FERNANDO v. SOYSA

FERNANDO v. SOYSA.

D. C., Colombo, 6,796.

Amendment of plaint-Order for amendment-Amendment of issues- Issues, on what material to be framed- of defendant- Executor?s assent to legacy-In sufficiency of assets in executor?s hands-Legatee?s action for legacy-Technical objections to pleadings-Civil Procedure Code, ss. 93, 146, and 720.

Per BONSER, C.J.-

(1) When a plaint is once accepted by a Court it cannot be returned for amendment; It is, when so accepted, a part of the record, and can only be dealt with by the Court.

(2) An order for amendment of a pleading is bad in form if it does not clearly specify the amendments to be made.

(3) In the chapter in the Civil Procedure Code dealing with the trial of actions and settlement of issues there is provision as to amendment of issues an4 framing of additional issues, but none as to amendment. of pleadings. That is dealt with in section 13, by which power is given to the Court to amend pleadings; and when necessity arises to amend a plaint for the purpose of properly stating the plaintiff?s case, the Judge should make the amendments there and then, and not direct the plaintiff to do so.

(4) A legatee may maintain an action for the legacy against the executor of the will under which the legacy is claimed without alleging or proving the latter?s assent to the request, nor need he allege or prove sufficiency of assets in the hands of the executor to meet the request. Whether the assets are sufficient or not, is a fact peculiarly within the knowledge of the executor, and he may plead insufficiency of assets in answer to the legatee?s claim.

(5) Under the Roman-Dutch law a legatee may assert by action his claim to the legacy. Neither section 720 (b) of the Civil Procedure Code nor the provisions of the Code for judicial settlement of executors? accounts have the effect of taking away the legatee?s right to such action.

THE facts of the case appear in the judgment of  BONSER, C.J.

Wendt, for plaintiff appellant.

Dornhorst, for defendant respondent.

Cur. adv. vult.

5th June, 1896. B0NSER, C.J.-

In my opinion, the order appealed against is wrong both in form and substance.

The plaintiffs are husband and wife, the son-in-law and daughter of the late C. H. de Soysa, who died on the 29th September, 1890, and the defendant is his widow, and the only one of the executors who has proved.

C. H. de Soysa on the day of his death made a will jointly with the defendant, which contained the following clause: -" We have "given our daughter Fanny [i.e., the female plaintiff] on her marriage "with Doctor Solomon Fernando [i.e., the male plaintiff] property "of great value, but if the value thereof be under Rs. 200,000 "it is our desire that the deficiency should be made up in real "and personal property, and she should hold such property upon "the same terms and conditions as the property already gifted "to her."

It appears that on the plaintiff?s marriage, which took place in November, 1887, an estate known as the Andiambalam estate was conveyed to them, and the conveyance contained a recital that the value was Rs. 150,000. The plaintiffs allege that at the date of the will and the death of the testator its value was considerably than that sum, and that after giving credit f or some payments, amounting to Rs. 9,000, made by the defendant after the testator?s 4eath, -there was a deficiency of Rs. 146,000, which they ask the Court to compel the executrix to make good in accordance with the directions of the will.

The plaint was accepted by the District Judge, and cannot be returned for amendment. It is now part of the record, and can only be dealt with by the Court. The defendant filed an answer, in which she took various objections, some technical and some of

substance. Issues were framed, and the action came on for trial, when, after hearing argument, but without taking any evidence, the District Judge decided that the pl

Click Here to Read the rest of this document