050-SLLR-SLLR-2005-V-3-KALAIKUMAR-vs.-SARASWATHEY-AND-OTHERS.pdf
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Kalai Kumar Vs. Saraswathey and Others (Wimalachandra, J.)
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KALAI KUMARVS.SARASWATHEY AND OTHERSCOURT OF APPEAL.
SOMAWANSA, J. (P/CA).
WIMALACHANDRA, J.
CA 1200/2004.
DC NUWARA ELIYA 693/T.
MAY 25th, 2005.
Civil Procedure Code – Testamentary provisions, sections 718, 736, 736(2),839 – Letters of Administration granted – Right of a claimant to intervene andclaim property in the same action?-Basis of prior transfer – What is the propercause of action?-lnherent powers of Court?-Substantial justice – Delay – Is itperse fatal?-Miscarriage of justice.
The petitioner respondent S. instituted testamentary proceedings in respectof the estate of LA who died on 28.02.1973. Letters were granted to S. Theclaimant petitioner sought to intervene and claim a certain land, which wasincluded in the inventory. The claimant petitioner’s position was that thedeceased had transferred the said land to one L in 1971 who had subsequentlytransferred to the claimant petitioner in 1982 .
The trial Judge dismissed the application of the petitioner. The claimantpetitioner moved in Revision.
HELD:
Per Wimalachandra, J.
“The learned District Judge has failed to appreciate that the estate of adeceased person should consist of properties the deceased owned at thetime of his death.
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Any dispute with regard to immovable property included in theinventory where a contest arises between the administrator/executor and any of the other parties to the testamentary caseshall be determined in the same special proceedings and in thesame manner as any issue arising in a civil suit.
Per Wimalachandra, J.
“It is seen that section 736(2) is silent – when a party other than a party to thetestamentary action claims a property, in such a situation when the Code issilent and no express provision has been made in that behalf can the courtuse its inherent power to adopt such procedure as may do substantial justice- in my view, the District Court must hold an inquiry as to the genuineness of theclaim of the petitioner. When it is apparent that a particular land has beendisposed of by the deceased can the administrator include it in the inventory?
Quarere
“When the Code is silent and no express provision is made in that behalf,can the Court use its inherent power to adopt such procedure as may dosubstantial justice"
APPLICATION in revision from an order of the District Court of Nuwara Eliya.Cases referred to
Jayantha de Soysa vs. Naomal de Soysa – 1997 3 Sri L. R. 65
Suppamal vs. Govindha Chetty – 44 NLR 193 at 197
Leechman and Company Ltd. vs. Rangalla Consolidated 1981 2Sri LR 373
Narsing Das vs. Mangal Dubey – 5A 163 at 172
Hewavitharana vs. Themis Silva – 68 at 72
Seneviratne vs. Abeykoon – 1986 2 Sri LR 1 at 5 and 6
Fernando vs. De Silva and Others – 2000 3 Sri LR 29 at 46
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Rohan Sahabandu for claimant – petitioner.
M. Abdul Najeem with P. Atukorale for petitioners-respondentS. N. Vijithsinghe for 3rd and 7th respondent
September 02, 2005.
WIMALACHANDRA, J.The claimant-petitioner has filed this application in revision from theorder of the learned District Judge of Nuwara Eliya dated 29.04.2004.
