UDUMA LEBBE v. SEYADU ALL

UDUMA LEBBE v. SEYADU ALL

D.C., Kurunegala, No. 857.

Recovery by an heir of property of an intestate's estate without administration,-Ceylon Civil Procedure Code, s. 547.

Section 547 of the Civil Procedure Code does not apply to cases in which the plaintiff, after the death of the late owner, got into peaceful possession of the deceased's property, whether movable or immovable, and where the cause of action is the dispossession of the plaintiff of property lawfully in his possession, and not the wrongful detention by the defendant of the deceased's property of which the plaintiff never had possession.

Semble, per Withers, J., that section 547 does not prohibit an heir from asking merely for a declaration of title to his ancestor's lands.

THE facts of the case appear in the judgment of Withers, J.

Sampayo, for appellant.

Wendt, A. S.-G., for respondent.

Cur, adv. vult.

25th June, 1897. Lawrie, A.C.J.-

The 547th section of the Code seems to me to apply only to the recovery of property to which the plaintiff alleges right as the heir of a deceased.

No action for the recovery of any part of an estate worth Rs. 1,000 can be maintained until grant of probate or letters of administration have been issued to some person (not necessarily the plaintiff).

The section seems to me not to apply to cases in which the plaintiff, after the death of the late owner, got into peaceful possession of the deceased's property, whether movable or immovable, and where the cause of action in the dispossession of the plaintiff of property lawfully in his possession, and not the recovery of property which he never possessed at all.

In the present case the plaintiffs were the surviving husband and the children (some of them minors) of a Moorish woman, who, the plaintiffs allege, died seized and possessed of a land.

I think it is clear that the plaintiffs did not get possession of the land and were not dispossessed of it. When the next cultivating season after the death of the Moorish woman came round, the defendants were the first to come forward to plough, asserting a title superior to that of the deceased.

In the same way the defendants were the first to take steps to pluck the nuts, and they intimated to the plaintiffs that they would resist any interference.

In the circumstances, my opinion is that the plaintiffs cannot maintain this action because letters of administration have not been issued to a legal representative.

I do not recommend a declaration of the plaintiff's title. I do not say it would be beyond the Court's power, but might it not embarrass the administrator, who doubtless will be appointed, to find that prior to his appointment in an action to which he necessarily was no party the question of the legal title to the land had been decided? What would be the effect of such a declaration on the right of the administrator to sell the land for the debts of the deceased? What if other claims were made by the Mohammedan relatives ?

I think it is safer to dismiss this action as instituted in circumstances under which the 547th section enacts an action cannot be maintained.

Withers, J-

The plaintiffs seek to recover in this action two gardens and a field from the defendants, who they allege took forcible possession of the same from the plaintiff some five months before the institution of these proceedings, denying the plaintiffs' right thereto.

The defendants, it is further alleged, have continued to remain in unlawful possession of the premises, and the plaintiffs ask that the defendants may be ejected, and that they themselves may be restored to possession of the lands so withheld from them. It is averred in the plaint that these lands form part of the estate of the late Marino Natchia alias Pitchcha Umma, who died about a year before this action, intestate, leaving the plaintiffs her sole next of kin.

The plaintiffs also aver that on the death of their ance

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