A. E. EBERT and two others, Petitioners, and THE ADDITIONAL PUBLIC TRUSTEE, an

034-NLR-NLR-V-78-A.-E.-EBERT-and-two-others-Petitioners-and-THE-ADDITIONAL-PUBLIC-TRUSTEE-an.pdf


264
PATH1BAXA, a.-—Ebert v. The Additional Public Trustee
Present: Pathirana, J., Vythialingam, J., and
Colin-Thome, J.
A. E. EBERT and two others, Petitioners, and THE ADDITIONALPUBLIC TRUSTEE, and three others, Respondents
S. C. 867/74—In the matter of an Application for a mandate inthe nature of a Writ of Certiorari and of Prohibition under theProvisions of the Administration of Justice Law No. 44 of 1973
Administration of Justice Law No. 44 of 1973—Last Will—Reference ofmatters in dispute to District Court by Public Trustee-Jurisdiction of Public Trustee to make orders while reference tocourt is pending—Sections 284, 286, 295, 296, 308(5).
Held : (1) Once the Probate Officer has referred the matters indispute for adjudication to the District Court in terms of Section284 of the Administration of Justice Law No. 44 of 1973, neitherhe nor the Public Trustee has jurisdiction to hold an inquiry andmake an order under section 286(2) of the said Law, before theCourt has proceeded to hear and determine the matters in issue
PATBIRANA, J.—Ebert v. the Additional Public Trustee
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Section 295 cannot be utilized by the Public Trustee to makea grant of probate or letters of administration, once a reference hasbeen made to Court and the reference is pending.
Section 308(5) does not empower the Public Trustee toappoint any person as executor or administrator.
Section 284 is wide enough to cover a reference to the Courtto decide the conflict of claims of persons for the grant of probate.
Acquiescence in and participation in proceedings before atribunal which has manifestly no jurisdiction to hear and determineany matter will not give that tribunal jurisdiction or legality toits proceedings.
Application for Writs of Certiorari and Prohibition.
M. Sivananthan for the Petitioners.
K. C. Kamalasabayson, State Counsel, for the 1st and 2ndRespondents.
M. Kanagasunderam, for the 3rd respondent.
S. Mahenthiran, for the 4th respondent.
Cur. adv. vult.
May 3rd, 1976. Pathirana, J.—
The petitioners filed petition and affidavit along with the LastWill of the deceased A. P. Rowlands in the District Court ofColombo on 9.8.72 in D. C. Testamentary Case No. 26592 prayingthat an order be made declaring that the petitioners are theexecutors named in the Last Will and that probate of the saidLast Will and testament be granted to them. The District Courtmade order nisi declaring the petitioners the executors of thesaid Last Will entitled to probate.
The 3rd respondent filed his objections in September 1972challenging the validity of the Last Will on the ground interalia that the Last Will was not the free and considered act ofthe deceased and moved Court to vacate the order nisi declaringthe petitioners the executors of the Last Will and also movedfor a declaration that the said Last Will is null and void.
The 4th respondent by objections dated 11.7.73 moved thatthe application of the petitioners for grant of probate be refusedas the petitioners were not fit and proper persons and furthermoved that the letters be granted with the Will annexed tothe 4th respondent to enable her to administer the estate asshe was the sole beneficiary under the Will. The 4th respondent’sobjections were first taken up for inquiry. The inquiry wasfixed for 13.5.74. While the inquiry was pending the Adminis-tration of Justice Law No. 44 of 1973 came into operation andthe record in the District Court case was transferred to the-
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PAT} II RAN A, J.—Ebert v. The Additional Public Trustee
Probate Office, Colombo zone, in accordance with the provisionsof the Administration of Justice Law. When the matter wastaken up before the Probate Officer on 25.3.74 on the basis thatthe order nisi entered by the District Court was deemed to bethe interim order within the meaning of Section 283 of theAdministration of Justice Law, the Probate Officer acting underSection 284 raised certain issues and referred the matters indispute to the District Court, Colombo for adjudication. TheOrder reads as follows :
“ Under Sec. 284 Part III of the Administration of Justice
Law, I refer the matter in dispute to the District Court of
Colombo for adjudication on the following issues :
Is Last Will No. 231 filed of record attested by N.
