RATNASINGHAM v. TIKIRIBANDA DASSANAIKE AND OTHERS

002-SLLR-SLLR-1998-1-RATNASINGHAM-v.-TIKIRIBANDA-DASSANAIKE-AND-OTHERS.pdf


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RATNASINGHAM
v.TIKIRIBANDA DASSANAIKE AND OTHERS
SUPREME COURTFERNANDO, J.
WIJETUNGA, J. ANDSHIRANI BANDARANAYAKE, J.
S.C. APPEAL NO. 35/96CALA 57/94CALA 294/94
A. (REVISION) NO. 62/95
C. MT. LAVINIA NO. 121/83fTJUNE 5 AND 19, 1997.
Probate of last will – Jurisdiction of the Court to grant probate – Last will dealingwith movable property abroad – S. 21 of the Judicature Act – Sections 516 and518, Sections 650 and 653 of the Civil Procedure Code.
Held: (Shirani Bandaranayake, J. dissenting)
On an interpretation of the provisions of S. 21 of the Judicature Act andsections 516 and 518 of the Civil Procedure Code the District Court has
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Ratnasingham v. Tikiribanda Dassanaike and Others
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no jurisdiction to grant probate of a last will which dealt exclusively withmovable property abroad, and which did not in any way, affect any propertyin Sri Lanka.
Per Fernando, J.
'It is a fallacy to argue that merely because section 516 imposes a dutyon the cusdodian of a will to produce it in Court, such custodian has theright to probate. S. 516 confers no such right. It is section 518 which dealswith the right to probate, and there the legislature expressly confined thatright to wills affecting property in Sri Lanka*.
Per Fernando, J.
'Whether a grant of probate or administration ought to be made is aquestion of administration; how the estate devolves is a question ofsuccession. The fact that the latter is a matter (and that, too, not exclusively)for the courts of the domicile does not mean that the former is also amatter for them. Whether a will should be admitted to probate is governedby the rules relating to administration*.
Cases referred to:
Pathmanathan v. Thuraisingham (1970) 74 NLR 196.
Hevavitharana v. de Silva (1961) 63 NLR 68, 72.
Seneviratne v. Abeykoon (1986) 2 Sri LR 1, 6.
Luke v. IRC (1963) AC 557, (1963) 1 All ER 655.
Magor & St. Mellons RDC v. Newport Corp (1951) 2 All ER 839, 841.
In the goods of Tucker (1864) 3 Sw & Tr 585.
In the goods of Coode (1867) LR 1 P & D 449.
Re Wayland (1951) 2 All ER 1041.
In the goods of Tamplin (1893) P. 39.
In the goods of Murray (1895) P. 65.
Le Mesurier v. Le Mesurier (1895) 1 NLR 160.
Seneviratne v. Francis Fonseka (1986) 2 Sri LR 1, 6.
APPEAL from the judgment of the Court of Appeal.
P. A. D. Samarasekara, PC with M. K. Jayakrishnan for appellant.
J. W. Subasinghe, PC with D. J. C. Nilanduwa and J. A. J. Udawatte for 1st
respondent.
Cur. adv. vult.
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October 17, 1997FERNANDO, J.
I have had the benefit of reading, in draft, the judgment ofBandaranayake, J. with whose reasoning and conclusion I find myselfunable to agree.
The question of law which arises in this appeal is whether theDistrict Court had jurisdiction to grant probate of a Last Will whichdealt exclusively with movable property abroad, and which did not,in any way, affect any property in Sri Lanka. That involves theinterpretation of section 21 of the Judicature Act, No. 2 of 1978,and section 518 of the Civil Procedure Code (CPC), read withsection 516.
Whilst the proceedings were pending in the District Court, sections516 and 518 were replaced by the present sections 516 and 517,by the amending Act No. 14 of 1993 which came into operation on1.9.93. However, in so far as this appeal is concerned, the changeswere not material.
Section 21 of the Judicature Act provides:
"Every District Court shall have full power and authority subjectto and in accordance with the law in force for the time being-
to appoint according to the law in force for the time beingadministrators of the estates and effects of any persons dying eitherintestate, or who may not by any Last Will or testament haveappointed any executor or trustee for the administration of suchestates or effects, whether such estates may be within such districtor any other district or districts within Sri Lanka;
to inquire into and determine upon the validity of anydocument or documents adduced before it as and for the last willof any person who may have died leaving property in Sri Lanka,
and to record the same, and to grant probate thereof;"
[emphasis added].
The relevant portions of sections 516 and 518, CPC, are:
SC Ratnasingham v. Tikiribanda Dassanaike and Others (Fernando, J.)11
"516 (1) When any person shall die leaving a will in SriLanka, the person in whose keeping or custody it shall have beendeposited, or who shall find such will after the testator's death,shall produce the same to the District Court of the district in whichsuch depository or finder resides, or to the District Court of thedistrict in which the testator shall have died, within three monthsafter the finding of the will and [as soon as reasonably may beafter the testator's death. And] he shall also make oath or affir-mation, or produce an affidavit (form No. 81, First Schedule)verifying the time and place of death, and stating (if such is thefact) that the testator has left property within the jurisdiction of thator any other, and in that event what, court, and the nature andvalue of such property; or, if such is the fact, that such testatorhas left no property in Sri Lanka…"
"518 (1) When any person shall die leaving a will under orby virtue of which any property in Sri Lanka is in any wayaffected, any person appointed executor therein may apply to theDistrict Court of the district within which he resides, or within whichthe testator resided at the time of his death, or within which anyland belonging to the testator's estate is situate, to have the willproved and to have probate thereof issued to him within the timelimit and in the manner specified in section 524; [also] anyperson interested, either by virtue of the will or otherwise, in havingthe property of the testator administered, may also apply to suchcourt to have the Will proved and to obtain grant to himself ofadministration of the estate with copy of the Will annexed." [em-phasis added]
The amending Act of 1993 added the words which I have italicized,and deleted the words I have put in square brackets. In this judgmentI will refer to the sections by the numbers which they bore prior tothe 1993 amendment.
FACTS
It is not in dispute that the deceased died on 30.4.92. Accordingto the petitioner-respondent-appellant ("the petitioner") he left a LastWill dated 1.11.91, made in Sri Lanka, which disposed only of sharesin three Malaysian companies; no property, movable or immovable,in Sri Lanka was in any way affected by it. Those shares were
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bequeathed to the deceased's three children, the 1st respondent-petitioner-respondent ("the 1st respondent"), and the 2nd and3rd respondents-respondents-respondents (“the 2nd and 3rdrespondents").
The petitioner filed a petition in the District Court of Mount Laviniaon 20.8.93 (i.e. before the amending Act No. 14 of 1993) stating thatthe Last Will had been in her custody and for an enjoining order andan interim injunction, restraining the 1st respondent from interferingwith or misappropriating the shares due to the other two respondents.No enjoining order was granted.
As the custodian of the Will, the petitioner was obliged to produceit to the District Court, and section 516 also required her to statewhat property the deceased had left, or, if that was the fact, that hehad left no property in Sri Lanka. She failed to comply with the latterrequirement. Further, section 524, CPC, required her to set out inher petition for probate "the details and situation of the deceased'sproperty", and all she disclosed were the Malaysian shares.
