BALAHAMY v. DINOHAMY et al

075-NLR-NLR-V-27-BALAHAMY-v.-DINOHAMY-et-al.pdf


( 410 )
1926*
Present: Dalton J. and Jayewardene A.J.
BALAHAMY v. DINOHAMY et al114—D. C. Tangalla, 789.
Privy Council—Application for conditional leave to appeal—Testamentary suit—Final order—Value of matter in dispute—Ordinance No. 31 of 1909, rule 1 (a).
An order in a testamentary suit adjudicating upon the rights ofclaimants to the estate is a final order within the meaning of rule1 (a) of Ordinance No. 31 of 1909.
The value of the matter in dispute in the suit, for the purpose ofan appeal to the Privy Council, would be determined by the valueof the particular interest in claim.
Ceylon Tea Plantation Company v. Cary 1 followed.
yy PPLICATION for conditional leave to appeal to the PrivyCouncil. The application arose out of testamentary pro-ceedings, the respondents to which were the administrator of theestate of the late Don Andris de Silva and his wife, a daughter ofthe deceased. The petitioners claimed to be the wife and childrenof the deceased by a second marriage, and asked that the firstrespondent be directed to admit their claim, and allot to them theirlawful shares of the estate. The Supreme Court allowed their claim.The respondents applied for leave to appeal to the Privy Council.
J. 8. Jayewardene (with him Soertsz), in support.
H. F. Perera, contra.
February 23,1926. Dalton J.—
This is an application for conditional leave to appeal to the PrivyCouncil from a judgment of this Court dated December 18, 1925.The petitioners are the respondents in the testamentary proceedings.Objection is taken to the granting of leave on two grounds : firstly,that the judgment of December 18 is not a final judgment of thecourt within the meaning of rule 1 (a) of the schedule to OrdinanceNo. 31 of 1909, regulating the procedure on appeals to His Majesty inCouncil, and secondly, that it cannot be said that the appeal involvesa claim respecting property amounting to the value of Rs. 5,000 orupwards.
The proceedings out of which this application arises were testa-mentary proceedings, the respondents in'those proceedings being theadministrator of the estate of the late Don Andris dc Silva and his
1 12 N. L. R. 367.
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wife a daughter of the deceased man. The petitioners claimed tobe the wife and children of the deceased by a second marriage, andasked that the first respondent be directed to record and admit theirclaim, and allot to them their lawful shares of the estate.
By its order of December 18 this Court allowed the petitioners’claim.
It is now urged that that order is no final order in the testamentaryproceedings, Mr. Perera citing In re the Estate of Kiritisinghe KudaBanda1 in support of his contention. That was an application fora judicial settlement of the affairs of an intestate estate, one of therespondents claiming to be the adopted son of ther deceased andto be entitled to a larger share of his estate than that which theapplicant was prepared to allot to him. The Supreme Court affirmedthe decision of the District Judge holding that this respondent wasthe nephew and not the adopted son of deceased. Upon the res-'pondent seeking leave to appeal to the Privy Council, Layard C.J.and Pereira J., Grenier J. dissenting, held that this was not a finaljudgment or an order having the effect of a definite sentence, andno appeal to the Privy Council lay therefrom.
This decision was cited in a later Full Bench decision and it wouldseem that the decision of the majority of the Court in the earliercase has not been followed. In the Ceylon Tea Plantation Co.,Ltd. v. Carry2 the plaintiff sought to compel the defendant torender an account generally from the beginning of his employmentunder the Company. The District Court, and the Supreme Court onappeal, ordered defendant to account for a longer period of time thanthat for which he was prepared to account. He thereupon soughtleave to appeal to the Privy Council. For the Company it wasurged that this was not a “ final order,being purely interlocutory.Hutchinson C. J. says :—
“ I agree that this was a final decree inasmuch as it finally decidesthe rights of the parties on the principal question at issuebetween them, and the working out of the decree is merelya matter of account.”
And, adopting the words of Wood Kenton J., in that case, as amatter of interpretation, I do not see how a judgment such as thatof December 18, which determined the main point at issue in thecase, whether or not the applicant was the wife of the deceased, canbe held not to have possessed the characteristic of finality as betweenthe parties to the proceedings, I would hold that the order ofDecember 18 is a final judgment of the Court within the meaningof the rule applicable.
The second objection raised is that until the estate is judiciallysettled it is impossible to say what is the value of the interest that theapplicant and her children claim. Inre the Estate of Kiritisinghe Kuda1 {1905) 2 Bal. 87.* (1309) 12 N. L. R. 867.
1086.
Dalton J.
Balahamy
v.
Dinohomy
( 412 )
1920.
Dalton J.
Bolahamy
e.
