014-SLLR-SLLR-1991-V-1-WICKREMARATNE-v.-WICKREMARATNE.pdf
CA
Wickremaratne v. Wickremaratne (Wijeyaratne, J.)
203
WICKREMARATNE
V
WICKREMARATNE
COURT OF APPEAL
W.N.D. PERERA, J., AND WIJEYARATNE, J.
A. APPLICATION NO. 243/91WITH C.A. (L/A) NO. 35/91
C. MOUNT LAVINIA CASE NO. 1060/T23 JULY, 1991
Testamentary Action – Last Will – Due administration • Accounting tor rents received- Civil Procedure Code, Sections 712, 714 and 716 – Citation under S. 712.
A testator had devised a multi-storeyed building to three of his sons, one of whomhaving obtained probate was appointed administrator with the Will annexed and hemoved for a citation under section 712 of the Civil Procedure Code against one brother(a co-heir) on the ground that he had been appropriating all the rental from thisbuilding for some, time after the death of the testator. In the citation he called uponhis brother to account for and deposit to the credit of the testamentary case the rentalincome received. The estate duty had been paid.
Held:
In the absence of proof or averment that this rental income is required for the purposeof due administration of the estate, he was not entitled to such a citation.
Cases referred to:
Clare Fernando v. Rosa Fernando 9 NLR 65, 67
De Croos v Don Johannes 9 NLR 7
Cassim v. Marikkar (1892) 2 CLR 92
De Zcysa v. De Zoysa 26 NLR 477, 475
Silva v Silva 10 NLR 234
Chelliah v. Wijenathan 54 NLR 337
Public Trustee v. Karunaratne 40 NLR 429
Mohamed v. The Public Trustee 1978 – 80 1 Sri LR 1 ■
APPLICATION in revision of the order of the District Judge of Mount Lavinia
P.A.D. Samarasekera, P.C. with Gamini Jayasinghe for 4th respondent – petitioner
N.S.A. Gunatillake, P.C. with Miss. 1 R. Rajapakse for substituted petitioner -respondent
Cur.adv. vult.
17 September 1991
WIJEYARATNE, J.
In this case the deceased Don Martin Wickremaratne died on22.09.83 leaving Last Will No. 2885 dated 25.08.74 attested by V.A.Jayasinghe, Notary Public, and naming his wife, Lecamge DonJoslyn,. as the executrix. She filed Case No. 1060/T in the DistrictCourt of Mount Lavinia and she died in November 1985 before
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probate could be issued. The Last Will was duly proved and theestate duty has been paid as evidenced by. the certificate issued bythe Inland Revenue Authorities.
The substituted petitioner-respondent (Douglas Wickremaratne)applied for letters of administration with the Will annexed andaccordingly such letters of administration were issued to him.
The substituted petitioner-respondent, as administrator, filed anapplication dated 21.5.90 consisting of a petition and affidavit seekinga citation on the 4th respondent-petitioner (Mahinda Wickremaratne).
This petition and affidavit aver that the substituted petitioner-respondent, the 4th respondent-petitioner and the 7th respondent(Sunil Wickremaratne) are the owners of premises bearing No. 148Galle Road, Dehiwala, devised under the said Last Will and thesepremises consist of a multi-storeyed building having severalapartments which are rented out for business purposes and the rentswere collected and accounted for by the 4th respondent-petitioner upto December 1985, but that from January 1986 he has collected Rs.978,000/- which he has failed to distribute or deposit in the case.Therefore a citation was sought to compel the 4th respondent-petitioner to declare the rents and advances received and to havethem deposited in the case.
In consequence the court issued a citation dated 1.6.90.
The 4th respondent-petitioner filed objections dated 27.8.90 to thesaid application stating that as agreed the 4th respondent-petitionerhad collected rents for a certain period and paid to the substitutedrespondent-petitioner and the 7th respondent their respective shares,that there is no legal duty cast on the 4th respondent-petitioner tocredit the rental income to the case, that the substituted petitioner-respondent is in law not entitled to have a citation issued, and thatit was contrary to section 713(2) of the Civil Procedure Code.
When the case came up for inquiry before the Additional DistrictJudge on 30.10.90, a preliminary objection was taken that the citationhad no validity as it was issued to examine the 4th respondent-petitioner in respect of income allegedly received for a periodcommencing after the death of the deceased and that the citationought not to have been issued.
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Wickremaratne v. Wickremaratne (Wijeyaratne, J.)
205
After both oral and written submissions, the learned Additional DistrictJudge made order dated 18.02.91 overruling the preliminaryobjections and held that as the 4th respondent-petitioner had deprivedthe substituted petitioner-respondent and the 7th respondent of therents appropriated by him, the substituted petitioner-respondent isentitled to recover the money under section 712 of the CivilProcedure Code and ordered that an inquiry be held under the saidsection.
This present application was filed on 19.3.91 to revise the said orderof the learned Additional District Judge dated 18.2.91.
To this application the substituted petitioner-respondent has filedcounter-objections by an affidavit dated 20.6.91. One such objectionis that all parties who should have an interest in this application havenot been made parties. The 7th respondent has not been made aparty to this application.
The matter depends on the interpretation of sections 712, 714 and716 of the Civil Procedure Code which have to be read together.
