MRS. N, BIYANWILA, Appellant, and MRS. A. AMARASEKERE, Respondent

063-NLR-NLR-V-67-MRS.-N-BIYANWILA-Appellant-and-MRS.-A.-AMARASEKERE-Respondent.pdf


1965Present: Sri Skanda Rajah, J., Sirimane, J., andManicavasagar, J.HRS. N. BIYANWILA, Appellant, and MRS. A. AMARASEKERE,Respondent.S. O. 104 (Inty.)/1961—D. G. Kurunegala, 4774
Testamentary action—Application for probate of will—Respondent not named—Ordernisi entered and subsequently made absolute—Incapacity of Court to revokeprobate—Failure of applicant for probate to mention heirs of deceased—Effect—Civil Procedure Code, ss. 374 (c), 377 (a), 379, 521-526, 529, 532, 533, 536,537, 839.
A widow (the respondent to this appeal) filed in the District Court a documentwhich she alleged was the last will of her deceased husband by which hebequeathed All his property to her and appointed her as executrix. In herapplication for probate no respondent was named and no mention was madeof the deceased’s intestate heirs. The Court did not grant an order absolutein the first instance, but entered an order nisi. The order nisi, as published,■stated that the probate would be issued to the petitioners “ unless any personon whom the Court directs the order to be served ” shall show cause to thecontrary. The Court did not, however, indicate any particular person orpersons on whom the order nisi should be served. After publication, the ordern*M was made absolute, the respondent administered the estate as executrix,and proceedings were terminated an 20th June 1952.
About nine years later, on 11th February 1961, the appertlent, who wasthe youngest child of -the deceased and was a minor at the time probate wasgr—tod, challenged the wiki as a forgery and moved, in the same proceedings,that probate be recalled and that the estate be administered afreeh an thefooting of intestacy.
Ft was conceded that the power of a District Court to Tecall or revoke aprobate which has already been granted is limited, by virtue of section 598 ofthe Civil Procedure Code, to eases where an -order absolute has been enteredin the first instance.
Held, by Sibihane, J., and Manicavasagab, J. (Sbi Skanda Rajah, J.,dissenting), that, although section 525 of the Civil Procedure Code permits apetitioner in testamentary proceedings to omit making any person as respondentto his petition, the Court may enter an order rUsi even in such a case. Afterthe order nisi has been duly published in terms of section 532, any personinterested in the administration is entitled, under section 533, to show causeagainst it. An order nisi does not lose its character as such, merely because•no particular person has been called upon to show cause. Accordingly, theorder made in the present case oouki not be equated to an order absolute inthe first instance. The appellant, therefore, was not entitled to ask for a recallof probate in the same proceedings.
Held further (by SntiMABTK, J., and Mawicavasaoab, J.), that the failure of
the petitioner (the widow) to mention the names of the heirs of the deceaseddid not render the proceedings void. The requirement of section 524 in thisrespect is only directory and not mandatory.
Appeal from a judgment of the District Court, Knxunegala.
Ranganathan, with Mark Fernando, for the intervenient-petitioner-appellant.
W. Jayewardene, Q.G., with W. D. Guna&ek&ra, and L. G. Seneviratne,for the original-petitioner-respondent.
Gur. adv. vult.
April 1, 1965. Sru Skahda Rajah, J.—
This is an appeal from the order of the learned District Judge ofKuranegala dismissing an application filed on 11th February, 1961, in atestamentary proceeding which commenced on 19th January, 1949, andterminated on 20th June, 1952. The petitioner prayed that —
the probate issued on 25th May, 1951, be recalled ;
the proceedings be declared null and void ab initio ; and
proceedings be taken in respect of this estate on the footing of
intestacy.