It is not disputed that the 1 st respondent was a permanent residentof the United Kingdom. In his statement of objections dated 16.9.93,he pleaded that the court "has no jurisdiction to make an order against[him] in respect of property outside its jurisdiction". In his writtensubmissions, it was submitted that "none of the property dealt withby the Last Will is, or was, in Sri Lanka. In this context the questionto be asked is – does this court have jurisdiction in respect of a LastWill which deals only with property. .. which is located entirely outsideSri Lanka" : section 518 was cited.
In the meantime, the petitioner made a second application, dated24.1.94, for an order under section 653, CPC, for the seizure andsequestration of the only property which the 1st respondent ownedin Sri Lanka. In his objections, dated 11.3.94, the 1st respondent statedthat he had disposed of that property by a Deed of Sale dated 24.1.94;and that he was participating in the proceedings to show that the courthas no jurisdiction.
Thereafter the District Court, on 18.3.94, ordered the issue of probateand granted the interim injunction prayed for:
SC Ratnasingham v. Tikiribanda Dassanaike and Others (Fernando, J.)13
“1st respondent has stated in his. . . objections that this courthas no jurisdiction to take a decision on these shares since theyare outside the limits of Sri Lanka. But however I hold that thiscourt has the jurisdiction in terms of . . . Pathmanathan v.Thuraisinghamm.
In view of the fact that the 1st respondent has not taken anyobjections for granting the probate to the petitioner and since the1st respondent has accepted the Last Will … to be genuine,
I issue the probate."
On 31.3.94 the 1st respondent made an application for leave toappeal against that order (CA/LA 57/94); he stated that on 29.3.94the District Court had set aside the order for the issue of probateas having been made per incuriam – because the Order Nisi hadnot been duly advertised – and that is borne out by the record.However, while that application was pending in the Court of Appeal,probate was issued on 26.10.94.
The petitioner made a third application, dated 15.3.94, averring thatthe 1st respondent was a permanent resident of the United Kingdomwhose stay in Sri Lanka was temporary, and that he had disposedof his only property in Sri Lanka, which enhanced the possibility ofhis early departure from Sri Lanka. She prayed for the. seizure andsequestration of the proceeds of sale of that property, and for thearrest of the 1st respondent under section 650. In undated writtensubmissions filed – in response to the second or the third application- the 1st respondent contended that "he has taken up the positionthat this Court has no jurisdiction in respect of a Last Will which dealsonly with movable property located outside Sri Lanka".
On 6.12.94, dealing with the second application, the court orderedthe seizure of the property, but said nothing about its sale and thedisposal of the proceeds of sale. Against that order the 1st respondentmade applications, for leave to appeal (CA/LA 294/94) on 22.12.94,and for revision (CA 62/95) on 24.1.95. No order seems to have beenmade in regard to the (third) application made on 15.3.94.
The first application (CA/LA 294/94) came up for consideration on23.1.95. According to the journal entry, counsel for the petitionersubmitted that the order dated 18.3.94 challenged in those proceedings
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was vacated by the District Court in regard to the grant of probate,but not in regard to the interim injunction; that subsequently thepublication was made and probate issued. Counsel for the 1strespondent stated that the court had no jurisdiction to grant probate.All three applications were called on 13.6.95, and counsel agreedthat the matter be decided on written submissions. In the writtensubmissions the lack of jurisdiction was strenuously urged by the 1strespondent and equally strongly resisted by the petitioner.
Ranaraja, J. in the Court of Appeal, did not consider the meritsof the impugned orders in his judgment delivered on 21.9.95. Instead,having referred to section 21 of the Judicature Act which conferredand defined the testamentary jurisdiction of the District Court, he heldthat this “clearly restricts the jurisdiction of the District Court to makeorders on the validity of Last Wills and to issue probate only to caseswhere the deceased had left property in Sri Lanka . . . and thus allorders made by [the District Court of Mount Lavinia] are void for wantof jurisdiction and have to be set aside". He went on to hold that,apart from the lack of jurisdiction, the petitioner had no right to makean application for probate because section 518, CPC, denied a personnamed as executor the right to apply for probate unless the testatorhad died leaving property in Sri Lanka.
It is apparent that if that finding that the District Court lackedjurisdiction was wrong, then all three applications must be sent backto the Court of Appeal. In any event, therefore, I cannot agree withthe order of Bandaranayake, J. restoring the judgment of the DistrictCourt, without any consideration of the merits of those threeapplications.
The submission of Mr. Samarasekera, PC, for the petitioner, wastwo-pronged: the order of the Court of Appeal was (a) procedurallywrong, because it dealt with a matter which had not arisen fordetermination at that stage, and (b) wrong in law, because the DistrictCourt did have jurisdiction.
SC Ratnasingham v. Tikiribanda Dassanaike and Others (Fernando, J.)15
THE PROCEDURAL QUESTION
The petitioner's first contention was that:
"the main point that is urged is that the Court of Appeal dealtwith a matter which did not arise before it for decision, namelythe validity of the probate granted to the petitioner…. in neitherof these applications had leave been granted when the Court ofAppeal delivered judgment dated 21.9.95. At best the jurisdictionof the Court of Appeal at that stage was only to grant leave. Inrespect of [the sequestration order] there was also a revisionapplication …. but it did not seek to set aside anything exceptthe sequestration order. Thus there was no appeal on eitherapplication before the Court of Appeal regarding the probate grantedto the petitioner. In fact when probate was granted there was aright of appeal against it, which was not exercised by anyone andall parties have acquiesced in the grant of probate."
Neither in his oral nor his written submissions did Mr. Samarasekerarefer to the repeated objection taken by the 1st respondent that thecourt had no jurisdiction to make an order in respect of propertyoutside Sri Lanka, or the fact that on 29.3.94 the District Court hadset aside the order for the issue of probate, although it was in thatbackground that CA/LA 57/94 was filed, and the question of jurisdictiondecided.
It may be technically plausible to urge that the leave to appealapplications were not yet, procedurally, ripe for final determination,because although filed in 1994 leave to appeal had not been grantedin either case. However, the two impugned orders had been resistedin the District Court on the ground of want of jurisdiction, and theissue was again raised, squarely, in the Court of Appeal on 23.1.95,and pursued in the written submissions. It is difficult to imagine thatCounsel only wanted the court to decide whether to grant leave. Therewas no point in considering whether the District Court should havegranted an injunction or ordered sequestration, if it did not havejurisdiction over the action – the application for probate. The questionof jurisdiction therefore had to be decided, and counsel obviouslywanted it decided.
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It was in those cricumstances, that the Court of Appeal decidedthe question of jurisdiction: a pure question of law, whether there wasa patent want of jurisdiction. If after a full argument, and in a reservedand reasoned judgment, the Court of Appeal concluded that the DistrictCourt had no jurisdiction, should it nevertheless have merely grantedleave to appeal and issued notice, fixed the matters for hearing foranother day, and on that day proceeded to re-hear and determinethe very same question again? I think not, but I need say no morebecause although special leave to appeal was sought upon that veryquestion, leave was granted (and that, too, by a majority) only onthe following, purely legal, question:
"Whether the Court of Appeal is correct in its interpretation ofsection 21 (2) of the Judicature Act and section 518, CPC".
