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UDUMA LEBBE v. SEYADU ALX.
D. C., Kurunegala, No. 857.
Recovery by an heir of property of an intestate’s estate without administra-tion—Ceylon Civil Procedure Code, s. 547.
Section .547 of the Civil Procedure Code does not apply to casesin which the plaintiff, after the death of the late owner, got intopeaceful possession of the deceased’s property, whether movableor immovable, and where the cause of action is the dispossessionof the plaintiff of property lawfully in his possession, and not thewrongful detention by the defendant of the deceased’s property ofwhich the plaintiff never had possession.
Serhble, per.Withers, J., that section 547 does not prohibit anheir from asking merely for a declaration of title to his ancestor’slands.
^pHE facts of the case appear in the judgment of Withers, J.
Sampayo, for appellant.
Wendt, A. 8.-0., for respondent.25th Jane, 1897. Lawbie, A.C.J.—
Cur. adv. wit.
The 547th section of the Code seems to me to apply only to therecovery of property to which the plaintiff alleges right as theheir of .a deceased.
No action for the recovery of any part of an estate worth Rs. 1,000can be maintained until grant of probate or letters of administrationhave been issued to some person (not necessarily the plaintiff).
The section seems to me not to apply to cases in which theplaintiff, after the death of the late owner, got into peaceful posses-sion of the deceased’s property, whether movable or immovable,and where the cause of action is the dispossession of the plaintiffof property lawfully in his possession, and not the recovery ofproperty which he never possessed at all-
in the present case the plaintiffs were the surviving husbandand the children (some of them minors) of a Moorish woman, who,the plaintiffs allege, died seized and possessed of a land..
I think it is clear that the plaintiffs did not get possession ofthe land and were not dispossessed of it. When the next cultivat-ing season after the death of the Moorish woman came round,the defendants were the first to come forward to plough, assertinga title superior to that of the deceased.'
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In the same way the defendants were the first to take steps topluck the nuts, and they intimated to the plaintiffs that theywould resist any interference.
In the circumstances, my opinion is that the plaintiffs cannotmaintain this action because letters of administration have notbeen issued to a legal representative.
I do not recommend a declaration of the plaintiff’s title. I donot say it would be beyond the Court’s power, but might it notembarrass the administrator, who doubtless will be appointed, tofind that prior to his appointment in an action to which he neeess-sarily was no party the question of the legal title to the land hadbeen decided ? What would be the effect of such a declarationon the right of the administrator to sell the land for the debts ofthe deceased ? What if other claims were made by the Moham-medan relatives ?
I think it is safer to dismiss this action as instituted in circum-stances under which the 547th section enacts an action cannot bemaintained.
The plaintiffs seek to recover in this action two gardens and afield from the defendants, who they allege took forcible possessionof the same from the plaintiff some five months before the institu-tion of these proceedings, denying the plaintiffs’ right thereto.
The defendants, it is further alleged, have continued to remainin unlawful possession of the premises, and the plaintiffs ask thatthe defendants may be ejected, and that they themselves may berestored to possession of the lands so withheld from them. It isaverred in the plaint that these lands form part of the estate ofthe late Marino Natchia alias Pitchcha Umma, who died abouta year before this action, intestate, leaving the plaintiffs her solenext of kin.
The plaintiffs also aver that on the death of their ancestor theyentered into possession of her estate, including the lands indispute.
They further plead that at the date of the alleged dispossessionby the defendants they and the said Natchia before them were for,ten years in such adverse and uninterrupted possession of thepremises as to entitle them on that account to a decree in theirfavour in terms of section 3 of Ordinance No. 22 of 1871.
They therefore ask for a declaration of title to these premisesas well as for the other relief mentioned. Again, to meet anyobjection that might be raised under section 547 of the CivilProcedure Code, the plaintiffs aver that the estate of the lateNatchia was worth less than Rs. 1,006 in value.
June 18 and88.
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June IS and26.
The question of value of Natchia’s estate was one of the issuestried and determined. On this issue judgment was given againstthe plaintiffs, and the District Judge dismissed their action, feelingcompelled to do so by the provisions of section 547 just referredto. The question of title was also tried and determined, and onthis issue the Judge pronounced in plaintiffs’ favour. The provi-sions of section 547 of the Civil Procedure Code have not, as faras I am aware,- been judicially construed. So we must now considerthat section. Section 547 enacts :—
No action shall be maintainable for the. recovery of any property,movable or immovable, in Ceylon, belonging to or included in the estateor effects of any person dying testate or intestate in or out of Ceylon,where such estate or effects amount to or exceed in value the sum of onethousand rupees, unless grant of probate or letters of administrationduly stamped shall first have been issued to some person or persons asexecutor or administrator of such testator or intestate : and in theevent of any such property being transferred without such probate oradministration being so first taken out, every transferor and transfereeof such property shall be guilty of an offence and liable to a fine notexceeding one thousand rupees ; and in addition to any fine imposed.under the provisions of this section it shall be lawful for the Crownto recover from such transferor and transferee, or either of them,such sum as would have been payable, to defray the cost of such stampsas would by law have been necessary to be affixed to any such probateor letters of administration. And the amount so recoverable shall be afirst charge on the estate or effects of such testator or intestate inCeylon, or any part of such estate or effects, and may be recovered byaction accordingly.
