application seeks to have the aforesaid order dated 5.12.95 set
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aside. An interim order has been made by this court on 8.2.96staying further proceedings in the District Court till the determinationof this application.
The practice and procedure to be pursued in taking accounts in aadministration suit before the Civil Procedure Code was enacted wasexplained as follows by Phear, J. in Fernando et el v, Fernandom at 54.
“…the convenient and proper manner of taking account is for thecourt to call upon the accounting party to file his account on a certainappointed day. The court should then allow reasonable time to theopposing party to examine the account and to present a statement ofhis objections to it. This account must be verified by the oath oraffirmation of the accounting party and each item on the credit side,i.e. each item of the disbursement on his part objected to by theopposing party, must be proved by sufficient evidence. And theopposing party has the right to meet this by evidence produced forthe purpose of falsifying the account in any particular, or of addingnew items to the credit side, The evidence adduced in support of theaccount should first be taken and then that of the opposing party,and the court should finally on a consideration of the whole,determine, as nearly as possible, the true state of the account asagainst the accounting party, the matter of the account being in facttaken and dealt with as a separate subject of trial, isolated for thetime from the rest of the suit. The like course should be taken withregard to the inquiries."
In De Soysa v, De Soysa(!} at 479, Bertram, C.J. referred withapproval to the principals explained above and stated that they areequally applicable to a judicial settlement under our Code.
Section 551 of the Civil Procedure Code now provides for the filingof accounts but there are no provisions which deal with the manner oftaking account. Section 551 is as follows:
“551. Every executor and administrator shall file in the DistrictCourt, on or before the expiration of twelve months from the dateupon which probate or grant of administration issued to him, or withinsuch further time as the Court may allow, a true and final account of
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his executorship or administration, as the case may be, verified onoath or affirmation, with all receipts and vouchers attached, and mayat the same time pay into court any money which may have come tohis hands in the course of his administration to which any minor orminors may be entitled,
Provided that where the party is concerned, the filing of suchaccount and payment shall be dispensed with on payment of thestamp duty that would have been otherwise payable on the filing ofsuch account, and the proceedings shall then be closed."
Basnayake, C.J. observed in Tharmalingam v. Chandrasegaram(31,that when an administrator of a deceased person’s estate files anaccount, there is no provision in the Civil Procedure Code for thecourt either to order the secretary to report on the account, or toissue notice to or hear objections from the heirs in regard to theaccount file. He observed further at page 9 while dealing with thefacts of that case "The wrong adopted by the District Judge misledthe respondents to take a course of action unwarranted by the Codewhen there are provisions which prescribe a) the course a personentitled to a distributive share may adopt in order to enforce his rightto that share (section 720), or b) a person interested in the estatemay take to compel the filing of a true inventory or valuation ofaccounts (section 718)".
In Suppammal and Govindha Chettyw, the Court dealt with anapplication by an heir to have the inventory amended by includingtherein six sums of money which she alleges forms part of thedeceased's estate but which the administrator says, in respect ofthree sums, that they are his because the intestate had endorsed thepromissory notes relating to them to him, and in respect of the threeothers that they never formed part of the estate”. Soertsz, J. said atpage 197; “such a case as this appears to me to be within the scopeof section 718 more appropriately than it would under section 736”.He held further, “in short, the amendment of an inventory may beordered either under section 718 or under section 736 and it wouldbe in the discretion of the Court to direct amendment under section718 or to refer a party to the procedure of section 736 according to
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the nature and scope of the particular application and the stage atwhich it is made".
In the present case there were clearly two separate matters beforethe Court, the final account submitted by the joint administratorsunder section 551 of the Civil Procedure Code and the other, theissue whether Olaboduwa Estate forms part of the estate of thedeceased and consequently, whether it should have been included inthe inventory of the deceased person's property filed by the jointadministrators.
I am of the view that the learned District Judge has erred in takingup both these matters for inquiry together. I therefore set aside theorder dated 5.12.95 as the determination of the question of the rightto begin is not relevant to the combined inquiry that has been takenup.
The learned District Judge is therefore directed to make an orderaccording to law in regard to the final account and separately todetermine and direct the parties to comply with the appropriateprovisions of the Code to determine the question whether OlaboduwaEstate forms part of the estate of the deceased.
The application allowed, case sent back.