( 201 )
MOYSA FERNANDO v. ALICE FERNANDO.D. G., Colombo, 11,024.Administration—State of the law, as to necessity of talcing out letters in caseof intestacy, before and after the passing of the Civil Procedure Code,1889—Inventory and division of joint estate by surviving husbandwithout administration—.Action by heir for share of inheritance—Properremedy.
Bonser, C.J.—By the Charter of 1833 the English law of executorsand administrators was introduced into this Island, and in 1841 a dutywas imposed by Ordinance No. 7 of that year on letters of administra-tion and probate of wills in regard to all classes of estates.
The law thus introduced and carried into effect by Buies and Ordersin that behalf made being new to the people of the country, the SupremeCourt directed the District Courts not to enforce the new law too suddenlyor inflexibly, whence arose the lax practice of not requiring administrationin the case of “ small ” estates, and the question of what was a smallestate was left to the discretion of individual judges.
The Civil Procedure Code of 1889 took away this discretion, and bysection 547 it was provided that no estate which amounted to the sum ofRs. 1,000 was to be considered small, and that in every case where theestate amounted to or exceeded in value Bs. 1,000 administrationshould be taken. It was further provided that no action should bemaintainable for the recovery of any property included in such an estateunless probate or administration had been granted.
The effect of the enactment in section 547 is to declare that theexecutor or administrator was the only person who could sue for therecovery of any property included in such an estate.
Where, on the death of a wife leaving her surviving her husband and aminor daughter, the husband, without taking out administration, inven-torized the joint estate and, dividing it into two halves, settled one halfon the minor daughter by means of proper conveyances, and thenmarried again; and when upon his death intestate, his widow claimedthe whole of his estate, save the part already conveyed to his daughter,—Held, in an action brought by the daughter against the widow for therecovery of certain lands not included in the settlement by her father,that the inventory and division of the original estate were irregularlymade, and that the proper remedy of the daughterwas toapply foradmin-istration of her deceased mother’s estate and to divide the estate accord-ing to law among the parties, independently of her father’s division ofthe estate.
N this case the plaint alleged that one Denis Fernando wasmarried in community of property to one Anso and had by
her an only child, the first plaintiff, who on the 24th June,1897, married the second plaintiff; that Anso died intestate inNovember, 1884, leaving her surviving her husband Denis andthe first plaintiff, each of whom became entitled to a moiety ofthe joint estate; that the joint estate included, amongst other pro-perties, a house at St. John’s road, Colombo, and two lands at
( 202 )
1900. Mount Lavinia, of the aggregate value of Rs. 23,000; that fromOctober 23. the time of Anso’s death in 1884 up to the time of the first plaintiff'smarriage in June, 1$97, the first plaintiff was a minor; that the firstplaintiff’s father died on 11th January, 1897, and from the timeof Anso’s death to his (Denis’s) death, he was in possession of theentirety of the lands without accounting to the first plaintiff forher share; that Denis married the defendant in 1887, and afterhis death in 1897 the first defendant obtained letters of adminis-tration to the estate of the late Denis, and wrongfully included inthe inventory filed in the testamentary suit the entirety of thethree lands in question as belonging to Denis’s estate, whereas onlyan undivided half share thereof was his, and the remaining halfbelonged to the first plaintiff by inheritance from her mother;that the first defendant is in wrongful possession of the firstplaintiff’s share of the said premises, and neither she nor herintestate had accounted to the first plaintiff for the rents andprofits arising from her share of the lands.
The plaintiffs therefore prayed that the first plaintiff- be declaredentitled to an undivided half share of the three lands in questionand be restored to possession thereof, and for mesne profits tillrestoration.
The defendant pleaded that the joint matrimonial estate ofAnso and Denis consisted of six lands and houses, together withcertain shop debts and liabilities; that in February, 1887, Denis,desiring to marry a second time, divided the joint estate of Ansoand.’himself into two parts and kept half for himself and gave theother half to the first plaintiff, which consisted of three lands;and that the plaintiffs, having accepted those three lands, were notnow entitled to claim a moiety of the remaining three lands whichDenis had reserved for himself.
At the trial the issues framed were as follows: —
Did the first plaintiff receive from her father Denis Fer-nando a just half of the immovable property belonging to herparent’s estate on the death of her mother in 1884?
If not, what did she receive?
What mesne profits, if any, are now due to her?
After evidence heard on both sides, the District Judge found thatthe manner in which Denis inventorized, valued and allotted tohis daughter, the first plaintiff, the moiety of the joint estate wasopen to much criticism; that the first plaintiff lost no time whenshe came of age by marriage in repudiating the allotment of herdeceased father, and that she was entitled to a moiety of the pro-perties Bhe claimed.
