LAKMINI RATWATTE WELAGAMA v. ANOJA DEVI WIJESUNDERA AND ANOTHER

012-SLLR-SLLR-1999-V-1-LAKMINI-RATWATTE-WELAGAMA-v.-ANOJA-DEVI-WIJESUNDERA-AND-ANOTHER.pdf


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[1999] 1 Sri LR.
LAKMINI RATWATTE WELGAMA
v.ANOJA DEVI WIJESUNDERAAND ANOTHER
COURT OF APPEALISMAIL, J„ (P/CA)
TILAKAWARDENE, J.
A.LA. NO. 243/97
C. COLOMBO NO. 31166/TSEPTEMBER 15, 1998OCTOBER 17, 28, 1998NOVEMBER 25, 1998
Civil Procedure Code SS 530, 531, 539, 539 (A), 712 – Testamentary Proceedings
Ex parte – Application to vacate Order Nisi – Evidence Ordinance S. i08Amendment 10 of 1988 – Period of 7 years substituted by a period of 1 year
Due and proper inquiry.
The respondents filed Testamentary proceedings claiming Letters of Administrationin their capacity as sisters and intestate heirs of deceased Upali Wijewardena(U).An order nisi was granted ex-parte. The appellant thereupon moved to vacate-the said Order on the ground that it had been made per incuriam, as an orderunder SS 530, 531 could be made only upon proof of the death of U whichfact had then not been established.
Court made order refusing letters under S. 539A on the ground that there wasno proof of death of U and the period of 7 years in S.108 Evidence Ordinancehad not then elapsed.
S. 108 was later amended on 21. 4. 88 by substituting a period of 1 year forthe period of 7 years. Appellant thereafter sought letters on 20. 5. 88 as thewidow of U. The respondents consented to letters being issued to the appellantand withdrew their application. Inventory and Final Accounts were not filed forover a period of 4 years, the reason being that the resopndents have not providedthe Accounts of the estate of 'U's mother.
The respondents thereafter sought an order directing the appellant to file properand sufficient Inventory / valuation of deceased's property as at the date of hisdeath which was stated to be 13. 8. 83. the day the aircraft carrying 'U'disappeared. The appellants objected and contended that the date of death was
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21.4. 88 and moved Court to hold a due and proper inquiry. Court postponedthe order for 21. 8. 97, and on 21. 8. 97, court directed the appellant to file anadditional inventory and final account on the basis that the date of death was13. 2. 83. On leave being sought.
Held:
The explanation that the final account could not be submitted as therespondents have not been provided with the accounts of the estate oflate 'U's mother cannot be accepted because the appellant could have takenproceedings under S. 712 C.P.C.
Appellant cannot rely on the provisions of S.108 of the Evidence Ordinanceto fix the date of death as being 21. 4. 88 as there is no presumptionas to the time or date of a person's death. This is a matter which hasto be proved by evidence.
The appellant had not controverted the averments in the petition, nor hadshe specified that the date of the death of 'U‘ was different to that allegedby the respondents. The estate duty has been assessed on the declarationof the appellant on the basis that the date of death of 'U' was 13. 2. 83.
The learned District Judge was justified in making an order directing theappellant to file an additional inventory/final account on the basis that thedate of the death of 'U' was 13. 2. 83, and no prejudice has been causedto the appellant.
APPLICATION for Leave to Appeal.
Cases referred to:
Re Phene's Trusts (1870) 5 Ch. App. 139.
A. G. A. v. Fernando – 12 NLR 83.
K. N. Choksy PC, with Nihal Jayamanne PC, Upul Jayasuriya, Nihal Fernando,Lakshman Perera, V. K. Choksy and Ms. K. Wijetunga for petitioner.
P. A. D. Samarasekera PC, with Manohara de Silva and Ms. Kumudini Wijetungafor 1st respondent.
J. £ P. Deraniyagala with Harsha Cabraal, Kavinda Dias-Abeysinghe for 2ndrespondent.
Cur. adv. vult.
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January 11, 1999.
ISMAIL, J. (P/CA)
The respondents filed testamentary proceedings in DC Colombo CaseNo. 30927/T claiming letters of administration in their capacity assisters and intestate heirs of the deceased Philip Upali Wijewardene.Pursuant to their application for the grant of letters of administrationmade under section 589 of the Civil Procedure Code, an order nisiwas granted ex parte. The appellant thereupon filed a petition andmoved that the said order nisi be vacated on the ground that it hadbeen made per incuriam. It was pointed out that an order nisi couldhave been made under the provisions of sections 530 and 531 onlyupon proof of the death of Philip Upali Wijewardene which fact hadthen not been established.
The court then made order refusing the issue of letters of admin-istration under section 539A of the Code on the ground that therewas no proof of the death of the said Philip Upali Wijewardene andthat the period of seven years referred to in section 108 of theEvidence Ordinance had not then elapsed.
