058-NLR-NLR-V-71-M.-GUNARATNAM-Appellant-and-A.-SELLAMMAH-and-others-Respondents.pdf
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T. S. FERNANDO, J.—Ounaratnam v. Sellammah
1962Present : T. S. Fernando, J., and Herat, J.M.GUNARATNAM, Appellant, and A. SELLAMMAH and others,
Respondents
S. C. 98 (Inly.) of 1960—D. C. Kandy, 2561IT
Administration of estates—Testamentary action—Quantum of the estate—Stage atwhich it should be deter mined—Civil Procedure Code, ss. 518, 531.
In a testamentary action, a decision as to whether any particular asset upart of the estate of the deceased person is premature at the stage at whiohconflicting claims to administration aro being considered by the Court.
Appeal from an order of the District Court, Kandy.
C. Ranganaihan, for the 8th respondent-appellant.
S. J. V. Chelvanayakam, Q.C., with M. Tiruchelvam, Q.C., andS. Sharvananda, for the 1st respondent-respondent.
Cur. adv. vult.
March 7, 1962. T. S. Fernando, J.—
The short point arising on this appeal relates to the proper stage atwhich the District Court should, in the course of a testamentary action,adjudicate upon a dispute as to whether property alleged to belong toa testator should be excluded from the property of the estate on theground that it is property belonging to another.
The testator died on 6th December 1957 leaving a last will in whichhe named the present appellant as executor. In the course of the contestthat arose in the District Court between the 1st respondent who is thewidow of the testator and who claimed a grant in her favour of lettersof administration cum testamento annexo and the 8th respondent whohad applied to have probate of the will issued to him, counsel for the1st respondent moved the Court to determine an issue suggested by himas to whether a half-share of certain assets should be excluded fromthe estate of the deceased as being property belonging to the 1st respondent.Counsel for the 8th respondent objected to this issue being adopted on theground that the proper stage for inquiry into what should comprisethe assets of the deceased had not yet been reached. The learned DistrictJudge overruled the objection, adopted the issue and, after inquiry,held that three specified immovable properties had been purchased
T. S. FE RNANDO, J.—Ounaratruzm v. SeUammah
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during the subsistence of the marriage between the testator and the 1strespondent and that, therefore, the latter is entitled in her own right toa half-share of each of those properties. He accordingly ordered ahalf-share to be excluded as not forming part of the assets of the testator.
The 8th defendant to whom the District Judge ordered probate ofthe will to be issued (the 1st respondent withdrawing her claim to lettersof administration) appeals to this Court against that part of the orderof the learned District Judge which directed exclusion of a half-shareof the properties above referred to. Learned counsel on his behalfhas submitted that the proper stage for such an adjudication to bemade is yet to be reached. His submission receives support from previousdecisions of this Court and is, in my opinion, entitled to succeed.
i
In Nahamado Ali v. Sella Natchia *, it was held that an inquiry asto whether any particular asset is part of an estate is premature at thestage at which conflicting claims to administration are being considered,by the Court. In the case of Kathirikamasegara Mxtdcdiyara, wherean executor named in a will applied for probate and an order nisi wasentered in her favour, and certain parties, in showing cause againstthe order being made absolute, did not object to the will being declaredproved, but objected to the validity of certain bequests in the will in thatthey were in favour of certain illegitimate children cf the testator bomto him in adultery, this Court held that, at that stage of the proceedings,it was not open to those parties to raise this objection, but thatthe executrix was entitled to an issue of probate. In a later case, Kantai-yar v. JRamoe5, where in the course of deciding vhether a person shouldbe granted letters of administration in respect of the estate of his deceasedwife, the sisters, of the1'latter raised the queition that the heir of thedeceased w as not the applicant’s son but someme else, Wendt J. held thatthe question will be a proper one to be tried between the sisters and theadministrator in a subsequent proceeding. These last two cases werefollowed in Fernando v. Fernando4 where it was held that an inquiryas to who were the heirs of the decease! was not relevant at the stageof deciding who should administer the deceased’s estate. De Sam pay oA. J. (with whom Pereira J. agreed) stated in the course of tho judgmentm that case that “ the decision of tie issue appears to be right on theevidence, but we cannot ignore toe objection to the proceedingsAlthough in the case before us tb* dispute raised did not relate to theidentity of the heirs of the decea»ed but was confined to the question ofthe quantum of the estate, I an of opinion that in a petition presentedto Court in terms of section 61! of the Civil procedure Code a descriptionof the extent of the interests jf the deceased in property specified thereinis not a material allegation in the sense of that expression as it occursin section 534 of the sam* Code. For that reason, and also followingMahamado Ali v. Sella Natchia (supra), the adjudication to whichobjection has-been taken is premature, and should be set aside.
» {1893) 2 Cey. Lav Hep. 179.* {1904) 8 N. L. R. 207.
• {1900) 5 N.L.P 29,* {1914)18 N. L. R. 24.
23 -PP 006137 (98/08)
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Colombo Apothecaries Co. Ltd. v. Wijesooriya
The order of the District Court made on 4th November 1960is accordingly set aside in so far as it directs the executor, the 8threspondent-appellant, to file an amended schedule of assets and to submit anamended declaration of assets. The order for costs must also be set aside.There will be no costs of the inquiry held in the District Court. The1st respondent must pay to the 8th respondent the costs of this appeal.
Herat, J.—I agree.
Order set aside.