Chelliah N.P. valid and acceptable in law. If so :
Are the petitioners entitled to probate on the Last Will.
Are the petitioners fit and proper persons to be granted
Probate ?
Is the 2nd respondent as the sole beneficiary named
in the Will entitled to letters of administration with
the will annexed and,
Is the 2nd respondent entitled in the first instance to
the immediate possession and custody of all movables
of the deceased ?
Forward record to D. C. Colombo.”
The matters in dispute therefore were, firstly, whether theLast Will was the act and deed of the deceased and secondlywhether the 4th respondent (referred to in the order as the 2ndrespondent) or the petitioners were fit and proper persons to begranted letters of administration with the will annexed. TheProbate Officer made order forwarding the record to the DistrictCourt, Colombo.
On 29.3.74 the 3rd respondent appeared before the Probateofficer and stated that he wished to withdraw his objectionsin the event of 4th respondent being granted letters of adminis-tration with the will annexed. The 4th respondent also movedthat being the sole beneficiary under the Last Will she be givenletters of Administration with the will annexed and objectedto the grant of probate to the petitioners.
The Probate Officer thereupon made an order that the lettersof administration with the Last Will annexed be issued to thesole beneficiary, the 4th respondent, after the Certificate fromthe Commissioner of Inland Revenue was received. The orderof 25.3.74 to forward the record to the District Court was vacated.
PATHIRANA, J.—Ebert v. The Additional Public Trustee
207
On 24.4.74 Counsel appearing for the petitioners, made repre-sentations to the Additional Public Trustee, the 1st respondent,in respect of the order of 29.3.74 made by the Probate Officerat the inquiry which was held on that day, at which thepetitioners were absent and not represented. The petitionersalleged that they had no notice of the inquiry that was heldon 29.3.74. An inquiry into this application was held on 23.5.74before the Additional Public Trustee, the 1st respondent, atwhich the petitioners represented by Counsel, the 1st respondentin person, and the 4th respondent represented by Counsel, werep: "sent. The 1st respondent formally entered an interim orderand indicated that the objections filed will be deemed objectionsto the interim order.
After hearing the parties, the 1st respondent on 24.6.74 madean order purporting to act under Section 286 (2) of the Adminis-tration of Justice Law entering final order granting letters ofAdministration with the copy of the Last Will annexed to the4th respondent. The 1st respondent in doing so was influencedby the fact that the sole beneficiary the 4th respondent wasopposed to the petitioners, as executors named in the will,executing the provisions of the will and it was thereforenecessary to safeguard the interests of the beneficiary. Therelevant portion of the order reads as follows :
“ In the interests of the beneficiary and towards theexpeditious disposal of these proceedings in terms of Section286 (2) of the Administration of Justice Law No. 44 of 1973,
I direct final order be entered granting letters of administra-tion with the copy of the Last Will to Daphne MurielDrieberg.”
This order is therefore in the same terms as the order madeby the Probate Officer, the 2nd respondent on 29.3.74. In anyevent, as we shall show, the 1st and 2nd respondents could nothave made these orders as in view of the conflict of claims tothe grant of probate or letters of administration, these respon-dents had a statutory duty under Sec. 284(1) to refer the matterin dispute for adjudication by the appropriate District Court.
Mr. Sivananthan, Counsel appearing for the petitioners, hassubmitted that the orders made by the 2nd respondent on29.3.74 and by the 1st respondent on 29.3.74 are orders which theyhad no right to make, in view of the order made by the ProbateOfficer on 25.3.74 under Section 284 of the Administration ofJustice Law referring the matters in dispute for adjudicationby the District Court of Colombo. His submission was that onceany person upon whom the interim order had been served orany other person appearing to be interested in the administra-tion of the »«ta+CT the deceased, objects to the interim order.
