040-SLLR-SLLR-2006-V-3-SHANTHI-GOONETILAKE-vs.-MANGALIKA-AND-OTHERS.pdf

CA
Shanthi Goonetilake Vs. Mangalika and Others
(Wimalachandra, J.)
331
SHANTHI GOONETILAKEVS.MANGALIKA AND OTHERSCOURT OF APPEAL.WIMALACHANDRA. J.CAL A 321/2004.
DC COLOMBO 36054/T.MAY 20.2005.
Civil Procedure Code- Sections 529, 529(2) 529(3), 531 (1) b, 531 (2),537-Testamentary Proceedings – Order nisi entered in the first instance-Recall of Probate/letters of administration – Permissibility ? – Applicabilityof Section 537 when an order nisi in the first instance has been issued -Difference.
The respondent widow filed testamentary action naming the fourchildren of the deceased as respondents. The Court entered order nisi inthe first instance, and directed that the order nisi be published in thepapers, in terms of section 529. as no objections were received inresponse to the publications, the Court under section 531(2) made ordergranting letters. Thereafter the petitioner moved Court seeking to recallthe letters on the footing that the deceased has left a last will and thepetitioner has already filed a testamentary case seeking that she bedeclared the executrix and the probate be granted to her. The District Courtrefused the application, on leave being sought,
HELD:
(1) The petitioner has not filed any objections to the order madeby Court to grant letters to the respondent as prescribed insection 529(2). Objections to granting of letters could beentertained in terms of section 529 (3) only if such objections
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are submitted not earlier than 60 days and not later than 67days from the date of the first publication.
When a period of time is specified by law before the expirationof which any act has to be done by a Party in a Court of Law,Court has no jurisdiction to permit that act to be done afterthe expiration of that time within which it had to be done.When the petitioner has not made an application to recall theletters within the period prescribed in section 529 (3) thepetitioner's application cannot be maintained.
When a Court directs an order nisi to be published and wherethere is no person in the prayer to serve the order nisi thepower of Court to recall or revoke letters/probate is limited tocases when an order absolute is entered in the first instance.
Section 536 and section 537 of the Code must be readtogether. When the issue of probate is followed upon by anorder nisi the provisions of section 537 do not apply, and allparties are concluded with the issue of probate.
Per Wimalachandra. J. :
“'Section 537 provides for the recall of letters/probate only whenan order obsolute had been issued in the first instance and in theinstant case only an order nisi had been entered in the first instance.Therefore sections 537 which deals with the power to recall orrevoke probate/letters do not apply’
APPLICATION for leave to appeal from an order of the District Court ofColombo.
Cases referred to:
Ceylon Breweries vs. Fernando 2001 1 Sri LR 270
Biyanwila vs. Amarasekera 67 NLR 488
CAShanthi Goonetilake Vs. Mangalika and Others333
(Wimalachandra, J.)
Adories et al vs.Perera 17 NLR 212, 214 (FB)
Haleema Umma vs. Abdul Rahaman 1999 2 Sri LR 293
Cur. adv. vult.
June 16, 2006.
WIMALACHANDRA, J.This is an application for leave to appeal from the order of the AdditionalDistrict Judge of Colombo dated 16.08.2004. By that order the learnedjudge dismissed an application made by the petitioner, Dona SandayaShanthi Goonathilake, that the probate granted to the Petitioner-respondent respondent (respondent), Mallika Arachchige SumanaMangalika be recalled as the deceased, Pallewattage ChandrapalaCosta had died leaving a last will.
