Adoris Et Al V. Perera

[Full Bench. ]

1914 Present: Lascelles C. J., Pereira J.., and De Sampayo A. J.

ADORIS et al v. PERERA.

25-D. C. Colombo, 35, 474.

Order nisi declaring will proved made absolute--Recall of probate-Fraud-Separate action.

When an issue of probate has followed upon an order nisi (and not upon an order absolute in the first instance), the summary procedure for the recall of probate provided in section 537 does not apply, and ail parties are concluded by the issue of probate. But where there is fraud in connection with the obtaining of probate even upon an order nisi, an independent action might be brought to set aside the probate.

THE defendant in this case produced in testamentary proceedings No. 3, 546, D. C. Colombo, a joint last will purporting to have been executed by the defendant and his wife, whereby the survivor became entitled to the property belonging to either of them.

Probate of the last will was granted to the defendant.

Plaintiffs brought this action for the recall of the probate granted to defendant in respect of the will of defendant's wife (Ran Etana. )

Plaintiffs averred in the plaint-

" (5) Plaintiffs were not aware of the production of the last will or of the probate granted in respect thereof.

" (6) The said Ran Etana had no children, and the plaintiffs are some of the heirs in the event of her having died intestate.

" (7) The plaintiffs say that the last will produced and proved in the said action No. 3, 546 was not the act and deed of Ran Etana, and probate should not have been granted in respect thereof. "

The learned Additional District Judge (L. Maartensz, Esq. ) overruled an objection of the defendant that the plaintiffs cannot maintain this action in view of the provisions of section 537 of the Civil Procedure Code or apart from the section. The defendant appealed.

E. W. Jayewardene, for defendant, appellant. -Section 537 of the Civil Procedure Code lays down the procedure for the recall or revocation of probate. Sections 536 and 537 should not be read

together. Section 537 is not limited to the grounds of recall specified in section 536, but it was intended to permit applications for recall of probate on any legal ground. Tissera v. Goonetilleke.1 A separate action for the recall of probate does not lie in Ceylon. The procedure laid down in the Civil Procedure Code is a very convenient way of dealing with questions as to the recall or revocation of probate.

Wadsworth, for plaintiffs, respondents. -Sections 536 and 537 must be read together. Section 536 gives power to the District Court to recall or revoke probate or grant of administration in certain cases only, and section 537 only lays down the procedure to be followed when such power is to be exercised. Tissera v. Gunatilleke Hamine. 2 The only course open to a person contesting a will admitted to probate is to bring a regular action. When probate has been obtained by fraud, for instance, an action lies to set aside the judgment in the testamentary action and to have the probate recalled. Birch v. Birch. 3 [Lascelles C. J. -But here you do not allege fraud. ] Not directly, but the averment in the plaint that the will was not the act and deed of the deceased amounts to an allegation of fraud. The fraud lies in the averring of a false-statement in the application for probate. Even otherwise, the plaintiff may be allowed an opportunity to specially aver fraud on the part of the defendant in obtaining probate.

Jayewardene, in reply.

Cur. adv. vult.

March 18, 1914. Lascelles C. J. -

The plaintiffs, who were not parties to the testamentary action, sue for the recall of the probate of the will of Ran Etana granted to her husband, the defendant. The ground of action assigned in the plaint is that the will produced in Court '' was not the act and deed of Vithanage Ran Etana. "

The first issue framed was as follows: -

" Can plaintiffs maintain this action in view of the provisions

Click Here to Read the rest of this document