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PATH f RAX A, J.—Ebert v. The Additional Public Trustee
the Public Trustee having referred the matter in dispute foradjudication to the District Court, the Public Trustee wasfunctus and had no jurisdiction to hold any inquiry and tomake the impugned orders. On behalf of the 3rd and 4threspondents it was submitted, on the other hand, that theProbate Officer or the Public Trustee was vested with thenecessary jurisdiction to make the orders dated 29.3.74 and24.6.74 and sought to justify the orders firstly under Sections 295and 308 (5) of the Administration of Justice Law.
Chapter III of the Administration of Justice Law deals withtestamentary procedure. By Section, 276 the Public Trustee(which person includes an additional Public Trustee, a DeputyPublic Trustee or any other State Officer generally or speciallyauthorised by the Public Trustee to act on his behalf for thispurpose (Sec. 314(1) ) is the sole competent authority for thepurpose of granting of probate or letters of administration inrespect of the property of a deceased person and for dealingwith all matters relating to or connected with the grant ofprobate and letters of administration.
Under Section 280 (1) when a person dies leaving a will underor by virtue of which any property in Sri Lanka is in any wayaffected the person appointed executor therein or any otherperson interested either by virtue of a will or otherwise mayapply to have the will proved and to have probate thereof orobtain grant of administration of the estate with a copy of thewill annexed as the case may be issued to him. Section 281 (1)deals with the case of any person dying leaving property in SriLanka and without making a will or where the will cannot befound in which case, the widow, the widower or next ofkin of such person or any other person interested can apply forthe grant of the letters of administration. If the Public Trusteeis satisfied that the material averments of an application madeunder Section 280 or 281 are prima facie proved, then underSection 283 he shall make an interim order declaring theapplicant’s status accordingly and making the grant prayed for.Every interim order shall be served on the applicant and theheirs of the deceased and or such other person as the PublicTrustee shall consider necessary. Unless cause is shown to thecontrary on or before the date specified therein the interimorder shall be made final- If within the specified period, thethe persons on whom the interim order had been served notifythe Public Trustee that they consent to the grant, the PublicTrustee shall make the interim order final (Sec. 286 (1) ).
Section 284 (1) sets out that if within the specified period anyperson upon whom the interim order shall be served or anyother person appearing to be interested in the estate of the
PATH rRANA, J.—Ebert v. the Additional Public Trustee
269
deceased objects by affidavit, the Public Trustee shall refer thematter in dispute for adjudication to the appropriate DistrictCourt. In this case on 25.3.74 the Probate Officer had referredthe matter in dispute to the District Court of Colombo. UnderSection 284 (2) every reference under this Section shall be inwriting and shall set out concisely the issues required for ad-judication by the Court. The Public Trustee shall also presentto such Court all documents relevant for the proper adjudicationof such matter. The Probate Officer in this case has framed therelevant issues in his order dated 25.3.74.
Upon reference made the District Court shall hear and deter-mine the issues and shall at the conclusion of its hearing commu-nicate its order to the Public Trustee and to 'the parties.(Sec. 285 (1)). A party aggrieved with the order of the DistrictCourt may prefer an appeal to the Supreme Court against suchorder for any error of the law within a period of 14 days of suchorder. (Sec. 285 (2) ) – The order of the Supreme Court or whereno appeal has been preferred the order of the District Courtshall be final and conclusive and shall bind the Public Trustee(Sec. 285 (3) ). Section 285 therefore lays down in categorialterms that once a reference has been made to the appropriateCourt, the determination of the issues by the Court is not onlyfinal and conclusive but is binding on the Public Trustee.
At this stage it will be relevant to consider the purpose andscope of Section 286 of the Administration of Justice Law. Ifany person having objected and the objections have been referredfor adjudication by Court and the order of the Court havingbeen taken into consideration the Public Trustee is satisfied thatthe prima facie proof of the material averments of the applica-tion have not been rebutted, the Public Trustee shall make theinterim order final (Sec. 286 (1) ). In the event of an objectorestablishing this right to have grant of probate or letters ofadministration issued to him instead of to the applicant, then thePublic Trustee 3hall make final order accordingly. (Sec. 286 (2) ) .If on the other hand the Public Trustee is satisfied that primafacie proof of the material averments in the application havebeen rebutted, the Public Trustee shall revoke the interim order.(Sec. 286 (3) ) .