The relevant facts in chronological order are :—
One Solomon Amarasekera died on 11th July, 1948, leaving his widowAlice and four children Oliver, Walter, Gladys and Neeta, the presentpetitioner, who, according to her affidavit, was 14 years old at the time.Alice, the widow, filed petition dated 19th January, 1949, praying forprobate of a document dated 10th March, 1948, alleging that it wasSolomon Amarasekera’s last will attested by five witnesses, whereby hehad bequeathed all his property to Alice and appointed her executrix.
In that petition :
(i) no respondent was named ;
no mention was made as to who Solomon Amarasekera’s intestate
heirs were ;
there was an averment that the petitioner did not apprehend any
opposition to her application for probate ; and
a prayer for an order absolute in Ihe first instance.
The minute sheet contained a printed form ordinarily used for minutingan application praying for an order nisi in a testamentary case. Thejournal entry, therefore, reads that the proctor “ moves that an order nisibe entered declaring the status of the petitioner and her right to take outprobate as executrix appointed under the last will
The order of the Judge was also part of the printed form and was asfollows : “ The motion is allowed and it is hereby ordered that an order
nisi be entered declaring that the petitioner is entitled to probate to theestate of the deceased and that a copy of the said order be published inthe Government Gazette and twice in the Daily News newspaper. ” (The
words underlined above are in print in the form used for minuting. Therest of the words are in the handwriting of the officer who minuted. TheJudge has merely signed underneath.)
Order nisi was accordingly entered and on 11th March, 1949, proof ofpublication was filed and the order nisi made absolute. Probate wasissued to Alice on 25th May, 1951, and proceedings terminated on 20thJune, 1952.
The relevant portion of the order nisi which too was in a printed form,was as follows :—
“ It is ordered that the Willbe and the same is hereby declared
proved unless any person on whom the court directs the order to be served
shall on or before the 11th March, 1949, show sufficient cause to thesatisfaction of this Court to the contrary. ”
“ It is further ordered thatshe is entitled to have probate of
the same issued to her accordingly unless any person on whom the court
directs the order to be served shall on or before 11th March, 1949, show
proved; (id) the petition shall also show whether the petitioner claims ascreditor, executor, administrator, residuary legatee, legatee, heir,devisee, or in any and what other character.
(The internal numbering is mine.)
525 : If the petitioner has no reason to suppose that his applicationwill be opposed by any person, he may file with his petition an affidavitto that effect, and may omit to name any person in his petition asrespondent.
Section 526 provides that the court “ shall make an order nisideclaring the will to be proved, which order shall be served upon therespondent, if any, and upon such other person as the Court shall thinkfit to direct ”,
and Section 529 “ if no respondent is named in the petition, the Courtmay in its discretion make the order absolute in the first instance
As no respondent was mentioned in the petition it was open to thecourt, in the exercise of its discretion as provided for by Section 529, toenter either an order absolute in the first instance as prayed for or anorder nisi.
Before a judge can exercise discretion his mind should be actuallydirected to the application itself. In this instance the application wasfor an order absolute in the first instance. The journal entry, however,did not represent to the judge that it was such an application ; for, itrepresented that the application was, contrary to the fact, one for anorder nisi. It is only if the journal entry had read “ moves for an orderabsolute in the first instance ” and the order of the judge was * enterorder nisi ’ it can be said that the judge exercised discretion. In thewords of the Judicial Committee in the Bribery Commissioner v. liana-singhe 1, “ the Court must not decline to open its eyes to the truth ” thatthe order in question was made without the exercise of discretion. Toput it in another form, the judge acted on the Biblical principle of “ askand it shall be given
What was asked for was an order absolute in the first instance. There-fore, it would be reasonable to presume that what was granted by thejudge was an order absolute in the first instance as asked for. This viewderives support from the further fact that no person was named for beingserved with the order.
In this view of the matter it seems unnecessary to consider the othersubmissions, e.g., whether the provisions of Section 524 (1) are directoryor mandatory ; the validity and effect of an order nisi which did not namethe person on whom it should be served.