Briefly, the facts relevant to this application as stated in the petition are
as follows:
The petitioner-respondent, namely, Loganathan Saraswathy institutedtestamentary proceedings in the District Court of Nuwara Eliya in respectof the intestate estate and effects of late Loganathan Arunasalam whodied on 28.02.1973. The District Court granted the Letters of Administrationto the said Loganathan Saraswathy appointing her as the administratrix.The matter relevant to this application is that the claimant-petitioner,namely, Ramanathan Kalikumar, sought to intervene and claim the landcalled Hawa Eliya Patana in extent of 1 A. 2R. 16P which was included inthe inventory filed by the administratrix. The said claimant-petitionerdemanded that the aforesaid property called Hawa Eliya Patana shouldbe excluded from the inventory as he is the owner of the same. The claimant-petitioner’s position is that the deceased, the late Loganathan Arunasalamhad transferred the said land by deed No. 126 dated 08.12.1971 prior tohis death to one Letchchaman and subsequently the claimant-petitionerhad purchased the said property from the said Letchchaman, and hencehe is entitled to have the said property excluded from the inventory. Onthis application, the learned Judge made order dated 29.04.2004 rejectingthe claimant-petitioner’s application to have the said property excludedfrom the inventory. It is against this order the claimant-petitioner has filedthis application in revision.
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The learned Judge in his order had stated that since the claimant-petitioner had bought the property in 1982 whilst the testamentaryproceedings were pending, the claimant-petitioner has no right to seekexclusion of the said property from the inventory. It is to be observed thatthe learned Judge has failed to recognise or notice the fact that the deceasedhad transferred the said property in 1971 by deed No. 126 dated 08.12.1971,nearly two years prior to his death. Morever, when there is no allegationthat the said two deeds are fraudulent, it would imply that the two deedsare genuine. The learned District Judge has failed to appreciate that theestate of a deceased person should consist of properties the deceasedowned at the time of his death.
In the case of Jayantha de Soysa vs. Naomal da Soysa(1), one of thecontentious issues was whether Olaboduwa Estate formed a part of theestate of the deceased and consequently whether it should have beenincluded in the inventory of the deceased person's property filed by thejoint Administrators. Ismail, J. at page 69 cited with approval theobservations made by Soertsz, J. in the case of Suppammal vs. GovindhaChetty(2), at page 197;
“Such a case as this appears to me to be withinthe scope of section 718 more appropriately than itwould under section 736”. He held further, “in short,the amendment of an inventory may be orderedeither under section 718 or under section 736, andit would be in the discretion of the Court to directamendment under section 718 or to refer a party tothe procedure of section 736 according to the natureand scope of the particular application and thestage at which it is made.”
The above decision clearly indicates that any dispute with regard toimmovable property included in the inventory, where a contest arisesbetween the accounting party (the administrator or executor) and any ofthe other parties to the testamentary case, should be determined in the
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same special proceedings and in the same manner as any issue arisingin a civil suit. As Soertsz, J. pointed out in Suppammal vs. GovindhaChatty (supra) an amendment of an inventory may be ordered either undersection 718 or under section 736 of the Code, and it would be in thediscretion of the Court to direct amendment under section 718 or refer aparty to the procedure of section 736 according to the nature and scopeof the particular application and the stage at which it is made. Accordingly,the Court can hold an inquiry into such application in the testamentarycase itself and if the Court is satisfied, the Court can exclude from theinventory the said immovable property. It was held further, that where aquestion arises between the executor or administrator and any other party,that question may be determined in the same proceedings and not byseparate action.
I n the instant case learned District Judge refused the claimant- petitioner’sapplication mainly on the ground that the petitioner has filed this applicationtwenty-five years after the institution of the testamentary proceedings. Itappears that the right of the claimant-petitioner to have the said propertyexcluded from the inventory has been denied solely on the basis of delay.However, the testamentary case has not yet reached the stage of judicialsettlement of accounts.
The question that arises is when a third party claims an exclusion of aproperty from the inventory, what is the proper course of action ? InSuppammal Vs. Govindha Chetty (supra) at page 197 Soertsz, J. expressedthe view that so far as third parties are involved, separate actions would bethe proper course. However in the instant case the facts are rather different.When it is apparent that a particular land has been disposed of by thedeceased prior to his death, can the administrator include it in the inventory?Section 736(2) of the Civil Procedure Code permits that where a contestarises between the accounting party (administrator or probate holder) andany of the other parties respecting any property alleged to belong to theestate, but to which the accounting party lays claim, the contest must betried and determined in the same manner as any issue arising in a civiltrial. It is seen that section 736(2) is silent when a party other than a party
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to the testamentary action claims a property. In such a situation when theCode is silent and no express provision has been made in that behalf, canthe Court use its inherent power to adopt such procedure as may dosubstantial justice?