In our view, Section 286 (1), (2) and (3) are integrally con-nected and linked with Section 284 (1) and operate as a sequelthereto. It would therefore mean that if the objector fails in theDistrict Court or the Supreme Court then under Section 286 (1)the Public Trustee shall make the interim order final. On theother hand, if the Public Trustee is satisfied that the prima facieproof of any material averment in the application had been re-butted consequent to the order of the District Court or the
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PATH I RAN A, J.—Ebert v. The Additional Public Trustee
Supreme Court, the Public Trustee shall revoke the interimorder (Sec. 282 (2) ). In short, once the Public Trustee refersthe matter for the Court’s adjudication the decision of the Courtis final and conclusive and shall bind the Public Trustee. ThePublic Trustee being the sole competent authority under thescheme of the administration of Justice Law relating to testa-mentary procedure makes the final order formally grantingprobate or letters of Administration. This jurisdiction is takenaway from the Courts and is vested in the Public Trustee. Thejurisdiction of the Court is to adjudicate on the issues referredto it by the Public Trustee. Once such reference is made thenthe Public Trustee is bound by the order made by the Court.He has no jurisdiction to hold any inquiry and make any ordershe thinks fit in the interval on the matters already referred tothe Court. Even under Section 291 where the grant of probateor letters of administration had been made the Public Trusteeis empowered at any time at the instance of any person inter-ested to revoke or recall such grant upon being satisfied thatthe will ought not to have been held proved, or that the grantof probate or letters of administration ought not to have beenmade or events have occurred which render the administrationthere under impracticable or useless. This power is, however,subject to the provisions of Section 285 (3) we have referredto earlier. Section 285 (3) states that the order of the SupremeCourt or where no appeal has been preferred, the order of theDistrict Court, shall be final and conclusive and shall bind thePublic Trustee. So that where a reference has been made andthe Court has made an order thereon the Public Trustee isdebarred from acting even under Section 291.
Mr. Kanagasunderam, who appeared for the 3rd respondent,and Mr. Mahenthiran, who appeared for the 4th respondentnext relied on Section 295 of the Administration of Justice Lawto support their contention that despite the reference to Court,the Public Trustee is vested with jurisdiction to make the orderswhich had been challenged in this case. We shall quote thisSection : —
“ Sec. 295 (1) :
In the case of a conflict of claims to have the will provedand grant of administration issued, the claim of an Attorneyof an executor shall be preferred to that of all others, andthe claim of a creditor shall be postponed to the claim of anintestate heir where the residuary estate is not wholly dis-posed of or of a residuary legatee or devisee under the will.
(2) In the case of a conflict of claims for grant of administration upon intestacy, the claim of the widow or widowershall be preferred to all others and the claim of an heir tothat of a creditor.
PATHIRANA, J.—Ebert v. The Additional Public Trustee
271
Provided, however, that the Public Trustee may for goodcause supersede the claim of the widow or widower. "
This Section is one of the series of Sections which comes underthe heading “Directions to the Public Trustee". We do not thinkthat the Public Trustee when he acts under Section 295 can doso in cases where reference has already been made to the Courts.There are instances under the scheme of the Administration ofJustice Law governing testamentary procedure where thePublic Trustee can make a grant of probate or letters of adminis-tration in certain limited circumstances- For example, if underSections 281, 282 and 283 there are more applicants than oneand the Public Trustee is called upon to make an interim order,he can decide on the conflict of claims by resorting to Section295 (1). Likewise under Section 296 where any legal proceedingstouching the validity of a will of a deceased person or relating togrant of probate or letters of administration are pending thePublic Trustee can either on the grounds of undue delay orotherwise grant letters of administration of an estate of adeceased to an administrator limited for the duration of suchperiod, he can utilize Section 295 in the case of conflict ofclaims. Section 295 (1) in our view, cannot be utilized by thePublic Trustee once a reference has been made to Court andthe reference is pending.
