041-NLR-NLR-V-06-Re-Estate-of-USUPH-LEBBE-and-his-wife-SERJA.pdf
( )>^903.March 6and 25.
Re Estate of USUPH LEBBE and his wife SEBJA.D.C., Colombo, 1,800 (Testamentary).Nasubdin Lye, Petitioner.
Jasuini and others, Respondents,
Letters of administration—Applicationfor—Stalenessofapplication—Civil
Procedure Code, ss. 688, 644, 641—Discretion of Court,
Since the enactment of the Civil Procedure Code all applications forletters of administration or for grants of probate must be considered withreference to the terms of that Code.
As section 547 of that Code enacts that no action shall be maintainableto recover any property in Ceylon where the estate exceeds Bs. 1,000unless letters of administration shall have issued, and section 544 doesnot provide that before granting .such letters the Court shall consider thelength of time that has elapsed since the death of the intestate, but only,where there is a conflict' of claims, the provisions of section 523, there.is no longer any discretion left to the District Jndge as to whether lettersshall issue or not.
T
HE petitioner, who was the son-in-law of Usuph Lebbe andhis wife Serja, appeared in Court on 15th October, 1902,
and alleged that Usuph Lebbe died intestate on 27th March,1890, and Serja died . intestate on 2nd August, 1892, leavingproperty within the Districts of Colombo, Chilaw and Kurunegala,and that the respondents were the heirs and next of kin of both thedeceased, and that the petitioner was the husband of the fifthrespondent. He moved for an order nisi declaring the peti-tioner entitled to administer the joint estate of Usuph Lebbe andSerja.
The District Judge, Mr. D. F. Browne, disallowed the motion inthese terms: —
“ I have had occasion already in the testamentary proceedingsNos. 1,686 and 1,608 to express my doubts whether the opinionexpressed of late in the Appeal Court, that it is the duty of a Court inall cases where it finds that administration has not been taken outto see that it shall be, was intended to override the old.rule of ourCourts practically forbidding administration after the lapse of fiveyears. Jn neither case was appeal taken, much as I desired that thequestion should be ruled upon by the Appellate Court: For myown part I would be willing to grant administration when thedelay that has occurred had been satisfactorily explained by anappellant, and the need for it had been made to appear ”.
The petitioner appealed.
Morgan de Saram, for appellant.
Cur. adv. vult.
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26th March, 1908. Laxabd, C.J.—
The petitioner in this case applies for administration of theestate of Conjee Wappu Usuph Lebbe and his wife Dain Serja.The deceased were respectively father-in-law and mother-in-lawof the petitioner, who is husband of the fifth respondent, whosesisters, the first and third respondents, are married to the second andfourth respondents. The father-in-law died on 27th March, 1890,and his wife on the 2nd August, 1892, both intestate, and theirchildren are the first, third, fifth, sixth and seventh respondents,the seventh respondent being, a minor of the age of fifteen years onthe 5th September, 1902, the date of the presentation of thepetition to the District Judge.
Under the above circumstances the. District Judge, following, ashe said, the practice of the English Ecclesiastical Courts, as it wasunderstood and acted upon in certain local oases referred to byhim, declined to grant letters of administration, as he said theapplication came too late, being made after the lapse of more thanfive years.
The case in re Caderkamer Varitamby reported in 1 Lorenz, 95,was one in which there had been twenty-four years’ delay; someof the property of the estate had been sold by the opponent andsome given in dowry by him. It was therefore impossible to putthe estate back in statu quo ante, and therefore the application forletters of administration was dismissed. The case in re L. SimonSilva, reported in 3 Lorenz, 160, was an application for administra-tion de bonis non, nearly twenty years after the death of theintestate; and though the report is meagre, it is obvious that therehad been some distribution of the estate by the original administra-tor, who had acted in that capacity for two years before his death.The District Court of Colombo rejected the application foradministration de bonis non. This Court held that in view of thecircumstances of that case the applicant should have the opportunitygiven to him to show special reasons why his ■ application shouldbe allowed, and remanded the case for that purpose to the DistrictCourt. These cases were approved in that reported in Ramq-nathan’s Reports, 1863-1868, p. 106. All the above cases werebefore the enactment of the Civil Procedure Code.
In the case re Last Will and Testament of A. Hendricks andS. Hendricks (4 N. L. R. 24), this Court, following a judgment oiChief Justice Bonser’s in an unreported case from the DistrictCourt of Negombo, considered that the District Judge of Galle waswrong in disallowing an application for probate of a will as itwas too stale, and directed that letters of probate, should issuevaleat quantum if the will was proved to be genuine. The
1903.March 6 ■
and 26.
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1003, application, being one for probate, it was suggested by Mr. Justicelarch 6 <4 25 Lawrie, ought to be treated on a different footing from one forLayard, 0.J. & grant of letters of administration.
It appears to me that all applications for letters of' administrationor for grant of probate since the enactment of the Civil ProcedureCode must be cpnsidered with reference to the terms of that Code.Now, section 547 of that Code enacts that no action shall bemaintainable to recover any property in Ceylon where the estateexceeds Bs. 1,000, unless letters of administration shall have issued,and section 544 does not provide that, before granting letters ofadministration, the Court shall have regard to the length of timethat has elapsed since the death of the intestate, but only, wherethere is a conflict of claims, to the provisions of section 523.
I think, therefore, on the authority of Moysa Fernando v. AliceFernando (4 N. L. R. 201), the Civil Procedure Code has settled thelaw with regard to issue of letters of administration, and that itwould not be safe for this Court to place too much reliance on theold decisions referred to by the District Judge; and as there is nosuggestion that the lapse of time has caused any change of title oraffected the rights of the parties, and as it is obvious that the titleof the minor respondents cannot possibly have been in any wayaffected by the delay, I think the District Judge was wrong, andthat the petitioner is entitled to be granted the prayer of hispetition.
I agree with the decision in 4 N. L. R. 201 that the former^discretion, whether or not to issue letters, which was exercisedwhere the estate was small or not, has been put an end to bysection 547 of the Civil Procedure Code, and I think the terms ofsection 544 as read with section 547 do not leave the Court anydiscretion where the application is made late.
As it does not appear that we should be doing material injusticeby allowing this appeal, I am disposed to allow it.
Moncreiff, J.—I agree.