WELGAMA vs. WIJESUNDERA AND ANOTHER

017-SLLR-SLLR-2006-V-1-WELGAMA-vs.-WIJESUNDERA-AND-ANOTHER.pdf


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WELGAMA
VS.
WIJESUNDERA AND ANOTHER
SUPREME COURT
S.N. SILVA, CJ,
BANDARANAYAKE, J ANDJAYASINGHE, JSC APPEAL 2/2003CA L. A. 24397
D. C. COLOMBO NO. 31166/T
MAY 20, JUNE 17, JULY 11, AUGUST 29 AND NOVEMBER 3, 2003AND FEBRUARY 17, 2004
Testamentary Action — Determining the date of death for purpose of deciding,date when estate passed to heirs and for grant of letters of administration -Presumption of life – Evidence Ordinance, section 107 – Presumption of death- Evidence Ordinance, section 108 – Interpretation Act, No. 10 of 1988amending the period for presumption of death from “seven years" to “one year'■ How may court decide the date of death as a fact – Does the amendment dateback to the day deceased disappeared, viz. 13.02.1983 or should one year becounted from the date of the amending Act, viz. 02.04.1988? – Intermeddlingwith the estate on the basis of deceased's power of attorney – Effect ofintermeddling on the date of death.
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The appellant is the widow and the respondents are the two sisters of UpaliWijewardena who disappeared on his way to Colombo from Kuala Lumpur inhis private lear jet on 13.02.1983. Neither the air craft nor the remains ofWijewardena were traced. At the time of his disappearance neither the appellantnor the respondents sought to institute testamentary proceedings, but on07.10.1987 the respondents filed DC Colombo Case No. 30927/T. Theycomplained that the appellants acting on the power of attorney issued byWijewardena (deceased) intermeddled with the estate “while he was alive”and sought letters of administration pendente lite under section 539A of theCivil Procedure Code (then in force) on the basis that Wijewardena died on13.02.1983. The court did not publish order nisi but ordered that the appellant’sobjections be issued to the respondents.
When the matter was taken to the Court of Appeal by the respondents, theappellant explained that the respondents were estopped from pleading deathon 13.02.1983 and that as on the date of his disappearance the deceased’sliabilities exceed his assets. He owed Rs. 50 million to the RevenueDepartment and Rs. 200 million to the People’s Bank; steps were taken tosettle these debts on the basis of the power of attorney and the respondentsacquiesced in restructuring the companies and in fact accepted office asdirectors of separate companies.
In the meantime on 21.04.1988, section 108 of the Evidence Ordinancewas amended by Act, No. 10 of 1988 substituting the words “seven years” with“ one year” for the purpose of reducing the period of presumption of death.Consequently the Court of Appeal litigation in DC Colombo No. 30927/T waswithdrawn by the respondents who also consented to letters of administrationbeing granted to the appellant in DC Colombo No. 31166/T filed on 28.04.1988.In that action court ordered final accounts to be filed on 08.03.1993.
Notwithstanding the settlement reached regarding DC Colombo No. 309271/T which was withdrawn of consent, respondents insisted in Case No. 31166/T that the court should hear the matter as if Wijewardena died on 13.02.1983.The appellant contends that she filed action on the basis that the decreaseddied on 21.04.1988, the date of the amending Act, No. 10 of 1988. The DistrictJudge held that on the basis of the evidence and documents the date of thedeath was 13.02.1983. The Court of Appeal affirmed the order of the DistrictJudge that the date of death has to be established on evidence and not interms of section 108 of the Evidence Ordinance, as amended.
HELD:
(Bandaranayake, J. dissenting)
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The date of the death for purpose of the estate should be taken as21.04.1988.
Per S. N. SILVA, CJ
"The question is from which date the period of one year should
be computed? Is it one year immediately preceding 21.04.1988 as contendedby the President’s Counsel for the appellant or one year from the date ofdisappearance as contended in particular by Counsel for the 2nd respondent.?
I am inclined to agree with the President’s Counsel for the appellant for tworeasons.
Firstly the amendment to the Evidence Ordinance is procedural in nature. Itapplies prospectively and a party could avail of it only after it comes into force.Therefore, the earliest date on which a party could establish the fact of deathon the basis of the presumption is the date on which the law comes intooperation. A fortiori the relevant period within which it should be proved that theperson was not heard is the period of one year immediately preceding thatyear.
Secondly, if the presumption of death is to relate back to one year after13.02.1983 as contended by Counsel for the 2nd respondent or to 13.02.1983as contended by President’s Counsel for the 1 st respondent, it would lead tothe incongruous result as noted above, in which the person will be presumedto be alive as well as dead during the same period.”.
Per BANDARANAYAKE, J. (dissenting)
"Section 107 of the Evidence Ordinance could be regarded as aprovision which considers the burden of proof of the death of aperson known to have been alive within thirty years and section 108refers to the burden of proof regarding a person who is alive and hadnot been heard of for seven years”.
“It would be necessary according to Pulle, J (in Davoodbhoyv. Farook)(1959) 63 NLR 97) to prove such death in terms of section 101 of theEvidence Ordinance”.
“The period of seven years referred to in section 108 was amendedby Act, No. 10 of 1988 by reducing the period of seven years to oneyear.”
‘That section (108) does not create a presumption as to the time ofdeath of a person in question”.
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5"Although the deceased was not seen after 13.02.1983, the
appellant had dealt with his property as he was alive and livingelsewhere.”.
“ The respondents have continued to state that the appellant waslast seen or heard on 13.02.1983. The appellant has not disputedthis fact nor has taken any steps to prove anything to the contrary.Therefore there could not be any dispute between the parties that thedeceased was last seen or heard on 13.02.1983.”.
"I cannot see any basis for the date of the amended section 108,which came into force to be regarded as the date'of the death of thedeceased and in my view the contention that the date is to bepresumed as at 21.04.1988 is not only contradictory and untenable,but also is an attempt to give an artificial and baseless interpretationto the amended section .”
Cases referred to :
Silva v. Silva 10 NLR 234 (FB)
Amalgamated Investment and Property Company Ltd. v. TexasCommerce International Bank Ltd. 1984 QB 84 at 122
Doe v. Nepeani(1833) Reports of cases of the Court of Kings BenchVol. IIP. 219 at P226
Re Benham’s Trusts (1867) Law Times Reports Vol. XVI P349
Re Phenes Trust (1870) Law Time Reports Vol. Xxi – p 107 (1870)5CHApp. 139
Re Rhodes vs. Rhodes (1888) Law Times Reports Vol. LVII p. 652
Rexv. Taylor (1950) Kings Bench Division P. 368
Warkins v. Warkins (1953) 2 AER P 1113
Thompson v. Thompason( 1956) 1 AER P. 603
Davoodbhoy v. Farook (1959) 63 NLR 97
Pattison v. Kalutara Special Criminal Investigation Bureau (1970)73NLR 399
Assistant Government Agent v. Fernando (1909) 12 NLR 83
Doe v. Nepean (1833) 5 B & Ad 86
Nepean v. Doe (1837) 2 M & W 894
Re Rhodes (1887) 36 Ch.D. 586
Hamy Vet Muladeniya v. Siyatu (1945) 46 NLR 95
Tikiri Banda v. Ratwatte (1894) 3 CLR 70
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Prins v. Peiris (1901 )4 NLR 353
Silva v. Salman (1916) 19 NLR 305
Lai Chand Matwari v. Mahant Ramrup Gir and Another TLR Vol XLII1925-26 P159
Re Green’s Settlement (1865) LR 1 p. 288
Dowley v. Winfield (1844) 14 sim 277
Wing v. Angrave (1860) 8 HLC 183
Hickman v. Upsali (1876) 4 CH. D. 145
APPEAL from the judgement of the Court of Appeal.