The defendant appealed.
( 203 )
H. J. C. Pereira and H. Jayawardena, for appellant, opened thecase on the facts and contended that the division of the joint estatemade by respondent’s father in 1887, and his allotment of theportion conveyed to the respondent by the title deeds then madein her favour and delivered to her soon after her marriage in June,1897, should be considered a fair settlement and binding on thefirst plaintiff. [Bonser, C.J.—But Anso’s estate does not appearto have been administered.] Under the old law, administrationwas not necessary. The Civil Procedure Code has'made adminis-tration compulsory in all cases, except where the amount involveddid not exceed Bs. 1,000. The Supreme Court has held that theprovisions of chapter XXXVIH. of this Code are not retrospective(Muttu Kiriya v. Sellamma, 9 8. C. C. 197). The law of Ceylondiscourages administration to small estates (Hakurugey v. Hdku-ruge, Lorens 92). [Bonser, C.J.—But the present case is not asmall estate. The plaint sets down the value of the property claimedto be something more than Bs. 10,000.] That is so. The plaintiffhas no right to come into Court without taking out letters toadminister her deceased mother’s estate. It is true this point wasnot taken in the Court below, but that is only a matter of costs. InFernando v. Perera (I C. L. R. 39) Clarence, J., was of opinionthat the burden of bringing an estate under the exception that itis one too small for administration lay on the party suing. In thepresent case, plaintiffs have not undertaken the onus. On thecontrary, it is stated in the plaint that the value'of the estate isBs. 11,500. In Fernando v. Perera (8 S. C. C. 55) Clarence, J.,held as follows:—" It has been decided, and it is the law, that“ except where the inheritance is small, no one but the legal“ representative can maintain an action for the recovery of money“ or other property claimed as due to the estate of a deceased‘‘ person.” And in Tikiri Menika v. Tikiri Menika (9 S. C. C. 63),the case of Tamel v. Fenando was cited to show that Burnside,C.J., had decided on the 28th June, 1889, that plaintiffs had no titleto sue in that case, because they had not taken out administrationand the estate was not shown to be a small one. [Bonser, C.J.—There ought to be administration. Without it the plaintiff hasno locus standi in Court. We would like to hear counsel forrespondent.]
Rdmandthan, S.-G. (with Sampayo), for respondent.—Thewant of administration was not urged in the Court below inthe answer of the defendant, nor in her petition of appeal. Evenif 2% per cent, were calculated as due to the Crown, the stampduty would not come to more than Bs. 250, which may yet berecovered by the District Judge in other ways. Considering that
( 204 )
1900. the objection was not taken in the Court below or in appeal tillOctober S3. the suggestion came from his Lordship the Chief Justice, and inview of the fact that the principal issue agreed between theparties was whether the first plaintiff received from her fatherDenis a just half of the joint estate, it would not be fair now toforce the plaintiff out of Court on the ground that no adminis-tration had been taken to her mother’s estate.
The law, as understood by the counsel on both sides in theCourt below, appeared to be that administration was not necessary.Otherwise, counsel for the defendant would have raised that plea,and the judge would have given his decision thereon. There isample authority for supposing that an heir, whose parent diedbefore the introduction of the Code, can come into Court and prayfor a declaration of title without first obtaining letters of adminis-tration. The very case first cited by counsel for appellant andreported in 9 8. C. C. 79 is an authority in point. Tamel v.Fernando was indeed cited in the discussion of Tikiri Menika v.Tikiri Menika (9 S. C. C. 63), but that case was not followed, andit was expressly held that the plaintiff in that case, who claimeda portion of the estate of his deceased grandfather, was entitledto succeed in his action without taking out letters to administerhis estate. In Ex ■parte Parian’s case (7 S. G. 0. 79), Lawrie, J.,seemed to hold that, where the heirs agree to divide an intestate’sestate amicably among themselves, and there appeared to havebeen no debts due to or from the estate, administration was notnecessary. And Mr. Justice Withers’ opinion may be seen inhis judgment in Uduma Lebbe v. Segu Ali (2 N. L. R. 349).
A change in the law of the country thus understood by theprofession should not be given effect to in a case like the present.
In my opinion the plaintiff in this case has mistaken herrights.
