075-NLR-NLR-V-31-WILSON-v.-EMMANUEL.pdf

Present Fisher G.J. and Drieberg J.
WILSON v. EMMANUEL.
189—D. C. Jaffna, 5,408,
Probate—Sealingof foreign probate—Probate issued atMadras—
British possessions—British and Colonial Probate Ordinance,No. 7 of 1921, s. 4.
Recognition of probate or letters of administration undersection 4 of the British and Colonial Probate Ordinance, No. 7 of1921, may be obtained with respect to only those granted inBritish possessions to which the Ordinance is made applicable byproclamation.
The Ordinance does not preclude an application from beingmade under section 539 (c) of the Civil Procedure Code on a properexemplification of the foreign probate.
^ PPEAL from an order of the District Judge of Jaffna.
One A. R. A. R. S. M. Somasunderam Chetty died in Ceylonleaving a large estate. On the footing that he left no will, lettersof administration were issued in the District Court of Jaffna to theSecretary of the Court as official administrator. SomasunderamChetty left as his heirs three sons, who were adjudicated insolventin Madras. Subsequently a last will purporting to be the will ofSomasunderam Chetty was discovered in India, it was provedin the Madras High Court and letters of administration cum testa-mento annexo were issued to the official assignee in Madras of theinsolvent estate of the said three sons of Somasunderam Chetty.
In the present case the appellant, the said official assignee, towhom letters had been issued in Madras, filed a petition and affidavitalong with a certified copy of the said letters and asked that thesaid letters be sealed with the seal of the Jaffna Court under theprovisions of section 4 of Ordinance No. 7 of 1921, and also that theletters already issued to the Secretary of the District Court of Jaffnabe recalled. The District Judge refused the application as it hadnot fully complied with the requirements of Ordinance No. 7 of 1921.
1929
( 284 )
1#29. H. V. Perera (with Subramaniam and Thiatjarajah), for petitioner,Wilson v. appellant.—The petitioner has substantially complied with theEmmanuel provisions of Ordinance No. 7 of 1921. Even if he is not entitled toclaim the benefits allowed by the Ordinance, still he can under theprovisions of section 539 (e) of the Civil Procedure Code on theexemplification produced ask that recognition be given to theletters issued by the Madras Court and probate of the copy be.grauted. No good reasons have been shown why the Ceylon Courtshould not follow the decision of the Madras Court as to the grantof the letters, an exemplification of which was before Court.
Counsel cited In- re Estate of Sinne Thambi Poothepillai. 1C. V, Kanaicake, for the official administrator, respondent.—The application has been made under the special procedure laiddown in Ordinance No. 7 of 1921, no alternative remedy has beenasked; the application was rightly refused inasmuch as there wasno proof under section 3 of the Ordinance that the Ordinanceapplied to probate or letters issued by the Madras High Court.
As to the alternative remedy now asked, the original applicationitself does not contain a prayer to this effect. An applicationunder section 539 (c) of the Civil Procedure Code should be made indue form and on proper material. Further, the recall of the lettersalready issued could not have been allowed inasmuch as undersection 536 of the Civil Procedure Code there- has been no proofeither that the present letters should not have been granted or thatthe present administration has been rendered “ impracticableand useless.”
November 25, 1929. Fisher C.th-in this case the appellant petitioned the .District Court of Jaffnato order that “ the letters of administration with the will annexedgranted to the petitioner by the High Court of Madras and alreadyfiled of record be resealed by this Court in terms of section 4 .ofOrdinance- No. 7 of 1921.” He also asked “ that letters ofadministration already granted to the official administrator berecalled.” In the absence of any proclamation under section 3 ofOrdinance No. 7 of 1921, that Ordinance clearly does not apply,and I think in view of the necessity of requiring a strictness ofprocedure under the circumstances in this case that was sufficientto justify the dismissal of the petition.I do not think, however,
the passing of that Ordinance can be taken to have anyeffect on the decision of D. C. Jaffna (Testamentary), 702:In the Matter of the Estate of the late Sinne Tamby Poothepillai.2That Ordinance merely provides an alternative' method of procedurein such cases, if any, to which it may be applicable. The method ofestablishing the authenticity of a will made elsewhere than in Ceylon' (1S96) 2 A'. L. li. 214.1IJ896) 2 Ar. L. R. 214.
is not affected by the Ordinance. As regards the prayer for recallof the letters of administration no case was made out that eventshad occurred which rendered the administration “ impracticableor useless.” It would be perfectly easy for the administrator,if so advised, to apply to alter the footing of his administration.In dismissing the appeal the learned Judge has given the appellantleave to renew his application “ in proper form and on propermaterial.” That part of his order will stand, and it will be opento the appellant to take such steps as he may be advised to obtainthe decision of the Court as to whether he is entitled to administerthe estate and is the proper person under all ’the circumstancesto be appointed to do so.
The appeal is dismissed with costs.
Driebkrg J.—I agree.
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1929.
FlSHBB C.J.
Wilson v.Emmanuel
Appeal dismissed.