060-NLR-NLR-V-23-PUNCHIRALA-v.-KIRI-BANDA-et-al.pdf
1921.
( 228 )
[FuUi Bench.]
Present: Bertram 0.J. and Ennis and De Sampayo JJ.
PUNCHIRALA v. KIRI BANDA et at.lUr^D. 0. Kandy, 27,592.
Evidence Ordinance, 2895, 8. 41—Declaration in judicial settlement intestamentary case that a person was adopted by the deceased forpurposes of inheritance—Has declaration the effect of a judgmentin rem.
In a judicial settlement in testamentary case No. 2,222 thequestion arose whether A liad been duly adopted for purposes ofinheritance, and the Court held that he was. In the presentaction brought by the administratrix de bonis non, the adoption.of A was again challenged.
Hdd, that as the defendant (appellant) was not a party to thejudicial settlement or a privy of any of the parties, he was notbound by the decision in the judicial settlement, as to the statusof A.
A declaration made incidentally by a Testamentary Court as tothe legal character of the persons before them has not the effectof a judgment in rem.
* (1394) 4 0. 57.
1921.
( 229 )
rpHJB case was referred to a FuD Court by Ennis J. and-L Sohneider A.J. The facts appear from the judgment.
M. W. JET. <fe &7tx» (with him Bartholomeuaz and Fonseka), forappellants.—The case of Punchi Banda v. Yumtm Lebbe1 is on allfours with the present case. The expression “ probate jurisdiction ”in section 41 of the Evidence Ordinance must be strictly construed.An incidental decision on a question of adoption gi^en by a DistrictCourt on an application for a judicial settlement m testamentaryproceedings is not given in the exercise of its special probate juris-diction) but in the exercise of its ordinaiy jurisdiction. The DistrictCourt might well have referred the parties between whom thequestion arose to a separate action, and would have done so if thequestion was too complicated to be investigated in the testamentaryproceedings themselves. A decision on the question of adoptionin such separate action would not be conclusive except as betweenthe parties to the action. It would be extraordinary if a decisionon the question given after a more or less summary investigationmade in the course of testamentary proceedings is to be given agreater effect than a decision on the same question in a regularaction. Sections 739 and 740 of the Civil Procedure Code state theeffect of a judicial settlement and of a decree for payment anddistribution. The findings of the Court on the various mattersenumerated in those sections are binding only on the parties andtheir privies. The expression “ legal character ” in section 41does not include the status of heir by adoption.
Counsel cited jKanhya Lottv. Badha Chura2 and Concha v. Concha.*
H. 7. Petera, for respondents—The expression “ probate juris-diction ” in section 41 has a wider meaning than that given to itin Punchi Banda v* Yusubu Lebbe.1 It refers to the jurisdictionexercised by Courts of Probate which deal not merely with wills,but with cases of intestacy. This special jurisdiction is conferredon our District Courts by the Courts Ordinance. It cannot be saidthat the Court is funcitts officio, so far as that special jurisdictionis. concerned, as soon as a grant of probate or of letters of adminis-tration is made. It is only by virtue of that special jurisdictionthat the Court has power to take the proceedings that follow suchgrant of probate or letters, and the various orders made in the courseof such proceedings are made in the exercise of the same jurisdiction.Thus, the order in question is an order of a competent Court madein the exercise of probate jurisdiction.
The expression “ legal character ” in section 41 is not confinedto a legal character like that of an executor or administrator thatis conferred by the Court, but extends to a legal character that theCourt finds and declares a person to be entitled to; for instance,
1 (1908) 11N. L. B. 294.* (1207) 7 W. B. 238,
• (1887) 11 A. C. 641.
Pv.nchirala. v.Kiri. Banda
1921.
Punchirafa«. KiriBanda
( 230 )
where a Court finds that a person is the wife of another, it declaressuch person to be entitled to that legal character. So a declara-tion that a person is the heir of a deceased person by adoption i6a declaration of a legal character. Thus, the requirements ofsection 41 are satisfied in the present case, and the decree in
C. Kandy, 2,222, is conclusive proof of the fact of adoption.The case of Kankya LoU v. RadhaChura1 is clearly distinguishable,for though therd was a decision on a question of adoption in thatcase, that decision was not given by a Court exercising any one ofthe special jurisdiction referred to in section 41.
Sections 739 and 740 of the Civil Procedure Code do not in anyway restrict the operation of section 41 of the Evidence Ordinance,which is a later enactment.
The principle underlying judgments in rem is that the natureof the proceedings in which the judgment is given is such thatall persons might be considered parties to it (YarakdLamma v.Naramma2). It was open to any one interested in the estate of thedeceased to have come into the testamentary proceedings.
Gut. ado. vuU.