Nihal Jayamanne P. C. with Ronald Perera, V. Choksy, Noorani Amarasinghe,Uditha Collure and Dilan de Silva for appellant.
Wijeyadasa Rajapakse, PC with Navin Marapana for respondents.
Cur.adv.vult.
April 1st 2005
SARATH N. SILVA, C. J.
This is an appeal from the Judgment dated 11.01.1999 of the Court ofAppeal. By that Judgment the Court of Appeal dismissed the applicationof the appellant for leave to appeal from order dated 28.11.1997 of theDistrict Court.
The hearing of the application for Special Leave to Appeal before thisCourt and of this appeal were adjourned for considerable periods of time toenable the parties to arrive at a settlement of the dispute. Upon the failureto arrive at a settlement, Counsel made submissions and thereaftertendered extensive written submissions.
The dispute relates to the administration of the estate of the late PhilipUpali Wijewardena, leading public figure and a businessman. He embarkedfrom the Kuala Lumpur International Airport in his private Lear Jet on
with the recorded destination being Colombo. The aircraftfailed to give a position report overhead Medan to the Kuala Lumpur AirTraffic Control Centre and did not regain contact with any Ground ControlCenter, thereafter. Neither the remains of Wijewardena nor of any of thepassengers have been found. It is reported that some fishermen in
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Indonesia have found a wheel of an aircraft and a part which could berelated to that aircraft. The heirs are his widow, the present appellant andhis two sisters, being the Respondents. Although, Wijewardenadisappeared in the circumstances stated above on 13.02.1983, neitherthe Appellant nor any of the Respondents sought to institute Testamentaryproceedings for Letters of Administration in terms of Section 530(1) of theCivil Procedure Code (which was then applicable) on the basis that hedied on 13.02.1983 being the day on which the aircraft he was indisappeared. Wijewardena had appointed one Ramalingam Murugiah ashis Attorney and his affairs were carried out on the basis of the said Powerof Attorney. Subsequently, the said Murugiah gave a substituted Power ofAttorney in favour of the Appellant.
On 07.10.1987, the two Respondents filed a petition in the DistrictCourt of Colombo (No. 30927/T), seeking Letters of Administration in respectof the estate of Wijewardena. It was pleaded in the petition (paragraph 7)that the Petitioners have reason to believe that the Respondent (the presentappellant) has been willfully asserting that the deceased is still alive forthe unlawful and illegal purpose of administering wrongfully, intermeddlingand to do what she solely wishes with the considerable assets of thedeceased, without any authority or supervision from this Court. They alsopleaded that the action taken by Murugiah and the Appellant on the powerof attorney referred to above is unlawful. They applied to administer theestate on the basis that Wijewardena died on 13.02.83 and sought interalia Letters of Administration pendente lite in terms of Section 539A of theCivil Procedure Code (which was then applicable). The District Court refusedto grant Letters of Administration pendente lite. However, the Court issuedOrder Nisi on 08.10.1987. On 19.10.1987 the Appellant filed papers andmade an application to recall the Order Nisi that had been issued. TheDistrict Court then noted that the Order Nisi had not been signed andmade order that no Order Nisi be published. It was further directed thatNotice of objection be issued on the present Respondents. TheRespondents filed an application for Leave to Appeal to the Court of Appealfrom the order made by the District Court on 19.10.1987. They also filedan application in Revision and a Final Appeal from the same Order.
On 28.04.1988, the Appellant filed petition in the District Court (CaseNo. 31166/T) seeking Letters of Administration. The application was filedon the basis of the amendment to Section 108 of the Evidence Ordinance
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made by Act, No. 10 of 1988, which came into force on 21.04.1988. TheDistrict Court issued Order Nisi on the basis of this application, in terms ofSection 531 of the Civil Procedure Code and directed service on theRespondents.
At this juncture, when cases were pending in the District Court andCourt of Appeal as aforesaid, the parties entered into a settlement on18.01.1989. The settlement has been signed by the appellant and theRespondents on the basis of which the Respondents withdrew theApplications for Leave to Appeal, Revision, and the Final Appeal referredto above. A schedule to the Settlement Agreement specifies the Companiesin respect of which the deceased had interests and the Appellant agreedon her part to the appointment of the Respondents and their children topositions in the Boards of Directors of specified Companies and to makecertain payments as fees. It is specifically provided that subsequent tothe execution of the agreement and the appointment of Directors, asreferred to, the Respondents will consent to Letters of Administration inrespect of the estate of the deceased being issued to the Appellant in theDistrict Court case No. 31166/T, as the widow of the deceased without herproviding any security for this purpose other than a personal bond. TheRespondents also agreed to withdraw the testamentary action No. 30927/T filed by them in the District Court. It was specifically agreed that theRespondents will withdraw the allegations made against the Appellant inparagraph 7 of the petition filed in that action, the contents of whichparagraph have been referred to above.
On the basis of the foregoing settlement Appellant was issued withLetters of Administration.
On 26.11.1992 the Letters of Administration were signed by the Addl.District Judge who directed that the inventory and the final account be filedon 08.03.1993. In clause 3 of the settlement Agreement it is specificallystated that the Appellant, “undertakes to furnish accounts in respect ofeach and every year of her administration of the said Estate of the deceasedto the Parties of the First Part (Respondents) before the Thirty First day ofDecember in each and every year commencing from 31 st March, 1990”
The dispute was rekindled by the failure on the part of the Appellant tofile the inventory and final account as directed by Court or to render accountsas agreed to in clause 3 of the Agreement referred above. The Respondents
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filed a petition and affidavit on 02.04.1997 in case No. 31166/T (being theapplication filed by the Appellant in which Letters of Administration hadbeen issued.), allgeging inter alia, that the deceased died on 13.02.1983and the Appellant intermeddled and/or dealt with the assets of the deceasedfor her own benefit on the basis of a Power of Attorney which was null andvoid, for her own benefit in fraud of the Respondents. They sought anorder against the Appellant from the District Court to file a further inventoryand valuation of the deceased’s property at the date of his death, namely
and a final account of the administration of the estate on orbefore a date to be fixed by Court.