Dinohomy
Banda (supra) it was held that the question whether the order involvesdirectly or indirectly title to property exceeding the value of Bs. 5,000could not be determined until the final decree in the judicial settle-ment. On the other hand it was admitted that appeals had goneto the Privy Council in such cases before the final decree in thesettlement. It was suggested in such cases no objection had beenraised. In Ceylon Tea Plantation Co., Ltd. v. Carry (supra)) whilstholding that the decree questioned was a final decree, the Court thereheld, it being a matter of accounts, an appeal to the Privy Council,would not lie, inasmuch as it was impossible to say until the accounthad been taken that the decree was for or in respect of a sum ormatter at issue above the amount or value of Rs. 5,000. And wehave been referred to Pate v. Pate,1 an action for accounting by onepartner against another, in which the Supreme Court’s decision wasgiven in 1907, whilst leave to appeal to the Privy Council was onlygranted in 1912. In Periamen Cheity v. Bahappa CkeUjf, also apartnership matter, in which the Court ordered an account to betaken, it was held, that leave to appeal could not be allowed as theorder was not a final and definitive sentence in respect of a matterabove the value of Rs. 5,000.
In my opinion the case now before us can be distinguished fromall these authorities cited on the facts. The respondent in thetestamentary proceedings had filed in the Court what he swore to asa full, true, and correct inventory of the property of the deceased,the nett value being sworn at Rs. 21,571*50. The District Judgehas pointed out in his judgment that a low value was put upon theproperty for the paying of estate duty. Even if this had not beenso for the purpose of paying duty, I think it could very safely beassumed that there was no over valuation, or omission of any debtsor encumbrances known to the respondent. This inventory isdated May 21,1923, although the deceased had died as early as 1921.He had ample time therefore to ascertain all the information herequired. It is not alleged now that any other debts have cometo his notice; on the other hand, in giving evidence before theDistrict Judge on June 24, 1925, he states that, in his opinion, theimmovable property of the estate was worth from Rs. 25,000 toRs. 26,000, considerably increasing the value which he hadpreviously sworn to. It is admitted that the applicant and herchildren, if her status as wife is upheld, is entitled to half the’estate, which is, therefore, considerably more than Rs. 5,000. Thereis no question of accountsbetween the parties to be gone into, the nettamount of the estate being admitted by one side and not questionedby the other. On the respondent’s own showing the claim of thepetitioner and her children is respecting property amounting to orof the value of Rs. 5,000 and upwards. I would, therefore, hold onthe facts here that it is not necessary to wait until the final decree118 N. L. R. 289.* 3 S. C. C. 39.
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in the judicial settlement to determine the value of the claim putforward. If Mr. Perera’s argument is sound, he admits, it followsthat even if an estate is admitted to be worth twenty lakhs of rupeesaccording to the inventory, after deduction of all liabilities, and aclaim to half the estate be put forward and allowed, it could notbe said that the order allowing the claim involved directly orindirectly the value of Rs. 5,000, until the final decree in the judicialsettlement, which in practice would be absurd.
In my opinion the judgment from which it is sought to obtainleave to appeal is a final judgment within the meaning of rule 1 (a)cited above, and involves a claim respecting property amountingto the value of Rs. 5,000 or upward.
I would, therefore, grant conditional leave to appeal, as prayed.Jayewardene A.J.—
Two objections have been taken to the allowance of this applica-tion. In the first place it is objected that the Judgment is not a“ final judgment,” and secondly, that there is no proof that theappeal involves a claim to property amounting to or of the valueof Rs. 5,000 or upwards. There can be no doubt that the judgmentof-this Court finally decided the right of the respondents to thisapplication to a half share of the estate of Don Andris de Silva,deceased, which is valued in the inventory at Rs. 21,571 *50. Thecase has been sent back to the District Court for further proceedingsto be taken upon this basis. Learned Counsel for the respondentsrelying on the case of In re the Estate of Kiritisinghe Kuda Banda(sivpra) contends that the judgment is not a “ final judgment” withinthe meaning of rule 1 (a) of the schedule to Ordinance No. 31 of 1909,which regulates appeals to the Privy Council. It was there heldthat a judgment declaring that a person was not an adopted son ofan intestate, thus depriving him of a larger share of the estate thanhe would have been entitled as one of the heirs, and sending thecase back for the judicial settlement of accounts, did not become afinal judgment until the settlement of account, and entry of decreewhich would enable the value of the rights of which the applicanthad been deprived by the judgment of the Court to be definitelyascertained. Here, I may remark, that the question whether aperson is an heir of an estate under administration is not one thatcan be decided in the course of a judicial settlement of accounts.Such a question does not come within the scope of chapter LV.,which lays down the procedure for<e the accounting and settlementof estates. It ought to be finally decided before the settlement ofaccounts is entered upon. For if the Court decides, as the DistrictJudge had done in this case, that an applicant is not one of the heirsof the deceased, he would have no voice in the settlement of theestate accounts.
m
Dalton Ji
BcUahamyv.
Dinohamy
( 414 )
1926.
Jatbwab*SBNB A.J.
BaUthamy
v.