THE JURISDICTIONAL QUESTION
The Petitioner's contentions
Mr. Samarasekera submitted that under section 21(2) of theJudicature Act, the District Court has jurisdiction if the testator hadleft property in Sri Lanka; “in fact this testator has left property inSri Lanka although in the application for probate they have not beenset out… if this objection was taken in the lower court, [the petitioner]would have immediately filed the papers, and challenged theobjection . . . still inventory has not been filed and at the stage ofinventory all the properties of the testator will be disclosed". Further,sections 516 to 519:
"deal with different ways in which a last will could beproved . . . [they] do not deal with the question of jurisdiction ofthe court but deal with the manner of making the application. Thereference in section 517 to 'a will under or by virtue of which anyproperty in Sri Lanka is in any way affected' is not calculated toresist the jurisdiction of the court. It enables a party having suchinstrument where property is in Sri Lanka to apply [for] and obtainprobate. In that section there is no reference to the situation thatwould arise where the will did not deal with property in Sri Lankaalthough the testator lived and died in Sri Lanka . . ."
SC Ratnasingham v. Tikiribanda Dassanaike and Others (Fernando, J.)17
Mr. Samarasekera also stressed the aspect of convenience: thatthe named executor, the attesting Notary and the witnesses are allin Sri Lanka, and the beneficiaries are all Sri Lankans and were inSri Lanka at all relevant times, although the 3rd respondent wastemporarily away: and that "the only person who complains to the
Court of Appeal is the 1st respondentwho raised no
objection to jurisdiction or to the grant of probate". There would begreat hardship to the petitioner if she had to prove the will abroad,whereas if probate was granted in Sri Lanka, it could be resealedabroad. There is, he urged, "no prohibition which expressly bars theDistrict Court of Mount Lavinia from dealing with this will". Hevavitharanav. de Silva,® and Seneviratne v. Abeykoon,(3) were cited, in supportof the contentions that "as a matter of general principle prohibitionscannot be presumed", and that, on the contrary, 'the court has inherentpower to adopt such procedure, if necessary to invent a procedure,as may do substantial justice and shorten needless litigation".
He further submitted (citing Luke v. IRC)<4>
". . . when the plain literal interpretation of a statutory provisionproduces a manifestly absurd and unjust result which would neverhave been intended by the legislature, the court may modify thelanguage used by the legislature or even do some violence to itso as to achieve the obvious intention of the legislature and producea rational construction. The court may also in such a case readin to the statutory provision a condition which though not expressedis implicit as constituting the basic assumption underlying thestatutory provision."
Finally, he contended that:-
“Dicey and Morris in Conflict of Laws, 12th edition, volume 2,at page 1021 explains the position with regard to the jurisdictionof foreign courts. It would appear that as far as movable assetsare concerned the courts of the country in which the testator wasdomiciled has testamentary jurisdiction . . . Similarly in the samework at page 916 a distinction is drawn between movables andimmovables and it goes on to state the importance of the distinctionbetween movable and immovable is most apparent in the fieldof succession, because succession to movables is in generalgoverned by the lex domicilii of the deceased whereas successionto immovables is in general governed by the lex situs."
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Judicature Act and Civil Procedure Code
Sub-sections (1) and (2) of section 21 confer jurisdiction – "subjectto and in accordance with the law in force for the time being" -on a District Court, to appoint administrators, to determine the validityof a document put forward as being a Last Will, and to grant probatethereof. Those sub-sections make that jurisdiction dependent on whetherthe deceased left property in Sri Lanka, whether in that district orin any other district; they not only require that jurisdiction to beexercised “in accordance with the law in force for the time being"(which “law" would obviously include the relevant provisions of theCPC), but also make that jurisdiction "subject to" that law: and thatclearly includes section 518. There can be no doubt that section 21was "subject to" all the limitations imposed by section 518 and otherprovisions of the CPC. It referred to "the law for the time being inforce”, and therefore even future limitations were included, althoughthe legislature might not have foreseen them. Here, however, section518 contained, in relation to section 21, a pre-existing limitation, ofwhich the legislature could not but have been aware. Section 518plainly and unambiguously restricted the class of Wills which theDistrict Court could admit to probate: not all Wills, but only those“under or by virtue of which any property in Sri Lanka is in any wayaffected". The jurisdiction which section 21 conferred was, and is,therefore, subject to that limitation. The plain meaning of section 21,read with section 518, is that the District Court has no jurisdictionto grant probate of a Will dealing exclusively with foreign movables.The language used admits of no other construction. Further, the personentitled to apply for probate is the "person appointed executor therein",which thus refers back to "a Will under or by virtue of which anyproperty in Sri Lanka is in any way affected".
To disregard that plain meaning, and then to say, subjectively, thatthis is a situation in which provision should have been made in theCPC, and thereafter, simply because there is no such provision, toadopt the "interpretation" for which the petitioner contends, would beto do what the House of Lords condemned in Magor & St. MellonsRDC v. Newport Corpf5>:
". . . What the legislature has not written, the court must write.
This propositioncannot be supported. It appears to
me a naked usurpation of the legislative function under the thin
SC Ratnasingham v. Tikiribanda Dassanaike and Others (Fernando, J.)19
guise of interpretation, and it is less justifiable when it is guessworkwith what material the legislature would, if it had discovered thegap, have filled it in. If a gap is disclosed, the remedy lies in anamending Act".
That is very clear in this case when we consider the extent ofthe guesswork which becomes inevitable once we start on that slipperypath. Can probate be granted of a Will made in Sri Lanka (attestedby a Sri Lankan Notary, etc.) by, say, a Malaysian tourist who fallsseriously ill, and dies, while in Sri Lanka, even though that Willdisposed only of his property in Malaysia? Or would we then "interpret"section 518 further, by adding words to exclude foreigners? If it wasnot a Malaysian tourist, but a Sri Lankan resident in Malaysia, wouldwe interpret section 518 as conferring jurisdiction or not? Again, whatabout the Will of a Sri Lankan (resident or national) dealing onlywith foreign immovables'? Would we then add further restrictionsto exclude foreign immovables, and if so on what basis dowe justify that differentiation? In asking us to accept his interpretation,Mr. Samarasekera stressed the fact that the testator and the executrixlived in Sri Lanka: what if one of them had been living abroad? Again,what if some of the beneficiaries were resident abroad, or if the testatorhad died while he was abroad? Section 518 prescribes one clear andunmistakable condition precedent for jurisdiction: Did it affect propertyin Sri Lanka? To adopt the petitioner's interpretation the Court wouldhave to give effect, not to the policy of the legislature as expressedin the enactment, but to its own notions of policy regarding nationality,domicile, residence, place of execution, etc. If the court were onceto depart from the plain words used by the legislature, the court wouldbe compelled to make many more amendments, additions, exceptionsand qualifications – just as is done in legislation – to meet othereventualities.
Certainly, legislative intervention may be desirable. When the CourtsOrdinance and the CPC were first enacted, perhaps the possibilityof a Sri Lankan leaving a Will dealing only with his foreign propertywas not thought of. But the likelihood of an Englishman making aWill disposing only of his property in England was probably contem-plated: but is it at all likely that the legislature would have intendedSri Lankan Courts to have probate jurisdiction, in respect of such aWill made by an Englishman, rather than the English Courts? Today,however, with so many Sri Lankans going abroad for employment,
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legislation on the lines, of the English Administration of Justice Act,1932 (to which I will refer presently) may well be desirable – butthat is a policy decision for the legislature, not a matter of judicialinterpretation.