The Appellant filed objections on 29.07.1997 stating that theRespondents are estopped from asserting that the deceased died on
after they withdrew case No. 30927/T filed by them andconsented to Letters being granted to her in case No. 31166/T filed by heron the basis that death took place on 21.04.1988 being the date on whichthe amendment to the Evidence Ordinance came into force. She furtherstated that as at the date of disappearance the liabilities of Mr. Wijewardenaexceeded his assets, with about Rs. 50 Million due to the Inland RevenueDepartment and nearly Rs. 200 Million due to the People’s Bank on debtsof his companies covered by personal guarantees. That, action was takenon the Power of Attorney to avoid a bankruptcy situation in which thePeoples Bank would have taken over the assets. The debts were settledand the assets were restructured. That, the Respondents acquiesced insuch restructuring which was done on the basis that Wijewardena wasalive and on the authority of the power of attorney by accepting Directorshipin Companies that came into existence after 13.02.1983, in terms ofSettlement Agreement referred to above.
The Additional District Judge, in the first part of his Order dated28.11.1997, came to a finding that the Appellant has delayed in filing thefinal account and inventory. In the second part of his Order the Judge hasnoted that for the purpose of filing the final account and inventory it isnecessary to decide on the date of death and on the documentary evidenceadduced as to the disappearance of the aircraft he held that the date ofdeath was 13.02.1983. The Appellant was accordingly directed to file theinventory and final account within 6 months on the basis that the deathtook place on 13.02.1983. The Court of Appeal dismissed the applicationfor Leave to Appeal on the basis that the date of death cannot be decided
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in terms of Section 108 of the Evidence Ordinance. That, the date of deathshould be established on evidence and on the documentary evidence theDistrict Court correctly held that death took place on 13.02.1983.
At the stage of granting Special Leave both parties were permitted toraise questions on which the appeal will be considered. The questionsraised by the Appellant are based on the premise that the direction madeby the District Court to file the inventory and final account with effect from
is erroneous and that the date of the inventory andcommencement of the accounting should be taken as one of the following.:
in view of section 553 of the Civil Procedure Code which requiresa final account of the “executorship or administration”, the point ofcommencement should be the date on which an order was madeto issue Letters of Administration to the Appellant being24.04.1989;
in view of the Settlement Agreement which requires the Appellantto furnish an account of her administration of the estate,commencing 31st March 1990, (clause 3), that should be takenas the date operative between the parties,
in view of the Appellants application for Letters of Administrationbeing filed on 28.04.1988 on the basis of the amendment to Section108 of the Evidence Ordinance which came into force on21.04.1988, that date should be taken as the date on which theestate came into being and the operative date for the inventoryand the accounting.
Submissions of President’s Counsel for the Appellant relate mainly tothe premise formulated in (iii) above.
The Respondents raised the question that the Appellant should accountfrom the date she began to intermeddle with the estate of the deceasedbeing the date of disappearance of the deceased and that the presumptionoperative in terms of Section 108 of the Evidence Ordinance and/or thatLetters of Administration issued, should relate back to that date. Initially,only one set of submissions were filed on behalf of both Respondents.Later, a separate submission was filed on behalf of the 2nd Respondent inwhich it has been contended that even assuming that the Amendment to
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Section 108 of the Evidence Ordinance applies, the date of death shouldbe taken as one year after the date of disappearance viz. 13.02.1984. Inthe joint submission made on behalf of the Respondents it was contendedthat the Settlement Agreement was void.
The question raised by the parties relate to the principal fact in issue,being the date of death of Wijewardena, which has been addressed fromdifferent aspects of fact and the application of principles of Law. It is to beborne in mind that we have to examine the issue solely from the perspectiveof a testamentary action. We are here, not concerned with thecircumstances relevant to the disappearance of the ill-fated aircraft but,with the estate of Wijewardena. The dispute is, to state it plainly, as tothe property of Mr. Wijewardena and the manner in which it should beaccounted for; if as at 13.02.1983, being the date of disappearance, Mr.Wijewardena owned no property, there would have been no dispute.
From the perspective of the Law, property is identified only with referenceto rights and obligations in relation to such property. I use the words rightsand obligations to include all the jural co-relatives identified in jurisprudencethat may relate to property. For example, if we take an immovable propertysuch as a block of land, from the perspective of the Law, we are notconcerned whether it is fertile or infertile, flat of steep but, only with therights of ownership, possession, use enjoyment and so on. These rightsare identified in relation to property, as being vested with a person or otherlegal entity that can hold such rights. The same applies to all forms ofmovable property and legally recognized relationships, be it in contract orotherwise. Since property and legal relationships are identified with reference,to persons who are vested with rights and obligations, it is essential forthe legal system that such persons be clearly identified, at any given pointof time.
The death of a person, in physical or material terms means, thecessation of life. In legal terms, it means the passing of the dead personsrights and obligations that survive, to the heirs or the persons who inherithis property.
For the purpose of testamentary proceedings, at the moment of deaththe property of the deceased (the bundle of rights and obligations)become the estate and pass without interval to the heirs. This basic premise
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of the law has been clearly stated in a decision of the Full Bench of theSupreme Court in the case of Silva vs. Silva (1) Grenier A. J. stated asfollows:
“On the death of a person his estate, in the absence of a will,
passes at once by operation of law to his heirs, and the dominiumvests in them. Once it so vests they cannot be divested of it exceptby the several well-known modes recognized by law."
The Law does not and cannot recognize an interval between the deathand the passing of property, since rights and obligations, from whichperspective only, property and legal relationships are identified in law, haveto be, at any given point of time vested or reposed in a person or a legalentity.
Moving from the general propositions stated above, to the specific factsof the case; when the aircraft in which Wijewardena was travellingdisappeared on 13.02.1983, and he was not heard of thereafter; the obviousquestion that arose in relation to his property rights and obligations waswhether they could be dealt with on the basis Wijewardena was alive or onthe basis he was dead. The preceding analysis reveals that from a legalperspective as to property rights and obligations, there could be nointermediate situation.
The question whether a person is dead or alive, is one of fact and in thisinstance the fact in issue is the date of death since the estate for purposeof Testamentary proceedings came into existence on that date and theproperty rights and obligations thereupon pass to the heirs. There is nodirect evidence as to the death of Mr. Wijewardena. However, this doespreclude the proof of that fact with circumstantial evidence. Although, abasic premise of our Law of Evidence, it is relevant to state here thestandard of proof that would apply. Section 3 of the Evidence Ordinancestates as follows:
“ A fact is said to be proved when, after considering the mattersbefore it, the court either believes it to exist or considers its existenceso probable that a prudent man ought, under the circumstances of theparticular case, to act upon the supposition that it exists."
