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GUNARATNE v. HAMINE
NLR7V299
GUNARATNE v. HAMINE.
D. C., Kurunegala, 1,828.
Administration-Civil Procedure Code, s. 547.
Whenever it appears in the course of a case that administration is necessary, it becomes the duty of the Court to see that the provisions of section 547 of the Civil Procedure Code are complied with, before the litigation proceeds any further.
That section is a statutory bar to the maintenance of an action for the recovery of any property belonging to the estate of any person dying testate or intestate which amounts to or exceeds in value the sum of Rs. 1,000, unless grant of probate or letters of administration have been issued to some person as executor or administrator of such testator or intestate, and cannot be got over by the implied or express agreement of the parties to the action that, as the title to be deduced from the deceased is not contested, his estate need not be administered.
IN this action for declaration of title to certain fields and lands it was alleged by the plaintiff that one Dingiri Banda, the second defendant, being the owner thereof, sold them to the plaintiff; that the plaintiff instituted case No. 1,556 against the said Dingiri Banda and obtained a judgment against him, declaring the plaintiff entitled to the said lands and fields; that upon the issue of a writ of possession the first defendant, the wife of the second, refused to give up possession to the plaintiff; and that
therefore the present action for ejectment against both defendants had become necessary.
Among other pleas the defendants pleaded that Punchi Menika, the mother of Dingiri Banda, died intestate about the year 1880 leaving an estate above the value of Rs. 1,000, to which no administration had been taken, and that the plaintiff was not entitled to maintain his action without obtaining letters of administration.
The District Judge, Mr. G. A. Baumgartner, ruled that no administration was necessary for the following reasons: -
"It is common ground that full title to the lands in claim vested in Dingiri Banda, whether it all came to him by inheritance from his mother or whether only one-third of it came to him in that way and the other two-thirds from his grandmother and father respectively.
" It being once admitted by both sides that the full title vested in Dingiri Banda, the Court is not concerned in the present action with the transit of the title to Dingiri Banda. The field of inquiry must be limited to the issues that properly' arise. The directions of the Civil Procedure Code on this point are that the Court shall ascertain upon what material propositions of fact or law the parties are at variance. (Section 146). The parties here are not at variance as to Dingiri Banda's sole right to the lands. There is no call upon the Court to frame an issue on a point on which the parties are not at variance.
" 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 in 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 reported in 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
