020-NLR-NLR-V-77-W.-S.-FERNANDO-AAppellant-and-W.-E.-J.-DABARERA-Respondent.pdf
H. N. G. FERNANDO, C.J.—Fernando v. Dabarera
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1971 Present: H. N. G. Fernando, C.J., and Samerawickrame, J.
W. S. FERNANDO, Appellant, and W. E. J.
DABARERA, Respondent
S. C. 373/68 (F)—D. C. Chilaw, 17874
Civil Procedure Code—Section 547—Action for recovery of immovableproperty of a testator or intestate—Maintainability if the name ofthe property is not specified in the Inventory filed in the testa-mentary action.
When an action for declaration of title to a land belonging to adeceased person’s estate is instituted by a person claiming to be asuccessor in title of the deceased, section 547 of the Civil ProcedureCode does not expressly prohibit the maintenance of the action onthe ground that the name of the land is not included in the Inven-tory filed in the testamentary action relating to the estate of thedeceased owner. In such a case the burden of establishing that theparticular land was not included in the Inventory must lie on theparty who takes such objection.
.AlPPEAL from a judgment of the District Court, Chilaw.
M.S. M. Nazeem, for the plaintiff-appellant.
W. D. Gunasekera, for the defendant-respondent.
Cur. adv. vult.
September 13, 1971. H. N. G. Fernando, C.J.—
The plaintiff brought this action for a declaration of title to aland called Ehetugahawatte, claiming to be a successor in titleof one Quintin Dabarera who had died intestate, and whoseestate had been administered in D. C. Chilaw (Testy.) No. 2174.The action was dismissed on the ground that this land had notbeen included in the Inventory of the estate of Quintin Dabarera.
Section 547 of the Civil Procedure Code does not expresslyprohibit the maintenance of an action relating to land on theground that it was not included in the Inventory of the estate ofa deceased owner. Hence, in a case where probate or letters ofadministration have (as here) in fact been issued, the burden ofestablishing that a particular land was not included in the Inven-tory must lie on the party who takes such an objection. Indeed, Ihave doubts whether the practice of entertaining the objectionin such a case is justified by the terms of s. 547.
No land called “ Ehetugahawatte ” was included in the Inven-tory filed in the Testamentary case relating to the estate ofQuintin Dabarera. But land No. 23 was described in the Inventoryas “ The residing land (i.e. of Dabarera) … .in extent 1£ acres
128
Perera v. To tun Council, Makaragama
According to the evidence in the present action, the land called“ Ehetugahawatte ” is bounded on the south and east “ by theland of Quintin Dabarera ”, and before the plaintiff purchased itthere was no fence separating it from the other adjoining Isoldof Quintin Dabarera. It is therefore quite possible that both landswere possessed as one, and were inventorized as one land inextent 1J acres.
The learned trial Judge was impressed by the fact that theInventory did not mention any land named “ EhetugahawatteBut even in the case of item No. 23, the name of the “ residingland of li acre ” is not specified. Thus the omission to specify thename of a land in the Inventory would not justify the assumptionthat it was not in fact inventorized.
I am therefore of opinion that the defendant in this case failedto prove that this land was not included in the Inventory filed inthe Testamentary case, and I hold that issues Nos. 6 and 7 haveto be answered in favour of the plaintiff.
The decree dismissing the plaintiff’s action with costs is setaside, and the case will proceed to trial upon the other issues. Thecosts of this appeal will abide the ultimate event.
Samerawickeame, J.—I agree.
Appeal allowed.