087-NLR-NLR-V-07-Re-Intestate-Estate-of-KIRIYA.-BILINDA-v.-UKKU.pdf
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Re Intestate Estate of Kjiuya.BILINDA v. UKKU.
D. C., Kandy, 2,024 (Testamentary).
1903.
Avgust 12.
Administration—Civil Procedure Code, ss. 72$ 740—Irregularity of procedure—Estoppel..t
Where a child of a deceased intestate applied under section 726 of theCivil Procedure Code for a judicial settlement of the account of t'Headministratrix, and, the administratrix failing to show cause against thecitation issued by the Court in terms of section 727, the Court directedher on 9th March, 1900, to account on or before 6th April, 1900, on thefooting that the applicant was an heir of the deceased to the extent ofan undivided one-thirdofhis estate; andwhere,her account being
tendered, the Court ordered on 11th May, 1900, that the allegations ofthe parties for and against such account be heard on the 21st August,and after some delays and postponements certain issues were agreed toas regards the inventory.of property andfinalaccount, andthe
administratrix suggestedafurther issue regardingthe estate ofthe
interest of the applicant in the. acquired property of the intestate; andwhere it was contended that the minor’s status as an heir to one-third ofthe estate had been determined by the order of Court dated 11th May,1900,—
Held, that such order was not – res judicata between the parties, andthat the time for deciding upon the validity of the applicant’s claimwas open till the stage for distributing the estate comes.
D. C., JKurunegala, 576, 3 N. L. R. 173, explained.
Held also that, as the account filed showed that there was a surplusdistributable to creditorsorpersons interestedin theestate, it wasthe
duty of the Court to issue a supplemental citation under section 727requiring them to attend the accounting. Such a course would enablethe Court, after ascertaining what was due from the administratrix tothe estate, to further proceed to administer the estate in mannerprovided by section 740.
L
ETTERS of administration having issued to one – Ukku in thiscase, Bilinda, an illegitimate child of the intestate, petitioned
the District Court by her next friend Opalangu on the 6thSeptember 1899, and prayed that ttie said Opalangu be appointedher next friend for the purpose of taking steps towards ascertain-ing her rights to the said estate. The application vras allowed.
On the 18th October, 1899, Bilinda, by her^next friend Opalangu,petitioned the Court to compel the administratrix to make ajudicial settlement of the estate * under chapter 45 of the CivilProcedure Code. A citation was ordered to issue on the adminis-tratrix.
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1903. On the 11th December, 1899, the administratrix having filedAugust 12. ]jer final account, it was referred to the secretary for audit. After’ – several postponements had been applied for and granted on behalfof the administratrix for explanations and vouchers, the Courtfound on the 9th March, 1900, that she failed to show causeagainst the oitation. Thereupon an order was made “ directingher to account on or before the 6th April, 1900, on the footingthat the petitioner is the heir of the deceased in respect of anundivided one-third share of the deceased’s estate, and to attendCourt from time to time for that purpose.”
On the 6th April the administratrix was present and tenderedsome vouchers, and was given time till 11th May, 1900, to file anacbeunt. <-
On the 11th May, 1900, she tendered an account, and the Courtfixed the 21st August, 1900, “ to hear the allegations and proofof parties respecting the account. ”
After two postponements the case was taken up on the 30thNovember, 1900, when the petitioner Bilinda submitted an affidavitobjecting to certain items of the final account, and tendered a listof property which was alleged to have been omitted from theinventory by the administratrix.
On the 11th December, 1900, certain issues were agreed to as tothe inventory and the final account, and as to what was theacquired property of the intestate. A further issue was suggestedby Mr. Proctor Sproule for the administratrix and placed onrecord, namely, ” Whaii is the extent of the interest of the petitionerBilinda in the acquired property of the intestate.” For eighteenmonths thereafter nothing appeared to have been done, but on the24th June, 1902, when the case came on for hearing, it wascontended on behalf of the minor that the issue last suggestedcould not be accepted, as the minor’s status as an heir and herright to an undivided third part of the estate were res judicataby its order of 9th March.
The District Judge (Mr. G. A. Baumgartner) held that he couldnot review the order of Court of 9th March, 1900, though hethought that an illegitimate child was not entitled to succeed tothe acquired property of its father, even if he does not leave awill.,
The administratrix appealed from this order.
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The case cam«f on for argument before Layard C.J., andMoncreifE, J., on the J.2th November, 1902, when it was orderedthat the case be reserved for a Full Bench. .
The appeal was heard by Layard, C.J., Wendt, J., and Middleton,(J., on 12th August, 1903.