We shall be better able to construe this section when we bearin mind the state of the law regarding the administration ofintestate estates which obtained at the time when the ProcedureCode came into operation, eg., August, 1890. Estates of smallvalue, ultimately fixed I think at Rs. 500, could be administeredby the heirs-at-law without letters of administration. Next ofkin to an intestate estate of whatever value could bring an .actionagainst third parties in possession claiming an adverse title for thepurpose of obtaining a declaration of title to specific immovableproperty. The surviving parent, where the parents were marriedin community of estate, could dispose of the common estate inorder to discharge debts incurred while the marriage subsisted.In such a case the next of kin of the deceased parent dying intestatecould not recover property so sold from the purchaser. I am notaware that in such cases the value of the deceased parent’s estatewas material one way or .the other. This section henceforth makesthe transfer of any paft of an estate, movable or immovable,where the estate, or effects0 amount to Rs. 1,000 or' more,without letters or probate an offence rendering the offender liableto a fine not exceeding Rs. 1,000 and in addition the Crownmay recover from such transferor 6r transferee the amount of
duty which letter or probate for the administration of the entireestate involves. Now, the recovery of any property, movable orimmovable, signifies that some one detains it if it is tangible, oris bound to make good some demand if it is intangible.
June IS and25.
The 35th section of the same Code marks the distinction betweenan action for the recovery of immovable property and one to obtaina declaration of title to immovable property, for it enacts that inneither action shall any other claim but those specified in thatsection be joined unless with- leave of Court. It was urged byMr. Sampayo that as the plaintiffs were in possession of the threelands at the date of ouster they were suing in their own right,and not as part of their ancestor’s estate. The plaintiffs no doubtpray for a decree under Ordinance No. 22 of 1871, but the conti-nuity of possession between ancestor , and next of kin depends ontheir right of succession as next of kin, and I think it would, bean evasion of the Ordinance to allow them to recover the lands onthe ground of the united possession. If this was purely a possessoryaction I think much might be said in plaintiffs’ favour., but I wouldrather not determine that question till the case arises. In myopinion the plaintiffs were not in possession of these propertiesat the time the defendants asserted their claims with threats ofusing force if they were interrupted.
Then Mr. Sampayo asked us for a judgment declaring plaintiffsentitled to these three lands if we were not prepared to eject thedefendants and give possession to the plaintiffs.
Mr. Wendt, for the respondent, objected to this, on the ground’I understood him to say, that it would be tantamount to a splittingof actions and an evasion of section 34 of. the Code, which enactsthat “ every action shall include the whole of the claim which the“ plaintiff is entitled to make in respect of the cause of action,“ and if he omit to sue in respect of any portion of his claim he shall“ not afterwards sue in respect of the portion omitted.” But ifsection 547 prohibits the plaintiffs from recovering these landsand does not prohibit them from asking for a declaration of title,then section 34 does not apply. Take this case : An heir-at-lawfs entitled to succeed to certain immovable property, if it all belongsto his immediate ancestor. The whole property is worth Rs. 1,500.A part of that property is of doubtful title. He can afford to takeout letters if the whole property belongs to his ancestor’s estate,but he cannot afford to pay the,duty and risk the expenses oflitigating about the doubtful title. Why should he not, if thecircumstances of the case permit it, bring an action to settlethe question of the disputed title ? If he succeeds he will bein a much better position to borrow money, if he has not
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June 18 and26.
sufficient in hand to pay for the duty attaching to letters ofadministration of the entire estate.
As at present advised I see no objection to give the plaintiffs ajudgment declaring them entitled to the premises. Of course wemust be careful not to assist plaintiffs in evading any enactmentfor the benefit of the revenue, and it might be that we ought toattach such a condition to our judgment as will prevent theplaintiffs having these lands delivered up to them without taking outletters for the administration of Natchia’s estate.
Since writing the above draft I have had the advantage of readingthe draft of the Acting Chief Justice’s opinion. I am content tomake the order which he advises. It is a pity that more than thequestion of value of the estate was tried at a time. The issue onthe question of title has been fought for nothing.
UDUMA LEBBE v. SEYADU ALI