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Documentary evidence was adduced by the Respondents with theirpetition dated 02.04.1997 filed in the District Court seeking an accountingfrom 13.02.1983, alleging that on a balance of probability that Mr.Wijewardena died on that date. Upon an acceptance of the evidence theimpugned orders have been made by District Court and the Court of Appeal.However, it is obvious that this evidence was available to them as far backas 1983. The significant matter is that neither the Respondents, nor theAppellant nor any of the persons who had claims against Mr. Wijewardena,sought to assert that the death took place on 12.02.1983 and to instituteTestamentary proceedings, at that stage, on this material.-They all choseto go along with what is generally described as the “presumption as to lifeand death” as contained in Section 107 and 108 of the Evidence Ordinance.These two sections that appear in the part dealing with the burden ofproof, prior to the amendment to Section 108 effected by Act, No. 10 of1988 read as follows
" When the question is whether a man is alive or dead, and it isshown that he was alive within thirty years, the burden of proving that heis dead is on the person who affirms it”.
Provided that when the question is whether a man is alive ordead, and it is proved that he has not been heard of for seven years bythose who would naturally have heard of him if he had been alive, theburden of proving that he is alive is shifted to the person who affirms it."
Coomaraswamy in his book on the Law of Evidence (Vol. II book I atpage 429) describes the operation of the presumption of life thus:
"When the question is whether a man is alive or dead, and it is shownthat he was alive within thirty years, the burden of proving that he isdead is on the person who affirms it. In other words, the court has topresume that the man is alive until the contrary is proved by those whoaffirm that he is dead. If not so proved, those who affirm that he is alivewill succeed. This is known in English Law as the presumption as tocontinuance of life. It derives its authority from the presumption ofcontinuance recognized in Section 114(c), but it appears to be obligatory,whereas Section 114(c) is discretionary. It is a rebuttable presumption."
These two sections do not lay down inflexible principles of law. Theyare only rules of evidence that state the burden in a proceeding before any
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Court in which the fact in issue is whether a person is dead or alive. Interms of Section 107 where it is shown that the person was alive withinthirty years, it is presumed for evidentiary purposes that the personcontinues to be alive and the fact of death has to be proved by the personwho alleges it, on a balance of probability as noted above. Section 108 isa proviso which comes into operation in the background of the presumptionof life as contained in Section 107. The manner in which the proviso works,could be stated in practical terms as follows :
The presumption of life continues to apply since the person has beenalive within thirty years and a party not being possessed of evidence toprove the fact of death, adduces evidence short of that by proving that theperson has not been heard for seven years (prior to the amendment) bythose who would naturally have heard of him if he had been alive, then thepresumption shifts and it is presumed that the person is dead. In suchcircumstances the party who alleges that the person is alive has to provethat fact on a balance of probability. The presumption of life is no longeroperative.
It is now necessary to apply these presumptions to the facts of thiscase.
As at 13.02.1983 being the date of disappearance of Wijewardena hadbeen alive within thirty years. Therefore, Mr. he is presumed to be alive.The Appellant and others who dealt with his property, rights and obligationsfunctioned on the premise that he was alive and the Appellant acted forand on his behalf. Section 107 which lays down the presumption of lifedoes not debar any person from adducing evidence and proving the fact ofdeath. The Respondents did not avail of this option. By Act, No. 10 of1988, Section 108 was amended by substituting a period one year inplace of the period of seven years. The amendment was certified on21.04.1988 and within one week on 28.04.1988 the Appellant filed thepresent case for Letters of Administration pleading specifically thatWijewardena should be presumed to be dead in terms of Section 108 ofthe Evidence Ordinance as amended. The present Respondents who werecited in that application accepted that basis and agreed to the grant ofLetters of Administration.
The question to be considered is whether jn this state of things, theRespondents could nearly nine years later, in April 1997 file papers alleging
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that, Mr. Wijewardena died on 13.02.1983. To my mind the following pointsmilitate against this belated change of position on the part of theRespondents, which found favour with the District Court and the Court ofAppeal. They are:
After the disappearance of Mr. Wijewardena on 13.02.1983 theAppellant acting on the presumption of life dealt with his affairs interms of the power of Attorney as stated above. TheRespondents who knew of this course of action, did not seek tostop it by instituting a Testamentary proceeding on the
. documentary evidence as to the disappearance which accordingto them establish on a balance or probability that Mr.Wijewardena, died on 13.02.1983.
On 07.10.1987 the Respondents filed case No. 30927/T for Lettersof Administration on the premise that Mr Wijewardena died on
It is significant that they relied on the samedocumentary evidence adduced with the petition dated 02.04.1997to prove the fact of death and also made the same allegation thatthe Appellant fraudulently and wrongfully dealt with the affairs onthe basis of the Power of Attorney. The Respondents laterwithdrew this application and all proceeding in the court of Appeal,filed from the order of the Additional District Judge refusing tosign the Order Nisi in their favour, without any reservation of theirright to reagitate the same matter;
In the Settlement Agreement, the Respondents specificallywithdrew the allegation in paragraph 7 of their petition dated07.10.1987 filed in case No. 30927/T which reads as follows:
“The Petitioners (present Respondent) have reasons to believethat the Respondent (present Appellant) has been willfully assertingthat the said deceased is still alive for the unlawfully and illegalpurpose of administering wrongfully intermeddling and to do whatshe solely wishes with the considerable assets of the deceasedwithout any authority or supervision from this Court and alsocompletely disregarding the rights and interests of the Petitionerswho are the sisters of the late Upali Wijewardena (deceased)”Thereby, they accepted the validity of the action taken by the
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Appellant on the basis of that Wijewardena was alive by virtue ofthe power of attorney. Their acquiescence in the course of actiontaken by the Appellant is confirmed by the acceptance ofDirectorships in companies formed after 13.02.1983 in terms ofthat Power of Attorney.
Civ) The Respondents consented to Letters of Administration beinggranted to the Appellant in her application in which the fact ofdeath is asserted in terms of Section 108 of the EvidenceOrdinance, as amended. The Respondents did not contest thisposition at that stage and seek to establish that the death tookplace on 13.02.1983. On the contrary, they withdrew theirapplication for Letters filed on that basis as noted in (ii) above.