Yet another contention in the petitioner's written submissions wasbased on section 519, CPC:
"Section 519(1) Upon any such application being made, and,in every case in which the estate of the testator amounts toor exceeds in value twenty thousand rupees, whether any suchapplication shall have been made or not, it shall be obligatoryon the court to, and the court shall, issue probate of the Will tothe executor or executors named therein. .
It was contended that the first limb refers to "the provisions ofsection 518 (1) wherein the executor makes applications regardingthe property in Sri Lanka", and that it is the second limb (i.e. thewords emphasised) which "applies to the facts of this case".
While I think that the second limb is not capable of that interpre-tation, but applies only where “any such application" (i.e. an appli-cation permitted by section 518 (1)) could have been made, it isunnecessary to say more, because by 1993 that second limb hadlong ceased to be in operation, having been deleted by amendingAct No. 79 of 1988.
Pathmanathan v. Thuraisingham, (supra) cited by the District Court,is of little assistance. A Last Will disposed of property in Sri Lankaand abroad. It was held that the executor who obtained probate inSri Lanka was liable to account to the court in Sri Lanka for theproceeds of sale of, and income from, the foreign property, wheresuch proceeds or income had been brought into Sri Lanka.
Legislative history and context
The oral and written submissions on behalf of the petitioner showa basic acceptance of the plain meaning of section 518 (1), that forthe District Court to have jurisdiction to grant probate, it is essentialthat the Will affects property in Sri Lanka. What is really urged onbehalf of the petitioner is that the plain meaning should be departed
SC Ratnasingham v. Tikiribanda Dassanaike and Others (Fernando, J.)21
from, either because a contingency has arisen which the legislaturedid not anticipate, or that the plain meaning needs modification toovercome some injustice, absurdity, inconvenience, etc.
Legislative omissions are not to be lightly presumed. As Maxwell(Interpretation of Statutes, 12th ed.) observes:
"It is a corollary to the general rule of literal construction thatnothing is to be added to or taken from a statute unless thereare adequate grounds to justify the inference that the legislatureintended something which it omitted to express. Lord Mersey said:"It is a strong thing to read into an Act of Parliament words whichare not there, and in the absence of dear necessity it is a wrongthing to do." “We are not entitled," said Lord Loreburn, L.C., "toread words into an Act of Parliament unless clear reason for itis to be found within the four corners of the Act itself. “ A casenot provided for in a statute is not to be dealt with merely becausethere seems no good reason why it should have been omitted,and the omission appears in consequence to have been uninten-tional." (p 33) [emphasis added]
It is necessary to remember also that we are dealing with twoimportant enactments, tracing their ancestry to the Courts Ordinanceand the original Civil Procedure Code, both enacted in 1889. Indeed,Mr. Subasinghe traced the testamentary jurisdiction back to theAdministration of Justice Ordinance No. 11 of 1868, the Charter of1833 and the Rules made thereunder, and Article LI I of the Charterof Justice of 1801. The petitioner, however, has endeavoured todiscover an omission by looking only at the present state of thesetwo enactments, without any consideration of their history, which I thinkis essential.
Section 69 (section 67 in the LEC, 1956) of the Courts Ordinanceprovided:
"Every District Court shall have full power and authority –
To appoint administrators of the estates and effects ofany persons dying within its district, either intestate, or who maynot by Last Will or testament have appointed any executor ortrustee for the administration of such estates or effects, whethersuch estates or effects may be within such district or any otherdistrict or districts within the Island;
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To inquire into and determine upon the validity of anydocument or documents adduced before it as and for the lastwill and testament of any person who may have died withinits district, and to record the same, and to grant probatethereof: . . . “
Sections 516 and 518, CPC, as originally enacted as OrdinanceNo. 2 of 1889, were in all material respects the same as in 1993.
The Courts Ordinance and sections 516 to 554 of the CPC wererepealed by the Administration of Justice Law, No. 44 of 1973, whichprovided:
“276 It is hereby declared that the Public Trustee of SriLanka shall be the sole competent authority –
for the purpose of the grant of probate and all lettersof administration in respect of the property of deceased persons;
for the recognition and resealing of foreign probatesin Sri Lanka; and
for dealing with all other matters relating to or con-nected with the grant of probate and letters of administration.
278 (1) When any person shall die leaving a will in Sri Lanka,it shall be the duty of the person in whose keeping or custodysuch Will shall have been deposited, or who shall find such willafter the testator's death, to forward the same to the Public Trustee.
(2) The original or a copy of the will may be so for-warded, and shall be accompanied by a declaration in the pre-scribed form stating the date and place of the death and the natureand value of the property of the testator.
280 (i) When any person shall die leaving a will under orby virtue of which ary property in Sri Lanka is in any way affected,the person appointed executor therein or any other personinterested, either by virtue of the will or otherwise, in havingthe property of the testator administered, may apply to have thewill proved and to have probate thereof or to obtain grant of
SC Ratnasingham v. Tikiribanda Dassanaike and Others (Fernando, J.)23
administration of the estate with copy of the will annexed, as the
case may be, issued to him."
It will be seen that section 69 (2) of the Courts Ordinance gavethe District Court jurisdiction to grant probate in respect of a personwho died "within its district"; and so it might have been argued thatsuch jurisdiction was not confined to wills affecting property in SriLanka.
However, that limitation was imposed by section 518, CPC. Butthere was no express provision as to which enactment would prevailin the event of inconsistency. I do not need to consider that problembecause now the matter is clear. Section 21 of the Judicature Acthas not only substituted for the words “who may have died withinits district", the words "who may have died leaving property in SriLanka", but is itself "subject to" the CPC. The concept is that agrant, whether of probate or of administration, depends on the deceasedhaving left property within the jurisdiction, and in the case of probate,that the will must actually affect property within the jurisdiction.
It is also of some relevance to consider what the English law wasat that time, for it is the rules of private international law as appliedby the English Courts that our Courts would have applied. Thedecisions in In the goods of Tucker,<e> In the goods of Coode,m andRe Waylandw – which I will refer to more fully – confirm that theEnglish courts would not have made a grant of probate of a will whichdid not dispose of property in England, nor a grant of administrationwhere the deceased left no property in England. It is therefore noteasy to presume that in 1889 there was a legislative intention – foundwithin the four corners of those two enactments – to give our courtsa more extensive jurisdiction, having an extra-territorial flavour, whicheven the English courts did not then have.
By 1932 the position in England had changed by virtue of statutoryamendment. No similar amendment was made in Sri Lanka althoughamendments in respect of testamentary jurisdiction were consideredon several occasions thereafter.
The Civil Courts Commission (Sessional Paper XXIII of 1955)apparently saw no reason for change, because its recommendation(Order UOCVII, rule 3) was in substance the same as section 518.
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(1998) 1 Sri L.R.
In 1973 although section 276 of the Administration of Justice Lawadopted a somewhat broader formulation – making no reference toproperty in Sri Lanka, yet section 280 re-enacted the same limitationwhich appears in section 518 (1) throughout. Section 276 was there-fore qualified by, and subject to, section 280.
In 1977-78 the legislature had yet another opportunity to reconsiderthe matter. However, in 1977 the CPC was reintroduced by Law No.20 of 1977, leaving section 518 unaltered. Section 21 of the JudicatureAct, as already mentioned, reintroduced the former Courts Ordinanceprovision, but made it "subject to" the CPC, including section 518.
