IMBULMURE VS. THE PUBLIC TRUSTEE

IMBULMURE
VS.
THE PUBLIC TRUSTEE

COURT OF APPEAL
ERIC BASNAYAKE, J.
CALA 398/2004
DISTRICT COURT COLOMBO 35481/T,
SEPTEMBER 6, 2007
MARCH 30, 2012.

Civil Procedure Code - Section 544, Section 544 (3) - Nomination in respect of monies in accounts, shares, life insurance, fixed deposits - Death of nominator -Should the deposit certificates be included in the Estate of deceased?

Held:

(1) Nomination shall have effect upon the death of the Nominator notwithstanding anything to the contrary in the last will.

Per Eric Basnayake, J.

"The act makes provision for those companies to deliver property to the nominee on the death of the nominator and get themselves discharged from the obligation."

(2) The Nominee has to make a claim from the person in whose custody the property lies The nominee has to prove his identity to the custodian.

Appeal from the Judgment of the District Court of Colombo with Leave being granted.

Cases referred to :

(1) De Silva Vs. Gomes 30 NLR 249
(2) Pathmanathan Vs. Thurasingham 74 NLR 196
(3) Rosalin Vs. Herat 65 CLW 55

Kushan De Alwis for the intervenient Respondent Petitioner.

M.U.M. Ali Sabry with Ruwahtha Cooray for the Petitioner Respondent.

Cur.adv.vult

May 2, 2012
ERIC BASNAYAKE,J.

1. The intervenient - respondent - petitioner (petitioner) filed this leave to appeal application to have the order dated 8.10.2004 of the learned Additional District Judge of Colombo set aside. By this order the learned Judge had dismissed the petitioner's application. Leave to appeal was granted by this court on 30.11.2010.

2. The executor - respondent is the Public Trustee (respondent). The respondent filed action on 15.12.2000 in the District Court of Colombo seeking probate in respect of the last will of the estate of the deceased, Jayasena Weerasekera. The respondent claimed that the deceased has left a sum of Rs. 500912.34 by way of fixed deposits at The Finance Company, Ltd., and a sum of Rs. 3655.21 in an account at Peoples Bank. The respondent did not make any party a respondent for the reason that the deceased did not have any relations and did not expect any objections.

3. The last will is marked "E2" The last will was attested by A.H.T. Dayananda J.P.U.M, Attorney-at-Law and Notary Public on 9.11.1998 In this last will the deceased had devised and bequeathed all his money in fixed deposits in The Finance Company Limited, bearing numbers TEM 3594-3596 of 26.11.1997 and all monies in the current account No. 1070049233 in the People's Bank, Duke Street, Colombo.

4 The certificates are as follows -  a. No. 3594 for a sum of Rs. 200,000.00
                                                       b. No. 3595 for a sum of Rs. 200,000.00
                                                       c. No. 3596 for a sum of Rs. 200,000.00

   Total                                                                                    Rs. 600,000 00

5. The respondent claimed that the deceased had left his properties in the last will to the following beneficiaries, namely,

Buddhist Welfare Fund of the Sri Dalada Maligawa, Kandy. Sri Lanka Council for Blind at Church Terrace, No 74, Colombo 2

Institute of Helpage, C/o People's Bank Headquarters, Colombo 2.

Sri Ginananda Children's Home, No. 1, Sri Sugatha Viharaya, Dharmarama Road, Colombo.

Saleema Wijegunawardene Home for the Elders, Riverside Road, Piliyandala.

6. On 23.5.2001 the petitioner sought an order from court under Section 544 of the Civil Procedure Code to have him declared entitled to a sum of Rs 1,500,000 (1.5 million) deposited by the deceased at The Finance Company Ltd. The deposit of 1.5 million contained eight certificates including the three certificates referred to in the last will and the details of the certificates are described in the schedule to the petition dated 23.5.2001 of the petitioner The learned Judge after an inquiry dismissed the applic

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