It was also sought to justify the orders made under Section308 (5) which reads as follows : —
“Sec. 308 (5) :
Where any person dies leaving property amounting to orexceeding twenty thousand rupees in value and the PublicTrustee, upon representations or information received inthat behalf, is of opinion that the estate is likely to be inter-fered or intermeddled with and that the assets of the estateare likely to be in jeopardy of being lost to the heirs or toother persons lawfully entitled to or having any interest inthe same, the Public Trustee may in his absolute discre-tion—
take charge of such estate until the same shall be
claimed by some executor or administratorlawfully entitled to administer the same ; or
take an inventory of such estate and authorise any
person in possession of such estate or any otherfit and proper person subject to his giving secu-rity or otherwise, to continue in possession or totake possession, as the case mav be ; or
272PATHIRANA, J.—Ebert v The Additional Public Trustee
take such other steps for the protection of theestate as may be necessary or expedient inthe particular circumstances of the case.
We do not think that on the facts of this case, the 3rd and 4threspondents can justify the orders made under Section 308 (5).Noapplication was made by the 3rd respondent invoking the provi-sions of this Section. This Section merely empowers the PublicTrustee if he is of opinion that the estate is likely to be interferedor intermeddled with and the assets of the estate are likely to bein jeopardy of being lost to the heirs or to the other persons law-fully entitled to or having any interest in the same, to takecharge of such estate until the same shall be claimed by some’executor or administrator lawfully entitled to administer thesame ; or take an inventory of such estate and authorise anyperson in possession of such estate or any other fit and properperson, subject to his giving security or otherwise, to continuein possession or to take possession of the estate as may benecessary or expedient in the particular circumstances of thecase. This Section does not empower him to appoint any per-son as executor or administrator.
Another argument was advanced that as the objection by the3rd respondent that the last will was not the act and deed of thetestator was withdrawn, the only question before the Court wasregarding the grant of probate. It was therefore submitted thatunder Section 284 the only matter that could be referred to theCourt was the issue whether the will was duly executed and asthis had been withdrawn the Public Trustee had jurisdiction todeal with the other issue viz. as to which party was the fit andproper person for the grant of probate, as this question was onewhich did not come within the jurisdiction of the District Court.In our view, Section 284 is wide enough to cover a reference tothe Court to decide the conflict of claims of persons for the grantof probate. In fact, a reading of Section 296 (1) clearly showsthat the Court has jurisdiction to decide not only on the mattersrelating to the validity of the will but also on the matters rela-ting to the grant of probate.
As we have observed earlier the 1st and the 2nd respondents'could not have made the impugned orders for the reason that inview of the conflict of claims to the grant of probate or letters ofadministration, the 1st and 2nd respondents were under a statu-tory duty under Section 284 (1) to refer the matter in dispute foradjudication by the appropriate District Court and not made thefinal orders.
TENNEKOON', C.J.—Kahatagaha Mines Ltd. v. Fernando, Chief Valuer 273
Counsel for the 3rd and 4th respondents finally submitted thatsince the petitioners had participated in the proceedings beforethe 1st respondent on 23.5.74, they had acquiesced in and sub-mitted to the jurisdiction of the 1st respondent and were there-fore not entitled to relief by way of certiorari. Acquiescence inand participation in proceedings before a Tribunal which hasmanifestly no jurisdiction to hear and determine any matterwill not give that Tribunal jurisdiction or legality to its proceed-ings. We, therefore, hold that the mere fact the petitionersparticipated in the proceedings held before the 1st respondent on25.5.74 will not deprive them of relief by way of certiorari.
Mr. Kamalasabayson, State Counsel, who appeared for the 1stand 2nd respondents quite properly expressed the view that hewas unable to support the orders made by the 1st and 2nd res-pondents
We, therefore, grant the application for a writ of certiorari andquash the orders of the 2nd respondent dated 29.3.74 and of the1st respondent dated 24.6.74. We also grant a writ of prohibi-tion prohibiting the 1st and 2nd respondents from taking anysteps in this case till the matters which have been referred tothe District Court have been finally decided.
The Public Trustee will now take action in terms of the ordermade by the Probate Officer on 25.3.74. The petitioners will beentitled to the costs of this application.
Vythialingam, J.—I agree.
Colin-Thome, J.—I agree.
Application allowed.