Jeganathan v. Sufiyan
(Wiiavaratne. J.)
A. NO. 212/2003(F)
C. MT. LAVINIA 1048/99/TNOVEMBER 3 AND 17, 2003
Civil Procedure Code, – section 537 – Recall of letters of administration -Fresh inquriy into the application for grant of letters ordered – Order made -Appellant not entitled to interest from mother – No right to the estate – Lettersgranted to the respondent – Appeal – Is this a final order or an interlocutoryorder?
Held :
(1) Though the impugned order is made after a subsequent fresh inquiry, itwas only an exercise of jurisdiction under section 537 and any ordermade consequent to such an inquiry does not amount to a final order.
Sri Lanka Law Reports
[2004] 2 Sri L.R
Per Wijeratne, J.
“Determination of intervenient appellant’s right of inheritance is only inci-dental to an application to intervene in the testamentary proceedings andrecall and revocation of letters of administration cannot be considered tofinally settle the issue of inheritance.”
APPEAL from an order of the District Court of Mt.Lavinia.
Cases referred to:
Viravan Chatty v Ukku Banda – 27 NLR 65
Settlement Officer v Vander Poorten – 43 NLR 436
Yoosuf v National Bank of India Ltd., – 60 NLR 381
Siriwardena v Air Ceylon Ltd., (1984) -1 Sri LR 286Ranjan Suwandaratne for petitioner-respondent-respondentJehan Cassim for intervenient petitioner-appellant.
May 26, 2004WIJAYARATNE, J.
This is an appeal preferred by the Intervenient-petitioner-appel-lant (hereinafter referred to as the appellant) against the order ofthe learned District Judge of Mt.Lavinia dated 08.01.2003. Theorder is a sequel to the application made by the appellant underand in terms of section 537 of the Civil Procedure Code praying forthe recall of Letters of Administration granted to the petitioner-respondent-respondent (hereinafter referred to as the respondent),revoke the same and to allow her to intervene in the proceedingsand grant Letters of Administration of the estate to her. This appli-cation is dated 29.03.2000.
Consequent to the order of the learned District Judge dated04.04.2001 made on such application, wherein a fresh inquiry intothe application of the appellant for the grant of Letters ofAdministration, was ordered, there had been a fresh inquiry intosuch matter culminating in the impugned order dated 08.01.2003being made. The appellant made this appeal by way of direct
Jeganathan v. Sufiyan
(Wiiavaratne. J.)
appeal from such order which is alleged to have the effect of declar-ing that the appellant is not entitled to inherit from her mother,whose estate is being administered in these proceedings and hasno right to her estate and Letters of Administration be granted to therespondent.
The respondent raised preliminary objection on the basis thatthe appellant has no right of appeal in as much as the orderimpugned in this appeal is one made under section 537 of the CivilProcedure Code, is not a judgement or a final order and only aninterlocutory order.
The parties who argued the matter of the preliminary objectionconceded that only an order having the effect of a final order canbe directly appealed from, to this court. The appellant argued thatthe impugned order has the effect of a final order in as much as thesame determined not only her right of inheritance but the rights ofher children as well. Hence she is entitled to prefer an appeal directto this court. On the other hand the respondent argued that anorder made on an application under section 537 does not have theeffect of a final order because it does not finally settle the matterof Administration of the Estate.
It is pertinent to examine the history of the proceedings of thiscase to determine the nature and scope of the impugned order. Therespondent was granted Letters of Administration of the Estate,after notice under section 529 was published and in the absence ofany objection and after hearing in terms of the provisions of section532 of the Civil Procedure Code. Such order of granting Letters ofAdministration was made on 24.11.1999. When the appellantmade application under section 537 dated 29.03.2000 Court afterinquiry made order dated 04.04.2001., allowing the interventionand recalling and revoking the Letters of Administration alreadygranted. Such an order could only have been made by the court inthe exercise of its jurisdiction under section 537 of the Code.However the order made had left the matter of the appellant’s enti-tlement to inheritance to be determined in a fresh inquiry. The courtdid not determine the jurisdiction of the court to hold such freshinquiry under section 537, because there are no provisions underChapter XXXVIII to hold such fresh inquiry into an intervention todetermine the appellant’s entitlement to inheritance or share of the
Sri Lanka Law Reports
[2004] 2 Sri L.R
estate. The learned District Judge before allowing the interventionand recall and revocation of Letters of Administration, should havesatisfied himself, that the applicant under section 537 “had such an
interest in the estate of the deceased person as entitles himto
make such application”. The interest the appellant claimed is herentitlement to 1/2 share of the estate on the basis of her inheritance 60from the deceased mother, which was effectively disputed by therespondent. Then it was the duty of the court to determine her enti-tlement before allowing the intervention and recall and revocationof Letters of Administration. The learned District Judge has erredin law in allowing the application under section 537 without deter-mining her right to inherit from her deceased mother. However, itis seen that the fresh inquiry was ordered as an extension of theexercise of the jurisdiction under section 537, though not properlyexercised in one inquiry resulting in the order allowing the inter-vention and the recall and revocation of Letters of Administration. 70The inquiry culminating in the impugned order is one that could onlyhave been held only in the exercise of jurisdiction under section537 of the Code and hence the order made consequent to thesame cannot in law, amount to a final order.
In the instant case, if the inquiry into the matter of intervenient-appellant’s entitlement to inheritance too was determined at theinquiry held in terms of section 537, the Letters of Administrationcould not have been recalled and revoked with the result that wasproduced in the subsequent inquiry dismissing her claim of inheri-tance. In such an event the administration of the estate of the sodeceased would continue without any disturbance of proceedingsand the intervenient-appellant could only have appealed againstthe same with leave of this court first had and obtained. Thoughthe impugned order dated 08.01.2003 is made after a subsequentfresh inquiry, it was only an exercise of jurisdiction under section537 of the code and any order made consequent to such an inquirydoes not mount to a final order.
Testing the finality of the order appealed from, in the light of thedecisions of the cases of
Viravan Chetty v Ukku Bandd1>90
Settlement Officer v Vander Pooten (2)
Lankem Tea & Rubber Plantations (Pvt) Ltd. v.
Central Bank of Sri Lanka and others tSrioavan. J.)
Yoosuf v National Bank of India Ltd., <3)
Siriwardane v Air Ceylon Ltd.SA)
It is noted that the determination of intervenient-appellanfs rightof inheritance is only incidental to an application to intervene in thetestamentary proceedings and recall and revocation of Letters ofAdministration cannot be considered to finally settle the issue ofinheritance.
In these circumstances, I uphold the preliminary objection thatthe appellant has no right of direct appeal to this court from theorder made consequent to an application under section 537 of the 100Civil Procedure Code.
The appeal of the Intervenient-appellant is dismissed in liminewith costs fixed at Rs.5,000/=.
Appeal Dismissed.