SADHANA DHARMABANDU vs MALLIKA HOMES LTD AND OTHERS

019-SLLR-SLLR-2009-V-1-SADHANA-DHARMABANDU-vs-MALLIKA-HOMES-LTD-AND-OTHERS.pdf


Sadhana Dharmabandu Vs Mallika Homes Ltd And Others
151
CA
SADHANA DHARMABANDUVS
MALLIKA HOMES LTD AND OTHERS
COURT OF APPEALBASNAYAKE. JCHITRASIRI. JCALA 498/2005DC COLOMBO 36175/TMARCH 3, 2009
Civil Procedure Code – Section 6, Section 516, Section 520, Section 524,Section 517 – Testamentary proceedings – Application to obtain probatewithdrawn – Should the application to prove the last will be dismissed?- Should the procedure set out in granting probate start afresh? -Object of the legislature – Applicability of Section 56 of the Code – Dutyof Court in testamentary matters?
The District Court allowed the application of the petitioner towithdraw his application to grant probate in respect of the last willof one X and permitted the intervenient petitioner-respondent toprosecute the action from where it was stopped.
The petitioner sought leave to appeal against the said order, and leave wasgranted on the question “whether an application to prove a last will shouldbe dismissed when the petitioner is allowed to withdraw his application toobtain probate.’
Held:
Testamentary actions are governed by the provisions contained inCap. 38 of the Code. The object of the legislature seems to have beento make it mandatory to have a will proved in a Court of Law and toadminister the estate of a deceased person according to the wish ofthe deceased. A duty is cast upon the Judge of the District Court inwhich a will is deposited to have the probate issued and also to have awill proved or rejected according to law.
In the premises, it is not possible for a Judge in a District Court todismiss an action merely because an application to obtain the grant of
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probate made under Section 517 is withdrawn especially when a willis deposited in Court under Section 516. In such a situation, Courtcannot and should not dismiss the action bringing the entire processto a halt.
No specific provisions in law are required to cover the situation underconsideration, since it is the normal course of action that a Judgeshould take injudicial manner.
Per Chitrasiri. J.
“Procedure in testamentary action is dealt with separately in a separatechapter in the Code. Section 6 should not be blindly applied when itcomes to procedural issues in testamentary actions. The procedure intestamentary actions should be interpreted judicially and it shall notnecessarily be guided by the general provisions in the Code"
Held further
Procedure set out in granting probate or letters need not start afreshby making publications in the newspapers etc., it is not necessary tofollow those steps all over again merely because the application toobtain probate was withdrawn.
Case referred to:-
M. L. Marikkar vs. Abdul Aziz – 1 NLR 196
A. P. Niles with Arosha Silva for petitioner.
Romesh de Silva PC with Sugath Caldera for respondent-respondent
Manohara de Silva PC with David Weeraratne for intervenient petitioner-
respondent.
Cur. adv. vult
April 2, 2009
CHITHRASIRI, J.
This is an application seeking leave of Court toappeal from the order dated 24th November 2005 made by theAdditional District Judge of Colombo. In the said order thelearned Additional District Judge permitted an applicationby the Petitioner – Petitioner (herein after referred to as the. Petitioner), to withdraw his application to grant Probatein respect of the last Will executed by the deceased
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Petitioner’s wife. The learned Additional District Judge whilstallowing this application of the petitioner also permitted theIntervenient-Petitioner-Respondent (hereinafter referredto as the 2nd respondent) to prosecute the action from thepoint where it was stopped. Being aggrieved by this order thepetitioner sought leave of this Court to have the originalapplication made to the District Court dismissed on theground that his application to prove the Will was withdrawn.
When the matter was argued in this Court, it transpiredthat there is a question of law which has arisen as to wheth-er an application to prove a Last Will should be dismissedwhen the Petitioner is allowed to withdraw his application toobtain probate. Thus, it is clear that the leave of this Courtshould be granted in this instance. However, since this Courthas decided to take up both the question of leave and themain issue simultaneously, I will now consider the mattersconnected to the main issue involved here in thisapplication.