November 18,1921. Bertram C.J.—
This case has been referred to the Full Court with a view to furtherelucidation of section 41 of the Evidence Ordinance. The materialfacts are as follows :—Some time back the estate of one DingiriAppuhamy was administered in D. C. Kandy, 2,222. In ajudicial settlement in that case the question arose whether oneAppuhamy had been duly adopted vby Dingiri Appuhamy forpurposes of inheritance. The District 'Judge inquired into thematter, and in his judgment declared that he had been so dulyadopted, and that decision was upheld by the Supreme Court. Inthe present action, which is brought by the administratrix de bonisnon of the deceased Appuhamy, the adoption of Appuhamy hasagain been challenged, and it is sought to put this question in issueagain. The plaintiff pleads that the decision of the Kandy DistrictCourt as to the status of Appuhamy, being a final judgment of acompetent Court in the exercise of probate jurisdiction, declaringAppuhamy to be entitled to a “legal character,” is conclusiveproof that the legal character in question, that is to say, the statusof an adopted son, accrued to Appuhamy at the date of the judgment.The learned District Judge without going into the other facts ofthe case has allowed that contention. On appeal to this Court,it was pointed out that the learned Judge had ignored the decisionin Puncki Banda v. Yttsubu Lebbe3 which, apparently, had notbeen brought to his notice. In that case Wendt J., with whomGrenier J. concurred, held that section 41 did not extend to 1
1 (J867) 7 W. B. 338.* {IW) 2 Mad. H. O. Bap. 276.
* (1908) 12 R. 294.
( 231 )
incidental decisions given by a District Court in a testamentaryaddon as to the legal status of any person concerned, but that thephrase “ probate jurisdiction ” was limited to that power of theCourt by which it grants or refuses probate of a testamentarypaper, or, perhaps, also letters of administration. As in this casea Court exercising testamentary jurisdiction has in effect declaredappellant to be entitled to what may reasonably be regarded asa “ legal character,” and as Wendt J. did not explain for whatreasons he considered that the phrase “probate jurisdiction”should receive the limited interpretation suggested, the case hasbeen referred for a fuller consideration of the matter.
From a consideration of the history of the section there can beno doubt that, like the Ordinance as a whole, it was intended toembody in statutory form the general principles of the Englishlaw of evidence, and that this particular section was intended togive effect to those principles in so far as they relate to the difficultsubject of “ judgments in rem.” I do not think it necessary forthe purpose of this judgment to discuss that subject at length. Itwill be found expounded in the locus dassicus on the subject,namely, in the note of Mr. William Smith (as enlarged by subsequenteditors) to the Duchess of Kingston's case in Smith's LeadingCases (vcl. II.), 11th ed., pp. 800, et seq., and also in Taylor onEvidence, paragraphs 1674-1681. The history of the section inIndia may be seen in the judgment of Holloway J. in Tarakal-amma v. Naramma1 and of Peacock C.J. in Kankya LoE v. RadhaChura.9 The former of these judgments, that of Holloway J.,is of particular value, and is worth detailed study as a masterpieceof legal exposition. The conclusion which Holloway J. came towas that the phrase “ judgment in rem ” was simply a peculiarname (which it requires a historical disquisition to explain) whichhad come to be attached to certain peculiar classes of judgments,the singularity of which is that they take effect, not merely interpartes, but as against all the world. The difficulty of embracing allthese judgments in any single formula is indicated by the fact thatTaylor in his work on Evidence has been reduced to enumeratingthem alphabetically in a lengthy footnote. The compilers of theEvidence Ordinance appear to have addressed themselves to the^difficulty in another way. They have enumerated the Courtswhich are qualified to deliver these judgments, and they haveattempted to describe these judgments by reference to theirintention and to their effect.
The special Courts which are declared to be entitled to pronouncethese judgments are Probate, Matrimonial, Admiralty, and Insol-vency Courts. I may say, incidentally, that there seems to meno doubt that our District Courts in the exercise of what iscalled their testamentary jurisdiction are, like the English Courts1 {1864) 2 Mad. H. C. Bep. 276.*11867) 7 W. B. 338.
1921.
Bkbtram
aj.
Putichiralav. KiriBanda
( 232 )
1921. of Probate, for this purpose to be considered as exercising probatejurisdiction where they are dealing with cases of intestacy. The
J. judgments of these Courts which have this special character are. distinguished by reference to the results which they affect tov girl declare. These results are four :—
Banda ^ The conferment of a ** legal character ” ;
(&) The declaration of title to a “ legal character ” ;
The taking away of a “ legal character ” ;
The declaration of a title to a specific property.
These four special results are embodied in four separate para-graphs numbered 1-4 in section 41; and there can be no questionthat, with reference to the four special Courts enumerated at thebeginning of the section, these four paragraphs must be interpretedon the principle reddendo singula singulis. That is to say, para-graph 1, which refers to the conferment of a legal character, mustbe held to relate to the legal characters conferred by certain orders ofProbate and Insolvency Courts. These are the only Courts whichconfer legal characters by their decrees; and the legal characters,which are to say the least primarily in view, must be the characters *of administrator, bankrupt, and trustee (or assignee) in bankruptcy,(or insolvency). The decrees of Matrimonial or Admiralty Courtsdo not confer any legal character. Paragraph 2, which relates todeclarations that a person is entitled to a legal character, is clearly*at least primarily, intended to have reference to the declarationsof a Probate Court that a particular person is entitled to the legalcharacter of executor. An executor cannot discharge his functionsuntil the Court has declared him entitled to that capacity. Para-graph 3, which relates to the taking away of a legal characterwhich a person already possesses, can only have reference to. thedecrees of Matrimonial Court. Decrees of dissolution of marriagein divorce suits put an. end to the relationship of husband and wife,and ipso facto take away from the parties to the suit the legalcharacter of husband and wife which they have hitherto borne.Paragraph 4, which relates to declarations to persons entitled to anyspecific property, can only have reference to Admiralty Courts.
