083-NLR-NLR-V-36-THEVAGNANASEKARAM-v.-KUPPAMMAL-et-al.pdf
404
DALTON S.P.J.—Thevagnanasekaram v. Kuppammal.
1934Present: Dalton and Drieberg JJ.
THEVAGNANASEKARAM v. KUPPAMMAL ct. al.
3-5—D. C. (Inty.) Colombo, 5653
Privy Council—Application for letters of administration by widow to estateof deceased husband, worth less than five thousand rupees—Main questionto be decided being validity of marriage and legitimacy of children—Children’s interest worth over five thousand rupees—Death of widow—Substitution of executor—Right of executor for conditional leave toappeal—Appeals (Privy Council) Ordinance, 1909, Schedule 1, rule1 (a).
S presented a petition for letters of administration to the estate ofher deceased husband' M, whose estate was admittedly below fivethousand rupees in value. On her death Jier executor, the presentappellant, was substituted and the proceedings continued, the principalquestion to be determined being whether S and M were married. Theobject was to obtain an adjudication on the validity of the marriageand the legitimacy of the children in order to secure their reversion tofidei commissum property which was admittedly over Rs. 5,000 in value.The finding of the original Court was against the claim of the petitionerand, on appeal, the finding was affirmed by the Supreme Court.
‘ Held, (on an application for conditional leave to appeal to the PrivyCouncil) that the appellant was not entitled to have leave to appeal.
T
HIS was an application for conditional leave to appeal to thePrivy Council.
N. E. Weerasooria (with him N. Nadarajah and Batuwantudawe), forapplicant.
H. V. Perera (with him E. F. N. Gratiaen and D. S. Senanayake), forfirst respondent.
F. A. Tissaverasinghe (with him E. C. Paul), for ninth and tenthrespondents.
November 27, 1934. Dalton J.—
Objection has been taken by respondents to this petition on the groundthat the appeal does not involve any claim or question to or respectingproperty or some civil right amounting to the value of Rs. 5,000 orupwards.
This matter arises out of testamentary proceedings. The presentpetitioner is the executor of one Sellatchi, who had presented to theCourt- a petition for letters of administration of the estate of her deceasedhusband Muttucaruppen Chetty Supramaniam Chetty. She died beforethe hearing of her petition was concluded in the lower Court, and thepresent petitioner, her brother-in-law and executor, was substituted aspetitioner in her place. The petition by the substituted petitioner forletters of administration then continued without objection, all partiesapparently being agreed that the principal question to be determined inthe proceedings by the lower Court was whether Sellatachi and Supra-maniam had been validly married. This was a question which necessarily
DALTON SPJ.—Thevagnanasekaram v. Kuppammal.405
had to be decided before Sellatchi’s right to administration could beadjudicated upon. After her death however, the question whether or notthe substituted petitioner could have any claim to administer Supra-jnaniam's estate seems to have been lost sight of, in view of the fact thatthe parties were still agreed in asking the Court for a decision on whatseemed to them to be the principal matter in dispute, namely, the validityof the marriage and the legitimacy of the children.
The finding of the lower Court Was against the claim of the substitutedpetitioner on this question, and on appeal to this Court against that findinghis appeal was dismissed. No question was raised in the Court of Appealas to the substituted petitioner’s right to obtain letters of administration,assuming the Court had held the marriage to be a valid one. Thesubstituted petitioner now asks for leave to appeal to His Majesty inCouncil.
The question of the test to be applied in ascertaining the value of the .interest which the appeal involves has been answered by authority. Inboth Sathasiva Kurukkal v. Subramaniam Kurukkal1 and AhamaduLebbe v. Abdul Coders this Court held that the test to be applied is thatreferred to by Lord Selborne in Allan v. Pratt * In his words “ thejudgment is to be looked at as it affects the interests of the party who isprejudiced by it, and who seeks to relieve himself from it by appeal ”.
It is not seriously urged here that the interest of the petitioner appellantis of the value of Rs. 5,000 and .upwards. What is urged is that byagreement of all the parties the question of the validity of the marriageand legitimacy of the children came to be the principal question to bedetermined; that question was determined against the children, and theirclaim directly involves a claim of over Rs. 5,000. The value of the estateof Supramaniam Chetty has not been ascertained, but if has been held itis a very small one. It is conceded, however, that, having regard to thefidei commissa referred to in the inventory filed (although these propertiesform no part of his estate) the interests of the children at stake, whichdepend upon their being the lawful issue of Supramaniam, exceed the sumof Rs. 5,000. It is a fact, however, that these children, who wererespondents in the proceedings in the lower Court and also in the Court ofAppeal, are not seeking to relieve themselves from any judgment byappealing. It is now urged that the substituted petitioner is seeking toappeal on their behalf, but he was not entitled to do so as substitutedpetitioner for letters of administration, nor is he in fact doing so, althougha consequence of his appeal might be to give these particular respondentsthe relief, of which they are in search.