It appears that in the year 1884 Enso, the wife of one DenisFernando, a merchant in the Pettah, died leaving one child, Moysa,who was then an infant, and who, inasmuch as her parents hadbeen married in community, became entitled to her mother’sshare in the joint estate. In the year 1887, Denis being mindedto marry again, thought it right to divide the joint property ofhimself and his daughter and to set aside a portion as being hisdaughter’s share, so that there might be no dispute about it in thefuture. He called in his daughter’s maternal uncle and four ofhis neighbours, merchants like himself in the Pettah, to assisthim in valuing the property and making a fair division between
( 205 )
himself and his child. One of the persons called in to assist wasthe father, now dead, of the co-plaintiff in this case, who marriedMoysa. Amongst other properties belonging to the joint estatewere six lands and a quantity of jewellery. An inventory wastaken and deeds were drawn up by a notary, whereby the fatherdeclared that he took for himself three of these lands and that heassigned to the child the remaining three; and it was expresslyprovided that the child, when she came of age or married,should be entitled to repudiate the division. Thgse proceedingshad some foundation in the Roman-Dutch Law, but they werequite irregular according to the law of this Island.
By the Charter of 1833, the English law of executors andadministrators was introduced into this Island, and in 1841 theCrown, by Ordinance No. 7 of 1841, imposed a duty on letters ofadministration and probates of wills. The Legislature by thatOrdinance spread the net very wide and the meshes were exceed-ingly small, for it provided for cases where the property wasunder £2 in value, and there were no less than six categories ofcases where the estate was under £100 or a thousand rupees.
The Supreme Court in 1833 drew up Rules and Orders forcarrying into effect the provisions of the Charter as to the testa-mentary jurisdiction of the District Court, and provided for thecases of persons dying intestate where no next of kin appeared totake out administration. In those cases the Secretary of the Court,when 'he got notice of the death, was to take measures to havethe property appraised and the proper parties cited to takeout letters of administration. If no parties appeared on citation,then letters were to be issued to the Secretary himself or someother fit person. These provisions had the object of ensuringthat the parties interested in the intestate’s estate got what theywere entitled to.
At the time the Rules and Orders were drawn up no questionas to the right of the Crown to duty had yet arisen. The Crowndid not impose these duties, as I said before, until 1841. TheRules and Orders were drawn up by the Judges of the SupremeCourt, of whom Sir Charles Marshall was one, being the ChiefJustice.
This being an entirely new procedure—the law of executors andadministrators being new to the majority of the people of thisIsland—the Supreme Court took upon itself to direct the DistrictCourts not to enforce the new law too suddenly or inflexibly(Marshall’s Judgments, J>. 1).
The District Courts would seem to have liberally construed thisintimation, and the practice grew up of not requiring letters of
October S3.Bonsbb, C.J.
( 206 )
1900. administration in small estates. As I pointed out, no question ofOctober S3.the duties payable to the Crown arose at first, and therefore
BpNSEBt C.J. Government had no interest in interfering with this practice. Butafter 1841 the position of things was different, for if administra-tion were dispensed with the Crown lost the duties upon theletters of administration. However, no objection seems to havebeen taken on this ground, and the practice of not requiringadministration in the case of small estates became so firmly estab-lished, that it was recognized by the Legislature in the year 1889,when the Civil Procedure Code was passed.
Before that date, the question what was a small estate, andwhether it was necessary to take out administration or not in anyparticular case, was left to the discretion of individual judges, butby the Civil Procedure Code that discretion was taken away, andby section 547 it was laid down that no estate which amounted tothe sum of Rs. 1,000 was ever to be considered a small estate, andthat in every case where the property amounted to Rs. 1,000 andupwards administration ought to be taken out. It also enactedthat no action should be maintainable for the recovery of anyproperty included in the estate of any person where the estateamounted to or exceeded Rs. 1,000, unless probate or administra-tion had been granted. The effect of that was to declare that theexecutor or administrator was the only person who could sue inrespect of an estate amounting to Rs. 1,000 and upwards. Buteven before the enactment of the Civil Procedure Code the samerule prevailed, namely, that no action could be maintained except-by the administrator or executor in the case of estates which werenot small estates. The only effect of section 547 was to determinewhat was a small estate as pointed out by Clarence, A.C.J., in1891, in 1 C. L. R., p. 39, where he says:—“ Before the Code no“ action was maintainable to recover property of the estate of a“ deceased intestate save by an administrator, excepting in cases“ where the estate was too small to need letters of administration,“ and all that section 547 has done is to fix the limit at Rs. 1,000.”
Now, in the present case, the daughter within reasonable timeof attaining her majority repudiated this division which had beenmade by her father of the joint property, as she had a right to do,and the result was that the parties were remitted to their originalposition as though no such arrangement had been made. Shethen, joined by 'her husband, commenced an action against theadministratrix of her father who was then dead, in which sheasked for a declaration that she was entitled to a half share of thethree lands which, according to the arrangement, were appro-priated by her father, and the District Judge has made a decree as
( 207 )
asked for in her favour declaring that she is entitled to oneundivided half share of these three lands, and ordering her to beput in possession of them, and giving her damages by way ofmesne profits on certain grounds.
