Sri Lanka Law Reports
 1 Sri LR.
DAYANANDA AND OTHERS
COURT OF APPEALTILAKAWARDANE, J. ANDUDALAGAMA, J.
CA NO. 406/96 (F)
DC MT. LA VANIA NO. 4815/MDECEMBER 15, 2000MARCH 8, 30, 2001
Civil Procedure Code, sections and 14A and 394 (2) – Who is a legal representative
Heir – Action instituted against wife representing estate of husband – Liability
Position after Amendment, No. 06 of 1990 compared – Alleged heir – Executorde son tort.
The 1st defendant-appellant was the widow of one N who allegedly was theostensible owner of the vehicle involved in the accident that has caused injuryto the plaintiff-respondents. Prior to the institution of this action N died. Theoriginal plaint was filed against the 1st defendant-appellant as representing theestate of the late N. The District Court granted the relief prayed for by theplaintiff-respondents.
It was contended that the liability of the estate of a deceased person attachedonly upon the “legal representative” of such estate. As the fact of the 1 st defendant-appellant being the legal representative of the estate of the deceased had notbeen proved, liability of the estate of the deceased person, if any, could not attachto the 1st defendant-appellant.
In the pleadings set out in the answer of the 1st defendant-appellant,there was no denial of the relationship of husband and wife.
The basis of her liability as heir to the estate of N was also not denied.
Heir would include an executor, an administrator or next of kin. The 1stdefendant-appellant had not denied the fact that she was indeed the heirand or the legal representative of the deceased N.
Nilamdeen v. Dayananda and Others
The 1st defendant-appellant had not led evidence that she was notthe legal representative of the estate of the late N in terms ofsection 394 (2) of the Civil Procedure Code.
Nor was any evidence adduced that the 1st defendant-appellant whowas admittedly the widow had not intermeddled with her husband’sestate and thereby not constituted herself an executor de son tort.
The 1st defendant-appellant had denied that there was a cause of actionagainst her late husband. By her categorical disclaimer of the liability ofher late husband, she has acted at all times as a party interested insafeguarding the rights of the estate of her late husband.
The plaintiff-respondents had established the nexus as between thepurported liability of N and the 1st defendant-appellant representingthe estate of the late N.
Expression “next of kin” in s. 394 (2) of the Civil Procedure Code includeda widow who was an intestate heir under the Matrimonial Rights andInheritance Ordinance.
Held, further –
The amending law No. 6 of 1990, provided for the substitution of the personwho is alleged to be the legal representative. The appointment of asubstituted defendant with exact precision was not intended. This isbecause, sometimes the party instituting action does not know thenames of the executor/administrator, the administrator may not beappointed within the prescriptive period of the action.
APPEAL from the judgment of the District Court of Mt. Lavinia.
Cases referred to :
Nesaratnam v. Vaithilingum – 7CNLR 457.
Prins v. Peiris – 4 NLR 353.
Arunachatam v. Arunachalam – 36 NLR at51.
Perera v. Pathuma – 21 NLR 76 at 77.
Dahanayake v. Jayasinghe – 71 CLW 112.
Junaid v. Commissioner of InlandRevenue- 65NLR 561.
D. R. Fernando v. K. A. MagilinaHamy -75 NLR60.
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 1 Sri L.R.
Gamini Jayasinghe with Ms. P. P. de Silva for 1st defendant-appellant.
Bimal Rajapakse with G. K. Hirimuthugoda for plaintiff-respondents.
Cur. adv. vult.
June 01, 2001TILAKAWARDANE, J.
This Appeal was filed against the judgment of the Additional District 1Judge of Mount Lavinia dated 10. 07. 1996, wherein he had held infavour of the plaintiff-respondents and granted reliefs prayed for inthe plaint.
The 1 st defendant-appellant was the widow of Mr. Nilamdeen (neeLatha Jayasekera), who allegedly was the ostensible owner of thevehicle bearing No. 32 Sri 2481 involved in the accident that hadcaused injury to the plaintiff-respondents. Prior to the institution of thisaction Nilamdeen died on 19. 11. 1987 of ill health that was uncon-nected to the accident. The accident relating to this case occurred 10on 12th of November, 1987.
The original plaint was filed on 24. 01. 89 against the present 1stdefendant-appellant as representing the estate of the late N. Nilamdeen.
In Sinhala the caption reads as follows:
"®gx§® 6d>. S@®Sa> oBgoSes) ©gas) cc5£®bSssoDc3 Se> @q» S@§SaJ'
The only matter, which was argued before this Court, was whethera cause of action had been made out against the 1st defendant-appellant and if so whether the 1st defendant-appellant was liable inlaw. In other words has action been properly constituted against thewidow of Mr. Nilamdeen?20
The contention of the 1st defendant-appellant was that liability ofthe estate of a deceased person attached only upon the “legal
Nilamdeen v. Dayananda and Others (THakawardane, J.)
representative” of such estate. It was submitted that the fact of the1st defendant-appellant being the legal representative of the estateof the deceased had not been proved and therefore the liability ofthe estate of the deceased person if any, could not attach to the 1stdefendant-appellant.