Even when Chapter XXXVIII of the CPC was repealed and replacedby a new Chapter by the amending Act No. 14 of 1993, section 518was substantially re-enacted.
In that background to think that successive legislatures inadvertentlyoverlooked the possibility that a person, whether of Sri Lankan orforeign nationality or domicile, might die in Sri Lanka leaving a willdealing only with property, movable or immovable, abroad, is unreal.On the contrary, it is very clear indeed that the ligislature deliberatelyrefrained from giving the District Court probate jurisdiction in suchcases.
Indeed, section 516 (1) shows – conclusively, in my view – thatfrom 1889 there was no omission. That section provides that wherea person dies in Sri Lanka, leaving a will, the custodian of that will,even if it did not deal with property in Sri Lanka, must produce itto the appropriate District Court stating (on oath or affirmation, or byaffidavit in Form 81), if such is the fact, that the testator left no propertyin Sri Lanka. Thus even where a will does not affect property in SriLanka, the legislature was concerned to ensure its safe custody.But when it came to the proof of wills, the legislature carefully drewa distinction in section 518: it gave the District Court jurisdiction onlyin respect of wills affecting property in Sri Lanka. In respect of otherwills, the Court would continue to be the custodian, and no more.
It is a fallacy to argue that merely because section 516 imposesa duty on the custodian of a will to produce it in court, such custodianhas a right to probate. Section 516 confers no such right. It is section518 which deals with the right to probate, and there the legislatureexpressly confined that right to wills affecting property in Sri Lanka.
SC Ratnasingham v. Tikiribanda Dassanaike and Others (Fernando, J.)25
I have already referred to the old section 519. That, too, wasreplaced in 1993 by a new section 518 – which is inapplicable tothis appeal, because it deals only with cases of wills deposited incourt after the coming into operation of the new Chapter. However,that section provides for the grant of probate, where no applicationhas been made by any person for probate,
"in accordance with the procedure set out in respect of the grantof probate or letters oil administration on application madethereto, …"
to the executor named in the will or letters of administration with thewill annexed “to some person who by the provisions of the lastpreceding section is competent to apply for the same'1. The right toprobate therefore is in accordance with the old section 518, and thenew section 518 does not give any wider right.
The (old) section 540, substantially re-enacted as the (new)section 542, is also relevant:
“if no limitation is expressed in the order making the grant, thenthe power of administration, which is authenticated by the grantof probate, or is conveyed by the grant of letters of administration,extends to every portion of the deceased person's property, movableand immovable, within Sri Lanka. . . “
Recourse to the legislative history, and the context, of the twosections in question, discloses neither a legislative intention, nor aninadvertent omission, to confer probate jurisdiction over wills notaffecting property in Sri Lanka.
Probate and Administration in English Law
The present English law is set out in section 2 (1) of theAdministration of Justice Act, 1932:
“Notwithstanding anything in s. 20 or any other … the HighCourt shall have jurisdiction to make a grant of probate or admin-istration in respect of a deceased person notwithstanding thatthe deceased person left no estate."
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(1998) 1 Sri LR.
The position in England before 1932 was described in Re Wayland(supra):
“In In the goods of Tucker, (supra) the deceased had died inFrance, leaving personal estate there, but none in England. Theheadnote reads:
. It was alleged, that by the law of France her husband,from whom she had eloped, could not establish his claimto her property there without a grant from this court – Held,that the court had no jurisdiction to make a limitedgrant to enable him to substantiate his claim to theproperty in the courts of France'.
In his judgment Sir James Wilde said:
The foundation of the jurisdiction of this court is, that thereis personal property of the deceased to be distributed withinits jurisdiction. In this case the deceased had no propertywithin this country, and the court has therefore nojurisdiction'.
In In the goods of Coode, (supra) Sir James Wilde held to thesame effect, and for the same reasons, that this court couldnot make a grant where there was no property".
In Re Wayland, (supra) the testator – a British subject, domiciledin England – had executed two Wills in Belgium, dealing only withhis Belgian property, and had executed another Will in England dealingonly with his property there. The question which the court had toconsider was "whether there is any power to admit the Belgian Willsto probate in England since they do not dispose of any Englishproperty". That is comparable to the question which we have to decidein this appeal.
It was held:
"Before 1932 there is no doubt that this court would nothave admitted them to probate. . . "
SC Ratnasingham v. Tikiribanda Dassanaike and Others (Fernando, J.)27
But the argument that, after the 1932 Act, the ratio decidendi ofIn the goods of Tucker and In the goods of Coode had disappeared,was upheld. The court held that "by virtue of the Act [it was] entitledto make a grant in respect of the Belgian Wills".
I must also mention In the goods of Tamplin,® where (before 1932)the court refused to grant probate of a will duly executed in accordancewith English law, which referred only to property in Russia; see alsoIn the goods of Murray°°K In both cases, there was other propertyin England.
Halsbury, Laws of England, 4th ed., is to the same effect:
"Will solely of property abroad; The object of a grant is toenable the executor or administrator to administer the property inEngland and Wales. If there is no such property a grant is normallyrefused, for there is no purpose in making it … “
Reference is then made to the 1932 Act in support of the furtherstatement that:
“but the court has power to make a grant where there is noproperty within the jurisdiction." (vol. 17, para 834)
“An English grant of representation vests in the personalrepresentative all the deceased's movable and immovable estatewhich at the date of his death is situated in England. It doesnot vest in him assets outside England, that matter beinggoverned by the law of the country where they are situated",(vol. 4, para 668)
Mr. Samarasekera referred to the convenience of granting probate,so that it could be re-sealed abroad. In the goods of Coode (supra)the submission that the object of asking for probate of the foreignwill “was simply to clothe the applicant with the character of executor"with a view to proceedings abroad was summarily rejected: “the objectof this court in making grants is to enable the executor or administratorto administer property in this country, and is not founded on any suchconsiderations as those suggested".
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Section 518 confines jurisdiction to wills under or by virtue ofwhich any property in Sri Lanka is in any way affected – i.e.adopting the pre-1932 English law principle. What the petitioner asksthis court to do is – by interpretation, or substitution, or addition, orotherwise – to equate that to the phrase "notwithstanding that thedeceased person left no estate" which parliament used in theEnglish Act of 1932. This court cannot introduce by interpretation suchstatutory modifications.
Omission, injustice, absurdity, inconvenience, etc.
It is not the function of the courts to provide for every situationfor which the legislature has made no provision. Further, legislative"omissions" are of two kinds: omissions to give jurisdiction to thecourts, and omissions to provide for procedures in respect of anundoubted jurisdiction. We are dealing with the former.
It is only where an examination of a statute reveals a legislativeintention which would be defeated by reason of the absence of someprovision that it is permissible to infer an inadvertent omission bythe legislature. Here section 21 of the Judicature Act has to beinterpreted together with section 518, CPC; those two provisionsdisclose no legislative intention that the District Court should haveprobate jurisdiction over Wills affecting only foreign property. Indeed,both the immediate context (sections 516, 519 and 524) and legislativehistory suggest otherwise. The position in English law as at 1889 isof some relevance, because of the impact of private international law;and there is no reason to believe that the legislature intended to makea significantly different provision for Sri Lanka.