Meanwhile section 108 of the Evidence Ordinance was amendedby Act No. 10 of 1988 with effect from 21. 4. 88 by substituting aperiod of one year for the period of seven years referred to therein.The appellant then initiated proceedings on 20. 5. 88 in caseNo. 31166/T seeking the grant of letters of administration to her asthe widow of the late Philip Upali Wijewardene. According to the termsof a settlement agreed upon by the parties in the Court of Appealon 18th January '89, the respondents consented to letters ofadministration being issued to the appellant and withdrew theirapplication for the issue of the same to them in case No. 30927/T.
The letters of administration were then issued to the appellant on26.11.92. Thereafter, although several dates were nominated by courtover a period of over four years for the appellant to file an inventoryand a final account, the appellant does not appear to have filed thesame.
The respondents then filed a petition on 2. 4. 97 for an orderdirecting the appellant to file a proper and sufficient inventory andvaluation of the deceased's property and effects as at the date of
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his death which was stated to be 13. 2. 83, disclosing and includingthe assets set out in paragraph 5 of their petition. The respondentsalso prayed for an order directing the appellant to file in court as fromthe same date a final account of the estate of the deceased.
The appellant filed her statement of objections to this applicationon 29.7.97 and the matter was taken up for inquiry on 27. 10. 97.It was contended on behalf of the appellant that the date of the deathof the deceased was 21. 4. 88 and as such that it was neither corrector possible for the appellant to file final accounfs on the basis thatthe date of the death was 13. 2. 83. It was submitted that this mattercould not be resolved by tendering written submissions but that a dueand proper inquiry should be held for this purpose. The trial judgetook time to consider the submissions and postponed his order for21. 8. 97.
The appellant has averred in her present petition that she obtainedan order nisi in the testamentary proceedings on the legal basis thatPhilip Upali Wijewardene was presumed dead on 21. 4. 88 and thatthe order nisi was made absolute of consent also on the basis thatthe presumption of death operated as from this date. She has furthertaken up the position that she is unable to tender the final accountsuntil the respondents submit and provide her with the accounts ofthe estate of the deceased's mother which was being administeredby them and to which Philip Upali Wijewardene was also entitled toa considerable share.
Counsel for the appellant submitted that the learned AdditionalDistrict Judge had proceeded to deliver an order on the entire issuewhen the counsel only asked for a proper inquiry to be held on thequestion as to the date of the death of the deceased. He furthersubmitted that in doing so the Judge has proceeded on the incorrectpremise that the documents A2 and A3 annexed to the applicationof the respondents have been admitted by the appellant to be correct.
The respondents in their application to the District Court stated inparagraph (4) (a) as follows:
"On 13. 2. 83 the deceased Philip Upali Wijewardene along withfive other persons left Kuala Lumpur, Malaysia, on a Gates Learjetaircraft bound for Colombo. However, the said aircraft did not arrive
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in Colombo or any other destination airport on 13.2.83 as scheduledor on any date thereafter. Land and sea search operations werelaunched in respect of the missing aircraft and passengers byMalaysian and Indonesian Government Authorities, but proved tobe futile, apart from a aircraft wheel found by some fishermen offthe coast of Sumatra, which was later positively identified asbelonging to the said aircraft”.
The respondents annexed to their affidavit photocopies certified astrue copies of the letter dated 24.9.87 from Ms. Shook Lin & Bok(Advocates and Solicitors) of Kuala Lumpur, Malaysia, to theirAttorneys-at-law together with an annexed letter and report from theMalaysian Department of Civil Aviation – A1 to A3.
It appears from the report A3 prepared by the Department of CivilAviation, Malaysia, that on 13. 2. 83 the USA registered Learjet(LR35A) with registration No. 4820 belonging to 'Upali USA' left KualaLumpur International Airport at 20.41 local time for Colombo with sixpersons on board including Upali Wijewardene and at 21.09 thisaircraft failed to give a position report overhead Medan to the KL AirTraffic Control Centre. According to paragraphs 3, 8 of the report itis stated that on 22. 2. 83 an aircraft wheel and a roller bearing werefound by fisherman off Jakarta and that Stillwell Aviation Services,Singapore, had confirmed that the wheel belonged to the aircraftNo. 4820 based on the markings on the wheel.
The appellant had in her objections merely denied the avermentsrelating to the above set out in paragraph 4 (a) of the petition dated2. 4. 97 filed by the respondents. The respondents had further averredthat since 13. 2. 83 neither the deceased Upali Wijewardene nor anyof his fellow passengers on the said aircraft were seen or heard byany of the persons who would normally have seen or heard of themif they were alive. The trial judge has considered whether in thecircumstances evidence need be taken to decide on the date of thedeath of Upali Wijewardene. The appellant had not controverted theaverments in the petition, nor had she specified that the date of thedeath of the deceased was different to that alleged by the respondents.
The only position taken up by the appellant was that as a matterof law in terms of section 108 of the Evidence Ordinance the dateof the death should be deemed to be 21. 4. 88. As section 108 is
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a proviso to section 107 both sections must be read together.Section 107 is as follows:
"When the question is whether a man is alive or dead, andit is shown that he was alive within thirty years, the burden ofproving that he is alive is on the person who affirms it."