At the out-set, I will refer to the facts of the case in brief.The Petitioner made an application to the District Court ofColombo to prove a Last Will purported to have been writtenby his wife the deceased Susila de Silva. In that, Respondent-Respondent, (hereinafter referred to as the 1st Respondent)namely B.S.S. Dharmabandu nee De Silva, was named asthe Respondent. She is the only child of the Petitioner andthe deceased. At the time the said action was filed, petitionerdeposited the aforesaid Last Will in Court in keeping withSection 516 of the Civil Procedure Code. 1st Respondenthaving appeared in Court objected to the issue of Probate toher father, the Petitioner, on the ground that the said Willis not the act and deed of her deceased mother. Therefore,Mallika Homes Limited 2nd Respondent made an applicationfor intervention and its application was allowed and it wasnamed as the Intervenient Respondent.
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Whilst the inquiry into the application to obtainprobate was pending, the Petitioner moved Court that he beallowed to withdraw the said application to obtain probate. Itis pertinent to note the two witnesses to the Will had alreadytestified in the District Court by then. The 1st Respondentdid not object to this application of the petitioner. However,the 2nd Respondent moved Court to allow it to prosecute theaction with the intention of proving the Last Will thoughno serious objection to withdraw the application to grantProbate was taken up. Having considered the submis-sions made by the parties on the issue, learned AdditionalDistrict Judge made order allowing the Petitioner’sapplication to withdraw his application to obtain probateand also allowed the 2nd Respondent to prosecute the action.Thus, the issue before this Court is to determine whether theorder of the learned Additional District Judge allowing 2ndRespondent to prosecute the action should stand or shouldthe main application to prove the Will be dismissed.
Testamentary actions are governed by the provisionscontained in Chapter XXXVIII of the Civil Procedure Code.Accordingly, when any person dies leaving a Will in Sri Lanka,the person in whose custody it shall have been, shoulddeposit the same in the District Court of the district inwhich such depositor resides or in the District Court of thedistrict in which the testator shall have died. (Section 516 ofthe Civil Procedure Code). Admittedly, the purported will of thedeceased in this case has been deposited in the District Courtof Colombo in terms of the aforesaid Section 516 of the CivilProcedure Code. When a will is deposited in Court as set outabove, any person appointed by the said Will may apply tothe District Court of the district within which he resides, orwithin which the testator resided at the time of his death, orwithin which any land belonging to the testator’s estate issituated to obtain the grant of probate or the issue of letters
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of administration, in the manner specified in Section 524 ofthe Civil Procedure Code. (Section 517 of the Civil ProcedureCode)
When looking at these two provisions, it is apparentthat;
the deposit of the Will,
the application to prove the same, and
to have the Probate issued,
are different situations and are considered as separateacts that should be performed separately.
This proposition is further established by the way inwhich Section 517 (1) of the Civil Procedure Code is drafted.It stipulated that any person interested either by virtue ofthe Will or otherwise also can apply to prove the Will andto obtain grant of Letters of Administration of the estate ofa deceased person. Moreover, Section 518 of the CivilProcedure Code makes it compulsory to have the Willproved and the grant of Probate or the issue of Letters ofAdministration. Furthermore, Section 520 of the CivilProcedure Code contemplates even the Public Trusteebeing appointed as an Administrator to manage the estate of adeceased person whenever no fit and proper person asrequired by the preceding provisions is available.
In the circumstances, it appears that the sections referredto herein before make it compulsory to have a Will properlyadministered by a fit and proper person. Thus, the objectof the Legislature seems to have been to make it mandatoryto have a Will proved in a Court of Law and to administerthe estate of a deceased person according to the wish of thedeceased. Accordingly, a duty is cast upon the Judge of aDistrict Court in which a Will is deposited to have the Probate
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issued and also to have a Will proved or rejected accordingto law.
