032-NLR-NLR-V-70-W.-A.-BUYZER-and-others-Appellants-and-P.-G.-ARIYARATNA-and-another-Responden.pdf
Buyzer v. Ariyaratna
139
1965Present : Tambiah, J., and Abeyesundere, J.W. A. BUYZER and others, Appellants, and P. G. ARIYARATNA
and another, Respondents
8. C. 54911962—D. C. Matara, 1150/L
Civil Procedure Code—Section 547—Suit for recovery of property left by a teetcuor—Failure of plaintiff to produce probate—Action not maintainable.
Where & person sues for the recovery of immovable property and baseshis title on the Last Will of a person whose estate amounted to or exceeded invalue Rb. 2,500, section 547 of the Civil Procedure Code debars him frommaintaining the action unless he produces the probate.
140
TAMBIAH, J.—Buyzer v. Ariyaratna
A.PPEAL from a judgment of the District Court, Matara.
H. W. Jayewardene, Q.C., with W. D. Gunasekera and B. Eliyatambyfor Plaintiffs-Appellants.
A. F. Wijemanne, for 1st Defendant-Respondent.
February 1, 1965. Tambiah, J.—
The plaintiffs-appellants brought this action for a declaration of titleto the land described in the schedule to the plaint and for an order toeject the defendant from the said premises. He based his title on analleged joint Last Will said to have been executed by PannigalagamageDon Salaman de Silva and Margaret Buyzer in deed No. 3465 dated9th February, 1930. The probate has not been produced during thecourse of the trial. Section 547 of the Civil Procedure Code enacts :
“ No action shall be maintainable for the recovery of any property,movable or immovable, in Ceylon belonging to or included in theestate or effects of any person dying testate or intestate in or outof Ceylon, where such estate or effects amount to or exceed in valuethe sum of two thousand five hundred rupees, unless grant of probateor letters of administration duly stamped shall first have been issuedto some person or persons as executer or administrator of such testatoror intestate ; ”
Section 547 of the Civil Procedure Code is a bar for maintaining thisaction where a person claims title from the deceased and relies on a willunless he produces the probate. It was brought to our notice that inview of the ruling in 48 N. L. R. page 566 this section is no longer inoperation. Whatever may be the historical reason for enacting thissection it is still on the statute book and a Court of Law cannot ignorethe provisions of Section 547.
Therefore the learned judge should not have proceeded with the action.Mr. Jayewardene submitted that the only order the learned DistrictJudge could have made is to lay by the action but it seems to me thatit is open to the District Judge to dismiss the action for not following theimperative provisions found in Section 547 of the Civil Procedure Code.In this case I think the ends of justice would be met if the plaintiffs’action is dismissed on the footing that he failed to comply with Section547 of the Civil Procedure Code. Since this action is being dismissedon the technical ground that order should not operate as res judicataand I give him the opportunity to file a separate action. I
I set aside the order of the learned District Judge and dismiss theplaintiffs’ action but I give him an opportunity to file a fresh action.
SILVA, j.—Martin v. Kandy Police,
Ui
The 1st defendant-respondent is entitled to the costs of this appeal*The respondents are entitled to costs of trial.
Abbyesundere, J.—I agree.
Action dismissed.