SADHANA DHARMABANDU VS MALLIKA HOMES LTD AND OTHERS COURT OF APPEAL BASNAYAKE

SADHANA DHARMABANDU
VS
MALLIKA HOMES LTD AND OTHERS

COURT OF APPEAL
BASNAYAKE.J
CHITRASIRI. J
CALA 498/2005
DC COLOMBO 36175/T
MARCH 3, 2009

Civil Procedure Code - Section 6, Section 516, Section 520, Section 524, Section 517 - Testamentary proceedings - Application to obtain probate withdrawn - Should the application to prove the last will be dismissed? - Should the procedure set out in granting probate start afresh? - Object of the legislature - Applicability of Section 56 of the Code - Duty of Court in testamentary matters?

The District Court allowed the application of the petitioner to withdraw his application to grant probate in respect of the last will of one X and permitted the intervenient petitioner-respondent to prosecute the action from where it was stopped. The petitioner sought leave to appeal against the said order, and leave was granted on the question 'whether an application to prove a last will should be dismissed when the petitioner is allowed to withdraw his application to obtain probate.'

Held:

(1) Testamentary actions are governed by the provisions contained in Cap. 38 of the Code. The object of the legislature seems to have been to make it mandatory to have a will proved in a Court of Law and to administer the estate of a deceased person according to the wish of the deceased. A duty is cast upon the Judge of the District Court in which a will is deposited to have the probate issued and also to have a will proved or rejected according to law.

(2) In the premises, it is not possible for a Judge in a District Court to dismiss an action merely because an application to obtain the grant of

probate made under Section 517 is withdrawn especially when a will is deposited in Court under Section 516. In such a situation, Court cannot and should not dismiss the action bringing the entire process to a halt.

(3) No specific provisions in law are required to cover the situation under consideration, since it is the normal course of action that a Judge should take in judicial manner.

Per Chitrasiri. J.

"Procedure in testamentary action is dealt with separately in a separate chapter in the Code. Section 6 should not be blindly applied when it comes to procedural issues in testamentary actions. The procedure in testamentary actions should be interpreted judicially and it shall not necessarily be guided by the general provisions in the Code".

Held further

(4) Procedure set out in granting probate or letters need not start afresh by making publications in the newspapers etc., it is not necessary to follow those steps all over again merely because the application to obtain probate was withdrawn.

Case referred to:-

M L. Marikkar vs. Abdul Aziz - 1 NLR196

A. P. Niles with Arosha Silva for petitioner.

Romesh de Silva PCwith Sugath Caldera for respondent-respondent

Manohara de Silva PC with David Weeraratne for intervenient petitionerrespondent.

Cur. adv. vult

April 2, 2009

CHITHRASIRI, J.

This is an application seeking leave of Court to appeal from the order dated 24th November 2005 made by the Additional District Judge of Colombo. In the said order the learned Additional District Judge permitted an application by the Petitioner - Petitioner (herein after referred to as the . Petitioner), to withdraw his application to grant Probate in respect of the last Will executed by the deceased

Petitioner's wife. The learned Additional District Judge whilst allowing this application of the petitioner also permitted the Intervenient-Petitioner-Respondent . (hereinafter referred to as the 2nd respondent) to prosecute the action from the point where it was stopped. Being aggrieved by this order the petitioner sought leave of this Court to have the original application made to the District Court dismissed on the ground that his application to prove the Will was withdrawn.

When the matter was argued in

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