The Respondents have thus acquiesced in the course of action takenby the Appellant after 13.02.1983 in attending the affairs of Mr. Wijewardenain terms of the Power of Attorney. On the basis of their conduct itemizedabove including the Settlement Agreement and the two Testamentarycases, they are estopped in law from asserting in 1997 that Mr.Wijewardena’s date of death, for the purpose of the administration of hisestate, should be taken as 13.02.1983. The operation of the doctrine ofestoppel is stated in Section 115 of the Evidence Ordinance as follows:
“When one person has by his declaration, act, or omissionintentionally caused or permitted another person to believe a thing tobe true and to act upon such belief, neither he nor his representativeshall be allowed in any suit or proceeding between himself and suchperson or his representative to deny the truth of that thing. “
In England the doctrine of estoppel has been stated as a general principleby Lord Denning M. R. in the following statement made in AmalgamatedInvestment and Property Co. Ltd., vs. Texas Commerce InternationalBank Ltd. (2)
“The doctrine of estoppel is one of the most flexible and useful inthe armoury of the law. But it has become over loaded with cases. Thatis why I have not gone through them all in this judgment. It has evolvedduring the last 150 years in a sequence of separate developments:proprietary estoppel, estoppel by representation of fact, estoppel byacquiescence, and promissory estoppel. At the same time it has been
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sought to be limited by a series of maxims: estoppel is only a rule ofevidence, estoppel cannot give rise to a cause of action, estoppel cannotdo away with the need for consideration, andsoforth, All these can nowbe seen to merge into one general principle shorn of limitations. Whenthe parties to a transaction proceed on the basis of an underlyingassumption-either of fact or of law- whether due to misrepresentationor mistake makes no difference – on which they have conducted thedealings between them – neither of them will be allowed to go back onthat assumption when it would be unfair or unjust to allow him to do so.Ifoneofthem does seek to go back on it, the courts-will give the othersuch remedy as the equity of the case demands. ”
Although, certain doubts have been expressed in England or to theApplication of a unified doctrine of estoppel, the statement of LordDenning could be read in harmony with the principle in Section 115 of ourEvidence Ordinance.
The Appellant applied for Letters of Administration on the basis of thepresumption in Section 108 of the Evidence Ordinance, as amended. TheRespondents who had previously applied for Letters on the basis ofcircumstantial evidence that the death took place on 13.02.1983 droppedthat premise and acquiesced in the position taken by the Appellant. TheCourt has to decide the fact in issue as to date of death in relation to theparties and then apply it to property, obligations and so on, as notedabove. There is no question of the date of death being decided as a matterof general or public importance, in which event different considerationsmay have to be taken into account. Between the parties, based on theirconduct, as analysed above, the date of death must necessarily bedecided on the basis of the application of the presumption in Section 108of the Evidence Ordinance, as amended. This process of reasoning maynot be amenable to common sense or logic but, from the perspective ofthe Law, the reasoning has to be applied so that at any given point of time,it produces a clear and unambiguous answer as to whether a person isconsidered as alive or dead. There cannot be any intermediate period ofdoubt or ambiguity. The preceding analysis shows that rights and obligationsin relation to property and transactions are workable only on a clearlydefined line of demarcation in which a person is considered to be aliveupto a specified date and dead thereafter. As at the date of death thusdetermined, the estate comes into being and the rights and obligations in
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relation to property and transactions that survive after death, pass to theheirs or persons to whom they are devised or bequeathed.
The presumption of death in Section 108 is a proviso to the generalpresumption of continuity as contained in Section 107. The generalpresumption as to continuity of life is couched in wide terms for obviousreasons. In the absence of specific evidence as to the fact of death, thelaw has to presume that the person who was alive continues to be alive. Inthis background of a presumption of continuity of life, the presumption ofdeath as contained in the proviso operates only where it is “proved” thatthe person “has not been head of for seven years (prior to the amendment)by those who would have naturally heard of him, if he had been alive.” Onthe reasoning set out above, the question can now be narrowed down toits core. On what date does the presumption of death begin to operate?Does it relate back to the date the person was not heard of as contendedby the Respondents? Or, is it at the end of the period as contended by theAppellant?
If the answer is based on the principle of relation back as contended bythe Respondents, the person will now be presumed to be dead during theperiod he was presumed to be alive in terms of Section 107. As notedabove, for rights and obligations in relation to property and transactions tobe worked, there has to be a clear dividing line, A person cannot bepresumed to be alive and dead during the same period. If so, all transactionsentered on the basis that the person is alive would be put asunder andthere would be uncertainty as to their validity. Furthermore, in terms ofSection 108, the presumption arises only when it is “proved that he hasnot been heard of for seven years (prior to the amendment) by those whowould naturally have heard of him if he had been alive….” The fact could besaid to be ‘proved’ only at the end of the period.
The conclusion arrived at pursuant to the preceding analysis, flowingfrom the Law of Property, to succession and the application of Section107 and 108 of the Evidence Ordinance is supported by the series ofjudgments in England which relate to trusts, legacies, prescription andbigamy cited by President’s Counsel for the Appellant. In all these casesthe evidence was that the person in question disappeared and it has beenconsistently held that the absence of evidence as to the date of death, thefact of death has to be presumed at the end of the period of seven years.
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In a chronological order the cases are as follows:
Doe vs. Nepean (3) Judgment of Denman C. J.
Re. Benham’s Trusts (4)
Re. Phenes Trust (5)
Re. Rhodes; Rhodes vs. Rhodes (6)
Rex vs. Taylor (7)
Warkins vs. Warkins (8)
Thompson vs. Thompson (9)
A further complication arises in this case from the amendments tosection 108 of the Evidence Ordinance effected by Act, No. 10 of 1989certified on 21.04.1988. The amendment simply substitutes three words“for one year” in place of the words “for seven years” in Section 108.1would reproduce the comment made by Coomaraswamy with regard tothis amendment with which I am in entire agreement:
“Prior to the 21 st April, 1988, when Amendment Act, No. 10of1988was certified, the Ordinance, following the wisdom of more maturesystems like the English Law very properly fixed this period at sevenyears. But the Amendment drastically reduced the period to one year.It is submitted that this is a retrograde step which will lead to manycomplicated and anomalous situations and should be rectified forthwith.To depart from a provision which has worked satisfactorily and whichwas based on the wisdom of the ages and to amend the law in this way,perhaps in order to benefit one individual or more, is not in the bestinterests of justice and can do violence to the symmetry of the law. Itimposes an unnecessary heavy burden on those who seek to showthat the person is alive. It will also result in the fouling of title to property.It certainly shows the wisdom of the legislature in a very poor light. “(Vol. II Book 1, P.430)
When the amendment came into force on 21.04.1988 a period of 5years and 2 months had elapsed from the date of disappearance. Therefore,the presumption of life was operative. With the amendment the fact ofdeath could be presumed after one year. The question is from which dateshbuld the period of one year be computed. Is it one year immediatelypreceding 21.04.1988 as contended by President’s Counsel for theAppellant or one year from the date of disappearance as contended in
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particular by Counsel for the 2nd Respondent. I am inclined to agree withthe submission of President’s Counsel for the Appellant for two reasons:
Firstly, the amendment is to the Evidence Ordinance is procedural innature. It applies prospectively and a party could avail of its provisions andinstitute proceedings only after it comes into force. Therefore, the earliestdate on which a party could establish the fact of death on the basis of thepresumption is the date on which the law came into operation. A fortiori,the relevant period within which it should be proved that the person wasnot heard is the period of one year immediately preceding that date.
Secondly, if the presumption of death is to relate back to one year after
as contended by Counsel for the 2nd Respondent or to13.02.1983 itself as contended by Presidents Counsel for the 1stRespondent, it would lead to a incongruous result, as noted above, inwhich the person would be presumed to be alive as well as be dead duringthe same period.