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H. Jayawarden&, for administratrix, appellant.—The intestatedied some years ago, leaving the administratrix, who is a daughterby the first bed, and two children of the second bed; also anillegitimate child, the respondent. The administratrix obtainedletters of administration. Then the present respondent, by hernext friend, who is her mother, presented a petition praying for ajudicial settlement of the estate. She claimed an undivided one-third share of the acquired property. In the application thechildren were made parties as well as the administratrix. TheDistrict Judge struck out the children. They were admittedlyheirs, and the Court should havt? made them, all respondents.(Civil Procedure Code, section 740.) The appeal is on the questionwhether .the petitioner is entitled to any share. The Judge sayif*the administratrix is estopped from disputing it now, as she sub-mitted to the order to file an account. But we say we filed a finalaccount independently of any claims of the petitioner. We neverfiled the account on the footing that petitioner was entitled toa one-third share. That claim must be decided afterwards, whenthe stage for distribution of the estate comes. [Layard, C.J.—The District Judge says you did not deny her right to one-thirdshare.] It is not for us to deny it now. That question will beraised in due course when all the heirs are before the Court.
Van Langenberg (with Vanderwall), for petitioner, respondent.
■—The case reported in 3 N. L. B. 173 shows what the proper pro-cedure is. The question of heir or no heir should be tried at theearliest stage of the case. The administratrix should have deniedher title as soon as it was put forward. She did not do it then.She is estopped now, after the account has been filed on the footingordered. Mr. J. S. Drieberg, who heard the case in 3 N. L. B. 173,as District Judge, observed: “ It appears to me unreasonable in theextreme, as contended for by Mr. Sampayo, that the petitioningcreditor should be required to wait to prefer her claim to be namedan heir till assets are ready for distribution.” [Layard, C.J.—Suchan issue may be tried early or late. ' There is nothing to preventthe administratrix from opposing the claims when the time for dis-tribution comes. The order of 9th March, 1900, is simply made onthe footing that the petitioner is an heir. The filing of the accounthas nothing to do with the distribution.] If that be so, the propercourse would have been to have gonp on with the inquiry undersection 740.
12th August, 1903. Layard, 'C.J.—
The procedure in this case has# bqen deplorably tedious, but theonl^ way unfortunately in which we can deal with the matter nowin appeal is to quash all .the proceedings after the 11th May, 1900.
1903.
August 12.
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1903. One Bilinda, by her next Mend Opalangu, on Hie 18th October,August 12. jagg petitioned the Court, under the provisions of chapter 55 ofLayajod.C.J. the Civil Procedure Code to make a judicial settlement of theestate of one Kiriya, to whose estate letters of administration hadissued to one Ukku in these .proceedings. The petition was dulyreceived, and the Court directed that a citation should issue to theadministratrix to appear or show good cause to the contrary.The administratrix frequently applied for and obtained time, afterthe citation had been duly served on her, to file an affidavit tomeet the application of Bilinda for a judicial settlement of theaccounts of her administration. On the 9th March, 1900, theadministratrix having failed to show cause against the citationissued, an order was made directing her to account on or beforethe 6th April, 1900, on the understanding or footing that no causebeing shown to the contrary the petitioner Bilinda was for thepurpose of that order treated as entitled to call for such anaccount, as being an heir of the deceased. I understand that ordersimply to mean that, as the administratrix had not objected to thestatus of the petitioner, the administratrix must file an account.
It was an order by the District Judge that, as no cause to the con-trary had been shown for the purpose of that order merely, thepetitioner must be treated as entitled to call for the account.On the 11th May, 1900, the administratrix’s proctor tenderedan account, which was accepted by the Court.
That account, if examined together with the inventory andother accounts filed in the record, appears to show that there is asurplus distributable to creditors or persons interested in theestate. Such being the case, the Court ought to have followedthe provisions of section 727 and ordered the issue of a supple-mental citation directed to the other heirs of the intestate,requiring them to attend the accounting. That would enable theCourt, after ascertaining what was due from the administratrixto the estate, to further proceed to distribute the estate in manner• provided bv section 740. Then the heirs in due course wouldbe able to raise the question as to'whether the petitioner had anyinterest in the estate of the intestate. The order of the 9thMarch, 1900, cannot be takeg as estopping the administratrix orthe heirs, when distribution of the estate takes place, from denyingthat the petitioner is entitled to -any share in the estate of theintestate.t
As the District Judge on the 11th- May, 1900, did not pursuethe provisions of section 727 tod order a supplemental citation,there is no other course open for us but to set aside all the ordfersand the proceedings which have taken place since the 11th May,
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1900, and remit the case to the District Judge with instructionsthat he do issue a supplemental citation as provided in section 727.
It appears to us that all parties are to blame for the properprocedure not having been followed in the Court below, so weorder that parties do bear their own costs both in the DistrictCourt and in this Court.
Wendt, J.—I agree.
Middleton, J.—I agree.
August 12.Layabd.C.J.