Dinohamy
The judgment I have referred to is a judgment of a Bench of tlireeJudges, one of the Judges (Grenier A. J.) dissenting. As a judgmentof a Bench of three Judges it would be binding on us, but there isanother judgment of this court, Ceylon Tea Plantations Co., Ltd. vCarry (supra) also of a Bench of three Judges in which the Courttook a different view of the term “ final judgment ” as used in thestatutory provisions regulating appeals to the Privy Council. Therethis Court followed certain decisions of the Privy Council dealingwith the construction of the sections of the Indian Civil ProcedureCode, which contains provisions similar to those enacted locally.We are bound to follow the later decision as it adopts the lawas laid down by the Privy Council. It was conceded that thedefinition of the term “ final judgment ” as adopted* in the earliercase must be regarded as over-ruled by the later judgment. Thelater judgment takes a view which, if I may say so, respectfullycommends itself to me. It was an action for an accounting andthe Court had held that the defendant was liable to account for thefull period of his employment and not for a period of three years ascontended by him, and Hutchinson C.J. in his judgment on theapplication for leave to appeal to the Privy Council said
“ I agree that this was a ‘ final decree ’ in as much as it finallydecides the rights of the parties on the principal questionat issue between them, and the working out of the decreeis merely a matter of account.”
This is a practical and common sense view of what a final judgmentis, and applying it to the case before us the judgment that the firstrespondent was married to the deceased according to the customsof the country, and that her children are his legitimate children“ finally decides the rights of the parties on the principal questionat issue between them,” and is accordingly a “ final judgment.”No doubt the judgment does not finally determine the suit and isinterlocutory in form, but it is final in its effects upon the rightsof the parties : Maefarlane v. Ledaire.1
As regards the value of the petitioners’ interests affected by this“ final judgment,” it is contended that in a testamentary case thevalue of a party’s interest cannot be ascertained until the judicialsettlement of accounts. Mr. Perera contends that the judgmentof the Full Bench in In re the Estate of Kiritisingke Kuda Banda(supra) binds us on this point, although overruled on the otherpoint. It appears to me that the decision of the court on this pointwas unnecessary and must be treated as obitert for once the Courtheld that the judgment was not a final one, the value of the interestinvolved became immaterial. It cannot be supposed that the Courtintended to hold that in every testamentary case the value of theinterest involved cannot be determined until the decree in the1 (1862) 15 Moo. P. C. C. 181.
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judicial settlement. For we know that both in Ceylon and in Indiaappeals have been taken to the Privy Council in testamentaryactions long before the judicial settlement stage was reached, andin all such cases the value of the estate as given in the testamentarycase is taken as the basis for valuing the interests involved : Karu-naratne v. Ferdinand-us,1 Perera v. Perera,2 Esoof Hasshim Dooply v.Fatima Bibi? These are no doubt cases in which wills or rightsunder wills were in question. But that can make no difference forproperty bequeathed by will is as much liable for the payment ofdebts as any other property. It seems to me to be impossible tocontend that where a person claims under or impeaches a willwhich deals with property worth a million rupees, and a decision isgiven against him which affects his title to property worth over theappealable limit according to the inventory or schedule, he shouldhave to wait till the final settlement of the estate property andaccounts before he can appeal to the Privy Council. If there aredebts of- the estate which are likely to reduce its value or the valueof the interest of the aggrieved party below the appealable limit,it would be different. What Grenier A.J. said in the case underdiscussion may be aptly repeated here. He said :—
1926.
Jaybwab-DB2U3 A. J.
Balahamy
v.
Dinohamy
“ Admittedly the estate is worth more than double that amount,and if the petitioner succeeds in his claim the whole estatewill go to him. But it is argued that, as a result of thejudicial settlement of the estate, the assets may be reducedto a sum less than Rs. 5,000. I do not think that anyspeculation should be allowed in a matter of this kind.There is no suggestion that the deceased died heavilyindebted, and at the present moment the nett estate majfairly be valued at a sum considerably exceeding Rs. 5,000.It is in the highest degree improbable that some creditorwho has been asleep for several years past will suddenlywake up and make a claim against the estate. In mattersof this kind I think we must proceed upon reasonable data,and not deprive a person of his right of appeal simplybecause something may happen at some indefinite futuretime, which may deprive him of this right. That some-thing was not even adumbrated by any evidentiary materialplaced before us, and it must therefore be regarded asbelonging to the region of speculation, and dismissed fromserious consideration.”
In the present case the estate has been valued at over Rs. 21,000by an official valuator. There are no debts due from the estate inthe inventory, and it was not suggested that there were any debts
111902) 2 Bal. 3.8 (1901) A. C. 364.; 5 Thamb 54.
3 (1896) 24 CdL 30.
27/29
1926.
Jaybwar-dhnb A.J.
Balahamy
v.
Dinohamy
of the intestate to be paid out of the estate, although learned•Counsel hinted that there might be debts which have not yet beendisclosed, although the intestate died several years ago. Theexistence of such debts cannot be seriously considered. By thejudgment against which the petitioners desire to appeal tb the PrivyCouncil, their claim to property worth much more than Rs. 5,000is directly involved, and, I think, they are entitled to the leave theyask for. They are also entitled to the costs of this application.They will give security in a sum of Rs, 3,000 in the usual way.
Application allowed*