058-NLR-NLR-V-31-NONOHAMY-v.-PUNCHIHAMY.pdf
( 220 )
1929.
Present : Dalton and Lyall Grant J*J.
NONOHAMYPUNCHIHA MY.199—D. C. {My.) Grille, 6,524.
Administration—Passing of final account—EstaUclosed—Claimof
heir to share of estate—Right to reopen proceedings.
Where a final account has been filed in administration proceedingsand the estate declared closed, the Court has no power to reopenproceedings in order to entertain a claim to a share of the estateon the ground that the claii -ant is an heir.
^PPEAL from an order of the District Judge of Galle.
Weerasooria (with Sa/rnarwoickreme), for appellant.t Navaratnam, for respondent.
December 4, 1929. Lyali, Grant J.—
This is an appeal from an order made in the District Court ofGalle in an administration suit.
The appellant is the administratrix and the respondent is aclaimant.
The administratrix, Manikku Badaturuge Nonohamy, is thepaternal aunt of the deceased, who died on August 11, 1927. Sheapplied to the District Court of Galle to administer the estate on thefooting that she was the sole heir of the deceased and obtained adecree nisi for letters on November 28, 1927. No one appearing toobject, the decree was made absolute on March 4, 1928. On July 10,
( 221 )
she filed an inventory and accounts and the proceedings were 1929.closed. On January 29, 1929, the respondent made an applicationto Court in the administration proceedings to be entitled to a half ObaotJ.share of the estate on the footing that she was a sister of the xwohamydeceased's mother.
Ptmchihamjp
The application was opposed on various grounds, but afterinquiry the learned District Judge declared the claimant entitledto a l/7th of a £ share and ordered the appellant to pay all the costsof the respondent.
From this order the present appeal is brought. In the lowerCourt various preliminary objections were taken by the adminis-tratix, the principal one being that as the administration was closed,the claimant could only proceed by way of action.
This objection was repelled and the case went to trial on the issuewhether the claimant was an heir to the estate as a sister of thedeceased's. mother.
No appeal was taken against this order, but the question of theregularity of the proceedings was raised in this Court, and it seemsdesirable that an opinion should be given on this point.
Various cases were cited by the respondent to show that theadministration suit was still open and that the claimant was entitledto make her claim by petition by virtue of section 720 of the CivilProcedure Code.
In re Will of Appuhemiedigey Babantl an application undersection 720 was entertained although there had been what purportedto be a final account. Clarence J. there said: —
In my opinion all that is necessary to found the jurisdictionunder section 720 is simply the factum of an estate notwholly distributed.
In that case the executor admitted that the petitioner wasoriginally entitled to a share.
The case cited which comes nearest the present is that ofVallipillai v. Ponnusamy2. There were various items in the accountfiled by the administratrix of amounts due to the estate, not recoveredand not distributed. For this reason, among others, an application fora judicial settlement was allowed.
In Pcrera v. Sinno.3 where the appellant alleged that he was‘notaware of the pendency of the proceedings and also that certainproperty had not been included in the estate, Wood Benton C.J.held that if the latter statement were correct, the estate could not besaid, to be finally closed.
3 (1891) 1 C. L. R.f p. 41* (1913) 17 N. L. R. 12
8 (1915) 4 Balasingham, Notes of Cates, 77.
1929.
Lyali.Grant J.
Nonohamy vPunchihamy
( 222 )
In the present case the case was undoubtedly finally settled on thefooting that the administratrix was the sole heir and no questionarises of any amount not included in the estate, of debts not collected,or of shares not distributed to persons admittedly entitled to them.
The proceedings have been regularly conducted and regularlyconcluded on the footing that the administrat.ix was sole heir.
1 can see nothing in the Code which entitles the Court to reopensuch proceedings for the puipose of examining fresh claims nor doany of the cases cited support such a contention.
The present appeal, however, is from the order of October 2,allowing the claim on its merits, and it is necessary to examine theevidence adduced by the claimant in support of-her assertion thatshe is the maternal aunt* of the deceased.
At the .trial on July 30, 1928, the claimant produced twodocuments—P 1, which she said was the birth certificate of thedeceased's mother, and P 2, which she said was her own birth certi-ficate. P 2 is the birth certificate of one Dingihamy, daughter ofBodabadaturuge Juan, while the claimant’s name is Bodiya BadugePunchihamy.
The claimant admitted that she never signed as Dingihamyand only found that she was registered in that name when searchwas made for her birth certificate. She says that at someunspecified date her “ ge ” name was altered to Bodia Baduge.
The case was adjourned to August 30, 1929, and on that date theDistrict Judge intimated that he would allow the parties to callfurther evidence in support of their respective claims.
On October 1, 1928, the claimant produced a bill of sale, P 8,given by various people, including one Bodia Baduge Punchihamyof Weligama, and one Bodia Baduge Nikohamy of Ahangama, toshow that she was a sister of the deceased.
The deed is dated March 22, 1896, and the claimant avers thatshe is .the Punchihamy mentioned in the deed and that Nikohamyis her sister and mother of the deceased.
The learned District Judge finds that P 1 is the birth certificate ofNikohamy and P 2 the birth certificate of Punchihamy.
P 1 gives the *' ge ” name of Nikohamy as Bodiabaduge, herfather's name as Bodiabaduge Juwan and her mother's name asDodanduwe Lahanda Waduge Nona Baba.
P 2 gives Dingihamy's father’s name as Bodabadaturuge Juan,and her mother’s name ns Dodanduwe Waduge Nona Baba.
, The claimant’s present name is Bodiabaduge Punchihamy. andthe administratrix name is Manikku Badatumge Nonohamy.
The learned District Judge finds that the claimant BodiabadugePunchihamy is the same person as Bodiyabadaturuge Dingrihamyand that she is the sister of the deceased’s mother, Bodia BadugeNikohamy.
( 223 )
On appeal it wag admitted that neither P 1 nor P 2 could berelied upon. P 1 is not a birth certificate, but a certificate of anunsuccessful search for a birth. The names contaned in it areobviously names supplied by the claimant. It has no probativevalue.
Counsel for the claimant admitted on appeal that he could not relyon P 2 as the birth certificate of the claimant. I think he was rightin doing so, but one effect of this admission is to destroy any reliancenot only on the claimant's own evidence, but also on that of theoz-Patabendi Aratchi called by her at the adjourned date, evidenceto which the learned District Judge attaches great weight.
Most of the evidence on which the learned District Judge reliedin admitting the claim has therefore disappeared, but thereremains to be considered the effect of P 3—a document producedby the claimant at the adjourned trial.
That document is a copy of a registered bill of sale executed byvarious people, including Bodiabaduge Punchihamy and Bodia-baduge "Nikohamy.
The claimant asserts that these persons are herself and the motherof the deceased and that it shows that they are sisters.
In my opinion this deed is insufficient to establish the claim.The only other evidence led, was that of the Police Officer of Ahan-gama, a relative of the deceased and of the administratrix. Headmits that he did not know Nikohamy, the mother of the deceased,and only knew the deceased, Davith, for a year or two, and hedoes not say what grounds he has for stating that the claimant isa full sister of an uncle of the deceased.
The evidence led in support of the claim seems to me unsatis-factory. Some of it is probably false and the remainder is incon-clusive. The evidence relied on by the learned District Judge hasbeen abandoned by respondent's counsel on appeal, and I wouldaccordingly allow the appeal with costs against the claimant inboth Courts.
Dalton J.—I agree.
Appeal aUoived.
1929.
Lyalx.Gbaxt J.
JKoitoltami/v.
Punchihanuj