I have already referred to the serious difficulties which will inevitablyarise if we assume an omission. If we hold that there is jurisdictionin this case because the testator, the executrix, the Notary, thewitnesses, and some of the beneficiaries were resident in Sri Lanka,and the will was made in Sri Lanka, what if just one of these elementswas lacking? Or if the Will dealt only with foreign immovables? I
I must turn to the authorities cited by Mr. Samarasekera. Seneviratnev. Abeykoon (supra), was an extraordinary case where the landlord'saction for the ejectment of his tenant had been dismissed; while hisappeal was pending in the Court of Appeal, he took the law into his
SC Ratnasingham v. Tikiribanda Dassanaike and Others (Fernando, J.) 29
own hands and dispossessed the tenant, and the tenant then askedthe District Court to restore him to possession; thereafter the landlord'sappeal was abated, and the court restored the tenant to possession.The landlord then asked the Court of Appeal to revise that order,arguing that the District Court had no jurisdiction, except in a separateaction, to restore the tenant to possession. The decision of the Courtof Appeal was based on two distinct grounds: first, that it would notexercise its discretionary revisionary jurisdiction because of the land-lord's conduct and non-disclosure of material facts, and second, thatthe court had an inherent power under section 839 – because it wasa contingency not anticipated and for which, therefore, no expressprovision had been made. The distinction between jurisdiction andprocedure was not considered, perhaps because the District Court didhave jurisdiction over the pending tenancy action, in the courseof which it made the impugned order. Here, however, the 1strespondent's contention is that the District Court had, patently, nojurisdiction whatever in respect of the application for probate. Further,it can hardly be said in the present case that we are faced with acontingency not anticipated by the legislature for which the legislaturefailed to make express provision: on the contrary, the legislature wasaware of the contingency and deliberately did not grant the DistrictCourt jurisdiction.
Hewavitharana v. de Silva (supra), dealt with a provision in thePartition Act that the interlocutory decree may include certain orders,but which did not expressly restrict the power of the court to onlysuch orders. Recourse was again had to section 839 in holding thatthe court could exclude a lot wrongly included in the corpus. Thatwas a case where the intention of the enactment would have beendefeated by compelling the court to determine — in a partition action- title to lands other than the corpus to be partitioned.
The submission for which Luke v. IRC, (supra) is cited as authority,is not really supported by the judgments in that case. What Lord Reidsaid was:
"To apply the words literally is to defeat the obvious intentionof the legislation and to produce a wholly unreasonable result.To achieve the obvious intention and to produce a reasonableresult, we must do some violence to the words."
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Further, the judgments of Lord Pearce and Lord Guest suggestthat that was a case in which the court was faced with a choicebetween two possible interpretations.
In the present case, it can hardly be said that the two enactmentsdisclose an obvious intention to confer jurisdiction in respect of awill dealing exclusively with property abroad; or that an interpretationconsistent with the English law until it was changed in 1932 (and therules of private international law, to which I will refer later) is a whollyunreasonable result. Indeed, the judgments of Lord Pearce and LordGuest show that two interpretations were possible, but that the literalinterpretation would have defeated the purpose of the legislation;necessarily, the other interpretation had to be preferred. Here we arenot being asked to make a choice between two interpretations, butto ignore the only possible interpretation, consistent with the apparentlegislative intention.
Turning to the question of absurdity, injustice, inconvenience, andthe like, the principles are no different (see Maxwell):
"A sense of the possible injustice of an interpretation ought notto induce judges to do violence to well-settled rules of construction,but it may properly lead to the selection of one rather than theother of two reasonable interpretations. Whenever the language ofthe legislature admits of two constructions and, if construed in oneway, would lead to obvious injustice, the courts act upon the viewthat such a result could not have been intended, unless the intentionto bring it about has been manifested in plain words. "If the courtis to avoid a statutory result that flouts common sense and justiceit must do so not by disregarding the statute or overriding it, butby interpreting it in accordance with the judicially presumed par-liamentary concern for common sense and justice." But the pos-sibility of injustice which leads the courts to adopt a particularconstruction must be a real one: if the injustices suggested inargument are purely hypothetical, and may never or only rarelyoccur in practice, the court will remain unmoved.1" (p 208)
“The same general rule applies where the result of one of twointerpretations would be to lead to an absurdity”, (p 210)
SC Ratnasingham v. Tiklribanda Dassanaike and Others (Fernando, J.)31
Indeed, it might have been argued in In the goods of Tucker (supra)that a similar "injustice" or "absurdity" arose: that the husband couldnot establish his claim to his deceased wife's movable property abroadwithout a grant from the English court. The court held that it had nojurisdiction to make a grant – even a limited grant – in England, inthe absence of property in England, and quite rightly made no attemptto widen its. jurisdiction on the pretext of avoiding injustice.
“The deceased in fact had property in Sri Lanka"
Mr. Samarasekera's submission is that the District Court hadjurisdiction because the deceased did leave other property in SriLanka. This submission fails both on the facts and the law.
If jurisdiction to grant probate of the will depended on the deceasedhaving left property in Sri Lanka, proof that there was such propertywas a condition precedent to the grant of probate. It was not opento the court to grant probate of the will, and then ask for proof ofthe facts. Here, despite the provisions of sections 516 and 524, thepetitioner did not disclose any particulars of any property inSri Lanka, although her petition was filed 15 months after the deathof the deceased. Therefore, even if Mr. Samarasekera is right on thelaw, nevertheless there was a patent want of jurisdiction to grantprobate. Even at the stage of the second appeal, the petitioner hasnot furnished any evidence that the deceased had property in SriLanka.
However, in my view, that submission fails on the law as well.If a person were to leave two wills, one dealing exclusively withproperty abroad and the other exclusively with property in Sri Lanka(cf. Re Wayland), section 518 confers jurisdiction to grant probate onlyin respect of the latter. It follows that if there was no will dealing withhis property in Sri Lanka, the court would only have jurisdiction toissue letters of administration in respect of the estate in Sri Lanka.
"The failure to object to the grant of probate"
This contention, too, is without merit both on the facts and thelaw. I have already referred to the 1st respondent's several objectionsto jurisdiction. Indeed, the 1st respondent went further, claiming thatthe shares owned by the deceased had been duly disposed of (though
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this was disputed by the petitioner) before his death. That amountedto saying that the deceased had left no property at all.
But even if the 1st respondent had failed to take the objection,that default or acquiescence would not have cured a patent want ofjurisdiction. The will, ex facie, did not affect property in Sri Lanka,and the petitioner had therefore failed to establish an essential ju-risdictional fact. That was a patent want of jurisdiction, however muchthe 1st respondent may have acquiesced or consented.
If the District Court had no jurisdiction to entertain the petitioner'sapplication for probate (and because any grant which it could makedid not extend to property outside Sri Lanka, in terms of section 540)it followed that it could make no orders for the purpose of ensuringthe due administration of property situated abroad. The Court of Appealwas quite justified, therefore, in considering the question of jurisdiction- whether the objection had been taken or not – before consideringthe orders relating to the interim injunction and sequestration. Whattook place in the Court of Appeal on 23.1.95 suggests that thepetitioner, too, wanted that question decided.
Rules of Private International law
The contention advanced on behalf of the petitioner that as faras movable assets are concerned, the courts of the country in whichthe testator was domiciled has testamentary jurisdiction, is not borneout by the authority cited. The passage cited from Dicey and Morris(Conflict of Laws, 12th ed., p 1021), deals with Rule 132 (which isRule 135 in the 11th ed., p 1003):
"Rule 132: The courts of a foreign country have jurisdiction todetermine the succession to all movables wherever situated of atestator dying domiciled in such country. Such determination willbe followed in England".