Section 108 of the Evidence Ordinance, as amended by ActNo. 10 of 1988 states:
"Provided that when the question is whether a man is alive ordead, and it is proved that he has not been heard of for one yearby those who would naturally have heard of him if he had beenalive, the burden of proving that he is alive is shifted to the personwho affirms it."
Thus, in terms of section 108 of the Evidence Ordinance if a personhas not been heard of for one year by those who would normallyhave heard of him, had he been alive, the presumption of continuanceof life under section 107 of the Evidence Ordinance ceases and theburden of proving him to be alive lies on the person asserting it bydenying death. This has been referred to in the headnote inRe Phene's Trusts which is as follows:
"If a person has not been heard of for seven years, there isa presumption of law that he is dead; but at what time within thatperiod he died is not a matter of presumption but of evidence andthe onus of proving that the death took place at any particulartime within the seven years lies upon the person who claims aright to the establishment of which that fact is essential."
Both the appellant and the respondents in this instance do notdispute the fact of the death of Philip Upali Wijewardene, but theappellant asserts that the date of the death must be deemed to be21st April '88, the date on which the Evidence (Amendment) Act No.10 of 1988 was certified. The appellant cannot however rely on theprovisions of section 108 of the Evidence Ordinance to fix the dateof death as being 21. 4. 88 as there is no presumption as to thetime or date of a person's death. That is a matter which has to beproved by evidence. Thus a party who asserts that a person wasalive at a certain date must prove such fact – A. G. A. v. Fernandd2).
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The appellant had not sought to challenge the evidence placed bythe respondents in regard to the disappearance of the aircraft in whichthe deceased was a passenger after it left Kuala Lumpur airport at21.09 hrs on 13. 2. 83. Besides the mere denial of the positiveassertion that since 13. 2. 83 neither the deceased or any of the otherpassengers on the said aircraft were seen or heard of by any otherpersons who would normally have seen or heard of them, if they werealive, the appellant did not state anything to the contrary in herobjections. While it was submitted that this is a serious question tobe decided upon after leading evidence, the appellant did not giveany indication as to how it was proposed to discharge the burdenof establishing a date other than 13. 2. 83 as being the date on whichthe death of the deceased occurred.
The respondents also pleaded that the appellant has in her affidavitfiled dated 28.4.88 containing the declaration of properties and inven-tory and in the estate duty declaration dated 28. 4. 88 confirmed andacted on the basis that the date of the death of the deceased was13. 2. 83. The estate duty was duly assessed upon the said declarationand the appellant paid a sum of Rs. 1,346,586.00 in respect of whicha Final Certificate was issued on 5. 10. 95 by the Inland RevenueDepartment. It was also contended that the appellant is estopped fromdenying that as a matter of fact that the deceased died on 13. 2.83. The appellant has now taken up the position that the said estateduty was erroneously declared and paid and that this cannot overridethe statutory provisions of section 108 of the Evidence Ordinance.
Learned counsel for the respondents submitted that the appellanthas not furnished a competing date of death and that in view of herunequivocal declaration that the death of her husband took place on13. 2. 83 and considering further the failure of the appellant tocontrovert the facts set out in the documents A1 to A3, there wasno difficulty in reasonably ascertaining that the death of Philip UpaliWijewardene occurred on 13. 2. 83. Thus, there was no need in thesecircumstances for the matter to be fixed for a formal inquiry forevidence to be taken to ascertain the date of the death of thedeceased.
Learned counsel for the respondents submitted that there was noprovision for an inquiry to be held when any person interested in theestate presents in terms of section 724A of the Civil Procedure Code
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proof by affidavit that an administrator has failed to file such accountas is prescribed in section 551. It has been pointed out that in termsof section 551 of the Code a duty is cast on every administrator tofile a true and final account of his administration before the expiryof 12 months from the date upon which the grant of administrationwas issued to him. The appellant had also undertaken according tothe terms of settlement entered into between the parties that she wouldfurnish accounts in respect of each and every year of heradministration commencing from 31st March, 1990.
The explanation of the appellant that the final account could notbe submitted as the respondents have not provided her with theaccounts of the estate of the late Upali Wijewardene's mother cannotbe accepted because the appellant could have taken proceedings todiscover property so withheld in terms of section 712 of the CivilProcedure Code. The appellant has failed to have recourse to sucha proceeding during the period of about five years which have elapsedsince the grant of letters of administration to her.
Taking the above matters into consideration, we are of the viewthat the District Judge was justified in making an order directing theappellant to file an additional inventory and final account on the basisthat the date of the death of the late Philip Upali Wijewardene was13th February, 1983. We are of the view that the alleged denial ofan opportunity to the appellant to lead evidence at a further formalinquiry, for which there appears to be no specific provision, has notcaused any prejudice to the appellant.
The application for leave to appeal from the order dated28. 11. 97 is therefore refused. The application is dismissed with costs.
SHIRANEE TILAKAWARDANE, J. – I agree.
Application dismissed.