In the premise, it is not possible for a Judge in aDistrict Court to dismiss an action merely because anapplication to obtain the grant of probate made underSection 517, is withdrawn especially when a will isdeposited in Court under section 516, as in this case.Therefore in such a situation, Court cannot and shouldnot dismiss the action bringing the entire process to ahalt. Therefore, I am of the view that when an applicationmade under Section 517 of the Civil Procedure Code iswithdrawn the proceedings initiated under Section 516 of theCivil Procedure Code cannot be terminated.
In the circumstances, I decide that the learned DistrictJudge has come to the correct conclusion by allowing the2nd Respondent namely, Mallika Homes Limited to prosecutethe action even though the Petitioner has withdrawn hisapplication to prove the Will. Then, it is the duty of that Courtto act under Section 517, 518 or even under Section 520 andto grant probate or issue Letters of Administration in order toprove the Will affording an opportunity for the opponents tochallenge the same.
The contention of the Petitioner in this instance wasthat no specific provision in Law is found to cover the situa-tion that has arisen in this instance like in the Partition Lawand the Companies Act allowing another party to come tothe shoes of the plaintiff or to the petitioner to prosecute theaction. He has therefore argued that this action should bedismissed when the application to obtain the grant of probateis withdrawn. However, as I have explained herein before anapplication to prove the Will made under Section 517 andthe commencement of the proceedings under Section 516 ofthe Civil Procedure Code has to be differently identified. It isonly the application made under Section 517 is withdrawn
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in this instance and it has no connection to the proceedingscommenced in terms of Section 516 of the Civil ProcedureCode. Therefore, the contention of the learned Counselfor the Petitioner cannot relate to the issue at hand withsituations in the Partition Law and the Companies Act.However, I hold that no specific provision in law is requiredto cover the situation under consideration since it is thenormal course of action that a Judge should take in ajudicious manner.
The learned President’s Counsel for the 1st Respondentreferring to Section 6 of the Civil Procedure Code contendedthat all actions are based on applications and when suchapplications are withdrawn the action also should standdismissed.
Procedure in testamentary actions is dealt with separatelyin a separate chapter in the Civil Procedure Code. Therefore,Section 6 of the Civil Procedure Code should not be appliedblindly when it comes to procedural issues in testamentaryactions. The purpose of testamentary actions is to ascertain thewish of a deceased person who cannot be called before Court.Therefore, a duty is cast upon Court to ascertain the intentionof a deceased person irrespective of adverse interests thatmay arise from other individuals. Therefore, the procedure intestamentary actions should be interpreted judiciously andit should not necessarily be guided by the general provisionscontained in the Civil Procedure Code. Therefore, I am notinclined to agree with the contention of the learnedPresident’s Counsel.
Moreover, in the case of M.L.Marikkar v. Abdul Azizll)at 196. Wither, J said “Action is not an apt-term todescribe insolvency proceedings, the procedure in regard towhich is regulated by Insolvency Ordinance No. 7 of 1853 ….
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The Civil Procedure Code has nothing whatever to do withinsolvency matters”
When the provisions of the Civil Procedure Code are notfollowed in respect of insolvency matters, it is not incorrectto adopt a suitable procedure in testamentary actions aswell without giving a strict interpretation hanging on to theprovisions contained in the Civil Procedure Code. However, itmust be noted that I have adopted a procedure differentto the procedure in the Civil Procedure Code in thisinstance.
The 2nd Respondent has also taken up the position thatthe procedure set out in granting Probate or issue of Lettersof Administration should start afresh by making publicationsin the news papers etc. when the original application to provethe Will has been withdrawn. I do not think it is necessaryto follow those steps over and over again merely because theapplication to obtain Probate has been withdrawn. Whenthose publications are made in the newspapers once, itamounts to sufficient publicity for persons to come forwardand to participate in court proceedings initiated in respectof a deceased person. Therefore, the formalities that havealready taken place in this connection need not be takenagain as in a fresh application since the purpose of thoseformalities are now been achieved.
In the circumstances, I am of the view that the ordermade by the learned District Judge allowing the Intervenient-Petitioner-Respondent to prosecute the action from the pointit was stopped is correct.
Hence, I dismiss the application of the Petitioner-Peti-tioner with costs.
BASNAYAKE, J. -1 agreeApplication dismissed.