For these reasons I uphold the submission of President’s Counsel forthe Appellant that the date of death for the purpose of the estate shouldbe taken as 21.04.1988 as being the earliest date on which it could beestablished in terms of Section 108 of the Evidence Ordinance that thepresumption of death applies.
President’s Counsel for the 1st Respondent has submitted that theAppellant should be considered as an Executorde son torffrom the dateon which she started to intermeddle with the estate of the deceased beingthe date of disappearance. He cited the following passage from Wharton’sLexicon and from Executors and Administrators by N. E. Mustoe :
“Executor de son tort,If a stranger takes upon himself to act
as executor or administrator (see. 14 Halsbury’s L of E, 2nd edn. Para282), without any just authority (as by intermeddling with the goods ofthe deceased, and any other transactions), he is called in law an executorof his own wrong, de son tort, and is liable to the extent of the assetswhich have come to him and to all the trouble of an executorship withoutany of the profits or advantages…”
An executor de son tort can discharge his liability by obtaining probateif he is entitled, or by accounting to the personal representative, or tothe Court, in an administration by the Court.”
(Whartons Lexicon 14th edition page 390)
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“Any person who is not an executor or an administrator, but whointermeddles with the deceased’s property, may make himself liable tothe obligations of an executor de son tort (by his own wrong). Veryslight acts on intermeddling, will make a person an executor de sontort, e.g. advertising for claims, paying or receiving payment of debts,or carrying on the deceased’s business.” (Executors and Administratorsby N. E. Mustoe 4th Ed. page 6)
The preceding analysis reveals that from the perspective of the Law theproperty of a person has to be dealt with on the basis that he is alive ordead with a clear dividing line. As at the date of disappearance, thepresumption of life was operative and the affairs of Mr. Wijewardena werecarried on, on the basis he was alive. The finding stated above is that, thepresumption of death operates from 21.04.1988 being the earliest date onwhich the matter could have been established in Court. It is a sine qua nonfor a person to be considered an Executor de son tort, that it beestablished in the first instance that the person is dead and there is anestate. Therefore the liability of an Executor de son tort cannot be attributedto the Appellant in the manner contended for by Counsel. If at all, theAppellant could be considered an Executor de son tort from 21.04.1988.This would be unnecessary since the doctrine of relation back relied on bythe Respondents would apply and the letters granted subsequently wouldrelate to the date of death as determined. In this connection I would citethe following passage from Whartons Law Lexicon – 4th Edn. – Page 858relied on by the Respondents –
“Relation, where two different times or things are accounted as one,and by some act done the thing subsequent is said to take effect ‘byrelation’ from the time preceding. Thus letters of administration relateback to the intestate’s death, and not to the time when they were granted."
Accordingly I allow the appeal and set aside the order dated 28.11.1997of the District Court and the judgment dated 11.01.1999 of the Court ofAppeal. The Appellant being the Administratrix of the Estate is directed tofile the inventory and final account on the basis of that the Eatate of thedeceased came into being on 21.04.1988. Since the Administratrix hasfailed to file any account either in compliance of the Settlement Agreement
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or in compliance with the order made by the District Court, she is directedto file the said inventory and account finally within 3 months of the date ofthis Judgement.
No costs.
JAYASINGHE, J.I agree.,
Appeal allowed.
SHIRANI A. BANDARANAYAKE, J. (Dissenting)
I have had the benefit of reading, in draft, the judgment of His Lordshipthe Chief Justice. Whilst I am in agreement with the factual positionconsidered in the said draft, I regret very much that I am unable to agreewith His Lordship’s answer to the question as to the exact date of thepresumption of death begins to operate, in connection to the estate of thedeceased coming into being to the appellant for the purpose of inventingand accounting. The reasons for my inability to agree with the draft judgmentare as follows:
At the stage of granting Special Leave to Appeal, both parties werepermitted to raise questions on which the appeal was to be consideredand consequently three questions were so raised. However, learnedPresident’s Counsel for the appellant made submissions mainly on questionNo. 3, which was in the following terms:
“In view of the appellant’s application for letters of administrationbeing filed on 28.04.1988 on the basis of the amendment to section108 of the Evidence Ordinance, which came into force on 21.04.1988,that date should be taken as the date on which the estate came intobeing and the operative date for the inventing and the accounting.”.
Having considered the aforementioned question, it has been narroweddown in the draft judgment to read as follows:
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“On what date does the presumption of death begin to operate?Does it relate back to the date of the person was not heard of ascontended by the respondents? Or is it at the end of the period ascontended by the appellant?”
The appeal was chiefly considered on the basis of Sections 107 and108 of the Evidence Ordinance. These two sections are contained in PartIII, which deals with the burden of proof. Section 107 of the EvidenceOrdinance could be regarded as a provision which considers the burden ofproof of the death of a person known to have been alive'within thirty yearsand Section 108 refers to the burden of proof regarding a person who isalive and has not been heard of for seven years. Having said that, it is alsonecessary to be borne in mind that both these sections are also referredto as sections dealing with the presumption of death and the presumptionof continuance of life. Considering this aspect, E. R. S. R. Coomaraswamy,(The Law of Evidence, Vol. II, Book I, pp. 428-429) is of the view that,
‘The fact is that rules as to burden of proof and presumptions are soinvolved together that it is artificial to separate a given situation and tostate that it is a pure rule of the burden of proof and not of a presumption.Every rebuttable presumption in favour of one party necessarily involvesa rule as to burden of proof in the other and vice versa. It is, therefore,proposed to consider the rules in sections 107,108,109,110 and 111as giving rise to the contrary presumptions which a court shall draw.”.
At the same time it would be necessary to be borne in mind that thereis a school of thought that Sections 107 and 108 of the Evidence Ordinancedo not enact a presumption of law or fact, but enact rules governing theburden of proof. In fact Basnayake, C. J., in Davoodbhoyv. Farookmobserved that,
it is essential to bear in mind that Sections 107 and 108 do notenact a presumption of law or fact, but enact rules governing the burdenof proof like any one of the other rules that precede them.”.
A similar view was taken by Pulle, J., in the same decision to the effectthat,
"A rule of evidence as to burden of proof does not generate apresumption of fact.”
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The view that has been taken by Pulle, J., thus emphasizes the factthat one cannot always discharge the burden that the person in questionis dead by leading evidence to indicate that the said person had not beenheard of for seven years by those who would naturally have heard fromhim. It would be necessary according to Pulle, J., to prove such death interms of Section 101 of the Evidence Ordinance. In Pulle, J.,’s words:
“In my view there is nothing in section 108, which compels a Court tohold, upon proof that a person has not been heard of for seven years bythose who would naturally have heard of him if he had been alive, thatthe fact of that person’s death has been established by him on whomthe burden lies under Section 101 to prove such death.”.
Sections 107 and 108 of the Evidence Ordinance, No. 14 of 1895 readsas follows:
"Section 107-
When the question is whether a man is alive or dead, and it is shownthat he was alive within thirty years, the burden of proving that he isdead is on the person who affirms it.