In Tissera v. Ounatileke * the Divisional Bench has laid down that theDistrict Court is empowered, under the provisions of sections 536 and 537of the Civil Procedure Code, to recall the probate granted in pursuance ofan order absolute entered in the first instance. This is such a case.
* 17 N. L. R 212.
1 (1964) 66 N. L.B 73 al 78.
Lapse of time, difficulty of proof and interests of third parties are notconsiderations which should deter the Court from deciding a matter likethis.
For the reasons I have endeavoured to set down above, I would allowthe appeal with costs both here and below.
Shuman*, J.—
Solomon Amerasekera died on 11.12.48. His widow (the respondentto this appeal) filed in the District Court of Kurunegala what she allegedto be his last Will (executed before 5 witnesses) and by her petition dated19.1.49 prayed that an order absolute be entered in the first instancegranting her probate of this Will.
She alleged that she did not apprehend any opposition to her applica-tion and named no respondent to the petition. This she was entitled todo under Section 525 of the Civil Procedure Code.
The Court exercising its discretion in the matter as provided for bySection 529 did not grant an order absolute in the first instance, butentered an order Nisi, and directed that it be published in the GovernmentGazette and a Newspaper. (By the last Will the deceased who had 4children had left all his property to his widow.) After publication theOrder Nisi was made absolute, the respondent administered the estate asexecutor, and proceedings were terminated on 20.6.52.
About 9 years later, on 11.2.61, the appellant, who is the youngest ofthe 4 children of the deceased, challenged the Will as a forgery, movedthat probate be recalled, that the proceedings be held void ab initio, andthat the estate be administered afresh on the footing of intestacy.
The learned District Judge refused the application, and the appeal isfrom that order.
It may be noticed here that the appellant averred in her petition thatthe respondent had granted the bulk of the valuable property to theother three children and excluded her because she had contracted amarriage against the respondent’s wishes. She (the appellant) was aminor at the time probate was granted to the respondent, but she marri* din 1951 and admittedly became aware of the fact that the respondent hadobtained probate as executor of the last Will as far back as 1952, thoughshe did not come into Court till 1961.
It is conceded that the power of a District Court to recall or revoke aprobate which has already been granted is limited to cases where an orderabsolute has been entered in the first instance (see Section 536 of theCivil Prodecure Code).
Counsel for the appellant contends that the order entered in this casethough in the form of an Order Nisi is really an order absolute in the firstinstance. He submits that an order to be considered an “ Order Nisi ”must be served on a respondent, or upon some person who is called uponto respond. He refers to Sections 377A and 379 of the Civil Procedure
Code (which appear in the chapter relating to Summary Procedure) andpoints out that an “ Order Nisi ** as contemplated in thoee Sections takeseffect only if the respondent does not show eause against it. But, aspointed out earlier, Section 525 permits a petitioner in testamantary pro-ceedings to omit naming any person as respondent to his petition andSection 529 gives a discretion to the District Court to enter an Order Nisieven in such a case. Section 526 provides that an Order Nisi declaringa Will to he proved should be served on—
(а)the respondent, if any, and
(б)On such other person as the Court shall think fit to direct.
The question then is whether, where no respondent is named by thepetitioner, it is obligatory on the Court to name one.
In my opinion the Court has a discretion in the matter. It may namea person on whom the Order Nisi should be served, or it may orderpublication of the order Nisi so that any person interested in the adminis-tration may show cause against it.
Section 532 of the Civil Procedure Code which deals with publicationreads as follows “ In all cases of application for the grant of the adminis-tration of the deceased’s property, whether with or without a Will, theCourt shall, whether a respondent is named in the petition or not, directthe Order to be advertised in the Gazette, and twice in a Local paper,before the day of final hearing ;”
Section 533 sets out three classes of persons who may show causeagainst an Order Nisi in a Testamentary proceeding being made absolute.They are—*
(а)a respondent
(б)a person on whom the Order Nisi has been directed to be served
(c) any person appearing to be interested in the administration of thedeceased’s property.