Now it seems to me, as I said before, that she has misconceived(her rights; that she was not competent to bring this action torecover property which belonged to the estate of her mother Enso,either under the old law or the new law, whether the case falls tobe decided under the Code or under the law as it existed beforethe passing of the Code. It was quite clear that her mother’sestate was not what could properly be termed a small estate, forit much exceeded in value Rs. 1,000. Now it is said that there arecases in which it has been decided by this Court that such an actionwill lie, and we were referred to a case in 9 S. C. C. 63. Butthat case is not at all like the present. That was a case in whichthe relations of the father disputed the legitimacy of the plaintiff,and the object of that action was to have it declared that hewas his father’s legitimate son. Chief Justice Burnside, in deal-ing with the objection that he could not sue for a declaration ofhis right, as letters of administration had not been taken out,said: —
“ I think the learned District Judge has rightly judged on the“ facts as to the plaintiff’s right to succeed to a portion of the estate” of his deceased grandfather, and his judgment only goes to the“ extent of declaring that right. He neither decrees possession“ nor damages. This judgment does not seem to me to be one“ which would in any Way conflict with an administrator’s right" to deal with the deceased’s property in the interests of creditors" or others, should administration be taken out.” On the con-trary, it would assist the administrator. Having regard to thedisputed legitimacy of the plaintiff, the administrator might havebeen in a difficulty as to who was entitled to a share of the land,and the result of the action would be that he would have a decreeof Court pointing out to him the person entitled. That is noauthority for the present case.
My predecessor in this chair repeatedly insisted on thenecessity of administration being taken out in cases of intestacy.In Fernando v. Perera (8 S. C. C. 54), he says: “ As this“ Court has already pointed out, the law. on the subject is the“ English Law, and we must administer it so as to secure the” objects which it had in view, viz., the administration of intes-“ tates’ estates under judicial control amongst creditors and others” in the regular order of administration and the payment of the“ duty thereon due to Government.” It seems to me that this
October 88.Bomsbb, C.J.
( 208 )
October S3.Bonser, C.J.
principle has rather been lost sight of, and that the Courts havegone too far in allowing persons to divide property amongstthemselves without reference to law, and in that way a largeamount of duty has been lost to the Crown. In the present casethe duty would be considerable, and if this decree were affirmedthe Crown would be defrauded of its just due. It seems to methat it is the duty of this Court to see that every one gets his due,no less the Crown than others.
Again, in 1889, this Court reversed a decree of the District Courtof Kandy which non-suited the plaintiff in the following circum-stances. The plaintiff sued as the widow and sole heir of herdeceased husband, and as such claimed from the defendant a boxof jewellery of the alleged value of Bs. 500. She had not takenadministration, and alleged the estate to be a small one. TheDistrict Judge entertained the action and gave her Bs. 250 damages.On appeal to this Court, Chief Justice Burnside said: “ In my“ opinion the plaintiff cannot maintain her suit, as she has not" taken out letters of administration to the estate. It is true that“ the defendant has not denied that the estate is a small one, but I“ do not think our judgment ought to go so far as to say that, if the“ parties agree or do not agree that an estate is a small one, then“ administration is or is not unnecessary. I think we have decided“ that it is for the judge to say in such a case what is large and what“ is small, and in this case I do not think that an estate of which“ the jewellery alone is put at the value of Bs. 500 can be called a“ small estate.”
I am of opinion, therefore, that the action ought to be dismissed.The plaintiff can, if she thinks fit, apply for letters of administra-tion; but, whether she adopts that course or not, it will be theduty of whoever is appointed administrator to divide the estatefairly amongst the parties, and the plaintiff will get what is herdue.
I do not think that the Additional District Judge is to beblamed for not having insisted on administration being taken out,because I do not find that his attention was pointedly calledto the fact that no administration was taken out. But it seems tome that, if his attention had been called to it, it would have beenhis duty to see that administration was then taken, and call uponthe parties who were entitled to administration to come forwardand administer the estate, and if they refused then to grant lettersof administration to the Secretary of the Court or some other fitperson.
Each party will bear his own costs of the action in appeal andin the Court below.
( 209 )
I only wish to add to my Lord’s judgment, in justice to theAdditional District Judge, that some share of the responsibilityrests upon myself, as I find I passed the plaint in question. Ipresume I did so thinking that this action ran somewhat on thelines of the old cases of Bell v. Bell and the like, and probablythinking that the administration taken out by the defendant hadbeen taken out for her husband’s estate in both communities. Isee of course now my error in so doing, and this I say to take uponmyself my own share of responsibility.
MOYSA FERNANDO v. ALICE FERNANDO