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JAYAWARDENE A. St . V. BAWA K. C
NLR19V151
In re the Estate of SEELAVATI
KUMARIHAMY.
25-D. C. (Inty.) Badulla, B 483.
A. St. V. Jayewardene, for
petitioner, appellant.
Bawa, K.C., (with him J. W. de Silva), for respondents.
1916. DE SAMPAYO J.-
This is the matter of an application for letters of administration to the estate
of Seelavati Kumarihamy, who died intestate on July 27, 1915. The applicant is
her husband, and the respondents are her parents. On the service of the order
nisi the respondents filed an affidavit denying that the applicant was an heir
of the deceased or was entitled to administer her estate, and stating that they
were her sole heirs and had a preferential claim to letters. The denial of the
applicant's right was founded upon an allegation that the deceased was married
to the applicant in binna. When the matter came up for consideration the
respondents were unable, in view of the provisions of section 523 of the Civil
Procedure Code, to resist the applicant's claim as widower to administer the
deceased's estate, and they restricted their own claim to joint administration
with the applicant. The District Judge considered, notwithstanding an argument
to the contrary on behalf of the applicant, that the question whether the
deceased's marriage was in binna, and whether therefore the applicant was an
heir of the deceased, was relevant to this claim for joint administration and
should be inquired into. He accordingly framed two issues on this point and
heard evidence, and in the result he decided these issues against the applicant,
and in effect ordered that another (meaning no doubt one of the respondents)
should be associated with him as co-administrator. The applicant has appealed.
I think that the contention of
behalf of the appellant that the inquiry was premature, and that the order as to
joint administration was not justified, is entitled to prevail. If the
appellant's status as lawful husband had been denied, and his claim to
administer the estate had been challenged on that ground, that would have been
the denial of a material allegation in his petition, which would require to be
determined . on viva voce evidence. But the disputed right to inherit is a
different matter, and I do not think that the inquiry in this case was
irregular. I need not refer to the decisions on this subject; they will be found
cited in Fernando v. Fernando, (1914) 18 N. L. R. 24. Mr. Bawa, for the
respondents, however, relied on Be Ibrahim Lebbe, (1900) 1 Browne 358, but that
was a case touching certain persons who tad not been made respondents, but who
claimed to be heirs, and the point of the decision appears to be that, as it is
parties " interested in the administration of the estate " that are entitled to
oppose a grant of letters and to take part in the testamentary proceedings, the
Court may well inquire into the heirship of such persons at an early stage.
That decision, therefore, has no direct bearing on the present case, in which
the respondents were all along designated as heirs and were made parties to the
suit.
As I said, the District Judge made the inquiry into the question of binna or
diga marriage, as, in his opinion, it was relevant to the matter of the
respondents' claim for joint administration. If he means that in every case
where the applicant, though widow or widower, is not also an heir, another
person should be associated with her or him as co-administrator, there is no
legal authority for such a proposition. In In re Ukku Banda, (1900) 4 N. L. R.
257, the Court upheld the preferential right of a widow to grant of letters
under section 623 of the Code, but Bonser C.J. in the course of his judgment,
added that the Code did not mean that the widow was entitled to sole
administration, and that it was quite open to the Court, if it thought it
desirable in the interest of the estate, to associate some other person as a
joint administrator. This enunciate
