008-NLR-NLR-V-39-LETCHIMAN-v.-MURUGAPPA-v.-CHETTIAR.pdf
Letchiman v. Murugappa Chettiar.
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Present.: Moseley J. and f ernando A.J.
LETCHIMAN v. MURUGAPPA CHETTIAR.
72—D. C. Colombo, 6,741 (Testy.).
Administration—Application on a copy of last will—Proof of copy—CivilProcedure Code, s. 539 (c)—Evidence Ordinance, s. 63.
Where application is made for letters of administration with the copyof a will annexed under section 539 (c) of the' Civil Procedure Code,the document produced must be proved in accordance with the terms ofsection 63 of the Evidence Ordinance.
^ PPEAL from an order of the District Judge of Colombo.
V. Per era (with him Kumarakulasingham), for appellant.
C. Thiagaiingam (with him Nadesan), for defendant, respondent.
Cur. adv. vult.
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FERNANDO A.J.—Lietchiman v. Murugappa Chettiar.
November 24, 1936. Fernando A.J.—
The petitioner applied as attorney of the widow of the deceasedNarayan Chetty for letters of administration with copy of a willannexed, on the footing that the will had been executed by the deceased,Narayan Chetty. The application was opposed by the fifth respondent,the present appellant, on various grounds.
Along with his petition, the petitioner filed the document marked X 7which purports to be a copy issued by the Sub-Registrar of Karakudi,and it transpired in the' evidence that the original will said to have beenexecuted by Narayan Chetty was at one time in the custody of Aru-nasalam, the attorney of the fifth respondent, and it was stated thatArunasalam had oh one occasion brought it to Colombo and had handedit to Mr. Muttusamy, the proctor for the present petitioner. Mr. Muttu-samy, however, did not take the will into his custody, and produce it inCourt, because Arunasalam was unwilling to part with the possessionof the document unless a ium of Rs. 250 was paid to him, to be paid toMey&ppan Asari from whose possession Arunasalam had obtained thedocument. Meyappan Asari appears to have taken certain proceedingsin connection with the will in India, and apparently claims the sum ofRs. 250 as expenses incurred by him in those proceedings.
The original application made to Court by petitioner’s proctor is inthese terms: “Mr. Muttusamy files proxy, affidavit, and a petition ofthe petitioner together with last will, and Supreme Court order, prayingfor letters of administration with will annexed to the estate of the above-named deceased, and for an order directing service of order nisi on therespondents and executors.”. It would follow from this application thatthe petitioner originally took up the position that the documentproduced by him was in fact the last will – of the deceased, and it wasonly after Mr. Muttusamy’s evidence on November 8, 1934, that Counselfor the petitioner moved that letters of administration with copy of thewill annexed be issued in terms of section 539 of the Civil ProcedureCode. The learned District Judge has ordered letters of administrationto issue with copy of the will annexed, but has not limited the lettersso ordered to issue in any manner whatsoever. An examination ofsection 539, however, will show that letters issued in terms of that sectionmust be limited in some way,, and in all cases in which letters ofadministration have issued in England in similar cases,, they have beenlimited till the will itself is brought into Court. Counsel -for therespondent thought that the relevant sub-section that would apply wassection 539 (C) where provision 4s made that probate of a copy of a willmay be granted where the original is in the hands of a person residing.out of the'Island who cannot be compelled to give up the original to theexecutor, but even in that case the section requires that the executoror another applicant should produce a copy, and that the letters issuedor the grant of probate as the case may be, should be limited until theoriginal is brought into Court. The only other section under which theDistrict Judge was entitled'to make an order in the terms of this-order issection 518 where letters of administration with copy of the will annexed
FERNANDO A.J.—Letchiman v. Murugappa Chettiar.
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may issue after the will itself has been proved. In view, however, of thestatement of Counsel, I propose to deal with the order made by thelearned District Judge as an order made under section 539.
Assuming that the original will is in the hands of Meyappan Asari,and that the latter cannot be compelled to give it up to the petitioneror to some other person to be produced in Court, it is necessary beforeletters of administration with copy of that will can issue, that a copyshould be produced in Court, and the document so produced mus't be acopy of the will within the terms of the Evidence Ordinance. Section 61of that Ordinance provides that the contents of a document may lj>eproved either by primary or by secondary evidence. Section 62 declaresthat primary evidence means the document itself, and section 63 sets outthe secondary evidence which can be produced; and illustration (c)states that a copy transcribed from a copy, but afterwards- comparedwith the original, is secondary evidence, while a copy not so comparedis not secondary evidence of the original, although the copy from whichit was transcribed was compared with the original. Now the documentproduced in Court and marked X 7 is a copy issued by the Sub-Registrar,and it was stated by Counsel for the respondent that on the rules appli-cable in India, a last will may be deposited with the Registrar, and theRegistrar is then required to enter in his book a copy of the documentthat is tendered for registration, while the original, with the endorsementto the effect that it has been registered, is returned to the party whopresents it. It may fairly be assumed, therefore, that a copy that ismade by the Registrar for the purpose of his record is compared byhim with the original that is tendered for registration. The documentX 7 now produced is a copy of the copy made by the Sub-Registrarfor this purpose, and there is no evidence to the effect that thatcopy was ever compa'red with the original, and in the absence of suchevidence, the copy X 7 cannot be accepted in Court as a copy of theoriginal will.
I have assumed for this purpose, that the original will is in the hands ofsome person who cannot be compelled to give it up, but the evidencehere indicates that the person in whose custody that original is, waswilling to give it up, on payment of certain expenses incurred by him.The will itself is one that can be proved in India, and deals with propertysituated in India as well as in Ceylon. It would appear that some actionhad been taken on the will by Meyappan Asari in India, and I am notsatisfied that the claim he makes is an unreasonable claim. The propertybelonging to the deceased which is dealt with by the will is said to be ofconsiderable value, and even if the demand made by Meyappan Asari isunreasonable, I feel sure that the keen contest between, the parties inthe District Court has caused the parties much more than the amountdemanded by Meyappan Asari. An order like the order applied for,involves the finding by the Court that the will has in fact been proved,and I fail to see how the-burden which lies on the respondent has beendischarged by the mere production of a witness who says, that he saw thedeceased sign a document without definite proof that that documentis in identical terms with the so-called copy that has been producedin Court.
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ABRAHAMS C.J.—Perera v. Agalawatte.
For these reasons, I- hold that the document produced in Court cannotbe admitted as a copy of the will said to have been signed by the deceasedNarayan Chetty, and that the order made by the learned District Judgemust be set aside. In view of this conclusion, it is not necessary to referto the other points that were discussed in the District Court.
Counsel for the respondent further applied to this Court for issue ofletters of administration on the footing that no will has been proved,but with the evidence before us that there is a will executed by thedeceased it is not possible to consider this application. I would, there-fore, set aside the order of the learned District Judge and dismiss theapplication of the petitioner. The petitioner will pay to the fifthrespondent the costs of this appeal and of the proceedings in theCourt below.
Moseley J.—I agree.
Appeal alloiued.