Briefly, the relevant facts are as follows :
The widow, the said M. A. Sumana Mangalika (the respondent tothis application), of the aforesaid deceased P. Chandrapala Costa whodied intestate, filed the testamentary action in the District Court ofColombo bearing No. 36054/T and sought letters of administrationfor herself. The four children of the deceased were named asrespondents. The Court did not grant an order absolute in the firstinstance, but entered an order nisi. The Court directed that the ordernisi be published in three news papers, namely, "Dinamina” a Sinhaladaily news paper., “Thinakaran” a Tamil Newspaper, and “Daily News"an English newspaper, in terms of section 529 of the Civil ProcedureCode. As no objections were received in response to the publicationsmade under section 529 of the Civil Procedure Code, the Court actingunder section 531 (2) of the Civil Procedure Code made order grantingthe letters of administration to the respondent. On 13.10.2003, thepetitioner (The Petitioner to this application) filed a petition and anaffidavit in the same proceedings that the letters of administration be
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recalled on the footing that the deceased had died leaving a last will,and that the petitioner has already filed a testamentary action bearingNo. 36386/T in the District Court of Colombo on 19.03.2004 seekingthat she be declared the executor and that the probate be granted toher.
Admittedly, in the testamentary proceedings in Case No. 36054/T,order nisi was entered and on 30.06.2003 proof of publication wasfiled, and the Court made order granting the letters of administration tothe respondent in terms of section 531 (b) of the Civil Procedure Code.The purpose of publishing the order nisi in Sinhala, Tamil and Englishnews papers is to give notice to any person interested in theadministration of the estate of the deceased person. It requires anyperson interested to show cause why the order nisi entered should notbe made absolute.
The first publication in terms of section 529 (2) was done on
Objections to the granting of letters of administration couldbe entertained in terms of section 529(3) of the Civil Procedure Codeonly if such objections are submitted not earlier than 60 days and notlater than sixty seven days from the date of the first publication referredto in section 529(2). However, the petitioner has not filed any objectionsto the order made by Court to grant letters of administration to therespondent as prescribed in section 529(2). When a period of time isspecified by law before the expiration of which any act has to be doneby a party in a Court of law, that Court has no jurisdiction to permitthat act to be done after the expiration of that time within which it hadto be done. (Ceylon Breweries Vs. Fernando<v). Therefore when thepetitioner has not made an application to recall the letters ofadministration within the period prescribed in secton 529(3) of the CivilProcedure Code, the petitioner’s application cannot be entertained.
When a Court directs an order nisi to be published and where thereare no persons in the prayer that the order nisi is to be served on, thepower of a District Court to recall or revoke a probate (or letters of
CAShanthi Goonetllake Vs. Mangalika and Others33$
(Wimalachandra, J.)
administration) which has already been granted is limited to caseswhere an order absolute is entered in the first instance (see BiyanwalaVs. Ameresekera) . This judgment relates to an application for aprobate in respect of a last will but it is equally applicable to anapplication for letters of administration.
In the case of Adoris et. al Vs. Perera (Full Bench) Lascelles C.J. made the following observations:
“I cannot resist the conclusion that these two sections (sections536 and 537) must be read together. Ignoring the references toadministration, the result is that probate may be recalled in thetestamentary action in two cases only, namely,
Where probate has issued on an order absolute in the firstinstance, and as a consequence, notice of the order has notbeen given to interested parties, and
(ii) Where events have occurred which render the administrationunder the probate useless.”
These provisions (sections 536 and 537) are equally applicable towhen letters of administration has been issued on an order absolute inthe first instance.
In the case of Haleema Umma Vs. Abdul Rahuman the SupremeCourt held that sections 536 and 537 of the Civil Procedure Code mustbe read together. Consequently, when the issue of probate is followedupon by an order nisi the provisions of section 537 do not apply and allparties are concluded with the issue of the probate.
Section 537 of the Civil Procedure Code provides for the recall of aprobate or letters of administration only where an order absolute hadbeen issued in the first instance and in the instant case only an ordernisi had been issued in the first instance. Therefore the Section 537
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which deals with the power to revoke or recall or cancel a probate orgrant letters of administration do not apply.
In the' circumstances there is no basis to interfere with the order ofthe learned Additional District judge dated 16.08.2004.1 dismiss thisapplication with costs fixed at Rs.7,500.
Application dismissed.