Section 14A of the Civil Procedure Code as amended byAct No. 6 of 1990 describes who should be substituted when a personagainst whom the right to any relief is alleged to exist is dead and 30the right to sue for such relief survives. It is to be noted that thispresent action was instituted before this said amendment. But, thissection in any event deals with the death of a party after action hadbeen instituted. However, what has to be considered in this case iswho is the party against whom action has to be instituted when thedefendant dies before the institution of the case. Section 14A is,therefore, not strictly relevant. But, it is important to note that theamending law provided for the substitution of the person who is allegedto be the legal representative. In other words even after death theappointment of a substituted defendant with exact precision was not 40intended by law. No doubt this is because sometimes the partyinstituting action does not know the names of the executor or theadministrator. Sometimes the administrator may not have even beenappointed within the prescriptive period of the action.
The position prior to the amendment must also be considered. Suchperson who is so substituted must be one who is within the definitionset out in the Civil Procedure Code. Therefore, in considering the term“legal representative”, section 394 (2) of the Civil Procedure Code isrelevant. This defines a “legal representative” to be (i) an executoror (ii) administrator (iii) or the next of kin who had adiated the soinheritance in an estate below the value of Rs. 50,000 as stated inAct No. 14 of 1993 (earlier Rs. 20,000). Pathirana, J. gave an extendedmeaning to the “executor” of an estate in the case of Nesaratnam
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v. Vaithilingurrfv at 462-470. Referring to the cases of Prins v. PeirisP)Arunachalam v. ArunachalanPPerera v. PathumaiA) Dhanayake v.JayasingheP> and Junaid v. Commissioner of Inland Revenues, he heldthat an executor of an estate included an executor de son tort. Anexecutor de son tort as a result of taking upon himself the functionof an executor by intrusion renders himself liable to be sued by acreditor of a deceased person and will be liable to the extent of the 6oassets that come into his hands.
The matter to be determined by this Court is whether there werecircumstances, which disclosed that, the 1st defendant-appellant whowas the widow of Mr. Nilamdeen was not the legal representative ofthe estate of Nilamdeen. In the pleadings set out in the answer ofthe 1st defendant-appellant filed on 15. 12. 1989, there was no denialof the relationship of husband and wife between Mr. Nilamdeen andthe 1st defendant-appellant. The basis of her liability as heir to theestate of M. Nilamdeen was also not denied. In this context theword “heir” must be given a broad interpretation. The English Oxford ?oDictionary defines an heir to be the one who actually succeeds tothe property. The caption of the original plaint dated 24. 01. 89describes the 1st defendant-appellant as “the heir of Nilamdeendeceased”. The amended plaint filed on the 2nd of November, 1991,also carried the same caption. In this sense an heir would includean executor, an administrator or next of kin. Therefore, as “heir tothe estate” was not disputed Mrs. Nilamdeen, the 1st defendant couldhave been any one of them and therefore liable in law.
It is significant that the 1st defendant-appellant had not referredto any error in the caption nor denied the fact that she was indeed 80the heir and/or the legal representative of the deceased M. Nilamdeen.
No issue had been raised as regard to the fact that there was anydispute regarding the basis of liability of the 1st defendant-appellantas an heir to the estate or the basis on which she had been madea party to the action.
NUamdeen v. Dayananda and Others (Tilakawardane, J.)
The 1st defendant-appellant had not led evidence that she wasnot the legal representative of the estate of the late Mr. Nilamdeenin terms of section 394 (2) of the Civil Procedure Code. Nor wasany evidence adduced that the 1st defendant-appellant who wasadmittedly the widow had not intermeddled with her late husband’s 90estate and thereby not constituted herself an executor de son tort.
For such reason she was entitled to be substituted as a legal rep-resentative of her late husband. (Dahanayake v. Jayasinghe (supra)).
No doubt it is also relevant that the 1st defendant-appellant hadbeen mentioned as a party to the action in her capacity as the legalrepresentative. The plaintiff beilng dominus litis it was incumbentupon him to bring the right person to Court. Having named the 1stdefendant-appellant as the legal representative the responsibility thenshifted onto the 1 st defendant-appellant to disclaim the basis of liabilityat the first given opportunity. Especially, as the cause of action was 100against the deceased Mr. Nilamdeen, who had been found by theDistrict Judge to have been in control of the vehicle at the time itwas involved in the motor traffic accident upon which the claim wasbased. This finding has not been challenged or controverted in thearguments placed before this Court.