Section 108 –
Provided that, when the question is whether a man is alive or dead,and it is proved that he is not being heard of for seven years by thosewho would naturally have head of him if he had been alive, the burden ofproving that he is alive is shifted to the person who affirms it.”.
The Period of seven years referred to in Section 108 was amended byAct, No. 10 of 1988 by reducing the period of seven years to one year.This amendment was certified on 21.04.1988.
According to Section 108 of the Evidence Ordinance, when the questionas to whether a person is alive or dead is taken into consideration, and it isproved that the person referred to has not been seen or heard of for, earlierseven years and since April 1988, for one year, by those who would havenaturally have heard from him, in the event if he was alive, the burden ofproving that the said person is alive is shifted to the person who relies on it.
A careful consideration of the contents in sections 107 and 108, Indicatethat both sections should be read together as the latter is a proviso to the
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earlier Section. Whilst section 107 creates a legal presumption, ofcontinuance of life if nothing is shown to the contrary, section 108 providesfor the burden of proving that a person to be alive by shifting it to theperson asserting it by denying the death. Considering the operationof section 108 of the Evidence Ordinance, H. N. G. Fernando, C. J., inPattisonv. Kalutara Special Criminal Investigation Bureau(,,) stated that,
“Section 108 of the Evidence Ordinance provides that when a personhas not been heard of for seven years by those who would naturallyhave heard of him if he had been alive, the burden of proving that he isalive is shifted to them who affirm that he is alive.”
However, it is to be borne in mind that section 107 does not create apresumption as to the time of death of a person in question. Therefore thissection will not be applicable to a case where the question is not whethera person is alive or dead, but whether a person died on a specific date.Considering this position, E.R. S.R. Coomaraswamy is of the view that,
“A party who asserts that a person was alive at a certain date mustprove such fact.”
In fact in Assistant Government Agent v. Fernando (,2> Wendt J.,considering the provision in section 107 stated that, there is no presumptionas to the continuance of life or of an admitted marriage. A party whoasserts that a person was alive at a particular date must prove it. In Wendt,
J.’s words:
“Section 107 of the Evidence Ordinance is not applicable, because,as pointed out by Lascelles, A. C. J. on October 11,1906, in the caseNo. 4,365, C. R. Kalutara brought by Siman Perera’s widow, the questionhere is not whether Justina is alive or dead, but whether she (known tohave been dead in 1855) died before or after July, 1852.”
Wharton’s Law Lexicon, (4th Edition pg. 796) defines the presumptionof life or death and the details are given in the following form:
“When a person is once shown to have been living, the law will ingeneral presume that he is still alive, unless after a lapse of timeconsiderably exceeding the ordinary duration of human life; but if therebe evidence of his continued unexplained absence from home and if
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the non-receipt of intelligence concerning him for a period of sevenyears, the presumption of life ceases and he is presumed to be deadat the end of seven years. But the law raises no presumption as tothe time of his death. And therefore, if any one has to establish theprecise time during those seven years at which such person died, hemust do so by evidence.”
In support of this position Law Lexicon refers to the decisions in Doe v.Nepean (13) Nepean v. Doe (14) and Re Rhodes (15).
The appellant’s contention is that she conducted the affairs of thebusiness and properties of the deceased until after the expiry of the periodapplicable for the presumption in terms of section 108 and thereafter filedthe testamentary action. Her submission was that the estate of thedeceased came into existence on the day where the period of 7 years isexpired. Therefore although the deceased was not seen after 13.02.1983,the appellant had dealt with his property as if he was alive or living elsewhere.According to Coomaraswamy (Supra, Pg. 429-430) there is no presumptionof law in favour of or against the continuance of life for any given periodunless contained in a particular enactment.
The respondents have continued to state that the deceased was lastseen or heard on 13.02.1983. The appellant has not disputed this fact norhas she taken any steps to prove anything to the contrary. Therefore therecould not be any dispute between the parties that the deceased was lastseen or heard on 13.02.1983.
Considering sections 107 and 108 of the Evidence Ordinance, it isabundantly clear that in terms of section 108 if a person has not beenheard of for seven years (presently one year) by those who wouldnormally have heard of him, had he been alive, the presumption ofcontinuance would cease and the burden of proving the person to be aliveshifts to the person who asserts the said presumption by denying death.This position was taken in Re Phene’s Trusts (Supra) where it was statedthat,
“If a person has not been heard of for seven years, there is apresumption of law that he is dead, but at what time within that periodhe died is not a matter of presumption, but of evidence and the onus ofproving that the death took place at any particular time within the seven
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years lies upon the person who claims a right to the establishment ofwhich that fact is essential.”.
The question that arises at this juncture is whether it is necessary toascertain the exact date of death of the deceased. The answer to thisquestion is that the need would depend on the circumstances of eachinstance and therefore it would vary from case to case. For instance in acase where the court has to adjudicate a claim of prescription by a thirdparty, the date of death may become important. Similarly, in an instancewhere letters of administration or probate is granted the need to know theexact date of the death of the deceased could arise. In fact it appears thatone of the most important situations that could arise along with thecircumstances under consideration would be with regard to matterspertaining to the deceased person’s estate.
In HamyVelMuladeniyav. Siyatu( 16) the Court held that when a personis presumed to be dead in accordance with the provisions of section 108,his property has to be divided among his heirs. Further, it is to be borne inmind that there cannot be an interval between the death of a person andpassing of his property to the heirs. In fact in Silva v. Silva (Supra) a fullBench held that on the death of a person, his estate, in the absence of awill, passes at once by operation of law to his heirs, and that the dominiumvests in them. This has been an accepted principle and that in TikiriBandav. Ratwatte (17) a case decided in 1894, Lawrie, J. and Withers, J. hadheld that the succession of the estate of an intestate, devolved immediatelyupon his death. Accordingly as a safeguard and chiefly to prevent anyinjury occurring to the deceased person’s estate, the English Courts haveadopted the doctrine of relation back in testamentary proceedings.
Halsbury’s Laws of England (4th Edition, Vol. 17(2), Pg. 26 Para. 35)refers to the doctrine of relation back. With regard to the relation back ofadministrator’s title, it is stated that,
"In order to prevent injury being done to deceased person’s estatewithout remedy, the courts have adopted the doctrine that on the grantbeing made the administrator’s title relates back to the time of death.This doctrine has been consistently applied in aid of an administratorseeking to recover against a person who has dealt wrongfully with thedeceased’s chatties or chatties real. It is also applicable against aperson dealing wrongfully with the deceased's real estate.".
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Wharton’s Law of Lexicon (Supra, at Pg. 858) also refers to the doctrineof relation back and defines the said doctrine in the following terms:
“Relation, where two different times or other things are accountedas one, and by some act done the thing subsequent is said to takeeffect fcy relation’ from the time preceding. Thus letters ofadministration relate back to the intestate’s death, and not to thetime when they were granted (See Re Pryse 1904 Pg. 301. Fosterv. Bates (1843) 12 M & W 226) (emphasis added)”.