In the case of Leechman & Company Ltd. Vs. Rangalla Consolidated
(3)
Ltd. Soza. J. held that section 839 of the Civil Procedure Code savesthe inherent powers of the Court to make such orders as may be necessaryfor the ends of justice or to prevent abuse of the process of Court. Whereno provisions exist, it is the duty of the judge and it lies within his inherentpower to make such order as the justice of the case requires.
(4)
In an Indian case, Narsing Das Vs. MangaI Dubey , at page 172,Mahmood, J. said:
“Courts are not to act upon the principle that every procedure is to betaken as prohibited unless it is expressly provided for by the Code, but onthe converse principle that every procedure is to be understood aspermissible till it is shown to be prohibited by the law. As a matter ofgeneral principle prohibition cannot be presumed.” This dictum has beenfollowed by the Supreme Court of Sri Lanka in several cases (see -Hewavitharana Vs. Thamis Silva,5) at 72) Seneviratne Vs. Abeykoon<6) at5 & 6, Fernando Vs. De Silva and others<7).
Section 839 of our Civil Procedure Code is identical to section 151 ofthe Indian Civil Procedure Code.
Sarkar’s Law of Civil Procedure, 8th edition, volume 1 at page 483 statesthus:
“In 1968, Peacock CJ, said: Since laws are generalrules, they cannot regulate for all time to come so
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as to make express provisions against all the casesthat may possibly happenIt is the duty of the
Judges to apply the laws, not only to what appearsto be regulated by their express dispositions but toall the cases to which a just application of themmay be made, and which appear to becomprehended either within the express sense ofthe law, or within the consequences that may begathered from it”.
However, the inherent power of the Court is intended to supplement theother provisions of the Code when the Code is silent and does not containspecific provisions which would meet the necessities of the case. As Sarkarin his book, The Law of Civil Procedure, pointed out. “The inherent powerhas not been conferred upon the Court; it is a power inherent in the Courtby virtue of its duty to do justice between the parties."
In these circumstances when the accounting party (administrator orprobate holder) has included a property in the inventory and prima-facie ifit appears to be a property not belonging to the deceased person, in myview, the District Court must hold an inquiry as to the genuinness of theclaim of the petitioner. If the property does not form a part of the estate ofthe deceased person then it is not proper to administer the said property.Morever if the said property does not form a part of the estate of thedeceased then the District Court has no jurisdiction to make any orderwith regard to that property.
The learned District Judge had dismissed the claimant-petitioner’sapplication mainly on the ground of delay without considering the merits ofthe application. The learned Judge failed to appreciate that the delay inconcluding the testamentary case was due to a number of appeals madeto the Court of Appeal by the other parties to the testamentary action andthat the claimant-petitioner was not responsible for them. The learned
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Judge was misled into believing that the petitioner bought the land in 1982when the testamentary case was proceeding but failed to recognise thatthe deceased person sold the property in 1971 prior to his death to anotherperson and from whom the claimant-petitioner bought the said property.Consequently, it appears that the claimant-petitioner has made out a strongcase amounting to a positive miscarriage of justice. Having regard to thespecial and exceptional circumstances of the case the claimant-petitioneris entitled to invoke the revisionary powers of this Court.
For these reasons, we allow the application in revision and set aside theorder of the learned District Judge dated 29.04.2004, and order that afresh inquiry be held in respect of the application made by the claimant-petitioner as early as possible. The claimant-petitioner is entitled to recoverthe costs of this application fixed at Rs. 7500 from the petitioner-respondent.
ANDREW SOMAWANSA, J.(P/CA)- / agree.