Unfortunately, in circumstances such as this the plaintiffs are ina situation of double jeopardy. They not only have to face the lossof a member of the family, often the breadwinner, but when actionis instituted they face an added disadvantage. In general, the victim’sparty would not be placed in a position to ascertain with any certainty noascertain the heirs or the legal representative of the party to be sued.
In such circumstances the action can be instituted according to thepresent law, against the person whom the party suing reasonablyknows or has ground to believe is the legal representative and/or heir.
In other words the alleged heirs/legal representative. This shows thatthe law does not require the heirs/legal representatives to be named
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with exactitude. The reason that the law does not so require suchparty to be named with precision is because this information is oftennot easily available to the victim’s party, who has to additionallycontend with the prescriptive period within which the action must 120necessarily be filed. Therefore, before the action is prescribed, theaction needs to be instituted against the party, who the party suingto the best of their knowledge alleges to be the heir/legal representa-tive. Then, it is incumbent upon that party sued to disclaim and showthat they are not the legal representative and where possible if theyso desire and if it is within their knowledge to provide the identityof the true legal representative.
It is also relevant that no objection had been taken at the inceptionof the case that the 1st defendant-appellant was not the heir or legalrepresentative of the deceased Nilamdeen. Had such objections been 130taken, the party suing could have obtained within the prescriptiveperiod the information needed.
Furthermore, the trial Judge had come to two salient findings. Hehad stated “it appears that the first defendant had been made a partyas the heir of late N. Nilamdeen”(page 205 of the brief). No evidencehas been placed by the 1st defendant or any other party to disputethe fact that the 1st defendant was the legal heir of Nilamdeen. Hence,this finding is logical. Accordingly, he has come also to the findingthat there was “no dispute that the first defendant was the heir ofMr. Nilamdeen” (page 206 of the brief). His conclusions appear valid 140on the evidence led at the trial and on the fact that the 1 st defendant-respondent did nothing to dispute the assertion that the 1st defendantwas the legal representative and heir of the deceased Nilamdeen.
Even at the trial this claim of the plaintiff-respondent that the 1stdefendant-appellant was liable on the basis that she was the legalrepresentative of the estate of her deceased husband Mr. Nilamdeenhad not been disclaimed either through oral testimony or throughdocumentary evidence.
Nilamdeen v. Dayananda and Others (Tilakawardane, J.)
In fact, she appears to have known about the estate as she speaksto the ownership of the vehicles that were purported to be under his 150control, (paragraph 3 of the answer at page 84 of the brief). She hadknowledge that his cars had been sold (page 156). She admits thathaving received the summons she made inquiries and took all stepson behalf of her deceased husband to file an answer (page 158).
She has also taken up the position that her husband’s estate wasnot liable to pay any damages. She has denied that there was a causeof action against her late husband. By her categorical disclaimer ofthe liability of her late husband she has acted at all times as a partyinterested in safeguarding the rights of the estate of her latehusband. But, she failed to state whether the estate was above the ieoadministratable value or not. If, therefore, we presume the estate tobe below the administratable value then she is clearly a next of kinwho had adiated the inheritance of her late husband.
In the circumstances the plaintiff-respondents had established thenexus between the purported liability of Mr. Nilamdeen and the 1stdefendant-appellant as representing the estate of the late Nilamdeen.
In these circumstances the plaintiff-respondent’s action must succeed.
In the case of D. R. Fernando v. K. A. Magilina Ham/71 it hadbeen held that the expression next of kin in section 394 (2) of theCivil Procedure Code included a widow who was an intestate heir 170under the Matrimonial Rights and Inheritance Ordinance, No. 15 of1876.
In English law the phrase “legal representative” would be held tobe next of kin and would include a wife upon the death of her husband.(Strouds Judicial Dictionary 5th edition, page 1444).
This appears to have been clarified in cases where substitutionhar< to be made when a party died whilst the case was pending, under
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 1 Sri L.R.
Amendment Act No. 6 of 1990, where section 14A states:the
person in whom such right is alleged to exist It is, of course,within the special knowledge of the party being sued to either accept isoor reject the said status or name the correct party to be substituted.
The plaintiff-respondents objected to the raising of this questionof law regarding whether Ms. Nilamdeen was a legal representativein appeal. It was submitted that it should have been taken in the Courtof first instance. It was also contended that it must necessarily havebeen raised at the earliest given opportunity. Failure to do so wouldmean that the 1st defendant-appellants would have to take theconsequences. By submitting to the jurisdiction of the District Courtof Mt. Lavinia by filing answer as well as in participating at the trial,and that in the circumstances estoppel by conduct would operate i»>against her. f find that there is merit in this submission. I also findthat the 1 st defendant-appellant is liable to pay the damages awardedby the District Judge.
Accordingly, the appeal is dismissed and the judgment of theDistrict Judge of District Court, Mt. Lavinia, dated 10. 07. 1996 isaffirmed. Parties shall bear their own costs.
UDALAGAMA, J. – I agree.