Sellasamy v. Kaliamma.
Present: Soertsz and Keuneman JJ.
SELLASAMY v. KALIAMMA.In re Conditional Leave to Appeal to the PkiwCouncil, No. 272.
Privy Council—Conditional leave to appeal—Final order—The Appeals (PrivyCouncil) Ordinance, No. 31 of 1909 (Cap. 85), Rule 1 (a).
Where, in the course of proceedings for the judicial settlement of anestate, an order was made that the subject-matter of a certain deed ofgift should be brought into collation,—
Held, that the order had the effect of a final judgment within themeaning of Rule (1) (a) of the Rules in Schedule I. of the Appeals (PrivyCouncil) Ordinance.
HIS was an application for conditional leave to appeal to the PrivyCouncil.
H. V. Perera, K.C. (with him H. W. Thambiah), for the petitioner.
N. Nadarajah (with him C. Renganathan), for the respondent, showedcause.—There is no right of appeal to the Privy Council from the presentjudgment. The judgment, although it concerns subject-matter whichexceeds the value of Rs. 5,000, is not a final judgment. The petitionercannot appeal to the Privy Council in this case until the final decree in thejudicial settlement has been entered. There are two series of judgmentsof this Court, each series taking a different view of the meaning of theterm “final judgment”. See Re Estate of Kiritisinghe Kuda Banda1;Dassanaike v. Dassanaike *; Lall v. Emmanuel z; Perera v. MohamedYoosoof *; on the one hand, and The Ceylon Tea Plantation Co., Ltd. v.Carry1; Balahamy v. Dinohamy et al.°; Mohamed. Sheriff v. Muttu Natchia';on the other. See also Shubrook v. Tufnell ° and Salaman v. Warner et. al. “.
H. V. Perera, K.C., in reply.—The expression “ final judgment ” in rule 1of Ordinance No. 31 of 1909 (Cap.. 85) has a very wide meaning and shouldbe interpreted according to the context. The Civil Procedure Codeordinarily contemplates only one decision in a case between two parties.But take a case where there is a special proceeding in a testamentary case,e.g., under section 736 of the Civil Procedure Code. The order determiningthe special proceeding shouldberegardedasfinal so far as thespecial
proceeding is concerned.AppealtothePrivyCouncil would liefromit
as long as it can be detached and is separable from the main testamentarycase. The fact that two actions are rolled into one does not make themone single dispute. In the present application there is a final order of theSupreme Court on a subject-matter worth over Rs. 5,000. The order wasmerely incidental to and not a necessary step in the judicial settlement.Further, if the petitioner, in order to appeal to the Privy Council, has to
1 (1906) 2 Bid. Rep. 87.5 (1909) 12 N. L. R. 867.
* (1929) 30 N. L. R. 367.0 (1926) 27 N. L. R. 410.
(1931) 33 N. L. R. 91.
(1931) 32 N. L. R. 285.
7 (1932) 33 N. L. R. 379.
L. R. (1891) 1 Q. B. D. 734.
458SOERTSZ J.—Sellasamy v. Kaliamma.
wait until the end of the judicial settlement proceedings, it may be toolate, for it is conceivable that all the assets of the estate, including thesubject-matter of this application, may be required for the payment ofdebts.
For meaning of “ final judgment ”, see McDonald v. Belcher et al';Saddanathkurukkal v. Vaithiampillai et al/; The Ceylon Exports, Ltd. v.Abeyasundera et aU.
Cur. adv. milt.
September 11, 1941. Soertsz J.—
This is an application for conditional leave to appeal to His Majesty theKing in Council from a judgment of this Court holding that the gubject-matter of a certain deed of gift is liable to be brought into collation as agift made by a father to a son, within the meaning of section 35 of theMatrimonial rights and Inheritance Ordinance (Cap. 47, LegislativeEnactments).
Counsel for the respondents, while conceding that the matter in disputebetween the parties is above five thousand rupees in value, opposes theapplication on the ground that the appeal sought is not from a final judg-ment of this Court inasmuch as decree has not yet been entered in thematter of the judicial settlement in the course of which the judgment inquestion was entered by this Court.
The cases cited in the course of the argument upon this matter illustrateonce more the difficulty and even the danger to which Garvin J.called attention in Mohamed Sheriff v. Muttu Natchia', that attend anyattempt to lay down general rules or to frame a comprehensive formulafor applications of this kind, and I propose to confine myself to the factsof this case, to the judgment of this Court thereon, and to the consequencestherefrom to the present applicant.
The facts, to state them briefly, are these: —
The applicant’s father gifted certain property to the appellant in theyear 1937. At the time the gift Was made,—to quote from the judgmentof this Court—“ a marriage between the donee and a bride whom thethe donor greatly desired-for the donee was imminent” and this Courtheld that in all the circumstances attending the execution of the deed ofgift, the gift was one made “on the occasion of marriage”, and was.therefore, liable to be brought into hotchpot as contended by therespondents to this application, in terms of section 35 of the MatrimonialRights and Inheritance Ordinance. It results from that finding that theadministration of the estate in question must now proceed on the footingthat it includes a land above five thousand rupees in value which theapplicant claims as his separate property.
Whatever the decree ultimately entered might be, it will be entered uponthe footing that this property is part of the deceased man’s estate. If thepresent applicant is dissatisfied with that final decree in any way at all andprefers an appeal to this Court he will not be able to re-agitate the questionwhether or not the land involved in the gift is liable to be administered aspart'of this estate, for he will be met with the plea of res judicata. If on
1 (1904) A. O. 429.* (1933) 13 C. L. Ree. 80.
* (1933) 13 C. L. Rec. 76.* 33 N. L. R. 3/9.
The King v. Wegodapola.
the other hand, the applicant has no other grievance "in regard to the finaldecree entered on the judicial settlement, there will not be even a decentpretext for raising this question again.
There are other difficulties in which he may find himself involved if hewaits till the final decree in the judicial settlement proceeding is entered,in order to make his application for leave to appeal. For instance, in thecourse of administration, it may happen that all the assets of the estate,including this land, which he claims as his own, are required for thepayment of the debts of the estate, and by the time he-comes to make hisapplication, this property may be in the hands of some third party.
For these reasons I am of opinion that the judgment the applicantwishes to appeal from is within the scope of the words “ final decree, order,sentence or decision ”, for the word “ judgment ” in virtue of the inter-pretation given to it by section 2 of the Privy Council Appeals Ordinance,embraces all these forms of judicial pronouncement.
I would allow the application. The applicant is entitled to the costs ofthis argument.
Keuneman J.—I agree.