What the Court has to do on this present petition is to apply theprovisions of rule 1 of Schedule I. of the Appeals (Privy Council)Ordinance, 1900, and the test to be applied, so far as this petition isconcerned, is the one set out above. What is the value of the interests ofthe petitioner that are prejudiced by the judgment, from which he isseeking to obtain relief by appeal? Whatever that value may be, he hasfailed to show that it is of the value of Rs. 5,000 or upwards. No realattempt has in fact been made to show the value of his interest, the matter
1 31 N. L. R. 165.
* 13 A. C. 780.
* (1981) 88 N. L. R. 337.
406
DRIEBERG J.—Thevagnanasekaram v. Kuppammal.
relied upon being the value of the interests of the children of Supramaniamand Sellatchi, coupled with the argument that the substituted petitionerwas in substance appealing on their behalf. The petition therefore must,be refused with costs.
The further ground put forward that the question involved in the appealis one of great general importance was properly not pressed.
Drieberg J.—
What the petitioner seeks in this case is a reversal of the judgmentof the Supreme Court and that he be declared entitled to a grant ofletters of administration of the estate of Supramaniam Chetty. Theestate of Supramaniam Chetty being admittedly less than Rs. 5,000 invalue, the appellant cannot say that the matter in dispute on the Appealamounts to or is of the value of Rs. 5,000 or upwards. He seeks, however,to bring himself within the alternative in rule 1 (a) and says that the appealinvolves, directly or indirectly, a claim or question to or respectingproperty or some civil right amounting to Rs. 5.000 in value. The fidei-commissary property, which is not part of Supramaniam’s estate and towhich the first to the fourth respondents (the children of Supramaniamand Sellatchi) would succeed if they are their lawful issue, is admittedlyover Rs. 5,000 in value. The effect of the judgment of this Court is thatthey are not entitled to succeed to that property. It follows, therefore,that the appeal involves a question, which so far as it concerns theappellant, is not of the value of Rs. 5,000, the estate which he seeks taadminister not being of that value, but it does affect the interests of thefirst to the fourth respondents exceeding in value that amount. Doesthis give the appellant a right of appeal?
It was urged that the main object of the claim by Sellatchi to administerthe estate of Supramaniam was to obtain an adjudication on the validityof her marriage and the legitimacy of her children with the object ofsecuring their reversion to the fidei commissum property. This appearsto be so, but it must be remembered that these questions would haverarisen on Sellatchi’s application for letters even if the fideicommissaryproperty was excluded, as it should have been, from the testamentaryproceedings. This Court has in previous cases held that the claim orquestion in rule 1 (a) must be one affecting the party who seeks to appealfrom the judgment, Sathasiva Kurukkal v. Subramaniam Kurukkal1 andAhamadu Lebbe et al. v. Abdul Cader et als. In these cases the ruling inAllan v. Pratt* was followed. That was an appeal from a judgment of aCanadian Court. So far as I can gather from the reference to the subjectin 11 Halsbury (Hailsham edition, p. 234), appeals from Canadian Courtsare not governed by such a provision as in rule 1 (a). The principal ofthe decision, however, can be rightly applied to our rules and a petitionerfor leave to appeal on the grounds stated in rule 1 (a) must show eitherthat the matter in dispute on the appeal amounts to the value of Rs. 5,000or upwards, or that the appeal involves directly or indirectly some claimor question respecting some property or civil right of his which is of thatvalue. The property and rights of this value affected by this appeal are
1 .91 N. L. R. 165.2 (1931) 33 N. L. R. 337.
3 13 A r 7An
MAARTENSZ J.—The King v. Podihamy.
407
not those of the petitioner but of the first to the fourth respondents. Thepetitioner was appointed their guardian ad litem, this appears to havebeen done for the purpose of Sellatchi's application for letters, but it isnot possible for this reason to regard this as an application for leave bythem. This is not a case in which the Court should exercise its discretionunder rule 1 (b).
I agree that the petition-should be refused with costs.
Application refused.