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RE ESTATE OF USUPH LEBBE AND HIS WIFE SERJA
NLR6V194
Re Estate of USUPH LEBBE and his wife SERJA.
D.C., Colombo, 1,800 (Testamentary ).
Nasurdin Lye, Petitioner.
Jasmini and others, Respondents.
Letters of administration-Application for-Staleness of application-Civil Procedure Code, ss. 523, 544, 547-Discretion of Court.
Since the enactment of the Civil Procedure Code all applications for letters of administration or for grants of probate must be considered with reference to the terms of that Code.
As section 547 of that Code enacts that no action shall be maintainable to recover any property in Ceylon where the estate exceeds Rs. 1,000 unless letters of administration shall have issued, and section 544 does not provide that before granting such letters the Court shall consider the length of time that has elapsed since the death of the intestate, but only, where there is a conflict of claims, the provisions of section 523, there is no longer any discretion left to the District Judge as to whether letters shall issue or not.
THE petitioner, who was the son-in-law of Usuph Lebbe and his wife Serja, appeared in Court on 15th October, 1902, and alleged that Usuph Lebbe died intestate on 27th March, 1890, and Serja died intestate on 2nd August, 1892, leaving property within the Districts of Colombo, Chilaw and Kurunegala, and that the respondents were the heirs and next of kin of both the deceased, and that the petitioner was the husband of the fifth respondent. He moved for an order nisi declaring the petitioner entitled to administer the joint estate of Usuph Lebbe and Serja.
The District Judge, Mr. D. F. Browne, disallowed the motion in these terms: -
" I have had occasion already in the testamentary proceedings Nos. 1,686 and 1,608 to express my doubts whether the opinion expressed of late in the Appeal Court, that it is the duty of a Court in all cases where it finds that administration has not been taken out to see that it shall be, was intended to override the old rule of our Courts practically forbidding administration after the lapse of five years. In neither case was appeal taken, much as I desired that the question should be ruled upon by the Appellate Court. For my own part I would be willing to grant administration when the delay that has occurred had been satisfactorily explained by an appellant, and the need for it had been made to appear ".
The petitioner appealed.
Morgan de Saram, for appellant.
Cur. adv. vult.
25th March, 1903. Layard, C.J.-
The petitioner in this case applies for administration of the estate of Conjee Wappu Usuph Lebbe and his wife Dain Serja. The deceased were respectively father-in-law and mother-in-law of the petitioner, who is husband of the fifth respondent, whose sisters, the first and third respondents, are married to the second and fourth respondents. The father-in-law died on 27th March, 1890, and his wife on the 2nd August, 1892, both intestate, and their children are the first, third, fifth, sixth and seventh respondents, the seventh respondent being a minor of the age of fifteen years on the 5th September, 1902, the date of the presentation of the petition to the District Judge.
Under the above circumstances the District Judge, following, as he said, the practice of the English Ecclesiastical Courts, as it was understood and acted upon in certain local cases referred to by him, declined to grant letters of administration, as he said the application came too late, being made after the lapse of more than five years.
The case in re Caderkamer Varitamby reported in 1 Lorenz, 95, was one in which there had been twenty-four years' delay; some of the property of the estate had been sold by the opponent and some given in dowry by him. It was therefore impossible to put the estate back in statu quo ante, and therefore the application for letters of administration was dismissed. The case in re L. Simon Silva, reported in 3 Lorenz, 160, was an application for admi