As the chapter heading indicates, this does not deal withadministration or testamentary jurisdiction, but with succession, andthere is a very clear distinction between the jurisdiction to determinequestions of succession, and the jurisdiction to grant administration.This has been lucidly explained by Cheshire and North:
SC Ratnasingham v. Tikiribartda Dassanaike and Others (Fernando, J.)33
"One of the cardinal rules of private international law, as weshall see later, is that the movable property of a deceased person,so far as concerns either testate or intestate succession, is regu-lated by the law of that country in which he died domiciled. It mightbe thought, therefore, that the courts of that domicilehave jurisdiction to make a grant of administration, merely onthe ground of domicile and regardless of whether there areassets actually within the jurisdiction. Theoretically this principleis tenable, but there are two facts that militate against its appli-cation.
First, such a grant would be ineffective if there were no assetswithin the jurisdiction.
Secondly, the jurisdiction of the old ecclesiastical courts, of whichthe high court exercising jurisdiction in probate matters is thesuccessor, was universally founded on the presence within thejurisdiction of movables belonging to the deceased.
The rule, in fact, for many years has been that an English courtcan grant administration only if there is property in England,
though it now has statutory authority to make a grant notwithstand-ing that the deceased left no estate, provided, probably, that thetestator died domiciled in England." Cheshire & North, PrivateInternational Law, 11th ed., pp 824-5).
Indeed, Dicey and Morris explain Rule 132 in this way:
"If a deceased person is at the moment of his death domiciledabroad, the courts of his domicile have jurisdiction, though notnecessarily exclusive jurisdiction, to decide upon the rightto succeed to his movables: and if they exercise their jurisdiction,English courts will follow their decision.
'Although the parties claiming to be entitled to the estate ofa deceased person may not be bound to resort to the tribunalsof the country in which the deceased was domiciled, and althoughthe courts of this country may be called upon to administer theestate of a deceased person domiciled abroad, and in such casemay be bound to ascertain as best as they can who, according
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(1998) 1 Sri LR.
to the law of the domicile, are entitled to that estate, yet wherethe title has been adjudicated upon by the courts of the domicile,such adjudication is binding upon, and must be followed by, thecourts of this country'.'1 (pp 1021-2; 11th ed., p 1003)
Whether a grant of probate or administration ought to be madeis a question of administration; how the estate devolves is a questionof succession. The fact that the latter is a matter (and that, too,not exclusively) for the courts of the domicile does not mean thatthe former is also a matter for them. Whether a Will should be admittedto probate is governed by the rules relating to administration.
Dicey and Morris deal with administration thus:
"Until 1932 the High Court could assume jurisdiction to makea grant only on the same grounds as the ecclesiastical courts wouldhave done so. Although it did not matter where the deceased hadbeen domiciled, it was necessary to show that there was propertyto be administered within the jurisdiction of the court. This require-ment could be very inconvenient. When an English domiciliary diedleaving property abroad, the foreign court would sometimes refuseto make a grant of representation until a grant had been obtainedin England. If the deceased had left no property in England theresult was an impasse. In 1932 the jurisdiction of the High Courtwas therefore extended to allow it to make a grant in respect ofany deceased person." (11th ed., p 981)
Where there are two wills the position is as follows:
"Testators sometimes make separate wills disposing of theirproperty in England and abroad. If one document confirms theother, they both together constitute the will of the testator, andan executor seeking a grant of representation must take probateof both. But if the wills are dependent on each other, the courthad until 1932 no jurisdiction to make a grant in respect of thewill which disposed only of property situated abroad. The presentpractice is to admit only the English will to probate unless thereis some reason for making a grant of probate in respect of theforeign will as well." (Dicey & Morris pp 983-4; cf. Cheshire & North,D 825)
sc
Ratnasingham v. Tikiribanda Dassanaike and Others
(Shirani Bandaranayake, J.)
35
I find, therefore, that the plain meaning of the two provisions wehave to interpret is consistent with the relevant rules of privateinternational law as well (unlike section 597, CPC, which the PrivyCouncil considered in Le Mesurier v. Le Mesurier<n). There is nojustification to depart from that plain meaning.
ORDER
For these reasons, I hold that Ranaraja, J. in the Court of Appealcorrectly interpreted section 21 (2) of the Judicature Act and section518, CPC, in concluding that the District Court had no jurisdiction togrant probate of the will in question, and that the petitioner had noright to make an application for probate of that will. The appeal isdismissed, but I make no order for costs.
WIJETUNGA, J. – I agree.
Appeal dismissed.
SHIRANI BANDARANAYAKE, J.
I
This is an appeal from a judgment of the Court of Appeal which dealtwith tiree (3) applications made by the 1st respondent against theorden of the District Court, Mount Lavinia for,
granting an interim injunction;
seizure and sequestration of property; and
; sale of the petitioner's property and his arrest under the Civil' Procedure Code.
The petitioner in this case, is the executrix of the last will left byM( Ivan Tiddy Disanaike, bearing No. 3432 dated 01 st November 1991aid attested by S. S. Pillai, Notary Public of Colombo (P2). Accordingtcthe petitioner, Mr. Disanaike died on 30th April 1992. In terms oftie aforesaid last will the deceased devised and bequeathed certainjfoperties to his three (3) children, the respondents to this application,he properties bequeathed are shares in certain companies in Malaysiaind the shares are controlled by the Barclays Registrars of England.
The 1st respondent was living in London but at the time of theInstitution of this action in the District Court, he was in Sri Lanka.The petitioner had reliably understood that the 1st respondent was
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(1998) 1 Sri L.R.
endeavouring to intermeddle with the shares which constituted theproperty left by the deceased and which were bequeathed to thethree (3) respondents, with the intention of defrauding and misappro-priating the shares to his personal benefit. The petitioner institutedaction in the District Court of Mount Lavinia to prove the last will andto obtain probate praying for an interim injunction restraining the 1strespondent from interfering with, meddling with or misappropriating theshares due to the 2nd and 3rd respondents until the final determinationof the action (P1). An interim injunction, as prayed for by the petitioner,was granted by the District Court, Mount Lavinia (P4). The DistrictCourt admitted the last will to probate and granted the petitionerprobate without any objection from anyone (P7).
The 1st respondent was making arrangements to sell the Dropertybelonging to him and when the petitioner came to know about thisshe made an application to District Court, Mount Lavinia, for seques-tration before judgment of the property belonging to the 1 st respondent(P8). This application was allowed by the District Judge (P1D). The1st respondent made an application to the Court of Appeal fa leaveto Appeal and Revision in respect of the aforesaid order. The Courtof Appeal made order not only allowing the application made by the1st respondent but even dismissing the petitioner's applicaton forprobate (P16).
The principle question which arises for consideration in this appealis whether the Court of Appeal is correct in its interpretation of setion21 (2) of the Judicature Act and section 518 of the Civil ProceJureCode or section 517 of the amending Act, No. 14 of 1993, wiichcame into effect on 01.09.1993.
