GUNARATNE v. PERERA HAMINE.

GUNARATNE v. PERERA HAMINE.

D. C. Kurunegala, 1,828.

Administration-Civil Procedure Code, s. 647-Title to land through deceased intestate-Duty of court to direct administration to be taken before suit proceeds further.

Whenever it appears, in the course of a case which a Court is trying, that administration to the estate of a deceased person, through whom the parties claim title, is necessary, it is the duty of the Court to see that the provisions of section 547 are complied with before the litigation proceeds any further.

The inconvenience and difficulty of insisting upon the administration of old estates are obviated by the enactment of the Prescription Ordinance, which enables a person who has had over ten years' possession to protect himself by means of the provisions of section 3.

ACTION for declaration of title to certain land and for ejectment of the first defendant therefrom.

It was alleged that the plaintiff obtained judgment against the second defendant upon a deed of sale signed by him in favour of

the plaintiff, and that when the plaintiff look out a writ of possession the first defendant, who was the wife of the second defendant, wrongfully refused to give possession to the plaintiff.

The defendants pleaded that the properties belonged originally to the second defendant's grandmother, and that she gifted them in 1870 to the parents of the second defendant and the second defendant himself; that the second defendant became entitled to the lands by right of inheritance from his parents; that the second defendant did not execute a deed of sale in favour of the plaintiff; that the plaintiff obtained a decree in his favour in suit No. 1,556 by fraud and duress; and that long before the alleged deed of sale to the plaintiff the second defendant had, by deed of gift dated 22nd September, 1886, conveyed all his interest, in the said land to the first defendant; and that Punchi Menika, the mother of the second defendant, died about the year 1880 leaving an estate above the value of Rs. 1,000, to which no administration had been taken out, and therefore the plaintiff was not entitled to maintain the present action.

The District Judge, Mr. G. A. Baumgartner, held that the action was maintainable because it was admitted by both sides that the full title to the lands was vested in Dingiri Banda (the second defendant), and it did not matter whether it all came to him by inheritance from his mother, or whether only one-third of it came in that way and the other two-thirds from his grandmother and father respectively. He said:

" Counsel for the defence dangled before the Court as a tempting subject for inquiry the question whether the action could be maintained without administration to the estate of Dingiri Banda's mother, and he cited the remarks of Chief Justice Bonser at 4 N. L. R. 208, to the effect that, if the attention of the District Judge is drawn to the fact of no administration having been taken out, it would be his duty to see that administration was taken. But. that-referred to the estate from which conflicting claims diverged. The plaintiff claimed by inheritance from her mother, who was married in community. The defendant made conflicting claims on the property of the same community. It was plainly necessary for plaintiff to show that title had legally passed to her through her mother, that is to say, that her mother's estate had been legally administered.

" In another case cited at 5 N. L. R. 16, Chief Justice Bonser used the words: ' If a person desires to prove title to property, and finds it necessary ,to deduce a title to that property either from or through a former owner who has died intestate, he must prove one of two things, ' &c.

" In my opinion the words ' finds it necessary ' imply that the title to be deduced is one that is contested by the other side.

" There is no necessity to establish anything anterior to the point at which title is

Click Here to Read the rest of this document