So that when a Court directs an Order Nisi to be published where thereare no persons mentioned in classes (a) and (6) above, it says in effect thatthe petitioner’s application will be granted unless some person interestedin the administration shows cause to the contrary.
I am of the view that in testamentary proceedings, an Order Nisi doesnot lose its character as such, merely because no particular person hasbeen called upon to show cause.
Form 84 in the schedule to the Civil Procedure Code sets out the formwhich should be followed in drawing up Orders Nisi in testamentarycases. In the appropriate place where such person (if any) has to benamed it sets out in italics the following words “ The respondent or anyperson on whom the Court directs the order to be served/’
In this case these words are inapplicable ; but the officer who haddrawn up the Decree Nisi had copied into it those very words. I do notthink however, that the inclusion by error of these superflous words wouldaffect the substance of the order made by the learned District Judge,which was that a decree Nisi and not a decree absolute should be entered.
I am of the view that the order made in this case cannot be equated toan order absolute in the first instance and that the appellant is notentitled to ask for a recall of probate in these proceedings.
Her remedy if any is by way of separate action.
The authorities cited at the argument which have laid down theprinciple that non-service of summons on a defendant is a fatal irre-gularity is of little assistance. A judgment entered against a nameddefendant without service of summons on him obviously violates therules of natural justice. That principle has no application here.
It was also argued for the appellant that the proceedings in this caseare void, as the respondent had failed to comply with all the provisions ofSection 524. This section requires that the application to have the Willof a deceased person proved, should be by petition which shouldset out the relevant facts of the making of the Will, the death of thetestator, the heirs of the deceased to the best of the petitioner’s know-ledge, the details and situation of the deceased’s property, and thegrounds upon which the petitioner is entitled to have the Will proved.
In the petition presented in this case the respondent had failed to setout the heirs of the deceased. It was argued that if she had done so theCourt would have directed service of the Order Nisi on the heirs. Butthat is a matter of speculation. As pointed out earlier on such anapplication the Court has to exercise its discretion and it need not directthe service of the Order Nisi on the heirs mentioned.
It was contended for the appellant that the provisions of this sectionare mandatory. There is no reason to suppose that some of them are,and that some are not. If then, a petitioner fails, for example tomention one single property of the deceased which was known to him,are all proceedings rendered void ? I do not think so. I am of the viewthat the provisions of this section are only directory, and that a failure tostrictly comply with those provisions, does not render the proceedingsvoid ab initio.
They are, however, voidable, and in an appropriate case a party mayask the Court for relief under Section 839 of the Civil Procedure Code. Inthis case however one cannot disregard the long delay on the part of theappellant which places the respondent at an obvious disadvantage. Anorder revoking probate after the lapse of such a length of time, may evenplace the rights of third parties in jeopardy. Williams on Executors andAdministrators says at page 81 of the 14th edition “ Where a party who
isentitled to call in the probate and put the Executor to proof of
the Will chooses to let a long time elapse before he takes this step he isnot entitled to any indulgence at the hands of the Court.”
I do not consider the present case to be an appropriate one where theCourt should exercise its inherent powers under Section 839 of the CivilProcedure Code.
The appeal must be dismissed with costs.
Manicavasaoar, J.—
I have read the opinions of the two members who were associatedwith me, and I agree with Sirimane, J. that this appeal should bedismissed with costs. I propose, however, to state my views on twoquestions on which submissions were made by Counsel.
An Order Nisi is an order which the Court may make on a petitionby way of summary procedure ; as the words indicate, it is an orderwhich will take effect unless cause is shown against it. The partyagainst whom relief is sought must be made a respondent to the petition,and a copy of the Order Nisi should be served on him (Section 374 (c)Civil Procedure Code) so that he may have the opportunity of showingcause against it.