Section 21 (2) of the Judicature Act, No. 2 of 1978, reads as follovs:
Every District Court shall have full power and authority subjet
to and in accordance with the law in force for the time beint-
1.2. to inquire into and determine upon the validity of an',documents adduced before it as and for the last will anctestament of any person who may have died leavingproperty in Sri Lanka, and to record the same, and togrant probate thereof; . . .
sc
Ratnasingham v. Tikiribanda Dassartaike and Others
(Shirani Bandaranayake, J.)
37
The Court of Appeal was of the view that,
This section clearly restricts the jurisdiction of the District Courtto make orders on the validity of last wills and issue probatefor the administration of estates only to cases where the deceasedhas left property in Sri Lanka.
As the property in question was shares in Malaysian Companies,the Court of Appeal was of the view that the District Court of MountLavinia had no testamentary jurisdiction to entertain the applicationfor probate.
Furthermore, the Court of Appeal was of the view that under section518 of the Civil Procedure Code, which was amended by the amendingAct, No. 14 of 1993 (section 517, which came into effect on 01.09.1993)the executrix had no right to make an application for probate or anyof the other orders she had prayed for in her petitions. The Courtof Appeal, citing the amended section 517 and section 518 of theCivil Procedure Code, went on to say that,
Both these sections specifically deny any person named in alast will as executor, to apply for probate unless the testatorhad died leaving property in Sri Lanka.
Section 517 of the Civil Procedure Code states as follows:-
When any person shall die leaving Will under or by virtue of
which any property in Sri Lanka is in any way affected . . .
Section 517 of the Civil Procdure Code, falls under Chapter 38,which deals with the testamentary actions. The learned President'scounsel for the appellant-administratrix, contented that sections 516,517, 518 and 519 of the Civil Procedure Code deal with different waysin which a last will could be proved. According to the learned counsel,the appellant was the executor named in the will and the person withwhom the will was deposited. Therefore she was under a duty notmerely to bring the will before court but also to seek to prove thewill and obtain probate which would enable her to use it abroad tocarry out the directions of the testator.
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The learned President's counsel for the respondents insisted uponthe words 'property in Sri Lanka', used in section 517 of the CivilProcedure Code. The learned counsel was of the opinion that anexecutor or an executrix, as in this case, is not empowered to applyfor probate where the Last Will relates to property outside Sri Lanka.Accordingly it was contended that the order granting the probate (P4)on 18.03.1994 and the probate (P7) on 26.10.1994 are nullities whichwere made without jurisdiction.
Section 517 of the Civil Procedure Code deals with the way inwhich a last will could be proved. When a person is named in a lastwill appointing him or her as the executor or the executrix, a burdenis cast on the person not only to bring the will before the court butalso to take steps to prove the will and obtain probate. This is whatexactly the executrix had done in this case.
An examination of both sections, viz. section 21 (2) of the Judi-cature Act and section 517 (1) of the Civil Procedure Code revealsthat the situation of the property is a key factor in obtaining the probate.Section 21 (2) of the Judicature Act, makes provision for the DistrictCourt to have 'full power and authority' over testamentary jurisdiction,'of any person who may have died leaving property in Sri Lanka'.Section 517 (1) of the Civil Procedure Code on the other hand,provides for 'any person appointed executor therein to apply to theDistrict Court' in order to obtain letters of probate or administration.However, for this purpose, according to section 517 (1) it is essentialthat the person should have died 'leaving a Will under or by virtueof which any property in Sri Lanka is in anyway affected'.
Mr. P. A. D. Samarasekera, the learned President's counsel forthe appellant, contended that in section 517, there is no referenceto the situation that would arise where the last will did not deal withproperty in Sri Lanka, although the testator lived in Sri Lanka andthe executor with whom the will was deposited also lived in Sri Lanka.It was his contention that in such a situation it would be necessaryto take into consideration the legal position pertaining to the jurisdictionof foreign courts. Mr. Samarasekara cited Dicey and Morris in Conflictof Laws (12th edition at p 1021) with regard to the jurisdiction of foreigncourts. In that, as far as the movable assets are concerned, the courtsof the country in which the testator was domicile will have the tes-tamentary jurisdiction. Dicey and Morris drew a clear distinction betweenmovable and immovable property and stated that,
sc
Ratnasingham v. Tikiribanda Dassanaike and Others
(Shirani Bandaranayake, J.)
39
the importance of the distinction between movables andimmovables is most apparent in the field of succession,because succession to movables is (in general) governed bythe lex domicilii of the deceased, whereas succession toimmovables is (in general) governed by lex situs. (Conflict ofLaws, 12th edition, p 916)
Regarding this question, Mr. Subasinghe, the learned President'scounsel for the respondents, cited Cheshire and North on PrivateInternational Law and drew our attention to the law relating toprocedural matters. According to Cheshire and North,
The substantive rights of parties to an action may be governed• by a foreign law, but all matters appertaining to procedure aregoverned exclusively by the lex fori. (Private International Law,P 74)
Mr. Subasinghe contends that section 517 of the Civil ProcedureCode is mandatorily applicable to the instant testamentary action. Iagree with the view expressed by Mr. Subasinghe that section 517of the Civil Procedure Code should mandatorily apply to this case.However, it is my view that section 517 of the Code does not providefor a situation where a Sri Lankan testator had left property in a foreigncountry. Furthermore, in my opinion, the Civil Procedure Code entrusta duty on an executor to apply to the District Court in order to obtainprobate. When sections 516 and 517 of the Civil Procedure Codeare taken together, a person in whose custody a will kept, becomesresponsible to produce it before the District Court in order to obtainprobate. In the event such person wilfully or knowingly fails to complywith the provisions of the Civil Procedure Code, he/she shall becomeguilty of an offence and shall be liable to a fine equivalent to thevalue of the estate dealt with in the will.
In a situation where the deceased, who was domiciled in Sri Lanka,had left a will leaving property outside the country, the executor wouldbe faced with a difficult situation in obtaining the probate. Accordingto Mr. Subasinghe's argument, to which I concede, the Civil ProcedureCode is mandatorily applicable to testamentary proceedings. However,if the Civil Procedure Code does not provide for a particular situation,it is my view that as contended by Mr. Samarasekera, it would becomenecessary to look into the legal position pertaining to the jurisdictionof foreign courts.
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Mr. Samarasekera relied on a passage from Sarker on Code ofCivil Procedure (volume 1 p. 842) cited with approval and followedin the case of Seneviratne v. Francis Fonsekaf12)
Where a contingency happens which has not been anticipatedby the framers of the Civil Procedure Code and therefore noexpress provision has been made in that behalf, the court hasinherent power to adopt such procedure, if necessary to invent aprocedure, as may do substantial justice and shorten needlesslitigtion.
I am in complete agreement with the view expressed by Sarker,and it is my view that a contingency arose in this particular case.In such a situation I am of the view that the theory adopted by Sarkercould apply. This is a situation in which provision should have beenmade in the Civil Procedure Code. In the absence of such provisions,
I am inclined to accept the view expressed by Mr. Samarasekera,that succession to movables should be governed by the laws of thedomicile of the deceased. According to Cheshire and North,
The general rule established both in this country and in theUSA is that testamentary succession to movables is governedexclusively by the law of the domicile of the deceased as itexisted at the time of his death. (Private International Law,p 834)
For these reasons I allow the appeal and set aside the judgmentof the Court of Appeal. There will be no costs.
Appeal allowed.
By majority decision appeal dismissed.