The only paragraphs with which we are concerned in this, caseare paragraphs 1 and 2. That the “ judgments, orders, or decrees”in question are, at least, primarily grants of probate or letters ofadministration can be proved historically. The conclusive effectof grants of probate or letters of administration has been discussedin a long series of cases which will be found summarized in book VI.,chapter of WdUcms on Executors and AdndrUstraiors. Perhaps theleading modem case on the subject is the decision of the House ofLords in Concha v. Concha.1 These grants, which in the one case ineffect declare the executor to be entitled to one particular capacity
1 {1887) 11 A. O. 54L
( 233 )
and in the other ease confers a particular capacity upon theadministrator, are conclusive against all the world as to theexistence of that capacity until they are set aside. There can be noquestion, therefore, that, having regard to the history of the subject,these are the two judgments which the two paragraphs I havereferred to were intended, at least primarily, to comprise.
But the question we have to determine is this: Is this the wholescope of the paragraphs ? Testamentary Courts, in the courseof the exercise of their jurisdiction, are often incidentally calledupon to make declarations as to the “ legal character ” of personsbefore them. In this case the Kandy District Court has declaredAppuhamy to be entitled to the status of an adopted son. Whyshould this not be considered as equivalent to a declaration con-ferring a “legal character ” within the meaning of the section ?The words “ legal character ” are clearly wide enough to includethe status of husband and wife. What is there to distinguish thestatus of husband or wife from the status of an adopted son ? Thereis no apparent distinction, but if there were such a distinction thiswould not settle the matter. Suppose, in the course of the exerciseof his testamentary jurisdiction, a District Judge had occasionincidentally to consider the validity of a marriage, and supposingthat as a result .of his consideration he declares that one of theparties to the case was entitled to the status of a wife. Here aTestamentary Court, in the exercise of its jurisdiction, has declareda person to be entitled to a “ legal character.” Why should thisdeclaration not be considered as coming within the terms of thesection ?
To that question Wendt J. has in effect replied that the phrase“ in the exercise of its probate jurisdiction ” must begiven a veryrestricted significance. “ It must be limited to that power of theCourt by which it grants or refuses probate of a testamentarypaper,” or perhaps of letters of administration. With regard toincidental orders and declarations made subsequently, these areto be treated as coming 41 at a later stage when the Court jiasalready granted probate or letters, and is functus officio, so far asthat special jurisdiction is concerned.”
I confess that I am hardly satisfied with the explanation. Nodoubt in the mind of the draughtsman, paragraphs 1 and 2, so far asthey relate to testamentary proceedings, were intended to compriseonly the grants of probate or letters of administration. But whatwe have to discover is something in the words of the sectionitself which limits the words “judgment or order or decree ”toproceedings of this nature. Mr. H. V. Perera was'quite right ininsisting that it was not enough to discover the history of theenactment and intention of the draughtsman. We must examinethe words he has used, and see whether he has effectuated hisintentions.
8*
1921.
BmmiH
C.J.
Punehiralav. KiriBanda
( 234 )
1921.
ft Bbbtram* C.J.
Punchirata
v. iTiriBanda
Now, where a draughtsman has essayed to codify a branch of thelaw in a condensed and succinct formula, he is entitled to askthat every phrase and every word which he has used should receivetheir true effect. The key to the problem now under consideration,as my brother Ennis suggested in the course of the argument, is tobe found in the words “ not as against the specific person, butabsolutely/’ These words clearly cannot apply to an ordinaryincidental declaration made inter partes. It must be the intentionof the Court, when it makes the declaration in question, to makeit Universally as affecting all the world. I do not mean to say thatany casual or unauthorized intention on the part of any Courtto make a declaration with this peculiar effect would give thateffect to that declaration, but what is intended to a declarationmade by the Court, in accordance with the established principlesgoverning its procedure and jurisdiction, andintended, in pursuanceof those principles, to have this specific effect. If this be themeaning of the words, clearly they do not include incidentaldeclarations and orders as to the status of persons concerned inthe testamentary proceedings made either in connection with thegrant of probate ojr letters of administration or in subsequentstages after such a grant.
As the appellant was not a party to the judicial settlement ora privy of any of the parties, he is not bound by the previousdetermination of the Court as to the status of Appuhamy.
In my opinion the appeal must, therefore, be allowed, withcosts, and the case remitted to the District Judge for an inquiry
into the facts.
*
Ennis J.—I agree.
De Sampayo J.—I agree.
Appeal allowed .