As referred to earlier there is no such presumption as to the date ortime of a person’s death. If the question in issue is the date and/or thetime of the death that is to be taken up as a matter that has to be provedby evidence. The respondents had contended that the deceased died on13.02.1983 and this has not been challenged by the appellant. In fact theappellant concedes that she had last heard from him on 13.02.1983.
In such circumstances, the estate of the deceased, in the absence of awill, have to pass at once by operation of law to his heirs and no one otherthan the executor or an administrator could intermeddle with such property.Infact N. E. Mustoe (Executors and Administrators, 4th Edition, Pg. 6)observed that,
"Any person, who is not an executor or an administrator, but whointermeddles with the deceased’s property, may make himself liable tothe obligations of an executor de son tort (by his own wrong). Veryslight acts of intermeddling will make a person an executor de son tort,e.g.— advertising for claim, paying or receiving payment of debts’ orcarrying on the deceased’s business.".
Actions based on the English Law as to an executor de son tort, hasbeen recognised by our Courts, as Bonser, C. J., as far back as in 1901had stated in Prins v. Peiris (18) that —
“Then, Mr. Walter Pereira argued, as I understand him, that the En-glish Law as to an executor de son tort was not in force in this island.It seems to me rather late in the day to argue that: there have beennumerous cases in which such actions have been recognized by thisCourt.”
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This position is applicable to the estate of a spouse. In Silva v. Salman(19) Wood Renton, C. J., had clearly stated that,
“Had she applied for administration of her husband’s estate, shewas the natural person to have obtained it; not having and done so andhaving intermeddled with the estate by paying off the debts, she is inthe position of an executrix de son tort”.
There are two other matters I wish to consider in connection with thematter in issue. Firstly, it was the contention of the learned President’sCounsel for the appellant that the appellant is liable to account on thebasis of an Administratrix only from the date on which the estate cameinto being, namely 21.04.1988. The significance of the date is that theamendment to the Evidence Ordinance, which amended section 108 ofthe Evidence Ordinance came into force on that day. Therefore the datesuggested is not a date, which was arrived at, either according to theprovisions of the Evidence Ordinance, or in terms of the provisions of theamended section. It is also important to be borne in mind that, the appellantdid not wait for a period of one year from the date of the amendment, butfiled her action seven days after the amendment Act came into operation.In the circumstances, I cannot see any basis for the date of the amendedsection 108, which came into force to be regarded as the date of the deathof the deceased and in my view the contention that the death is to bepresumed as at on 21.04.1988, is not only contradictory anduntenable, but also is an attempt to give an artificial and baselessinterpretation to the amended section.
Secondly, seeking the advantage of the presumption in terms ofsections 107 and 108 could be for a variety of reasons. A suddendisappearance of a person may bring in numerous kinds of issues thatwould have to be looked into. The complexities could be on the basis ofmarriage, retirement benefits, payments on an insurance policy or as inthis appeal the question of administering the estate, which includes theaccounting and inventing. As has been stated earlier, there is nopresumption as to the time of a person’s death, which has to be proved byevidence and clearly the presumption of death does not extend to the dateof death. In English Law, as Coomaraswamy points out (Supra Pg. 431)the presumption of death has been used to repel a charge of bigamy, tojustify remarriage and to justify a divorce.
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Considering the totality of the aforementioned circumstances and thelegality of the situation, it would appear that in a situation where as in thepresent case, the following aspects would have to be taken into account:
when there is a situation arising out of a disappearance of aperson, there is no presumption as to the date or the time of thedeath of a person;
on the death of a person, who had died intestate, his estatepasses at once, by operation of law, to his heirs;
any person who is not an executor or an administrator, butintermeddles with the deceased’s property, may make himselfliable to the obligations of an executor de son tort;
as has been referred to in Halsbury’s Laws of England (Volume17(2), 4th Edition, Pg. 38) referring to the effects of acts ofexecutor de son tort, the lawful acts done in the professedadministration of the estate by a person purporting to act aspersonal representative which a rightful executor would have beenbound to perform in due course of administration would bind theestate; and
considering the injuries that could be done to a deceased person’sestate without remedy, the English Law recognizes the doctrineof relation back that would apply to testamentary proceedings.Thereby when the grant is made, the administrator’s title relatesback to the time of death.
In a series of cases (Lai Chand Marwari v. Mahant Ramrup Gir andanother (20) Re Green’s Settlement (21) Dowley v. Winfield (22) Wing v.Angrave (23) the courts have taken the view that if a person has not beenheard of for a term of not less than seven years, there is a presumption oflaw that he is dead, but the onus of proving the death of a person at anyparticular date must rest with the person to whose title that fact is essential.
On the question of the time of the death based on the presumption anexample was cited in Hickman v. Upsall (24) where circumstantialevidence of the time of the death was taken into consideration. The examplewas as follows:
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“Suppose a person intending to return home at ten o’clock at nightdoes not appear, there is no presumption that he is dead. But if after aweek he is found with his skull broken in a wood, you can then con-clude that he was killed before ten o’clock on the night on which hedisappeared.”.
The respondent’s position was that the aircraft in which the deceasedwas a passenger disappeared after it left Kuala Lumpur at 21.09 Hrs. on
Later it was reported that some fishermen in Indonesia hadfound a wheel of an aircraft and a part of a plane, which could be related tothe ill-fated aircraft. None of these had been challenged by the appellantand she had not taken any steps to discharge the burden of establishingany other date other than 13.02.1983, the date suggested by therespondents on which the death of the deceased to have occurred. In factthe appellant contended that the deceased was in Malaysia on 13.02.1983and he boarded his aircraft to fly back to Sri Lanka; but he never arrived inthe country.
It is therefore not disputed that the deceased was expected to return toSri Lanka after 21.09 Hrs. on 13.02.1983 and considering theaforementioned circumstances on the basis of the example given inHickman v. Upsall (supra) the conclusion should be that the deceasedmet his death in or around the said time en route from Kuala Lumpur to SriLanka.
For the aforementioned reasons, I am of the view that 21.04.1988 cannotbe taken as the date on which the estate of the deceased came into beingas on the disappearance and the death of the deceased which apparentlyhad occurred on 13.02.1983, in the absence of a will, the deceased person’sestate passed at once by operation of law to his heirs on 13.02.1983, andsuch date should be taken into consideration as the date for the inventoryand the accounting.
This appeal is accordingly dismissed and the order of the District Courtdated 28.11.1997 and the judgment of the Court of Appeal dated 11.01.1999are affirmed. The appellant being the administratrix of the estate is directedto file the inventory and final account on the basis of that the estate of thedeceased came into being on 13.02.1983, within three months from today.There would be no costs.
Appeal dismissed.
By majority decision appeal allowed.
10 -CM6576