Section 712(1) refers to “money or other movable property whichought to be delivered to the petitioner or which ought to be includedin his inventory and valuation".
Section 714(1) refers to “any money or other property of the testatoror intestate, or of which the testator or intestate was in possessionat the time of or within two years preceding his death”.
Section 716 refers to “money or other property of the testator orintestate".
These sections begin with a chapter headed “OF AIDING,SUPERVISING AND CONTROLLING EXECUTORS ANDADMINISTRATORS".
Grenier, A.J., in the case of Clara Fernando vs. Rosa Fernando (1)stated as follows:-
"The sections prescribing the procedure are taken from the NewYork Code of Civil Procedure relating to testamentary
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proceedings, and are admirably adapted for the speedy andeffectual discovery and conservation, for purposes ofadministration, of property belonging to an intestate estate whichhappens to be in the hands of a third party."
A consideration of these sections shows the these relate to itemsof money or property of the testator or intestate that have to beinventorised and valued. The object of section 712 is to enable anexecutor or administrator to file a correct inventory and valuation inaddition to collecting the assets of the estate (vide section 538 andForm 92 in the First Schedule to the Civil Procedure Code.)
In section 712(1) there is a two-fold description, namely, “money orother movable property that ought to be delivered to the petitioner,or which ought to be included in his inventory and valuation".
Then the question arises why property that ought to be included inthe inventory is mentioned. The answer to this appears to be that itis conceivable there may be instances where the executor oradministrator is not entitled to take immediate delivery of propertybelonging to the estate, as for instance property which is subject tolien or given out on hire purchase.
Section 714 brings in two categories –
any money or other property of the testator or intestate,or
of which the testator or intestate was in possession at the timeof or within two years preceding his death.
The two year period refers to the second category above andtherefore it does not apply to the facts of this case.
Then the question arises as to the meaning of the words "anymoney or other property of the testator or the intestate".
The object of interpretation is to discover the intention of thelegislature and this must be deduced from the language that hasbeen used. According to the ordinary literal meaning of these words,they refer to money of other property that the testator or intestateowned or which he was entitled to at the time of his death.
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Wickremaratne v. Wickremaratne (Wijeyaratne, J.)
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In this case when the Last Will was proved and the probate issuedthe title to premises No. 148, Galle Road, Dehiwala, vested in thethree heirs (namely, the substituted petitioner-respondent, the 4threspondent-petitioner and the 7th respondent). It has been held inDe Croos vs. Don Johannes (2), Cassim vs. Marikkar (3), and DeZoysa vs. De Zoysa (4) that no assent on the part of the executoris necessary to pass to the devisees immovable property which hasbeen specifically devised in the Will. It has also been held in theFull Bench decision of Silva vs. Silva (5) that title to immovableproperty belonging to a deceased does not vest in the administratorand a conveyance by an heir without the concurrence or the assentof the administrator is valid subject to the right of the administratorto deal with the property for the purposes of administration.
Similar observations have been made by Gratiaen J. in the case ofChelliah vs. Wijenathan (6).
Therefore, in this case, the title to this property has vested in thesethree heirs who have become co-owners subject to the right of thesubstituted petitioner-respondent as administrator to have recourseto such property for the due process of administration, as, forinstance, for the payment of estate duty or debts. The heirs maydeal with the property subject to the aforesaid rights of theadministrator who may require the same for the purpose ofadministration.
Mr. N.S.A. Gunatillake, P.C., for the substituted petitioner-respondentsubmitted that there is nothing in these sections which prevent theissue of a citation against a devisee. A citation can certainly beissued even against a devisee provided it is in respect of money orproperty belonging to the deceased and owned by the deceased atthe time of his death and which should be included in the inventoryand valuation of which is required for the purpose of dueadministration of the estate. The rents from these premises do notcome within this description. It is open to the substituted petitioner-respondent to file a separate action against the 4th respondent-petitioner to recover his proportionate share of the rents.
The substituted petitioner-respondent as administrator cannot file acitation under section 712 to discover rental income from thesepremises after the death of the deceased as this income belongs to
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the co-heirs, who have now become co-owners of this building,unless he requires the same for the purpose of due administration.There is no averment that this money (rental income) is required forthe purpose of due administration and hence the substitutedpetitioner-respondent is not entitled to obtain this citation.
In the case of The Public Trustee vs. Karunaratne (7) relied on bylearned counsel for the respondent, Mr. Gunatillake, an heir who wasentitled to one half share of a house was in occupation of the entirehouse without paying any rent. It was held that the administrator forthe purpose of administration was entitled to recover a reasonablerent (calculated at half the rental value) from this heir for the periodof his occupation. It should be noted that in this case this moneywas required for the purpose of administering the estate and thatmakes an important difference from the facts of this case.
The other case cited, namely, Mohamed vs. The Public Trustee (8)has no relevance to the present application.
For these reasons I allow the application and set aside the order ofthe learned District Judge dated 18.2.91. I uphold the preliminaryobjection.
I hold that the substituted petitioner-respondent is not entitled to acitation under section 712.
The substituted petitioner-respondent will pay the costs of thisapplication to the 4th respondent-petitioner.
W.N.D. PERERA, J – I agree.
Preliminary objection upheld.
Application allowed.