071-NLR-NLR-V-65-T.-B.-DISSANAYAKE-and-2-others-Appellants-and-LEELAWATHIE-KUMARIHAMY-and-2-oth.pdf
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JDisaanayake «. Laektmaihi* Kumarihomy
1962 Present: H. N. G. Fernando, J., and L. B. de Silva, J.
T.B. DISSANA.YA.KE and 2 others, Appellants, andLEELAWATBXE KUMARI HAMY and 2 others, Respondents
S.C. 68 (Inty.) of I960—.D.G. Kandy, 5764/LAction by heirs to set aside a deed of gift executed by a deceased person—Letters of administration not issued—Maintainability of action—CivilProcedure Code, s. 547,
Without obtaining letters of administration, the heirs of a deceased personinstituted action to have a deed, of gift,which had bean executed by the deceased,set aside on the grounds that (o) it was a forgery, (b) the deceased did nob under -stand the nature and consequences of her act, (c) it was executed by her underundue influence. If the property gifted by the deed was included in the estateof the deceased, the estate of the deceased would have required administration.Plaintiffs, however, did not raise any issue claiming declaration of title to theproperty gifted by the deed.
Held, that the provisions of section 547 of the Civil Procedure Code could notdebar the plaintiffs from maintaining the action. The action was not one forthe " recovery ” of any property belonging to the deceased.
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L. B. DE SILVA, J.—Dixtumityakc o. Lccluwul/dc Kumarilmniij
A. PPEAL from nn order of the District Court, Kandy.
H. V. Perera, Q.C., with T. B. Dinsanayake, for the Pl&intiffs-Appellants.
C. R. Cunaratne, with R. Manikkavasagar, for the Defendants-Respondents.
Cur, ado. wit.
November 30, 1962. L. B. de Silva, J.—
The plaintiffs-appellants filed this action as heirs of the deceasedLoku Kumarihamy to have the deed 7892 dated 18/2/1959 alleged tohave been executed by the deceased, set aside and annulled on thefollowing grounds :—
(а)It was a forgery.
(б)The deceased did not understand the nature and consequences
of her act.
(c) It was executed by her under undue influence.
They claimed a declaration of title to 3/7th shares of the propertypurported to be gifted by the said deed and for damages against the1st & 2nd defendants till possession was yielded.
The defendants averred that the plaintiffs cannot maintain this actionwithout obtaining letters of Administration to the estate of the deceasedas required by section 547 of the Civil Procedure Code. Partiesadmitted that if the property in question was included in the estate ofthe deceased, she left an estate that required administration.
To get over this objection, the plaintiffs withdrew their claim to adeclaration of title and for damages when the Issues were raised. Thelearned District Judge heard the parties on this preliminary issue andon the authority of the judgment of Drieberg, J. in Kandiah v. Karthigesu1,upheld the objection and laid the case by till a Grant of Letters wasmade.
The plaintiffs contend in this Appeal that their action as amended,is not for the recovery of any property that belonged to the deceased.
In the case of Weerasooriya v. Weerasooriya2, Hutchinson, C.J. stated,“ The learned District Judge says that in this action they are not seekingto recover the property. They could not in this action claim to recoverit, because the half of it ;;s much beyond the value of Rs. 1,000/-, andno administration has been taken out to Nonababa. What they areseeking is to set aside a deed of gift; if it is done, then, after an adminis-trator is appointed, they or the administrator may be able to recoverthe property ; but if they fail in this action, there is perhaps nothing toadminister. That view is in accordance with the decision in Lewiskamyv. De Silva*, and the ruling of the District Judge on the first issue wan
' (1929) 31 A*. L. R. 172 at p. 175.a (1010) 11 N L. R. 37C, at p. 37.0.
3 (1906) 3 Buluvingham 43.
358 L. B. DE SILVA, J. -Dixunnuyakr v. Lr.tlavutf hie Kumar thorny
right. ” That was an action by the heirs of the deoeaaed who wasmarried in community and whose husband had gifted the communalproperty, to set aside the gift on the ground that it was a fraud on thedeceased.
In the case of Lewishamy v. De Silva1 cited above, Middleton. J. said“ As matters stand at present the property is vested in the doneesand does not form part of the estate of the deceased intestate. Theaction is not brought to recover the property, but to set aside the deed,and when the deed is set aside an action for its recovery will lie ”.
In dealing with Lewishamy v. De Silva, Drieberg, J. appears at p. 175 tohave made a mistake when he stated that the half share which thewidow claimed from the donees of the deceased husband, never belongedto her husband nor did it form part of his estate but on the deed beingset aside the half share would have vested in her of her own right andnot by virtue of the title derived from her husband. Drieberg, J.appears to have thought that the property in question belonged to thecommunity. But in that case the parties were not married in communityof property.
At page 45 in 3 Balasingham Reports, Middleton, J. says “ In thepresent case, the plaintiff has no rights under a community but only aright to a half share of the property left by her husband at his death,should he die intestate. The widow’s right if any to the property inthat case, was by inheritance from the deceased husband Withreference to Weerasooriya v. Weerasooriya, Drieberg, J. stated that tillthe deed was set aside, the title to the } share claimed by the childrenof the widow remained in the transferee? and it was not at the dateof the action 15 property belonging to or included in the estate or effectsof the wife
With reference to the claim in Kandiah v. Karthigesu. Drieberg, J.said, “ The prayer is for a declaration that the signature to the discharge(of the Mortgage bond) and to the transfer be declared forgeries in order,so it was alleged, in paragraph 8, that the estate of Kanapathipillai andMootathamby might be administered and distributed among the heirs.
“ The action is therefore, one for property included in the estates ofthese persons. …
‘1 But it is well settled in later cases that where a. person desires toprove title to property deiived from a person who has died intestate, hemust prove either that the intestate estate is under Rs. 1,000/- in value,or if it is over Rs. 1,000/- in value, that administration has been takenout. (See Bonser C.J. in Fernando v. Dolchi *).”
We do not feel justified in giving to Bection 547 of the Civil ProcedureCode a wider meaning than the words ordinarily mean. There ie noambiguity in the words used in the section. The plaintiffs do not. afterthey restricted their claim at the trial, ask for any declaration of titleto property derived from the deceased. They are only claiming adeclaration that the deed in question was not executed by the deceased1 (1908) 3 Balaeinffham Reports 43.* (1901) £ N. L. R. IS.
WEERASOORIYA J.— Vinnasithamby v. Joseph
353
or was not her act and deed or that it was executed under undue influence.If they succeed in this aotion, it will be necessary for them to file anotheraction to recover the property from the defendants unless the defendantsvoluntarily give them possession of their shares in it.
If it becomes necessary for the plaintiffs to file a further action fordeclaration of title to the property as heirs of the deceased or to recoverpossession of it in that capacity, section 547 of the Civil Procedure Codewill come into operation and administration of the deceased’s estatewill become necessary.
We, therefore, set aside the Order of the learned District Judge layingby the case till Letters of Administration are taken to the estate of thedeceased Dingiri A mm a, alias Loku Kumarihamy and direct that thecase do proceed to trial.
We set aside the District Judge’s Order for Costs in favour of thedefendants. The Costs of the proceedings of 19/7/60 will be costs inthe cause. The Appellants are entitled to the Costs of this Appeal.
H. N. G. Feknando, J.—I agree.
Appeal allowed.