An application to have a Will proved is also on a petition by way ofsummary procedure ; but, unlike in the case of such an application, thepetitioner may not name a respondent (Section 525); if no respondentis named by the petitioner it follows that there is no person on whomhe wants the Order Nisi served ; but the Court, whether a respondentbe made or not, may direct service of the order on any person it thinksfit. In this case the petitioner did not disclose a respondent; nor didthe Court in the exercise of its discretion direct service on any particularperson. Mr. Ranganathan contends that in this situation, though anOrder Nisi was made by the District Judge, it cannot be deemed to bean Order Nisi, but an Order Absolute, for the reason that it is not con-ditioned to take effect on a respondent, if any, or a specified person onwhom the Court has directed notice, showing cause. I do not think itrelevant to consider whether the District Judge, though he made anOrder Nisi, meant it to be an Order Absolute ; true, the application bythe petitioner was for an Order Absolute in the first instance, and anofficer of the Court had erroneously minuted it in the journal as anapplication for an Order Nisi ; it may well be that the Judge was guidedsolely by this minute ; but nevertheless the order he made was in factan Order Nisi. The submission of Counsel for the Appellant should beconsidered on the basis of this incontrovertible fact. The answer tohis submission is that in such an application as this, any person who isinterested in the administration of the property of the deceased thoughnot notified specially has the right, and is entitled to be heard in oppositionto the order (Section 533) ; for the Court is bound by the provisionof Section 532 to cause the Order Nisi to be advertised in the Gazette,and twice in a local paper before the final hearing, whether a respondentbe named in the petition or not; the choice of the paper lies with theCourt, which should in making the selection bear in mind that thepurpose of the advertisement is to see that its Order Nisi reaches all personsinterested in the administration of the deceased’s estate. It is hardly
necessary to add that even though a named respondent, and/or a personon whom the Court has directed service of Order Nisi does not showcause, any person interested in the deceased’s estate is entitled to be heardand have the Order Nisi discharged by rebutting the material allegationsin the petition: there is therefore a class of persons, who though notserved with the Order Nisi, are entitled to show cause and be heard inopposition to the Order being made absolute : and if their objectionsucceeds the Order Nisi, no doubt, will be discharged, but if it f«.ils itmust be made absolute. I am of the view that Mr. Ranganathan’ssubmission on this question should be rejected.
The second submission is based on the fact that the petitioner hadomitted to state in her petition the heirs of the deceased, which is arequirement of section 524 ; Mr. Ranganathan submits that this is anabsolute requirement, and the omission has resulted in a failure ofjurisdiction which renders all orders made by the Court after the petitionwas filed of no legal consequence. The question therefore is whetherthis requirement is directory or absolute : Is it a requirement so funda-mental that it must be complied with ? The answer is to be found on aconsideration of the relevant provisions of the Code in order to ascertainthe real intention of the legislature. To my mind the words “ to thebest of petitioner’s knowledge ” which follow the words “ the heirs ofthe deceased ” in the section are alone sufficient to show that thepetitioner is not obliged to state the heirs of the deceased ; it is notdifficult to conceive of instances where the petitioner is a stranger tothe family and has no personal knowledge as to who the heirs are : sucha person need not state the heirs. There is no provision that the heirsshould be mnle respondents to the petition to have a Will proved, andthat the Order Nisi should be served on them. The Court has thediscretionary power to direct the Order Nisi to be served on particularpersons, but the choice need not be amongst the heirs alone : indeed,the Court may despite the disclosure of heirs in the petition, direct thatthe order be served on persons other than heirs who the Court considersshould be given an opportunity of objecting. The matter is entirelyone for the exercise of the Court’s discretion ; where the power isdiscretionary the requirement cannot be absolute but is directory.
No doubt the object of the requirement is to assist the Court to decidewhether it should notify the heirs of its Order Nisi: but the omissionto disclose does not render the Court powerless because it can makeinquiry and direct service on any person who it thinks should havenotice, and/or reach any person interested in the administration of thedeceased’s property by advertisement of the Order Nisi which is anecessary step. My view is that the requirement is directory.
Appeal dismissed.